Introduction When pursuant to a commitment of the case under Section 209 of the Code, the accused is brought before the Court of Session , Section 226 obliges the public prosecutor to open his case by describing the allegations brought against the accused and stating that by what evidence he proposes to prove his guilt Then the Court has the power to either discharge the accused or to frame charges against himImportance of Section 226 In Satish Mehra V. Delhi Administration (1996) 9 SCC 766, the Apex Court explained ‘the rationale of sections 226-7 Section 226 of the code obliges the prosecution to deseribe the charges against the accused and to state by what evidence the guilt of the accused would be proved The next provision enjoins on the session judge to decide whether there's sufficient ground to proceed against the accusedStatutory Scheme of Discharge “If, upon consideration of the record of the case and the decuments submitted therewith, and after hearing the submissions of the accused and the Prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”‘What the Police Report Contains Section 173 (5) When such report is in respect of a case to which section 170 applies (Police Report) , the police officer shall forward to the Magistrate along with the report La} all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; {b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as Its weltnesses..." (emphasis supplied) Therefore, the material sent to the Court as Police Report contains all documents and witness statements which the Prosecution proposes to rely upon and examineMeaning of ‘the record of the case’ and ‘submissions of the accused! in State of Orissa ws Debendra Nath Padhi AIR 2005 SC 359 (Padhi) , 3Judge Bench of the Supreme Court , held : 1. The term ‘record of the case and documents submitted therewith’ in Section 227 relates to the the documents referred in Section 209. 2. The term “submissions of the accused” cannot mean that am opportunity has to be granted to an accused to file material, 3. That right is granted only at the stage of the trial 4, The “submissions” have to be confined to “record of the case’ i.e. material produced by the police. 5. Recently followed in MLE. Shivalingamurthy V. C8 | (2020) 2 SCC 768.Prosecution Misuses the Process in a self-serving manner In practice, the Prosecution often suppresses evidence which can potentially disprove the case against the accused, at that stage itself But can the Court, on its own, look at material brought forth by the Accused? Or could the Accused invoke the powers of the Court under Section 91 of the CrPC, to bring to its attention, exculpatory documents collected during investigation that have not been made part of the Police Report?Section 91(1) Summons to produce Whenever any Court or any officer in charge document or other of a police station considers that thing production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to Produce it, at the time and place stated in the summons or order...”In sync with the statutory scheme and to reduce delays & work of already overburdened criminal courts, in Padhi , the Supreme Court, held : Ordinarily, the Accused would have no right to seek production of a document under Section 91 of the CrPC, at the stage of framing of charge. Only the record of the case submitted by the police , along with the charge sheet, could be relied upon. Scope of Right of Accused under section 227Departures from Padhi The very limited interpretation of nature of discharge hearings in Padhi clearly deprived the accused of the right to demonstrate the falsity of the Prosecution ease, in the beginning of trial even if 1 , in disregard of, ‘duty of fair disclosure’ and ‘principles of fair Investigation’, suppressed the exeulpatory material. Thus, while interpreting Section 482, a two-Judge Bench of the Supreme Court in Rukmini Narvekar v. Vijaya Satardekar, 14 (2008) SCC 1 struck a somewhat discordant note on this issue Also, in Manu Sharma v. State (NCT of Delhi) (2010) & SCC 1 and V.K. Sasikala v. State ( 2012) 9 SCC 771, indirectly while interpreting Section 207 , the apex court referred to fair disclosure right of the accusedNitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC In “Nitya” the Apex court reconciled with Ine larger bench’s decision in Padhi as under Wy extraerdinary’ circuinstances wher material is withheld by Prosecution. th: material is of sterling quality. and it \ having erucial bearing on framing of charge, can then. be called by the court thes erpretanion seems a better argument than the courts being overburden argument of Padhi to deprive the accused of his duc process nghtsFraming of Charges In case the accused is not discharged , then the basic requirement of fair trial is to give precise Information to the accused as to the accusation against him In the beginning of every trial, the accused is given a clear, unambiguous snd precise information of the nature of accusation that he is called upon to meet in the course of the trial, Itself. In case of warrant cases , the Code requires that the accusations be formulated and reduced to writing with great precision & clarity in the form of charges. V.C. Shukla V. State AIR 1980 SC 1382Section 228 The charge against the accused is required to be framed under Section 228 which reads as under “If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence... he shall frame in writing a charge against the accused”Union of India vs. Prafulla Kumar AIR 1979 SC 366 :Test of ‘prima facie’ Case The Judge 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 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 In exercising his jurisdiction under Section 227 the Judge .uhas 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 soon,In Dipakbhai Jagdishchandra Patel vs State of Gujarat AIR 2019 SC 3363 There is a fine distinction between the language of Sections 227 and 228, + Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. At the stage of framing of a charge, the court is concerned not with proof but with @ strong suspicion that the accused has committed an offence, which, Hf put to trial, could prove him guilty.Recording of Reasons For Framing Charges In Dinesh Tiwari v, State of Uttar Pradesh(2014) 13 SCC 137, aher referring to Amit Kapoor Case 2012, the Supreme Court held that far framing charge under Section 228 of the Code, the judge is not required to record detailed reasons as to why such charge is framed Ad judge bench of Supreme Court has ralterated the same recently in Bhawna Bai v. Ghanshyam AIR 20205C 554 while following Kanti Bhadra Shah vs State Of West Bengal Supreme Court on 5 January, 2000, where SC felt that recording of reasons for framing chares is likely to increase the burden of the courts RS Mishra vs State of Orissa, 2011 Supreme Court has desired that the “consideration® referred In Section 227 and 226 of the CrPC must be vellected in the order framing chargesRecording of Reasons For Framing Charges The Supreme Court has slowly recognised the rights of accused at start of trial, to the extent that trial courts now normally do give reasons, while framing of charges Thus, Bhawna ms to be a retrograde step , as it has made the remedy of revision under Section 397 (and even Section 482) of the CrPC against the order framing charges otiose, as there would never be any illegality or perversity apparent in the routine order stating that “there is sufficient material to proceed against the accused.”WHAT IS CHARGE In all trials under the Code, the accused is informed of the accusation in the beginning itself In warrant cases, the Code requires that the accusations are to be formulated and reduced to writing with great precision and clarity, as charge The Code however does not define charge, but section 2(b) of the Code says that “Charge includes any head of charge when the charge contains more heads than one” A charge is a written notice of the precise and specific accusation against the accused person which he is required to meet.LEGAL ESSENTIALS OF A VALID CHARGE SECTION 211 Every charge under this Code shall stat the offence with which the accused tes the vflenice jive itLEGAL ESSENTIALS OF A VALID CHARGE 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((r/w Section 236 & 298 & section 75 IPC)FACTUAL CONTENTS OF CHARGE Section 212 r/w Section 213 Section 212 provides that the charge must contain as much factual particulars such as time and place as well as the person or thing against whom the offence is alleged to have been committed, as are reasonably sufficient to give to the accused notice of the matter. Sometimes evens manner _— of commission of offence may be mentionedEXCEPTION SECTION 212(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or movable property in respect of which the offence is alleged to have been committed, the dates between which the offence is alleged to have been committed, without specifying particular items or exact datesRANCHHOR Vz STATE OF MADHYA PRADESH (1982) 1 SCC 436 The Apex court observed that Sub-section (2) of Section 222 (mow Sub-section (2) of Section 212 ) is_an exception to meet a certain contingency and is not the normal rule with respect to framing of a charge in cases of criminal breach of trust. It is only when it may not be possible to specify exactly particular items or the exact date on which the individual items were misappropriated, that the court is authorised to lump up the various items with respect to which criminal breach of trust was committed and to mention the total amount misappropriated within a year in the charge.PREVIOUS CONVICT SECTION 75 IPC A person convicted by a Court in India, For an offence punishable under Chapter XII or Chapter XVII of IPC i. With imprisonment of either description for a term of three years or upwards, . Again found guilty of any offence punishable under cither of those Chapters with like imprisonment for the like term, shall for every such subsequent offence be sentenced to imprisonment for life ( different punishment) or to imprisonment for a term which may extend to ten years.(enhanced punishment)CONCLUSION * The first of the minimum guarantees of a fair trial is that the accused must be informed ‘promptly and effectively’ of the charge brought against him. * The charge has to be a written and formal prima Sfacie accusation of the offence, based on the record of the case placed before the court. * It must provide to the accused a clear idea of the ‘nature and cause’ of allegations against him, * It must contain in ‘concise and unmistakable language’ the ‘sufficient legal and factual detail’ of the alleged offence(s). * The accused must not be left to decipher the allegations by placing sections of the indictment together, rather he is to be informed of what challenges he has to face.Contents of Charge For every distinct \\ i ee i offence there ’ Each Cha ue ee Banwarilal Jhunjhun V. Union of India AIR 1963 SC 1620‘TWO EXCEPTIONS TO BASIC RULE Joinder of ee eer 4 part of Same |f Cognate Offences cues Sat eed elite $.219 S. 220 $.221PROVISIONS REGARDING JOINDER OF CHARGES ARE NOT COMPELLING IN NATURE * K. Satwant Singh v. State of Punjab AIR 1960 SC 266. + V.N. Kamdar V. Municipal Corporation of Delhi_AIR 1973 SC 2246 * The formal rule under Section 218 is to try each offence separately, when the offence committed is distinct and separate. * Sections 219 , 220 and 221 lay down different and distinct exceptions to this General Rule. However, these are enabling provisions also indicate that joint trial is an exception. * Courts should use these provisions keeping jaupipgabeeggrC a. To administer justice fairly b. To save their precious time and ¢. To facilitate the speedy trial : a hallmark created by Articles 39A, 21 and 14 of Constitution of India.GENERAL EXCEPTIONS TO BASIC RULE S$. 221 When it is S$. 220 (4) doubtful S. 220 (3) | Acts forming | = of the { an offence, | offences, the Committed. nasame eh also form’ | eecuved may in Course of Different. a different soaleltied committed, within 12 Same Definitions | offence when charge could months Transaction of Offence be framed Y OF \ for any, some in @ group or all ofTHREE OFFENCES OF SAME KIND COMMITTED WITHIN 12 MONTHS Section 219 Section 219 (2) : Offences of Same Kind secences tor which the prescribed punishment, either under the same ection of iC or any apetial or lca! law's the same Proviso to S. 219: Deemed Offences of Same Kind |. Offences punishable under section 379 & 380 of IPC ii, Any offence under IPC or any special / local law and attempt to such offence, when such an attempt is an offence. Section 219 (1): Joinder Of Charges * Al the most, three offences ofthe same kind. committed within 2 span of twelve months could be jointly charged and tried. Object of Section 219 + To prevent miscarriage of justiceOFFENCES FORMING PART OF THE SAME TRANSACTION SECTION 220(1) * lf, 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. The term "same transaction" from its very nature is incapable of an exact definition.State of Andhara Pradesh M7 C. Ganeshwara Rao AIR 1963 SC 1850 * “Where there Is proximity of time or place or unity of purpose or continuity 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 not necessary that every one of these elements should co-exist. * If several acts committed by a person show a unity of Purpose that would be a strong circumstance to indicate that those acts form part of the same transaction.” * Following Rao, in Balbir v. State of Haryana, 2000 (1) SCC 285, Court observed: + For several offences to be part of the same transaction, the test is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, SO as to result in one continuous action. “.COGNATE OFFENCES SECTION vor ae * State of West Bengal V. Laisal Haque AIR 1989 SC 129 * S.M. Multtani V. State of Karnataka (2001) 2 SCC 577 * Rafiq Ahmed V. State of U.P (2011) 8 SCC 300 * Cognate Offences : i. Where the main ingredients of two offences are common or Alike or similar offences can be termed as ‘cognate offences.’ * Section 221 applies to a case only when from the evidence led by the prosecution, it is doubtful which of several offences the facts which can be proved will constitute. * There must not be any doubt as to the facts. * The doubt must be as to the inference to be deduced from these facts. * The accused could be charged of having committed all, some or any of such offences.