Effect of omission to frame, or absence of, or error in, charge
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Summary
An omission, error or misjoinder in the charge will not automatically invalidate a competent court's finding, sentence or order. It becomes grounds for interference only if an appellate, confirmation or revision court is satisfied that a failure of justice actually occurred. If so, that court can order a charge to be framed and the trial restarted from that point, or order a new trial on a corrected charge; if no valid charge could be made, it must quash the conviction.
Example
Priya was convicted for alleged shop theft though the trial court never framed a proper charge. On appeal the court finds this omission caused a failure of justice and orders a charge to be framed and the trial to restart from that point. If the evidence showed no offence could be made out, the appellate court could instead quash her conviction.
Bare Act
Enacted text(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may
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(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.
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(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
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