Source: Kerala High Court

Why in News?

Recently, the High Court of Kerala in the matter of Litty Thomas v. State of Kerala, has held that before the Judge proceeds to frame the charge under the provisions of Section 228 of the Criminal Procedure Code, 1973 (CrPC), he has to form an opinion, that there is ground for presuming that the accused has committed the offence.

What was the Background of Litty Thomas v. State of Kerala Case?

• In this case, the petitioner invoked the inherent jurisdiction of the Kerala High Court under Section 482 of CrPC for quashing of the charges framed against him.
• The grievance pointed out by the petitioner is that though the trial court heard the petitioner under Section 227 of CrPC, charge was framed without forming an opinion as to the ground for presuming that he has committed the offences alleged, or a finding to the effect that no sufficient grounds were there for a discharge.
• The High Court held that the charge framed by the trial court has to be quashed, and the learned trial Judge is directed to hear the prosecution and the petitioner once again under Section 227 of CrPC.

What were the Court’s Observations?

• Justice Sophy Thomas observed that there is ground for presuming that the accused has committed the offence, he shall frame the charge against the accused. So, it is imperative under Section 228 of CrPC that before the Judge proceeds to frame the charge, he has to form an opinion that there is ground for presuming that the accused has committed the offence.
• On analyzing Sections 227 and 228 of CrPC, the Court stated that the judge has to consider records, documents submitted and hear the submissions of the prosecution and accused before discharging or framing charges against the accused.

What are the Relevant Legal Provisions Involved in it?

Section 227 of CrPC

About:

• Section 227 of CrPC deals with the discharge of the accused in sessions cases.
• It states that if upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
• This section was enacted for the purpose of saving the accused from unnecessary harassment.

Case Law:

• In the State of Karnataka v. L.Muniswamy (1977), the Supreme Court held that the object of the provisions which require the Session Judge to record its reasons while entertaining discharge petition under section 227 of CrPC is to enable the superior court to examine illegality of the impugned order. In that case the trial court did not assign any reason in the impugned order while refusing to discharge the accused as such it suffers from serious infirmity.

Section 228 of CrPC

• Section 228 of CrPC deals with framing of charges in cases of trial before Sessions Court. It states that

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which—

(a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report.

(b) Is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.