 us to have eight part session with us and his previous two sessions on the charges part is doing extremely well. Those who are connected with us in the WhatsApp group, we have already shared the what topics we are taking in respect of interactive session of today's session. The charge and then what is charged in terms of section 2111. I am sometimes myself dazzled to the fact that how much time, energy, and thought processes this is Ramkumar takes to funnel it down so that it is simplified in the best form. Amongst us we have Mr. KVJ Rao, an aviation expert. He also does a lot of sessions. We would be asking him to take the sessions subsequently. Since we have done two sessions, as usual we will ask Mr. Ramkumar to give a brief introduction and background and then for the two-day session and we have amongst us the question which we have. There are 14 in all and it will be coupled with the knowledge being shared on the platform regarding the judgments. Rao sir and don't mute yourself. What happens is that every time you will have to unmute yourself. Yeah. So I would request just to Ramkumar to just give a recap like what we have in the series and thereafter what we will look forward for the two-day session and then we will take those questions. Over to you sir. Yes, I will make a quick recap on the topic already covered during the previous sessions. I gave you two charts. Charts A and chart B showing the relevant provisions of this ERPZ relating to procedure for discharging an accused person and for framing a charge against him. We saw when when to discharge an accused and when to frame a charge against him. We saw the simple criteria for discharging and framing chart in the relevant provisions of the CRPC having been unnecessarily complicated by our apex code but constituting a blessing and disguise so that you can use the appropriate decision as in when you feel like you got conflicting decisions also. We had a detailed discussion on William Slaney's case AR-1956 Supreme Court 116 a decision by a constitution bench of five edges which has elucidated how far the omission to frame a charge and the irregularities and illegalities in framing a charge could be fatal. Now today we will gradually go deep into chapter 27 of CRPC starting with section 211 falling under the contents of charge. We will discuss chart to C. I have given you chart to C. Kindly see chart to C which shows that sections 211 to 217 are under part A of chapter 17. They deal with form of charge and sections 218 to 224 under part B of chapter 17 deal with jointer of charges. See the whole chapter chapter is divided into part A and part B. Part A deals with form of charge starting from section 211 to 217. Then part B deals with sections 218 to 224 jointer of charges. Now today we will examine what is a charge and what is the need for a charge. We will also analyze section 211 CRPC and discuss a few questions there under. Shall we go to the questions? Sure sir. Yes, question number one. One moment sir. So what is a charge? Yes, what is a charge? A charge in India corresponds to an indictment in English law and is very much more than a mere form. This was the view taken by the Allahabad Accord in Dioma and Upadhyaya v. State. Here 1960 Allahabad page one corresponding to 1960 criminal law journal one page one. Both are pages one. Allahabad judgment. A beautiful judgment of the Allahabad Accord. Now if we if you go into the CRPC provisions except stating in section two B CRPC that charge includes any head of charge the CRPC does not define what a charge is. A charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. This was the observation made in paragraph 17 of Varu versus Emperor AIR 1948 Sindh page 40 which was again referred to by the Supreme Court by Justice Arjit Prasad in Esher Singh Esher Singh versus state of Andhra Pradesh AIR 2004 Supreme Court 3030 AIR 2004 Supreme Court 3030. So a charge is a precise formulation of the specific accusation made against a person who is entitled to know the nature its nature at the earliest stage of the crime. Yes that was the beautiful observation by Justice Arjit Prasad. Yes we pass on to question number two. Question number two. What is the necessity for a written charge? The necessity of a system of written accusation specifying a definite criminal offense is of the essence of criminal procedure is of the observation made by the Privy Council in N.A. Subramanya AIR versus King Emperor 28 Indian Appeals 257 N.A. Subramanya AIR versus King Emperor 28 Indian Appeals 257 Privy Council. Now again we saw the other day Vili William the five great judges of the Supreme Court handed down the Constitution Pente decision in William-William. The judges were Eshar Das, Acting Chief Judge Vivian Bose, Jagannath Das, Chandrasekara AIR and Saeed Jaffer Imam with three judges giving conquering judgments. Three judges giving separate judgment but conquering judgments. In paragraph 21 of William-Willie that is William Slaney versus state of Madhupadesh AIR 1956 Supreme Court 116. This was also referred to by William Slaney that the observation about the necessity of a written charge. Now the purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged. That is the purpose of a criminal charge. This was a great observation made by Krishnan Balakrishnan versus state of Kerala 1957 KLT 1230 corresponding to AIR 1958 Kerala 283 again corresponding to 1958 criminal law journal 516. In fact the judgment was rendered by a judge who later became the Chief Judges of Kerala High Court for nearly 10 years, Justice P.T. Raman Nair. This was the great observation by Justice P.T. Raman Nair. We pass on to question number three. Who is to frame charge whether police or the court and what should be the language of the charge? Very often there are people who have a misconception. Charge means whether it is the police who has to frame the charge or whether the court which has to frame the charge. Undoubtedly it is for the court to frame the charge. It should be carefully drawn up in accordance with the offense disclosed. That is that was the observation by the very same Dushan Bench, Krishnan Balakrishnan versus state of Kerala AIR 1958 Kerala 283 Dushan Bench by Justice P.T. Raman Nair. The charge should be in the language of the court. This is what section clause 6 of section 211 enjoins. Then section 272 CRPC authorize every state government to determine the language of the courts in the state other than the High Court. All subordinate courts the state government has to determine the language to be used in the subordinate court. That will be the language of that court. And very often it will be vernacular. Of course there are cases where in Kerala the language of the court is in English. Of course the depositions are recorded in local vernacular. Whatever be the language determined by the state government for the subordinate court, if the accused is not conversant with the language of the court, the charge should be read over and explained to the accused in the language known to him. And for that purpose the court can even employ an interpreter if need be. Because there is no point in saying that supposing the accused knows only Hindi and the language of the court is in English. Court very very in a very majestic sense. Court reads the court charge in English. What purpose does it serve? Court will have to explain the purpose of the court charge framed in English in the language known to the accused. He will have to be explained. This is the accusation against you. This is the charge against you. Then only he can effectively plead guilty or plead non-guilty. As per article 348 of the Constitution of India, all proceedings in the Supreme Court and the High Court, that is all proceedings in the Constitution court shall be in English. This is on the language of the court. So we pass on to question number four. Supposing the accused does not know the language of the court. Should the court explain the charge to the accused in a language known to him? Yes, I have already explained that. He doesn't know the language of the court. After reading the court charge in the language of the court, court will have to explain, read over and explain the charge to the accused. Then only he can effectively plead a discharge or plead guilty or non-guilty. Because trial of the case will depend upon the question as to whether he pleads guilty or not guilty. If he pleads guilty, there is no trial. Straight away he can be convicted. Provided the magistrate or the court is satisfied that he has voluntarily pleaded guilty. But if he does not plead guilty or if he pleads not guilty, then only the question of trial will arise. And this has to be explained to him in the language known to him. We pass on to question number five. Is not the object of framing charged by the court just a statutory compliance or an empty formality or a ceremonial exercise? Very many people are under the impression that oh, after all, it's the framing of charge. Why should I be there? The prosecutor may think that he need not be there. The defense lawyer also may think that he need not be there. Accuses also may may ask for permission to remain absent. Actually, its object is to want the accused person of the case he has to answer. The purpose of charge is that you are warning him. This is the case to be tried against you. So please know what the charge is. That is that was what the Supreme Court cautioned in paragraph 11 of B. N. Shrigandayya versus state of Mysore, A. I. R. 1958 Supreme Court 672. A. I. R. 1958 Supreme Court 672. If you want the criminal law journal corresponding, corresponding criminal law journal is 1958 criminal law journal 1251. 3 judges, mind you, 3 judges. Again it was reiterated in Mohan Singh versus state of Bihar, 2011, volume 9 SCC 272. Now, charge serves the purpose of notice or intimation to the accused drawn up according to specific language of law, giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of trial. He has to be very clearly told that this is the case you have to meet during the trial. The prosecution will be adusing evidence on discharge. V. C. Shukla versus state 1980 supplementary SCC 92 corresponding to 1980 criminal law journal 690, 690 Supreme Court. The accused should not suffer prejudice or failure of justice for want of requisite information of the offense and details thereof. This is what the Supreme Court articulated in Rafi Kahmad versus state of UP, 2011, volume 8 SCC 300. Now, in fact, form number 1 in the second schedule to CRPC is the form prescribed for issuing summons to the accused. It reads your attendance is necessary to answer to a charge of, your attendance is necessary to answer to a charge of that, that, that. Therefore, even at the stage of summons, even at this, right from the stage of summons, the accused is informed that he has to answer to a charge which will be framed against him. That is the purpose of criminal law, the object of criminal law, object of fair trial in a criminal trial. Yes, question number 6. What are the contents of a charge? What are the contents of a charge? Section 211, CRPC specifies the contents of a charge. It internally provides that every charge under the CRPC shall state the offense with which they accuse the charge. And section 212, next section, CRPC provides that the charge shall contain the particulars as to the time and place of the alleged offense and the person, if any, against whom the thing or in respect of which it was committed as a reasonably sufficient to give the accused notice of the matter with which he is charged. The charge shall mention the date, time, place and the person against whom the offense was allegedly committed and the person who allegedly committed the offense. These are all things should be very clear from the charge itself. Then only he can effectively plead guilty or not guilty. This was highlighted by the apex court in main Paul versus state of Haryana, AIR 2010 Supreme Court 3292. I had occasion to mention once that most of the criminal cases decided by Supreme Court are from Punjab or Haryana. Yeah, I don't know whether it is because of the enormity of crimes or due to the proximity of the Supreme Court to Haryana. I don't know. Then again in paragraph 58 of the judgment of Justice Vivian Bose in Willy Williams' landing versus state of Manipurashe in 1956 Supreme Court 116, again this aspect of the requirement of a charge was highlighted. Now section 211 CRPC occurs in part A of chapter 17 CRPC dealing with the form of charges. Section 211 specifically prescribes the contents of a charge. The form of charge is available in form number 32 of the second schedule to the CRPC. In fact, I am going to make a reference to some very pertinent observations made by Justice K. Hema of the Kerala High Court. Section 211 specifically prescribes the contents of a charge. The form of charge is available in form number 32 of the second schedule to the CRPC. It reveals that the details of each offense are to be stated with reference to the particular accused who committed the offense. The details of each offense are to be stated with reference to the particular accused who committed the offenses and the person against whom such offense was committed. A casual, perfunctory, and haphazard manner of framing charge will result in serious miscarriage of justice. Remission versus state of Kerala, 2001 KLJ-2007-2007-1KLJ369 corresponding to 2007 criminal law journal 1637-2007 criminal law journal 1637, Kerala High Court speaking through Justice K. Hema. Now we go to the section proper, section 211. Can anyone of you read that section 211? I've shared this section to you. Also you can unmute but otherwise I'm reading. Contents of a charge is divided into section 211. Seven parts. Every charge under this court shall state the offense with which they accuse the charge what you have said. If the law creates the offense, gives it any specific name, the offense may be described in the charge by that name only. If the law creates the offense does not give it to any specific name, so much of the definition of the offense must be stated as to give the accused notice of the matter with which he's charged. The law and section of the law against which the offense is said to have been committed shall be mentioned at the charge. The fact that the charge is made as equal into a statement that every legal condition required by a law to constitute the offense charged was fulfilled in the particular case. The charge shall be written in the language of the court. If the accused having been previously convicted of any offense is liable by reason of such previous conviction to enhance punishment or punishment of a different kind for a subsequent offense and if it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit for the subsequent events, the fact charge in the place of the previous conviction shall be stated in the charge and if such statement has been limited, the court may add it to any offense before the sentence is charged is passed. Do I read the illustrations also? Yes, better. Mr. Rao can read the illustrations. Sir, I am telling him to unmute. There are only four illustrations, ABCD. Rao Rao doesn't unmute himself. Yes. Rao Saab unmute. In fact, Professor Mohanar also not here trying to unmute him. I think today Rao Saab has joined through a mobile address. He is being gagged by your system. No, I am unmuted, sir. But the logo is showing. Logo shows he is muted. Sir, I can hear you. He is an expert, he can unlock anything. No, sir. Nothing like that. Okay. Illustrations. A, A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder given in section 299 and 300 of the Indian Penal Code, 45 of 1860, that it did not fall within any of the general exceptions of the said code and that it did not fall within any of the five exceptions to section 300 or that if it did fall within exception 1, one or other of the three provisors to that exception applied to it. B, A is charged under section 326 of the Indian Penal Code with voluntarily causing previous 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 said code and that the general exceptions did not apply to it. C, 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 definition of those crimes contained in the Indian Penal Code but the sections under which the offences punishable must in each instance be referred to in the charge. D, A is charged with section 184 of the Indian Penal Code with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words. To clarify the position further, I've given you a chart of illustration C. Illustration C will clarify the position beyond any doubt. The first column says code charge need not state and second column says code charge should state. The code charge if it is a case of murder as defined under section 200-300 IPC, the code charge need only say you committed murder. You committed murder by intentionally or by knowingly causing the death of someone so etc and the murder does not fall under any of the exceptions. All those things need not be stated because the offence is a named offence, murder. Offence has been named by the Indian Penal Code therefore it is enough that the accused charge is of murder but then code charge should state murder punishable under section 300. Though the code charge need not define the offence of murder because murder is already defined and you have the one word definition of murder. You have the offence being one word offence even in the Indian Penal Code therefore you need only mention that you committed murder but the charge should further say that you committed murder punishable under section 302 IPC because murder is also culpable homicide. Culpable homicide can amount to murder or may not amount to murder. If it does not amount to murder then the punishment section is 304. If it amount to murder then only it will fall under section 302. Likewise cheating. Cheating is already a named offence under the Indian Penal Code therefore the charge need not define the offence of cheating once again. Charge should merely say cheating because cheating is defined under section 415 IPC therefore cheating you committed cheating but the punishment section should be specifically mentioned in the charge. You committed cheating punishable under section 417 IPC. Likewise theft it is a mistake 317 is a mistake 417 then theft is defined under section 378 IPC. So the charge need only say you committed theft but punishable under section 379 IPC. Likewise extortion. Extortion is defined under section 383 Indian Penal Code therefore the charge need not define extortion again. You committed extortion but punishable under section 384 IPC then comes adult tree adult tree at a section 497 Indian Penal Code adult tree is not separately defined. You do not find any definition of adult tree therefore in fact the definition as well as punishment of adult tree is in section 497 itself. Therefore the definition of adult tree the manner in which adult tree was committed and the definition of adult tree also should form the basis of charge. Then criminal intimidation criminal intimidation is defined under section 503 of the Indian Penal Code. So the accused need only be charged of criminal intimidation punishable under section 506 of the Indian Penal Code. Likewise using false property mark using false property mark is an offense defined under section 481 of the Indian Penal Code. Therefore the charge need only say you committed you used the false property mark and punishable under section 482 IPC. Thus illustration see clearly shows that if the offense is a named offense like murder etc then the ingredients of the offense need not be stated in the court charge. But if it is not a named offense then its ingredients have to be stated in the court charge. The charge you should clearly mention the offense and the penal provisions which prescribe the penalty. The punishment which can be imposed on the accused is only the punishment which is applicable as on the date of commission of the offense is a very important aspect. Supposing after the date of commission of the offense in a given case the punishment prescribed for the offense has been enhanced by an amendment of the law. Then the the search and enhanced punishment cannot be imposed on the accused on account of the operation of the provisions of clause 1 of article 20 of the Constitution of India which reads as follows. No person shall be convicted of any offense except for violation of a law in force at the time of commission of the offense of the act charged as an offense. Nor shall he be subjected to a penalty greater than that which he might have been inflicted under the law in force at the time of commission of the offense. Therefore at the time of commission of the offense what is the punishment prescribed? That punishment alone can be imposed on him. Article 21 of the Constitution of India protects a person accused of an offense from being subjected to a harsher punishment than that was prevailing at the time of committing the offense. The set protection is again the application of an ex post factor law that is by a subsequent act of legislation if the punishment has been enhanced that enhanced punishment cannot be retroactively applied to the accused. It cannot relate back to the date of occurrence. It was beautifully stated by the Supreme Court Kuldip Singh in Pyarelal Sharma versus JNK Industries. Pyarelal Sharma versus JNK Industries 1989 Volume 3 SCC 448 corresponding to AIR 1989 Supreme Court 1854 1854 Justice Kuldip Singh. The Supreme Court held that punishment cannot be inflicted if the act became penal only subsequently and that the alleged act must constitute an offense under the law prevailing at the time of its commission. That is why you in illustration D it is not a one word offense under illustration D 184 section 184 IPC is not a named offense one word offense. That is why the ingredients of the offense have to be stated in the court jar. In fact form number 32 of the second schedule to CRPC I have extracted the form the form also in fact various offenses the model forms model form the form for framing a charge court charge are given. So various offenses the model forms are given in form number 32 which which is a requirement of section 211 of the CRPC. One interesting interesting aspect to be noted in form number 32 is that it has not omitted model charge on section 161 IPC. If you know with the enactment of the Prevention of Corruption Act 1988 sections 161 to 165 A IPC which were dealing with offenses of corruption and bribery were repealed with effect from 1999 1988. Hence the model charge for section 161 should have been deleted from form number 32 of second schedule that has not been done. Now trial judges who are attending this webinar may also bear in mind that in law in the law of crimes by Ratan Lal and Deera Jalal there is a model charge court charge given after each and every penal offense. You can profitably make use of the same while preparing the court charge. Never never copy down the police charge as such. Police charge will be will will not be according to the requirement of chapter 217 CRPC and police charge may be one single sentence forming in two or three pages. Never copy the police charge. You have to frame a charge the trial judges should frame the charge by themselves by referring either to form number 32 of the second schedule CRPC or the model form of charge given in the textbook on law of crimes by Ratan Lal and Deera Jalal. It's a painstaking exercise but then only you will apply the mind. We will have problems on that. For non-application of mind an accused person getting away getting away for non-application of mind by the trial judge for not properly framing the charge. We'll come across the question on that. Question number seven. What is the care that is to be taken by the court while framing the charge? In a criminal trial the charge is the foundation of the accusation and every care must be taken to see that it is not not only properly framed but also evidence is tendered only with respect to the matters put in the charge and not other matters. Evidence should be in in civil law also you know that no amount of evidence can be used to find a case which is never pleaded. In civil law the case is rested on pleadings. Parties cannot go beyond their pleadings, travel outside their pleadings while adusing evidence. Likewise in criminal law the parties cannot go travel beyond the charge. The charge is the is the notice of accusation given to the accused. Accuses need only answer the charge not beyond that. Ramakrishna versus state of Maharashtra 1980 beautifully stated 1980 criminal law journal 254 Bombay High Court 1980 criminal law journal 254 is the foundation of the accusation and every care must be taken 90s properly framed 1980 criminal law journal 254 Bombay High Court. Question number eight. Should the accused be dealt with separately if there has been a previous conviction against him? Like what we were dealing in the section 211 when it said you have to say. Exactly. There must be a specific charge under section 75 of the Indian Penal Code in view of section 211 plus 7 CRPC. You may refer to a decision of the Andhra Pradesh High Court in Chemia in Ray Chemia air 1960 Andhra Pradesh 490 corresponding to 1960 criminal law journal 1302 1302. In fact in warrant trial section the proviso section 2483 section 248 clause 3 of warrant trial and its proviso likewise in session trial section 236 CRPC and its proviso will give you how how and when a charge for previous conviction should be framed. But until one aspect to be borne in mind by every trial judge is that until the court finds accused guilty and records a conviction against him the aspect of his previous conviction should not enter the mind of the court. Because if once it entered the mind of the court, court may be inclined to think that the allegations against the accused may be true or he may be a habitual offender etc. The court this aspect of previous conviction should never enter the mind of the court till the court records a conviction find the accused guilty on the evidence used in that case. Court cannot travel beyond the evidence in that case and look into extraneous matters. The prosecution should take care that the factum of previous conviction comes to the notice of the court only if and when the accused is convicted in the case. Supposing in a given case after recording a conviction if the court were to extend to the accused the benevolent provisions of the probation of offenders act 1915 every case need not enter every conviction should not be followed by a sentence. There may be cases where the court may extend the benefit of the probation of offenders act to the convicted accused instead of passing a sentence at once court may think that this is a fit case he's in a first offender a juvenile a young person who was committing an offense for the first time in his life if he sentenced and sent to prison he may become a hardened criminal therefore the provisions of section 360 CRPC will have no application once the probation of offenders act 1958 have been extended to that particular state or part of state. And therefore probation of offenders is a is a very benevolent provision a benevolent statute as per which persons who are not hardened criminals can be let off on probation or given an admonition so that they are not straight away sentenced to any imprisonment or fine etc. So that when he is let off on probation or given an admonition there is no stigma the act specifically says that there shall be no stigma on the accused who has been let on probation because he is being improved he is becoming made a very respectable member of the society at large. So it may entail therefore he was supposing after conviction the court were to ask for the probation report of report of the probation officer etc. the trial the conclusion of the case may may be delayed that the case may take further time for conclusion therefore we used to advise our judicial officers that whether the case is going to end in conviction or acquittal you may get a report of the probation officer regarding this particular recue in a sealed cover in a sealed cover and keep it without opening it in in case you convict the accused acquittal means he is he is going straight away he is he is let off but in case you convict him and in case you feel that this is a fit case where probation ought to be extended you you open the sealed cover and see what the probation officer has to report regarding his antecedence his surrounding incident if there's a favorable report also then you can straight away give he extend the benefit of benevolent versions of probation so that the delay in that in the conclusion of trial is curtailed is not not there you can open the sealed cover so that you instead of again asking for the report of the probation officer it may take take days even weeks or even months for the probation officer to report therefore that will unnecessarily delay the the conclusion of the trial that is further the case therefore you can obtain the probation officer's report beforehand and but only in a sealed cover don't open the cover until and unless you convict the accused this is one one advice we have great our great one of the greatest judges of our state just is you Lakshmi Narayana but well but I used to advise us while we were judicial officers question number nine Patan you are handing over to the future judicial officer yes and the same one also yes Rao sir question number nine sir is it not proof of the materials relied upon by the prosecution which is relevant for establishing the validity of the charge no it is not proof of the materials or the evidence it is the allegation at the at the stage of framing Char this is the allegation which is relevant for establishing the validity of the Char Char is only you is it's only allegation you are electro committed these offense I charge you for these offense and this is the punishment which can be imposed on you in the event of court convicting you Bhagawan Das Jagdish Chandar who is a Delhi administration AIR 1975 Supreme Court 1309 AIR 1975 Supreme Court 13093 judges that is the allegation is relevant not the proof of the material will come only during trial this is at the pre-trial stage question number 10 yes the Rao has disappeared vanished in the denial Rao sir is on a flight mode today of the mobile just like a mobile Rao sir sir at the stage of framing a charge is it not necessary for the court to meticulously consider the evidence and other materials produced by the prosecution no again no meticulous consideration of the materials and evidence by the court is not required at that stage that will arise only during the trial of the case not at the stage of framing charge or giving a discharge the citations are Mohammed Akbar Dark with the state of Jammu and Kashmir AIR 1981 Supreme Court 1548 AIR 1981 Supreme Court 1548 again state of state versus Bangarapa AIR 2001 Supreme Court 222 AIR 2001 Supreme Court 222 this was a case under the prevention of corruption act so what is to be examined is as to whether there is ground for presuming that the accused has committed the offense ground for presuming that the accused has committed the offense you see this should be the yardstick the parameter to be applied by the court at that stage in in warrant trials the relevant sections are sections 240 and 246 240 police report 246 right complaint and 228 one is the relevant provision in a session trial the ground for believe in presuming that the accused has committed the offense this is the criteria to become to be considered by the court he passed on to question number 11 I will have to control the entire button is it true that at the time at the stage of framing charges under section 211 and 228 CRPC questions as to the applicability of the legal provisions that matters on which a definite conclusion should be reached ahead of trial they are not matters on which a definite conclusion should be reached ahead of trial before before even before the trial the the the the applicability of the legal provisions and a and a definite conclusion should not be reached by the then there's no point in conducting a trial at the stage of discharge the framing of charges only the court is we have already considered these decisions in my first session first session I gave you so many decisions the the prima facie case the mere suspicion strong suspicion all those parameters will have to be applied not not to the probative value of the evidence at that stage no mini trial is to be conducted all those decisions we considered during the first lecture state versus incitib daily versus naviju sandhu a 2005 volume 11 sec 600 parliament attack is yes question number 12 the accused charged with a section 302 IPC for causing death by setting aside by setting the deceased on fire after pouring kerosene on fire the post-mortem report showing that the death was due to a smothering and that the burns were post-mortem is the accused entitled for the benefit of improper charge see the charge says the court charge says the accused set the deceased on fire after pouring kerosene on her but the post-mortem report shows that death was due to strangulation smothering smothering uh some pillow or cloth might have been applied against the nostrils etc and as six year may be the cause of death not burn burn injuries so the court charge and the evidence post-mortem report are totally different this is a case where the court has been negligent in preparing framing the charge basava raja versus state of karnataka 2008 9 sec 329 2008 volume 9 sec 329 three judges mind you the accused in that case was acquitted by supreme court for the patented effect in the charge is a it is a patent effect in the charge charges she died due to kerosene being poured on her and due to burn injuries but post-mortem report which is in the court records shows that death was due to smothering as six year see the court has has not has been totally negligent in not perusing the record before it maybe the police report might have said so don't go by the police report this is my my piece of advice to all trial judges never go by the police report go by the records produced before you and if the if you if it is a case of murder look into the post-mortem report or other wounds that you get if any to find out the cause of death if the trial judge was careful enough to prove the post-mortem report while framing the charge they about effect in the court charge could have been avoided and the acquittal of the accused could have possibly been awarded in fact as cautioned by justice emma in remission versus state of kerala i have already given you a citation 2007 criminal law journal 1637 if the details of each offense were stated with reference to the particular accused such fatal omission would not have occurred this is a a a pointer for every every trial judge before framing the charge you should prove the records that's the court record the if it is a case of injury go by the police look into the wound certificate and see what the injuries are suppose he has suffered only some scratches some some skin deep injuries you cannot charge him for grievous hurt police charge may say grievous hurt but the postmortem report may show otherwise likewise the police report may say it is only a simple hurt but the wound certificate the wound certificate may show that it is a very deep penetrating injury clearly 326 so you cannot charge him for 323 or 324 should be 326 or 307 even yes the row service back question number 13 13 in fact shaham is also joining we will ask mr. shaham to read it if he has that question question number 13 you are at the fag end of today's session will not a mere defect in the language or in the narration or in the form of charge render the conviction bad if the accused had not been prejudiced that is very important as situation of course there is a defect in the charge but if the accused had not been produced he had sufficient information about the case he had to meet he had sufficient information sufficient knowledge he was supposed to be sufficient information material just because there is a defect in the charge that cannot go to the rescue of the accused unless there has been a failure of justice or he had suffered prejudice if we saw while discussing that nana chan's case and suraj pal's case which was the three judge decisions which were allegedly said to be conflicting and necessitating a reference of the case to the constitutional bench in williams lanny's case in we have already seen in nana chan's case 1955 superingot 274 and suraj pal's case a year 1955 superingot 419 that failure to frame an independent charge under section 302 IPC without the aid of section 149 over and above a charge under section 302 reduce section 149 can be fatal in a given case because that those two cases were cases where he was charged for murder not independently as a member of the unlawful assembly he was here the charge said that you had committed murder rate with 302 rate with 149 but ultimately if either the the the unlawful assembly has disappeared supposing the number of persons dintle down below five or the court find that the common object shared by all the members was not murder but only some supposing all of them went for giving a beating all of them went to the victim for giving him a beating but one of them he was on a frolic of his own he took out a knife and stabbed him you can't say that all others shared the same common object that is the crux of 149 therefore the if he is charged under 302 reduce 149 he is not told that he was the person who committed the act of killing he is only told that as a member of the unlawful assembly you are guilty of murder but unless he is told that you are you committed murder under 302 without the aid of section 149 he cannot be convicted that was the perfect of these those three rulings so that is the the supposing the charge is only 302 and right with 149 then he cannot be convicted under 302 if 149 becomes inapplicable because there is no independent charge under section 302 but the position under with regard to section 34 is different which we have seen in William Slaney's case in 34 contrary in contrary distinction with 149 when you are charged with an offense right to section 34 you are a participant you are you are alleged to be a participant of the offense occurrence the extent of your participation is different but you you participate in the offense in perseverance of the further in the for common in perseverance of the common intention there was a meeting of mind and a common intention all of them shared the same common intention and then he participate in the offense in such a case William Slaney said you were told that you had you had committed the offense like any or the other person also all of them had committed the offense because all of you shared the same common intention that is a difference between common intention under section 34 and common object under section 149 that was beautifully stated in these three rulings Nannachal, Turejpal and William Slaney's case. We come to the last question of the day for the day. I give it a privilege to go along with the last Christian I was hearing it throughout his family it is calling into question the conviction and sentence of the accused number one the the issue is this after framing charge against six persons for offenses punishable under sections 323, 324, 341, 326, 302, 143, 147, 148 and 149 IPC the trial code found accused numbers two to six as members of an unlawful assembly with the common object of committing the offense under section 326 IPC and convicted the sentence them with the aid of section 149 IPC the first accused was convicted and sentenced for murder under section 302 IPC on appeal the high court acquitted accused numbers five and six but confirmed the conviction and sentence regarding others. Is there any illegality in the conviction or sentence of the first accused? Yes I have already answered this question it there is an illegality even was charged for murder only with the aid of section 149 IPC the definite case of the prosecution is that only six persons were members of the unlawful assembly the prosecution has no case that other known or unknown persons were also there in the assembly sharing the same common object hence with the acquittal of two of the accused persons two of the six accused persons the total number of the accused person became reduced to four including Ayodhya so if so there was no unlawful assembly for which as per section 141 there should be five or more persons when the charge against Ayodhya was inter alia for murder where do you section 149 and there was no charge for section 302 Simplicitor no independent charge in the section 302 it was not permissible for the court to convict Ayodhya for for the offense under 302 alone he will therefore be liable to be acquitted this was the view taken by Ravthikendi also by the Supreme Court in Subbaran Subbaran versus state of Kerala 1993 volume 3 SCC 32 1993 volume 3 SCC 32 three judges then we have already seen Surajpal state of UP AR 1955 Supreme Court 419 the there the appellant was charged in really for offense the punishment under section 307 and 302 with the aid of section 149 I could help that unlawful assembly held by the prosecution was not true however the appellant was convicted section 307 and 302 without an independent charge and aided by section 149 the in the absence of an independent charge for those offenses Supreme Court acquitted the appellant of those offenses same thing in Nana Chen's case also AR 1955 Supreme Court 274 three judges of course here here the accused was not given the benefit of acquittal but the case was remanded to the trial code for framing a a fresh charge under section 302 separately independently that is how the case was disposed of by the three judge bench in Supreme Court so we have completed only one section in chapter 17 section 211 in the coming sections coming sessions we will discuss the other sections also thank you for the patient hearing yeah only one question has come on the youtube it says in a corruption case the court cannot discuss on the charge framing can can you please guide us I didn't get the question properly he says in a corruption cases the court cannot discuss on the charge framing why I don't know he said can you say one corruption case means a case under the prevention of corruption act 1988 though it is a session judge the procedure for trial is warrant trial warrant trial also there is a framing of charge in William Slaney's case we saw Justice Imam all the three judges say very emphatically saying that if it is a warrant trial or session trial framing of a written charge is a must is a must therefore court and if there is no written charge there is no written charge or if the charge is defective the superior court can definitely make criticism about the court charge even the accused can challenge can attack the court charge and tell the very same court which framed the charge that see I am called upon to answer only this charge you cannot convict me for some other evidence as was as happened in that smothering case that even in civil law they say that if you are not charged for a particular thing or the charge is vague then also there is no that is there is a pleading a party in a civil case cannot go beyond beyond the pleading well I am saying once it is a vague charge they say if it's a vague charge then you can't put your defense in that force yes but in civil law there is no charge no even discipline because in civil law there is only the issues issues issues are framed on the basis of the pleadings if a particular issue is framed without there being a plea even that issue can be struck struck down struck struck off by the court at the appropriate stage because a party cannot be heard to to abuse evidence on a plea which is not pleaded on a case which is not pleaded I will ask Shyam to pose a vote of thanks section 211 the nuances the way in which the charges ought to be framed what all need not and could not be included in such a inimitable manner that was presented and the entire session on one particular session itself shows that the in depth analysis we had in the last I'll say around 45 minutes to one hour Ramkumar sir Ramanna what else can I say like I mean the way in which you are able to deal with the subject and the manner in which you are able to end the kind of messages we get in the chat box saying that the clarity with that the participants were able to understand that it's a big volume on the manner in which the subject was dealt with because once again concretes and I'm sorry that I could not be quite often on your platform but still the effort that is being put in and getting Ramkumar sir and such such such faculty for dealing with these sort of topics we are I mean in fact you are doing a common service to the legal fraternity as which I would say Ramkumar sir thank you very much for this wonderful journey to the different nuances of charges and what else can I say thank you thank you very much sir if the participants and the posterity are are benefited by these webinars my mission is accomplished in fact sir in fact indeed and I would say that pedagogy is a skill I quite often said that I mean you may be able to you may have a lot of knowledge but to translate and to to to give it to those persons aspirants or those persons who like to learn is an entirely different ball game all together and the manner in which you are able to I mean fragment these different technical and other aspects into form of question and answers that itself to a great extent it can be assimilated could be understood by even novices I mean let alone experts for that matter that goes a long way sir I mean the kind of effort that you take in even for preparing those questions and the time you spend for preparing for this session that that is seen from the way in which the chart has been prepared all the questions are framed it's not just as if somebody comes over and say that I'll talk for one hour or something like that no the kind of effort that you put in I mean that is something that what can I say sir tremendous great I can just but this they say that I can just devoted to just to Ram Kumar they say the greatness of great man was not achieved in certain flight at night it was when others were sleeping at night he was tolling all the night so thank you sir and his I would share with you the number of participants what we see on the zoom approximately the same number initially used to participate but his sessions are going tremendous and on the YouTube is getting popularity like anything thank you to the participants everyone stay safe stay blessed and tomorrow for a change we are bringing one of the speakers from the Sikkim he's a district and session judge from gang talk negligence and compensation under torts virtual khaldi vada district and session judge this thing do stay with us tomorrow everyone stay safe stay blessed thank you thank you