G. M. LODHA, J. - (1.)- This is a reference made by the Chief Justice, on the request of the learned Single Judge of this Court for resolving the controversy about the power of the court to punish the accused for a substantive offence when he has only been charge-sheeted with the aid of S. 149, IPC and there is no charge of the substantive offence, simpliciter.
(2.)MOTILAL, the accused, in the instant case, was convicted under S. 326, IPC though the charge framed against him was for offence under S. 326/149, IPC, and there is no charge for offence under S 326 IPC, simpliciter.
In the revision petition, the learned counsel for the petitioner raised objection that the accused petitioner could not have been convicted either by the trial court or the appellate court under s. 326, IPC as there was no separate and independent charge for the substantive offence of S. 326, IPC.

It was argued that it was not necessary to show the prejudice and reliance was placed on the judgment of the Supreme Court in Nanakchand vs. State of Punjab (1) (hearin after referred to as Nanakchand's case), Surajmal vs. State of U. P. (2), Lakhan Mehta Vs. State of Bihar (3) and Bhopal Singh Vs. State (4 ).

The learned Public Prosecutor contested this position of law and argued that after the authoritative pronouncement of the Supreme Court in W. Slaney vs. State of MP. (5), the law is now well settled that unless prejudice is shown to a conviction for substantive offence when the charge was with the aid of S. 149, IPC it is not vitiated.

The learned Single Judge discussed the facts and principles enunciated in Nanak Chand's case (supra ). Lakhan Mehta's case (supra) and Surajpal's case (supra) and then pointed out that the conflict between the principles laid down in Nanakchand and Surajpal's cases (supra) was referred to a bench of five Judges of the Supreme Court in W. Slaney's case (supra) and the authoritative pronouncement of the Supreme Court in W. Slaney's case (supra) is, therefore, binding.

(3.)IN view of this, it was held that this Court has committed an error in taking a different view in Bhopal Singh's case (supra ). IN the instant case, the learned Single Judge ultimately opined as under: "it can, therefore, be said that whether a charge is framed or not, where there is any error, omission or irregularity in the charge, no finding, sentence or order by a court of competent jurisdiction can be invalid unless a failure of justice in fact has been occasioned thereby. It is abundantly clear from a bare reading of S. 464 (1 ). Cr. P. C. Therefore, the mere ground that the accused was not charged with the substantive offence and was only charged vicariously by virtue of S. 149. IPC, and therefore, cannot be convicted for the substantive offence is not sufficient to set aside the conviction of the accused for the substantive offence, unless the accused is able to show that a failure of justice has, in fact, been occasioned. IN Bhopal Singh's case (supra) placing reliance on Lakhan Mehta's case (supra),it was held that accused persons could not be convicted for a specific offence without there being a charge to that effect. It was not considered as to whether the case of the accused persons was prejudiced in any manner. W. Slaney's case (supra) was not cited. Choke's case (supra) does not apply to the facts of the instant case. Therefore, I am of the opinion that even if an accused person is only charged vicariously of an offence read with S. 149, IPC and is convicted for the substantive offence, for which he was not charged, the finding or sentence of trail court cannot be set aside merely on the ground that no charge was framed, and it is necessary for framing a charge for specific offence, prejudice in fact, has been occasioned to him, in the trial of the case. As in Bhopal Singh's case (supra) a Division Bench of this Court appears to have taken a different view, I think it necessary that for laying down the proper law, so far as this Court is concerned, the case may be laid before My Lord the Chief Justice for referring the same to a larger bench. "
We have heard Shri K. K. Sharma, the learned counsel for the petitioner-accused and the learned Public Prosecutor Shri G. C. Chatterjee. We have also considered the principles laid down in the important judgments in Surajpal and Nanakchand's and Lakhan Mehta's case (supra) and finally the five Judge's judgment of Supreme Court in W. Slaney's case (supra), where a reference was made regarding suspected conflict of view between Nanakchand and Surajpal's case (supra ).

The learned counsel, Shri Sharma argued that even W. Slaney's case (supra) nowhere lays down that if a charge for substantive offence is not framed against the accused person, and he is only charged vicariously by virtue of S. 149 IPC, he can be convicted for the substantive offence.