UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

(CHANDIGARH)

THE CODE OF CRIMINAL

PROCEDURE 1973

PRINCIPLES OF FRAMING OF
CHARGES

UOI VS PRAFULLA KUMAR

SAMAL1979
[Type the document title]

SUBMITTED TO: SUBMITTED

BY:

Dr. AMRIT KAUR renuka

roll no.218/15
semester- 6

Section- d

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INDEX

ACKNOWLEDGMENT.......................................................................................................II

TABLE OF CASES.............................................................................................................III

INTRODUCTION.................................................................................................................1

MEANING OF CHARGE......................................................................................................2

WHAT CHARGE CONTAINS AND ALTERATION OF CHARGE..............................................3

JOINDER OF CHARGES......................................................................................................4

CONVICTION OF AN OFFENCE NOT CHARGED WHEN SUCH OFFENCE IS INCLUDED IN

OFFENCE CHARGED...........................................................................................................9

WITHDRAWAL OF REMAINING CHARGES ON CONVICTION ON ONE OF SEVERAL

CHARGES............................................................................................................................10

FRAMING OF CHARGE.......................................................................................................10

UOI VS PRAFULLA KUMAR SAMAL.............................................................................13

BIBLIOGRAPHY.................................................................................................................IV

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ACKNOWLEDGEMENT

I would like to thank our Honourable teacher Dr. Amrit kaur, for
without her valuable guidance, constant encouragement and detailed
approach would not have made it possible for me to make a proper
research for the topic- Principles of Framing of Charges. Her précised
examples, detailed descriptions and enthusiastic approach made my
efforts to flourish in a right direction.

The work contained herein is an amalgamation of the remarkable

work of various authors and I am thankful to them for their
publications that have helped me prepare this research paper to the
best of my abilities.

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TABLE OF CASES

1) Aftab Ahmad Khan v. State of Hyderabad AIR 1954 SC 436

2) Amar Singh v. State AIR 1954 Punj 106
3) B.N. Srikantiah v. State of Mysore
4) Babulal v. Emperor AIR 1938 PC 130
5) Banamali Tripathy v. Emperor AIR 1943 Pat 212
6) Bhimbadhar Pradhan v. State of Orissa AIR 1956 SC 469
7) Birichh Bhuian v. State of Bihar AIR 1963 SC 1120
8) Chandrama Prasaa Chaman (1951) 1 Cal 539
9) Chittaranjan Das v. State of W.B. AIR 1963 SC 1696
10) Emperor v. Dhaneshram AIR 1927 Nag 223
11) G.N.Kulkarni v. State 1973 Cri LJ 551
12) Jaswantrai Manilal Akhaney v. State of Bombay AIR 1956 SC 575
13) K Satwant Singh v. State of Punjab AIR 1960 SC 226
14) Kantilal v. State of Maharashtra AIR 1970 SC 359
15) Kantilal v. State of Maharashtra AIR 1970 SC 359
16) Krishnan v. The State AIR 1958 Ker 94
17) Krishnan v. The State AIR 1958 LJ 516
18) M.R. Menon v. Kerala State 1973 Cr. LJ 394
19) Manna Lal v. State 1967 Cr LJ 1272
20) Mathura Thakur (1901) 6 CWN 72
21) Moosa Abdul Rahiman v. State of Kerala 1982 Cr. LJ 1384 (Ker)
22) Nohar Chand v. State of Punjab 1984 Cr. LJ 886 (P&H)
23) Ramalinga Odayar v. Emperor AIR 1929 Mad 200
24) Ravinder Pal Singh v. State of Punjab 2004 Cri LJ 1322 (P&H)
25) Shyam Sunder Ker v. State 1960 Cr LJ 310
26) Sri Ram Varma v. State AIR 1956 All 466
27) Sukha v. State of Rajasthan AIR 1956 SC 513
28) Suraj Pal v. State of U.P. AIR 1955 SC 419
29) Trilockchand v. Rex AIR 1949 All 187
30) Union of India v. Prafulla Kumar Samal (2002) 2 SCC 135
31) Wazir Singh v. Emperor AIR 1942 Oudh 89

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I. INTRODUCTION

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

Provisions relating to charge are aimed at giving full notice to the

accused about the offence of which he is charged. It gives the accused
accurate and precise information about the accusations made against
him.1 Every charge under this Code shall state the offence with which
the accused is charged.

In the State v. Ajit Kumar Saha2 the material on record did not show a
prima facie case but the charges were framed by the Magistrate. Since
there was no application of mind by the Magistrate the order framing
charges was set aside by the High Court. It is a basic principle of law
that before summoning a person to face a charge and more particularly
when a charge sheet is actually framed, the court concerned must be
equipped with at least prima facie material to show that the person who
is sought to be charged is guilty of an offence alleged against him.3

In State of Karnataka v. Eshwaraiah4 two accused were separately

charged for committing murder in furtherance of common intention. In
the charge framed against one accused the name of the other was not
mentioned but charges were read over to each of the accused in
presence of the other accused and the plea has been recorded in the
presence of each of the accused and their advocates. It was held that
there was no scope for misunderstanding part played by each accused
1
B.N. Srikantiah v. State of Mysore
2
1988 Cr. L.J. (NOC) 2 Cal
3
Nohar Chand v. State of Punjab 1984 Cr. LJ 886 (P&H)
4
1987 Cr. LJ 1658 (Karn)

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and therefore the defect in framing of the charge was a mere

irregularity.

II. MEANING OF CHARGE

Charge is an accusation made against a person in respect of an offence

alleged to have been committed by him.5 A charge is the first notice to
the prisoner of the matter whereof he is accused and which must
convey to him with sufficient clearness and certainty what the
prosecution intends to prove against him and of which he would have to
clear himself.6 The basic requirement is that the charge must be so
framed as to give the accused person as fairly reasonable idea of the
case which he has to face and the validity of the charge must be
determined by the application of the test viz had the accused a
reasonable sufficient notice of the matter with which he was charged.7

Where an accused person is charged, along with others under Section

307/149 and 302/149 of the Indian Penal Code but the others are
acquitted and the accused alone is convicted under Section 302 and
307, the absence of specific charges against the accused under Section
302 and 307, is a very serious lacuna in the proceedings and it
materially prejudices the accused and his conviction for those cannot be
maintained.8

In Musa Khan v. State of Maharashtra the Additional Sessions Judge

framed charges against the accused persons under Section 149 and 395
of the Penal Code. Since offence under Section 395 of the Penal Code
comes into existence only when act of dacoity is committed by five or
more persons jointly the questions of applying Section 149 was held to

5
Birichh Bhuian v. State of Bihar AIR 1963 SC 1120
6
Manna Lal v. State 1967 Cr LJ 1272; Shyam Sunder Ker v. State 1960 Cr LJ 310; Krishnan v. The State AIR
1958 LJ 516
7
Chittranjandas v. State of W.B. AIR 1963 SC 1696
8
Suraj Pal v. State of U.P. AIR 1955 SC 419

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be mere surplusage. That is where a charge under Section 395 of the

Penal Code is framed no charge under Section 149 for the same offence
need be framed.

III. WHAT CHARGE CONTAINS AND ALTERATION OF

CHARGE

The charge may not specify particular items or exact dates. The charge
framed in the above manner shall be deemed to be a charge of one
offence within the meaning of Section 219 provided that the time
included between the first and last of such dates shall not exceed one
year. Where it is impossible to specify the particular date on which the
offence was committed, it will be sufficient to state two dates between
which the offence was committed.9 It is permissible to state in a charge
under Section 212(1) that the particular offence was committed on or
about certain date.10

Sub-section (2) was primarily enacted so that persons who showed a

deficiency in the accounts with which they were entrusted could be
convicted of criminal misappropriation even when it could not be
shown that they had misappropriated any specified sum.11

The object of Section 213 is twofold: first to ensure that the accused has
sufficient notice of the matter with which he is charged as otherwise he
will be seriously prejudiced in his defence,12 and secondly to enable the
court to keep in view the real points in issue and to confine the
evidence to such points.

Omission in a charge cannot be regarded as material unless in terms of

Section 215 it is shown by the accused that he has in fact been misled
by such omissions or that there has been a failure of justice as a result
of such omission.13 Where the accused is not misled defect in the charge

9
Banamali Tripathy v. Emperor AIR 1943 Pat 212
10
Chittaranjan Das v. State of W.B. AIR 1963 SC 1696
11
Wazir Singh v. Emperor AIR 1942 Oudh 89
12
Krishnan v. The State AIR 1958 Ker 94
13
Jaswantrai Manilal Akhaney v. State of Bombay AIR 1956 SC 575

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is not material.14 The irregularity of charging together different

offences instead of charging them separately are curable under this
section and Section 465 if the accused is not prejudiced. 15 In
considering the question whether the accused has been prejudiced in his
defence by the defect in the charge regard must be had to the fact that
the objection to the framing of the charge was not raised till a late stage
in the proceedings.16

The Code gives ample power to the courts to alter or amend a charge
provided that the accused has not to face for a new offence or is not
prejudiced either by keeping him in the dark about that charge or in not
giving a full opportunity of meeting it and putting forward any defence
open to him, on the charge finally preferred against him.17 Any addition
or alteration of a charge will not be illegal only when it does not
prejudice the accused.18

Under Section 217 the accused has a right to recall prosecution

witnesses alter the alteration of the charge, even if such alteration does
not affect his defence.19Such right may be denied by the Court if it is of
the opinion that the purpose is only delay or vexation or defeating the
ends of justice. However the Courts do not owe a legal duty to ask the
accused, after the charge has been altered to state whether he wishes to
have any of the witnesses recalled or re-examined and whether the
wishes to call any witnesses.20 The Code gives ample power to the trial
as well as Appellate Courts to alter or amend a charge provided the
accused has not to face a charge for a new offence or is not prejudiced
either by keeping him in the dark or in not giving a full opportunity of
meeting it and putting forward any defence open to him on the charge
finally preferred against him.21

14
Bhimbadhar Pradhan v. State of Orissa AIR 1956 SC 469
15
Babulal v. Emperor AIR 1938 PC 130
16
Sukha v. State of Rajasthan AIR 1956 SC 513
17
Kantilal v. State of Maharashtra AIR 1970 SC 359
18
Mathura Thakur (1901) 6 CWN 72
19
Ramalinga Odayar v. Emperor AIR 1929 Mad 200
20
Moosa Abdul Rahiman v. State of Kerala 1982 Cr. LJ 1384 (Ker)
21
Kantilal v. State of Maharashtra AIR 1970 SC 359

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IV. JOINDER OF CHARGES

The object of the rule embodied in Section 218 is to ensure a fair trial
and to see that the accused is not bewildered by having been asked to
defend several unconnected charges or distinct offences lumped
together in one charge or in separate charges.22 There is no exception to
the rule that there should be separate charge for each offence. The first
part of this section relates to framing of charges. Section 218 is
mandatory and for every distinct offence, there should be a separate
charge excepting in those cases which are specified in the code. Where
two dacoities are committed in two different houses on the same night a
single rolled up charge embracing both dacoities should not be
framed.23

According to sub-section (2) the operation of Sections 219, 220, 221

and 223 shall not be affected by the above said basic rule. In other
words these sections are exceptions to the basic rules contained in
Section 218(1). These exceptions are based on some rational principle
or other. In Section 219 which permits a joint trial for offences of the
same kind not exceeding three in number and committed within a
period of twelve months, the principle is the avoidance of a multiplicity
of proceedings.24

(a)Exception 1 to the basic rule: Section 219 makes a provision for one
trial of three offences of the same kind committed by one accused
within a period of 12 months whether committed in respect of the
same person or not. For the application of this section, it is necessary
that:
a) The offences must be of the same kind
b) That they must be committed within the space of 12 months
from the first to last
c) That the number of them should not exceed three.25

22
Aftab Ahmad Khan v. State of Hyderabad AIR 1954 SC 436
23
Chandrama Prasaa Chaman (1951) 1 Cal 539
24
Ravinder Pal Singh v. State of Punjab 2004 Cri LJ 1322 (P&H)
25
M.R. Menon v. Kerala State 1973 Cr. LJ 394

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There are conflicting judicial opinions as to whether Sections 219-

221 and 223 are mutually exclusive or whether they can be used to
get a cumulative effect. In other words, the question is whether it is
open to the prosecution to take help partly of one section and partly
of another section in order to justify the joinder of charges or
whether the intention of law is that sections should be mutually
exclusive and only one of the them can be availed of at one time.
The Allahabad High Court has pointed out in this connection that
each of the four Sections 219, 220, 221 and 223 mentioned in
Section 218 can individually be relied upon as justifying a joinder of
charges in respect of any trial. Use cannot be made of two or more of
these sections together to justify a joinder.26 In other words it is not
open to the prosecution to take help partly of one section and partly
of another in order to justify the joinder of charges. 27 Further it has
been observed that the normal rule as embodied in Section 219 or
220 or 221 or 223. Each section is to be an exception individually. It
is not the intention of the Legislature to group together different
sections in order to constitute an exception.28

(b) Exception 2 to the basic rule: Offences committed in course of

same transaction can be charged at one trial. Under Section 220(1)
it is stated that 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
every such offence.
A transaction is defined by Sir James Stephen “as a group of facts
so connected together as to be referred to by a single name, as
crime, a contract, wrong or any other subject of inquiry which may
be in issue.” The question whether a series of facts are so
connected together as to form the same transaction is a question of
fact in each case depending on proximity of time and place
continuity of action and community of purpose or design. In order

26
Sri Ram Varma v. State AIR 1956 All 466
27
G.N.Kulkarni v. State 1973 Cri LJ 551
28
Emperor v. Dhaneshram AIR 1927 Nag 223

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to determine whether a group of facts constitute one, it is necessary

to ascertain whether they are so connected together as to constitute
a whole which can properly be described as a transaction. The real
and substantial test by same transaction depends on whether they
are so related to one another in point of purpose or as cause and
effect or as principal and subsidiary acts as to constitute one
continuous action.

(c) Exception 3 to the basic rule: Offences of criminal breach of trust

or dishonest misappropriation of property and their companion
offences of falsification of accounts to be tried at one trial. When a
person charged with one or more offences of criminal breach of
trust or dishonest misappropriation of property as provided in
Section 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)

Many a time the offence of criminal breach of trust or dishonest

misappropriation of property is accompanied with the offence of
falsification of accounts the latter offence being committed for the
purpose of facilitating or concealing the commission of the former
offence. Section 220(2) enables to have these offences tried at one
trial.

(d) Exception 4 to the basic rule: Same act falling under different
definitions of offences such offences may be tried at one trial. 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 anyone or more of
such acts—Section 220(3). This section may be conveniently read
with Section 71 of the IPC which inter alia provides that ‘where

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anything is an offence falling within two or more separate

definitions of any law in force for the time being by which offences
are defined or punished, the offender shall not be punished with a
more severe punishment than the court which tries him could
award for any one of such offences.’ In such a case however the
accused can be charged with and tried in one trial for all such
offences.

(e) Exception 5 to basic rule: Acts forming an offence also constituting

different offences when taken separately or in groups—all such
offences to be tried at one trial—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 fro any offence
constituted by any one or more of such acts—Section 220(4).
Section 71 of IPC provides that where several acts, of which one or
more than one would by itself or themselves constitute an offence,
constitute, when combined, a different offence, the offender shall
not be punished with a more severe punishment than the court
which tries him could award for any one of such offences.
However according to Section 220(4) the accused person can be
charged with and tried at one trial for all such offences. Section
220(5) provides that nothing contained in Section 220 shall affect
Section 71 of the IPC.

(f) Exception 6 to the basic rule: Where it is doubtful what offence has
been committed. According to sub-section (1) of Section 221
several offences under this section need not necessarily be offences
of same kind but may be offences of different kinds. The essential
thing is that all of such offences must arise out of a single act or set
of acts. The court under this section may frame cumulative charges
or charges in the alternative. But a charge alternatively of two
different offences under different section of IPC based on same
facts is not permissible under this section. For example a person

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charged with rape on a married woman cannot be alternatively

charged with adultery with same woman and on the same facts as a
complaint for adultery should be actually instituted by the husband.
Sub-section (2) provides that a man may be convicted of an offence
although there has been no charge in respect of it, if the evidence is
such as is sufficient to establish that offence. However, offences
charged and offences shown by evidence to have been committed
must be cognate offences, such as criminal breach of trust and
attempt to cheat. According to some High Courts the actual
commission of an offence and its abetments are also cognate
offences.

(g) Exception 7 to the basic rule: Certain provisions may be charged

jointly. Section 223 applies only to trials and not to inquiries. A
joint trial of several persons under this section is not vitiated
merely by the facts that at the end of the trial the facts found
happen to be different from those on the basis of which the charges
were originally framed.29 It was held in A.R. Antulay v. R.S.
Nayak30 that an accused person cannot assert any right to a joint
trial with his co-accused. It is the right of the prosecution to decide
whom to prosecute. In Ayodhya Singh v. State of Rajasthan,31
Ayodhya Singh and Hira Singh were charged jointly for the
offences under Section 457 read with Section 75, IPC and under
Section 380 read with Section 75 IPC. It was considered that there
had been mis-joinder of charges. It was held by the Supreme Court
that the accused jointly committed the offences with which they
were charged and that those offences were committed in the course
of same transaction. The two accused could consequently be
charged and tried together.
Clause (a) states that the words “same offence” means an offence
arising out of the same act or series of acts.32 They imply that the
accused person must have acted in concert or association.
29
Trilockchand v. Rex AIR 1949 All 187
30
1988 Cr. LJ 1661 SC
31
AIR 1972 SC 2501
32
Amar Singh v. State AIR 1954 Punj 106

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Clause (b) states that the joinder of three charges under Section 420
of the IPC against one accused with three charges of abetment of
those offences against another accused is legally permissible and
proper.33
Clause (c) states the words “within the meaning of Section 219”
indicate that, what was meant by the words “offence of the same
kind” in clause (c) of Section 223 is the same thing as was meant
by the identical expression used in Section 219(1) defined in
Section 219(2) and nothing more. If it was intention of the
legislature to provide that the number of offences for which several
accused persons could be tried under clause (c) of Section 223
should be limited to three as provided in Section 219(1), the
legislature would have expressed the same in so many words.
Clause (d) states that 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 by one trial. The common concert and
agreement which constitute the conspiracy serve to unify the acts
done under it. Identity of time is not essential in determining
whether certain events form the same transaction within the
meaning of Section 223. It is the continuity of action and the
sameness of purpose that determine whether the events constitute
the same transaction.
Clause (e) states an offence which includes theft means an offence
of which theft is an essential ingredient.
Clause (f) states that the expression “possession of which has been
transferred by one offence” refers to the original theft of the
property stolen on one occasion. Therefore where different
properties stolen at one theft were received by several persons at
different times, all or any of such receivers can be tried jointly for
their offences of receiving stolen properties. However persons
found in possession of such stolen properties secured by different
thefts cannot be tried jointly under this clause.

33
K Satwant Singh v. State of Punjab AIR 1960 SC 226

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Power of Court to order separate trial in cases where joinder of charges

or of offenders is permissible

The basic rule regarding charge is that for every distinct offence there
shall be a separate charge and for every such charge there shall be a
separate trial. The only exception recognised is contained in Sections
219, 220, 221 and 223. Therefore separate trial is the rule and the joint
trial is an exception. The sections containing the exception are only
enabling provisions. A court has got the discretion to order a separate
trial even though the case is covered by one of the exceptions enabling
a joint trial. A joint trial of a very large number of charges is very much
to be deprecated even though it is not prohibited by law. A separate trial
is always desirable whenever there is risk of prejudice to the accused in
a joint trial.

V. CONVICTION OF AN OFFENCE NOT CHARGED WHEN

SUCH OFFENCE IS INCLUDED IN OFFENCE CHARGED

Section 222 contemplates a conviction of minor offence included in the

offence charged in either of the two cases:

(a) Where the offence charged consists of several particulars a

combination of some only of which constitutes a complete
minor offence and such combination is proved but the
remaining particulars are not proved.

(b) Where facts are proved which reduce the offence charged to
a minor offence. But there can be no conviction for major
offence on a charge of minor one. This section is an
exception to the rule that a person cannot be convicted of an
offence with which he is not charged.

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VI. WITHDRAWAL OF REMAINING CHARGES ON

CONVICTION ON ONE OF SEVERAL CHARGES

When a charge containing more heads than one is framed and the
conviction has been had on one or more of them the complainant or the
person conducting the prosecution may with the consent of the Court
withdraw the remaining charge or charges or the Court may of its own
accord stay enquiry or trial of such charge. The withdrawal of charge or
the stay of enquiry or trial is possible only on the conviction being on
any other charge. Section 224 allows withdrawal or stay of charges only
when conviction has been passed on one or more of the charges. When
before the beginning of the trial the public prosecutor withdraws the
charge of the offence under one head the section has no application.

VII. FRAMING OF CHARGE

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.34 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 in Sajjan Kumar Vs. Central Bureau35 of

Investigation has examined the legal provisions and authorities on
framing of charge in criminal prosecutions. While reiterating the legal
principles evolved by the courts over the years, the Hon'ble Supreme
Court held as under:

34
1996 (3) Crime 85 SC
35
S.L.P. (Crl.) No. 6374 of 2010

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In Dilawar Balu Kurane,36 the principles enunciated in Prafulla Kumar

Samal have been reiterated and it was held:

"12. Now the next question is whether a prima facie case has been
made out against the appellant. In exercising powers under Section 227
of the Code of Criminal Procedure, the settled position of law is that the
Judge while considering the question of framing the charges under the
said section 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 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; by and large 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 justified to discharge the accused,
and in exercising jurisdiction under Section 227 of the Code of
Criminal Procedure, the 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 but should not make a roving
enquiry into the pros and cons of the matter and weigh the evidence as
if he was conducting a trial (see Union of India v. Prafulla Kumar
Samal).

16. It is clear that 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 only for the purpose of deciding prima facie whether the
Court should proceed with the trial or not. If the evidence which the
prosecution proposes to adduce prove the guilt of the accused even if
fully accepted before it is challenged in cross-examination or rebutted
36
(2002) 2 SCC 135

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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. A Magistrate enquiring into a case under
Section 209 of the 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 commitment
of the accused to the Court of Session. 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 of the Magistrate to discharge
the accused, on the other hand, if there is some evidence on which the
conviction may reasonably be based, he must commit the case. It is also
clear that in exercising jurisdiction under Section 227 of Cr.P.C., the
Magistrate should not make a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a trial.

17. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. On

consideration of the authorities about the scope of Section 227 and 228
of the Code, the following principles emerge:-
(i) The Judge while considering the question of framing the charges
under Section 227 of the Cr.P.C. 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

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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 discloses 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.

Union of India vs. Prafulla Kumar Samal AIR 1979 3

SCC 4
Facts of the case:

The facts of the case lie within a narrow compass and centre round an
alleged conspiracy said to have been entered into between respondents
No. 1 and 2 in order to commit offences under Prevention of Corruption
Act.The second respondent, a Land Acquisition officer, allegedly, by

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Principles of Framing of Charges Page XIX

abusing his official position, concealed the fact that the land which was
the subject matter of acquisition was really Khasmahal land belonging
to the Government and having made it appear that the first respondent
was the undisputed owner of the same, aided and abetted him in getting
a huge sum of money as compensation. 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 this Court by an application for
special leave which having been granted to the appellant to be heard.

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Issues Involved and Charges:

Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act
Section 120-B of The Indian Penal Code
Section 9(1) and 10(1) of the Land Acquisition Act
Section 209 of CRPC 1898 and 227 of The Code of Criminal Procedure
1973
Contentions by the Respondent Party:
Respondent No. 1 a high officer of the Government and was a lessee of
the Government, a fact which he never concealed and if he was able to
get a good customer for purchasing his land or acquiring the same,
there was no harm In writing to the concerned authority to fix the
proper valuation and take the land. There, was no question of any
concealment or malpractice committed by respondent No. 1.

Judgement Passed:

The bench was in complete agreement with the view taken by the High
Court that there was no sufficient ground for trying the accused in the
instant case. Moreover, this Court could be most reluctant to interfere
with concurrent findings of the two courts in the absence of any special
circumstances. For the reasons given above, the judgement of the High
Court was affirmed and the appeal was dismissed.

However, In Union of India v. Prafulla Kumar Samal37, the scope of

Section 227 of the Cr.P.C. was considered. After adverting to various
decisions, this Court has enumerated 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.

37
1979 AIR 366

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Principles of Framing of Charges Page XXI

(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 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 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."

~Code of Criminal Procedure~

Principles of Framing of Charges Page XXII

BIBLIOGRAPHY

Books

 Kelkar, R.V., Criminal Procedure Code, 5th edition Eastern

Book Company, Lucknow, , (2008)

 Misra, S.N., The Code of Criminal Procedure, 1973 with

Probation of Offenders Act & Juvenile Justice Act, 17th ed,
Central Law Publications (2011)

 Ratanlal & Dhirajlal, Code of Criminal Procedure, 17th

edition, Lexis Nexis Butterworths Wadhwa, Nagpur (2004)

 Sarkar’s, The Code of Criminal Procedure, Dwivedi Law

Agency Allahabad, Reprint (2007)

Articles

 Chitnis, S.R., “Framing of Charge in Criminal

Cases”, Eastern Book Company (2002)

 Jain, Tarun, “Framing of ‘charge’ in criminal trial: The law

revisited”, Law in Perspective (2010)

 Sathasivam, Justice P., “Framing of Charge: Principles and

Law”, The Legal Blog, (2011)

Websites

 http://www.ebc-india.com/lawyer/articles/2002v2a3.htm

 http://legalperspectives.blogspot.in/2010/10/framing-of-
charge-in-criminal-trial-law.html

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 http://www.legalblog.in/2011/08/framing-of-charge-
principles-and-law.html

~Code of Criminal Procedure~