I contradict myself, I am large, I contain the multitude

Assurance of a fair trial is the first imperative of the dispensation of Justice. An accused is entitled to a fair trial which is a part of his fundamental right as guaranteed under Art.21 of the Constitution of India. Fairness in trial is also a human right recognized by Art. 10 of Universal Declaration of Human Rights 1948, Art.14 of the International Covenant on Civil and Political Rights 1966 and Art.6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The principle of fair trial now informs and energies many areas of the law. It is reflected in-numerous rules and practices. It is a constant, on going development process continually adapted to new and changing circumstances, and exigencies of the situation peculiar at times and related to the nature of crime, persons involved directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system [See(2008) 3 SCC 602]. Right to defend is one of the key attributes of right to fair trial. This right will be meaningless if the accused is not properly informed about the accusation against him. In all trials accused shall be informed of the accusation in the beginning itself. Charge is the foundation of accusation. The word “charge” is not defined in the Code of Criminal Procedure 1973 (the Code).Section 2(b) only says charge includes any head of Charge when the charge contains more head than one. It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage.

The act of framing charge is not an empty formality. It is the basic record which gives notice to the accused on what accusation he is going to be tried by the court so that he could shape his defence accordingly. 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. In judging a question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself (See AIR 1957 SC 623).

Keeping in mind the above principles let us examine the question ‘whether in a case where prosecution failed to prove the charge under S.302 IPC, but on the facts the ingredients of S.304B or S.306 is established, can the court convict him of that offence in the absence of the said offence being included in the charge?’ The question  first came up for consideration of a two-Judge Bench of Supreme Court in Lakhjit Singh v. State of Punjab [(1994) Supp (1) SCC 173: K. Jayachandra Reddy and G. N. Ray, JJ.] where the accused were charged under Section 302, IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. Supreme Court came to the conclusion that the charge under Section 302, IPC was not established. The Court then examined the question whether the accused could be convicted under Section 306, IPC and in that connection considered the effect of non-framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr. PC,it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306, IPC. Three years later another two-Judge Bench in Sangaraboina Sreenu v. State of A.P. [(1997) 5 SCC 348: M. K. Mukherjee and S. P. Kurdukar, JJ.]considered the same question and answered it in the negative without reference to Lakhjit Singh Case. In that Case the trial Court convicted the accused under Section 302, IPC on the charge that he poured kerosene on the body of his wife and set her on fire but the High Court set aside the said conviction and convicted the accused under Section 306, IPC. Supreme Court set aside the conviction by holding that “it is true that S.222 Cr. PC entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but S.306 IPC cannot be said to be a minor offence in relation to an offence under S.302 IPC within the meaning of S.222 Cr. PC for the two offences are of distinct and different categories. While the basic constituent of an offence under S.302 IPC is homicidal death,and those of S.306 IPC are suicidal death and abetment thereof."

In Shamnsaheb M. Multtani-I v. State of Karnataka [(2000) 3 SCC 698: K. T. Thomas and A. P. Misra, JJ] the conflict of opinion in the above two decisions was noticed by the Supreme Court and the Case placed for hearing before a three-Judge Bench. In that Case, the accused were charged for an offence punishable U/S 302 of IPC and the trial Court acquitted all the accused. In an appeal by State, the High Court found the first accused guilty U/S 304B and 498A of IPC. The three Judge Bench led by K.T. Thomas J examined the question in detail in Shamnsaheb M. Multtani-II v. State of Karnataka [(2001) 2 SCC 577: K.T.Thomas, R. P .Sethi and B. N. Agarwal.JJ]. The word “minor offence” in the context of S.222 of the Code is defined by the Supreme Court.In PARA- 16 of the Judgment it is held that “although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences,wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence”. It is clarified that the composition of the offence under S. 304B IPC is vastly different from the formation of the offence of murder under S.302 IPC and hence the former cannot be regarded as minor offence visa-vis the latter. In PARA- 31 of the Judgment, it is noted as follows“. Now take the case of an accused who was called upon to defend only a charge under S.302 IPC. The burden of proof never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt.The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under S. 304B IPC, as he was defending a charge under S.302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under S.304B IPC and sentenced to the serious punishment prescribed there under, which mandates a minimum sentence of imprisonment for seven years”.

 The consequences of the situation were illustrated by Thomas.J in PARA-32 of the Judgment:

 “If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of S. 304B IPC read with S.113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under S.304B IPC. But if the husband is charged only under S.302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.

32. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under S.302 IPC and was alternatively convicted under S.304B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law”.

Ultimately it was directed that the case in the Trial Court should proceed against the appellant from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under S. 304B IPC”. Shamnsaheb-II is a well- reasoned Judgment and based on sound principles. It considered all the relevant Sections of the Code relating to the issue and interpreted accordingly. It is one of the classic Judgments written by Justice Thomas. It underlines the words of Shanti Bhushan that he was one of the best Criminal Judges of the Supreme Court of India.

Not much later another two Judge Bench referred the same question regarding the conflict between

Lakhjit Singh Case and Sangaraboina Sreenu for the consideration of a larger bench. The case was heard by another three Judge bench in Dalbir Singh v. State of U.P [(2004) 5 SCC 334: Rajendra Babu, A. R. Lakshmanan and G. P. Mathur JJ]. For the clarity of facts, I am re-producing the exact question considered by the two three Judge Benches here.

Shamnsaheb-I“1. While dealing with the facts of this case the question came up whether a conviction under S.304-B of the Indian Penal Code can be awarded when the charge was for the offence under S.302 IPC only. Our attention has been drawn to two conflicting decisions of this Court, though the alternative conviction proposed in both the decisions was under S.306 IPC. A two Judge Bench of this Court (K. Jayachandra Reddy and G.N. Ray, JJ.) in Lakhjit Singh v. State of Punjab has held that even without a charge under S.306 IPC the accused can nevertheless be convicted under that section when the original charge was for the offence under S.302 IPC. In a subsequent decision rendered by another Bench of two Judges of this Court (M.K. Mukherjee and S.P. Kurdukar, JJ.) in SangaraboinaSreenu v. State of A.P. without their Lordships' attention being drawn to earlier decision, it has been held that when the charge contained only S.302 IPC a conviction under S.306 IPC was impermissible. 2. The aforesaid conflict of approach would cause difficulties for this Bench of two Judges to decide this case, and therefore, we deem it proper that this case is heard by a larger Bench. Registry will place this matter for orders of the Hon'ble CJ”

Dalbir Singh“ 1. In view of conflict of opinion in two decisions of this Court rendered in Lakhjit Singh and Another v. State of Punjab and Sangaraboina Sreenu v. State of A.P. these appeals have been directed to be placed for hearing before a three Judge Bench.”

The facts of Dalbir Singh are as follows:The accused Dr. Dalbir Singh was charged under S.302 IPC for having committed the murder of his wife and two daughters.  He was further charged under S. 304B IPC for causing dowry death of his wife Vimla and also under S.498-A IPC for subjecting her to cruelty. The trial Court convicted him under S.302 IPC and sentenced him to death. He was also convicted under S.498-AI.P.C. and was sentenced to 3 years R.I. but was acquitted of the charge under S.304-B IPC. In appeal the High Court came to the conclusion that the charge under S.302 IPC was not established and accordingly acquitted him for the said offence. The High Court also came to the conclusion that the accused was guilty under S.306. But in view of the fact that no charge under S. 306 IPC was framed against the accused, the High Court, relying upon Sangaraboina Sreenu v. State of A.P,held that the accused could not be convicted for the said offence. The High Court noticed that a contrary view had been taken in an earlier decision in Lakhjit Singh v. State of Punjab but chose to rely upon the later decision as the settled view was that if there was conflict of opinion in two decisions of this Court rendered by benches. G. P. Mathur, J who wrote the Judgment for the bench held as follows;“in view of S. 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion.

In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under S.302 IPC, he cannot be convicted for the offence under S.306 IPC.”(PARA-17). In the result in Dalbir Singh the Supreme Court took a view contrary to the view taken in Shamnsahib-II. Dalbir Singh relied mainly on the Constitution Bench Judgment in Willie Slaney v. State of Madhya Pradesh(AIR 1956 SC 116). But in Willie Slaney, Supreme Court had given a word of caution in the following terms;“This judgment should not be understood by the subordinate courts as sanctioning a deliberate disobedience to the mandatory requirements of the Code, or as giving any license to proceed with trials without an appropriate charge. The omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases, it may be so serious that by itself it would vitiate a trial and render it illegal,prejudice to the accused being taken for granted. In the main,the provisions of S.535 would apply to cases of inadvertence to frame a charge induced by the belief that the matter on record is sufficient to warrant the conviction for a particular offence without express specification, and where the facts proved by the prosecution constitute a separate and distinct offence but closely relevant to and springing out of the same set of facts connected with the one charged”. [See concurring judgment of Chandrasekhara Aiyar, J in AIR 1956 SC 116]. (Emphasis supplied by the author)

Dalbir Singh overruled Sangaraboina Sreenu on the ground that in the latter the Court completely ignored to consider the provisions of S.464 of the Code and keeping in view S.222 of the Code alone,the conviction of the appellant therein under S.306 IPC was set aside. But in Dalbir Singh the Court completely ignored S.222 and relied fully on S.464 of the Code. Section 222 is an exception to the rule that a person cannot be convicted of an offence with which he is not charged. But it clothes the Court with the power to convict a person of an offence without specific charge only if it is a minor offence to the one for which he is charged and tried. Dalbir Singh did not consider the question whether S. 304B or S.306 is a minor offence of S.302 IPC. It also ignored the impact of ‘Doctrine of reverse burden’ in a prosecution under S. 304B which is not applicable in a prosecution U/S 302 of IPC. The traditional criminal law dictum that an accused is presumed to be innocent unless proved guilty of the offence he is charged with,is not applicable on account of the legal fiction embodied in the provisions of Section 304B whereby he is deemed to have caused the death and the onus shifts on him to prove otherwise. On that point Willie Slaney is clearly distinguishable since at the time of Willie Slaney the concept of reverse burden was not introduced.

The crucial point left untouched in Dalbir Singh was the propriety of convicting a person for an offence in which there is a presumption favourable to the prosecution after trying him for an offence in which there is a presumption favourable to the accused.”Let us consider a situation where accused was tried for the offences U/S 302 of IPC. He successfully took the plea of Alibi and he was acquitted. In appeal against acquittal the appellate Court found ample materials for a conviction U/S304B of IPC. Can the Court convict the accused without a charge U/S 304B by saying that since it was a case of uxoricide within 7 years of marriage the accused ought to have rebut the compulsory presumption U/S 113B during his trial U/S 302 IPC? Can the accused be expected to foresee such a situation while he was answering a Charge U/S 302 IPC? Is S.464 of the Code a “carte blanche” to cure all irregular/illegal proceedings?The crystallized judicial view is that S.464 is a provision to regularize honest errors or harmless omissions or innocent irregularities which are crept in a trial or proceedings. The Supreme Court itself held in Bala SeethaRamaiah vs P. S. Rao[(2004) 4 SC 557] that failure to mention the nature of the offence committed by the accused cannot be said to be a mere irregularity.

One thing is sure that at the time of deciding Dalbir Singh, Shamnsahib-II was there which resolved the conflict between Lakhjit Singh Case and Sangaraboina Sreenu Case. Surprisingly there was no reference at all in Dalbir Singh about Shamnsahib- II. Can it be termed as an inadvertent omission in the era of digital law libraries and judicial clerks?

Post Dalbir Singh Conflicts 

Dalbir Singh created an anomalous situation that the two Judge Benches started applying the two interpretations according to their discretion, since both decisions are that of coordinate Benches. As it is rightly said “When a man keeps two clocks which tell the time differently, his fellows will receive him with suspicion his weightiest pronouncements upon the hour of the day, even if one of them happens to be right” (as quoted by Thakker. J in Code of Criminal Procedure –PAGE-273 (third edition, 2011, Butterworths). In Virendra Kumar v. State of UP [(2007) 9 SCC 211- Pasayat and Kapadia.JJ] the Court convicted the accused for an offence U/S 306 though the charge was under S.302 relying on Dalbir Singh. In Bimla Devi and another v. State of Jammu and Kashmir [(2009) SCC 629- Pasayat and Mukundan Sharma. JJ]Court acquitted the accused for the offence under S. 306 of IPC since the original charge was under S.302 IPC relying on Shamnsaheb-II. In Satyavir Singh Rati v. CBI,another two Judge Bench [See 2011(5)SCALE 339: H.S. Bedi and C.K.R.Prasad. JJ] held Bimla Devi ‘per incurium’ since it did not consider Dalbir Singh. If Bimla Devi can be held ‘per incurium’ for the reason that it was decided without noticing Dalbir Singh,then Dalbir Singh can also be termed as ‘per incurium’ since it was decided without noticing Shamnsaheb. The only difference is on facts; one was under S. 304B of IPC and the other was under S.306 IPC. It is interesting that Dalbir Singh was heard by a Bench in which Dr. A. R. Lakshman. J was also a member and in the 202nd Report (2007) of Law commission of India which was chaired by Dr. A. R. Lakshman.J endorsed the view of Justice Thomas in Shamnsaheb even without a mention of Dalbir Singh.

Law declared by the Supreme Court is the law of the land and the Judgments of Supreme Court constitute a source of law.Article 141 gives constitutional status to the theory of precedent in respect of law declared by the Supreme Court.The words of Article 141, "binding on all courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases [See 1955 (2) SCR 603]. The Rule of Precedent is recognized as an indispensable foundation to the Judicial Development of law. Though a judgment of a Court is not to be read mechanically as a Euclid's Theorem nor as if it was a statute, to avoid multiplicity of conflicting view the Courts must be precedent cautious. Judicial discipline would require that in a hierarchical system, such conflicting exercise of jurisdiction should be avoided [See (2010) 8 SCC 582]. Doctrine of Precedent was evolved towards a necessary fulfillment of the goal of law viz. stability,certainty and continuity [See Judicial Process- Precedent in Indian Law PAGE-14- Prof. Dr. A. Lakshminath, Third Edition(2009), Eastern Book Company]. In Keshav Mills case [1965 (2) SCR 908] a caution was sounded to the effect that frequent exercise of its power to revisit its earlier decisions may incidentally tend to make the law uncertain and introduce confusion which must be avoided. ‘For quite some time past the Judicial inconsistency has been a common phenomenon and this has eroded the judicial collectivism of the Indian Apex Court’ [See Judicial Process- Precedent in Indian Law PAGE-8-Prof. Dr. A. Lakshminath, Third Edition(2009), Eastern Book Company].

The conflicting views of the Supreme Court can be seen in Judgments relating to Compounding of a non-compoundable offence [B. S. Joshi (2003) 4 SCC 675 referred to larger bench in (SLP (Crl) 8989/2010 order dt : 17.09.2010], interpretation of S.91 of the Code [See AIR 1961 SC 1808 and AIR 1965 SC 1251], Nature of committal proceedings[See (1983) 2 SCC 372 and (1996) 4 SC 495], application of S.300(1) of the Code[See (2011) 1 SCC 284 and (2011)2 SCC 703] etc. But the most unexpected was on the simple issue “whether Section 324 is compoundable or not?”[See (2008) 9 SC 116 and (2008)9 SCC 333]. Are these differences stem from legal activism or basic divergence in legal interpretation and judicial perspective? According to Prof. Dr. A. Lakshminath ‘there have been number of cases where no reference have been made to the previous precedent of the Court directly on the point, sometime more by design than accident, the real reason being the un-palatability of precedent rather than ignorance of its existence’ [See Judicial Process- Precedent in Indian Law PAGE-9-Prof. Dr. A. Lakshminath, Third Edition(2009), Eastern Book Company].Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of precedent.

The title is inspired from Walt Whitman [Song of Myself] quoted by Gobind Das to describe the identity of Supreme Court of India in 'Supreme Court: In Quest of Identity', Page 139, Second Edition (2000), Eastern Book Company.