Framing of Charge In Criminal Cases

 

Framing of Charge In Criminal Cases

Framing of Charge In Criminal Cases There is some criticism in some trial courts that the important task of framing charge is being entrusted to stenos by the trial judges. A fortiori, inasmuch as the Supreme Court laid down 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, it is primary duty of a judicial officer to remove such criticism from the minds of litigant public. This article may be helpful to newly recruited Junior Civil Judges as to this aspect. 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. (See V.C. Shukla v. State Through C.B.I.,1980 Supplementary SCC 92 at page 150 and paragraph 110 of the report). Either it is 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 Code of Criminal Procedure, 1973. Those are Sections 227 and 228 which 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. The Hon’ble Supreme Court, in Mohan Singh v. State of Bihar, has examined the law relating to charge while highlighting the purpose of framing a charge against the accused in criminal cases. Strict Comply Of Section 226 Of Cr.P.C: Trial Judge must insist the prosecution to comply with section 226 of Cr.P.C. if this be done, accused can be discharged in case of there is no prima facie case. thus, arrears of cases can be cleared quickly. Before invoking provisions of Sections 227 and 228 dealing with trials before the Court of Session, Courts shall take 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. In Satish Mehra v. Delhi Administration and Another [(1996) 9 SCC 766]  was overuled in  State of Orissa Vs. Debendra Nath Padhi, 2005(1)ACR71(SC),  AIR2005SC359,  2005((1))ALT(Cri)198,  2005(1)ALT(Cri)1198 holding that the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra’s case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided. In the same ruling, it was observed that If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91, summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. Reasons For Charge: It is seminal to refer the ruling State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659. In this ruling, it was observed as: ‘ before adverting to what was stated in Antulay’s case, let the view expressed in State of Karnataka vs. L. Muniswamy), 1977 (3) SCR 113 be noted. Therein, Chandrachud, J. (as he then was) speaking fore a three Judge Bench stated at page 119 that at the stage of framing charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person’s liberty substantially, need for proper consideration of material warranting such order was emphasised.’ In one of the case under TADA, the Hon’ble Apex Court held that the Designated Court should give reasons for framing charges because framing of charges substantially affects the liberty of the person concerned. 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 Through C.B.I.,1980 Supplementary SCC 92 at page 150 and paragraph 110 of the report). 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’. How To Interpret The Words In A Charge? What To Be Done, If There Is Any Error In The Framing Of The Charge? To give appropriate answers for these two important questions, I deem it is apt to see the recent ruling of the Hon’ble Supreme Court (2011) in Mohan Singh vs State Of Bihar, wherein it was observed as infra: 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. (See decision of a four-Judge Bench of this Court in V.C. Shukla v. State Through C.B.I., reported in 1980 Supplementary SCC 92 at page 150 and paragraph 110 of the report). Justice Desai delivering a concurring opinion, opined as above. 17. But the question is how to interpret the words in a charge? In this connection, we may refer to the provision of Section 214 of the Code. Section 214 of the Code is set out below: 214. Words in charge taken in sense of law under which offence is punishable. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.” 18.The other relevant provisions relating to charge may be noticed as under: 211. Contents of charge.- (1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law which creates the offence does not give it 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. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the Court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. 215. 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. 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; 19. 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 reported in (1955) 2 SCR 1140. At page 1165 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.” 20. The aforesaid observation of Justice Vivian Bose in William Slaney (supra) has been expressly approved subsequently by this Court in V.C. Shukla (supra). 21. 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 reported in AIR 1963 SC 666. 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 said thing is true here. Therefore, the Court refused to accept any grievance relating to error in the framing of the charge. 22. Subsequently, in the case of State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another reported in AIR 1963 SC 1850, this Court also had to consider a similar grievance. Both in the case of Tulsi Ram (supra) as also in the case of Cheemalapati (supra) the charges were of conspiracy. The same is also a charge in the instant case. Repelling the said grievance, the learned Judges held that the object in saying what has been set out in the first charge was only to give notice to the accused as to the ambit of the conspiracy to which they will have to answer and nothing more. This Court held that even assuming for a moment that the charge is cumbersome but in the absence of any objection at the proper time and in the absence of any material from which the Court can infer prejudice, such grievances are precluded by reason of provision of Section 225 of the Cr.P.C. Under the present Code it is Section 215 which has been quoted above. 23. Reference in this connection may also be made in the decision of this Court in Rawalpenta Venkalu and another v. The State of Hyderabad reported in AIR 1956 SC 171 at para 10 page 174 of the report. The learned Judges came to the conclusion that although Section 34 is not added to Section 302, the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention. Therefore, the omission to mention Section 34 in the charge has only an academic significance and has not in any way misled the accused. In the instant case the omission of charge of Section 302 has not in any way misled the accused inasmuch as it is made very clear that in the charge that he agreed with the others to commit the murder of Anil Jha. Following the aforesaid ratio there is no doubt that in the instant case from the evidence led by the prosecution the charge of murder has been brought home against the appellant. 24. In K. Prema S. Rao and another v. Yadla Srinivasa Rao and others reported in (2003) 1 SCC 217 this Court held that though the charge specifically under Section 306 IPC was not framed but all the ingredients constituting the offence were mentioned in the statement of charges and in paragraph 22 at page 226 of the report, a three-Judge Bench of this Court held that mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The learned Judges held that provisions of Section 221 Cr.P.C. takes care of such a situation and safeguards the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence he could have been charged with such offence. The learned Judges have also referred to Section 215 of the Cr.P.C., set out above, in support of their contention. Can Conviction Is Sustainable If There Is No Charge? To know answer for this wuestion, see ruling Mohan Singh vs State Of Bihar; decided in 2011 . In this ruling, it was observed in para 25 as under: 25. Even in the case of Dalbir Singh v. State of U.P., reported in (2004) 5 SCC 334, a three-Judge Bench of this Court held that in view of Section 464 Cr.P.C. it is possible for the appellate or revisional court to convict the accused for an offence for which no charge was framed unless the court is of the opinion that the failure of justice will occasion in the process. The learned Judges further explained that in order to judge whether there is a failure of justice the Court has to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. If we follow these tests, we have no hesitation that in the instant case the accused had clear notice of what was alleged against him and he had adequate opportunity of defending himself against what was alleged against him. Is It Mandatory To Mention Section Of Law In The ‘Charge’? In K. Prema S. Rao and another v. Yadla Srinivasa Rao and others reported in (2003) 1 SCC 217 the Supreme Court held that though the charge specifically under Section 306 IPC was not framed but all the ingredients constituting the offence were mentioned in the statement of charges and in paragraph 22 at page 226 of the report, a three-Judge Bench of the Supreme Court held that mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. His Lordships held that provisions of Section 221 Cr.P.C. takes care of such a situation and safeguards the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence he could have been charged with such offence. The learned Judges have also referred to Section 215 of the Cr.P.C., set out above, in support of their contention. Even in the case of Dalbir Singh v. State of U.P., reported in (2004) 5 SCC 334, a three-Judge Bench of the Supreme Court, Court held that in view of Section 464 Cr.P.C. it is possible for the appellate or revisional court to convict the accused for an offence for which no charge was framed unless the court is of the opinion that the failure of justice will occasion in the process. Their Lordships Judges further explained that in order to judge whether there is a failure of justice the Court has to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. If we follow these tests, we have no hesitation that in the instant case the accused had clear notice of what was alleged against him and he had adequate opportunity of defending himself against what was alleged against him. In Annareddy Sambasiva Reddy and others v. State of Andhra Pradesh; (2009) 12 SCC 546 the Supreme court dealt with the same question and referred to Section 464 of Cr.P.C. In paragraph 55 at page 567 of the report, the Supreme Court held that if the ingredients of the section charged with are obvious and implicit, conviction under such head can be sustained irrespective of the fact whether the said section has been mentioned or not in the charge. The basic question is one of prejudice. The Hon’ble Supreme Court in Rawalpenta Venkalu and another v. The State of Hyderabad reported in AIR 1956 SC 171 at para 10 page 174 of the report. The learned Judges came to the conclusion that although Section 34 is not added to Section 302, the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention. Therefore, the omission to mention Section 34 in the charge has only an academic significance and has not in any way misled the accused. In the instant case the omission of charge of Section 302 has not in any way misled the accused inasmuch as it is made very clear that in the charge that he agreed with the others to commit the murder of Anil Jha. Following the aforesaid ratio there is no doubt that in the instant case from the evidence led by the prosecution the charge of murder has been brought home against the appellant. It is thus clear that no prejudice will be caused to the accused for non-mentioning of Section of law in the charge when all the ingredients of the offence were disclosed and the accused had full notice and had ample opportunity to defend himself against the same and at no earlier stage of the proceedings, the accused had raised any grievance. To know more, the following rulings are useful as to framing of Charge in Criminal Cases. 1) Sanichar Sahni vs State Of Bihar on 26 May, 2009 2) Santokh Singh vs Izhar Hussain And Anr on 25 April, 1973 3) Tilak Nagar vs The State Of Maharashtra on 20 October, 2011 4) Mahesh And Ors. vs State Of M.P. : 1988 CriLJ 1565 5) Kenaram Alias Kinuram Majhi vs The State: 1995 CriLJ 3026 6) In Re: Saroja vs …; Madras High Court Judgment. 7) K. Dhanasekaran vs State By Inspector Of Police: 2003 (1) CTC 223 8) Sureshbhai Jayantilal Shah vs State Of Gujara : (2005) 3 GLR 1918 9) Tatikayala, Ayyappa Naidu And … vs State on; Andhra Pradesh HIGH Court Judgment.: 1956 CriLJ 580 10) Public Prosecutor vs K. Jalayya And Anr : AIR 1954 Mad 303 11) State of Uttar Pradesh v. Paras Nath Singh ; (2009) 6 SCC 372 Conclusion: To understand the scope of section 226, 227, 228 and 239 of Cr.P.C, it is better to go through the observations in  State of Orissa Vs. Debendra Nath Padhi, 2005(1)ACR71(SC),  and Century Spg. & Mfg. Co. Ltd. v. State of Maharashtra ((1972) 3 SCC 282), State of Karnataka v. L. Muniswamy ((1977) 2 SCC 699. Further more, after considering the entire law on the point of section 120 IPC, the Hon’ble Apex Court in Rajiv Gandhi murder case (State v. Nalini, (1999) 5 SCC 253) laid down broad principles to be observed in framing a charge of conspiracy. A fortiori, besides the above listed 11 important judgments, it is important to go through the observations of the Hon’ble SupremeCourt in Dalbir Singh v. State of U.P.; Rawalpenta Venkalu and another v. The State of Hyderabad reported in AIR 1956 SC 171; Sambasiva Reddy and others v. State of Andhra Pradesh; (2009) 12 SCC 546; K. Prema S. Rao and another v. Yadla Srinivasa Rao and others reported in (2003) 1 SCC 217; State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another reported in AIR 1963 SC 1850; Willie (William) Slaney v. State of Madhya Pradesh; V.C. Shukla v. State Through C.B.I.; State of Karnataka vs. L. Muniswamy), Satish Mehra v. Delhi Administration and Another [(1996) 9 SCC 766], and 2011 ruling in Mohan Singh vs State Of Bihar.