(Project towards the fulfillment of the Mid Term in the subject of Code of Criminal
Procedure)
SUBMITTED TO:
Mr. Souvik Chatterjee
SUBMITTED BY:
Krati Chouhan
Section A, 1061- V Semester
B.B.A.LLB (Hons.)
Page I
INDEX
ACKNOWLEDGMENT.......................................................................................................II
TABLE OF CASES.............................................................................................................III
INTRODUCTION.................................................................................................................1
MEANING OF CHARGE......................................................................................................2
WHAT CHARGE CONTAINS AND ALTERATION OF CHARGE..............................................3
JOINDER OF CHARGES......................................................................................................4
CONVICTION OF AN OFFENCE NOT CHARGED WHEN SUCH OFFENCE IS INCLUDED IN
OFFENCE CHARGED...........................................................................................................9
FRAMING OF CHARGE.......................................................................................................10
BIBLIOGRAPHY.................................................................................................................IV
Page II
ACKNOWLEDGMENT
I would like to thank our Honorable teacher Mr. Souvik Chatterjee for without his valuable
guidance, constant encouragement and detailed approach would not have made it possible for
me to make a proper research for the topic- Principles of Framing of Charges. His prcised
examples, detailed descriptions and enthusiastic approach made my efforts to flourish in a
right direction.
The work contained herein is an amalgamation of the remarkable work of various authors and
I am thankful to them for their publications that have helped me prepare this research paper to
the best of my abilities.
-Krati Chouhan
Page III
TABLE OF CASES
Aftab Ahmad Khan v. State of Hyderabad AIR 1954 SC 436
Amar Singh v. State AIR 1954 Punj 106
B.N. Srikantiah v. State of Mysore
Babulal v. Emperor AIR 1938 PC 130
Banamali Tripathy v. Emperor AIR 1943 Pat 212
Bhimbadhar Pradhan v. State of Orissa AIR 1956 SC 469
Birichh Bhuian v. State of Bihar AIR 1963 SC 1120
Chandrama Prasaa Chaman (1951) 1 Cal 539
Chittaranjan Das v. State of W.B. AIR 1963 SC 1696
Emperor v. Dhaneshram AIR 1927 Nag 223
G.N.Kulkarni v. State 1973 Cri LJ 551
Jaswantrai Manilal Akhaney v. State of Bombay AIR 1956 SC 575
K Satwant Singh v. State of Punjab AIR 1960 SC 226
Kantilal v. State of Maharashtra AIR 1970 SC 359
Kantilal v. State of Maharashtra AIR 1970 SC 359
Krishnan v. The State AIR 1958 Ker 94
Krishnan v. The State AIR 1958 LJ 516
M.R. Menon v. Kerala State 1973 Cr. LJ 394
Manna Lal v. State 1967 Cr LJ 1272
Mathura Thakur (1901) 6 CWN 72
Moosa Abdul Rahiman v. State of Kerala 1982 Cr. LJ 1384 (Ker)
Nohar Chand v. State of Punjab 1984 Cr. LJ 886 (P&H)
Ramalinga Odayar v. Emperor AIR 1929 Mad 200
Ravinder Pal Singh v. State of Punjab 2004 Cri LJ 1322 (P&H)
Shyam Sunder Ker v. State 1960 Cr LJ 310
Sri Ram Varma v. State AIR 1956 All 466
Sukha v. State of Rajasthan AIR 1956 SC 513
Suraj Pal v. State of U.P. AIR 1955 SC 419
Trilockchand v. Rex AIR 1949 All 187
Union of India v. Prafulla Kumar Samal (2002) 2 SCC 135
~Code of Criminal Procedure~
Page IV
I. INTRODUCTION
One basic requirement of a fair trial in criminal cases is to give precise
information to the accused as to the accusation against him. This is
vitally important to the accused in the preparation of his defence. In all
trials under the Code the accused is informed of the accusation in the
beginning itself. In case of serious offences the Code requires that the
accusations are to be formulated and reduced to writing with great
precision and clarity. This charge is then to be read and explained to
the accused person.
Provisions relating to charge are aimed at giving full notice to the
accused about the offence of which he is charged. It gives the accused
accurate and precise information about the accusations made against
him.1 Every charge under this Code shall state the offence with which the
accused is charged.
In the State v. Ajit Kumar Saha2 the material on record did not show a
prima facie case but the charges were framed by the Magistrate. Since
there was no application of mind by the Magistrate the order framing
charges was set aside by the High Court. It is a basic principle of law that
before summoning a person to face a charge and more particularly when
a charge sheet is actually framed, the court concerned must be equipped
with at least prima facie material to show that the person who is sought
to be charged is guilty of an offence alleged against him.3
In State of Karnataka v. Eshwaraiah4 two accused were separately
charged for committing murder in furtherance of common intention. In
the charge framed against one accused the name of the other was not
mentioned but charges were read over to each of the accused in presence
of the other accused and the plea has been recorded in the presence of
each of the accused and their advocates. It was held that there was no
1
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Penal Code is framed no charge under Section 149 for the same offence
need be framed.
III. WHAT CHARGE CONTAINS AND ALTERATION OF CHARGE
The charge may not specify particular items or exact dates. The charge
framed in the above manner shall be deemed to be a charge of one
offence within the meaning of Section 219 provided that the time
included between the first and last of such dates shall not exceed one
year. Where it is impossible to specify the particular date on which the
offence was committed, it will be sufficient to state two dates between
which the offence was committed.9 It is permissible to state in a charge
under Section 212(1) that the particular offence was committed on or
about certain date.10
Sub-section (2) was primarily enacted so that persons who showed a
deficiency in the accounts with which they were entrusted could be
convicted of criminal misappropriation even when it could not be shown
that they had misappropriated any specified sum.11
The object of Section 213 is twofold: first to ensure that the accused has
sufficient notice of the matter with which he is charged as otherwise he
will be seriously prejudiced in his defence,12 and secondly to enable the
court to keep in view the real points in issue and to confine the evidence
to such points.
Omission in a charge cannot be regarded as material unless in terms of
Section 215 it is shown by the accused that he has in fact been misled by
such omissions or that there has been a failure of justice as a result of
such omission.13 Where the accused is not misled defect in the charge is
not material.14 The irregularity of charging together different offences
instead of charging them separately are curable under this section and
9
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Court has pointed out in this connection that each of the four Sections
219, 220, 221 and 223 mentioned in Section 218 can individually be
relied upon as justifying a joinder of charges in respect of any trial.
Use cannot be made of two or more of these sections together to
justify a joinder.26 In other words it is not open to the prosecution to
take help partly of one section and partly of another in order to justify
the joinder of charges.27 Further it has been observed that the normal
rule as embodied in Section 219 or 220 or 221 or 223. Each section is
to be an exception individually. It is not the intention of the
Legislature to group together different sections in order to constitute
an exception.28
(b) Exception 2 to the basic rule: Offences committed in course of same
transaction can be charged at one trial. Under Section 220(1) it is
stated that if, in one series of acts so connected together as to form
the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one trial every
such offence.
A transaction is defined by Sir James Stephen as a group of facts so
connected together as to be referred to by a single name, as crime, a
contract, wrong or any other subject of inquiry which may be in
issue. The question whether a series of facts are so connected
together as to form the same transaction is a question of fact in each
case depending on proximity of time and place continuity of action
and community of purpose or design. In order to determine whether
a group of facts constitute one, it is necessary to ascertain whether
they are so connected together as to constitute a whole which can
properly be described as a transaction. The real and substantial test
by same transaction depends on whether they are so related to one
another in point of purpose or as cause and effect or as principal and
subsidiary acts as to constitute one continuous action.
26
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the IPC.
(f) Exception 6 to the basic rule: Where it is doubtful what offence has
been committed. According to sub-section (1) of Section 221 several
offences under this section need not necessarily be offences of same
kind but may be offences of different kinds. The essential thing is
that all of such offences must arise out of a single act or set of acts.
The court under this section may frame cumulative charges or
charges in the alternative. But a charge alternatively of two different
offences under different section of IPC based on same facts is not
permissible under this section. For example a person charged with
rape on a married woman cannot be alternatively charged with
adultery with same woman and on the same facts as a complaint for
adultery should be actually instituted by the husband. Sub-section
(2) provides that a man may be convicted of an offence although
there has been no charge in respect of it, if the evidence is such as is
sufficient to establish that offence. However, offences charged and
offences shown by evidence to have been committed must be
~Code of Criminal Procedure~
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OF
AN OFFENCE
OF SEVERAL CHARGES
When a charge containing more heads than one is framed and the
conviction has been had on one or more of them the complainant or the
person conducting the prosecution may with the consent of the Court
withdraw the remaining charge or charges or the Court may of its own
accord stay enquiry or trial of such charge. The withdrawal of charge or
the stay of enquiry or trial is possible only on the conviction being on
any other charge. Section 224 allows withdrawal or stay of charges only
when conviction has been passed on one or more of the charges. When
before the beginning of the trial the public prosecutor withdraws the
charge of the offence under one head the section has no application.
VII. FRAMING OF CHARGE
Before invoking provisions of Sections 227 and 228 dealing with trials
before the Court of Session, no court takes note of Section 226 which
~Code of Criminal Procedure~
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(4) That in exercising his jurisdiction under Section 227 of the Code the
Judge which under the present Code is a senior and experienced court
cannot act merely as a Post Office or a mouthpiece of the prosecution,
but has to consider the broad probabilities of the case, the total effect of
the evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial."
In Dilawar Balu Kurane,37 the principles enunciated in Prafulla Kumar
Samal have been reiterated and it was held:
"12. Now the next question is whether a prima facie case has been made
out against the appellant. In exercising powers under Section 227 of the
Code of Criminal Procedure, the settled position of law is that the Judge
while considering the question of framing the charges under the said
section has the undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie case against
the accused has been made out; where the materials placed before the
court disclose grave suspicion against the accused which has not been
properly explained the court will be fully justified in framing a charge
and proceeding with the trial; by and large if two views are equally
possible and the Judge is satisfied that the evidence produced before him
while giving rise to some suspicion but not grave suspicion against the
accused, he will be fully justified to discharge the accused, and in
exercising jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge cannot act merely as a post office or a mouthpiece
of the prosecution, but has to consider the broad probabilities of the case,
the total effect of the evidence and the documents produced before the
court but should not make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial (see Union
of India v. Prafulla Kumar Samal).
37
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16. It is clear that at the initial stage, if there is a strong suspicion which
leads the Court to think that there is ground for presuming that the
accused has committed an offence, then it is not open to the court to say
that there is no sufficient ground for proceeding against the accused. The
presumption of the guilt of the accused which is to be drawn at the initial
stage is only for the purpose of deciding prima facie whether the Court
should proceed with the trial or not. If the evidence which the
prosecution proposes to adduce prove the guilt of the accused even if
fully accepted before it is challenged in cross-examination or rebutted by
the defence evidence, if any, cannot show that the accused committed the
offence, then there will be no sufficient ground for proceeding with the
trial. A Magistrate enquiring into a case under Section 209 of the Cr.P.C.
is not to act as a mere Post Office and has to come to a conclusion
whether the case before him is fit for commitment of the accused to the
Court of Session. He is entitled to sift and weigh the materials on record,
but only for seeing whether there is sufficient evidence for commitment,
and not whether there is sufficient evidence for conviction. If there is no
prima facie evidence or the evidence is totally unworthy of credit, it is
the duty of the Magistrate to discharge the accused, on the other hand, if
there is some evidence on which the conviction may reasonably be
based, he must commit the case. It is also clear that in exercising
jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make
a roving enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.
17. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. On
consideration of the authorities about the scope of Section 227 and 228
of the Code, the following principles emerge:(i) The Judge while considering the question of framing the charges
under Section 227 of the Cr.P.C. has the undoubted power to sift and
weigh the evidence for the limited purpose of finding out whether or not
a prima facie case against the accused has been made out. The test to
determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion
against the accused which has not been properly explained, the Court
will be fully justified in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the Court,
any basic infirmities etc. However, at this stage, there cannot be a roving
enquiry into the pros and cons of the matter and weigh the evidence as if
he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an
opinion that the accused might have committed offence, it can frame the
charge, though for conviction the conclusion is required to be proved
beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge the
Court must apply its judicial mind on the material placed on record and
must be satisfied that the commission of offence by the accused was
possible.
(vi) At the stage of Sections 227 and 228, the Court is required to
evaluate the material and documents on record with a view to find out if
the facts emerging therefrom taken at their face value discloses the
existence of all the ingredients constituting the alleged offence. For this
limited purpose, sift the evidence as it cannot be expected even at that
initial stage to accept all that the prosecution states as gospel truth even
if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage, he is not to see
whether the trial will end in conviction or acquittal.
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BIBLIOGRAPHY
Books
Kelkar, R.V., Criminal Procedure Code, 5th edition Eastern Book
Company, Lucknow, , (2008)
Misra, S.N., The Code of Criminal Procedure, 1973 with
Probation of Offenders Act & Juvenile Justice Act, 17th ed,
Central Law Publications (2011)
Ratanlal & Dhirajlal, Code of Criminal Procedure, 17th edition,
Lexis Nexis Butterworths Wadhwa, Nagpur (2004)
Sarkars, The Code of Criminal Procedure, Dwivedi Law
Agency Allahabad, Reprint (2007)
Articles
Websites
http://www.ebc-india.com/lawyer/articles/2002v2a3.htm
http://legalperspectives.blogspot.in/2010/10/framing-of-chargein-criminal-trial-law.html
http://www.legalblog.in/2011/08/framing-of-charge-principlesand-law.html
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