On the aforesaid
question Hon’ble Supreme Court in the case of “Bhimanna vs. State of Karnataka”
[CRIMINAL APPEAL NO. 46 OF 2005] held that:
“The issue is no longer res integra and has been considered
by the Court time and again. The accused
must always be made aware of the case against them so as to enable them to understand
the defence that they can lead. An accused can be convicted for an offence
which is minor than the one, he has been charged with, unless the accused
satisfies the Court that there has been a failure of justice by the non-framing
of a charge under a particular penal provision, and some prejudice has been
caused to the accused.
Further the defect must be so serious that it cannot be covered
under Sections 464/465 Cr.PC., which provide that, an order of sentence or
conviction shall not be deemed to be invalid only on the ground that no charge
was framed, or that there was some irregularity or omission or misjoinder of
charges, unless the court comes to the conclusion that there was also, as a consequence,
a failure of justice. In determining whether any error, omission or
irregularity in framing the charges, has led to a failure of justice, this
Court must have regard to whether an objection could have been raised at an
earlier stage, during the proceedings or not. While judging the question of
prejudice or guilt, the court must bear in mind that every accused has a right
to a fair trial, where he is aware of what he is being tried for and where the
facts sought to be established against him, are explained to him fairly and
clearly, and further, where he is given a full and fair chance to defend himself
against the said charge(s)”. [Para 18]
See full
judgement here: