Section 226 CrPC - Public Prosecutor Owes A Duty To Give A Fair idea Regarding Prosecution Case To Trial Court: Supreme Court

The Supreme Court observed that before a Trial Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.

Section 226 CrPC permits the prosecution to make the first impression regards a case, one which might be difficult to dispel, the bench comprising Justices  AM Khanwilkar, Abhay S Oka and JB Pardiwala observed. 

The court observed thus in a judgment allowing an appeal against the Jammu and Kashmir High Court which had upheld upheld a Trial Court order discharging the accused from the offence of murder on the ground that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure".

The court, to examine the correctness of the order discharging the accused from murder charges, referred to Sections 226-228 of the Code of Criminal Procedure. 

At the outset, it noted that Section 226 CrPC corresponds to sub­ section (1) of the old Section 286 with verbal changes owing to the abolition of the jury. The old Section 286 provided that, in a case triable by jury, when the jurors have been in chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by reading from the Indian Penal or other law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused.

The present Section 226 deals with opening case for prosecution: When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.

"Section 226 of the CrPC permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the CrPC, the prosecution would be doing itself a disfavour. If the accused is to contend that the case against him has not been explained owing to the non ­compliance with Section 226 of the CrPC, the answer would be that the Section 173(2) of the CrPC report in the case would give a fair idea thereof, and that the stage of framing of charges under Section 228 of the CrPC is reached after crossing the stage of Section 227 of the CrPC, which affords both the prosecution and accused a fair opportunity to put forward their rival contentions.', the bench said.

The court further noted that Section 226 CrPC, 'over a period of time has gone, in oblivion'.

"Our understanding of the provision of Section 226 of the CrPC is that before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.", the bench observed.

Case details

Ghulam Hassan Beigh vs Mohammad Maqbool Magrey | 2022 LiveLaw (SC) 631 | SLP(Crl) 4599 OF 2021 | 26 July 2022 | Justices AM Khanwilkar, Abhay S Oka and JB Pardiwala 

Headnotes

Code of Criminal Procedure, 1973 ; Section 227-228 - Cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure" - Whether Trial Court could have discharged the accused from offence of murder - At the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record - Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. (Para 31)

Criminal Trial - Post Mortem Report - The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence - It can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872 (Para 29)

Code of Criminal Procedure, 1973 ; Section 45 - Expert Witness - A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. (Para 29)

Code of Criminal Procedure, 1973 ; Section 228 - The prosecution case is necessarily limited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject­ matter of the charge against him. He need not cross ­examine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges - Where a higher charge is not framed for which there is evidence, the accused is entitled to assume that he is called upon to defend himself only with regard to the lesser offence for which he has been charged. It is not necessary then for him to meet evidence relating to the offences with which he has not been charged. He is merely to answer the charge as framed. The Code does not require him to meet all evidence led by prosecution. He has only to rebut evidence bearing on the charge. (Para 32)

Code of Criminal Procedure, 1973 ; Section 228 - The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial - Scope of Court's powers in respect of the framing of charges - Referred to Dipakbhai Jagdishchndra Patel v. State of Gujarat (2019) 16 SCC 547 et al - The trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (Para 21-27)

Code of Criminal Procedure, 1973 ; Section 228 -There is an inbuilt element of presumption - Meaning of 'presumption' - Referred to Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460. (Para 28)

Code of Criminal Procedure, 1973 ; Section 226 -  Before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution - Over a period of time, this provision has gone, in oblivion - It permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the CrPC, the prosecution would be doing itself a disfavour.  (Para 20, 15)

Code of Criminal Procedure, 1973 ; Sections 227-228, 239-240, 245 - The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. (Para 19)

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