CHARGE AND DISCHARGE : Supreme Court

While framing charges, the trial court can only look into the materials produced by the prosecution while giving an opportunity to the accused to show that the said materials were insufficient for the purpose of framing charge.

CHARGE AND DISCHARGE : Supreme Court

In K. Prema S. Rao and Another v. Yadla Srinivasa Rao and Others [(2003) 1 SCC 217], this Court observed: “Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the Alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on fats found in evidence, he could have been charged for such offence.”

In Kammari Brahmaiah and Others v. Public Prosecutor, High Court of A.P. [(1999) 2 SCC 522], this Court observed: “3. At the time of hearing of this appeal, learned Counsel appearing on behalf of the appellant submitted that the Order passed by the High Court convicting the appellants for the of fence punishable under Section 325 read with 149 is on the face of it illegal as no charge under Section 149 was framed against the accused. He contended that all accused were charged only for the of fence punishable under Section 302 of IPC for causing injuries to the deceased Itikala Mogulaiah. As against this, learned Counsel for the State vehemently submitted that even though it is an error on the part of the Additional Sessions Judge of not framing the charge under Section 302 read with 149 of IPC no prejudice is casued to the accused as relevant facts were placed before the Court and the attention of the accused also was drawn. Futher, they are punished for lesser of fence, therefore, the order passed by the High Court is justified and legal.”

In Dalbir Singh v. State of U.P. [(2004) 5 SCC 334], this Court observed: “11. The High Court was further of the opinion that the evidence on record clearly established the charge against the accused under Section 306 IPC and he could be convicted and sentenced for the said offence. However, in view of the fact that no charge under Section 306 IPC had been framed and there was conflict of opinion in the two decisions of this Court rendered by Benches of equal strength and as in such a situation a later decision was to be followed, the High Court came to a conclusion that the accused cannot be convicted under Section 306 IPC. On this basis the conviction and sentence of accused under Section 498-A IPC alone were maintained.

The main question which requires consideration is whether in a given case is it possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him. In Lekhjit Singh and Anr. v. State of Punjab (supra) the accused were charged under Section 302 IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The Court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non-framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr.P.C. it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306 IPC”

In Kamalanantha and Others v. State of T.N. [(2005) 5 SCC 194], this Court held: “It is clear from the aforesaid decisions that misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided no failure of justice had occasioned thereby. Whether or not the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an accused had a fair trial whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.”

The question came up for consideration in Harjit Singh v. State of Punjab [2006(1) SCC 463] wherein, however, it was held : “23. Faced with this situation, the learned counsel appearing on behalf of the State relies upon a judgment of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao wherein an observation was made in the peculiar facts and circumstances of that case that even if the accused is not found guilty for commission of an offence under Sections 304 and 304-B of the Penal Code, he can still be convicted under Section 306 IPC thereof.

Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or prejudice the accused. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused.”

The propositions of law which can be culled out from the aforementioned judgments are:
(i) The appellant should not suffer any prejudice by reason of misjoinder of charges.
(ii) A conviction for lesser offence is permissible.
(iii) It should not result in failure of justice.
(iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges. , Anil @ Raju Namdev Patil VS Administration of Daman & Diu,& Anr. 2006(13 )SCC36 ,

BHARAT PARIKH VS. C.B.I. & ANR. 2008(10 )SCC109 , Code of Criminal Procedure, 1973: ss. 207, 227 and 482 – Prayer of accused for discharge after charges were framed – HELD: At the stage of framing the charge roving and fishing inquiry is impermissible and submissions of accused have to be confined to the material produced by investigating agency – Documents subsequently filed cannot be relied upon to re-open the proceedings once charge has been framed or for invocation of power of High Court u/s 482. In the instant appeal arising out of rejection of accused’s application seeking to reopen the proceedings and his discharge after the charges had been framed, the questions for consideration before the Court were: (i) whether having framed charges against an accused, a Magistrate has the jurisdiction in law to recall such order on the ground that the prosecution had failed to comply with the provisions of Section 207 of the Code of Criminal Procedure” and (ii) whether in exercise of its inherent powers, the High Court could quash the charges framed and acquit the accused on account of such non-compliance with the provisions of Sections 207 and 238 of the Code

While framing charges, the trial court can only look into the materials produced by the prosecution while giving an opportunity to the accused to show that the said materials were insufficient for the purpose of framing charge.

The question of discharge by the Magistrate after framing of charge does not, therefore, arise, notwithstanding the submissions advanced with regard to denial of natural justice and a fair and speedy trial as contemplated under Article 21 of the Constitution, which have no application whatsoever to the facts of the instant case.

With regard to the High Court’s powers to look into materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under Section 482 of the Code for quashing the charges framed, it has to be kept in mind that after the stage of framing charge, evidence has to be led on behalf of the prosecution to prove the charge if an accused pleads not guilty to the charge and claims to be tried. It is only in the exceptional circumstances that criminal proceedings may be quashed to secure the ends of justice, but such a stage will come only after evidence is led, particularly, when the prosecution has produced sufficient material for charges to be framed.

At the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage; and submissions on behalf of the accused have to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to re-open the proceedings once charge has been framed or for invocation of the High Court’s powers under Section 482 of the Code.

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