Thursday, 5 May 2016
Whether court can insist prosecution or defence to give draft charge?
26. The Code of Criminal Procedure, 1973 has devised a scheme of trial of Criminal Cases. The trial of Sessions Cases is being dealt with in Chapter XVIII of the Code. Its Section 227-228 deals with framing of charges. Chapter XIX of the Code in part-A in Section 239-240 deals with framing of charges in cases triable on a warrant procedure instituted upon a police report. Its Part-B in Section 245-246 deals with framing of charges in private complaint cases on warrant procedure.
27. Chapter XVII of the Code commencing from Section 211 to 223 deals with the content of the charge and matters connected thereto. If the charges are properly framed, there will be no occasion to invoke Section 216 Cr.P.C.
28. Framing of charges in a criminal trial is a judicial function. It is to be performed by the Court. If one look at the phraseology employed in Sections 239-240, 227-228, 245-246 Cr.P.C, the guidance is provided in the Section itself. Further, reasonable opportunity should be provided to both sides before framing the charges. Thus, hearing before framing charges is contemplated. Even if the defence has not filed any discharge petition, before framing the charges the Trial Court is bound to hear both sides. The hearing contemplated in the said Section enables the Court to get assistance from both sides.
29. I have not heard of a defence counsel filing a draft charge. No defence counsel will come forward to do so. However, there is no harm in the prosecution indicating the charges to be framed. But, it cannot be a draft charge, it should not be a draft charge.
30. Framing of charges is primarily a judicial function. The guidance is clearly available in Section 211 Cr.P.C. Further, if one sees the Commentaries on the Indian Penal Code by Ratanlal and Dhirajlal or certain other books, each Penal Section contains a model charge. It can be used as a guidance.
31. Asking a Public Prosecutor to file draft charge is like asking the counsels in a civil case to file draft issues. A Court should not ask it. It cannot delegate its judicial function to them. The benefit of a Court itself framing the charges or learned a Civil Judge himself framing the issues is that the Court will get grip of the case/ matter. The Court will get educated. The Court will put both the Prosecutor and the defence counsel on the right path. The Court's attention would be focussed on the work to be done. Therefore, getting a draft charge from the Public Prosecutor and the Court vetting it is not a practice authorised by law. It will be against the spirit of Criminal law to direct the defence counsel to file a draft charge because he is constitutionally (See Article 22(1), Constitution of India) bound to defend the accused and not offend him.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.04.2016
CORAM:
THE HON'BLE DR.JUSTICE P.DEVADASS
Crl.O.P. No.6494 of 2016
and
Crl.R.C.No.132 of 2016
and Crl.M.P.No.896 of 2016
In Crl.O.P.No.6494/2016
K.Ravi .. Petitioner/De facto complainant
Vs.
State rep. by
The Inspector of Police,
https://www.lawweb.in/2016/05/whether-court-can-insist-prosecution-or.html
