 And after a long time, we are back with Justice V. Ramkumar, who is very popular, not only in our sessions, but also on the live blog. Today's session would be previous convictions. How and when to frame charge. This topic looks short, but I know that after once you hear Justice Ramkumar, all the doubts would be cleared because he has the knowledge to go deep dive. We have been reading his articles also on the live blog and we are all eagerly waiting for his book. Without taking much time, I will request sir to start sharing his knowledge. Thank you, sir, for acknowledging our invite and we are grateful as ever. Thank you, Mr. Vikas. Good evening, friends. This is my re-emergence indeed after a pretty long spell of silence. Some health issues continue to trouble me from frequently addressing you. But I do not wish to and I refuse to wither away completely from the legal fraternity. So here I am before you with a topic which has been generating some doubt and uncertainty in certain judges and lawyers alike. The topic is how and when to frame a charge for previous convictions. There is still a lingering confusion in the minds of some judges, public prosecutors, and other members of the legal fraternity as to the modalities of framing a charge for previous convictions. See, all of you know that the chapter in the CRPC 1973 dealing with the framing of charge by a court is chapter 17, starting with section 211 and ending with section 224. Sections 11 to 217 deal with the form of charges and sections 18 to 224 deal with the joint of charges. Now section 211 and 212 are the most important sections. Now section 211 gives you the contents of a charge. What all things should a charge, court charge should contain. And section 212 gives the particulars of the time, place, person, et cetera in a charge. Now the particular provision dealing with previous convictions is subsection 7 of section 211. This subsection reads as follows. If the accused having been previously convicted of any offense is liable by reason of such previous conviction to enhance the punishment or to a punishment of a different kind for a subsequent offense and it is intended to prove such previous conviction for the purpose of effecting the punishment which the court may think fit to award called the subsequent offense. The fact, date, and place of the previous conviction shall be stated in the charge. And if such statement has been omitted, the court may add it at any time before sentence is passed. This is subsection 7 of section 211. Now some of the doubts which are expressed are, see, the court is going to frame charge regarding previous conviction. Now he is, presently the court is framing charge for an offense which he is allegedly committed and he is about to be prosecuted. And the trial is yet to start and charge is to be framed. While framing charge, the question is whether a charge for the previous conviction against him can also be clubbed along with the main charge to be framed. Now the usual doubts which are expressed are, will not the prejudice, supposing the charge for previous conviction is to be framed along with the main charge to be framed for the main offense to be prosecuted, to be tried. Will it not prejudice the mind of the court because the court may get the mind of the court may get prejudice because there is a previous conviction. So the accused standing in the dock, oh, you have a previous conviction to discredit, you have discredited. So you may be a habitual offender. That may be the impression which the judge may have. Number two, will it not give rise to an apprehension in the mind of the accused also that he is sure to be found guilty of the main offense, which he is about to face trial. He is about to face trial for the main offense. So will it not raise an apprehension in the mind of the accused that definitely found guilty because previous conviction is already there and it has been read over to me. So the judge is aware, prosecutor is aware, my lawyer is also aware. Therefore court may think that I am a habitual offender. So he may have engender a fear that he is definitely, he will definitely be found guilty for his offense also. Third apprehension or fear expressed is will not the public prosecutor take advantage of the previous conviction so as to influence the mind of the judge to the detriment of the accused. Public prosecutor is aware of the previous conviction. Will he not take an advantage of the previous conviction to the detriment of the accused with a view to influence the mind of the judge. These are the usual apprehensions or fears expressed by judges and lawyers. Well, these are all misplaced apprehensions in the minds of the legal person age. No judge well trained in law should be vulnerable to play, to fall prey to the mere allegations in the prosecution story. After all prosecution case is only allegations. We are yet to, the accused is yet to face the trial during which prosecution will have to add use evidence in support of the allegation. The only evidence is the allegation. And to go find that it is legal evidence which can be admitted in the case. And then only the question of proving the charge of proving the allegations in the charge will arise. An indictment is not worth the name unless substantiated by legal evidence. Hence there is nothing wrong in the judge or the magistrate for having a charge for previous conviction along with the charge for the main offense. That is one rider. Charge, charge for previous conviction of course. You can come down with the main charge. If the charge for previous, framed along the main charge. In fact, it can be included in the main charge. There's one rider. And the accused is found guilty of the main offense which is about, which is about to be tried. The charge for previous conviction should not be read out to the accused or shall the plea of the accused be taken and the prosecution shall not add use evidence also in support of the previous conviction. These are the three prohibitions. Even though a charge for previous conviction can be included in the charge for the main offense, don't the court, court cannot read out the charge to the accused for previous conviction. Court cannot also read out to the charge to the accused and take his plea regarding the previous conviction. Then court cannot let the prosecution to add use evidence in support of the previous conviction. All this can be done only after, only in case the accused is convicted of the main offense she is going to be tried. These are the riders. Now let us examine the procedure contained in the CRPC. The section 211 clause 70 says charge can be for previous conviction also. It only says though. It does not contain any of the riders, any of the do's and don'ts. The charge under section 211.7 for CRPC for previous conviction can therefore be clubbed along with the charge for the main offense proposed to be tried thereby making a composite charge. In fact, if you kindly see model form number 32, the CRPC can schedule, there are model forms. Form number 32 is the appropriate form for charge. What all think that charge should contain? It is framed in compliance of sections 211 and 212 of chapter 17 of CRPC. Now in that part three of form number 32 contains the charge for previous conviction. In fact, in that model form, there is a accused charge for the offense of the conditional section 370 and IPC. And he's also charged for the previous conviction of an offense against property contained in chapter 17 of the Indian Penal Code. Therefore the charge for the main offense is the charge for previous conviction also. Then where does, where do you find the restriction? But after so clubbing the charge for previous conviction along with the charge for the main offense, the three restrictions are contained in section 248.3 in the case of a magistrate conducting a trial of a warrant case and section 236 in the case of a session judge trying a warrant trial under the CRPC. Now the section 248.3 and it's proviso. You see that the first condition is the charge for the previous conviction shall not be read over the accused condition. The same condition you will find in section 236 proviso regard to sessions of a session trial. This is a trial someone has a warrant trial by a magistrate 248.3 and it's proviso. Second condition is the charge shall not be, the accused shall not be asked to such charge. Charge shall not be read over to the accused. The accused shall not be asked to plead to the charge. Third, the previous conviction shall not be referred to by the prosecution or in evidence, any evidence adduced by the prosecution. The previous conviction shall not be referred to by the prosecution in any evidence or shall the prosecution adduce evidence for regarding previous conviction unless and until the accused is convicted in main offense. So unless the accused is convicted, the conviction has been recorded in the main offense for which he is being tried, the fact revisions should not amount record. Though it can be clubbed in the main charge prepared by the court, but it shall not be read out to the accused, nor shall he plead taken, nor shall the prosecution be allowed to adduce evidence. All these restrictions are contained in section 248 clause 3 and in the proviso with regard to a magistrate conducting a warrant trial and section 236 and its proviso in respect of a session that conducting a session trial. Under the, now let us examine the provision in the old code, T-98 code. 1970 code was preceded by the code T-98. Under the corresponding provisions of the code of criminal procedure, T-98, there was some difference in the procedure of a magistrate trying a warrant case and a court session trying a warrant case. In the case of a magistrate trying a warrant case under the T-98 code, the magistrate could not club, could not only club. The magistrate had larger powers than the session group. Magistrate could not only club the charge for previous conviction in the main charge for the main offense, the magistrate could also read out the charge to the accused and take the plea of the accused. The only restriction on the magistrate under the T-98 code was contained in section 255 capital A that is against taking evidence. The magistrate was recruited from allowing the prosecution from adducing evidence in support of the previous conviction. All other things the magistrate could do. Namely, he could read the charge for previous conviction. He could take the plea of the accused, et cetera. But only restriction was he could not allow the prosecution to let in evidence for previous conviction unless and until the accused was convicted in the main offense. That was, but in the case of a quarter session under the T-98 code, the position was as obtained in the 1973 court session. Quarter session could club the charge for previous conviction in the main charge, but quarter session could not read out the charge for previous conviction to the accused and could not take his plea also unless and until the accused was found guilty in the main offense. That restriction, it was there in the T-98 code also. In fact, section 310 of the T-98 code specified that it is identical to section 236 of the 1973 code and it's proviso. A uniform procedure now, under the 1973 code, a uniform procedure has been made applicable both in the case of a magistrate as well as in the court of the case of a court of session. Both are having similar powers. They can include the charge for previous conviction in the main charge, but it shall not be read out to the accused, the plea of the accused shall not be taken. Evidence in support of the plea also shall not be allowed to be taken unless and until the accused is found guilty of the main offense, which he is about to, which is being tried. Now, coming to the case law, I am aware of only two decisions of the Kerala High Court, one by a learned single judge and another by a division bench. Now, in the case of learned single judge, Haji K.K. Moidu, who was the food inspector of Kodi Code municipality, 1961 K.L.T. 415, the author of the judgment is Justice T.C. Raghavati. It was held by the letter judge that a charge for previous conviction should have been framed by the magistrate only after the accused was found guilty of the main offense. It was actually, it is technically not correct because under the, as I mentioned, under the old court, this is a decision rendered under the 1898 court, where under the magistrate had larger powers than that of the session court. The magistrate could club the charge for additional conviction, for previous conviction. The magistrate could read out the charge for previous conviction. The magistrate could take the plea of the accused also in the, for the previous conviction, even before convicting the accused for the main offense. That such power was given to the magistrate, but the learner judge took the view that the magistrate should not have framed the charge unless and until he convicted the accused for the main offense. The above view was technically not correct since under the 1898 court, a composite charge both for the main offense as well as for the previous conviction could have been framed and the plea of the accused also could have been taken and the only bar was against allowing the prosecution to abuse evidence in support of the previous conviction unless and until the accused was found guilty for the, in the main offense. Now, the above view that even the charge for previous conviction should have been framed by the magistrate, only after the accused was convicted was therefore disapproved by a division bench of the Kerala court. In food inspector Chitu versus Mariapin Chettiar, 1965 KLT, 963, the judges are Justice Anna Chandi and Justice P. Govinda Menon. Justice P. Govinda Menon was subsequently elevated to the Supreme Court which was also rendered under the 1898 court. The division bench held that while in a warrant case triumphed by a court session, even the plea of the accused on the charge for previous conviction could be taken only after the accused was found guilty of the main offense. Such a bar was not applicable to a magistrate trying a warrant case under the 1898 court. The division bench accordingly ruled that the composite charge framed by the magistrate and the plea of the accused taken on such charge was perfectly legal. Now, under the 1973 court, the procedure has been made uniform, both for the magistrate as well as for the session judge, they can include the charge for previous conviction in the main charge for the offense to be tried, the main offense. But the charge for previous conviction shall not be read out to the accused unless and until he is convicted of the main offense. Likewise, the plea of the accused on the previous conviction also shall not be taken unless and until he is found guilty in the main offense. Again, the prosecution shall not be allowed to let in evidence in support of the previous conviction unless and until accused shall be convicted of the main offense. This is the procedure now invoked under the CRPC 1973. So kindly used judges and lawyers and all members of the legal fraternity should bear this in mind while the court is to frame charge for previous conviction and how the previous conviction is to be brought on record and how the accused is to be finally found guilty and convicted and sentenced for the previous conviction. Thank you. Thank you, sir, for sharing your knowledge. And I'm quite sure that everyone who watches this video maybe it is the judiciary, maybe it is the lawyer or maybe it is the student of lawals. Like you always speak that we are all student of law. So this journey, your knowledge sharing would help them to embark better with better insights. Thank you, sir. And we all wish that you should remain healthy and you should keep on sharing your knowledge. Thank you. Namaskar. Thank you.