Legal provisions regarding framing of charge under section 228 of the Code of Criminal Procedure, 1973.
According to Section 228(1) of the Code of Criminal Procedure, after considering the record of the case and after hearing the parties, if the Court considers that there is ground for presuming that the accused has committed an offence which;
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(a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) Is exclusively triable by the Court, he shall frame in writing a charge against the accused.
The framing of the charge is not a mere formality, but a judicial act to be performed by the Sessions Judge after applying his judicial mind to the consideration as to whether there is any ground for presuming that the accused had committed the Offence. He cannot blindly accept the decision of the prosecution that the accused be asked to face a trial.
In Indu Jain v. State of M.P. & others, the appellants-accused, police officers arrested the deceased, who was patient of asthama for taking bribe. They detained him in window-less room which was full of dust and cob webs which are known allergens for triggering asthama attack.
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They brought him to hospital the next day in comatose condition, with body showing no signs of pulse, respiration or blood pressure. It was held that prima facie accused can be proceeded against under Section 304, Part II and Section 330, I.P.C., but not under Section 302, I.P.C. as there is little to establish intention to wilfully cause death.
The conditions of framing a charge under Section 228(1) of the Code are:
(i) Presumption of the commission of an offence on the material placed before the Court, i.e., the existence of a prima facie case; and
(ii) The offence is triable exclusively by a Court of Session.
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If the Court thinks that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence.
It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage.
Even a very strong suspicion founded upon materials on record which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of the offence.
Explaining the charge to the accused and enquiring about plea:
According to Section 228(2) of the Code of Criminal Procedure, where the judge frames any charge in writing against the accused when exclusively triable by the Court, 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.
