PRINCIPLES OF FRAMING OF CHARGES

(Project towards the fulfillment of the Mid Term in the subject of Code of Criminal
Procedure)

NATIONAL LAW UNIVERSITY, JODHPUR

8th OCTOBER, 2015

SUBMITTED TO:
Mr. Souvik Chatterjee

SUBMITTED BY:
Krati Chouhan
Section A, 1061- V Semester
B.B.A.LLB (Hons.)

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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............................................................................................................................9

FRAMING OF CHARGE.......................................................................................................10
BIBLIOGRAPHY.................................................................................................................IV

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ACKNOWLEDGMENT
I would like to thank our Honorable teacher Mr. Souvik Chatterjee for without his 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. His prcised
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.
-Krati Chouhan

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TABLE OF CASES
Aftab Ahmad Khan v. State of Hyderabad AIR 1954 SC 436
Amar Singh v. State AIR 1954 Punj 106
B.N. Srikantiah v. State of Mysore
Babulal v. Emperor AIR 1938 PC 130
Banamali Tripathy v. Emperor AIR 1943 Pat 212
Bhimbadhar Pradhan v. State of Orissa AIR 1956 SC 469
Birichh Bhuian v. State of Bihar AIR 1963 SC 1120
Chandrama Prasaa Chaman (1951) 1 Cal 539
Chittaranjan Das v. State of W.B. AIR 1963 SC 1696
Emperor v. Dhaneshram AIR 1927 Nag 223
G.N.Kulkarni v. State 1973 Cri LJ 551
Jaswantrai Manilal Akhaney v. State of Bombay AIR 1956 SC 575
K Satwant Singh v. State of Punjab AIR 1960 SC 226
Kantilal v. State of Maharashtra AIR 1970 SC 359
Kantilal v. State of Maharashtra AIR 1970 SC 359
Krishnan v. The State AIR 1958 Ker 94
Krishnan v. The State AIR 1958 LJ 516
M.R. Menon v. Kerala State 1973 Cr. LJ 394
Manna Lal v. State 1967 Cr LJ 1272
Mathura Thakur (1901) 6 CWN 72
Moosa Abdul Rahiman v. State of Kerala 1982 Cr. LJ 1384 (Ker)
Nohar Chand v. State of Punjab 1984 Cr. LJ 886 (P&H)
Ramalinga Odayar v. Emperor AIR 1929 Mad 200
Ravinder Pal Singh v. State of Punjab 2004 Cri LJ 1322 (P&H)
Shyam Sunder Ker v. State 1960 Cr LJ 310
Sri Ram Varma v. State AIR 1956 All 466
Sukha v. State of Rajasthan AIR 1956 SC 513
Suraj Pal v. State of U.P. AIR 1955 SC 419
Trilockchand v. Rex AIR 1949 All 187
Union of India v. Prafulla Kumar Samal (2002) 2 SCC 135
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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
1

B.N. Srikantiah v. State of Mysore

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)
2

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scope for misunderstanding part played by each accused 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
be mere surplusage. That is where a charge under Section 395 of the
5

Birichh Bhuian v. State of Bihar AIR 1963 SC 1120

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
6

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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 is
not material.14 The irregularity of charging together different offences
instead of charging them separately are curable under this section and
9

Banamali Tripathy v. Emperor AIR 1943 Pat 212

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
14
Bhimbadhar Pradhan v. State of Orissa AIR 1956 SC 469
10

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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
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
15

Babulal v. Emperor AIR 1938 PC 130

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
16

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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:
The offences must be of the same kind
That they must be committed within the space of 12 months from the
first to last
That the number of them should not exceed three.25
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
22

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

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
23

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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 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.

26

Sri Ram Varma v. State AIR 1956 All 466

G.N.Kulkarni v. State 1973 Cri LJ 551
28
Emperor v. Dhaneshram AIR 1927 Nag 223
27

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(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 offenceSection
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
actsSection 220(3). This section may be conveniently read with
Section 71 of the IPC which inter alia provides that where 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.

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

different offences when taken separately or in groupsall such
offences to be tried at one trialIf 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 actsSection 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 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
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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 coaccused. 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.
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
29

Trilockchand v. Rex AIR 1949 All 187

1988 Cr. LJ 1661 SC
31
AIR 1972 SC 2501
32
Amar Singh v. State AIR 1954 Punj 106
33
K Satwant Singh v. State of Punjab AIR 1960 SC 226
30

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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.
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
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Page XV

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:
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.
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.
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
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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:
In Union of India v. Prafulla Kumar Samal36, 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.
(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.
34

1996 (3) Crime 85 SC

S.L.P. (Crl.) No. 6374 of 2010
36
1979 AIR 366
35

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(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."
In Dilawar Balu Kurane,37 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).

37

(2002) 2 SCC 135

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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 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.

~Code of Criminal Procedure~

Principles of Framing of Charges

(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 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.

~Code of Criminal Procedure~

Page XIX

Principles of Framing of Charges

Page XX

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)
Sarkars, The Code of Criminal Procedure, Dwivedi Law
Agency Allahabad, Reprint (2007)
Articles

~Code of Criminal Procedure~

Principles of Framing of Charges

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-chargein-criminal-trial-law.html
http://www.legalblog.in/2011/08/framing-of-charge-principlesand-law.html

~Code of Criminal Procedure~

Page XXI