Effect of omission to frame, or absence of, or error in, charge :
Section – 464. (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 charges, 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—
| (a) | Â | 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; |
| (b) | Â | 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.
LAW COMMISSION REPORTS
Re-trial in case of an error in charge – Another significant change made in the old provision is that a re-trial in he event of an error, etc., in the charge should not be mandatory unlike in the old section 535. In this connection the Law Commission observed :
“In several reported cases, courts have in the interests of justice refrained from ordering a re-trial, as for instance, when the accused had already, undergone sufficient punishment—Hosseni Sardar v. Kalu Sardar 1902 ILR 29 Cal. 481 or when the evidence was considered insufficient to support a conviction—Nemain Adak v. State AIR 1966 Cal. 89. It would be better to make the provision for ordering re-trial discretionary so that a court could pass an order appropriate in the particular circumstances of a case.”