PROJECT REPORT

PRINCIPLES
OF

FRAMING
OF

CHARGES

SUBMITTED SUBMITTED BY: MS. ABHISHEK SINGLA ROLL NO.-04/08 SANGITA

TO : BHALLA

[Type the document title]

SE
MESTER-VIII

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Principles of Framing of Charges

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INDEX ACKNO
LEDGMENT.......................................................................................................II

TABLE OF CASES.............................................................................................................III INTRODUCTION.................................................................................................................! MEANING OF CHARGE......................................................................................................"

HAT CHARGE CONTAINS AND ALTERATION OF CHARGE..............................................#

JOINDER OF CHARGES......................................................................................................4 CONVICTION OF AN OFFENCE NOT CHARGED

HEN SUCH OFFENCE IS INCLUDED IN

OFFENCE CHARGED...........................................................................................................$ ITHDRA AL OF REMAINING CHARGES ON CONVICTION ON ONE OF SEVERAL CHARGES............................................................................................................................$

FRAMING OF CHARGE.......................................................................................................!0 BIBLIOGRAPHY.................................................................................................................IV

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ACKNO

LEDGMENT

I would like to thank our Honorable teacher Dr. Sangita Bhalla, for without her valuable guidance, constant encouragement and detailed a roach would not have made it ossible for me to make a ro er research for the to ic! Princi les of "raming of Charges. Her r#cised e$am les, detailed descri tions and enthusiastic a roach made m% efforts to flourish in a right direction. &he work contained herein is an amalgamation of the remarkable work of various authors and I am thankful to them for their ublications that have hel ed me re are this research a er to the best of m% abilities.

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TABLE OF CASES Aftab Ahmad Khan %. State of Hyderabad AIR !$&4 SC 4#' Amar Singh %. State AIR !$&4 P()* !0' B.N. Srikantiah %. State of Mysore Babulal %. Emperor AIR !$#8 PC !#0 Banamali Tripathy %. Emperor AIR !$4# P+, "!" Bhimbadhar Pradhan %. S,+,- ./ O0122+ AIR !$&' SC 4'$ Biri hh Bhuian %. State of Bihar AIR !$'# SC !!"0 !handrama Prasaa !haman 3!$&!4 ! C+5 &#$ !hittaran"an #as %. State of $.B. AIR !$'# SC !'$' Emperor %. #haneshram AIR !$"6 N+7 ""# %.N.Kulkarni %. State !$6# C01 LJ &&! &as'antrai Manilal Akhaney %. S,+,- ./ B.89+: AIR !$&' SC &6& K Sat'ant Singh %. State of Pun"ab AIR !$'0 SC ""' Kantilal %. State of Maharashtra AIR !$60 SC #&$ Kantilal %. State of Maharashtra AIR !$60 SC #&$ Krishnan %. The State AIR !$&8 K-0 $4 Krishnan %. The State AIR !$&8 LJ &!' M.(. Menon %. Kerala S,+,- !$6# C0. LJ #$4 Manna )al %. State !$'6 C0 LJ !"6" Mathura Thakur 3!$0!4 ' C N 6" Moosa Abdul (ahiman %. State of Kerala !$8" C0. LJ !#84 3K-04 Nohar !hand %. State of Pun"ab !$84 C0. LJ 88' 3P;H4 (amalinga *dayar %. Emperor AIR !$"$ M+< "00 (a+inder Pal Singh %. State of Pun"ab "004 C01 LJ !#"" 3P;H4 Shyam Sunder Ker %. State !$'0 C0 LJ #!0 Sri (am ,arma %. State AIR !$&' A55 4'' Sukha %. State of (a"asthan AIR !$&' SC &!# Sura" Pal %. State of -.P. AIR !$&& SC 4!$ Trilo k hand %. (e. AIR !$4$ A55 !86 -nion of /ndia %. Prafulla Kumar Samal 3"00"4 " SCC !#&
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$a0ir Singh %. Emperor AIR !$4" O(<= 8$

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I. INTRODUCTION 'ne basic re(uirement of a fair trial in criminal cases is to give recise information to the accused as to the accusation against him. &his is vitall% im ortant to the accused in the re aration 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 re(uires that the accusations are to be formulated and reduced to writing with great recision and clarit%. &his )charge* is then to be read and e$ lained to the accused erson. 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 recise information about the accusations made against him.+ ,ver% charge under this Code shall state the offence with which the accused is charged. In the State v. Ajit Kumar Saha- the material on record did not show a rima facie case but the charges were framed b% the .agistrate. Since there was no a lication of mind b% the .agistrate the order framing charges was set aside b% the High Court. It is a basic rinci le of law that before summoning a erson to face a charge and more articularl% when a charge sheet is actuall% framed, the court concerned must be e(ui ed with at least rima facie material to show that the erson who is sought to be charged is guilt% of an offence alleged against him./ In State of Karnataka v. Eshwaraiah0 two accused were se aratel% 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 resence of the other accused and the lea has been recorded in the resence of each of the accused and their advocates. It was held that there was no sco e for misunderstanding art la%ed b% each accused and therefore the defect in framing of the charge was a mere irregularit%.

1 2

B.N. Srikantiah v. State of Mysore +122 Cr. 3.4. 56'C7 - Cal 3 Nohar Chand v. State of Punjab +120 Cr. 34 228 5P9H7 4 +12: Cr. 34 +8;2 5<arn7

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II. MEANING OF CHARGE Charge is an accusation made against a erson in res ect of an offence alleged to have been committed b% him.; = charge is the first notice to the risoner of the matter whereof he is accused and which must conve% to him with sufficient clearness and certaint% what the rosecution intends to rove against him and of which he would have to clear himself. 8 &he basic re(uirement is that the charge must be so framed as to give the accused erson as fairl% reasonable idea of the case which he has to face and the validit% of the charge must be determined b% the a lication of the test vi> had the accused a reasonable sufficient notice of the matter with which he was charged.: ?here an accused erson is charged, along with others under Section /@:A+01 and /@-A+01 of the Indian Penal Code but the others are ac(uitted and the accused alone is convicted under Section /@- and /@:, the absence of s ecific charges against the accused under Section /@and /@:, is a ver% serious lacuna in the roceedings and it materiall% reBudices the accused and his conviction for those cannot be maintained.2 In Musa Khan v. State of Maharashtra the =dditional Sessions 4udge framed charges against the accused ersons under Section +01 and /1; of the Penal Code. Since offence under Section /1; of the Penal Code comes into e$istence onl% when act of dacoit% is committed b% five or more ersons Bointl% the (uestions of a l%ing Section +01 was held to be mere sur lusage. &hat is where a charge under Section /1; of the Penal Code is framed no charge under Section +01 for the same offence need be framed. III.
HAT CHARGE CONTAINS AND ALTERATION OF CHARGE

&he charge ma% not s ecif% articular items or e$act dates. &he charge framed in the above manner shall be deemed to be a charge of one offence within the meaning of Section -+1 rovided that the time included between the first and last of such dates shall not e$ceed one %ear. ?here it is im ossible to s ecif% the articular date on which the offence was committed, it will be sufficient to state two dates between which the offence was committed. 1

5 6

Birichh Bhuian v. State of Bihar =IC +18/ SC ++-@ Manna La v. State +18: Cr 34 +-:-D Shyam Sunder Ker v. State +18@ Cr 34 /+@D Krishnan v. !he State =IC +1;2 34 ;+8 7 Chittranjandas v. State of ".B. =IC +18/ SC +818 8 Suraj Pa v. State of #.P. =IC +1;; SC 0+1 9 Banama i !ri$athy v. Em$eror =IC +10/ Pat -+-

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It is ermissible to state in a charge under Section -+-5+7 that the articular offence was committed on or about certain date.+@ Sub!section 5-7 was rimaril% enacted so that ersons who showed a deficienc% in the

accounts with which the% were entrusted could be convicted of criminal misa ro riation even when it could not be shown that the% had misa ro riated an% s ecified sum.++ &he obBect of Section -+/ is twofoldE first to ensure that the accused has sufficient notice of the matter with which he is charged as otherwise he will be seriousl% reBudiced in his defence,+- and secondl% to enable the court to kee in view the real oints in issue and to confine the evidence to such oints. 'mission in a charge cannot be regarded as material unless in terms of Section -+; it is shown b% the accused that he has in fact been misled b% such omissions or that there has been a failure of Bustice as a result of such omission. +/ ?here the accused is not misled defect in the charge is not material.+0 &he irregularit% of charging together different offences instead of charging them se aratel% are curable under this section and Section 08; if the accused is not reBudiced.+; In considering the (uestion whether the accused has been reBudiced in his defence b% the defect in the charge regard must be had to the fact that the obBection to the framing of the charge was not raised till a late stage in the roceedings.+8 &he Code gives am le ower to the courts to alter or amend a charge rovided that the accused has not to face for a new offence or is not reBudiced either b% kee ing him in the dark about that charge or in not giving a full o ortunit% of meeting it and utting forward an% defence o en to him, on the charge finall% referred against him. +: =n% addition or alteration of a charge will not be illegal onl% when it does not reBudice the accused.+2 Fnder Section -+: the accused has a right to recall rosecution witnesses alter the alteration of the charge, even if such alteration does not affect his defence. +1Such right ma% be denied b% the Court if it is of the o inion that the ur ose is onl% dela% or ve$ation or defeating the
10 11

Chittaranjan %as v. State of ".B. =IC +18/ SC +818 "a&ir Sin'h v. Em$eror =IC +10- 'udh 21 12 Krishnan v. !he State =IC +1;2 <er 10 13 (aswantrai Mani a Akhaney v. State of Bomba% =IC +1;8 SC ;:; 14 Bhimbadhar Pradhan v. State of 'rissa =IC +1;8 SC 081 15 Babu a v. Em$eror =IC +1/2 PC +/@ 16 Sukha v. State of )ajasthan =IC +1;8 SC ;+/ 17 Kanti a v. State of Maharashtra =IC +1:@ SC /;1 18 Mathura !hakur 5+1@+7 8 C?6 :19 )ama in'a *dayar v. Em$eror =IC +1-1 .ad -@@

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ends of Bustice. However the Courts do not owe a legal dut% to ask the accused, after the charge has been altered to state whether he wishes to have an% of the witnesses recalled or re! e$amined and whether the wishes to call an% witnesses.-@ &he Code gives am le ower to the trial as well as = not giving a full o ellate Courts to alter or amend a charge rovided the accused has not to ortunit% of meeting it and utting forward an% defence o en to him on face a charge for a new offence or is not reBudiced either b% kee ing him in the dark or in the charge finall% referred against him.-+ IV. JOINDER OF CHARGES &he obBect of the rule embodied in Section -+2 is to ensure a fair trial and to see that the accused is not bewildered b% having been asked to defend several unconnected charges or distinct offences lum ed together in one charge or in se arate charges. -- &here is no e$ce tion to the rule that there should be se arate charge for each offence. &he first art of this section relates to framing of charges. Section -+2 is mandator% and for ever% distinct offence, there should be a se arate charge e$ce ting in those cases which are s ecified in the code. ?here two dacoities are committed in two different houses on the same night a single rolled u charge embracing both dacoities should not be framed.-/ =ccording to sub!section 5-7 the o eration of Sections -+1, --@, --+ and --/ shall not be affected b% the above said basic rule. In other words these sections are e$ce tions to the basic rules contained in Section -+25+7. &hese e$ce tions are based on some rational rinci le or other. In Section -+1 which ermits a Boint trial for offences of the same kind not e$ceeding three in number and committed within a avoidance of a multi licit% of roceedings.-0 5a7,$ce tion + to the basic ruleE Section -+1 makes a rovision for one trial of three offences of the same kind committed b% one accused within a necessar% thatE &he offences must be of the same kind eriod of +- months whether committed in res ect of the same erson or not. "or the a lication of this section, it is eriod of twelve months, the rinci le is the

20 21

Moosa Abdu )ahiman v. State of Kera a +12- Cr. 34 +/20 5<er7 Kanti a v. State of Maharashtra =IC +1:@ SC /;1 22 Aftab Ahmad Khan v. State of +yderabad =IC +1;0 SC 0/8 23 Chandrama Prasaa Chaman 5+1;+7 + Cal ;/1 24 )a,inder Pa Sin'h v. State of Punjab -@@0 Cri 34 +/-- 5P9H7

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&hat the% must be committed within the s ace of +- months from the first to last
&hat the number of them should not e$ceed three.-;

&here are conflicting Budicial o inions as to whether Sections -+1!--+ and --/ are mutuall% e$clusive or whether the% can be used to get a cumulative effect. In other words, the (uestion is whether it is o en to the rosecution to take hel artl% of one section and artl% of another section in order to Bustif% the Boinder of charges or whether the intention of law is that sections should be mutuall% e$clusive and onl% one of the them can be availed of at one time. &he =llahabad High Court has ointed out in this connection that each of the four Sections -+1, --@, --+ and --/ mentioned in Section -+2 can individuall% be relied u on as Bustif%ing a Boinder of charges in res ect of an% trial. Fse cannot be made of two or more of these sections together to Bustif% a Boinder. -8 In other words it is not o en to the rosecution to take hel artl% of one section and artl% of another in order to Bustif% the Boinder of charges.-: "urther it has been observed that the normal rule as embodied in Section -+1 or --@ or --+ or --/. ,ach section is to be an e$ce tion individuall%. It is not the intention of the 3egislature to grou together different sections in order to constitute an e$ce tion.-2 5b7 ,$ce tion - to the basic ruleE 'ffences committed in course of same transaction can be charged at one trial. Fnder Section --@5+7 it is stated that if, in one series of acts so connected together as to form the same transaction more offences than one are committed b% the same erson, he ma% be charged with and tried at one trial ever% such offence. = transaction is defined b% Sir 4ames Ste hen )as a grou of facts so connected together as to be referred to b% a single name, as crime, a contract, wrong or an% other subBect of in(uir% which ma% be in issue.* &he (uestion whether a series of facts are so connected together as to form the same transaction is a (uestion of fact in each case de ending on ro$imit% of time and lace continuit% of action and communit% of ur ose or design. In order to determine whether a grou of facts constitute one, it is necessar% to ascertain whether the% are so connected together as to constitute a whole which can ro erl% be described as a transaction. &he real and substantial test b% same transaction de ends on
25 26

M.). Menon v. Kera a State +1:/ Cr. 34 /10 Sri )am -arma v. State =IC +1;8 =ll 088 27 ..N.Ku karni v. State +1:/ Cri 34 ;;+ 28 Em$eror v. %haneshram =IC +1-: 6ag --/

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whether the% are so related to one another in oint of ur ose or as cause and effect or as rinci al and subsidiar% acts as to constitute one continuous action.

5c7 ,$ce tion / to the basic ruleE 'ffences of criminal breach of trust or dishonest misa ro riation of ro ert% and their com anion offences of falsification of accounts to be tried at one trial. ?hen a erson charged with one or more offences of criminal breach of trust or dishonest misa ro riation of ro ert% as rovided in Section -+-5-7 or in Section -+15+7 is accused of committing for the ur ose of facilitating or concealing the commission of that offence or those offences one or more offences of falsification of accounts he ma% be charged with and tried at one trial for ever% such offenceGSection --@5-7 .an% a time the offence of criminal breach of trust or dishonest misa ro riation of ro ert% is accom anied with the offence of falsification of accounts the latter offence being committed for the ur ose of facilitating or concealing the commission of the former offence. Section --@5-7 enables to have these offences tried at one trial. 5d7 ,$ce tion 0 to the basic ruleE Same act falling under different definitions of offences such offences ma% be tried at one trial. If several acts of which one or more than one would b% itself or themselves constitute an offence, constitute when combined a different offence, the erson accused of them ma% be charged with and tried at one trial for the offence constituted b% such acts when combined and for an% offence constituted b% an%one or more of such actsGSection --@5/7. &his section ma% be convenientl% read with Section :+ of the IPC which inter alia rovides that Hwhere an%thing is an offence falling within two or more se arate definitions of an% law in force for the time being b% which offences are defined or unished, the offender shall not be unished with a more severe unishment than the court which tries him could award for an% one of such offences.I In such a case however the accused can be charged with and tried in one trial for all such offences. 5e7 ,$ce tion ; to basic ruleE =cts forming an offence also constituting different offences when taken se aratel% or in grou sGall such offences to be tried at one trialGIf several acts of which one or more than one would b% itself or themselves constitute an offence, constitute when combined a different offence, the erson accused of them ma% be

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charged with, and tried at one trial for the offence constituted b% such acts when combined and fro an% offence constituted b% an% one or more of such actsGSection --@507. Section :+ of IPC rovides that where several acts, of which one or more than one would b% itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be unished with a more severe unishment than the court which tries him could award for an% one of such offences. However according to Section --@507 the accused erson can be charged with and tried at one trial for all such offences. Section --@5;7 rovides that nothing contained in Section --@ shall affect Section :+ of the IPC. 5f7 ,$ce tion 8 to the basic ruleE ?here it is doubtful what offence has been committed. =ccording to sub!section 5+7 of Section --+ several offences under this section need not necessaril% be offences of same kind but ma% be offences of different kinds. &he essential thing is that all of such offences must arise out of a single act or set of acts. &he court under this section ma% frame cumulative charges or charges in the alternative. But a charge alternativel% of two different offences under different section of IPC based on same facts is not ermissible under this section. "or e$am le a erson charged with ra e on a married woman cannot be alternativel% charged with adulter% with same woman and on the same facts as a com laint for adulter% should be actuall% instituted b% the husband. Sub!section 5-7 rovides that a man ma% be convicted of an offence although there has been no charge in res ect of it, if the evidence is such as is sufficient to establish that offence. However, offences charged and offences shown b% evidence to have been committed must be cognate offences, such as criminal breach of trust and attem t to cheat. =ccording to some High Courts the actual commission of an offence and its abetments are also cognate offences.
(g) ,$ce tion : to the basic ruleE Certain rovisions ma% be charged Bointl%. Section --/

a lies onl% to trials and not to in(uiries. = Boint trial of several ersons under this section is not vitiated merel% b% the facts that at the end of the trial the facts found ha en to be different from those on the basis of which the charges were originall% framed.-1 It was held in A.). Antu ay v. ).S. Nayak/@ that an accused erson cannot assert an% right to a Boint trial with his co!accused. It is the right of the rosecution to decide whom to rosecute. In Ayodhya Sin'h v. State of )ajasthan//+ =%odh%a Singh and Hira
29 30

!ri ockchand v. )e0 =IC +101 =ll +2: +122 Cr. 34 +88+ SC 31 =IC +1:- SC -;@+

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Singh were charged Bointl% for the offences under Section 0;: read with Section :;, IPC and under Section /2@ read with Section :; IPC. It was considered that there had been mis!Boinder of charges. It was held b% the Su reme Court that the accused Bointl% committed the offences with which the% were charged and that those offences were committed in the course of same transaction. &he two accused could conse(uentl% be charged and tried together. Clause 5a7 states that the words )same offence* means an offence arising out of the same act or series of acts./- &he% im l% that the accused erson must have acted in concert or association. Clause 5b7 states that the Boinder of three charges under Section 0-@ of the IPC against one accused with three charges of abetment of those offences against another accused is legall% ermissible and ro er.// Clause 5c7 states the words )within the meaning of Section -+1* indicate that, what was meant b% the words )offence of the same kind* in clause 5c7 of Section --/ is the same thing as was meant b% the identical e$ ression used in Section -+15+7 defined in Section -+15-7 and nothing more. If it was intention of the legislature to rovide that the number of offences for which several accused ersons could be tried under clause 5c7 of Section --/ should be limited to three as rovided in Section -+15+7, the legislature would have e$ ressed the same in so man% words. Clause 5d7 states that the offence of cons irac% and the offences committed b% each cons irator in ursuance of the cons irac% are Hoffences committed in the course of the same transactionI within the meaning of Section --@ and ersons accused of such offences can be tried Bointl% b% one trial. &he common concert and agreement which constitute the cons irac% serve to unif% the acts done under it. Identit% of time is not essential in determining whether certain events form the same transaction within the meaning of Section --/. It is the continuit% of action and the sameness of ur ose that determine whether the events constitute the same transaction. Clause 5e7 states an offence which includes theft means an offence of which theft is an essential ingredient.

32 33

Amar Sin'h v. State =IC +1;0 PunB +@8 K Satwant Sin'h v. State of Punjab =IC +18@ SC --8

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Clause 5f7 states that the e$ ression ) ossession of which has been transferred b% one offence* refers to the original theft of the ro ert% stolen on one occasion. &herefore where different receiving stolen ro erties stolen at one theft were received b% several ro erties. However ersons found in ersons at different times, all or an% of such receivers can be tried Bointl% for their offences of ossession of such stolen ro erties secured b% different thefts cannot be tried Bointl% under this clause. Power of Court to order se arate trial in cases where Boinder of charges or of offenders is ermissible &he basic rule regarding charge is that for ever% distinct offence there shall be a se arate charge and for ever% such charge there shall be a se arate trial. &he onl% e$ce tion recognised is contained in Sections -+1, --@, --+ and --/. &herefore se arate trial is the rule and the Boint trial is an e$ce tion. &he sections containing the e$ce tion are onl% enabling rovisions. = court has got the discretion to order a se arate trial even though the case is covered b% one of the e$ce tions enabling a Boint trial. = Boint trial of a ver% large number of charges is ver% much to be de recated even though it is not rohibited b% law. = se arate trial is alwa%s desirable whenever there is risk of reBudice to the accused in a Boint trial. V. CONVICTION
OF AN OFFENCE NOT CHARGED HEN SUCH OFFENCE IS INCLUDED IN

OFFENCE CHARGED

Section --- contem lates a conviction of minor offence included in the offence charged in either of the two casesE ?here the offence charged consists of several articulars a combination of some onl% of which constitutes a com lete minor offence and such combination is roved but the remaining articulars are not roved. ?here facts are roved which reduce the offence charged to a minor offence. But there can be no conviction for maBor offence on a charge of minor one. &his section is an e$ce tion to the rule that a erson cannot be convicted of an offence with which he is not charged. VI.
ITHDRA AL OF REMAINING CHARGES ON CONVICTION ON ONE OF SEVERAL CHARGES

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?hen a charge containing more heads than one is framed and the conviction has been had on one or more of them the com lainant or the erson conducting the rosecution ma% with the consent of the Court withdraw the remaining charge or charges or the Court ma% of its own accord sta% en(uir% or trial of such charge. &he withdrawal of charge or the sta% of en(uir% or trial is ossible onl% on the conviction being on an% other charge. Section --0 allows withdrawal or sta% of charges onl% when conviction has been assed on one or more of the charges. ?hen before the beginning of the trial the ublic rosecutor withdraws the charge of the offence under one head the section has no a lication. VII. FRAMING OF CHARGE Before invoking rovisions of Sections --: and --2 dealing with trials before the Court of Session, no court takes note of Section --8 which obliges the rosecution to describe the charge brought against the accused and state b% what evidence the guilt of the accused would be roved. &his oint was stressed b% the two!4udge Bench in Satish Mehra v. %e hi Admn.12 But it is a matter of regret that neither the courts nor the rosecution com lies with this section. It ma% reduce the workload of the courts if the trial courts insist u on the rosecution to strictl% com l% with the rovisions of Section --8 of the Code inasmuch as the courts can discharge the accused if there is no rima facie case. &he Su reme Court in Sajjan Kumar Js. Centra Bureau13 of Investigation has e$amined the legal rovisions and authorities on framing of charge in criminal rosecutions. ?hile reiterating the legal rinci les evolved b% the courts over the %ears, the HonKble Su reme Court held as underE In #nion of 4ndia v. Prafu a Kumar Sama 15, the sco e of Section --: of the Cr.P.C. was considered. =fter adverting to various decisions, this Court has enumerated the following rinci lesE L5+7 &hat the 4udge while considering the (uestion of framing the charges under Section --: of the Code has the undoubted ower to sift and weigh the evidence for the limited ur ose of finding out whether or not a rima facie case against the accused has been made out.

34 35

+118 5/7 Crime 2; SC S.3.P. 5Crl.7 6o. 8/:0 of -@+@ 36 +1:1 =IC /88

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5-7 ?here the materials laced before the Court disclose grave sus icion against the accused which has not been ro erl% e$ lained the Court will be full% Bustified in framing a charge and roceeding with the trial. 5/7 &he test to determine a rima facie case would naturall% de end u on the facts of each case and it is difficult to la% down a rule of universal a lication. B% and large however if two views are e(uall% ossible and the 4udge is satisfied that the evidence roduced before him while giving rise to some sus icion but not grave sus icion against the accused, he will be full% within his right to discharge the accused.

507 &hat in e$ercising his Burisdiction under Section --: of the Code the 4udge which under the resent Code is a senior and e$ erienced court cannot act merel% as a Post 'ffice or a mouth iece of the rosecution, but has to consider the broad robabilities of the case, the total effect of the evidence and the documents roduced before the Court, an% basic infirmities a earing in the case and so on. &his however does not mean that the 4udge should make a roving en(uir% into the ros and cons of the matter and weigh the evidence as if he was conducting a trial.L In %i awar Ba u Kurane,/: the rinci les enunciated in Prafu a Kumar Sama have been reiterated and it was heldE L+-. 6ow the ne$t (uestion is whether a rima facie case has been made out against the a ellant. In e$ercising owers under Section --: of the Code of Criminal Procedure, the settled osition of law is that the 4udge while considering the (uestion of framing the charges under the said section has the undoubted ower to sift and weigh the evidence for the limited ur ose of finding out whether or not a rima facie case against the accused has been made outD where the materials laced before the court disclose grave sus icion against the accused which has not been ro erl% e$ lained the court will be full% Bustified in framing a charge and roceeding with the trialD b% and large if two views are e(uall% ossible and the 4udge is satisfied that the evidence roduced before him while giving rise to some sus icion but not grave sus icion against the accused, he will be full% Bustified to discharge the accused, and in e$ercising Burisdiction under Section --: of the Code of Criminal Procedure, the 4udge cannot act merel% as a ost office or a mouth iece of the rosecution, but has to consider the broad robabilities of the case, the total effect of the evidence and the documents roduced
37

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before the court but should not make a roving en(uir% into the ros and cons of the matter and weigh the evidence as if he was conducting a trial 5see #nion of 4ndia v. Prafu a Kumar Sama 7. +8. It is clear that at the initial stage, if there is a strong sus icion which leads the Court to think that there is ground for resuming that the accused has committed an offence, then it is not o en to the court to sa% that there is no sufficient ground for roceeding against the accused. &he resum tion of the guilt of the accused which is to be drawn at the initial stage is onl% for the ur ose of deciding rima facie whether the Court should roceed with the trial or not. If the evidence which the rosecution ro oses to adduce rove the guilt of the accused even if full% acce ted before it is challenged in cross!e$amination or rebutted b% the defence evidence, if an%, cannot show that the accused committed the offence, then there will be no sufficient ground for roceeding with the trial. = .agistrate en(uiring into a case under Section -@1 of the Cr.P.C. is not to act as a mere Post 'ffice and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but onl% for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no rima facie evidence or the evidence is totall% unworth% of credit, it is the dut% of the .agistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction ma% reasonabl% be based, he must commit the case. It is also clear that in e$ercising Burisdiction under Section --: of Cr.P.C., the .agistrate should not make a roving en(uir% into the ros and cons of the matter and weigh the evidence as if he was conducting a trial. +:. ,$ercise of Burisdiction under Sections --: 9 --2 of Cr.P.C. 'n consideration of the authorities about the sco e of Section --: and --2 of the Code, the following rinci les emergeE! 6i7 !he (ud'e whi e considerin' the 8uestion of framin' the char'es under Section 99: of the Cr.P.C. has the undoubted $ower to sift and wei'h the e,idence for the imited $ur$ose of findin' out whether or not a $rima facie case a'ainst the accused has been made out. !he test to determine $rima facie case wou d de$end u$on the facts of each case. 6ii7 "here the materia s $ aced before the Court disc ose 'ra,e sus$icion a'ainst the accused which has not been $ro$er y e0$ ained/ the Court wi be fu y justified in framin' a char'e and $roceedin' with the tria .
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6iii7 !he Court cannot act mere y as a Post *ffice or a mouth$iece of the $rosecution but has to consider the broad $robabi ities of the case/ the tota effect of the e,idence and the documents $roduced before the Court/ any basic infirmities etc. +owe,er/ at this sta'e/ there cannot be a ro,in' en8uiry into the $ros and cons of the matter and wei'h the e,idence as if he was conductin' a tria . 6i,7 4f on the basis of the materia on record/ the Court cou d form an o$inion that the accused mi'ht ha,e committed offence/ it can frame the char'e/ thou'h for con,iction the conc usion is re8uired to be $ro,ed beyond reasonab e doubt that the accused has committed the offence. 6,7 At the time of framin' of the char'es/ the $robati,e ,a ue of the materia on record cannot be 'one into but before framin' a char'e the Court must a$$ y its judicia mind on the materia $ aced on record and must be satisfied that the commission of offence by the accused was $ossib e. 6,i7 At the sta'e of Sections 99: and 99;/ the Court is re8uired to e,a uate the materia and documents on record with a ,iew to find out if the facts emer'in' therefrom taken at their face ,a ue disc oses the e0istence of a the in'redients constitutin' the a e'ed offence. <or this imited $ur$ose/ sift the e,idence as it cannot be e0$ected e,en at that initia sta'e to acce$t a that the $rosecution states as 'os$e truth e,en if it is o$$osed to common sense or the broad $robabi ities of the case. 6,ii7 4f two ,iews are $ossib e and one of them 'i,es rise to sus$icion on y/ as distin'uished from 'ra,e sus$icion/ the tria (ud'e wi be em$owered to dischar'e the accused and at this sta'e/ he is not to see whether the tria wi end in con,iction or ac8uitta .

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BIBLIOGRAPHY B..>2

K-5>+0? R.V.? C0181)+5 P0.@-<(0- C.<-? &,= -<1,1.) E+2,-0) B..> C.8A+):?

L(@>).B? ? 3"0084 M120+? S.N.? T=- C.<- ./ C0181)+5 P0.@-<(0-? !$6# B1,= P0.9+,1.) ./ O//-)<-02 A@, ; J(%-)15- J(2,1@- A@,? !6,= -<? C-),0+5 L+B P(951@+,1.)2 3"0!!4 R+,+)5+5 ; D=10+*5+5? C.<- ./ C0181)+5 P0.@-<(0-? !6,= -<1,1.)? L-C12 N-C12 B(,,-0B.0,=2 +<=B+? N+7A(0 3"0044

S+0>+0D2? T=- C.<- ./ C0181)+5 P0.@-<(0-? DB1%-<1 L+B A7-)@: A55+=+9+<? R-A01), 3"0064 A0,1@5-2 C=1,)12? S.R.? EF0+81)7 ./ C=+07- 1) C0181)+5 C+2-2F? E+2,-0) B..> C.8A+): 3"00"4 J+1)? T+0()? EF0+81)7 ./ G@=+07-D 1) @0181)+5 ,01+5: T=- 5+B 0-%121,-<F? L+B 1) P-02A-@,1%- 3"0!04 S+,=+21%+8? J(2,1@- P.? EF0+81)7 ./ C=+07-: P01)@1A5-2 +)< L+BF? T=- L-7+5 B5.7? 3"0!!4
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-921,-2 =,,A://BBB.-9@-1)<1+.@.8/5+B:-0/+0,1@5-2/"00"%"+#.=,8 =,,A://5-7+5A-02A-@,1%-2.95.72A.,.1)/"0!0/!0//0+81)7-./-@=+07--1)-@0181)+5-,01+55+B.=,85 =,,A://BBB.5-7+595.7.1)/"0!!/08//0+81)7-./-@=+07--A01)@1A5-2-+)<-5+B.=,85

~Code of Criminal Procedure~