1. Two persons died, it is alleged as a result of an assault on them on the 25th April 1964 by the accused persons in this case, 12 in number. One of them, Varunny by name, died on the spot; the other, Krishnan, died in hospital about three months later, on the 15th July 1964, after the completion of the preliminary enquiry but before the commencement of the trial. Naturally, while the commitment in respect of the assault on Varunny was on a charge under Section 302 I. P. C., that in respect of the assault on Krishnan was only on a charge under Section 307 I. P. C. But, on being informed of Krishnan's death, the Sessions Judge altered the latter charge into one under Section 302 I. P. C. and proceeded to try the accused on the charge as so altered. He convicted the 1st and 2nd accused under Section 302 I. P C., the former for having caused the death of Varunny and the latter for having caused the death of Krishnan. And he sentenced each of them to suffer rigorous imprisonment for life. He convicted the 3rd accused under Section 326 I. P. C. for having caused hurt to Krishnan and sentenced him to suffer rigorous imprisonment for two years. The remaining accused, against whom liability was sought to be cast under Section 149 I. P. C. he acquitted.
When this appeal by accused 1 to 3 came on for hearing before a division bench, the objection was taken that, in the absence of a commitment for the murder of Krishnan, the alteration of the charge and the trial of the accused of that offence was altogether without jurisdiction and that the entire trial was therefore had. It would appear that the books disclosed no decided case where this problem, namely, of a victim of a murderous assault dying after the commitment but before the trial, had arisen, and the division bench has, in referring this problem to a full bench for solution, asked the following questions;
(i) Whether in a case where the committal was only for the offence of attempt to murder under Section 307 I. P. C., the Sessions Judge, could frame a charge under Section 302 I P C., in a case where after the committal the injured dies ?
(ii) If it cannot be done, is the entire trial vitiated and has the entire conviction to be quashed :
(iii) If the conviction has to be quashed and fresh committal is necessary, cannot this court commit the accused for trial to the Sessions Court; and
(iv) Cannot the acquittal of accused 4 to 12 be allowed to stand.
2. The first question really raises the vital question of jurisdiction, whether, in the absence of a commitment for murder, Section 193(1) of the Criminal Procedure Code is a bar to cognizance of that offence by the Sessions Court. If it is, then Sections 226 and 227 of that Code which permit an alteration of the charge would be of no avail to confer jurisdiction for the trial on the altered charge of murder. If on the other hand, it is not, then, even if it be that the alteration does not come strictly within the scope of Sections 226 and 227, that would, at the worst, be an irregularity in the charge not affecting jurisdiction and coming within the scope of Section 537(b). For, it is not contended that the accused have suffered any prejudice whatsoever by the procedure adopted by the Sessions Judge, that they have been put in a worse position than they would have occupied had there been a fresh preliminary enquiry and a fresh commitment on a charge of murder, in other words, that the alteration of the charge and the trial on the altered charge has, in fact, occasioned a failure of justice.
3. The causing of death with the requisite mens rea is murder (unless the casts falls within any of the general or special exceptions) irrespective of when the death occurs, and we have not adopted the artificial rule of the English Law that, unless the death occurs within a year and a day of the act, the causation is too remote to be the legal causation. Whether the death ensues forthwith, or only after the commitment, or even only after the trial, the offence is still murder. Where it ensues after the trial, Section 403(3) of the Code provides for a second trial of the offender on a charge of murder notwithstanding that he has already been tried and convicted of the lesser offence of attempted murder--of course a person who has been tried and acquitted of the lesser offence is not to be tried again. Obviously, where the death occurs before the completion of the trial but after the commitment (which must necessarily be for the lesser offence) it should be possible to try the offender on a charge of murder--indeed Section 403(3) implies that in such a case the trial should be for murder if the court comes to know (not necessarily by evidence) that death has occurred. How is this to be done? By a mere alteration of the charge to one of murder as the learned Sessions Judge has done in the present case? Or by a fresh preliminary inquiry and a fresh commitment on a charge of murder" If the latter, what it to happen to the commitment already made? Is it to be quashed. If so by whom and under what provision of law? Or, if the commitment is to stand, should there not be a trial thereon? Or can it be ignored and a fresh inquiry held and a fresh commitment made and a trial had thereon ?
4. We are not told and we are quite unable to see what purpose would be served by insisting on a fresh preliminary inquiry and a fresh commitment on a charge of murder and we are happy to find that the law does not do so. We consider that the law permits the course adopted by the learned Sessions Judge; and so we need not stop to consider how, if a fresh inquiry and commitment were necessary, that could be secured.
5. It is well settled that so long as the act (or omission) which is the subject-matter of the trial remains the same as the act which was the subject-matter of the commitment, a trial on an altered charge specifying offences punishable under provisions of law other than these specified in the commitment, would be perfectly in order. Also, that Sections 326 (236?) and 237 do not warrant an alteration of the charge so as to make a new act the subject-matter of the trial. Thus, if the commitment is on a charge under Section 304 I. P. C. (or, provided death has resulted, even if it be only under Section 323 I. P. C.) the charge at the trial by the Court of Session can be for an offence under Section 302 I. P C. But, if the commitment is, to take an extreme example, on a charge of murder there cannot be a trial on a charge of forgery, even if evidence of the forgery might be on record as relevant to the charge of murder for the purpose, for example, of proving motive; nor, if the commitment is on a charge of the murder of A, a trial on a charge of causing hurt to B even if it should come out in the evidence that hurt was caused to B in the course of the same transaction. The illustrations to Section 226 of the Code (which are illustrations also to Section 227, the latter, so far as Sessions trials are concerned, only laying down the point of time before which an alteration under Section 236 must be made) make this amply clear and it is hardly necessary to go to the decided cases. In Illustrations 1 and 2, the act is the same -- Illustration 1 presupposes that the abetment is by the same act as the alleged murder, and would not be applicable if the allotment were by an entirely different act such as a prior instigation -- and therefore the charge and the trial can he for offences punishable under different provisions of the law, To Illustration 3 the act is entirely different and therefore there cannot be an altered charge and a trial for this different act.
6. Why should this be so? We think it is because Section 193(1) requires not merely that the particular accused person should have been committed to Sessions but that he should have been committed in respect of the act constituting the offence for which he is to he tried. If the commitment is in respect of an entirely different act, then Section 198(1) bars cognizance by the Court of Session. Unlike, for example, Sections 487, 478, 480 and 485 of the Code, Sections 226 and 227 are not provisions otherwise expressly providing within the meaning of Section 193(1) so as to exclude the operation of that section. They only say that a charge may be altered if it is imperfect or erroneous; they do not say that there can be a trial on the altered charge notwithstanding that there is no commitment in respect of the act that constitutes the subject-matter of that altered charge. Sections 226 and 227 are therefore not exceptions to Section 193(1) and must be read subject to that section. There can be an alteration of the charge and a trial thereon provided the requirements of Section 193(1) are satisfied--that is the basis of illustrations 1 and 2 to Section 226. There cannot be a trial if the requirements of Section 103(1) are not satisfied and hence a charge cannot be so altered as to include an act which was not the subject-matter of the commitment --that is the basis of Illustration 3. The principle, we think with great respect, has been correctly laid down in Birendra Lal Bhaduri v. Emperor, ILR 32 Cal 22 at p. 26 followed in Muthu Goundan v. Emperor, AIR 1920 Mad 131 (2) and Hassenulla Sheikh v. Emperor, AIR 1924 Cal 625 in the following words though without specific reference to the relevant provisions of the Code, namely, to Sections 193, 226 and 227:
"The Sessions Court is not a Court of original jurisdiction and though vested with large powers for amending and adding to charges can only do so with reference to the immediate subject of the prosecution and committal and not with regard to matter not covered by the indictment."
In our view what this means is that the Sessions Court can try an offender only for acts which are the subject-matter of the commitment and not for acts which are not covered by the indictment. The large powers for amending and adding to charges are to be found in Sections 226 and 227, and the prohibition against a Sessions Court assuming original jurisdiction and the restriction of its jurisdiction to the immediate subject of the commitment is to be found in Section 193(1). Obviously, in stating the principle set out above, their Lordships had these statutory provisions in mind
7. On a plain reading of Section 193(1), it is apparent that the commitment must be in respect of the offence for which the accused is to be tried although it is true that the words, "in that behalf" qualify the word, "empowered" and not the word, "committed." It cannot be that if the accused is committed for one offence he can be tried for an entirely different and unrelated offence. That would defeat the entire purpose of the section which is primarily to inform the accused, before his trial for a grave offence, of the case he has to meet. But that does not mean that the provision of law or even the mens rea, as stated in the charge on which the trial proceeds should be the same as those stated in the commitment. That would be to render Sections 226 and 227 purposeless, and as we have already said, we think that all that Section 198(1) demands is that there must be a commitment in respect of the act for which the accused is to be tried.
8. This it seems to us, follows from the language of Section 193(1). The word, "offence" has been defined in Section 4(1)(c) of the Code as meaning "any act or omission made punishable by any law for the time being in force." And, if we substitute these words for the word, "offence" appearing in Section 193(1) that section would rend as follows:
"Except as otherwise expressly provided by this Code or by any oilier law for the time being in force, no Court of Session shall take cognizance of any act or omission made punishable by any law for the time being in force as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf." The prohibition, it is to be noticed, is against taking cognizance of the act or omission unless there is a commitment therefor, not against taking cognizance of a different mens rea, or it subsequent consequence of the act, making it punishable under a different provision of the law. Hence, so long as the act which is the subject-matter of the trial is also the subject-matter of the commitment the section can he no bar to an alteration or addition to the charge on which the commitment is based so as to take notice of a subsequent consequence or a different mens rea making the act punishable, under a different provision of the law any more than so as to take note of an error by which a wrong provision of the law has been cited.
9. What then is the act comprised in the offence of murder made punishable by Section 302 of the Indian Penal Code? Section 299 which thus defines, "culpable homicide" clearly indicates what it is :
"299. Whoever, causes death by doing an act with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide"
It is clearly the physical act or deed, the actus alone, not even the actus reus, that caused the death of the victim, In the instant case the slabbing of the victim, Krishnan, by the 2nd and 3rd accused; and neither the mental element accompanying these physical acts, nor the consequence of Krishnan's death, is part of those acts. Those physical acts were the subject-matter of the preliminary enquiry and the commitment as also of the charge on which the commitment proceeded, and that being so, the trial on a charge of murder in respect of those acts, the consequence of Krishnan's death, making the acts punishable under Section 302 and not under Section 307 I. P. C., having ensued after the commitment, is warranted by Section 103(1) of the Criminal Procedure Code.
10. It is true that the word, "offence" is often used to mean not merely the physical act constituting it but to include also the mental clement accompanying it, its consequences, and the provision of law under which it is punishable; so much so that, where an act is punishable under two different provisions of law the liability to punishment under the one provision is regarded as a different offence from the, liability under the other. Indeed, it is not difficult to find sections in the Code itself which use the word in this sense - Section 403(3) to which reference has already been made is an instance in point. But then, these would be provisions where "a different intention appears from the subject or context" so as to exclude the definition in Section 4(1)(c), whereas, as we have seen, so far as Section 193(1) is concerned, everything points to the contrary namely, to no different intention appearing from the subject or context.
11. It is argued on the strength of Dodo v. Emperor, AIR 1916 Sind 50 and In re Bhogi Reddi Ankamma, AIR 1933 Mad 247 that an alteration of the charge under Section 226 or 227 of the Code can be made only on the basis of evidence recorded either at the preliminary enquiry or at the trial, in particular, that an alteration under Section 226 can be made only when the charge framed by the committing magistrate was imperfect or erroneous at the time of the commitment. We have already indicated our view that even if there were a disregard of the strict requirements of Sections 226 and 227 of the Code, the error would fall within the scope of Section 537 (b) and would be a ground for interference in appeal only if prejudice has been caused, something which, as we have seen, does not obtain in this case That apart, although ordinarily any alteration of the charge would be based on the evidence on record we do not think that Section 226 applies only in cases where a charge is imperfect or erroneous at the time of the commitment. The words, "When any person is committed for trial" with which the section opens mean only, "When any person stands committed for trial" and do not, in our view, preclude an alteration of the charge when the charge already framed has become imperfect or erroneous by reason of a subsequent event. Of that subsequent event it is enough if the Sessions Court has received information--we have already shown how that is implied by Section 408(8)--; It is not necessary that there should be formal legal evidence before It; the stage is only that of framing a charge; and formal legal evidence of the subsequent event is something to be adduced at the trial before a conviction is recorded.
12. It would appear that in AIR 1915 Sind 80 a somewhat different approach was taken as to the impact of Section 198(1) of the Criminal Procedure Code on 8s. 226 and 227. It is that Sections 226 and 227 are exceptions to Section 198(1) falling within the words. "Except as otherwise expressly provided by this Code" with which that latter section opens. We have already expressed our view that we are unable to read Sections 226 and 297 as making express provision contrary to Section 198(1), and, the result of this approach would be, as noticed in the decision itself, that an accused person could be triad for an offence entirely unrelated in the offence for which he was committed so long as prejudice is avoided by, for example, directing a separate trial. Thus to take an illustration we have already given, if in a trial on a commitment for murder, evidence of a forgery committed by the accused is given in proving the motive, the Court of Session could frame a charge for forgery and try the accused of that offence so long as it avoids prejudice by directing a new trial under Section 229. There would be nothing in the words, "having regard to the rules contained in this Code as to the form of charges" appearing in Section 220 to prevent this, and, objections such as mis-joinder could be avoided by directing a separate trial. With great respect, this is a view which we are unable to accept, and, as we have already indicated, illustration 3 to Section 236 of the Code seems to be sufficient to show that it is unacceptable.
13. Our answer to the first question is that the charge and trial for an offence punishable under Section 302 I. P. C. was proper, that this falls within the scope of Section 226 of the Criminal Procedure Code, and that Section 193 of that Code is no bar.
14. The remaining questions do not arise, but with regard to the second and fourth questions we might observe that the ordinary rule is that there should be a separate trial for each distinct offence, that joinder as provided for by Sections 234, 235, 238 and 239 of the Code are exceptions to the ordinary rule, and that there is no reason why, in the absence of prejudice, the circumstance that a trial is had in respect of certain offences jointly tried with other offences should affect the validity of the trial so far as the other offences are concerned.