Framing of charges: To give reasons or not to give reasons? Revisiting the sins of Kanti Bhadra Shah

A recent judgment of the Supreme Court in Bhawna Bai v. Ghanshyam has reignited the debate surrounding the standard applicable for framing of charges under Section 228 of the Criminal Procedure Code, 1973 (CrPC).

The Apex Court in Bhawna Bai has held that there is no requirement in law to give reasons in an order framing charges. With the greatest respect to the Court, this article argues that the said position arises out of excessively utilitarian reasoning, undermines the importance of framing of charges- rendering it to a mere formality- and thereby violates a crucial statutory right of an accused. It is argued that this ratio is likely to severely affect criminal jurisprudence and the basic statutory scheme under the CrPC, and hence must be re-examined.

Background of the case

The judgment deals with an order passed by the Second Additional Sessions Judge at Mandleswar, Madhya Pradesh under Section 228, which, without giving any reasons, held that there are sufficient grounds to proceed against the accused. The said order was challenged by the accused through a revision petition before the High Court, the main line of attack being that the Sessions Court ought to have applied its judicial mind and given some reasons while framing charges. The High Court allowed the revision, agreeing with the accused-petitioners.

Thereafter, the matter reached the Apex Court, which reversed the High Court’s decision by finding that reasons need not be given by the trial court:

“13. … At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.”

“17. … upon hearing the parties and considering the allegations in the charge-sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence ... The order dated 12-12-2018 framing the charges is not a detailed order. For framing the charges under Section 228 CrPC, the Judge is not required to record detailed reasons. …The impugned order cannot therefore be sustained and is liable to be set aside.”

(Emphasis Added)

Legal position

There is no disagreement with the proposition that at the stage of framing of charges, only a prima facie case is to be seen, and the probative value of the evidence is not to be looked into. The Court need not be satisfied that the case will ultimately end in a conviction, but must simply reach a satisfaction that the accused might have committed the offence.

It is, however, also well settled that in forming a prima facie opinion, there has to be sufficient ground to proceed against the accused, and the court must actually apply its judicial mind and form an opinion. The Apex Court itself has said, that “at the stage of framing of charge, the court is required to evaluate the material and documents on record” to see if a prima facie case is made out.

Thus, it would only be a logical corollary that this judicial exercise of evaluation of the materials on record should be reflected in the order framing charges by way of some reasons and explanation, at least. This is in line with the old legal adage that “justice must not only be done, but also seen to be done”.

In fact, in an earlier decision RS Mishra, the Supreme Court has found that the “consideration” referred in Section 227 and 228 of the CrPC must be reflected in the order framing charges:

“21. … Section 228 which deals with framing of the charge, begins with the words “If, after such consideration”. Thus, these words in Section 228 refer to the “consideration” under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an interconnection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted (although the accused is not discharged), some minimum reasons in a nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed “after such consideration” and therefore, that consideration must be reflected in the order.

24. Further, … , at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the Judge.

25. …the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him.”

(Emphasis Added)

Thus, the Court in RS Mishra correctly finds that an order framing charges ought to be clear and self-explanatory, and the sifting of materials must be reflected therein. This position is congruous with the legal right of revision provided to an accused under Section 397 of the CrPC against an order framing charges. A revision can only be preferred in case there is an illegality or perversity in the order framing charges.

In case the legal position set by Bhawna Bai is accepted, there would never be any illegality or perversity in the order, since the order would only be a simplistic parrot-like repetition of the words “there is sufficient material to proceed against the accused” . This would render the remedy of revision under Section 397 of the CrPC (and even under Section 482 CrPC) against the order framing charges otiose. Indeed, the legislature could not have intended the stage of framing of charges to be reduced to such a mechanical function.

In this context, it may also be apposite to refer to the Supreme Court’s landmark decision on framing of charges in the case of Prafulla Kumar Samal, wherein it found that “the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.”

The fact that the legislature specifically incorporated Sections 239, 228, 245 and 251 in the CrPC - which lay down the different standards applicable to framing of charges for different types of trials - shows that the legislature was keenly aware of the benefits of having framing charges as a pre-trial filter to weed out wrongful prosecutions and protect the rights of the accused.

The judgement of the Apex Court in Bhawna Bai not only ignores RS Mishra and Prafulla Kumar Samal (and thus is perhaps per incuriam), but instead places reliance on an earlier decision - Kanti Bhadra Shah. In that case, it was held that judges only need to give reasons while discharging accused and not while charging them, on account of the justification that “why should the already burdened trial courts be overburdened with such an extra work [sic]”.

Without a doubt, the decision in Kanti Bhadra Shah was misplaced, following an excessively utilitarian reasoning by giving more weight to the issue of “over-burdening of trial courts”, as opposed to the constitutional rights of the accused and the principles of natural justice.

Much water has flown under the bridge since Kanti Bhadra Shah, with the Supreme Court slowly rebuilding the importance of framing of charges, to the extent that trial courts normally do give reasons while framing of charges.

In fact, the Supreme Court has recently in Nitya Dharmanand again fortified the value of the stage of framing charges, wherein taking a slight departure from the earlier Debendra Nath Padhi position, it has found that the accused can present fresh material at the stage of framing of charges itself, if the material is of “sterling quality” and was withheld by the prosecution. This view is in line with the rationale behind having the stage of framing of charges i.e., filtering out malicious and frivolous prosecutions without making the accused go through the agony of a full-blown trial.

Bhawna Bai, by giving imprimatur to Kanti Bhadra Shah, has paved the way for a dangerous practice whereby trial courts will now stop giving reasons altogether in orders framing charges. This is likely to have serious ramifications for an accused, who will now have to contest a potentially wrongful, illegitimate and mala-fide prosecution till the culmination of trial. In fact, this will even increase in the burden of trial courts and High Courts (which paradoxically, goes against the intent of the court in Kanti Bhadra Shah).

Since Bhawna Bai relates to Sessions Trials under Chapter XVIII of the Code - the most serious offences under the CrPC - its ripple effect will be felt even in other types of trials, be it warrants, summons or complaints cases. Scuttling such an important right provided by the CrPC, in the hope of a fast-track trial, is not only misplaced, but also misconceived and needs re-consideration.

Sanya Sud is is a graduate of NLU Delhi and practices in the Delhi High Court and Trial Courts.