LAW on framing of charge
The Code of Civil Procedure
contains the process of framing of charge. Section 227 relates to framing of
charge against accused in respect of the Sessions trial case, whereas, the
charge framing process before the courts of Magistrate are contained in section
239 of Cr.P.C. In F.I.R case, after filing of charge sheet against the accused
under section 173 of Cr.P.C, the courts frame charges, if prima facie offence is made out under the provisions of Indian Penal
Code and /or under any other provisions of law. After framing of charge the
trial of proceeding begins. However, if the court discharges the accused, then
the process against the accused culminates. In case charges are framed, then
after recording prosecution witnesses, if the case is not made out, then, order
of acquittal could be recorded, or else,
and if required the accused may lead defence witnesses. The order of
acquittal or conviction could be passed after hearing arguments of prosecution
and defence. The principles related to charge with all its requisites shall be
delved here-in-below.
POSITION OF LAW
The section 226 of the
CrPC corresponds to subsection (1) of the old Section 286 with some changes owing to the
abolition of the jury.
Section 226 of the 1973 Code
reads thus:
“226. Opening case for
prosecution.─ When the accused appears or
is brought before the Court in pursuance of a commitment of the case under
section 209, the prosecutor shall open his case by describing the charge
brought against the accused and stating by what evidence he proposes to prove
the guilt of the accused.”
Section 226 of the CrPC
permits the prosecution to make the first impression regarding a case which
might be difficult to dispel. The prosecution is required to assert its duty under
Section 226 of the CrPC. In case an accused contends that there has been non compliance
of section 226 of Cr.P.C in as much as case against him is not explained.
However, the very fact that the Section 173 (2) of the CrPC report in the case is
duly submitted that in itself would give a fair idea of the case. After
crossing the stage of section 227, Section 228 is reached, which affords both
the prosecution and accused a fair opportunity to put forward their rival
contentions.
Section 227:- Discharge
If, upon consideration of
the record of the case and the documents submitted therewith, and after hearing
the submissions of the accused and the prosecution in this behalf, the Judge
considers that there is no sufficient ground for proceeding against the
accused, the accused shall be discharged and reasons for this shall have to be
recorded.
228. Framing of charge
(1) If, after such
consideration and hearing as aforesaid, the Judge is of opinion that there is
ground for presuming that the accused has committed an offence which
(a) is not exclusively
triable by the Court of Session, he may frame a charge against the accused and,
by order, transfer the case for trial to the Chief Judicial Magistrate, or any
other Judicial Magistrate of the first class and direct the accused to appear
before the Chief Judicial Magistrate, or as the case may be, the Judicial
Magistrate of the first class, on such date as he deems fit, and thereupon such
Magistrate shall try the offence in accordance with the procedure for the trial
of warrant cases instituted on a police report;
(b) is exclusively triable
by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames
any charge under clause (b) of subsection (1), the charge shall be read and
explained to the accused and the accused shall be asked whether he pleads
guilty of the offence charged or claims to be tried.”
The purpose of framing a
charge is to intimate to the accused the clear, unambiguous and precise nature
of accusation that the accused is called upon to meet in the course of a trial
Ref: V.C. Shukla v. State through C.B.I. reported in1980 Supp SCC 92:
1980 SCC (Cri) 695).
The case may be a sessions
case, a warrant case, or a summons case, the point is that a prima facie case must be made out before
a charge can be framed. Basically, there are three pairs of sections in the
CrPC. Those are Sections 227 and 228 relating to the sessions trial; Section
239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2)
with respect to trial of summons case.
LAW
In Union of India v.
Prafulla Kumar Samal and another, (1979) 3 SCC 4, the Supreme Court has considered
the scope of enquiry a judge is required to make while considering the question
of framing of charges. After an exhaustive survey of the case law on the point,
this Court, in paragraph 10 of the judgment, laid down the following principles
:
“(1) That the Judge while considering the question of framing the
charges under section 227 of the Code 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.
(2) 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.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a rule of
universal application. By and large however 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 within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the
Code the Judge which under the present Code is a senior and experienced 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, 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.”
The Supreme Court has
further dealt with scope of Court’s powers in respect of the framing of charges
in a criminal case in a matter reported as Dipakbhai Jagdishchndra Patel v. State of
Gujarat, (2019) 16 SCC 547. The paragraphs 15 of the aforesaid judgment are
reproduced for ready reference:
“15. We may profitably,
in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh
Singh wherein this Court has laid down the principles relating to framing of
charge and discharge as follows:
“4…..Reading Sections
227 and 228 together in juxtaposition, as they have got to be, it would be
clear that at the beginning and initial stage of the trial the truth, veracity
and effect of the evidence which the prosecutor proposes to adduce are not to
be meticulously judged. Nor is any weight to be attached to the probable
defence of the accused. It is not obligatory for the Judge at that stage of the
trial to consider in any detail and weigh in a sensitive balance whether the
facts, if proved, would be incompatible with the innocence of the accused or
not. The standard of test and judgment which is to be finally applied before
recording a finding regarding the guilt or otherwise of the accused is not
exactly to be applied at the stage of deciding the matter under Section 227 or
Section 228 of the Code. At that stage the Court is not to see whether there is
sufficient ground for conviction of the accused or whether the trial is sure to
end in his conviction. Strong suspicion against the accused, if the matter
remains in the region of suspicion, cannot take the place of proof of his guilt
at the conclusion of the trial. But 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 not in the sense of the law governing the trial of criminal cases in
France where the accused is presumed to be guilty unless the contrary is
proved. But it is only for the purpose of deciding prima facie whether the
court should proceed with the trial or not. If the evidence which the
prosecutor proposes to adduce to 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….
In Sajjan Kumar v. CBI [(2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court had an
occasion to consider the scope of Sections 227 and 228 CrPC. The principles are
noted in para 21 of the said judgment:
(i) The Judge while considering the question of framing the
charges under Section 227 CrPC 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 disclose 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.”
The
law as evolved and discussed below shall further elucidate the principles. In State v. S. Selvi, (2018) 13 SCC 455 : (2018)
3 SCC (Cri) 710, followed in Vikram Johar v. State of Uttar Pradesh, (2019) 14 SCC 207 : 2019 SCC
OnLine SC 609 : (2019) 6 Scale 794 and Asim Shariff v. National Investigation Agency, (2019) 7 SCC 148. In the
aforesaid judgments it is categorically expressed that the trial court is not
expected or supposed to hold a mini trial for the purpose of marshalling the
evidence on record. The relevant observations are as under:“
18. Taking note of the exposition of law on
the subject laid down by this Court, it is settled that the Judge while
considering the question of framing charge
under Section 227 CrPC in sessions cases(which is akin to Section 239
CrPC pertaining to warrant cases) 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 material placed before
the Court discloses grave suspicion against the accused which has not been properly
explained, the Court will be fully justified in framing the charge; by and
large if two views are possible and one of them giving rise to suspicion only, as
distinguished from grave suspicion against the accused, 3 2018(13) SCC 455 4
2019(6) SCALE 794 the trial Judge will be justified in discharging him. It is thus
clear that while examining the discharge application filed under Section 227
CrPC, it is expected from the trial Judge to exercise its judicial mind to
determine as to whether a case for trial has been made out or not. It is true
that in such proceedings, the Court is not supposed to hold a mini trial by
marshalling the evidence on record.”
In the case of State of Karnataka
v. M.R. Hiremath, reported in (2019) 7 SCC 515, this Court held as under:“
“ The parameters which govern the exercise
of this jurisdiction have found expression in several decisions of this Court.
It is a settled principle of law that at the stage of considering an
application for discharge the court must proceed on the assumption that the
material which has been brought on the record by the prosecution is true and
evaluate the material in order to determine whether the facts emerging from the
material, taken on its face value, disclose the existence of the ingredients
necessary to constitute the offence.
Similarly, in State of T.N. v. N.Suresh Rajan, (2014) 11 SCC 709, it s
reiterated as under:
“29. … At this stage, probative value of
the materials has to be gone into and the court is not expected to go deep into
the matter and hold that the materials would not warrant a conviction. In our
opinion, what needs to be considered is whether there is a ground for presuming
that the offence has been committed and not whether a ground for convicting the
accused has been made out”.
Therefore, if it appears to the court on the basis of perusal of
materials on record and on the premise of its probative value that the accused
might have committed the offence, the charge can be framed. However, in order
to record order of conviction, the court has to come to the conclusion that the
accused has committed the offence.
It clearly emerges on the
basis of the aforesaid discussion that a duty is cast on the trial court to
apply its mind at the time of framing of charge and it should not act as a mere
post office. However, the material which is required to be evaluated by the
Court at the time of framing charge should be the material which is produced
and relied upon by the prosecution. No mini trial is envisaged to ascertain the
guilt of the accused at the stage of framing charge. What is necessary is that
the court must be satisfied that the evidence collected by the prosecution is
sufficient to presume that the accused has committed an offence. Even a strong
suspicion would suffice.
In Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217) it is
held that the material placed before the Court by the prosecution in the shape
of final report in terms of Section 173 of CrPC, may be relied upon in
entirety, besides, the Court may also rely upon any other evidence or material
which is of sterling quality and may have direct bearing on the charge laid
before it by the prosecution.
Similarly, in Amit Kapoor Vs
Ramesh Chander, (2012) 9 SCC 460, this Court observed in paragraph 30 that the
Legislature in its wisdom has used the expression “there is ground for
presuming that the accused has committed an offence”. There is an inbuilt
element of presumption. It referred to its judgment rendered in the case of State of
Maharashtra v. Som Nath Thapa and others, (1996) 4 SCC 659, and to the meaning of the
word “presume”, placing reliance upon Blacks’ Law Dictionary, where it was
defined to mean “ to believe or accept upon probable evidence”; “to take as true
until evidence to the contrary is forthcoming”.
R
E M A R K
Thus, to sum it up as clearly narrated at the very onset that framing
of charge is an act of court based on the charge sheet submitted as per section
173 of Cr.P.C thereby placing reliance on statement of witnesses u/s 161 of
Cr.P.C and that of Section 164 of Cr.P.C (if so recorded), besides the documents,
expert opinion, medial report if necessary and if the nature of the case is
such besides the case history as set out by the prosecution. The Court at that
stage shall have to satisfy itself on prima facie basis, if the charge sheet
disclosed offence or offences against accused or a particular accused. The
Court shall be required to apply its mind on the allegation in the charge
sheet, but the probative value of the allegation shall not be looked into at the
stage of framing of charge. However, it is also true that the court shall not act
as mere post office and charge sheet shall have to be evaluated on the prima
facie basis and in the event the allegation against a particular accused qua the
offence is not made out, the accused could be discharged. On the other hand, if
on the prima facie evaluation, the offence is made out, then charges shall be
framed and trial proceedings shall commence. The allegation in charge sheet
shall have to be treated as gospel truth in that point in time and if the
allegation raises suspicion /grave suspicion, then charges could be framed. The
truth of the matter may come out when the prosecution evidence is led, the
witnesses are cross examined by the defence, incriminating material and
evidences are put to the accused in terms of Section 313 of the Code, and then
the accused is also provided an opportunity to lead defence, if any. It is only
upon completion of such steps that the trial concludes with the Court forming
its final opinion and delivering its judgment.
____________
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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