3.1 Framing of charge before Trial in the Magistrate Court
Section 242 specifies the time of framing charge by the Magistrate. On the day fixed for the trial to begin the accused appears, or is brought before the Magistrate. The Magistrate will first consider the record of the case. And he will hear the parties. Having done that if he considers the charge to be groundless, he may discharge the accused. If on the other hand, the Magistrate is of the opinion that there is a prima facie case for the accused, and he is competent to try the case, he shall frame a formal charge. The charge must contain sufficient particulars as to time, place, person and circumstances. So that the accused may have notice of the matter with which he is charged. It is very important to note that formal trial starts with the framing of charge.
3.2 Framing of Charge before Trial in the Session Court
After the opening of the prosecution case, the Session Judge will give both the sides chance to argue in favour of framing charge or discharge. After such hearing and considering the record of the case if the Judge considers that there is no sufficient ground or prima facie case for proceedings against the accused, he shall discharge the accused and record the reason for so doing. If, on the other hand, the Judge considers that there is a prima facie case against the accused, it shall frame a charge Formal trial starts with the framing of charge.
3.3 Court may alter Charge
Any Court may alter or add any change at any time before judgement is pronounced.
Every such alteration or addition shall be need and explained to the accused.[1] Illustration
Any court may alter or add to any charge at any time before the Judgments pronounced. Every such alteration or addition shall be read over and explained to the accused. The court shall decide according to the circumstances of the case, as to whether the trial should proceed immediately after alteration of the charge or some time is to be given to the parties. The court has discretion to alter or add to a charge framed under the code. Where in the course of the evidence an offence more aggravated than the one complained of is discovered, it is the duty of the court to charge the accused with the more aggravated offence.[2]
It is the duty of the Magistrate to alter or amend the charge, when in the course of a trial he finds at any time before judgement is pronounced that the trial has proceeded on imperfect or erroneous charge,[3]
3.4 Charge to be framed
If, after such consideration and hearing as aforesaid, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence. The magistrate shall frame a formal charge relating to the offence of which he is accused and he shall be asked to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he charged.[4]
The Magistrate before talking any evidence but considering the provision lf section 241 A Cr. P. C shall frame charge. A charge under this section should allege all that is necessary to constitute the offence charged. The conditions for the framing of a charge are presumption of the commission of an offence on materials before the court. Charged should be framed on perusal of papers as contemplated under section 241 A Cr. P. C needs the following conditions namely: (a) the existence of a prima facie case on the basis of materials before the court (b) the offence being triable under Chapter XX (c) [5]the Magistrates competency to try and (d) the Magistrates power to inflict adequate punishment. On the fulfillment of these conditions, charge should be framed.
If, after such consideration and hearing as aforesaid, the Court is of opinion that there is ground for presuming that the accused has committed an offence, it shall frame in writing a charge against the accused. Where the Court frames a charge under sub-section (1). The charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried section -265(D).[6]
The charge-sheet to which the accused is called upon to plead is a very important document. It should be drawn up and considered with extreme care and caution, so that accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter. The word ‘Ground” means basis, foundation or valid reason. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. Conditions for framing of a charge are (i) presumption of the commission of an offence on the materials before the court (7 CWN 512) and (ii) offences triable exclusively by a Court of Session.
Special law prevails over this section
Where a special law is applicable the provisions of that law cannot be ignored. Therefore, where the provisions of the Motor Vehicles Ordinance are applicable, resort to the provisions of section 242 is illegal.
(1) If, after such consideration and hearing as aforesaid, the Court is of opinion that there is ground for presuming that the accused has committed an offence, it shall frame in writing a charge against the accused.
(2) Where the Court frames a charge under sub-section (1). The charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. The charge-sheet to which the accused is called upon to plead is a very important document. It should be drawn up and considered with extreme care and caution, so that accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter. The word ‘Ground” means basis, foundation or valid reason.
The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. Conditions for framing of a charge are (I) presumption of the commission of an offence on the materials before the court and
(ii) Offences trouble exclusively by a Court of Session.
3.5 When framing of charge could be finished
The opportunity allowed by the legislature to the accused in sec-246 (4)(6) of cross-examining the witness for the prosecution after the charge sheet has been framed can not be substituted for the opportunity to which he is entitled when the witness are examined and before the charge is framed. The Magistrate is not bound to take more evidence than is sufficient to convince him of the truth of the charge. The evidence of even one witness could be sufficient under this section to justify the Magistrate in framing charge. The fact that the charge was not framed as it could have been immediately after the evidence of the witness for the prosecution had been completed and a few other prosecution witness are examined-in-Chief before the framing of the charge can at best be regarded as an irregularity and if a cross-examination then takes place. A second cross examination refused. The alteration enables the accused to cross-examine the prosecution witnesses on their first attendance.[7]
Judicial Application
4.1 Trial in Court
The charge is the inquiry stage from trial. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that accused has to meet and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The family of a proper charge is vital to a criminal trial and this is a matter on which the judge should best the most careful attention. A charge is defined as a precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. The necessity of a system of written accusation specifying a definite criminal offence is the essence of criminal procedure.[8] The charge should be stated for the guidance of the trial courts that in all cases where charge are framed for substantive offence read with the penal code additional separate charges should be framed against each individual accused for an offence directly committed by him while being a member of such assembly. the requirements of Law under section-221 is that a charge should the offence committed by the accused and mention the specific name of the offence if any specific name has been given to it by law. If the law has does not give any specific name of the offence particulars should be set out to give requisites notice to the accused.[9]
Consideration of the statements made under section 161 Cr. P C while framing of charge or otherwise is a necessary part of the Courts duty. The court has jurisdiction to pass an order of discharge if it was give reasons but if it framed charge. It was not required of the court to record reasons. The case having been sent to the Special Judge after taking cognizance by the Senior Special Judge there is no illegality in the adding of a fresh charge by the former[10].. The petitioner have enclosed a certificated of the Registration Certificate issued to the complainant under No. 10036 in Class 1, with the description of goods reads as follows Agricultural implements of larger kind for the on the very face of it the complainant opposite party does not hold any Registered Trade Mark in respect of Rice Hauler Screen is there fore prima facie his petition of complainant does not disclose any offence against the petitioners.
The petitioners further alleged in their application that before filling the present petition of complainant, the complainant opposite party instituted Title Suit No.8/77 on 05.05.77 in the Court of the District judge, Dhaka for permanent injunction and for damages for infringement of registered Trade Mark Nawka Brand against the firm M/S Agrani Prakaushali Karkhaua on the same allegation as made in the petition of complaint. On the 21.05.77 the complainant opposite party obtained an ex party order of temporary injunction against the said firm. As preferred F.M.A. No.220/77 and also obtained an ad-internist of operation of the order of temporary injunction from this Court. we have perused the petition of complaint of the complainant opposite party. It is not the case of the complainant that by long user practice and business tradition the Nawka brand has acquired the status of a property mark in the Rice Hauler Screens manufactured by the complainant that the Nawka Brand on Rice Hauler Screens is his registered trade mark. Registration No. 10036 does not disclose that. It does not show that the Nawka brand is a registered trade mark of the complainant opposite party in respect of his Rice Hauler Screens. On the face of it there fore the complainant opposite party has falled to make out a prima facie offence U/S, 481 or 482 of the Penal Code against the petitioners. it is also found that prior to the filling of the petition of complaint the complainant opposite party filed Title Suit No-08/77 in the Court of the learned District Judge , Dhaka for permanent injunction and for damages for infringement of registered trade mark Nawka Brand on the same[11] allegation as made in the petition of complaint and that the suit is still pending in the case of 488 it was held, “Ordinarily the infringement of a trade mark is rather a civil than a criminal wrong, but as civil proceedings may require much time and expenditure to bring them to a conclusion, the legislature in its anxiety to protect traders, has allowed resort to the Criminal Courts to provide a speedy remedy in cases where the aggrieved party is diligent and does not one by his conduct show that’s the case is not one of urgency. If, therefore the person aggrieved falls to resort to the Criminal Courts within a year of the offence coming to his knowledge, the law assumes that the case is not civil remedy by an action for injunction
4.2 Trial in Session Court
Power of the session court to frame appropriate charge is not trammeled by specification contained in the sending of the case and not of the accused the session court can add certain person as accused not included in the sending order. In the matter of family of charge the court can not act bindle. The charge framed by the Magistrate can not be held to be illegal only because while framing the charge the judge has referred to certain document. The Magistrate is bound to consider not only the first information report, but also the statements recorded under section -161 of the Code of Criminal Procedure.[12]
The trial Court to frame charge under any particular section of the Penal Code. He submits that the learned Sessions Judge committed gross illegality in directing the learned magistrate to frame a charge under section 326 of the Penal Code against this petitioner. The learned Advocate for the petitioner in support of his submission placed reliance on the decisions reported. The trial Court to frame a charge under a particular section of the Penal Code which cannot be interfered with by the provisional Court by way of giving direction for altering the charge or framing the charge. In view of the consistent decisions of the superior Courts of this county I hold that the impugned order dated 20.10.91 passed by the learned session Judge is illegal and it requires interference. In this case charge-sheet was submitted by the police under the aforesaid sections of the Penal Code. Section 241A of the Code of Criminal Procedure provides that if the Magistrate on consideration of the record of case and the documents submitted there with and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, considers the charge to be groundless, he shall discharge the accused and record his reasons for so doing and section 242 of the Code of Criminal Procedure provides that if, after such consideration as contemplated under section 241A of the Code of Criminal Procedure the Magistrate is of opinion that there is ground for presuming that the accused has committed in offence, the Magistrate shall frame a formal charge relating to the offence of which he is accused. Here, in the present case before us, it appears that the learned Magistrate, after hearing the learned Advocate of both the sides and on consideration of the materials on record, framed charge under sections 147/323/325 of the Penal Code and thereafter proceeded with the trial. Then the informant moved the learned sessions Judge in Criminal Revision No. 33 of 1991 under sections 435/436 and 439A of the Code of Criminal Procedure and after hearing both the sides he passed the impugned direction. But the consistent view of this Court as found from the aforesaid two decisions that the learned sessions Judge cannot pass any such direction for framing charge under a particular section of the Penal Code. Considering the case of the respective parties the learned Sessions Judge may direct for further enquiry but he cannot form his own opinion in such a provisional application and direct the trial Court to frame charge under a particular section of the Penal Code. If during trial it transpires that charge ought to have been framed under a higher section of the Penal Code or a change in the charge is necessary then the trial Court may take any step for framing fresh charge and proceed with the trial. Here in this case, on consideration of the materials on record, if the trial Court finds that a charge under section 326 of the Penal Code would have been the proper charge that court has the authority to frame a fresh charge, But in the present case before us the revisional Court acting under sections 436/435 and 439A of the Code of criminal Procedure directed the trial Court to frame charge under a particular section of the Penal Code, that is, under section 326 of the Penal Code.
Section 242 of the Code of Criminal Procedure has given wide power to the trial Court to frame a charge under a particular section of the Penal Code which cannot be interfered with by the revisional Court by way of giving direction for altering the charge or framing the charge. In view of the consistent decisions of the superior Courts of this county I hold that the impugned order dated 20.10.91 passed by the learned session Judge is illegal and it requires interference.
The time of hearing of the petition filed certain that the case is punishable under section 326 of the Penal Cold, but those documents cannot he considered by this Court at this stage. If the offence is punishable under section 326 of the Penal Code this may be agitated before the trial Court who, if necessary may after the charge but that cannot be directed from any revisional Court.[13] In that case there were allegation of the use of lathes by a number of the accused persons were twenty in all as well as an allegation that Pal fired a pistol twice killing one person and another. The accused persons were placed on charge under sections 147, 148 and section 323, 307 and 302 read with section 149 of the India Penal Code. There were no specific charge against Suraj Pal for having caused death by means of pistol shot, although he was specifically charged section 148 IPS for being armed with while engaging in a riot. The absence of the charge against Suraj Pal u/s 307 and 302 IPC regarded as a very serious lacuna in the proceed and it was considered whether this lacuna had predicted him in his trial. It was observed that a charge a substantive offence read with section 149 IPC a charge of “constructive liability” and that individual liability of a person can be fixed with a specific charge in respect of a particular offence.
Upon these facts the Supreme Court held –
Whether or not section 149 IPC. Creates a distinct offence ( as regards which there has been conflict of views in the High Courts) there can be no doubt that it creates a distinct head of criminal liability which has come to be known as “ constructive liability a phrase not used in IPC There can therefore be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence.
Such case is not covered by sections 236 and 237 Cr.PC. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence, thereof,
The question then arose for consideration whether such lacuna has prejudiced the accused or not.
On consideration of the question of prejudice it was held. In all the circumstances above noticed , we are satisfied that the absence of specific charges against the appellants under sections 307 and 302 IPC has materially prejudiced him. Charges were framed under sections 148/302/149 of the Penal Code. The accused appellants were convicted under section 302 of the Penal Code. It was argued that since no charge was framed against the accused appellants under section 302 of the Penal code, they were seriously prejudiced and that the order of conviction and sentence as passed upon them should be set aside. It was held in that case that the conviction of the two aforesaid accused for murder under section 302 PPC direct was, by virtue of sections 236 and 237 Cr P.C, not illegal although they was, on the evidence, an element of doubt in regard to the precise offence. Whether under section 302 or sections 302/149 PPC, committed, which was sufficient to justify, within the term of section 236 Cr.PC the framing of a charge under section 302/149 PPC and conviction the two accused under section 302 PPC on the basis of direct evidence of dye-witnesses.
By section 236 CR.PC the Court is expressly permitted to frame a charge in respect of any of the several offences which might have been charged. By the application of section 237 Cr.PC a conviction can legally be obtained, in a case of this kind, of any offence which appears from the evidence to have been committed although it was not expressly charged. . The Supreme Court of Pakistan had also taken into consideration the facts and circumstances of the case of Suraj Pal and distinguished the same by saying that the facts in the case of Suraj Pal were distinct and admitted of no doubt as to the complicity of the accused with the distinct head of crime and as such provisions of the sections 236 and 237 of the Code of Criminal Procedure were not applicable but in the case of Md. Anwar the facts being doubtful in nature as to what offence or distinct head of liability the case would fall, there was room for doubt and as such, such doubtful facts rendered the case of Md Anwar to fall u/s. 237 Cr/PC. Furthermore, their Lordships felt that no prejudice was caused to the accused in that case by alteration of the charge.
Let us now examine the provision of sections 236 and 237 of the Code of Criminal Procedure so as to see if the same are attracted in the instant case in the context of the facts appearing. Section 236 Cr.PC. runs as follows:
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
Section 237 Cr.PC runs as follows:
If in the case mentioned in section 236, the accused is charged with the offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
The principle as enunciated in section 236 Cr.PC is an exception to the general rule that every distinct offence there shall be a distinct charged Section 236 contemplates somewhat uncertainly the beginning of the trial as to the offence comes by the accused and as such doubt or uncertainly persist till facts disclosed in the evidence there prosecution witnesses and such doubt may rest at the conclusion of the trial. But where they still continues till the end of the trial, in which of the several offences committed caused, the accused must be convicted for such or any of the offence although no specific has been framed with regard to such offence.
In the instant case the fact disclosed prosecution witnesses is that the accused appellant and others entered into paddy field where Sona Miah was plaguing and started ploughed ensued which subsequently turned into violets saults ending in the murder of Sona Miah common object of the unlawful assembly forcible possession of the land and to cause the use of the weapons carried by the member unlawful assembly. When broil ensued accused plants suddenly inspired by common intention the murder of Sona Miah. Accused Khurshed struck the deceased on the back and head by their sulfas causing fatal injured sulted in Sona Miah’s death Upon circumstances the court framed charges 148/302/149 P.C. The Court appears to be sure as to which sections of the Penal Code tract in order to frame the charge.Such being tract in order to frame the charge. Such being the element of doubt persisted from beginning of the trial and it remained conclusion of the trial. The learned judge have framed charge under section 302/34 penal code argued that since charges under section 148/56of the Penal Code have not been brought the prosecution , the accused appellant cannot victed u/s. 302 or that at the appellate stage action of charge is permissible under Law.
Section 423(1) (b) Cr.P.C Emerson appellate Court to (1) reverse the finding and acquit or discharge the accused or order a Court of competent jurisdiction subordinate to such appellate Court or committed for trial or (2) alter the finding reduce the sentence or (3) with or without altering the finding alter the nature of the sentence but subject to the provision of section 106, sub-section (3) not so as to enhance it. It is thus clear that sec, 423(1) (b) is confined to cases of appeals preferred against order of conviction and sentence and that this power can not be exercised for the purpose of reversing an order of acquittal passed in favour of party in respect of an offence charged while dealing with an appeal against the order of conviction in respect of an offence found proved.
The statements made under section 161 while framing charge or otherwise is the necessary part of the courts duty. Trial Court has the wide power under the law regarding framing of charge. This can not be interfered with lightly either by the provisioned court or the appellate Court. Usually Police submit charge drawing attention of the witness to his previous statements. We, therefore, hold that to frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial Court is not obliged to concider the statements of any witness recorded under section 164 CrPC. We, therefore, find no illegality in the order dated 04-09-95 under. the ground that he was not sure as to their respective addresses and ,as such, if they were released important witnesses would be lost. We fully appreciate this view of the learned Special Tribunal judge. But at the same time we find that they can not be kept in the judicial custody for a indefinite period.
Within two months from the date of receipt of the LC. Records and then shall discharge the two girls from the judicial custody after a reasonable time.[14]
Chapter –5
CONCLUSION
Charge is an accusation against a person with respect to the commission of an offence. Every charge shall state the section of the law along with the name of the offence, if any, which the accused is charge and shall also state the time, place and the manner of the occurrence as well as the person against whom or the thing in respect of which the offences has been committed. Previous conviction of the person charged with, if any, may also be mentioned, because it directs severe punishment. For every offences there shall be a separate Charge and the charge be tried separately except in the cases mentioned with the section. In one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, the person may be charged with and tried at one trial for every such offences.
If the offences so committed falls with in the definition the accused may be charged with both offences and tried at one trial for each of such offences. On framing of charge the same be read over and explained to the accused and his reply shall have to be recorded in the prescribed form and the Magistrate shall sign the same. The matter of framing of the charge may also be noted in the order sheet of the case. In necessary charge can be attested. And if it attested it should be read over the same.
Reference
Md. Zahurul Islam, The Code of criminal Procedure, 4th ed, (Dhaka: Super offset printers Ltd, 2000).
G.F.Samford, Criminal Law & It Process, 1st Ed, (Colifornia: Brooks publishing Company, 1986).
The Code of Criminal Procedure (Dhaka: The Deputy Controller forms and publications office-1998).
Zahirul Huq, Law and Practice of Criminal Procedure, 10th ed,(Dhaka: Bangladesh Law Book Company-2000).
Md. Abdul Halim, Text Book on Criminal Procedure Code, 2nd ed, (Dhaka: CCB publication, 2008).
Justice YV Chandrachud and Monohar,The Code of Criminal Procedure, 15th ed,( New Delhi: wadhwa and Company Law Publishers,2002).
Five years MLR Criminal Reference,(Dhaka: Janani Art Press,2001).
Michel Allen, Text Book on Criminal Law, 8th ed, (New York: Oxford University Press, 2005).
J A Hymongross, Theory of Criminal Justice, 7th ed, (New York: Oxford University Press, 2002).10. Muhammed Sohul Hossain, Cr p.c. Today, 3rd ed, (Dhaka, Super offset printers Ltd., 1996).
Case References
1. H. M Ershad v.State, 45(1992) DLR (HCD) 533.
2.Shariful Islam v. Billal Hossain &The State, 45 (1992) DLR (HCD) p-722.
3. Forhad Hossain (Md) and others v. State, 50 (1998) DLR (HCD) p.p-337-339.
[1] , The Code of Criminal Procedure (Dhaka: The Deputy Controller forms and publications office-1998). P.99.
[2] Zahirul Huq, Law and Practice of Criminal Procedure, 10th ed, ( Dhaka: Bangladesh Law Book Company-2000),p.422.
[3] Md. Zahurul Islam, Ibid, p.701.
[4] Muhammed Sohul Hossain, Criminal Procedure Code Today, 3rd Edition (Dhaka: Super offset printers Ltd.,1996), p.200 .
[6] Md. Zahurul Islam, Ibid, p. 716.
[7] Woodroffes, Commentaries On The Code Of Criminal Procedur,2nd Edition-2 volume ( India: Law publisher pvt.Ltd.) p.787-788.
[8] Zahirul Huq, Ibid, p.665.
[9] Zahirul islam, Ibid, p.682.
[10] H.M.Ershad V. State.45 (1992), DLR, HCD, p.533.
[11] Ruppell Vs. Poonnusami Tenan, (1899) I.L.RMad.
[12] Zahirul islam, Ibid-671.
[13] Shariful Islam V. Billal Hossain &The State, 45 (1992) DLR(HCD) p-722.
[14] Forhad Hossain (Md) and others V State, 50 (1998) DLR (HCD) p.p-337-339.