Proceedings U/S 240 CrPC Culminate In An Order "Framing Charge" Only After Plea Of Accused Is Taken: Kerala High Court

The Kerala High Court recently held that proceedings under Section 240 of the Criminal Procedure Code (CrPC) culminate in an order framing charge only after the plea of the accused is taken as per sub-section (2) of Section 240 of the Code. 

While holding so, Justice K. Babu went on to observe that, 

"If Section 240 Cr.PC is interpreted in such a manner that even before taking the plea of the accused there is an order framing charge, it will defeat the very purpose of sub-section (2) of Section 240 Cr.PC".

The Revision Petitioner herein was alleged to have committed offences punishable under the Prevention of Corruption Act, 1988 and the Indian Penal Code. The final report was challenged by the Revision Petitioner in three Criminal Miscellaneous cases before the High Court which were disposed of by a common order dated 15th February 2022. As per the said Order, the cases were to be closed, "without adverting to any contentions on merit, leaving the right open to the petitioner to seek discharge before the court below, if the charges are not framed".

Subsequently, Criminal Miscellaneous Petitions were filed by the Revision Petitioner seeking discharge before the CBI Special Court (Court below). However, this Petition was dismissed by the Court below stating that the charges had already been framed on 31st January 2022, and hence the Petition was liable to be dismissed. This order was challenged in the instant case. 

The Revision Petitioner, represented by Advocate V.A. Johnson, contended that he had not been given any sufficient opportunity of hearing. It was submitted that the proceedings of the Court below under Section 240 of the CrPC had not culminated in an order framing charge as the plea of the Revision Petitioner had not been taken. It was contended that the process of framing of charge was complete only after the plea of the accused was taken. 

On behalf of the respondent, it was contended by the counsels, Public Prosecutor Rekha S., Special Public Prosecutor Rajesh A., Assistant Solicitor General of India Manu S., and the Central Government Counsel Suvin R. Menon, that since the first portion of Section 240 CrPC had already been completed the process of framing of charge was complete, and what was left was only recording of the plea of the accused, which is only a formality in which the accused is asked whether he pleads guilty of the offence charged or not.

It was contended that the process of framing of charge was complete once the Court decided to frame the charge and the charge was thus framed in writing. The procedure envisaged in Section 240 (2) of reading and explaining the charge to the accused and asking him whether he pleads guilty of the offences charged, was contended by the counsels as being an 'independent procedure'. It was further argued that the word 'then' in Section 240(2) made it clear that process of framing the charge as such was confined only to Section 240(1). Additionally, it was argued that sufficient opportunity had been provided to the Revision Petitioner to challenge the charges framed. 

The Court in the instant case found that the proceedings under Sections 239 and 240 of the CrPC were to be read together, and the Court considers police reports and the documents placed before it under Section 173 CrPC and makes such examination, if any, of the accused and gives the prosecution and the accused an opportunity of being heard in this regard. It added that an order of discharge would be passed under Section 239 CrPC if the Court considers the charges to be groundless, while if it is of the opinion that there is ground that the accused has committed the offence, the Court shall pass an order framing charge against the accused under Section 240 CrPC. 

"While constructing Section 240 Cr.P.C, sub-sections (1) and (2) are to be read together. The proceedings in Section 240 of the Cr.P.C. culminate in an order framing charge when the charge is read over and explained to the accused and the plea of the accused as to whether he pleads guilty of the offence or claims to be tried is taken", it was observed.

In the instant case, it was found that the plea of the Revision Petitioner was not recorded on 31.01.2022, and thus, the Court found that the proceedings on the said date did not culminate in an order framing charge.

The Court concluded that no meaningful opportunity of hearing had been provided to the Revision Petitioner, as provided in Sections 239 and 240 of the CrPC by the Court below.

Since the instant Court had granted an opportunity to the Revision Petitioner to seek discharge before the Court below if charges were not framed, and the factual circumstances have revealed that this was the case, the Revision Petitioner was held entitled to seek discharge before the Court below, and the Court below was directed to dispose the petitions that had been filed before it in this regard within 2 weeks from the date of the Order. 

Case Title: Renjith Pannackal v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 482

Click Here To Read/Download The Order