{"id":75171,"date":"1988-09-12T00:00:00","date_gmt":"1988-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-west-bengal-anr-vs-laisalhaque-ors-etc-on-12-september-1988"},"modified":"2015-10-07T11:33:59","modified_gmt":"2015-10-07T06:03:59","slug":"state-of-west-bengal-anr-vs-laisalhaque-ors-etc-on-12-september-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-west-bengal-anr-vs-laisalhaque-ors-etc-on-12-september-1988","title":{"rendered":"State Of West Bengal & Anr vs Laisalhaque & Ors. Etc on 12 September, 1988"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of West Bengal & Anr vs Laisalhaque & Ors. Etc on 12 September, 1988<\/div>\n
Equivalent citations: 1989 AIR 129, \t\t 1988 SCR Supl. (2) 870<\/div>\n
Author: A Sen<\/div>\n
Bench: Sen, A.P. (J)<\/div>\n
           PETITIONER:\nSTATE OF WEST BENGAL & ANR.\n\n\tVs.\n\nRESPONDENT:\nLAISALHAQUE & ORS. ETC.\n\nDATE OF JUDGMENT12\/09\/1988\n\nBENCH:\nSEN, A.P. (J)\nBENCH:\nSEN, A.P. (J)\nSHARMA, L.M. (J)\n\nCITATION:\n 1989 AIR  129\t\t  1988 SCR  Supl. (2) 870\n 1988 SCC  (3) 166\t  JT 1988 (4)\t 32\n 1988 SCALE  (2)1090\n\n\nACT:\n     Criminal Procedure Code, 1973--Sections 215, 218, 221,\n374, 386(b), 464; Separate trial of each accused person\t for\nevery distinct offence--There must not be any doubt as to 'a\nsingle\tact or series of acts'--Only when there is error  in\nstating\t the offence of the particulars required and it\t has\noccasioned  a  failure\tof justice is  accused\tentitled  to\nrelief:\n\n\n\nHEADNOTE:\n    The\t respondents, sixteen in number, were members of  a\nriotous\t mob  comprising 40\/50 persons who were\t armed\twith\ndeadly\tweapons.  They along with others,  went\t inside\t the\ncomplainant's oil mill where respondent No. 1, Laisal Haque,\nopened\tfire  with  his\t pipegun  at  Gulam  Rabbani   which\nultimately resulted in his death. They also assaulted  other\npersons inside the mill.\n    Forty-two  persons were arraigned to stand their  trial\nunder  s. 148 and ss. 302 and 324, read with s.\t 149  I.P.C.\nThe Additional Sessions Judge also framed a separate  charge\nagainst\t respondent  No.  1,  Laisal  Haque,  under  s.\t 302\nsimpliciter, and convicted him under s. 148 as well as under\ns.  302. The Additional Sessions Judge convicted  the  other\nrespondents  under s. 147 or s. 148 and s. 324 read with  s.\n149, and acquitted the remaining 26 accused persons.\n    The\t High  Court, in appeal, directed  retrial  of\tthe\nrespondents on\tthe ground of material defect in the framing\nof  the charges which had occasioned a failure\tof  justice.\nThe  High Court held that there was no warrant of framing  a\nseparate  charge  against  respondent No.  1  under  s.\t 302\nsimpliciter  without  making that charge as  an\t alternative\ncharge .\n    Allowing  the appeals and remitting the appeals to\tthe\nHigh Court for a decision afresh on merits, it was,\n    HELD:  (1)\tThe High Court was wrong in its\t view  that\nthere  was  a  fundamental  defect in  the  framing  of\t the\ncharges. This was clearly a case to which s. 221 of the Code\nof Criminal Procedure, 1973 which is an exception to s.\t 218\nof the Code, applies. [875G-H]\n\t\t\t\t\t\t   PG NO 870\n\t\t\t\t\t\t   PG NO 871\n    (2)\t Section  218 embodies the general rule as  to\tthe\ntrial  of accused persons which provides for separate  trial\nof  each  accused person for every distinct offence  and  is\nbased on the fundamental principle of criminal law that\t the\naccused\t person must have notice of the charge which he\t has\nto  meet. Section 221 applies to a case only when  from\t the\nevidence  led  by the prosecution it is\t doubtful  which  of\nseveral\t offences has been committed by the accused  person.\nThere must not be any doubt as to 'a single act or series of\nacts'  which  constitutes the transaction, that is  to\tsay,\nthere must not be any doubt as to the facts. The doubt\tmust\nbe as to the inference to be deduced from these facts,\tthus\nmaking\tit  'doubtful' which of several offences  the  facts\nwhich  can be proved will constitute. In the  instant  case,\nthere is no doubt as to the facts. [875H, 876A-B]\n    (3) There are serious infirmities in the order rendered\nby the High Court. Section 215 of the Code provides that  no\nerror  in  stating  either the offence\tor  the\t particulars\nrequired  to  be stated in the charge, and  no\tomission  to\nstate the offence or those particulars, shall be regarded at\nany stage of the case as material, unless the accused was in\nfact misled by such error or omission, and it had occasioned\na failure of justice. There is no material on record in\t the\ninstant\t case on which the High Court could have reached  to\nsuch a conclusion.[878A-B]\n    (4)\t In judging a question of prejudice, as\t of  guilt,\nthe  Court  must  act with a broad vision and  look  to\t the\nsubstance  and\tnot to the technicalities,  and\t their\tmain\nconcern\t should be as to see whether the accused had a\tfair\ntrial, whether he knew what he was being tried for,  whether\nthe  main  facts sought to be established against  him\twere\nexplained  to  him fairly and clearly, and  whether  he\t was\ngiven a full and fair chance to defend himself. That test is\nclearly\t fulfilled  in the facts and  circumstances  of\t the\ninstant case. [878F-H]\n    Willie  (William)  Slaney v. State of  Madhya  Pradesh,<\/a>\n[1953]\t2  SCR\t1140;  K.C.  Mathew  &\tOrs.  v.  State\t  of\nTravancore-Cochin,<\/a> [1955] 2 SCR 1057; Gurbachan Singh & Ors.\nv.  State of Punjab, AIR<\/a> 1957 SC 623; Eirichh Bhuian &\tOrs.\nv.  State  of Bihar, [1963] Suppl. 2 SCR 328  and  State  of\nMaharashtra  v. Ramdas Shrinivas & Anr.,<\/a> [1982] 2  SCC\t463,\nreferred to.\n    (5)\t The  High Court failed to appreciate  that  in\t an\nappeal\tby the respondents under s. 374(2) of the Code,\t the\norder  of acquittal passed by the Additional Sessions  Judge\nas  against  the 26 other accused could\t not  be  interfered\nwith. [879B-C].\n\t\t\t\t\t\t   PG NO 872\n    (6) The High Court also failed to appreciate that there\ncannot\tbe  a piecemeal trial. The retrial directed  by\t the\nHigh Court must necessarily revise the prosecution and\tmust\nresult\tin  a trial de novo against the 42 accused.  The  26\nother  accused\tacquitted by the Additional  Sessions  Judge\nwere not impleaded as parties to the appeals before the High\nCourt.\tIn the absence of an appeal preferred by  the  State\nGovernment against their acquittal, the High Court could not\nunder  s.  386(b), on an appeal by the\trespondents  against\ntheir  conviction,  alter the acquittal nor can there  be  a\nsplitting up of the trial. [879C-E]\n    State  of Karnataka v. Narsa Reddy,<\/a> [1987] 4  SCC  170,\nreferred\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
\n284-285 of 1988.\n<\/p>\n
    From  the  Judgment\t and Order  dated  14.8.86  of\tthe
\nCalcutta  High Court in Criminal Appeal No. 118 and  130  of
\n1985.\n<\/p>\n
    Amal Datta, D.K. Sinha, J.R. Das and N.A. Choudhary for
\nthe Appellants.\n<\/p>\n
    Gobind Mukhoty, U.R. Lalit, A.K. Cianguli, R.P.  Gupta.
\nShakeel Ahmed Syed and A. Mariarputhanl for the ResPondents.
\n    The Judgment of the Court was delivered by
\n    SEN,  J.  The State Government of West Bengal  and\tthe
\ncomplainant Mohd. Abu Bakkar Siddique Molla have come up  in
\nappeal by way of special leave, from the judgment and  order
\nof  a Division Bench (Sukumar Chakravarty & Gobinda  Chandra
\nChatterjee, JJ.) of the High Court of Calcutta dated  August
\n14, 1986 setting aside the finding and sentences recorded by
\nShri  S.K. Mitra, Additional Sessions Judge,  24  Paraganas,
\n14th  Court. Alipore dated April 4, 1985 in  Sessions  Trial
\nNo. 3(8) of 1983 directing retrial of the respondents before
\nus,  16 in number, on the ground of material defect  in\t the
\nframing\t of  the  charges which, according  to\tthe  learned
\nJudges, had occasioned in failure of justice. The High Court
\nheld  that   (1) it appears from the heads  of\tthe  charges
\nframed\tby  the learned Additional Sessions Judge  that\t the
\nprincipal accused Laisal Haque was charged along with  other
\naccused persons under s. 302 read with s. 149 of the  Indian
\nPenal Code, 1860 alleging that in furtherance of the  common
\nobJect\tof  killing the deceased Gulam\tRabbani\t and  injure
\nothers,\t all  the  rioters committed  the  murder  of  Gulam
\n\t\t\t\t\t\t   PG NO 873
\nRabbani. If such a charge was framed against all the accused
\npersons\t including  Laisal Haque,  there was no\t warrant  of
\nframing\t a charge against the accused Laisal Haque under  s.
\n302   simpliciter,   without  making  that  charge   as\t  an
\nalternative  charge . (2) The charge framed by\tthe  learned
\nAdditional Sessions Judge as against the accused persons was
\nmaterially defective inasmuch as it was a rolled up  charge,
\nthe  common object of the unlawful assembly being to  murder
\nGulam Rabbani and injure others. The use of the words injure
\nothers\twithout\t specifically mentioning the  names  of\t the
\npersons\t  who  were  injured  made  the\t charge\t vague\t and
\nindefinite.  lnstead  the Iearned Additional Sessions  Judge
\nought  to have framed separate and distinct charges for\t the
\nassault\t and causing of grievous hurt in respect of each  of
\nthe  persons  assaulted.  (3) The judgment  of\tthe  learned
\nAdditional  Sessions Judge suffers from a serious  infirmity
\nin that he had in a slipshod manner not discussed at all the
\nevidence  separately  under different heads of\tthe  charges
\nframed against each of the accused persons. While convicting
\nthe accused persons under s. 324 read with s. 149 he had not
\ndiscussed which of the accused persons caused hurt to whom.
\n    In\tthe course of the judgment the learned Judges  have
\nquoted\ta portion of the  judgment of the  learned  Sessions
\nJudge recording a finding of guilt, and observed:\n<\/p>\n
    It\tis,  therefore, clear that while  arriving  at\tthe
\naforesaid   finding,  the  learned  trial  Judge   has\t not
\ndiscussed about the common object although he convicted\t the
\naforesaid accused persons under Section 148 I.P.C. and under
\ns.  147\t I.P.C. It also appears that  while  convicting\t the
\naccused\t persons under Section 324 I.P.C. the learned  trial
\nJudge has not discussed which of the accused persons  caused
\nhurt to whom.\n<\/p>\n
    Another  serious material irregularity in  framing\tthe
\ncharge\tunder  s. 302 of the Indian Penal  Code\t simpliciter
\nagainst the accused Laisal Haque has been shown by Mr.\tRoy.
\nIt  appears from the heads of the charges that\tthis  Laisal
\nHaque was charged along with other accused persons under  s.
\n302\/149 of the Indian Penal Code stating that in furtherance
\nof  the\t common object of killing Gulam Rabbani\t and  injure
\nothers,\t all  the  rioters committed  the  murder  of  Gulam
\nRabbani. If such a charge is framed against all the  accused
\npersons\t including Laisal Haque, then it does not  stand  to
\n\t\t\t\t\t\t   PG NO 874
\nreason why again this Laisal Haque has been charged under s.
\n302 simpliciter without making that charge as an alternative
\ncharge.\t Both  Mr.  Roy\t and  Mr.  Dutta  (learned   counsel
\nappearing for the respondents accused who preferred  appeals
\nin  the\t High  Court) have submitted  that  because  of\t the
\naforesaid  irregular  charges  and rolled  up  charges,\t the
\nrespective accused persons have been seriously prejudiced at
\nthe  trial and the same has caused the failure\tof  justice.
\nThe learned Advocate appearing for the State also shares the
\nsame view.\n<\/p>\n
The learned Judges then concluded:\n<\/p>\n
    On\tdue consideration of the charges and the  materials
\non record, we also agree to the view as taken by the learned
\nAdvocates  for\tthe  appellants and shared  by\tthe  learned
\nAdvocate for the State. Further, the conviction and sentence
\nunder s. 324 or u\/s. 323 I.P.C. simpliciter without  framing
\nthe charges does not appear to be legal, and have caused the
\nfailure of justice.\n<\/p>\n
    The\t learned  Judges  accordingly held  that  the  case
\nrequired a retrial against the accused respondents alone  as
\nagainst\t 16 out of 42 persons arraigned by both the  learned
\nAdditional Sessions Judge on reframing Of charges. This\t was
\ndone  without disturbing the order of acquittal recorded  by
\nthe learned Additional Sessions Judge and 26 other  accused.
\nThe  learned Judges were pleased to add that no\t observation
\nmade  by  them\tin the impugned order of  retrial  shall  be
\ntreated\t as  an expression of opinion on the merits  of\t the
\ncase.\n<\/p>\n
    It\twould  be convenient at this stage to set  out\tthe
\ncharges\t framed\t by the learned\t Additional  Sessions  Judge
\nwhich were in these terms:\n<\/p>\n
    First–That you all on or about the 5th September  1980
\nat Najarnagar alias Sankarpore Ferryghat and P.S. Haroa were
\nmembers\t of an unlawful assembly and did in  prosecution  of
\nthe  common  object of which assembly viz. to  murder  Gulam
\nRabbani and injure others, commit the offence of rioting and
\nat  that time were armed with deadly weapons such as  bombs,
\npipeguns, iron rods, brickbats etc. and thereby committed an
\noffence punishable under s. 148 of the Indian Penal Code and
\nwithin the cognizance of the Court of Sessions.\n<\/p>\n
\t\t\t\t\t\t   PG NO 875
\nSecondly–That\tyou  all  on the same date  and\t place\twere
\nmembers\t of an unlawful assembly and did in  prosecution  of
\nthe  common  object of such assembly viz.  to  murder  Gulam
\nRabbani and injure others, some of you did commit murder  by
\nintentionally causing the death of the said Gulam Rabbani by
\ngun  shot  injury,  which  offence you\tknow  likely  to  be
\ncommitted  in prosecution of the common object\tand  thereby
\ncommitted an offence punishable under s. 302\/ 14 I.P.C.\t and
\nwithin the cognizance of the Court of Sessions.
\n    Thirdly–That  you all on the same date and place  were
\nmembers\t of an unlawful assembly and did in  prosecution  of
\nthe  common  object of such assembly viz.  to  murder  Gulam
\nRabbani\t and  injure others some of you\t voluntarily  caused
\nhurt to Mokbul Molla, Mr. Akbar Ali Molla, Abu Molla,  Yasin
\nMolla,\tAbdul Wahed Ahed Bux Molla, Daulat Ali\tMolla,\tJaid
\nMolla  & Ors. by gun iron rod, bombs, lathi etc. which\tused
\nas  weapons  of\t offence were likely to\t cause\tdeath  which
\noffence\t you knew likely to be committed in  prosecution  of
\nthe   common  object  and  thereby  committed\tan   offence
\npunishable under s. 324\/149 I.P.C. and within the cognizance
\nof the Court of Sessions.\n<\/p>\n
    The\t learned  Sessions  Judge also\tframed\ta  separate
\ncharge\t against  the  respondent  Laisal  Haque   for\t the
\nsubstantive offence of culpable homicide amounting to murder
\npunishable  under s. 302 of the Indian Penal Code, which  is
\nin the following terms:\n<\/p>\n
That you, on or about the 5th September, 1980 at  Najarnagar
\nalias  Sankarpore Ferryghat, under Police Station Haroa\t did
\ncommit\tmurder by intentionally causing the death  of  Gulam
\nRabbani and thereby committed an offence punishable under s.
\n302 of the Indian Penal Code and with him the cognizance  of
\nthe  Court  of Sessions. And  I hereby direct  that  you  be
\ntried by the said Court on the said charges.
\n    We\tare  unable to subscribe to the view  of  the  High
\nCourt that there was a fundamental defect in the framing  of
\nthe charges. This was clearly a case to which s. 221 of\t the
\nCode of Criminal Procedure, 1973 which is an exception to s.
\n218  of the Code viz. that for every distinct offence  there
\nshould be a separate charge and every charge should be tried
\nseparately,  applies  Sec. 218 embodies the general rule  as
\nto the trial of accused persons which provides for  separate
\n\t\t\t\t\t\t   PG NO 876
\ntrial of each accused person for every distinct offence\t and
\nis  based on the fundamental principle of criminal law\tthat
\nthe  accused person must have notice of the charge which  he
\nhas  to meet. Sec. 221 applies to a case only when from\t the
\nevidence  led  by the prosecution it is\t doubtful  which  of
\nseveral\t offences has been committed by the accused  person.
\nThere must not be any doubt as to a single act or series  of
\nacts  which  constitutes the transaction, that\tis  to\tsay,
\nthere must not be any doubt as to the facts. The doubt\tmust
\nbe as to the inference to be deduced from these facts,\tthus
\nmaking it doubtful which of several offences the facts which
\ncan be proved will constitute. In the present case, there is
\nno  doubt  as to the facts. It is  uncontroverted  from\t the
\nfacts  found by the learned Additional Sessions\t Judge\tthat
\nthe   sylvan  surroundings  of\tShankarpore   Ferryghat\t  at
\nNajarnagar  on\tthe  banks of  the  river  Bidyadhari  which
\notherwise  are\tpeaceful and calm,  witnessed  a  tumultuous
\noccurrence on the morning of September 5, 1980 resulting  in
\na  grisly tragedy. The facts are that PW 1 Mohd. Abu  Bakkar
\nSiddique Molla is a man of easy circumstances, owning an oil
\nmill, a saw mill and a flour mill besides cultivation of his
\nown.  All  of a sudden, the atmosphere\tof  Shankarpore\t was
\nsurcharged with turmoil and violence when a marauding  crowd
\nof  40\/50  miscreants including the respondents\t armed\twith
\ndeadly weapons such as pipeguns, bombs, spears, tangis, iron
\nrods,  lathis etc. let loose their fury on the oil  mill  of
\nthe complainant. The armed mob caused considerable damage to
\nthe  complainant s car WBE 1227 parked in front of  the\t oil
\nmill. Seeing the riotous mob the deceased Gulam Rabbani,  an
\nemployee  of  the complainant, who was inside the  oil\tmill
\nalong  with other employees and the customers,\tpulled\tdown
\nthe  shutters of the mill but could not escape the wrath  of
\nthe armed mob. They effected a forcible entry into the\tmill
\nby  lifting the shutters. The respondent Laisal\t Haque,\t the
\nprincipal  accused,  who was armed with a pipegun,  fired  a
\nshot at the deceased Gulam Rabbani who fell down on the spot
\nand  later  succumbed to his injuries at the  hospital.\t His
\nassociates  then assaulted some of the customers inside\t the
\nmill  who  were awaiting their turn as well as some  of\t the
\nemployees  with\t their\tweapons. After\tthe  deceased  Gulam
\nRabbani was gunned down and several others received multiple
\nbleeding injuries, the armed mob retreated to the  direction
\nfrom which it came.\n<\/p>\n
    Forty-two  persons were arraigned to stand their  trial
\nbefore\tthe  learned  Additional  Sessions  Judge  for\t the
\naforesaid  offences  with which they were  charged,  namely,
\nunder s. 148, and ss. 302 and 324, both read with s. 149. As
\nalready\t stated, the learned Additional Sessions Judge\talso
\n\t\t\t\t\t\t   PG NO 877
\nframed a separate charge against the respondent Laisal Haque
\nunder  s. 302 simplicter for having committed the murder  of
\nthe deceased Gulam Rabbani.\n<\/p>\n
    On\ta careful consideration of the evidence\t adduced  by
\nthe prosecution and the circumstances attendant, the learned
\nAdditional  Sessions  Judge came to the\t definitive  finding
\nthat the respondents who are 16 in number, were members of a
\nriotous\t mob  comprising  40\/50 persons\t armed\twith  deadly
\nweapons,  that they along with others went inside  the\tmill
\nand then respondent No. 1 Laisal Haque opened fire with\t his
\npipegun\t at Gulam Rabbani which ultimately resulted  in\t his
\ndeath, and further that they were the persons who  assaulted
\nthe  persons inside the oil mill and caused injuries to\t the
\nservants  of the complainant and others, namely, PW  7\tAhed
\nBux  Molla, PW 8 Sanai Molla, PW 9 Fakir Ali Sardar,  PW  10
\nRambilas Thakur, PW 15 After Molla, PW 16 Gulam Molla, PW l9
\nDebiruddin Molla, PW 20 Md. Yasin Molla, PW 21 Motiar Rahman
\nand  PW\t 22  Afsar  Ali\t Molla.\t He  accordingly   convicted
\nrespondent No. 1 under s. 148 as well as under s. 302 of the
\nIndian Penal Code and sentenced him to rigorous imprisonment
\nfor  a\tterms  of  three years\tand  imprisonment  for\tlife
\nrespectively. He convicted some of the respondents who\twere
\narmed with deadly weapons under s. l43 and S. 324 read\twith
\ns.  149 and sentenced them to undergo rigorous\timprisonment
\nfor  a\tperiod\tof three years on both\tcounts.\t Some  other
\nrespondents   were  however  convicted\tunder  s.  147\t and
\nsentenced  to  suffer rigorous imprisonment for\t two  years.
\nPresumably, the learned Additional Sessions Judge  proceeded
\nupon the basis that the act of respondent No. 1 Laisal Haque
\nin  opening  fire  with his pipegun at\tthe  deceased  Gulam
\nRabbani\t was  covered  by  clause  thirdly  of\ts.  300\t and
\ntherefore  he was guilty of culpable homicide  amounting  to
\nmurder\tpunishable under s. 302. But as regards\t others,  he
\nwas  of\t the  view that the common object  of  the  unlawful
\nassembly was not to commit the murder of the deceased  Gulam
\nRabbani\t but  to  voluntarily  cause  the  servants  of\t the
\ncomplainant  and others hurt by dangerous weapons  and\tthus
\nconvicted  them of the offence under s. 148 and s. 234\tread
\nwith  s. 149. We refrain from expressing any opinion on\t the
\nmerits\tas to the legality and propriety of  the  conviction
\nrecorded as against these respondents. That is a matter\t for
\nthe  High  Court and it must come to the  conclusion  as  to
\ntheir  guilt  or otherwise on a proper appreciation  of\t the
\nevidence.  We  regret to find that there  is  complete\tnon-
\napplication  of\t mind  on the part of  the  High  Court\t and
\ninstead\t  of  considering  the\tappeals\t preferred  by\t the
\nrespondents,  it  has passed an order for retrial  which  is
\ntotally\t unwarrnated.  It was nobody’s case  that  were,  in
\nfact,  misled by any error or defect in the  charges  framed
\n\t\t\t\t\t\t   PG NO 878
\nnor has the High Court explained as to how there has been  a
\nfailure\t of justice. The High Court was clearly in error  in
\ndirecting a remand for retrial of the respondents.
\n    There  are\tserious infirmities in\tthe  impugned  order
\nrendered  by the High Court. Sec. 2 15 of the Code  provides
\nthat  no  error\t in  stating  either  the  offence  or\t the
\nparticulars  required  to be stated in the  charge,  and  no
\nomission to state the offence or those particulars, shall be
\nregarded  at any stage of the case as material,\t unless\t the
\naccused was in fact misled by such error or omission, and it
\nhas occasioned a failure of justice. There is no material on
\nrecord on which the High Court could have reached to such  a
\nconclusion.  We may next refer to s. 221 of the\t Code  which
\nprovides  by  sub-s. (1) that if a single act or  series  of
\nacts  is  of  such a nature that it  is\t doubtful  which  of
\nseveral\t offences  the\tfacts  which  can  be  proved\twill
\nconstitute, the accused may be charged with having committed
\nall or any of such offences, and any number of such  charges
\nmay  be\t tried\tat  once;  or  he  may\tbe  charged  in\t the
\nalternative  with  having  committed some one  of  the\tsaid
\noffences. Sub-s. (2) thereof provides that if in such a case
\nthe  accused is charged with one offence, and it appears  in
\nevidence that he committed a different offence for which  he
\nmight have been charged under the provisions of sub-s.\t(1),
\nhe may be convicted of the offence which he is shown to have
\ncommitted, although he was not charged with it.
\n    Next,  Sec.\t 464 of the Code provides that\tno  finding,
\nsentence or order by a Court of competent jurisdiction shall
\nbe  deemed invalid merely on the ground that no\t charge\t was
\nframed\t or  on\t the  ground  of  any  error,  omission\t  or
\nirregularity  in  the  charge including\t any  misjoinder  of
\ncharges,  unless,  in the opinion of the  Court\t of  appeal,
\nconfirmation or revision, a failure of justice has, in fact,
\nbeen occasioned thereby.\n<\/p>\n
    In\tthe  celebrated case of Willie (William)  Slaney  v.
\nState of Madhya Pradesh,<\/a> [1955] 2 SCR 1140, Vivian Bose,  J.
\nspeaking  for  the  Court  after  an  elaborate\t  discussion
\nobserved  that\tin judging a question of  prejudice,  as  of
\nguilt,\tthe Courts must act with a broad vision and look  to
\nthe substance and not to the technicalities, and their\tmain
\nconcern\t should\t be to see whether the accused\thad  a\tfair
\ntrial, whether he knew what he was being tried for,  whether
\nthe  main  facts sought to be established against  him\twere
\nexplained  to  him fairly and clearly, and  whether  he\t was
\ngiven a full and fair chance to defend himself. That test is
\nclearly\t fulfilled  in the facts and  circumstances  of\t the
\npresent case. The principles laid down by that very  eminent
\nJudge in Slaney’s case have throughout been followed by this
\n\t\t\t\t\t\t   PG NO 879
\nCourt.\tSee:  K.C.  Mathew & Ors. v.  State  of\t Travancore-
\nCochin,<\/a>\t [1955]\t 2  SCR 1057, Gurbachan Singh  v.  State  of
\nPunjab,\t AIR<\/a> 1957 SC 623, Eirichh Bhuian & Ors. v. State  of
\nBihar,\t[1963] Suppl. 2 SCR 328 at pp. 336-37 and  State  of
\nMaharashtra  v. Ramdas Shrinivas Nayak & Anr.,<\/a> [1982] 2\t SCC\n<\/p>\n
463.
\n    Lastly,  we\t are constrained to observe  that  the\tHigh
\nCourt has not examined the merits of the case at all. If  it
\nhad  done so, it could not have come to the conclusion\tthat
\nthere was any material defect or omission in the framing  of
\nthe charges or giving the particulars thereof or any failure
\nof  justice was occasioned thereby. It failed to  appreciate
\nthat in an appeal by the respondents under s. 374(2) of\t the
\nCode,\tthe  order  of\tacquittal  passed  by  the   learned
\nAdditional  Sessions Judge as against the 26  other  accused
\ncould not be interfered with. The High Court also failed  to
\nappreciate  that  there\t cannot be a  piecemeal\t trial.\t The
\nretrial\t directed by the High Court must necessarily  revise
\nthe  prosecution and must result in a trial de novo  against
\nthe  42\t accused.  The 26 other\t accused  acquitted  by\t the
\nlearned\t Additional  Sessions Judge were  not  impleaded  as
\nparties to the appeals before the High Court. In the absence
\nof an appeal preferred by the State Government against\tthir
\nacquittal,  The High Court could not under s. 386(b)  on  an
\nappeal\tby the respondents against their  conviction,  alter
\nthe acquittal nor can there be a splitting up of the  trial.
\nSee: State of Karnataka v. Narsa Reddy,<\/a> [ 1987] 4 SCC 170.
\n    Accordingly,  the appeals must succeed and are  allowed.
\nThe  judgment  and order passed by the High  Court  are\t set
\naside  and the appeals are remitted to the High Court for  a
\ndecision afresh on merits after notice to the parties.
\nR. S . S .\tAppeals allowed .<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of West Bengal & Anr vs Laisalhaque & Ors. Etc on 12 September, 1988 Equivalent citations: 1989 AIR 129, 1988 SCR Supl. (2) 870 Author: A Sen Bench: Sen, A.P. (J) PETITIONER: STATE OF WEST BENGAL & ANR. Vs. RESPONDENT: LAISALHAQUE & ORS. ETC. DATE OF JUDGMENT12\/09\/1988 BENCH: SEN, A.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-75171","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of West Bengal & Anr vs Laisalhaque & Ors. 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