qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmrtyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjkl

Framing of Charge in Sessions Courts Bangladesh

Collected By BdLawSource.Com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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

www.bdlawsource.com

www.bdlawsource.com

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

www.bdlawsource.com

www.bdlawsource.com

Chapter-4

Judicial Application

4.1. Trial in Court 11

4.2. Trial in Session Court 13

Chapter 5

Conclusion 20

Reference 21

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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 :

www.bdlawsource.com

www.bdlawsource.com

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

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com

www.bdlawsource.com

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).

www.bdlawsource.com

www.bdlawsource.com

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.

www.bdlawsource.com