BLS LLB 5 Years Sem 9 CRPC 2024-25 - ATKT 60/40 Question Paper with Solutions

Section 2(c) of the Code of Criminal Procedure, 1973 defines a cognizable offence as an offence for which, and a cognizable case as a case in which, a police officer may arrest without warrant in accordance with the First Schedule or under any other law for the time being in force.

The definition turns on one thing only: the power to arrest without a warrant.

The Juvenile Justice (Care and Protection of Children) Act, 2015 dropped the word "juvenile" for this purpose and uses "child in conflict with law", defined by section 2(13) to mean a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of the offence.

An accomplice is a guilty associate in the crime, a person who has himself taken part in the offence charged and who then gives evidence for the prosecution against those who took part with him. The Code of Criminal Procedure does not define him; his position comes from section 133 of the Indian Evidence Act, 1872, which makes him a competent witness, read with illustration (b) to section 114, under which the court may presume that his evidence is unworthy of credit unless corroborated in material particulars.

Section 2(u) of the Code defines a Public Prosecutor as any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor.

Section 24 provides for the appointment of a Public Prosecutor for each High Court by the Central or State Government, and for each district, from a panel prepared by the District Magistrate in consultation with the Sessions Judge, from advocates of not less than seven years' practice.

Section 2(20) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines "Children's Court" as a court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing, and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act.

Release on probation of good conduct, section 4. Where the offence is not punishable with death or imprisonment for life, the court may release the offender on his entering a bond, with or without sureties, to appear and receive sentence when called upon during a period not exceeding three years, and meanwhile to keep the peace and be of good behaviour. The proviso requires the court to be satisfied that the offender or his surety has a fixed place of abode or regular occupation within the court's jurisdiction, and section 4(2) requires the court to consider the probation officer's report.

Compensation and costs, section 5. A court releasing an offender under section 3 or section 4 may order him to pay compensation for loss or injury and the costs of the proceedings, recoverable as a fine.

Special protection for offenders under twenty-one, section 6. Where a person under twenty-one is found guilty of an offence punishable with imprisonment but not with imprisonment for life, the court shall not sentence him to imprisonment unless it is satisfied that it would not be desirable to deal with him under section 3 or section 4, and if it does imprison him it must record its reasons. Section 6(2) makes the probation officer's report mandatory in such a case.

The three cases to cite. Rattan Lal v. State of Punjab, AIR 1965 SC 444, calls the Act a milestone in the modern liberal trend of reform in penology and holds that its benefit may be claimed for the first time in appeal or revision. Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633, states the object as preventing the conversion of youthful offenders into obdurate criminals through their association in prison with hardened criminals of mature age. Ramji Missar v. State of Bihar, AIR 1963 SC 1088, fixes the date on which the offender's age is reckoned for section 6: it is the date on which the trial court has to pass sentence on him, not the date of the offence.

Conclusion. The Act converts sentencing from a single question, how much punishment, into two: whether this offender needs punishment at all, and if not, what supervision will keep him straight. Its centre of gravity is section 4 read with section 12, because release on probation costs the offender none of the civil consequences of a conviction, and its strongest command is section 6, which makes imprisonment of an offender under twenty-one the exception that must be justified in writing.

Section 162, statements not to be signed. No statement made to a police officer in the course of an investigation shall be signed by the person making it, and no such statement shall be used for any purpose at any inquiry or trial, except to contradict the witness in the manner provided by section 145 of the Evidence Act, and if so used, the prosecution may re-examine on it. Sub-section (2) preserves statements falling within section 32(1) of the Evidence Act, that is dying declarations, and statements admissible under section 27.

Section 163, no inducement. No police officer shall offer or make any inducement, threat or promise as mentioned in section 24 of the Evidence Act.

Section 164, recording by a Magistrate. A statement or confession may be recorded by a Metropolitan or Judicial Magistrate. Sub-section (5A), inserted in 2013, requires the Magistrate to record the statement of a victim of an offence under sections 354, 376 and related provisions as soon as the commission of the offence is brought to the notice of the police, and where the victim is temporarily or permanently mentally or physically disabled, the statement is to be recorded with the aid of an interpreter and videographed, and is then treated as examination-in-chief under section 137 of the Evidence Act.

A summary trial is a trial in which the ordinary procedure is abridged and only the substance of the evidence is recorded, so that petty cases are disposed of quickly. It is governed by sections 260 to 265 of the Code.

Who may try summarily, section 260(1). A Chief Judicial Magistrate, a Metropolitan Magistrate, and any Magistrate of the first class specially empowered by the High Court may, if he thinks fit, try summarily.

Which offences, section 260(1). Offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years; theft under sections 379, 380 or 381 of the Indian Penal Code where the value of the property stolen does not exceed two thousand rupees; receiving or retaining stolen property under section 411 and assisting in its concealment under section 414 within the same limit; offences under sections 454 and 456; insult with intent to provoke a breach of the peace under section 504 and criminal intimidation punishable with a term up to two years or with fine, under section 506; and abetment or attempt of any of these.

Section 265. The record and the judgment shall be written in the language of the court.

J.V. Baharuni v. State of Gujarat, (2014) 10 SCC 494, is the case to cite. The Supreme Court held that Magistrates trying cases summarily must actually follow the summary procedure rather than a hybrid of their own, and that a successor Magistrate must not mechanically order a de novo trial under section 326(3), particularly in a cheque dishonour case tried summarily under section 143 of the Negotiable Instruments Act.

Conclusion. The three figures that decide every question on this topic are: offences punishable with up to two years, theft up to two thousand rupees, and a maximum sentence of three months' imprisonment. The trade the Code makes is explicit, speed for record: the Magistrate need not write out the evidence, but the moment he finds the case unfit for the abridged procedure section 260(2) obliges him to start again in the ordinary way, and the moment the accused pleads not guilty section 264 obliges him to record the substance of the evidence and his reasons.

Substituted service, sections 64 and 65. Where the person cannot by the exercise of due diligence be found, the summons may be served by leaving a duplicate with an adult male member of his family residing with him. Where service cannot be effected even so, the serving officer shall affix one duplicate to some conspicuous part of the house in which the person ordinarily resides, and the court may then declare the service sufficient or order fresh service.

Government servants, section 66; outside jurisdiction, section 67. A summons on a government servant is sent in duplicate to the head of his office. A summons to be served outside the local jurisdiction is sent to a Magistrate within whose jurisdiction the person resides.

Proof, section 68. Where the serving officer is not present at the hearing, an affidavit and the duplicate endorsed with the signature of the person served are admissible in evidence.

Service on a witness by post, section 69. In addition to and simultaneously with personal service, the court may direct a copy to be served by registered post on a witness at his ordinary residence or place of business.

Under section 147(2) the Magistrate then hears the parties, receives evidence and decides, if possible, whether the right exists; the procedure of section 145 applies so far as may be.

Section 147(3) gives B the relief he actually needs: if it appears to the Magistrate that the right exists, he may make an order prohibiting any interference with the exercise of that right, including, in a proper case, an order for the removal of any obstruction. That is a direction to A to remove the obstruction in the channel.

The proviso limits it: no such order shall be made where the right is exercisable at all times of the year unless it has been exercised within three months before the receipt of the report or information, or, where it is exercisable only at particular seasons, unless it was exercised during the last such season. On these facts B has been using the channel for his standing crop, so the proviso is satisfied.

Three features show that intention. The jurisdictional fact in sections 145 and 147 is not the strength of the claim but that the dispute is likely to cause a breach of the peace. The inquiry under section 145(4) proceeds without reference to the merits of the claims to a right to possess. And the order lasts only until the party is evicted in due course of law, which preserves the civil court's exclusive power to decide the right.

The remedy is summary because delay is what causes breaches of the peace. It is the answer to precisely B's difficulty, that a civil suit takes longer than a standing crop can wait.

Conclusion. B should apply to the Executive Magistrate under section 147, and can expect an order under section 147(3) prohibiting interference with his use of the channel and directing removal of the obstruction, supported if the urgency demands it by an order under section 144. What he cannot obtain there is a declaration that the water right is his; that remains for the civil court, and the Magistrate's order holds the ground until the civil court decides.

Where offences may be tried together, section 468(3) provides that the period is determined by reference to the offence punishable with the more severe, or the most severe, punishment.

(ii) From the date of the offence, subject to section 469's two alternatives.

Section 469(1) provides that the period of limitation commences:

1. on the date of the offence; or
2. where the commission of the offence was not known to the person aggrieved or to any police officer, on the first day on which it comes to the knowledge of such person or officer, whichever is earlier; or
3. where it is not known by whom the offence was committed, on the first day on which the identity of the offender is known to the person aggrieved or to the investigating police officer, whichever is earlier.

Section 469(2) excludes the day from which the period is to be computed.

Conclusion. Cognizance of an offence punishable with six months' imprisonment must be taken within one year, running from the date of the offence or, if later, from the day the offence or the offender first became known, and the year is measured to the day the complaint was filed, on the authority of Sarah Mathew. Even out of time the prosecution is not necessarily lost, because section 473 lets the court condone a delay that is properly explained.

Admonition is release after a due reprimand by the court instead of any sentence. Under section 3 of the Probation of Offenders Act, where a person is found guilty of an offence punishable under section 379, 380, 381, 404 or 420 of the Indian Penal Code, or of any offence punishable with imprisonment for not more than two years or with fine or both, and no previous conviction is proved against him, and the court is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is expedient to do so, the court may release him after due admonition instead of sentencing him or releasing him on probation under section 4. The Explanation provides that a previous conviction includes any previous order made against him under section 3 or section 4.

(ii) The relevant provisions, and how they apply to Ashok.

Section 3, admonition. Available to Ashok on the face of the section, because theft under section 379 is expressly named. The court must be satisfied that no previous conviction is proved and that the circumstances make it expedient.

Section 12. Ashok will not suffer the disqualification attaching to a conviction, which is the practical value of the order to him.

Section 9. If he breaks a condition of the bond, the court may issue a warrant or summons and, on being satisfied, sentence him for the original offence of theft.

Section 11(1) allows the order to be made by any court competent to try and sentence him, and by an appellate or revisional court, so if the trial court refuses, the benefit may still be claimed on appeal.

Conclusion. Both courses are open to Ashok. The court should call for the probation officer's report and, on being satisfied that this was a first offence committed without premeditation, release him either after due admonition under section 3 or on probation of good conduct under section 4; if he is under twenty-one, section 6 makes imprisonment the course the court has to justify in writing. The order carries no disqualification under section 12, but under section 9 the original sentence for theft revives if he breaches the bond.

That reasoning does not govern this case. In Badshah v. Sou. Urmila Badshah Godse, (2014) 1 SCC 188, the husband married the applicant according to Hindu rites while his first marriage subsisted and concealed that fact from her. The Supreme Court held that a man who has duped a woman into marriage by suppressing his subsisting marriage cannot be heard to deny her the status of a wife for the purposes of section 125, and she is to be treated as a legally wedded wife entitled to maintenance. The Court expressly applied a purposive construction, holding that section 125 is a measure of social justice enacted to prevent vagrancy and destitution and must be construed in favour of the woman it protects.

X's case is Badshah on all fours: a Hindu marriage, a subsisting earlier marriage on Y's side, and a wife who did not know of it. She must plead and be prepared to prove that she was unaware of the first marriage.

Under section 126(2) evidence is taken in the presence of the person against whom the order is proposed, in the manner prescribed for summons cases, and the proviso allows the Magistrate to proceed ex parte where the person is wilfully avoiding service or neglecting to attend, with a power to set aside the ex parte order for good cause within three months.

Conclusion. X should apply to the Judicial Magistrate of the First Class within whose jurisdiction she resides, or where Y is or last resided with her, under sections 125 and 126 of the Code. Her application succeeds on the authority of Badshah, notwithstanding that the marriage is void under the Hindu Marriage Act, because Y suppressed his subsisting marriage; the only real contests will be Y's means, X's inability to maintain herself, and the disqualifications in section 125(4).

The Juvenile Justice (Care and Protection of Children) Act, 2015 is the code that governs two classes of children: those who come into conflict with the law, and those who are in need of care and protection. Its importance lies in taking children out of the ordinary criminal process and placing them in a system whose stated object is care, protection, development, treatment and social re-integration.

1. It gives constitutional obligations a working machinery. The Act is the legislative response to Articles 15(3), 39(e), 39(f), 45 and 47 of the Constitution and to India's ratification of the United Nations Convention on the Rights of the Child, 1992. The Preamble says so in terms.

2. It fixes one age for all children and reckons it from the date of the offence. Section 2(12) defines a child as a person who has not completed eighteen years. Section 2(13) defines a child in conflict with law by reference to the age on the date of commission of the offence. Before the 2000 Act, boys and girls had different ages of juvenility, and the change removed an obvious inequality.

6. It answers the question the 2000 Act could not. Section 15 allows the Board, in the case of a child who has completed sixteen years and is alleged to have committed a heinous offence, to conduct a preliminary assessment of his mental and physical capacity to commit the offence, his ability to understand its consequences and the circumstances in which he allegedly committed it, taking the assistance of psychologists or psycho-social workers. The Explanation states that this is not a trial. If the Board finds a need for trial as an adult, section 18(3) allows transfer to the Children's Court, and section 19 requires that court to decide the question again for itself.

7. It builds a complete institutional structure. The Juvenile Justice Board, sections 4 to 9, with a Metropolitan or Judicial Magistrate of the first class and two social workers, one of whom must be a woman; the Child Welfare Committee, sections 27 to 30, for children in need of care and protection; children's homes, open shelters, observation homes, special homes and places of safety, sections 41 to 49; Special Juvenile Police Units and Child Welfare Police Officers, section 107.

10. It creates a complete code of adoption and of offences against children. Chapter VIII, sections 56 to 73, governs adoption through the Central Adoption Resource Authority; the Amendment Act of 2021, in force 1 September 2022, transferred the power to issue adoption orders under section 61 from the court to the District Magistrate. Chapter IX creates offences: cruelty to a child, section 75; employing a child for begging, section 76; giving intoxicants, section 77; using a child for illegal activities, section 78; corporal punishment, section 82; and the use of children by militant groups, section 83.

Cite Shilpa Mittal v. State (NCT of Delhi), (2020) 2 SCC 787. A heinous offence under section 2(33) is one for which the minimum punishment under the Penal Code or any other law is imprisonment for seven years or more. An offence whose maximum is seven years or more but which prescribes no minimum is therefore not heinous, and the Supreme Court held that such an offence falls to be dealt with as a serious offence under section 2(54). The distinction matters, because only a heinous offence opens the section 15 preliminary assessment and with it the possibility of a trial as an adult.

The rights of an arrested person come from two sources: Articles 20, 21 and 22 of the Constitution, and Chapter V of the Code of Criminal Procedure, reinforced by the guidelines of the Supreme Court in D. K. Basu and Arnesh Kumar.

1. To be informed of the grounds of arrest. Article 22(1) and section 50(1) of the Code: every police officer or other person arresting without warrant shall forthwith communicate to the arrested person full particulars of the offence for which he is arrested or the grounds of arrest. Where the arrest is under a warrant, section 75 requires the substance of the warrant to be notified and the warrant shown if required.

2. To be informed of the right to bail. Section 50(2): where a police officer arrests without warrant a person accused of a bailable offence, he shall inform him that he is entitled to be released on bail and to arrange for sureties.

5. To consult and be defended by a legal practitioner of his choice. Article 22(1) and section 41D of the Code, inserted in 2009: the arrested person is entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation. Section 303 confirms the right to be defended, and section 304 requires the court to assign a pleader at the State's expense where the accused in a sessions trial is not represented and has not sufficient means. Khatri (II) v. State of Bihar, (1981) 1 SCC 627, held that free legal aid is a constitutional right implicit in Article 21 and available from the first production before the Magistrate.

6. To be free from unnecessary restraint and from handcuffing. Section 49: the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. In Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, the Supreme Court held that handcuffing is prima facie inhuman and may be used only where there are clear and present grounds recorded in writing and, wherever practicable, with the escorting authority's justification placed before the Magistrate.

9. The right that arrest itself shall be justified. Section 41, as substituted in 2009, requires a police officer arresting without warrant in a case punishable with imprisonment up to seven years to be satisfied on recorded reasons that the arrest is necessary on one of the grounds listed, and section 41A requires him instead to issue a notice of appearance. In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Supreme Court directed that police officers not arrest automatically in such cases, that they complete the section 41 checklist, and that Magistrates not authorise detention casually, with departmental action and contempt for non-compliance. Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260, had earlier held that no arrest can be made merely because it is lawful to do so; the officer must be justified in making it.

11. Special protections for women. Section 46(1) proviso: where a woman is to be arrested, her submission to custody on an oral intimation of arrest shall be presumed and, unless the police officer is a female, the officer shall not touch the person of the woman. Section 46(4): no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances, and then only with the prior permission of a Judicial Magistrate of the first class obtained by a woman police officer in writing. Section 51(2): a female shall be searched only by another female with strict regard to decency. Section 160(1) proviso: a woman shall not be required to attend at any place other than where she resides.

12. To a fair and speedy trial and to compensation for illegal detention. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, held a speedy trial to be part of Article 21. Rudul Sah v. State of Bihar, (1983) 4 SCC 141, awarded compensation under Article 32 for illegal detention. Section 358 allows a Magistrate to order compensation to a person groundlessly arrested, payable by the person who caused the arrest, and section 57 read with Article 22(2) requires that the arrested person be produced physically before the Magistrate within twenty-four hours, not merely notionally.

The Code does not define bail. It is judicially understood as the release of a person from the custody of the law upon an undertaking, secured by a bond with or without sureties, that he will appear and answer the charge. The provisions are sections 436 to 450, Chapter XXXIII.

A. Bail in a bailable offence: a matter of right.

Section 436(1): when a person accused of a bailable offence is arrested without warrant, or appears or is brought before a court, and is prepared to give bail, he shall be released on bail. The word is "shall": neither the officer in charge of the police station nor the court has any discretion. The proviso allows release on a personal bond without sureties where the person is indigent and unable to furnish surety, and the Explanation provides that where a person is unable to give bail within a week of the date of his arrest, that is sufficient ground for the officer or the court to presume him indigent. The Explanation names no sum of money; the test is the week, not a figure.

The first and second provisos carve out the exceptions: the court may direct release if the person is under the age of sixteen years, is a woman, or is sick or infirm. The third proviso allows release where it is satisfied that it is just and proper for any other special reason.

Section 437(2): if at any stage it appears there are not reasonable grounds for believing the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry, he shall be released on bail or, at the discretion of the officer or court, on a bond.

Section 437(3) allows the court, when releasing a person accused of an offence punishable with imprisonment for seven years or more, to impose conditions: that he attend in accordance with the bond, that he shall not commit a similar offence, and that he shall not tamper with the evidence or threaten witnesses.

Section 437(6): in a case triable by a Magistrate, if the trial is not concluded within sixty days from the first date fixed for taking evidence, the accused, if in custody for the whole of that period, shall be released on bail unless the Magistrate records reasons otherwise. Section 437(7): after the conclusion of the trial and before judgment, if the court is of opinion that there are reasonable grounds for believing the accused is not guilty, it shall release him on bond.

Section 438(1): where a person has reason to believe he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction that in the event of arrest he shall be released on bail. Section 438(1) as amended requires the court to consider the nature and gravity of the accusation, the antecedents of the applicant including any previous imprisonment on conviction for a cognizable offence, the possibility of the applicant fleeing from justice, and whether the accusation has been made with the object of injuring or humiliating him. Section 438(2) allows conditions, including that he make himself available for interrogation, that he not induce any person acquainted with the facts to dissuade them from disclosing it to the court or the police, and that he not leave India without permission. Section 438(4), inserted in 2018, excludes anticipatory bail altogether in cases under sections 376(3), 376AB, 376DA and 376DB.

The settled list, drawn from Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118, Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280, and P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, is:

1. the nature and gravity of the accusation and the severity of the punishment on conviction;
2. the reasonable apprehension of tampering with the evidence or of the witnesses being threatened;
3. the prima facie satisfaction of the court in support of the charge;
4. the character, behaviour, means, position and standing of the accused;
5. the likelihood of the accused fleeing or of his presence at trial being secured;
6. the danger of the offence being repeated if he is released;
7. the larger interest of the public or the State;
8. the health, age and sex of the accused, which are the express statutory factors in the provisos to section 437(1);
9. the period already undergone in custody and the likely delay in the trial.

A. What a charge is.

Section 2(b) provides only that "charge" includes any head of charge where the charge contains more heads than one. Its substance is in Chapter XVII, sections 211 to 224. A charge is the precise formulation of the accusation which the accused is called on to answer, framed by the court, read and explained to him, and to which he pleads.

B. The contents of a charge: section 211.

Section 211(1): every charge shall state the offence with which the accused is charged.

Section 211(2): if the law which creates the offence gives it a specific name, the offence may be described in the charge by that name only. It is enough to say "murder" or "theft".

Section 211(3): if the law gives it no specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.

Section 212(1): the charge shall contain such particulars as to the time and place of the alleged offence, and the person, if any, against whom, or the thing, if any, in respect of which, it was committed, as are reasonably sufficient to give the accused notice.

Section 212(2) is the exception for criminal breach of trust or dishonest misappropriation of money: it is sufficient to specify the gross sum and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, provided the time included does not exceed one year, and such a charge is deemed to be a charge of one offence within section 219.

Section 213: where the nature of the case is such that the particulars in sections 211 and 212 do not give sufficient notice, the charge shall contain such particulars of the manner in which the offence was committed as will be sufficient for that purpose.

D. When the charge is framed.

Section 216(1): any court may alter or add to any charge at any time before judgment is pronounced. Section 216(2): every alteration or addition shall be read and explained to the accused. Section 216(3): if the alteration is not likely to prejudice the accused or the prosecutor, the court may proceed with the trial as if the altered charge had been the original one. Section 216(4): if it is likely to prejudice, the court may adjourn the trial or direct a new trial. Section 217 gives both sides the right to recall and re-examine witnesses after an alteration.

F. Joinder: sections 218 to 223.

Section 218 states the rule: for every distinct offence there shall be a separate charge, and every such charge shall be tried separately, with a proviso allowing joint trial where the accused applies in writing and the Magistrate thinks he will not be prejudiced.

The exceptions are section 219, three offences of the same kind within twelve months; section 220, offences committed in the course of the same transaction; section 221, where it is doubtful what offence has been committed, allowing alternative charges; and section 223, the persons who may be charged and tried jointly.

G. Defects: section 464.

4. It is the point at which a groundless prosecution is stopped. Sections 227, 239 and 245 require the court to apply its mind before the accused is put on trial at all. In Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, the Supreme Court held that at the stage of framing charge the judge is not a mere post office, must sift and weigh the material to find whether a prima facie case is made out, but must not conduct a roving enquiry into the probability of conviction; where the material discloses grave suspicion, the charge is framed, where only suspicion, the accused is discharged.

5. It supports the plea of autrefois acquit and convict. Section 300 and Article 20(2) protect a person from being tried again for the same offence, and the charge is what identifies that offence.

6. But form yields to substance. Section 464 makes clear that the charge is a means to fairness, not an end. In Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, a Constitution Bench held that an omission to frame a charge is curable unless prejudice is shown, and that the whole trial is to be looked at to decide whether the accused knew what he was being tried for and had a fair chance to defend himself.