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Framing of Charge in Sessions Courts Bangladesh
Collected By BdLawSource.Com
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ABBREVIATIONS
A. D : Appellate Division.
A. I. R. : All India Report.
A.C.M.M : Additional Chief Metropolitan Magistrate.
B.C : Before the Christ.
B. L. C : Bangladesh Law Chronicles.
C.M.M : Chief Metropolitan Magistrate
Cr. P. C : Code of Criminal Procedure.
C. J. : Chief Justice.
D. L. R. : Dhaka Law Report.
H. C. D. : High Court Division.
I. L. R. : Indian Law Report.
P. L. D : Pakistan Law Digest.
P.C : Penal Code.
p. : Page.
pp. : Pages.
S.C : Supreme Court.
Sec. : Section.
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TABLE OF CASES
1. H. M Ershad V. State, 45 (1992) DLR (HCD) 533 p.12
2. Shariful Islam V. Billal Hossain &The State, 45 (1992) DLR(HCD) p-722 p.15
3. Forhad Hossain (Md) and others V State, 50 (1998) DLR (HCD) p.p-337-339 P.19
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Table of ContentsPage
AbstractChapter 1
Introduction
1.1: Meaning of charge 1
1.2 Definition 1
Chapter 2
Essential Elements of Charge
2.1. Contents of a Charge 3
2.2. Form and requirements 4
Chapter 3
Alteration of Charge
3.1. Framing of charge before Trial in the Magistrate Court 6
3.2. Framing of Charge before Trial in the Session Court 6
3.3. Court may alter Charge 7
3.4. Charge to be framed 8
3.5. When framing of charge could be finished 10
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Chapter-4
Judicial Application
4.1. Trial in Court 11
4.2. Trial in Session Court 13
Chapter 5
Conclusion 20
Reference 21
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ABSTRACT
Charge is an important step in a criminal proceeding. Without framing charge trial is vitiated. The foundation of trial is charge which should be specific and particular in its description. The statement of charge should be read in the open Court and the over must know what charge is leveled against him. Every time, specific offence, many of commission of offence. Charge should be done in brevity in the language of the court. And the same be read over to the accused in the language which he understand. Charge is not an accusation in abstract, but a concrete accusation of an offence alleged to have been committed by a person. The framing of a proper charge is vital to a criminal trial and this is a matter on which the judge should bestow the most careful attention. The charge must contain sufficient particulars as to time, place, person and circumstances.
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Chapter –1
Introduction
1.1 Meaning of charge
The word ‘Charge’ has not been defined in the Code. It only states that in section 4(1)
(c) that Charge includes any head of charge when the charge contains more heads than
one. However, it is fundamental principle of law that the accused should know the
exact nature of allegation brought against him so that he may not be prejudiced in his
defence. It is, therefore, imperative that before a person is convicted of any offence he
should be formally charged, i.e., informed with committed by him, and be given an
opportunity to defend himself against such charge. The charge in this country
corresponds to an Indictment in English law. It contains a list of offences to which the
accused must plead before the trial begins. In other words, a charge is a written
document containing the description of the offence which the court, in inquiry or trial,
finds Prima facie proved by evidence before it to have been committed by the accused
and requires him to defend it.
1.2 Definition
A charge is an important step in a criminal
proceeding. It separates the inquiry stage from trial. It is only when a prima facie case
is disclosed about a certain offence that a charge is framed 1 the whole object A charge
is an important step in a criminal proceeding. It separates the inquiry stage from trial.
It is only when a prima facie case is disclosed about a certain offence that a charge is
framed the whole object of framing a charge is to enable the defence to concentrate its
attention on the case that he has to meet, and if the 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 charge in
this country corresponds too an Indictment in English law. It contains a list of offences
to which the accused must plead before the trial begins. In other word a charge is
1
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a written document containing the description of the offence which the court, in
inquiry or trial. 1
Determining the exact motivation of prosecutors when they select one charge over
another is impossible. They can identify the factors that con-seriously entered into
their choice, but they are seldom able to pinpoint the conversation they had or the
words they read that were responsible for injecting these ideas, reinforcing them, and
turning them into final decisions. The object of charge is to tell the accused as
precisely and concisely as possible of the offences with which he is charged and will
be tried. An accused is entitled to know with the greatest precision and particularly the
acts said to have been committed and the section of the penal law infringed. If the
charge does not specify the accused the time, place and occurrence of offence
committed by the accused and the law under which it will be tried, he will not be in a
position to prepare his defence. Thus one of the main purposes of another purpose of a
charge is to serve the principles of natural justice. No one should be condemned
unheard”. The third purpose of a charge is to substantiate the principle of presumption
of innocence of the accused, in other words, criminal standard of proof. The
prosecution has to prove a case against the accused beyond reasonable doubt.
1 Md. Zahurul Islam, The Code of Criminal Procedure, 4th ed, (Dhaka: Super offset printers Ltd,2000). p-684.
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Chapter –2
Essentials elements of Charge
2.1 Contents of a Charge
Sections 221 to 224 specify the particulars that should be stated in the charge.
Particulars are as follows:
Particulars as to the time and place of the alleged offence, and the person (if any)
against whom, or the thing (if any) in respect of which, it was committed.
Statement of the offence with which the accused is charged.
Particulars of the manner in which the alleged offence was committed, when the
particular of nature of the case do not give the accused sufficient notice of the matter
with which he is charged. A statement of law and the section of the law against which
the offence is said to have been committed. If the law which creates the offence does
not give it any specific name so much of the definition of the offence must be stated as
to give the accused notice of the matter with which he is charged. The previous
convictions of the accused, if any, where such conviction is sought to be proved at the
trial. In case of particular offences such as criminal breach of trust of dishonest
misappropriation of money, the dates between which the offence is alleged to have
been committed and the gross amount involved, together with such particulars as may
be necessary to give the accused notice of the manner in which the offence was
committed, should also be given.
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2.2 Form and requirements
a) The charge should be precise but should give the necessary particulars required by
law.
b) Every charge shall state the offence with which the accused is charged.
c) The charge shall be written either in English or in the language of the Court.
d) For every distinct offence of which any person is accused there shall be a separate
charge and every such charge shall be tried separately.
e) The law and section of the law against which the offence is said to have been
committed shall be mentioned in the charge.
f) The court framing charge should avoid all unnecessary words. Abbreviations or
recondite words should as far as possible be also avoided.
g) An omission, defect or error in the charge which does not prejudice or mislead the
accused and does not result in any failure of justice cannot be regarded as material.
Illustration
(a) A is charged, under section 326 of the penal Code with voluntarily causing
grievous hurt to B by means of an instrument for shooting. This is equivalent to a
statement that the case was not provided for by section 335 of the penal Code and that
the general exceptions did not apply to it.
(b)A is accused of murder, cheating, theft, extortion, adultery or criminal
intimidation, or using a false property mark. The charge may state that A committed
murder or cheating or theft, or extortion or adultery or criminal intimidation or that he
used a false property mark, without reference to the definitions of those crimes
contained in the Penal Code; but the sections under which the offence is punishable
must, in each instance be referred to in the charge.
A charge is an important step in a criminal proceeding. It separates 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 he has to meet and if charge is framed in such
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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 framing
of a proper charge is vital to a criminal trial and this is a matter on which the
Magistrate or Judge should bestow the most careful attention. A charge should be
carefully drawn up in accordance which the offence disclosed. The charge should be
precise in its scope and particulars.
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Chapter –3
Alteration of Charge
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.
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3.3 Court may alter Charge
(1) Any Court may alter or add any change at any time before judgement is
pronounced.
(2) Every such alteration or addition shall be need and explained to the accused.2
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.3
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,4
2 , The Code of Criminal Procedure (Dhaka: The Deputy Controler forms and publications office-1998). P.99.3 Zahirul Huq, Law and Practice of Criminal Procedure, 10th ed, ( Dhaka: Bangladesh Law Book Company-2000),p.422.4 Md. Zahurul Islam, Ibid, p.701.
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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.5
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) 6the 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).7
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
5 Muhammed Sohul Hossain, Criminal Procedure Code Today, 3rd Edition (Dhaka: Super offset printers Ltd.,1996), p.200 .6
7 Md. Zahurul Islam, Ibid, p. 716.
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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.
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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.8
8 Woodroffes,Commentaries On The Code Of Criminal Procedur,2nd Edition-2 volume ( India: Law publisher pvt.Ltd.) p.787-788.
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Chapter –4
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.9 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.10
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
9 Zahirul Huq, Ibid, p.665.10 Zahirul islam, Ibid, p.682.
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of a fresh charge by the former11.. 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 same12 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
11 H.M.Ershad V. State.45 (1992),DLR, HCD, p.533.12 Ruppell Vs. Poonnusami Tenan, (1899) I.L.RMad.
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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,There fore 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.13
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
13 Zahirul islam, Ibid-671.
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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
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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.14 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.
14 Shariful Islam V. Billal Hossain &The State, 45 (1992) DLR(HCD) p-722.
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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 cse 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 :
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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 plouging 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
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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 whde power under the law
regarding framing of charge. This can not be interfered with lightly either by the
revisioned 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.15
15 Forhad Hossain (Md) and others V State, 50 (1998) DLR (HCD) p.p-337-339.
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Chapter –5CONCLUSION
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
1. Md. Zahurul Islam, The Code of criminal Procedure, 4th ed, (Dhaka: Super offset printers Ltd,2000).
2. G.F.Samford, Criminal Law & It Process, 1st ed, (Colifornia: Brooks publishing Company,1986).
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3. The Code of Criminal Procedure (Dhaka: The Deputy Controller forms and publications office-1998).
4. Zahirul Huq, Law and Practice of Criminal Procedure, 10th ed,(Dhaka: Bangladesh Law Book Company-2000).
5. Md. Abdul Halim, Text Book on Criminal Procedure Code, 2nd ed, ( Dhaka: CCB publication,2008).
6. Justice YV Chandrachud and Monohar,The Code of Criminal Procedure, 15th ed,( New Delhi: wadhwa and Company Law Publishers,2002).
7. Five years MLR Criminal Reference,(Dhaka: Janani Art Press,2001).8. Michel Allen, Text Book on Criminal Law, 8th ed, (New York: Oxford University
Press,2005).9. 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.
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