1

PROJECT REPORT

PRINCIPLES OF FRAMING CHARGES

WITH SPECIAL REFERENCE TO
UNION OF INDIA
V.
PRAFULLA KUMAR SAMAL,
1979 SCR (2) 229

SUBMITTED BY:
SANYA SINGH

BALLB (HONOURS)

5TH SEMESTER

83/13
 2

INDEX

TITLE PAGE NO

TABLE OF CASES...................................................................................................................3

INTRODUCTION......................................................................................................................4

WHAT IS A CHARGE?............................................................................................................4

OBJECTIVE OF CHARGE.......................................................................................................5

BASIC RULES REGARDING FRAMING OF CHARGES.....................................................6

1. PRIMA FACIE EVIDENCE .....................................................................................................6

2. STRICT COMPLIANCE OF SECTION 226............................................................................7

3. SEPARATE CHARGE FOR DISTINCT OFFENCES............................................................8

EXCEPTION TO THIS RULE..................................................................................................9

CASE STUDY.........................................................................................................................13

BIBLIOGRAPHY....................................................................................................................16
 3

TABLE OF CASES

Almohan Das and ors. v. State of West Bengal{1969} 2 SCR 520.15

K. P. Raghavan and Anr. v. M. H. Abbas and Anr AIR 1967 SC 740....................................15

Kanti Bhadra Shah v. State of West Bengal (2000) 1 SCC 7825

Satish Mehra v. Delhi Administration and Another (1996) 9 SCC 766....................................6

State of Bihar v. Ramesh Singh, AIR 1967 SC 740.14

State of Jammu & Kashmir v. Sudershan Chakkar, (1995) 4 SCC 181.5

State v. Ajit Kumar Saha 1988 CriLJ NOC 2 (Cal)...................................................................6

Union of India v. PK Samal, 1979 SCR (2) 229......................................................................13

VC Shukla v. State through CBI 1980 Cri LJ 690, 732.............................................................5

 4

INTRODUCTION

Fair trial is an integral part of Article 21 of the Constitution and rests on the basic principle of
presumption of innocence. Consequently, an accused has several pre trial and post trial rights
as well that are guaranteed to the accused in the CrPC. Pre-trial rights include the right to
have knowledge regarding what one has been accused of, right to a lawyer, opportunity to
defend oneself etc.

Thus, one basic requirement of a fair trial in criminal jurisprudence 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 Criminal Procedure 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 & clarity. This "charge" is then to be read and explained to the accused person.1

Basically, there are three pairs of sections in the Code, 1973 dealing with framing of charge.
Those are Section 227 and 228 which relate to the sessions trial; Sections 239 and 240
relatable to trial of warrant cases, and sections 245 (1) and (2) qua trial of summons cases.

WHAT IS A CHARGE?

As per Wharton's law Lexicon,2 Charge means to prefer an accusation against someone. To
charge a person means to accuse that person of some offence. However, charge is not a mere
accusation made by a complainant or an informant. A charge is a formal recognition of
concrete accusations by a magistrate or a court based upon a complaint or information against
the accused. A charge is drawn up by a court only when the court is satisfied by the prima
facie evidence against the accused. A charge is written in the language of the court and the
fact that the charge is made means that every legal condition required by law to constitute the
offence charged is fulfilled in the particular case.

1 Sugandha Nayak, India: Framing of charges: An Overview, 13th august, 2013,

http://www.mondaq.com/india/x/257582/Crime/Framing+Of+Charges+An+Overview

2 JJ Smith Wharton, Whartons Law Lexicon, 15th Ed., Stevens and Sons Ltd, 2010
 5

The Code however, does not define charge; it only says in Section 2(b) of Cr P C, when a
charge contains more than one heads, the head of charges is also a charge.

In all trials under the code, the accused is to be informed of the accusation in the beginning
itself. In case of serious offences, it is further required, that the accusation is precisely and
clearly formulated in writing. It may also be noted that whatever may be the nature and type
of the trial, it is always for the court to frame a charge against the accused. In framing the
charge in a case instituted upon a police report the court is required at the time of framing of
the charge to confine its attention to documents referred to under section 173.3

In any trials of a warrant case, whether it is before a court of session or whether it is by a

magistrate, a formal charge in writing is essential; while in a trial of a summons case or in a
summary trial, it is enough if, instead of a formal charge, the substance of the accusation is
stated to the accused.4

In the case of Kanti Bhadra Shah v. State of West Bengal,5 the Honble Court held that at the
stage of framing charge there needs to be only prima facie case and there is no need for
appreciating evidence at this stage. Even in the cases instituted otherwise than on a police
report the magistrate is required to write an order showing reasons only if he decides to
discharge the accused. But if he decides to frame charge he could do so without adducing any
reasons. At this stage of charging the trial judge is not empowered to invoke section 311 and
call witnesses. The expression at any stage in Section 311 is to be interpreted with reference
to the context of provisions of Section 227.

OBJECTIVE OF CHARGE

Charge serves the purpose of notice or intimation to the accused, drawn up according to
specific language of law, giving clear and the basic idea behind a charge is to make the
accused understand what exactly he is accused of so that he can defend himself. A charge

3 State of Jammu & Kashmir v. Sudershan Chakkar, (1995) 4 SCC 181

4 RV Kelkars Lectures on Criminal Procedure, 4th ed., Eastern Book Company, 2010

5 (2000) 1 SCC 782

 6

gives the accused accurate and precise information about the accusation against him. A
fortiori, in as much as the Supreme Court laid down that the purpose of framing a charge is to
give information to the accused of clear, unambiguous or precise notice of the nature of
accusation that the accused is called upon to meet in the course of trial.6

BASIC RULES REGARDING FRAMING OF CHARGES

1. PRIMA FACIE EVIDENCE

It is a basic principle of law that when a court summons a person to face a charge, the court
must be equipped with at least prima facie material to show that the person being charged is
guilty of the offences contained in the charge. Thus, while framing a charge, the court must
apply its mind to the evidence presented to it and must frame a charge only if it is satisfied
that a case exists against the accused. In the case of State v. Ajit Kumar Saha7, the material on
record did not show a prima facie case but the charges were still framed by the magistrate.
Since there was no application of mind by the magistrate, the order framing the charges was
set aside by the High Court.

In Satish Mehra v. Delhi Administration and Another8, a two judge Bench judgment, it was
observed that if the accused succeeds in producing any reliable material at the stage of taking
cognizance or framing of charge which might fatally affect even the very sustainability of the
case, it is unjust to suggest that no such material should be looked into by the court at that
stage. It was held that the object of providing an opportunity to the accused of making
submissions as envisaged in Section 227 of the Code of Criminal Procedure, 1973 (for short,
'the Code') is to enable the Court to decide whether it is necessary to proceed to conduct the
trial. 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.

6 VC Shukla v. State through CBI 1980 Cri LJ 690, 732

7 1988 CriLJ NOC 2 (Cal)

8 (1996) 9 SCC 766

 7

It was further observed that there is nothing in the Code which shrinks the scope of such
audience to oral arguments and, therefore, the trial court would be within its power to
consider even material which the accused may produce at the stage contemplated in Section
227 of the Code. The Honble Supreme Court in the above case, 9 essayed on the rationale of
Section 227 thus:

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 Sessions Judge
would be within his powers to consider even material which the accused may produce at the
stage contemplated in Section 227 of the Code.

The Honble Apex Court, in the same ruling examined the purpose of Section 239 and
observed:
Similar situation arise 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 Stage, 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 charge.10

2. STRICT COMPLIANCE OF SECTION 226

9 Satish Mehra v. Delhi Admin and Anr, (1996) 9 SCC 766

10 Dr. N. Masheshwara, Law Relating to Criminal Procedure Code, 1 st Ed., 2015, Asia law House
 8

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.

The Honble Supreme Court in Satish Mehras Case,11 essayed on the rationale of Section
226 thus:

Section 226 of the Code obliges the prosecution to describe the charge brought against the
accused and to state by what evidence the guilt of the accused would be proved. The Next
provisions enjoins on the Session Judge to decide whether there is sufficient ground to
proceed against the accused. In so deciding the Judge has to consider (1) the record of the
case and (2) the documents produced therewith. He has then to hear the submissions of the
accused as well as the prosecution on the limited question whether there is sufficient ground
to proceed.

3. SEPARATE CHARGE FOR DISTINCT OFFENCES:

The basic rule relating to charge is that for every distinct offence of which any person is
accused there shall be a separate charge, and every such charge shall be tried separately. 12
The object of this rule is to save the accused from being embarrassed in his defence if distinct
offences are lumped together in one charge, or in separate charges and are tried together. If the
accused is to be tried in one trial upon different charges on different evidence, it is not
unlikely that the Court might get prejudiced against the accused person. The above basic rule
intends to avoid such a situation.

11 (1996) 9 SCC 766

12 Section 218(1)
 9

However, a strict observance of the above rule may lead to multiplicity of trials; therefore,
exceptions in suitable cases have been provided by section 218(1) proviso and 219, 220, 221,
and 223.

A separate charge as required by the basic rules if for every distinct offences and not
necessarily for every or each offence. Two offences are distinct if they are non-identical
and are not in any way interrelated. 13 A distinct offence is distinguished from another offence
by

a) Difference in time and/or place if their occurrence,

b) Victims of crime being different,

c) The acts constituting the offences are covered by different sections.

The exceptions to the basic rule referred to above are:

I. DESIRE OF THE ACCUSED: Where the accused persons, by an application in writing, so
desired and the Magistrate is of opinion that such person is not likely to be prejudiced thereby,
the magistrate may try together all or any number of the charges framed against such person
(Proviso to Section 218(1)). Similarly, where a number of persons are charged with separate
offences, the Magistrate or Court of Session may, if such persons, by an application in
writing, so desire, and if he or it is satisfied that such persons would not be prejudicially
affected thereby, and it is expedient to do so, try all such offences and persons together.
(provisio to Section 223).

The basic rule has been designed for the benefit of the accused persons, and if it worked to
their detriment they should get relief provided the court also considers it appropriate to give
such relief. The exception therefore would help in avoiding multiplicity of criminal
proceedings and thereby save time and money.14

II. THREE OFFENECES OF THE SAME KIND WITHIN YEAR MAY BE CHARGED
TOGETHER: When a person is accused of more offences than one, of the same kind
committed within the space of twelve months from the first to the last of such offences, he

13 SP Sengupta, Code of Criminal Procedure, Vol 2, Professional Book Publishers, 2010

14 Supra Note 13
 10

may be charged with and tried at one trial for any number of them not exceeding three
[Section 219(1)]. Offences are considered to be of the same kind when they are punishable
with the same amount of punishment under the same section of the law. [Section 219(2)].
Further, the offences of theft covered by Sections 379 and 380 shall be deemed to be of the
same kind, and an offence punishable under any Section of law shall be deemed to be an
offence of the same kind as an attempt to commit such an offence when such an attempt is an
offence. [Section 219(2)}.

III. OFFENCES COMMITTED IN THE COURSE OF THE 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. [Section 220 (1)]. For instance, A rescues B, a person in lawful custody, and in
so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged
with and tried at the same time for offences under Sections 225 and 333 IPC.

Here, when offences are committed in the course of the same transactions, it is immaterial
whether the offences are of the same kind or not, or whether their number exceeds three or
whether the period within which they are committed is one year or more.15

What is meant by same transaction has not been defined in the Code, and a precise definition
of this expression would always be difficult. But it is generally thought that where there is
proximity of time or place or unity of purpose and design or continuity of action in respect of
a series of acts, it may be possible to infer that they form part of action in respect of a series of
acts, it may be possible to infer that they form part of the same transaction. It is, however, not
necessary that every one of these elements should co-exist in a transaction to be regarded as
the same. But if several acts committed by a person show a unity of purpose or design that
would be a strong circumstance to indicate that these acts form part of the same transaction.

IV. OFFENCES OF CRIMINAL BREACH OF TRUST OR DISHONEST

MISAPPROPRIATION OF PROPERTY AND THEIR COMPANION OFFENCES OF
FALSFICATION OF ACCOUNTS: When a person charged with one or more offences of
criminal breach of trust or dishonest misappropriation of property as provided in Section

15 Ratanlal & Dhirajlal, The Code of Criminal Procedure, 21st ed., Bharat Law House, 1997
 11

212(2) or in Section 219(1) is accused of committing for the purpose of facilitating or

concealing the commission of that offence or those offences, one or more offences of
falsification of accounts, he may be charged with and tried at one trial for every such offence
[Section 220(2)}.

V. SAME ACT FALLING UNDER DIFFERENT DEFINITIONS OF OFFENCES: If the

acts alleged constitute an offence falling within two or more separate definitions of any law
by which offences are defined or punished, the person accused of them may be charged with
and tried at one trial for each of such offences [Section 220(3)]. For instance, A wrongfully
strikes B with a cane. A may be separately charged with, and tried for, offences under Section
352 and 323 of the IPC at one trial.

VI. ACTS FORMING AN OFFENCE, ALSO CONSTITUTING DIFFERENT OFFENCES

WHEN TAKEN SEPARATELY OR IN GROUPS: If several acts, of which one or more
than one would by itself or themselves constitute an offence, constitute when combined a
different offence, the person accused of them may be charged with and tried at one trial for
the offence constituted by such acts when combined, and for any offence constituted by one or
more of such acts [Section 220(4)]. For instance, A commits robbery on B, and in doing so
voluntarily causes hurt to him. A may be separately charged with and tried at one trial of
offences under Sections 323, 392 and 394 IPC.

VII. WHERE IT IS DOUBTFUL WHAT OFFENCE HAS BEEN COMMITTED: If a single

act or series of acts s of such a nature that it is doubtful which of several offences the facts
which can be proved will constitute, the accused may be charged with having committed all
or any of such offences, and any number of such charges may be tried at once (i.e at one trial),
or he may be charged in the alternative with having committed any one of the said offences.
[Section 221(1)]. If in such a case the accused is charged with one offence, and it appears in
evidence that he committed a different offence for which he might have been charged as
aforesaid under Section 221(1), he may be convicted of the offence which he is shown to have
committed, although he was not charged with it, [Section 221(2)]. The following example will
illustrate the implications of this exception:
 12

A is accused of an act which may amount to theft, or receiving stolen property, or criminal
breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal
breach of trust and cheating or he may be charged with having committed theft, or receiving
stolen property, or criminal breach of trust or cheating and for all these he may be tried at one
trial.

In the above case, if A is only charged with theft and it appears that he committed the offence
of criminal breach of trust, or that of receiving stolen goods, he may be convicted of criminal
breach of trust or receiving stolen property (as the case may be), though he was not charged
with such offence.16 The above exception is applicable in respect of cognate offences such a
theft and criminal breach of trust and that it does not refer to offences of a distinct character
such as murder and theft.

VIII. CERTAIN PERSONS MAY BE CHARGED JOINTLY: the following persons may be
charged and tried together-

a) Persons accused of the same offence committed in the course of the same transaction.
[Section 223(a)]

The words same offence mean an offence arising out of the same act or series of
acts. They imply that the accused persons must have acted in concert or association.
The expression same transaction occurring in this clause and in subsequent clauses of
this exception [Section 223(a), (b)] as well as that occurring in Section 220(1) ought to
be given the same meaning.

b) Persons accused of an offence and persons accused of abetment of or attempt to

commit such offence.

c) Persons accused of more than one offence of the same kind, within the meaning of
Section 219 committed by them jointly within the period of 12 months. [Section
223(c)].

d) Persons accused of different offences committed in the course of the same transaction.
[Section 223(d)].

16 Supra Note 15
 13

The offence of conspiracy and the offences committed by each conspirator in

pursuance of the conspiracy are offences committed in the course of the same
transaction within the meaning of Section 220, and persons accused of such offences
can be tried jointly at one trial.

e) Persons accused of an offence which includes theft, extortion, cheating or criminal

misappropriation, and persons accused of receiving or retaining, or assisting in the
disposal or concealment of property, possession of which is alleged to have been
transferred by any such offence committed by the first named persons, or of abetment
of or attempting to commit any such last named offence. [Section 223(e)].

f) Persons accused of offences under Section 411 and 414 of the IPC, or either of those
Sections in respect of stolen property the possession of which has been transferred by
one offence [Section 221 (f)].

g) Persons accused of any offence under chapter XII of the IPC relating to counterfeit
coin and persons accused of any other offence under the said chapter relating to the
same coin or of abetment of or attempting to commit any such offence. [Section
223(g)].

The provisions of the various clauses are capable of being applied cumulatively. These
clauses need not be treated as mutually exclusive, and it is permissible to combine the
provisions of two or more clauses. The joint trial of several persons partly by applying
another clause, is authorised. It may also be noted that the provisions discussed in para
1 to 3(7) above shall so far as may be, apply to all the clauses in para 3(8) above.
While it is clear sections 211 to 222 have no overriding effect on Section 223 the
courts are not to ignore them but apply such of them as can be applied without
detracting from the provisions of Section 223.

UNION OF INDIA V. PK SAMAL, 1979 SCR (2) 229

FACTS OF THE CASE

The facts of the case lie centre around an alleged conspiracy said to have been entered into
between respondents No. 1 and 2 in order to commit offences under Sections 5(2) and 5(1)(d)
of the Prevention of Corruption Act (hereinafter referred to as the Act) read with Section 120-
 14

B I.P.C. The main charge against the respondents was that between 19-2-1972 to 30-3-1972
the respondent entered into an agreement For the purpose of obtaining pecuniary advantage
for respondent No. 1 P. K. Samal and in pursuance of the said conspiracy the second
respondent Debi Prasad Jena, who was the Land Acquisition officer aided and abetted the
first respondent in getting a huge sum of money for a land acquired by the Government which
in fact belonged to the Government itself and respondent No. 1 was a skew thereof. It is
averred in the chargesheet that respondent No. 1 by abusing his official position concealed
the fact that the land which was the subject matter of acquisition and was situated in Cuttack
Cantonment was really Khasmahal land belonging to the Government and having made it
appear that he was the undisputed owner of the same, got a compensation of Rs. 4,18,642.55.
The charge-sheet contains a number of circumstances from which the inference of the
conspiracy is sought to be drawn by the police.

After the charge-sheet was submitted before the Special Judge, the prosecution ousted him to
frame a charge against the respondents. The Special Judge, Puri after having gone through the
charge-sheet and statements made by the witnesses before the police as also other documents
came to the conclusion that there was no sufficient ground for framing a charge against the
respondents and he accordingly discharged them under Section 227 of the Code of Criminal
Procedure, 1973 (hereinafter called the Code). The Special Judge has given cogent reasons
for passing the order of discharge. The appellant went up to the High Court in revision
against the order of the Special Judge refusing to frame the charge, but the High Court
dismissed the revision petition filed by the appellant and maintained the order of discharge
passed by the Special Judge. Thereafter the appellant moved to Honble Supreme Court by an
application for special leave which was granted to the appellant.

PRINCIPLES REGARDING FRAMING OF CHARGES AS LAID DOWN BY THE

COURT
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.
 15

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 mouth-
piece 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.

DECISIONS RELIED ON BY THE COURT

The scope of section 227 of the Code was considered by a recent decision of this Court in the
case of State of Bihar v. Ramesh Singh,17 where Untwalia, J. speaking for the Court observed
as follows:-
"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 pro poses to adduce
to prove the guilt of the accused even if fully accepted before it is challenged in cross-
examination or rebut ted 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".

17 AIR 1967 SC 740

 16

In the case of K. P. Raghavan and Anr. v. M. H. Abbas and Anr.18 the Court observed as
follows:-
"No doubt a Magistrate enquiring into a case under S. 209, 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 8
commitment of the accused to the Court of Session".

In the case of Almohan Das and ors. v. State of West Bengal19where Shah, J. speaking for the
Court observed as follows:-
"A Magistrate holding an enquiry is not intended to act merely as a recording machine. 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 to discharge the accused: if there is some evidence on which a conviction may
reasonably be based, he must commit the case". In the aforesaid case this Court was
considering the scope and ambit of Section 209 of the Code of 1898.

*****

BIBLIOGRAPHY

Dr. N. Masheshwara, Law Relating to Criminal Procedure Code, 1 st Ed., 2015, Asia law
House
18 AIR 1967 SC 740

19 {1969} 2 SCR 520

 17

JJ Smith Wharton, Whartons Law Lexicon, 15th Ed., Stevens and Sons Ltd, 2010

Ratanlal & Dhirajlal, The Code of Criminal Procedure, 21st ed., Bharat Law House, 1997

RV Kelkars Lectures on Criminal Procedure, 4th ed., Eastern Book Company, 2010

SP Sengupta, Code of Criminal Procedure, Vol 2, Professional Book Publishers, 2010

Sugandha Nayak, India: Framing of charges: An Overview, 2013