Criminal Courts Can Frame Charges By Excluding Offences In Final Report Or Including Offences Not Mentioned In Final Report: Kerala HC

Section 228 pertains to framing of charges in Session cases and Section 240 deals with framing of charges for trial of warrant cases.

Justice A. Badharudeen was considering a revision petition of the accused, a school van driver accused of sexually assaulting a minor child. He had approached the Court to set aside the charges framed by the Special Court for offences which were not incorporated by the police in the Final Report.

Court said, “Reading the above provisions, it is clear that, after consideration of the prosecution records, if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, the Judge can frame charge for the said offence, disclosed from the prosecution records. To express differently, a Criminal Court can frame charge for the offence/s made out from the prosecution records, excluding the offence/s incorporated by the Police in the Final Report and also including any offence/s not included by the Police in the Final Report.”

In this case, the investigating officer filed final report against the petitioner alleging commission of offences punishable under Section 354(B) of IPC, Section 75 of the Juvenile Justice (Care and Protection) of Children Act and under Sections 8 read with 7, 10 read with 9(m) and 9(n) of the POCSO Act.

The petitioner stated that the Special Court for trial of POCSO cases framed charges against the petitioner alleging offences which were not incorporated in the final report by the police. It was argued that the police had not incorporated offence of aggravated sexual assault under Section 5, punishable under Section 6 of the POCSO Act against the petitioner in their final report.

The petitioner submitted that the Special Court initially framed charge for offenses punishable under Section 5(n) read with 6(1) of the POCSO Act. It was argued that without mentioning anything, this charge was altered to as under Section 5(p) read with 6(1) of the POCSO Act. It was contended that no offence of aggravated sexual assault is made out from the final report.

The Public Prosecutor submitted that the offence of aggravated sexual assault was made out from the prosecution records.

The Court found that the offence of aggravated sexual assault is made out from the statement of the victim even though the police have failed to file charges. 

The Court went on to state that if the judge believes there is ground for the presumption that the accused has committed offences not mentioned in the final report, the judge can frame those charge offences if it is disclosed from the prosecution records.

As such, the Court dismissed the revision petition and held that the petitioner is liable to be prosecuted for the altered charge framed against him by the Special Court.

Counsel for Petitioners: Advocates M.R.Sasith, M.R.Sarin, R.K.Chirutha, Anjana Suresh.E, Parvathi Krishna, Reethu Jacob, Riya Kochumman, Nanma.B.B, Lidhiya George

Counsel for Respondents: Senior Public Prosecutor Renjit George

Case Number: CRL.REV.PET NO. 1046 OF 2024

Case Title: Muhammad Iliyas v State of Kerala

Citation: 2024 LiveLaw (Ker) 640