AMAR SARAN,J. - (1.) - Heard learned Counsel for the revisionists and Shri Rajen­dra Kumar Dwivedi, learned Additional Government Advocate. An order dated 9.10.2009 passed by the Additional Sessions Judge, Court No. 5 Gonda framing charges in S.T. No. 245 of 2009 has been challenged by means of this criminal revision. It is argued by the learned Counsel for the revisionists that the said order was passed without giving proper hearing to the revisionists as the revisionists did not have any Counsel and the order was passed in breach of the requirements of sections 227, 228 and 229 of the Code of Criminal Procedure.
(2.) IT was submitted by the learned Counsel that the revisionist Akshay Kwnar Shukla had prayed for appointing an ami-cus curiae to defend him on 9.10.2009, but no order was passed on the said applica­tion on the said date. But only an order framing the charge as aforesaid was passed. There was no material on record for framing the charge against the revision­ists under section 376 IPC, which was not made out on the allegations. The medical evidence does not corroborate the charge of rape. So far as the revisionist Jagat Ram Tiwari was concerned, the victim had not nominated him as having committed rape on her in her 161 Cr.P.C statement and in her 164 Cr.P.C. statement, she has stated that she had fainted after she was raped by Akshay Kumar, hence she could not say affirmatively whether she had been raped by Jagat Ram. In support of his case, learned Counsel for the revisionists has relied upon the following decisions: Bashira v. State of U.P., 1968 (5) ACC 316 (SC) = AIR 1968 SC1313 William Slaney v. State 0/M.P., AIR 1956 SCI 16 Hareram Satpathy v. Tikaram Agarwala and others, 1978 (15) ACC 356 (SC) = (1978) 4 SCC 58 Un­ion of India v. Prafiula Kumar Santal(1979) 3 SCC 4 R.S. Nayak v. A.R. Antule and otliers, (1986) 2 SCC 716 = 1984 (21) ACC 288 Dilawar Babu Kurane v. State of Maharashtra, 2002 (44) ACC 447 (SC) = (2002) 2 SCC 135 Moly v. State of Kerala, 2004 (49) ACC 130 (SC) and Pradeep Kumar alias Pradeep Kumar Verma v. State of Bihar and others. 2007 (59) ACC 487 (SC) = 2007 (57) AIC 1 (SC) It may be noted that in Bashira's (supra) case a final judgment and order convicting the appellant and awarding him a sentence of death was set aside, because after ap­pointing ' amicus curiae during the trial, no time was allowed to him for preparing the case. The evidence of two P.W.s was re­corded on the same day and the remaining evidence on the next day, on which day, the accused was also examined under sec­tion 342 IPC. It was observed that the ami-cits curie appointed in the case, was not provided with proper opportunity to pre­pare the case and the conviction was set aside and the matter remanded to the Trial Court for re-trial. The fact situation in the present case is clearly distinguishable. Learned AGA has drawn my attention in this regard to an order of the Additional Sessions Judge, Court No. 5, Gonda dated 27.10.2009 where the trial was initially pending who rejected the application (Kha-7) moved by the revi­sionists Akshay Kumar for appointing an amicus curiae. It was noted in the said order that Akshay Kumar owned six bighas of land. He had a house in the village and used to practice agriculture, his parents were residing at Bulandshahr in a rented house and his younger brother was a teacher. The other accused was related to him. It therefore appears that the applica­tion for appointing an amicus curiae for the revisionist-Akshay Kumar was moved in a mala fide manner only for creating a ground for challenging the order framing the charge at a subsequent stege. It may be noted that by a subsequent order dated 2.12.2009 the revisionist Akshay Kumar Shukla was, in any case, provided for an amicus curiae after the case was transferred to the third Additional Sessions Judge, Gonda. Also under section 215 Cr.P.C, it has been clarified that unless any error or omission in framing the charge has in fact misled the accused and occasioned a failure of justice, no other error will be regarded as material.
(3.) EVEN in William Slaney's case (supra) a minor error in framing of the charge has been held to be a curable irregu­larity. Therefore, the mere fact that detailed hearing was not given on the discharge application could not render the framing of the charge illegal if the Trial Judge has found a prima facie case of framing of charge on the basis of the material on rec­ord, and there was no ground to think that by this procedure the accused has been prejudiced in any significant manner, or that failure of justice has been thereby oc­casioned.;