Consentia on Multidisciplinary Research

LAW RELATING TO FRAMING OF CHARGE

Introduction

“The Charge” shall give the accused full notice of the offence charged against him. The purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged and must convey to him with sufficient clearness and certainty[1] what the prosecution intends to prove against him and of which he will have to clear himself. The primary object of framing a charge is to give notice of the essential facts which the prosecution proposes to establish to bring home charge to the accused so that he will be able to defend and may not be prejudiced. It has been repeatedly held that the framing of a proper charge is vital to a criminal trial and that is a matter on which the judge should bestow the most careful attention.[2]

The Purpose of Framing Charge:

In the ruling of a four- Judge Bench of The Hon’ble Supreme Court in V.C. Shukla v. State[3]. Justice Desai delivering a concurring opinion opined that ‘the purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial’.

Difference between Charge and Trial:

CHARGE TRIAL
1.      The prosecutor files the ‘charge-sheet’ containing ‘charge/s’ in the court. 1.      After receiving the charge-sheet, the Magistrate takes the cognizance of the case and starts proceedings.
2.      The charge-sheet contains FIR, police report, investigation, names and description of the accused and witnesses, etc. 2.      Cognizance of the case be receiving the charge-sheet is the first step of the trial, and the trial includes all the proceeds of the court, and ends with announcement of judgment.
3.      Preparing and filing of the charge-sheet are done by police and prosecutor, which is purely executive nature. 3.      Trial is conducted by the court. Trial is judicial nature.
4.      A private person cannot file charge-sheet. He can file complaint in non-cognizable offences. Generally the majority of the cases filed by the police belong to cognizance offences. 4.      Whether a complaint or charge-sheet, the court conducts the proceedings judicially.
5.      Upto filing the charge-sheet, it is in the ‘Pre-Trial Process.’ 5.      As soon as the court receives/takes the cognizance of a charge-sheet, the trial starts which is the ‘Trial Process’.

 

Contents: Sections 211-214 of the code enumerate requirements and particulars which a valid charge should contain. Looking to those provisions, it is clear that to be a valid charge; the following requirements must be satisfied:[4]

  • It must state the offence with which the accused is charged;
  • If the law which creates the offence gives it any specific name, the offence should be described in the charge by that name only;
  • If the law which creates the offence does not give any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged;
  • The law and section of the law against which the offence is said to have been committed must be mentioned in the charge;
  • It must be in writing;
  • It must be in the language of the court;
  • If the accused has been previously convicted of any offence, and by reason of such previous conviction, is liable to enhanced punishment or to punishment of a different kind for a subsequent offence, the fact, date and place of the previous conviction must be stated in the charge;
  • It must give particulars as to the time and place of the alleged offence and the person against whom or the thing in respect of which the offence was committed;

However, when the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or describe the movable property in respect of which and the dates between which the offence is alleged to have been committed without specifying particular items or exact items or exact dates, provided that the time included between the first and last of such dates shall not exceed one year.[5]

  • When the nature of the case is such that the above particulars do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the matter in which the alleged offence was committed as will be sufficient for that purpose;[6]
  • In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them by the law under which such offence is punishable.[7]

A charge must be precise in its scope and particular in its details. Such particulars should be stated in the charge as are reasonably sufficient to give the accused notice of the matter with which he is charged. Whether or not sufficient particulars have been mentioned in the charge must be decided with reference to facts and circumstances of each case.[8]

Scope of Inquiry: at the stage of framing a charge, the court has to be satisfied only prima facie about the existence of sufficient grounds for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient for bringing home guilt of the accused. The only question is whether the material on record supports a triable case. Each case depends upon its peculiar facts and circumstances.

Errors and Omissions: sections 215, 464 and 465 of the Code should be read together since they deal with the same question. Section 215 enacts that no error or omission in the charge will be regarded as material unless it has occasioned a failure of justice.

Effect of errors:  No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

Section 464: Effect of omission to frame, or absence of, or error in, charge: (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) 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) 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.

While examining the aforesaid provisions, we may keep in mind the principles laid down by Justice Vivian Bose in Willie (William) Slaney v. State of Madhya Pradesh[9] of the report, the learned judge observed:- We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials. We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent.

The aforesaid observation of Justice Vivian Bose in William Slaney has been expressly approved subsequently by this Court in V.C. Shukla case.

Reference in this connection may be made to the decision of this Court in the case of Tulsi Ram and others v. State of Uttar Pradesh[10]. In that case in paragraph 12 this Court was considering these aspects of the matter and made it clear that a complaint about the charge was never raised at any earlier stage and the learned Judges came to the conclusion that the charge was fully understood by the appellants in that case and they never complained at the appropriate stage that they were confused or bewildered by the charge. The sad thing is true here. Therefore, the Court refused to accept any grievance relating to error in the framing of the charge.

Alteration in Charge: Section-216 the object is to secure fair trial to the accused and it is the duty of the court to ensure that alteration or addition of charge has not caused prejudice to him. Though the power is wide and extensive, it must be exercised judiciously. The court cannot alter the charge to the prejudice of the accused. Similarly, such power cannot be exercised after the accused is discharged of all the charges inasmuch as no charge exists against him and the provisions of Section 216 do not apply.

Joinder of Charges: sections 218 to 222 of the Code provide for joinder of charges in one trial against the same accused. Section 223 deals with joint trial against two or more accused persons. The basic rule – section 218 lays down the basic rule relating to trial of offences and enacts that for every distinct offence there must be a separate charge and a separate trial for each such charge.

Exceptions: if the case falls in any of the exceptions, joinder of charges is permissible.

  • Desire of accused: where the accused the rule relating to separate trial is for the benefit of the accused and when the accused himself wants joint trial and the magistrate is satisfied that such joint trial will not prejudice the accused, joint trial is permissible.[11]
  • Three offences of same kind within one year: when a person is accused of more offences than one of the same kind committed within one year, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three.[12]
  • Offences in course of same transaction: 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 for every such offence.[13]
  • Offences of criminal breach of trust or misappropriation of property connected with falsification of accounts: where a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property is accused of committing falsification of accounts or the purpose of facilitating or concealing the commission of such offence, he may be charged with and tried at one trial for every such offence.[14]
  • Same act constituting different offences: if the acts alleged constitute an offence falling within two or more separate definitions of any law, the person accused of them may be charged with and tried at one trial for each of such offences.[15]
  • Same acts constituting one and also different offences: in several acts of which one or more than one would be itself or themselves constitute an offence, and constitute a different offence when combined, the person accused of them may be charged with and tried at one trial for individual offences as well as the combined offence.[16]
  • Where it is doubtful what offence in the alternatives: if a single act or series of acts is of such a nature that it is doubtful on facts proved which of several offences has been committed; the accused may be charged with one of such offences or with several offences in the alternatives.[17]

If in such a case, the accused is cleared is charged with one offence and it appears on evidence that he has committed a different offence for which he might have been charged, he can be convicted of that offence.[18]

Withdrawal of Charges: Section 224 states that when an accused is charged for two or more offences and is convicted on one or more of them, the complainant or prosecution may with the leave of the court withdraw the remaining charge or charges. Similarly, the Court may on its own accord stay the inquiry into or trial on such charges. If the court permits withdrawal of charges, such withdrawal would amount to acquittal on the remaining charges and they cannot be inquired or received except under the order of the court setting aside the conviction.[19]

Quashing of charge: it is no doubt open to a High Court while exercising powers either under Section 482 of the Code or under Article 226 of the Constitution to quash charges framed by the trial court. But it is well settled that at the stage of framing charge, the court is expected to consider only the prima facie case to proceed against the accused and not whether the case would result in conviction. Truthfulness, sufficiency, adequacy or acceptability of the material produced at the time of framing of charges can be considered only at the trial and not a prior stage.[20]

Discharge of the accused: Section 227 provides for discharge of an accused. It states, “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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”  This provision is intended to eliminate harassment to the accused when there is no prima facie case against him. At the stage of the trial, however, veracity and effect of the evidence should not be mentionally judged. If the scale as to the guilt or innocence of the accused are even at the initial stage of making an order under Section 227 or Section 228, then in such a situation, ordinarily and generally the order will have to be made under Section 228 (framing of charge) and not under Section 227 (discharge). Section 227 enables the Judge to discharge the accused if there is no sufficient ground for proceeding against him.  The test to determine prima facie case depends on the facts of each case and it is neither feasible nor advisable to lay down a rule of universal application. It has, however, been held that if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused.[21]

Framing of Charge

The framing of a charge is not mere formality but a judicial act it is required to be performed after application of mind. The object of Section 228 is to ensure that the court is satisfied that the accusation made against the accused is not false and frivolous but there is some material for proceeding against him. Reading Section 227 and 228 together, it is clear that what the court has to see whether it is a prima facie case against the accused and he is in any manner connected with the incident leading to the prosecution. Certain rules are given below find out that is the case is prima facie or proper evidence against the accused:

When charge may be framed:  In all warrant cases whether triable by a Court of Session or by a Magistrate, a formal charge is required to be framed. Framing of Charge is, however, not necessary in summons case. Similarly, it is not necessary to frame charge in summary trials.  At the stage of framing a charge, the court should consider the materials placed before the court; there is a prima facie case against the accused. The test to determine prima facie case depends upon the facts and circumstances of each case.[22] In Union of India v. Prafulla Kumar[23] after considering the leading cases on the point, the Supreme Court laid down the following principles as to when the charge should be framed –

  • That the Judge while considering the question of framing the charges under Section 227of the Code to weigh the evidence for finding out whether it’s a prima facie case or not. And for which the accused has been made out;
  • Where the materials placed before the Court the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
  • The test to determine a prima facie case would naturally depend upon the facts of each case. By and large however if two views are equally possible and the Judge should be satisfied with the evidence produced while giving rise to some suspicion but not grave suspicion against the accused, he has all the right to discharge the accused.
  • That in exercising his jurisdiction under Section 227 of the Code, the total effect of the evidence and the document produced by 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.

Section 240- Framing of charge: Upon considering the police report and the documents sent with it under Section 173 and after examining the accused and hearing the parties, if the magistrate is of the opinion that the accused has committed an offence which he is competent to try and could be adequately punished by him, he shall frame a charge. The charge shall be read over and explained to the accused and he shall be asked whether he pleads guilty or claims to be tried.[24] Framing of charge in absence of the accused would defeat the very purpose of Section 240(2) of the Code.[25] It is not necessary for the trial Court to write a reasoned or lengthy order for the purpose of framing charges.[26] The manner of examination of material placed by the prosecution before the court has been thus explained by the Supreme Court. “It is well settled that at the stage of framing of charge the trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials for the purpose of seeing whether the offence alleged against the accused persons is made out. At the stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case has been made out against the accused persons.

Where the material on record as product by the prosecution was sufficient for framing the charge of corruption, the Court need not wait for the public servant to satisfactorily explain the assets position.[27]

Where the accused, in collusion with others, defrauded the bank to the tune of over 2 crore rupees, the Supreme Court observed that a blanket order enabling the accused not to appear before the court during investigation and even at trial should not be passed. His presence may become necessary for example, at the time of framing of charge.

Examination of accused and framing of charge, two distinct stagesThe Supreme Court deprecated the practice of examination of the accused and framing of charge are two important stages in criminal trial. In the case Sajjan Sharma v. State of Bihar[28] the accused were police officers. They are arrested the deceased for taking bribe. He was patient of asthama. He was put in a window-less room which was full of dust and cobwebs which are known allergies for triggering an asthama attack. He was brought to the hospital the next day in a comatose condition. His body showed no signs of pulse, respiration, or blood pressure. The court said that prima facie the accused could be proceeded against under Section.304, and Section.330, of IPC. But not under Section. 302, as there was little evidence to establish intention to wilfully cause death.[29]

The charge against the accused was that she dishonestly processed and verified fake bills. The bills in question were neither raised nor signed by the appropriate authority. The same was not entered in the bill register. The framing of charge against her was held to be proper. The duty by saying that the accounts section was negligent in its verification. The court said a person signing a document is expected to make some enquiry before signing. The presence of material on the record was sufficient to enable the court to form an opinion that the accused might have committed the offence. All the officers who dealt with the relevant files at one point of time or the other could not be taken to have participated in the conspiracy or guilty of aiding or abetting it. In such cases, it is necessary to deal with individual acts of criminal misconduct for finding out their respective roles. Some of the persons similarly situated were not proceeded against only because departmental proceedings ended in their favour. The court said that the doctrine of parity under Art. 14 of the Constitution should have been considered.[30]

Non-interference in framing of charge: The Supreme Court explained this aspect in the following words: It is the statutory obligation of the High Court not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled-for and unjustified litigation under the cloak of technicalities of law.

At the stage of framing of charge, materials and documents filed by the accused cannot be considered. Materials produced by the prosecution alone is to be considered. Depriving the accused of the opportunity to produce the material of sterling quality at this stage is not violative of Arts.21 and 14 of the Constitution. This is to become roving or fishing inquiry and mini-trial at the stage of framing of charge has been held to be not permissible.

 

Conclusion

One basic requirement of a fair trial in the 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 writing great precision and clarity. This charge is then to be read and explained to the accused person.

The provisions regarding charge are contained in Section 211-214 and Section 464 provides understanding about various procedures related to framing of Charge. Therefore, it is concluded that the law relating to framing of charge mentioned under the Code of Criminal Procedure, 1973 is comprehensive & simple. All this has an important bearing on the Administration of Criminal Justice.

[1] Jaswantrai v. State of Bombay, AIR 1956 SC 575 (585): 1956 SCR 483(504-05): 1956 CrLJ 1116; Willie Slaney v. State of M.P., AIR 1956 SC 116; (1955) 2 SCR 1140: 1956 CrLJ 291.

[2] Balakrishnan v. State, AIR 1958 Ker 283; Basavaraja v. State of Karnataka, (2008) 9SCC 329: (2008) 3 SCC (Cri) 767.

[3] C.B.I.,1980 Supplementary SCC 92 at page 150 and paragraph 110

[4] Sec. 211

[5] Sec. 212

[6] Sec. 213

[7] Sec. 214

[8] Chittaranjan Das v. State of W.B; Kantilal v. State of Gujarat, AIR 1974 SC 222: (1974) 3 SCC 587: 1974 SCC 310; Main Pal v. State of Haryana, AIR 2010 SC 3292: 2010 CrLJ 4450: (2010)10 SCC 130.

[9] (1955) 2 SCR 1140

[10] AIR 1963 SC 666

[11] State of Punjab v. Rajesh, AIR 2002 SC 3687: (2002) 8 SCC 158.

[12] Manoharan v. Director General of Police, 2002 CrLJ NOC 51: (2001) 3 KerLT 509: (2001) 2 KerLJ 721; Chandra v. State, (1951) 53 Bom LR 928 (FB).

[13] Mohinder Singh v. State of Punjab, AIR 1999 SC 211: 1999 CrLJ 263: 1998 SCC (Cri) 1638; State of Punjab v. Rajesh Syal, 2003 CrLJ 60: (2002) 8 SCC 158: AIR 2002 SC 3687.

[14] Chandi Prasad v. State of U.P, AIR 1956 SC 149: (1955) 2 SCR 1035: 1956 CrLJ 322; Thankappan v. Union of India, 1989 CrLJ2374 (Ker).

[15] Emperor v. Dagdi, (1928) 30 Bom LR 342.

[16] State of A.P v. C.G. Rao, AIR 1963 SC 1850 (1861): (1964) 3 SCR 297: (1963) 2 CrLJ 671; Narinderjit Singh v. Union of India, AIR 2001 SC 3810: (2002) 2 SCC 210.

[17] Mohinder Singh v. State of Punjab, AIR 1999 SC 211: (1998) 7 SCC 390.

[18] Surendra Singh v. State of Bihar, AIR 2002 SC 260: 2002 CrLJ 555: (2002) 1 SCC 266.

[19] A.R.Antuley v. R.S.Nayak, AIR 1988 SC 1531: (1988) 2 SCC 602 (697).

[20] State of Maharashtra v. Salman Khan, AIR 2004 SC 1189: (2004) 1 SCC 525: 2004 CrLJ 920; State of Punjab v. kasturi Lal, AIR 2004 SC 4087: 2004 CrLJ 3866: (2004) 12 SCC 195.

[21] Yogesh v. State of Maharashtra, AIR 2008 SC 2991: 2008 CrLJ 3872: (2008) 10 SCC 394.

[22] Chandra Deo Singh v. Prakash Chandra, AIR 1963 SC 1430: (1963) 2 CrLJ 397: (1964) 1 SCR 639; Union of India v. Prafulla Kumar, AIR 1979 SC 366: (1979) 3 SCC 4: 1979 CrLJ 154; State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 (1977) 4 SCC 39: (1978) 1 SCR 257: 1977 CrLJ 1606.

[23] AIR 1979 SC 366: (1979) 3 SCC 4: 1979 CrLJ 154: (1979) 3 SCR 1.

[24] R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045: (1996) 2 SCC 716: 1986 CrLJ 1922; state of Delhi v. Gyan Devi, AIR 2001 SC 40: (2000) 8 SCC 239.

[25] HDFC Bank v. Mannan, AIR 2010 SC 618: 2010 CrLJ 2293: (2010) 1 SCC 679.

[26] Munna Devi v. State pf Rajasthan, (2001) 9 SCC 631.

[27] State (CBI) v. Bangarappa, AIR 2001 SC 222: (2001) 1 SCC 369: 2001 CrLJ 111.

[28] AIR 2011 SC 632: 2011 CrLJ 1169.

[29] Indu Jain v. State of M.P., AIR 2009 SC 976: (2008) 15 SCC 341: 2009 CrLJ 951.

[30] Soma Chakravarty v. Sate (CBI), AIR 2007 SC 2149: (2007) 5 SCC 403: 2007 CrLJ 3257.

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