Thesis Paper on Framing of Charge in Sessions Courts Bangladesh
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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