TaxTMI 
TaxTMI 
2026 (8) TMI 721
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.... Application No. 39342 of 2024. By the impugned order, the High Court allowed the application filed by Respondents 1 to 5 (accused persons), set aside the order dated 07.10.2024 passed by the Additional District and Sessions Judge, Court No. 5 Aligarh [Hereinafter referred to as "the trial Court"] in Sessions Trial No. 21 of 2008, and directed that the trial be proceeded afresh in accordance with the mandate of Sections 241 and 242 Cr. P.C. 3. Briefly stated, the facts giving rise to the present appeal are as follows: 3.1. An FIR being No. 5 of 2007 was registered on 04.01.2007 at Police Station Quarsi, District Aligarh on the complaint lodged by the first informant, Rao Singh, for offences punishable under Sections 147, 148, 149, 307, 302 and 120B of the Indian Penal Code, 1860 [For short, "IPC"] and Section 7 of the Criminal Law Amendment Act, 1932 against nine accused persons, namely, Tanuj (A1), Satish (A2 / Respondent No. 1), Bijendra Singh (A3 / Respondent No. 2), Omkar (A4 / Respondent No. 3), Nempal (A5), Subhash (A6 / Respondent No. 4), Preetam (A7), Mohkam (A8 / Respondent No.5) and Narendra Sharma (A9). 3.2. As per the prosecution case, a dispute had arisen betw....
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....r Section 313 Cr.P.C. 3.7. Aggrieved thereby, Respondent Nos. 1 to 5 (accused persons) invoked the inherent jurisdiction of the High Court under Section 482 Cr.P.C. The High Court, by the impugned order dated 18.02.2025, allowed the application and directed that the trial be conducted afresh. 3.8. Therefore, the appellant has preferred the present appeal challenging the direction issued by the High Court. 4. The learned senior counsel for the appellant submitted that all the accused persons were fully aware of the charges framed against them and had actively participated in the trial for more than fourteen years. During this period, they effectively cross-examined the prosecution witnesses at length. It was contended that the present attempt to seek a de novo trial is a calculated effort to exploit a technical procedural irregularity, particularly in view of the fact that two of the most crucial witnesses, namely Rao Singh (Informant / PW-1) and Kuldeep Singh (Injured witness / PW-3) have since expired. 4.1. It was urged that the present case is not one of absence of charge, as erroneously assumed in the impugned order. On the contrary, charges were duly framed and the ....
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....dvertent lapse cannot be elevated to a fatal defect so as to vitiate the entire trial. 4.8. The learned senior counsel further contended that the High Court failed to consider the significance of the order dated 01.06.2009 and instead proceeded solely on the basis that the formal charge dated 27.03.2009 was not signed by all accused. 4.9. It was also pointed out that the charges framed were identical to those set out in the charge sheet supplied to the accused, and no new or altered charge had been introduced so as to prejudice their defence. The extensive cross-examination conducted by the accused over the course of the trial further demonstrates their complete awareness of the prosecution case. 4.10. The learned senior counsel additionally submitted that the present case is intertwined with a cross-case, wherein the accused in the present matter are prosecution witnesses, and vice versa. It was alleged that both sides entered into a compromise with a view to avoid conviction, pursuant to which PW-11 (Pappu) turned hostile in the present case, while Satish (A2 / Respondent No. 1) deposed as PW-7 in the cross-case also turned hostile. In furtherance of this arrangement, bo....
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....nducting a de novo trial has the effect of discarding the entire body of evidence recorded over a period of fourteen years. Such a course is neither warranted in law nor conducive to the ends of justice, particularly when the accused had actively participated in the proceedings throughout. It was further pointed out that during the pendency of the trial, certain crucial prosecution witnesses have expired, and there exists a real likelihood of other witnesses turning hostile if the trial is recommenced from the initial stage. 5.2. The learned counsel submitted that no prejudice whatsoever has been caused to the accused. The record clearly demonstrates that the accused were fully aware of the charges framed against them. The order dated 01.06.2009 specifically records that charges had been framed against all the accused in their presence and in the presence of their respective counsel. Significantly, the said order remained unchallenged for more than fifteen years. 5.3. The learned counsel emphasised that Section 464(1) Cr. P.C. expressly provides that no finding, sentence or order shall be invalidated merely on the ground of absence of charge or any error, omission, or irregul....
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....s not signed by the Presiding Officer. On the same day, another order was passed which, though signed by the Presiding Officer, did not bear the signatures of all the accused persons. It contained the signatures of only five out of nine accused, namely Satish, Omkar, Preetam Singh, Narendra Sharma and Tanuj @ Rajesh. The remaining accused were not present when the charges were purportedly framed. 6.3. The learned senior counsel emphasised that Section 228 Cr.P.C. embodies both procedural and substantive safeguards. Procedurally, it mandates that charges must be framed before the trial commences. Substantively, it requires that the accused be asked whether he pleads guilty or claims to be tried. In the event of a plea of guilt, the court may convict; otherwise, it must proceed to trial. 6.4. It was contended that in the present case, this mandatory requirement was never complied with. There is nothing on record to indicate that the accused were ever called upon to plead guilty or not guilty after a valid framing of charge. In particular, insofar as those accused who were absent on 27.03.2009 are concerned, there is no material to show that their cases were segregated in exerci....
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....me. Once this position is accepted, it necessarily follows that the trial had to recommence from the stage contemplated under Section 228 Cr.P.C. 7.3. Emphasising a distinct facet, learned senior counsel submitted that the subsequent order dated 07.10.2024 suffers from a clear jurisdictional error After framing charges on 11.09.2024, the trial Court entertained an application (Application No. 159-Kha) filed by the son of the deceased, seeking that statements of witnesses recorded prior to the framing of valid charges be treated as evidence. According to the learned senior counsel, by permitting such an application and directing reliance on previously recorded evidence, the trial Court effectively bypassed the statutory framework governing criminal trials. This amounts to a patent jurisdictional error and not a mere procedural irregularity. 7.4. It was further submitted that once fresh charges were framed on 11.09.2024, the accused acquired a statutory right to seek discharge, to be called upon to enter their plea, and to defend themselves in a trial conducted strictly in accordance with law. Permitting earlier recorded evidence to be read against them would seriously prejudic....
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....nd directed that the trial proceed afresh in accordance with Sections 241 and 242 Cr.P.C. This order is under challenge in the present appeal. 12. It is also pertinent to note that a counter-FIR being FIR No. 5A of 2007 dated 05.01.2007 arising out of the same incident, is pending before the Court of the Additional District and Sessions Judge, Court No. 05, Aligarh, and is stated to be at the stage of defence evidence. 13. On the basis of the pleadings and submissions advanced, the following issues arise for our consideration: (i) Whether there was substantial compliance with the requirement of framing of charges in accordance with law? (ii) Whether the defect, if any, in the framing or signing of the charges constitutes an illegality vitiating the trial, or a curable irregularity within the meaning of Sections 215 and 464 Cr.P.C .? (iii) Whether the High Court was justified in directing that the trial be conducted afresh, despite the fact that the trial had substantially progressed and prosecution evidence had already been recorded? 14. Issue No. 1 Whether there was substantial compliance with the requirement of framing of charges in accordan....
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.... accused understood the case against him and was afforded a fair opportunity to defend himself. In Main Pal v. State of Haryana [(2010) 10 SCC 130], this Court explained that the object of framing a charge is to give the accused a clear idea of the accusations and the essential facts he must meet, and that courts must look to the substance rather than technicalities while assessing prejudice. The following paragraph is apposite: "17. The following principles relating to Sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations: (i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having commit....
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....n Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577 : 2001 SCC (Cri) 358]. The requirements of putting the accused at notice and there being a charge containing the requisite particulars, as contemplated under Section 211 CrPC, has to be read with reference to Section 215 of the Code. Every omission would not vitiate the trial. ... 42. Dinesh Seth v. State (NCT of Delhi) [(2008) 14 SCC 94 : (2009) 2 SCC (Cri) 783] was a case where the accused was charged with an offence under Section 304-B read with Section 34 IPC but was finally convicted for an offence under Section 498-A. The plea of prejudice, on the ground that no specific charge under Section 498-A was framed and the court, while referring to the facts and circumstances of the case and the cross-examination of the prosecution witnesses found that it was unmistakably shown that the defence had made concerted efforts to discredit the testimony alleging cruelty, was rejected and the accused was punished for an offence under Section 498-A. This clearly demonstrates the principle that in all cases, non-framing of a charge or some defect in drafting of the charge per se would not vitiate the trial itself. It w....
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....s never fatal unless, in the opinion of the court, a failure of justice has in fact been occasioned thereby. In this case, from the perusal of the cross-examination of PW 3 and other prosecution witnesses made by the advocate for the appellant, it is apparent that the appellant had clearly understood the prosecution case about the first alleged demand made on 6-8-2004 and the subsequent alleged demand and acceptance on 13-8-2004. There is no doubt that this is a case of omission to frame a proper charge, and whatever charge has been framed is, per se defective. However, by reason of the said omission or defect, the accused was not prejudiced insofar as his right to defend is concerned. Therefore, in this case, the omission to frame charge and/or error in framing charge is not fatal." 14.8. In the present case, the record affirmatively establishes that the accused were fully aware of the nature of the accusations and had an effective opportunity to defend themselves. No prejudice whatsoever has been demonstrated. Therefore, we are of the considered view that there was substantial compliance with the requirement of framing of charges in accordance with law. 15. Issue No. (ii) ....
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....ve emphasis is not on the existence of a defect, but on its consequence. Even the absence of a formally framed charge does not vitiate the proceedings. The decisive test is whether the accused was misled in the conduct of his defence and whether a failure of justice has resulted. 15.3. Significantly, Section 464(2) Cr. P.C. itself provides the remedial course where such failure is found, including framing of a charge and recommencement of trial from an appropriate stage, or directing a fresh trial. This clearly indicates that the legislative intent is to cure defects in a manner that preserves the proceedings to the extent possible, rather than to invalidate the entire trial on technical grounds. 15.4. The jurisprudence on this issue stands settled since the Constitution Bench decision in Willie (William) Slaney v. State of Madhya Pradesh (supra), wherein this Court drew a distinction between fundamental illegality and curable procedural irregularity. It was held that only those defects which go to the root of jurisdiction or occasion real prejudice can vitiate the proceedings, whereas defects of a lesser degree constitute irregularities requiring proof of failure of justice.....
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....7. The omission of a signature on the charge, though a procedural lapse, does not render the proceedings invalid when the charge was in fact prepared, recorded, read over, and acted upon by the Court and the parties. The record affirmatively demonstrates that the accused had full knowledge of the accusations and effectively contested the prosecution case. The nature of cross-examination and the defence adopted leave no manner of doubt that the accused were neither misled nor prejudiced. 15.8. This position is consistent with the principles laid down in Kamalanantha and others v. State of Tamil Nadu [(2005) 5 SCC 194], where active participation in trial and full awareness of the prosecution case was treated as decisive indicators of absence of prejudice despite defects in the charge. 15.9. The conduct of the accused is also significant. The objection to the alleged defect was raised belatedly in the year 2024, after substantial progress of the trial and after the demise of key eyewitnesses. Such delayed challenge is a relevant circumstance indicating absence of genuine prejudice, as recognized in Willie Slaney (supra). 15.10. The record further shows that the defence had a....
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.... were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity." 16.3. The expression "failure of justice" has been explained in Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577], where this Court cautioned that the said expression should not be employed loosely and that courts must carefully ascertain whether there has been a real miscarriage of justice or whether the plea is merely a pretext. The following paragraph is apposite: "23. We often hear about 'failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borro....
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....inarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons." 16.5. Similarly, in Nasib Singh v. State of Punjab and another [(2022) 2 SCC 89], this Court reiterated that retrial may be directed only in exceptional cases to avert miscarriage of justice, and not for mere procedural lapses or minor irregularities. 16.6. The settled test, therefore, is whether the earlier trial was so fundamentally flawed that it resulted in a complete failure of justice, or whether the defect is of such a nature that it cannot be cured without directing a fresh trial. 16.7. Applying the aforesaid principles to the facts of the present case, the direction of the High Court to conduct the trial afresh was clearly unwarranted. 16.8. The record indicates that the trial had substantially progressed. Charges were framed in the presence of the accused on 01.06.2009, and the prosecution examined several witnesses over a prolonged period. The accused actively participated in the proceedings and extensively cross-examined the witnesses. ....