Principles Of Framing Of Charges

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Cr.P.C LAW PROJECT ON PRINCIPLES OF FRAMING OF CHARGES Submitted To: Dr. Archana Shyam Gharote (Faculty of Cr.P.C)

Submitted By: Pravas Naik Semester – VII Section – A, Roll No: 119 B.A. LLB (HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY NAYA RAIPUR, (C.G.)

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DECLARATION

I, Pravas Naik, have undergone research of the project work titled ‘Principles of Framing of Charges’, as a student of Code Criminal Procedure Law hereby declare that-this Research Project has been prepared by the student for academic purpose only, and is the outcome of the investigation done by me and also prepared by myself under the supervision of Dr. Archana Shyam Gharote , Hidayatullah National Law University, Raipur. The views expressed in the report are personal to the student and do not reflect the views of any authority or any other person, and do not bind the statute in any manner.

I also declare that this Research Paper or any part thereof has not been or is not being submitted elsewhere for the award of any degree or Diploma. This report is the intellectual property of the on the part of student research work, and the same or any part thereof may not be used in any manner whatsoever in writing.

Pravas Naik Roll No-119 Section - A

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CERTIFICATE

This is to certify that Pravas Naik, Roll No. - 119, student of Semester - VII of B.A.LL.B. (Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has undergone research of the project work titled “Principles of Framing of Charges”, in partial fulfilment of the subject Jurisprudence. His performance in research work is up to the level.

..…………………………….. Place: New Raipur

Dr. Archana Shyam Gharote

Date: 16.08.2018

(Faculty- Criminal Law)

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ACKNOWLEDGMENT I would like to thank our Honourable teacher Dr. Archana Shyam Gharote, 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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INDEX ACKNOWLEDGMENT

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II

TABLE OF CASES

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III

INTRODUCTION

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1

RESEARCH METHODOLOGY

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2

MEANING OF CHARGE

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2

WHAT CHARGE CONTAINS AND ALTERATION OF CHARGE .

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3

JOINDER OF CHARGES

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4

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

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WITHDRAWAL OF REMAINING CHARGES ON CONVICTION ON ONE OF SEVERAL CHARGES 9 FRAMING OF CHARGE

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CONCLUSION

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SUGGESTION

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BIBLIOGRAPHY

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19

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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

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

RESEARCH METHODOLOGY 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) 1 2

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STATEMENT OF PROBLEMS The charge is the establishment of the allegation(s) against the accused in a criminal case. The inspiration behind a charge is to inform an accused individual, precisely and succinctly of the issue with which he is charged. It must pass on to him with adequate clearness and certainty, what the prosecution expects to prove against him and which he should protect. The fundamental principle of criminal law is that the accused ought to be informed with certainty and precision the exact nature of the charge levelled against him. The object is to give the accused notice of the offense he is charged with and does not touch jurisdiction. RATIONALE OF THE STUDY One basic requirement of a fair trial in the 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 writing great precision and clarity. This charge is then to be read and explained to the accused person. The provisions regarding charge are contained in Section 211-214 and Section 464 provides understanding about various procedures related to framing of Charge.

RESEARCH OBJECTIVES ~Code of Criminal Procedure~

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• To find out how charges are framed and what are the limitation of it. HYPOTHESIS The researcher assumes that how charges are important to frame out.

REVIEW OF LITERATURE In the ruling of a four- Judge Bench of The Hon’ble Supreme Court in V.C. Shukla v. State. Justice Desai delivering a concurring opinion opined that “One basic requirement of a fair trial in criminal jurisprudence is to give precise information to the accused as to the accusation against him. This is vitally important to the accused in the preparation of his defence. In all trials under the Criminal Procedure Code the accused is informed of the accusation in the beginning itself. In case of serious offences, the Code requires that the accusations are to be formulated and reduced to writing with great precision & clarity. This "charge" is then to be read and explained to the accused person” NATURE OF STUDY This project is based upon doctrinal method of research. This project has been done after a after a thorough research based upon intrinsic and extrinsic aspects of the project. SOURCES OF DATA The sources of data in this research project are primarily analytical and based on secondary source of data. The following secondary sources of data have been used in the project1. Articles 2. Books 3. Websites LIMITATION Due to the limitation of time the project only limits itself to the framing of charges under Cr.PC of India.

II. MEANING OF CHARGE ~Code of Criminal Procedure~

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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 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

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 9 Banamali Tripathy v. Emperor AIR 1943 Pat 212 5 6

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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 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 Chittaranjan Das v. State of W.B. AIR 1963 SC 1696 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 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 10 11

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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 reexamined 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 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 Moosa Abdul Rahiman v. State of Kerala 1982 Cr. LJ 1384 (Ker) Kantilal v. State of Maharashtra AIR 1970 SC 359 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) 20 21

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 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 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

M.R. Menon v. Kerala State 1973 Cr. LJ 394 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 25 26

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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 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 ~Code of Criminal Procedure~

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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 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 Trilockchand v. Rex AIR 1949 All 187 1988 Cr. LJ 1661 SC 31 AIR 1972 SC 2501 29 30

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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 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.

32 33

Amar Singh v. State AIR 1954 Punj 106 K Satwant Singh v. State of Punjab AIR 1960 SC 226

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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 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.

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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: 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:

1996 (3) Crime 85 SC S.L.P. (Crl.) No. 6374 of 2010 36 1979 AIR 366 34 35

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"(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.

(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 37

(2002) 2 SCC 135

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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 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~

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(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. CONCLUSION

In a criminal trial the charge is the foundation of the accusation & every care must be taken to see that it is not only properly framed but evidence is only tampered with respect to matters put in the charge & not the other matters38.

38

Ramakrishna Redkar v. State of Maharashtra, 1980 Cri LJ 254 (Bom)

~Code of Criminal Procedure~

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In framing a charge during a criminal trial, instituted upon a police report, the court is required to confine its attention to documents referred to under Section 17339. The judge needs to be only convinced that there is a prime facie case, where there is no necessity to adduce reasons for framing charges. However, the magistrate is required to write an order showing reasons if he decides to discharge the accused40. The sections dealing with charge do not mention who is to frame the charge. The provisions dealing with different types of trials however provide that it is always for the court to frame the charge. The court may alter/ add to any charge at any time before the judgment is pronounced. But if a person has been charged, the court cannot drop it 41. He has either to be convicted or acquitted42. All this has an important bearing on the administration of justice. SUGGESTION After going through the project, for fair and speedy trial. the following suggestions are made by the researcher to overcome the problem of unfairness and delay in decisions. 1. the investigation report submitted by the investigative officer should be in questionnaire format so that all important points are included. 2. the judicial officer’s appointment procedure should exclude the involvement of executive and legislature; the consent of all the members in the panel should be made compulsory for appointments. 3. plea-bargaining applications should be decided in open court. 4. There should be effective use of computers by providing laptops to judges and subscription of website. 5. The victims must be informed of their role, rights, and duties and about proceedings. 6. The vacancy created by the retirement of the judge should be filled six months prior or, another option is retiring judge be allowed to remain in position till the successor joins. 7. Latest law should be made available through trusted websites like Manupatra, SCC online. 8. There should be a Separation of Investigation officers and officers in maintenance of law and order. 39

State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 Omvati v. State (Delhi Admn.), (2001) 4 SCC 38 41 State of Maharashtra v. B.K. Subbarao, 1993 Cri LJ 368 (Del) 42 Prakash Chander v. State (Delhi), 1995 Cri LJ 368 (Del) 40

~Code of Criminal Procedure~

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9. There should be an installation of cameras in police stations so as to check public dealings. 10. There is a need of more appointments and adequate infrastructure for the Judiciary. 11. There is a need to secure independence of judiciary so that the judicial officer should act fearlessly and use authority for societal benefit.

BIBLIOGRAPHY Books

 Kelkar, R.V., Criminal Procedure Code, 5th edition Eastern Book Company, Lucknow, , (2008)  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)  Sathasivam, Justice P., “Framing of Charge: Principles and Law”, The Legal Blog, (2011) Websites ~Code of Criminal Procedure~

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 http://www.ebc-india.com/lawyer/articles/2002v2a3.htm  http://legalperspectives.blogspot.in/2010/10/framing-of-charge-in-criminal-triallaw.html  http://www.legalblog.in/2011/08/framing-of-charge-principles-and-law.html

~Code of Criminal Procedure~