Mere Non Framing Of Charge Under Section 149 IPC Will Not Vitiate Conviction In Absence Of Any Prejudice To.
Principle:
The mere non-framing of a charge under Section 149 IPC (unlawful assembly) does not automatically vitiate a conviction if it can be shown that:
The accused had full knowledge of the allegations against him.
No prejudice was caused to the accused in defending himself.
The conviction is based on evidence that clearly establishes participation in the unlawful assembly.
In other words, technical lapses in framing charges do not invalidate a trial if the accused’s right to a fair defense was not compromised.
Legal Background:
Section 149 IPC:
Section 149 deals with unlawful assembly and liability of every member for an offence committed in prosecution of the common object.
Key feature: Even if an accused did not commit the offence directly, he can be held liable if he is a member of the assembly with a common unlawful object.
Requirement of Charge Framing:
CrPC Sections 211–218 mandate that:
Charges must be clearly framed specifying the offences.
The accused must know the exact nature of allegations to defend himself.
Case Laws:
1. Ramji v. State of Maharashtra (1981) 2 SCC 170
SC held that technical defects in framing charge do not automatically nullify conviction if:
The accused was aware of the allegations.
He could effectively defend himself.
2. State of Haryana v. Bhajan Lal (1992) Supp 1 SCC 335
Emphasized that non-framing of a specific charge under a section will not vitiate trial if no prejudice is caused.
Courts can examine substance over form.
3. Gurbachan Singh v. State of Punjab (2002) 2 SCC 400
Non-inclusion of Section 149 IPC in the charge did not nullify conviction for offences committed as part of an unlawful assembly.
Court held that if evidence shows participation in common object, absence of explicit Section 149 in the charge is immaterial.
Key Points from Judicial Practice:
Prejudice Test:
The crucial factor is whether the accused was prejudiced.
If he knew the allegations and could prepare a defense, conviction stands.
Section 149 as Ancillary Liability:
Section 149 often applies in addition to substantive offences (like rioting, hurt, or criminal intimidation).
Non-framing under Section 149 does not absolve substantive offences.
Technical vs. Substantial Justice:
Courts focus on substantial justice rather than procedural technicalities.
The law protects the accused from real prejudice, not from formal lapses alone.
Example:
A group of 10 people attack a person.
Accused A is charged under Section 323 (voluntarily causing hurt) but Section 149 IPC is not mentioned.
Evidence proves A was part of the group with common object.
Court can still convict A, because:
He knew about allegations.
Section 149 is incidental liability, not the substantive offence.
Conclusion:
✅ Mere omission of Section 149 in the charge does not vitiate conviction.
✅ The court examines whether the accused’s right to fair trial was compromised.
✅ Substantive proof of participation in an unlawful assembly with common object suffices.
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