Framing of charge

Konina Mandal, Assistant Professor, JGLS

• Fair trial demands giving of precise information to the accused of the
accusation against him. This helps him prepare his defence. In case of
serious offences the Code requires that the accusations are to be S.211-214 – What charge should
formulated and reduced to writing with great precision and clarity. This contain
“charge” is then read and explained to the accused.( Procedure is
followed in Trials of warrant cases and Court of Sessions Trials).
S.216 -217 – Power of court to alter
• Charge is the foundation of the of the accusation and care must be charge and procedure to be followed
taken that it is not only framed precisely but evidence is only tendered
with respect to matters put in the charge and not other matters.
S. 218 – Distinct offence – separate
• There is no need for the judge to adduce reasons for charging a person. charge – separate charge – tried
If he decides to discharge then record reasons in writing. NO need to separately.
appreciate evidence at this stage. The judge is not empowered to call
upon witnesses at the stage of charging by way of 311. S.219,220,221 and 223 – Exceptions
• No proper definition of charge. Section 2(b) of the Criminal Procedure to above rule
Code, 1973 which states, the charge includes any head of the charge
when the charge contains more than one head. S.224 – effect of withdrawal of charge
• Neither does the code mention who frames charges – but provisions on
trial clarify that the Court frames charges
• 211. Contents of charge.—
(1) Every charge under this Code shall state the offence with which the accused is
charged.
(2) If the law which creates the offence gives it any specific name, the offence
may be described in the charge by that name only. Illustration :-

Illustration :-
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal
intimidation, or using a false property-mark. The charge may state that A committed
murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or
that he used a false property-mark, without reference to the definitions, of those
crimes contained in the Indian Penal Code (45 of 1860); but the sections under
which the offence is punishable must, in each instance be referred to in the charge
(3) If the law which creates the offence does not give it any specific
name, so much of the definition of the offence must be stated as to give
the accused notice of the matter with which he is charged.

Illustration :-
(d) A is charged under section 184 of the Indian Penal Code (45 of
1860) with intentionally obstructing a sale of property offered for sale
by the lawful authority of a public servant. The charge should be in
those words.
(4) The law and section of the law against which the offence is said to have
been committed shall be mentioned in the charge.

(5) The fact that the charge is made is equivalent to a statement that every
legal condition required by law to constitute the offence charged was fulfilled
in the particular case.
Illustration :
(a) A is charged with the murder of B. This is equivalent to a statement that
A's act fell within the definition of murder given in sections 299 and 300 of
the Indian Penal Code (45 of 1860); that it did not fall within any of the
general exceptions of the said Code; and that it did not fall within any of the
five exceptions to section 300, or that, if it did fall within Exception 1, one or
other of the three provisos to that exception applied to it.
(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.
212. Particulars as to time, place and person
1) The charge shall contain such particulars as to the time and place of the
alleged offence, and the person (if any) against whom, or the thing (if
any) in respect of which, it was committed, as are reasonably sufficient to
give the accused notice of the matter with which he is charged.
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, as the case may be, describe the
movable property in respect of which the offence is alleged to have been
committed, and the dates between which the offence is alleged to have
been committed, without specifying particular items or exact dates, and
the charge so framed 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.
William Slaney v. State of Maharashtra
AIR 1956 SC 116
• William was on terms of intimacy with Beryl P.W. 13. She was the sister of
Donald Smythe. The accused was practically living with her in her house.
The brother did not like their intimacy and was making attempts to separate
Beryl from the accused.
• On the evening of the day of the occurrence, Donald and his mother went to
Beryl's house, There was a quarrel between them and the accused was asked
to get away.
• He left the place but returned a little later with his brother (Ronnie) and
asked Beryl who was on the first floor to come down to him. She did not
come but Donald came down into the courtyard. There was a heated
exchange of words. The accused slapped Donald on the cheek. Donald lifted
his fist. The accused gave one blow on his head with a hockey stick with the
result that his skull was fractured. Donald died in the hospital ten days later.
• The appellant and his brother were put up for trial on charges under s.
302 read with s. 34 of the Indian Penal Code. The appellant was
specifically charged with murder in prosecution of the common
intention. There was evidence to show that he and not his brother had
struck the fatal blow.
• The brother was acquitted and the appellant was convicted under s.
302 and sentenced to transportation for life. The High Court upheld
the conviction and sentence and dismissed the appeal.
• The appeal before the SC is therefore against a conviction for murder
in which the lesser sentence was given.

• The main ground is that the appellant was charged under section
302 of the Indian Penal Code read with section 34.

• His co-accused was acquitted, so, it was urged, the element of

common intention drops out and accordingly section 34 cannot be
called in aid. But the Courts below hold that the appellant inflicted the
fatal blow and have made him directly liable for the murder.

• He contends that as he was not charged with having murdered the man
personally be cannot be convicted under section 302.
• The appellant contended that :
• the conviction is an illegality which cannot be cured and
claims that he must either be acquitted or, at the most, be
retried, though be adds further that in the circumstances of
this case the Court should not in the exercise of its discretion
order a retrial.
• As against this it is contended for the State that an omission
to frame a separate charge in the alternative
under section 302 simpliciter is a curable irregularity
provided there is no prejudice to the accused.
• Therefore, the only matter for determination is a question of
fact whether there was prejudice in this case.
• It is a fundamental principle of criminal law as administered in India
that there should be a separate charge for every distinct offence as the
accused person must have notice of the charge which he has to meet.
The only exceptions are contained in ss. 236, 237 and 238 of the Code
of Criminal Procedure.

• Where a person has been convicted of an offence with which he has

not been charged (unless allowed by exceptions) the prejudice is
inherent in the absence of the charge itself and it is unnecessary to
look any further.

• Where there is an illegality in the mode of trial as contemplated in ss.

233 to 239 it is an illegality, which is not cured by the provisions
of ss. 535 and 537.
• it was taken as settled law by both sides that the breach of the provisions
of s. 239 of the Code of Criminal Procedure would be an 'illegality' which
would vitiate the trial as opposed to a mere 'irregularity' which would not
vitiate the trial.

• Similarly the courts in India have also taken the view that a breach of
any of the mandatory -provisions relating to ss. 233 to 239 of the Code,
would be an 'illegality' in the mode of trial which would vitiate the trial,
as opposed to an 'irregularity' in the course of trial which could be cured.

• Section 535 appears in Chapter XLV of the Code and is headed "Of irregular
proceedings" and cannot possibly apply to breaches of the mandatory
provisions of ss. 233 to 239 of the Code; it may relate to those cases where it
is optional to frame a charge. See ss. 263, 362(4).
ISSUES
• Is the framing of a charge and the recording of the plea of the
accused merely a ritual or a fundamental provision of the
Code concerning procedure in a criminal trial?

• Are the express provisions of the Code as to the manner in which a

trial is to proceed to be ignored, or considered as satisfied, merely
because the Court explained to the accused as to what he was
being tried for?
• Now there is no doubt that a charge forms the foundation of a sessions
trial and is a most important step in it. The accused must know and
understand what he is being tried for and must be told in clear and
unambiguous terms: section 271 (1). There can be no shirking that or
slurring over it, and this must appear on the face of the record. It
cannot be established by evidence taken after the trial.
• The Code expressly deals with this and expressly provides that no
error, omission or irregularity in the charge, or even total absence
of a charge, shall vitiate a trial unless prejudice to the accused is
shown.
• First of all, sections 221 to 223 of the Code, which undoubtedly
envisage a formal written charge, set out what a charge must contain.
• A perusal of them reveals the reasons why a charge is required.
• It must set out the offence with which the accused is charged and if the
law which creates the offence does not give it any specific name, so
much of the definition of the offence must be stated "as to give the
accused notice of the matter with which he is charged".
• The charge must also contain such particulars of date, time, place and
person "as are reasonably sufficient to give the accused notice of the
matter with which he is charged";
• When there is a charge and there is either error or omission in it or
both, and whatever its nature, it is not to be regarded as material unless
two conditions are fulfilled both of which are matters of fact:

• (1) the accused has in fact been misled by it and

• (2) it has occasioned a failure of justice

• Counsel conceded that there are occasions when an accused person
can be convicted in the absence of a charge but he said that they are
expressly set out in sections 237 and 238 and he contended that no
further departure is permissible.

• He said that sections 237 and 238 deal with cases in which there is a
charge to start with but none to support a conviction for an offence
which the Court feels is made out by the evidence.
 Are the express provisions of the Code as to the manner in which a trial is to
proceed to be ignored, or considered as satisfied, merely because the Court
explained to the accused as to what he was being tried for?

• NO. In the SC’s opinion, a total absence of a charge from start to finish in a case
where the law requires a charge to be framed, is a contravention of the
provisions of the Code as to the mode of trial and a conviction of the accused of
an offence in such a case is invalid and the question of prejudice does not arise.
None of the decisions of the Privy Council suggest that in such a case the
conviction will be deemed to be valid by virtue of the provisions of section 535,
unless the Court is satisfied that there has been a failure of justice
• In cases where a charge has been framed and there is an omission or
irregularity in it, it is difficult to see how the mode of trial is affected. In any
event, the Code expressly provides that in such cases the conviction need not
be set aside, unless, in fact, a failure of justice has resulted.
• Under the provisions of section 232 of the Code an appellate Court or a High
Court exercising its powers of revision or its powers under Chapter XXVII,
must direct a new trial of a case in which an accused person has been
convicted of an offence with which he had not been charged, if it is satisfied
that he had been misled in his defence by the absence of a charge.
• In such a case a court is bound to act according to its provisions. But this does not mean
that by virtue of these provisions that which was invalid shall be deemed to be valid,
unless, prejudice was shown. It is the provision of section 535 to which reference must be
made in order to ascertain whether that which was invalid shall be deemed to be valid,
unless the court was satisfied that there had been a failure of justice. I regard with
concern, if not with dismay, a too liberal application of its provisions to all cases in which
there is an absence of a charge, although a charge ought to have been framed. It is difficult
to lay down any hard and fast rule as to when the provisions of section 535 will or will not
be applicable. The facts of each case, as they arise, will have to be carefully considered in
order to decide that that which was prima facie invalid is deemed to be valid by virtue of
its provisions. There may be cases where the omission to frame a charge was merely a
technical defect in which case section 535 would apply. On the other band, there may be
cases where failure to frame a charge affects the mode of trial or it is such a substantial
contravention of the provisions of the Code relating to the framing of charges that
prejudice may be inferred at once and the conviction which was prima facie invalid
continued to be so. In a criminal trial innocence of an accused is presumed,unless there is a
statutory presumption against him, and the prosecution must prove that the accused is
guilty of the offence for which he is being tried. The prosecution is in possession of all the
evidence upon which it relies to establish its case against the accused. It has the privilege to
ask the Court to frame charges with respect to the offences which it wishes to establish
against the accused. On the Court itself a duty is cast to frame charges for offences which,
on the evidence, appear to it prima facie to have been committed.
• If in spite of this a charge under section 302 read with 149 of the Indian Penal
Code only is framed against an accused person and not under section 302 of the
Indian Penal Code, it will be reasonable to suppose that neither the prosecu- tion
nor the Court considered the evidence sufficient to prove that murder was
committed by the accused and the omission to frame a charge under section
302 must be regarded as a deliberate act of the Court by way of notice to the
accused that he was not being tried for that offence. It would not be a case of mere
omission to frame a charge. If, therefore, the accused is convicted under section
302, I would consider his conviction as invalid, as he was misled in his defence.
• In conclusion I would point out that the provisions of the Code of Criminal
Procedure are meant to be obeyed. Contravention of its provisions are unnecessary
and neither the prosecution nor the Courts of trial should ignore its provisions in
the hope that they might find shelter under sections 535 and 537 of the Code.
Where the contravention is substantial and a retrial becomes necessary, public time
is wasted and the accused is put to unnecessary harassment and expense.
• I agree that the appellant's conviction be altered from section 302 of the Indian Penal
Code to 304 of the Indian Penal Code and that he be sentenced to five years' rigorous
imprisonment
In cases where a charge has been framed and there is an omission or
irregularity in it, it is difficult to see how the mode of trial is affected. In
any event, the Code expressly provides that in such cases the
conviction need not be set aside, unless, in fact, a failure of justice has
resulted
UOI v. Prafulla K Samal (1979) 3 SCC 4

• The facts of the case centre around an alleged conspiracy said to have been
entered into between respondents No. 1 and 2 in order to commit offences
under the Prevention of Corruption Act (hereinafter referred to as the Act)
read with I.P.C.

• The main charge against the respondents was that,the respondent entered
into an agreement for the purpose of obtaining pecuniary advantage for
respondent No. 1 P. K. Samal and in pursuance of the said conspiracy the
second respondent Debi Prasad Jena, who was the Land Acquisition officer
aided and abetted the first respondent in getting a huge sum of money for a
land acquired by the Government which in fact belonged to the Government
itself and respondent No. 1 was a skew thereof.
• It is averred in the charge sheet that respondent No. 1 by abusing his
official position concealed the fact that the land which was the
subject matter of acquisition and was situated in Cuttack
Cantonment was really Khasmahal land belonging to the
Government and having made it appear that he was the undisputed
owner of the same, got a compensation of Rs. 4,18,642.55.
• The charge-sheet contains a number of circumstances from which the
inference of the conspiracy is sought to be drawn by the police. After the
charge-sheet was submitted before the Special Judge, the prosecution
ousted him to frame a charge against the respondents.
• The Special Judge, Puri after having gone through the charge-sheet and
statements made by the witnesses before the police as also other
documents came to the conclusion that there was no sufficient ground
for framing a charge against the respondents and he accordingly
discharged them under section 227 of the Code.
The Special Judge has given cogent reasons for passing the order of discharge.

The appellant went up to the High Court in revision against the order of the Special
Judge refusing to frame the charge, but the High Court dismissed the revision petition
filed by the appellant and maintained the order of discharge passed by the Special
Judge.

Thereafter the appellant moved this Court by an application for special leave which
having been granted to the appellant, the appeal is now set for hearing before us.
• The short point which arises for determination in this
case is the scope and ambit of an order of discharge
to be passed by a Special Judge under section
227 of the Code.
• So far as the present case (offences committed under the Prevention of
Corruption Act) is concerned it is regulated by the procedure laid
down by the Criminal Law Amendment Act under which the police
has to submit, charge-sheet directly to the Special Judge and the
question of commitment to the Court of Session does not arise, but
the Sessions Judge has nevertheless to follow the procedure
prescribed for trial of sessions cases and the consideration
governing the interpretation of section 227 of the Code apply
mutatis mutandis to these proceedings after the charge-sheet is
submitted before the Special Judge.
• As per the OLD CRPC it would appear that under section 209 of the
Code of 1898 the question of discharge was to be considered by a
Magistrate.

• This power has now been entrusted to a senior Judge, namely, the
Sessions Judge who is to conduct the trial himself and who has to
decide before commencing the trial as to whether or not charges
should be framed in a particular case against the respondents
• The discretion, therefore, is to be exercised by a senior and more
experienced Judge so as to exclude any abuse of power. In this view of
the matter, it is manifest that if the Sessions Judge exercises his
discretion in discharging the accused for reasons recorded by him,
his discretion should not normally be disturbed by the High Court
or by this Court.
Interpretation of 227
• Section 227 of the Code runs thus:-
"If, upon consideration of the record of the case and the documents 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.“
• The words 'not sufficient ground for proceeding against the accused' clearly
show that the Judge is not a mere post office to frame the charge at the behest
of the prosecution, but has to exercise his judicial mind to the facts of the case
in order to determine whether a case for trial has been made out by the prosecution.
• In assessing this fact, it is not necessary for the court to enter into the pros and
cons of the matter or into a weighing and balancing of evidence and
probabilities which is really his function after the trial starts.
• At the stage of section 227, the Judge has merely to sift the evidence in
order to find out whether or not there is sufficient ground for
proceeding against the accused.

• The sufficiency of ground would take within its fold the nature of the
evidence recorded by the police or the documents produced before the court
which ex facie disclose that there are suspicious circumstances against the
accused so as to frame a charge against him.
• Whereas strong suspicion may not take the place of the proof at the trial
stage, yet it may be sufficient for the satisfaction of the Sessions Judge in
order to frame a charge against the accused.

• Even under the Code of 1898 this Court has held that a committing
Magistrate had ample powers to weigh the evidence for the limited
purpose of finding out whether or not a case of commitment to the
Sessions Judge has been made out.
Current principles to be followed
• 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
• 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.
• 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 giving rise to
some suspicion but not grave suspicion against the accused, he will be
fully within his right to discharge the accused.
• That in exercising his jurisdiction under section 227 of the Code the
Judge which under the present Code is a senior and experienced Judge
cannot act merely as a Post office or a mouth-piece of the
prosecution, but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the case and so
on.

• This however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the evidence as
if he was conducting a trial.
Principles in the light of the present fact situation

• Respondent No. 1 was a Joint Secretary in the Ministry of Information and Broadcasting.
Later he worked as Joint Secretary in the Ministry of Foreign Trade. Thereafter,
respondent No. 1 was working as Joint Secretary, Ministry of Education and Social
Welfare.
• The second respondent worked as Land Acquisition officer in the Collectorate, Orissa.
• In the year 1969 the All-India Radio authorities were desirous of having a piece of land
for construction of quarters for their staff posted at Cuttack. In this connection, the said
authorities approached respondent No. 1 who had a land along with structure in the
Cantonment at Cuttack.

• As the All-India Radio authorities found this land suitable, they approached respondent
No. 1 through his mother for selling the land to them by private negotiation. As this did
not materialise, the All-India Radio authorities moved the Collector of Cuttack to assess
the price of the land and get it acquired.
• Accordingly, the Tehsildar of the area directed the Revenue officer, Cuttack;
to fix the valuation of the land of respondent No. 1. The Revenue officer
reported back that the land belonged to respondent No. 1 and was his
private land and its value would be fixed at Rs. 3000 per guntha.

• It is common ground that the land in question was situated in Cuttack

Cantonment and was a Khasmahal land which was first leased out to one
Mr. Boument as far back as 1-9-1943 for a period of 30 years. The lease was
given for building purposes. In 1954. Mrs. Boument who inherited the
property after her husband's death transferred the land to respondent No. 1
with the consent of the Khasmahal authorities.
• When respondent No. 1 came to know that the land in question was
required by the All-India Radio authorities, he wrote a letter to Mr. . S.
Gill suggesting that the land- may be acquired but price fixed by
mutual consent. It may be pertinent to mention here that in this, letter a
copy of which being, respondent No. 1 never concealed the fact that
the land really belonged to the Government.

• A perusal of this letter clearly shows that respondent No. 1 made no

attempt to conceal that the land in question was, a Government land
which was leased out to his vendor.
• In these circumstances, therefore, it cannot be said that the letter written
by respondent No. 1 referred to above was an evidence of a criminal
intention on the part of respondent No. 1 to grab the huge
compensation by practising fraud on the Government.
• Respondent No. 1 a high officer of the Government and was a lessee of the
Government, a fact which he never concealed and if he was able to get a
good customer for purchasing his land or acquiring the same, there was
no harm.
• Apart from this, the contention of the appellant that the fact that the land
being Khasmahal land belonging to the Government was deliberately
suppressed by the respondents is completely falsified by the circumstances.
• Furthermore, it would appear that Mr. B. C. Mohanty, Land Acquisition officer
submitted a report about the land in question in which he had clearly mentioned
that the land in question was Government land and that respondent No. 1 was a
Pattidar in respect of the land as shown in the record.

• Thus, one of the important premises on the basis of which the charge was sought
to be framed has rightly been found by the High Court not to exist at all. The
records of the Government showed the nature of the land.

• Respondent No. 1 at no time represented to the All-India Radio authorities or the

Government that the land was his private one and the records of the Government
clearly went to show that the land was a Government land. In these circumstances,
therefore, it cannot be said that respondent No. 1 acted illegally in agreeing to the
land being acquired by the Government.
• Another important circumstance relied on by the appellant was the great
rapidity with which the land acquisition proceedings started and ended
clearly shows that the respondents had joined hands to get the lands
acquired and the compensation paid to respondent No. 1.

• As the appellant was naturally interested in finalising the deal as quickly as

possible, there could be no difficulty in finding out the estimates which had
been sanctioned a week before respondent No. 1 wrote the letter to the
Vigilance Department. This fact proves the bona-fide rather than any
wrongful conduct on the part of respondent No. 1 which may lead to an
adverse inference being drawn against him.
• it was argued by the appellant that what was acquired by the
Government was merely the lessee's interest, but the respondent No. 1
appears to have got compensation as the owner. This was factually
incorrect. We have already referred to the circumstances which clearly
show that the Government was fully aware that it was only the lessee's
interest which was being acquired and even the fresh estimate.

• Lastly, there does not appear to be any legal evidence to show any;
meeting of mind between respondents No. 1 and 2 at any time
SC verdict
• SC therefore was in complete agreement with the view taken by the
High Court that there was no sufficient ground for trying the
accused in the instant case. Moreover, this Court could be most
reluctant to interfere with concurrent findings of the two courts in
the absence of any special circumstances.

• For the reasons given above, the judgement of the High Court was
affirmed and the appeal dismissed.
State of Orissa v. Debendra Nath Padhi
(2005) 1 SCC 568
Can the trial court at the time of framing of charge
consider material filed by the accused?
Drawing from Satish Mehra v. Delhi Administration and
Another [(1996) 9 SCC 766],

• It was observed that if the accused succeeds in producing any reliable

material at the stage of taking cognizance or framing of charge
which might fatally affect even the very sustainability of the case,
it is unjust to suggest that no such material should be looked into by
the court at that stage.

• It was held that the object of providing an opportunity to the accused

of making submissions as envisaged in Section 227 of the Code is to
enable the court to decide whether it is necessary to proceed to
conduct the trial.
• If the materials produced by the accused even at that early stage would
clinch the issue, why should the court shut it out saying that such
documents need be produced only after wasting a lot more time in
the name of trial proceedings.
• It was further observed that there is nothing in the Code which shrinks
the scope of such audience to oral arguments and, therefore, the trial
court would be within its power to consider even material which
the accused may produce at the stage contemplated in Section
227 of the Code.
• It was observed that at the time of framing a charge the trial court
can consider only the material placed before it by the investigating
agency, there being no requirement in law for the court to grant at that
stage either an opportunity to the accused to produce evidence in
defence or consider such evidence the defence may produce at that
stage.

• But having regard to the views expressed in Satish Mehra's case

(supra) it was directed that the matter should be referred to a larger
Bench. The order referring the matter to larger Bench is reported
in THIS CASE.
Contentions of the accused
• The views expressed in Satish Mehra's case (supra) have been strongly
supported by learned counsel for the accused on the ground of justice,
equity and fairness and also on the touchstone of Article 21 of the
Constitution of India contending that reversal of that view would lead
to unnecessary harassment to the accused by having to face the trial
for years, waste of valuable time of the court, heavy cost, despite the
fact that even at the early stage of framing of charge or taking
cognizance the accused is in a position to produce unimpeachable
material of sterling quality to clinchingly show that there is no
prospect of conviction at the conclusion of the trial.
 Contentions of the State
• Satish Mehra's case was further supported on interpretation of Sections 227 and 239 of the
Code.

• It was contended on behalf of the State that the observations made in Satish Mehra's case
would result in conducting a mini trial at the stage of framing of charge or taking
cognizance. Such a course would not only be contrary to the object and the scheme of the
Code but would also result in total wastage of the court time because of conducting of two
trials, one at the stage of framing charge and the other after the charge is framed.

• It was contended that on true construction of Section 227 of the Code only the material sent
by prosecution along with the record of the case and the documents sent along with it
can be considered by the trial court at the time of framing of the charge. The accused at that
stage has no right to place before the court any material.
• At the stage of framing charge, the trial court is
required to consider whether there are sufficient
grounds to proceed against the accused. Section 227 of
the Code provides for the eventuality when the
accused shall be discharged. If not discharged, the
charge against the accused is required to be framed
under Section 228.
What is the meaning of the expression 'the record
of the case' as used in Section 227 of the Code?
Though the word 'case' is not defined in the Code but Section 209 throws light on
the interpretation to be placed on the said word. Section 209 which deals with the
commitment of case to Court of Session when offence is triable exclusively by it,
inter alia, provides that when it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall commit 'the case' to the
Court of Session and send to that court 'the record of the case' and the document and
articles, if any, which are to be produced in evidence and notify the Public
Prosecutor of the commitment of the case to the Court of Session.
It is evident that the record of the case and documents submitted therewith as
postulated in Section 227 relate to the case and the documents referred in Section
209. That is the plain meaning of Section 227 read with Section 209 of the
Code. No provision in the Code grants to the accused any right to file any
material or document at the stage of framing of charge. That right is granted
only at the stage of the trial.
• Further, the scheme of the Code when examined in the light of the
provisions of the old code of 1898, makes the position more clear.
• In the old code, there was no provision similar to Section 227. Section
227 was incorporated in the Code with a view to save the accused
from prolonged harassment which is a necessary concomitant of a
protracted criminal trial. It is calculated to eliminate harassment to
accused persons when the evidential materials gathered after
investigation fall short of minimum legal requirements.
• If the evidence even if fully accepted cannot show that the accused
committed the offence, the accused deserves to be discharged.
• In the old Code, the procedure as contained in Sections 207 and 207 (A) was
fairly lengthy.
• Section 207, inter alia, provided that the Magistrate, where the case is
exclusively triable by a Court of Session in any proceedings instituted on a
police report, shall follow the procedure specified in Section 207 (A).

• Under Section 207 (A) in any proceeding instituted on a police report the
Magistrate was required to hold inquiry in terms provided under sub-section
(1), to take evidence as provided in sub- section (4), the accused could cross-
examine and the prosecution could re-examine the witnesses as provided in
sub-section (5), discharge the accused if in the opinion of the Magistrate the
evidence and documents disclosed no grounds for committing him for trial,
as provided in sub- section (6) and to commit the accused for trial after
framing of charge as provided in sub-section (7), summon the witnesses of
the accused to appear before the court to which he has been committed as
provided in sub-section (11) and send the record of the inquiry and any
weapon or other thing which is to be produced in evidence, to the Court of
Session as provided in sub-section (14).
• The aforesaid Sections 207 and 207(A) have been omitted from the
Code and a new Section 209 .

• Instead of committal Magistrate framing the charge, it is now to be

framed by Court of Session under Section 228 in case the accused
is not discharged under Section 227.

• This change brought out in the code is also required to be kept in view
while determining the question. Under the Code, the evidence can be
taken only after framing of charge.
Observations from previous judicial decisions
• At the stage of framing of charge it is not obligatory for the Judge to consider in any detail and
weigh in a sensitive balance whether the facts, if proved, would be incompatible with the
innocence of the accused or not. At that stage, the court is not to see whether there is sufficient
ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong
suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in
that event it is not open to say that there is no sufficient ground for proceeding against the
accused.

• The Magistrate at the stage of framing charges had to see whether the facts alleged and sought
to be proved by the prosecution prima facie disclose the commission of offence on general
consideration of the materials placed before him by the investigating police officer
(emphasis supplied). Though in this case the specific question whether an accused at the stage
of framing of charge has a right to produce any material was not considered as such, but that
seems implicit when it was held that the Magistrate had to consider material placed before
it by the investigating police officer.
• At the stage of framing of charge the trial court is not to examine
and assess in detail the materials placed on record by the
prosecution nor is it for the court to consider the sufficiency of the
materials to establish the offence alleged against the accused persons.
• The charge can be quashed if the evidence which the prosecutor
proposes to adduce to prove the guilt of the accused, even if fully
accepted, cannot show that the accused committed the particular
offence. In that case, there would be no sufficient ground for
proceeding with the trial.
• As opposed to the aforesaid legal position, the learned counsel appearing for
the accused contended that the procedure which deprives the accused to
seek discharge at the initial stage by filing unimpeachable and
unassailable material of sterling quality would be illegal and violative
of Article 21 of the Constitution since that would result in the accused
having to face the trial for long number of years despite the fact that he is
liable to be discharged if granted an opportunity to produce the material and
on perusal thereof by the court.

• The contention is that such an interpretation of Sections 227 and 239 of the
Code would run the risk of those provisions being declared ultra vires of
Articles 14 and 21 of the Constitution and to save the said provisions from
being declared ultra vires, the reasonable interpretation to be placed thereupon
is the one which gives a right, howsoever, limited that right may be, to the
accused to produce unimpeachable and unassailable material to show his
innocence at the stage of framing charge.
• SC unable to accept the contention and reliance on Article 14 an 21
observed that the scheme of the Code and object with which Section
227 was incorporated and Sections 207 and 207 (A) omitted have
already been noticed. Further, at the stage of framing of charge roving
and fishing inquiry is impermissible.

• If the contention of the accused is accepted, there would be a mini

trial at the stage of framing of charge. That would defeat the object of
the Code. It is well-settled that at the stage of framing of charge the
defence of the accused cannot be put forth. The acceptance of the
contention of the learned counsel for the accused would mean
permitting the accused to adduce his defence at the stage of framing of
charge and for examination thereof at that stage which is against the
criminal jurisprudence
• The plea of alibi taken by the accused may have to be examined at the stage
of framing of charge if the contention of the accused is accepted despite the
well settled proposition that it is for the accused to lead evidence at the trial
to sustain such a plea.The accused would be entitled to produce materials
and documents in proof of such a plea at the stage of framing of the charge,
in case we accept the contention put forth on behalf of the accused.

• It is in this light that the provision about hearing the submissions of the
accused as postulated by Section 227 is to be understood. It only means
hearing the submissions of the accused on the record of the case as filed
by the prosecution and documents submitted therewith and nothing
more. The expression 'hearing the submissions of the accused' cannot
mean opportunity to file material to be granted to the accused and
thereby changing the settled law. At the state of framing of charge
hearing the submissions of the accused has to be confined to the material
produced by the police.
• In exceptional cases the High Court can look into only those
documents which are unimpeachable and can be legally translated into
relevant evidence is misplaced for the purpose of considering the point
in issue in these matters.

• Clearly the law is that at the time of framing charge or taking

cognizance the accused has no right to produce any material.
Satish Mehra's case holding that the trial court has powers to
consider even materials which accused may produce at the stage
of Section 227 of the Code has not been correctly decided.
SC on production of documents relying
upon Section 91 of the Code has also been made
• The first and foremost requirement of the section is about the
document being necessary or desirable. The necessity or desirability
would have to be seen with reference to the stage when a prayer is
made for the production. If any document is necessary or
desirable for the defence of the accused, the question of
invoking Section 91 at the initial stage of framing of a charge
would not arise since defence of the accused is not relevant at that
stage.
• When the section refers to investigation, inquiry, trial or other proceedings,
it is to be borne in mind that under the section a police officer may move the
Court for summoning and production of a document as may be necessary at
any of the stages mentioned in the section.

• In so far as the accused is concerned, his entitlement to seek order

under Section 91 would ordinarily not come till the stage of defence. When
the section talks of the document being necessary and desirable, it is
implicit that necessity and desirability is to be examined considering
the stage when such a prayer for summoning and production is made
and the party who makes it whether police or accused
• If under Section 227 what is necessary and relevant is only the
record produced in terms of Section 173 of the Code, the accused
cannot at that stage invoke Section 91 to seek production of any
document to show his innocence. Under Section 91 summons for
production of document can be issued by Court and under a
written order an officer in charge of police station can also direct
production thereof.

• Section 91 does not confer any right on the accused to produce

document in his possession to prove his defence.

• Section 91 presupposes that when the document is not produced

process may be initiated to compel production thereof. :
• In so far as Section 91 is concerned, it was rightly held that the width of
the powers of that section was unlimited but there were inbuilt inherent
limitations as to the stage or point of time of its exercise,
commensurately with the nature of proceedings as also the compulsions
of necessity and desirability, to fulfill the task or achieve the object.

• Before the trial court the stage was to find out whether there was sufficient
ground for proceeding to the next stage against the accused. The application
filed by the accused under Section 91 of the Code for summoning and
production of document was dismissed and order was upheld by High Court
and this Court.
• SC was of the view that jurisdiction under Section 91 of the Code when
invoked by accused the necessity and desirability would have to be seen
by the Court in the context of the purpose of investigation, inquiry, trial
or other proceedings under the Code.
• It would also have to be borne in mind that law does not permit a roving
or fishing inquiry.
• Regarding the argument of accused having to face the trial despite being in
a position to produce material of unimpeachable character of sterling
quality, the width of the powers of the High Court under Section 482 of
the Code and Article 226 of Constitution of India is unlimited
whereunder in the interests of justice the High Court can make such
orders as may be necessary to prevent abuse of the process of any
Court or otherwise to secure the ends of justice
• The result of the aforesaid discussion is that Criminal Appeal No.497 of
2001 is allowed, the impugned judgment of the High Court is set aside. The
trial court is directed to proceed from the stage of framing of charge.
Having regard to the fact that the charges were framed about 11 years ago
we direct the trial court to expeditiously conclude the trial and as far as
possible it shall be held from day-to-day.
• Special Leave Petition (Crl.) No.1912 of 2003 and Criminal Appeal No.46
of 2004 are dismissed. Since Special Leave Petition relates to an occurrence
which took about 3 years back and the offence is under Section 302 Indian
Penal Code and in Criminal Appeal No.46 of 2004 charges were framed
about 2 years ago, we direct that the trial in these cases shall also be
concluded expeditiously. All the appeals are disposed of accordingly.