Session Trail : 226/ 227 CrPC

 

Important Points

1. A209 - Commitment of case trail-able in  Sessions court exclusively
2. A227 - Discharge upon consideration
1. Section 227 - not available in Old code
1. Incorporated with view of SAVE accused from prolonged harassment necessary concomitant to protracted criminal trail
2. Eliminate harassment when the evidential material gathered after investigation fall short of min legal requirements
2. Consideration by Judge and NOT merely a presumption.
3. Record reasons for discharge
4. if 2 views are possible one that gives rise to suspicion Only as distinguished from grave suspicion and discharge the accused.
5. Principle is take materials produced by protection & act  upon it without it been subjected to Questioning through cross examination and everything assumed in favor of prosecution.
6. There has to be grave suspicion NOT just suspicion
7. Trail Judge is NOT mere Post Office to frame charge at instance of Prosecution.
8. Accused can explain away the material giving rise to the grave suspicion.
9. Limited evaluation of materials  and documents  - Court cannot make roving inquiry into pros and cons
10. Degree of Satisfaction Recorded by the Court
1. There are reasonable grounds for believing that the accusations against the accused is prima facie true, for the purpose of adjudicating bail is lighter than degree of satisfaction to be recorded for considering a discharge application or framing of charges 
11. the record of the case in A227
1. understood as documents and articles if any produced by prosecution.
2. Code does NOT give ANY RIGHT to the accused to produce any document at stage of framing of the charges
1. such Right is granted only at state of Trail A247 CrPC
2. Evidence is only taken after framing of charge
3. the accused cannot produce his evidence - leading to mini trail
12. Hearing the submission of accused
1. cannot mean opportunity to file material to be granted to the accused and there by changing the settled law.
13. Invoke 91 CrPC to summon to produce document/other things?
1. At stage of framing of charge 91CrPC won't arise
2. Defence of the accused ins not relevant at this stage
3. Only comes at stage of Trail for accused
4. 91CrPC - presupposes that when the document is not produced, process may be issued to compel the production thereof - Om Prakash Sharma Vs CBI (200) 5 SCC 679
5. inherit limitation based on stage
6. necessity and desirability would have to be seen by the court in the context of the puspose of investgation, inquiry, trail
7. There cannot be roving or fishing inquiry
14. 
    
3. A228 - Frame Charges
1. A mere presumption of Judge is SUFFICIENT to frame charges
2. No reasons for framing charge 
3. Strong suspicion that accused has committed the offense
4. if put on trail could prove him guilty
5. Presumption / Suspicion of guilt at initial stage does not mean that accused is guilty unless contrary is proved.
6. At time of framing of charges the probative value of material on record cannot be gone into, they have to accepted as true.
7. the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding
1. Evidence 
1. Statements recorded by Police
2. Documents produced before the Court
8. when court of session frame charges
1. if NOT exclusively trail-able by session transfer to court of Judicial Magistrate
2. Explain the charges against the person and ask if he Pleads guilty or asks for trail
9. What are the options after the charges are framed?
1. Invoke the reversional Jurisdiction of HC u/s 482 CrPC (Quash)
2. Even in 482CrPC - HC can look into ONLY those documents which are UNIMPEACHABLE and can be legally translated into relevant evidence.
4. A235 CrPC - Order of acquittal / conviction
1. If scales of guilt and innocence are ever, benefit of doubt to accused and end in acquittal.
5. A239 CrPC - Discharge by the Magistrate 
1. if the charges against the accused are groundless, accused can be discharge by recording reasons
6. what are 

Stages

1. U/s 209 CrPC, 
1. accused is brought before the court of Sessions
2. Prosecution has to open his case describing charges and by what evidence he proposes to prove the guilt.
2. Court of Session, the Judge has power
1. u/s 227 CrPC, to Discharge the accused
2. u/s 228 CrPC, frame charges against the accused 
1. Before exercising the power, DUTY upon the court to consider the record of the case & documents submitted
2. Hear the submissions of the accused and the Prosecution on that behalf.
3. 226 CrPC - Opening case for Prosecution
1. When the accused appears or is brought before the court in pursuance of a commitment of the case under section 209 CrPC the 
1. Prosecutor shall open his case by describing the charge brought against the accused and 
2. stating by what evidence he proposes to prove the guilt of the accused.
4. 227 CrPC - Discharge
1. If, upon CONSIDERATION of the record of the case and the documents submitted there with 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 be discharge the accused and record his reason for so doing.
2. 
   
5. 228 CrPC - Frame Charges
1. After considering 
1. Record of the case
2. Document submitted therwith
3. After hearing submission of the accused and prosecution in that behalf
2. Judges exercises his power to frame charges against the accused u/s 228 CrPC
3. Opinion of Court is Tentative
1. if Judge is of the opinion that there is ground for even presuming that the accused has committed an offense he SHALL frame charge against accused.

Case Law

1. State of Bihar Vs Ramesh Singh ( MANU/SC/0139/1977) (1997) 4 SCC 39
1. At this initial stage truth, veracity and effect of the evidence which the Prosecution proposes to adduce are NOT to be meticulously judged.
2. NOR is any weight to be attached to the probable defense of the accused.
3. NOT Obligatory for the Judge at this stage of trial to consider in any detail and weight in a sensitive balance whether the facts if proved would be incompatible with innocence of the accused or not.
4. if scales of guilt and innocence are even, the benefit of doubt is to be given to the accused and the same is to end in acquittal u/s Section 235 CrPC
5. At Section 227 Stage, Court is NOT to see whether there is sufficient ground for conviction of accused or whether trail is sure to end in his conviction. 
6. Only Strong suspicion, is sufficient to frame charge 
7.  Strong suspicion against the accused, if the matter remains in the region of suspicion cannot take the place of proof of his guilt at the conclusion of the trail. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to court to say that there is no sufficient ground for proceeding against the accused. The presumpiton of the guild of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trail of cirminal cases in France where tha accused is presumed to be guilty unless the contrary is proved. but it is only for the purpose of the deciding prima facie whether court should proceed in trail or not.  If the evidence which prosection pro posses to adduce to prove the guild of the accused even if fully accepted before it is challeged in cross examination or rebut ted by the defence evidence, if any cannot show that the accused committed the offence then there will be no sufficnet ground for proceeding with trail
2. Amit Kapoor Vs Ramesh Chandra ( MANU/ SC/0746/2012 ) 
1. At the initial stage of trail when the charges are framed
2. Court is concerned NOT with proof 
3. BUT with a STRONG suspicion that the accused has committed the offense
4. which if put to trail could prove him guilty
3. P. Vijayan Vs State of Kerala (2010) 2 SCC 398
1. if two views are possible and one of the gives rise to suspicion only as distinguished from grave suspicion, the trail judge would be empowered to discharge the accused.
2. The trail Judge is not a mere Post office to frame the charge at the instance of the prosecution.
3. The judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of statments recorded by the Police or the documents produced before the court.
4. if the evidence, which the Prosecution proposes to adduce to prove the guilt of the accuse, even if fully accepted before it is challenged in cross-examination or rebutted by the defense, if any " cannot show that the accused committed offence, then there will be no sufficient ground for proceeding with trail"
5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 
4. State J & K Vs Sudershan Chakkar AIR 1995 SC 1954
1. Defence of the accused is not to be looked into at the stage when accused seeks discharge under 227 CrcP
2. Only documents produced by Prosecution
5. Dilawar balu Kurane 
6. Union of India Vs Prafulla Kumar Samai AIR 1979 SC 366
1. Some/mere suspicion - grave suspicion
7. Om Prakash Sharma Vs CBI (200) 5 SCC 679
1. 91 CrPC - presuposes the when document not produced, process may be issued to compel production thereof. 
2. Width of the powers of the section was UNLIMITED but there are inbuilt inherent limitations as to the stage or point of time of its exercise
1. Nature of proceedings also the compuslsion of necessity and desirebility to fulfil the task or achieve the object
8. State of Tamil nadu Vs N. Suresh Ranjan ( 2014 Cri L J 1444)
1. The code contemplates discharge of the accused by the court of sessions under 227 in a case triable by t; cases instituted upon a police report are covered by section 239 and case instituted otherwise than on police report are dealt with section 245.
2. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused
3. Under 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused"
4. However discharge under Section 239 can be ordered when the Magistrate considers the Charge against the accused to be groundless
5. The power to discharge is exercisable under Section 245(1) when, "Magistrate considers for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction"
6. Section 227& 239 provide for discharge before recording of evidence on basis of police report, the document sent along with it and examination of the accused after giving an opportunity to the parties to be heard. 
7. However, the stage of discharge under Section 245, on the other hand is reached only after the evidence referred in Section 244 has been taken.
8. Thus there is difference in the language employed in these provisions. But, notwithstanding these differences and whichever provision may be applicable, the court is required at this Stage to see that there is a prima facie case for proceeding against the accused.
9. Sajjan Kumar Vs Central Bureau of Investigation ( 2010) 9 SCC 368
• Para 21 - SC summarized the principles which are to be kept in mind by criminal court at stage of consideration of a case for discharge
• Judge while considering the Question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie would depend upon the facts of each case
• where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court is fully justified in framing a charge and proceeding with the trail.
• The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any infimities, etc Howerver, at this stage there cannot be a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trail.
• If on the basis of the material on record, the court form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
• At the time of framing of the charges the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by accused was possible.
• if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trail judge will be empowered to discharge the accused and at this stage, he is not to see whether the trail will end in conviction or acquittal.
• Para 19
• It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. 
• If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
10. State of Orissa Vs Debendra Nath Padhi (2005) 1 SCC 1568 
1. Para 9 - SC held that
1. Section 227 was incorporated in the code with view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trail. It is calculated to eliminate harassment to accused person when the evidential material gathered after investigation fall short of min legal requirement.
11. Nallapareddy Sridhar Reddy Vs State of A.P ( 2020 ) 12 SCC 467 
1. Para 25 - 
1. Appreciation of evidence on merit is to be done by court ONLY after the charges have been framed and the trail has commenced
2. However for the purpose of framing charge the court needs to prima facie determine that there exist sufficient material for the commencement of trail.
12. Amit Kapoor Vs Ramesh Chandra (2012) 9 SCC 460
1. Para 19
1. At the initial stage of framing of a charge the court is concerned not with proof but with a strong suspicion tha the accused  has committed an offence
2. Which if put to trail could prove him guilty
3. all that the court has to see is that the material on record and facts would be COMPATIBLE with the INNOCENCE of the ACCUSED or not. 
4. the final test of guilt is not to be applied at that stage.
13. Soma Chakravarty v. State, (2007) 5 SCC 403
1.  (para 19), it has been held that - charge may although be directed to be framed when there exists a strong suspicion 
2. but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. 
3. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge
14. NIA Vs Zahoor Ahmad Shah Watali ( 2019 ) 5 SCC 1 
1. para 23 - Hon'ble Supreme Court
1. The degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true,
2. for the purpose of adjudicating bail is LIGHTER than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under UAPA 1967

Source

1. https://districts.ecourts.gov.in/sites/default/files/2%20Syam%20Kumar%20workshop%20on%20applications%20on%20discharge%20of%20accused.pdf