CRIMINAL LAW

E-mail this Comments Print Article

Framing of Charge in Criminal Cases
by S.R. Chitnis*

Cite as : (2002) 2 SCC (Jour) 24

Despite some variation in the language, the following three pairs of sections, dealing with framing of the charge or discharge at the sessions trial or trial of a warrant case or a summons case ultimately converge to a single conclusion, namely, that a prima facie case has to be made out before a charge can be framed.

The three pairs of sections are Sections 227 and 228 relating to sessions trial; Sections 239 and 240 relatable to trial of warrant cases; and Sections 245(1) and (2) qua trial of summons cases.

Before invoking provisions of Sections 227 and 228 dealing with trials before the Court of Session, no court takes note of Section 226 which obliges the prosecution to describe the charge brought against the accused and state by what evidence the guilt of the accused would be proved. This point was stressed by the two-Judge Bench in Satish Mehra v. Delhi Admn.1 But it is a matter of regret that neither the courts nor the prosecution complies with this section. It may reduce the workload of the courts if the trial courts insist upon the prosecution to strictly comply with the provisions of Section 226 of the Code inasmuch as the courts can discharge the accused if there is no prima facie case.

The Supreme Court essayed on the rationale of Section 227 thus:

"14. The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that the Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code."2

The Court examined the purpose of Section 239 and observed:

"13. Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage. Here the 'ground' may be any valid ground including insufficiency of evidence to prove the charge."3

Having regard to these observations in Satish Mehra case1 it is not only incumbent upon the prosecution to describe the charge brought against the accused but even if the accused produces the materials which would clinch the issue the Court of Session under Section 227 of the Code has to consider the same and if there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial for the purpose of formally completing the procedure to pronounce the conclusion at a future date. This has been the consistent position taken by the Supreme Court. (See Century Spg. & Mfg. Co. Ltd. v. State of Maharashtra4, State of Karnataka v. L. Muniswamy5)

The need for the insistence for sufficient material before framing the charges is frequently felt in the context of a charge of conspiracy. In almost all sensational cases the charge of conspiracy is sought to be levelled by the prosecution against the accused. The trial courts without following the principles laid down by the Supreme Court in various cases proceed to frame the charge of conspiracy under Section 120 IPC. After considering the entire law on the point the Supreme Court in Rajiv Gandhi murder case6 has after reviewing the entire law of conspiracy laid down broad principles to be observed in framing a charge of conspiracy7 The Court observed as Principles 1, 7 and 8: (SCC pp. 516-17, para 583)

"1. ... Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be an agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that the offence be committed.

*

*

*

7. ... By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but there has to be cogent and convincing evidence against each of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand 'this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders'.

8. ... The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy."

The danger as noted in Principle 7 of Rajiv Gandhi murder case6 is to be borne in mind while framing the charge of conspiracy. The warning to the prosecution is also of great importance when the charge of conspiracy is sought to be framed against each of the accused. The period of conspiracy is also necessary to be fixed otherwise those accused who joined when the conspiracy is over may be roped in which is needed to be avoided for the charge of conspiracy.

In a case under TADA the Supreme Court has also ruled that the Designated Court should give reasons for framing charges because framing of charges substantially affects the liberty of the person concerned.8

To conclude, it must be said that the prosecution is obliged to place the material against each of the accused before calling upon the trial court to frame the charges and the trial courts are required by law to record its reasons as to why it proceeded qua the charged accused and as to why it proceeded to discharge the accused for want of materials against each of the accused so that superior courts can examine the correctness of it.

*   Senior Advocate, Mumbai Return to Text

1. (1996) 9 SCC 766 Return to Text
2. Ibid., p. 771, para 14 Return to Text
3. Ibid., p. 771, para 13 Return to Text
4. (1972) 3 SCC 282 Return to Text
5. (1977) 2 SCC 699 Return to Text
6. State v. Nalini, (1999) 5 SCC 253 Return to Text
7. Ibid., p. 515 Return to Text
8. See State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 Return to Text