Sunday, 11 September 2016

Whether absence of written charge is fatal to prosecution case?

It is the argument of Mr. Jha, learned Advocate, appearing on behalf of the
petitioner being the accused no. 3 that actually no written charge was framed
against this accused person even though the order dated 31st May, 2010 will
reflect that the charge was framed and read over and explained to the accused
person. Learned Advocate took me to the copy of that order and also prayed
before this court to consider the fact by taking me to the order dated 23rd May,
2013 that on that date, learned Special Court got the report as to the death of theaccused no. 1, the public servant involved. He also took me to the impugned
order dated 15-05-2014 wherein learned court relied on the order dated 31-05-
2010 that the charge was explained to the accused and admitted that no written
charge could be found. This is the main portion of the argument of Mr. Jha,
learned Advocate, appearing on behalf of the petitioner. 
It is a clear case where this court will have to decide whether any prejudice
was caused to the accused for not filling of that prescribed form. Section 464 of
the Code may be taken into consideration in this regard Section 464 of the Code
runs thus: Effect of omission to frame, or absence of, or error in, charge.-(1)
“No finding, sentence or order by a court of competent jurisdiction shall be
deemed invalid merely on the ground that no charge was framed or on the
ground of any error, omission or irregularity in the charge including anymisjoinder of charges, unless, in the opinion of the court of appeal,
confirmation or revision a failure of justice has in fact been occasioned
thereby.”
(2) If the court of appeal, confirmation or revision is of opinion that a
failure of justice has in fact been occasioned, it may –
(a) in the case of an omission to frame a charge, order that a charge
be framed, and that the trial be recommenced from that point immediately after
the framing of charge;
(b) in the case of an error, omission or irregularity in the charge,
direct a new trial to be had upon a charge framed in whatever manner it thinks
fit:
Provided that if the court is of opinion that the facts of the case are such
that no valid charge could be preferred against the accused in respect of the facts
proved, it shall quash the conviction.”
Section 464 naturally comes after Section 228 (1)(b) of the Code and
naturally this Court can say that Section 464 of the Code is a curative section
and the defect that the learned trial court even did not frame in writing a charge
against the accused can safely be cured. The circumstances of this case as I have
pointed out above cannot show that any prejudice was caused to this accused.
There was no need to frame fresh charge in the format in the present case as
charge for all purposes was already framed as per the impugned order. The court
must consider here that when the charge was framed in the year 2010 the public
servant was very much alive and unfortunately he died when the format ofcharge was filled in by the trial court as per the impugned order. This filling up of
the form may be considered to be a part of the order dated 31st May, 2010.
Much was argued by the petitioner that the charge was framed as per the
impugned order against a dead person but one must take into consideration the
peculiar facts and circumstances of this case. It may be noted that only format of
charge was filled in vide the impugned order which may practically be treated as
continuation of order dated 31.05.2010.
This being the observation of this court I find no reason to set aside the
impugned order and to remit back the case to the Metropolitan Magistrate having
jurisdiction for disposal as the offence allegedly committed by this accused was
under Section 420/511 read with Section 120B of the IPC as he entered into
criminal conspiracy with the public servant (accused no.1) being alive on the date
of framing of charge on 31.05.2010. There is no question of issuing such a
direction in view of the decision of the Apex Court as relied upon both by the
prosecution and the defence that is Jitendra Kumar Singh (supra).
Thus, this revisional application is dismissed on contest.
 IN THE HIGH COURT AT CALCUTTA
 CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present : The Hon’ble Justice Indrajit Chatterjee
C.R.R. 2160 of 2014
Ramesh Sharma
-vs
Superintendent
of Police,

Judgment on : 06.09.2016
Citation:2016 SCCONLINE Cal4872

Indrajit Chatterjee, J.:- This is an application under Section 482 of the Code of
Criminal Procedure (hereinafter called as the said Code) wherein this petitioner
has prayed for an order to set aside the order no. 60 dated May 15, 2014 passed
by the learned Judge, 3rd Special Court (C.B.I.) designated Calcutta in Special
(C.B.I) Case No. 13 of 2006.
The fact relevant for the purpose of adjudication of this revisional
application can be stated in brief thus: -
That one R.C. Case No. 5 of 2003 (A) under Sections 120B, 420 read with
Sections 511, 477A and Section 13(2) read with Section 13(1)(d) of the Preventionof Corruption Act (hereinafter called as the said Act of 1988) was registered
against this petitioner and three others including one company in which this
petitioner is the Director. It was alleged in the F.I.R. that public servant
Sadanand Kaushik (Accused no.–1) when he was posted and functioning as
Development Officer of United India Insurance Company Ltd., Div.-V entered into
a criminal conspiracy with others and in furtherance of the said conspiracy and
in willful misuse of his official position, the said accused no. 1 allegedly accepted
ante-dated cheque of Rs. 5,11,875/- towards premium of fire policy covering loss
by fire and allied perils including earthquake and made false entries in the scroll
by falsifying the accounts to facilitate M/s. Antai Balaji Ltd. to make claim and
thereby attempted to cheat and to cause wrongful loss to the United India
Insurance Company Ltd., Div.-VI.
The matter was investigated by the Central Bureau of Investigation
(hereinafter called as the C.B.I.) and charge sheet was submitted against four
accused persons including the company of that public servant. The case was
registered with the trial court being the Special Court No. III (C.B.I), Calcutta.
It is the argument of Mr. Jha, learned Advocate, appearing on behalf of the
petitioner being the accused no. 3 that actually no written charge was framed
against this accused person even though the order dated 31st May, 2010 will
reflect that the charge was framed and read over and explained to the accused
person. Learned Advocate took me to the copy of that order and also prayed
before this court to consider the fact by taking me to the order dated 23rd May,
2013 that on that date, learned Special Court got the report as to the death of theaccused no. 1, the public servant involved. He also took me to the impugned
order dated 15-05-2014 wherein learned court relied on the order dated 31-05-
2010 that the charge was explained to the accused and admitted that no written
charge could be found. This is the main portion of the argument of Mr. Jha,
learned Advocate, appearing on behalf of the petitioner. He contends by taking
me to Section 228 of the Code that the written charge is a must in view of SubSection
(2) of that Section. He also relied upon the Constitution Bench decision of
the Apex Court as reported in AIR 1956 SC 116 [ Willie (William) Slaney Vs.
State of M.P.] wherein the Apex Court in paragraph no. 85 held “The Code
requires that there should a charge and it should be in writing. A deliberate
breach of this basic requirement cannot be cured by the assertion that everything
was orally explained to the accused and the assessors of jurors, and there was no
possible or probable prejudice”.
He also referred to another judgment of the Apex Court as reported in
(2014) 11 SC 724 [ STATE through Central Bureau of Investigation, New
Delhi Vs. Jitendra Kumar Singh] wherein on the fact before the floor of the
Apex Court, it was held when the charge could not be framed against the public
servant because of his death, the co-accused person cannot be tried by the
Special Judge by invoking his jurisdiction under Section 4(3) of the Act of 1988.
He also took me to the written charge framed on 15th May, 2014 to say that this
written charge was framed when the accused no. 1 was not there in the world
and that unfortunately learned trial court framed charge against that person
also. He further supplemented his argument by saying that in the written chargejust referred to above, there is no mention of criminal conspiracy in the said
charge against this petitioner (Accused no. 3). He entered into the criminal
conspiracy with that public servant. Thus, he contended that considering the
factual aspect of the case, this case is to be sent back to the learned Chief
Metropolitan Magistrate, Calcutta for trial either by himself or by any other
Metropolitan Magistrate subordinate to him.
On behalf of the C.B.I. Mr. Ali, learned Advocate, contended that there is
no irregularity in the impugned order. He took me to Sections 225, 226 and 227
of the Code to say that as per Section 226, the prosecution will explain it’s case
to the Judge by opening the prosecution case and as such, he submitted that
Special Court being a Court of Sessions, this court can say that when the matter
was taken up, the entire details of the case were brought to the notice of the
learned court in presence of the lawyers of the defence. He took me to the order
dated 31-05-2010 vide which the charge was framed against all the accused
persons including the public servant but he submitted that no form was filled in.
He further submitted by taking me to the said order that charge was read over
and explained to the accused persons including the charge under Section 120B
of the Indian Penal Code. It is his contention that non-filling up of the form is one
irregularity and no illegality and for that reason, the prosecution case cannot
suffer. He submitted that vide the impugned order, learned court tried to cure the
irregularity by framing a written charge to cure the defect.
He also contended that after the charge was framed on 31-05-2010, P.W.1
was examined on 24th August, 2010 by the same Judge and the order dated 31-05-2010 has not been challenged in this revisional application. He further
contended that intimation of death of the accused no. 1 was received on 23-05-
2013 and as such, the case against him was filed. In the same breath, he
submitted that when the charge was framed on 31-05-2010, this accused no. 1
was very much alive and that actually the trial started with effect from 31-05-
2010. He also relied upon the judgment of the Apex Court in Jitendra Kumar
Singh (Supra) wherein in a similarly placed situation, the Apex Court directed
continuance of trial by the Special Court when charge was framed before the
death of the public servant.
He further submitted that after the framing of such charge in the year
2010, this revisional application was filed after 4 years. He further contended
that this accused was very much made aware by the court as per the order dated
31.05.2010 that what offence he committed. Thus, the main contention of Mr.
Ali was that mere fact that no form as prescribed was filled in by the court, the
accused cannot be said to have been prejudiced by the said order and if no
prejudice has been caused, there is no question of setting aside of the impugned
order. Mr. Ali also submitted by taking me to Section 227 of the Code to say that
as the learned trial court did not discharge the accused by invoking that
provision, the court was prima facie satisfied regarding the charge against this
accused. He also faintly submitted that the accused no. 2/company was very
much represented under Section 305 of the Code by the Advocate. He ended his
argument by saying that this matter was not agitated before any higher forum for
four years.It is submitted by Mr. Jha, learned Advocate, for the petitioner that it is the
settled law that when a particular act is to be performed in a particular manner,
then it must be done in that manner or not done at all. He submitted that if one
action of the court is illegal it cannot be legalized. As regard the non-filing of any
case for four years. It was the submission of the learned Advocate that no period
of limitation has been prescribed under Section 482 of the Code of Criminal
Procedure and as such, this revisional application is very much applicable.
Thus, the only point involved in this criminal revisional application is that
whether this accused was prejudiced as no written charge was framed against
him when the order dated 31st of May, 2010, was passed vide which charge was
read over and explained. It may be noted that the said order has not been
assailed before this court and as such it stands and cannot be interfered with.
On scrutiny of the said order it appears that charge was framed against this
accused along with other accused persons and this accused was charged in
respect of the offence punishable under Section 420/511 of the IPC read with
Section 120B of the Code. It is further clear from the said order that the learned
trial court fixed the case for recording the evidence of CSW 1 on 24.08.2010, for
recording the evidence of CSW 2 on 25.08.2010 and for recording the evidence of
CSWs 3 and 4 on 26.08.2010. It is needless to say that it is a settled position of
law that as soon as the charge is framed the trial starts. On scrutiny of the said
order it appears that the charge was read over and explained to this accused also
and all the accused persons pleaded not guilty in respect of the charge as
framed. This court is not unmindful of the fact that the company wasrepresented by one advocate under Section 305 Cr.P.C and as such the charge
was read over and explained naturally to the advocate who was defending in the
said company.
Nobody claimed regarding the non-filling up of the prescribed form of
charge, till the defence pointed out to the learned trial court that no formal
charge was framed against the accused persons and as such prayer was made
before the trial court orally not to examine CSW 2, P. K. Mitra who was on
attendance on the date of the impugned order. This shows that already CSW 1, S.
K. Satpati was examined as PW 1. The trial court in the impugned order held that
as per direction of this court vide order dated 16.04.2010, the said court was
directed to frame charge and accordingly the said court framed charge as against
all the accused persons separately by speaking order dated 31.05.2010, but the
trial court did not find the prescribed form in the record. The learned trial court
tried to cure the defect by framing a formal charge in that case even though the
principal accused, the public servant that is the accused No.1 already died in the
meantime. It was contended by the petitioner that the charge was framed against
a dead person and as such framing of charge cannot be said to be good in the eye
of law.
This court is not unmindful of the fact that as per Section 228 (1) (b) of the
Code which runs thus: “(b) is exclusively triable by the Court, he shall frame
in writing a charge against the accused.
This court is also not unmindful of the Constitutional Bench Decision of
this Hon’ble Court passed in connection with Willie (William) Slaney (supra)wherein the larger bench of the court on the fact as it was before the court held
in paragraph 85 (a) “…………………….and it is not impossible to conceive of an
extreme case whether the Sessions trial also proceeds without any formal charge
which has to be in writing and read over and explained to the
accused…………………….”
This court is not unmindful of the observations of Hon’ble Justice
Chandrashara Aiyar and Hon’ble Justice Jagannadhadas in that very case that
when there is no charge it is for the court to determine whether there is any
failure of justice. The Hon’ble Judges further held while considering Sections
225, 232, 535, 537 (a) of the old Code of Criminal Procedure that in the
generality of cases omission to frame charge is not per se fatal.
In that case before the floor of the Apex Court the defence agitated that no
charge was framed under Section 302 read with Section 149 of the IPC and the
court held that omission to frame a charge under Section 302 must be regarded
as a deliberate act of the court by way of notice to the accused that he was not
being tried for that offence.
The decision referred to above is not matching with the present case before
the floor of this Court. However, the court should not forget that in that case it
was decided that the charge must be framed in writing. I have already said that
in the instant case as per the order referred to above the charge was framed
against the accused and that was read over the explained to this
accused/petitioner also but unfortunately at a later stage of proceeding it was
found that the form of charge was not there in the record. The learned trial courtdid not take up the matter to decide whether any such form was duly filled in by
the court while passing the order dated 31st of May, 2010. The court took it for
granted that no such form was filled in. The court ought to have made
administrative inquiry why that form of charge was not there in the record. This
court is not unmindful of the presumption of Section 114 illustration (e) of the
Indian Evidence Act wherein the legislature in its wisdom enacted “that judicial
and official act have been regularly performed”.
This court can very much say with that presumption that actually when
the charge was framed on 31st of May 2010 the charge was also filled in the
prescribed format. The matter was agitated by the defence only on 15.05.2014
that is after a gap of four years from the framing of charge. On scrutiny of the
order dated 31st May, 2010, which has not been challenged this court, I find that
charge was framed and read over and explained to the accused. I have already
said that trial started on the said framing of charge. When PW 1 was examined
the defence did not take any plea that the defence was prejudiced as because no
charge was framed in the prescribed format.
It is a clear case where this court will have to decide whether any prejudice
was caused to the accused for not filling of that prescribed form. Section 464 of
the Code may be taken into consideration in this regard Section 464 of the Code
runs thus: Effect of omission to frame, or absence of, or error in, charge.-(1)
“No finding, sentence or order by a court of competent jurisdiction shall be
deemed invalid merely on the ground that no charge was framed or on the
ground of any error, omission or irregularity in the charge including anymisjoinder of charges, unless, in the opinion of the court of appeal,
confirmation or revision a failure of justice has in fact been occasioned
thereby.”
(2) If the court of appeal, confirmation or revision is of opinion that a
failure of justice has in fact been occasioned, it may –
(a) in the case of an omission to frame a charge, order that a charge
be framed, and that the trial be recommenced from that point immediately after
the framing of charge;
(b) in the case of an error, omission or irregularity in the charge,
direct a new trial to be had upon a charge framed in whatever manner it thinks
fit:
Provided that if the court is of opinion that the facts of the case are such
that no valid charge could be preferred against the accused in respect of the facts
proved, it shall quash the conviction.”
Section 464 naturally comes after Section 228 (1)(b) of the Code and
naturally this Court can say that Section 464 of the Code is a curative section
and the defect that the learned trial court even did not frame in writing a charge
against the accused can safely be cured. The circumstances of this case as I have
pointed out above cannot show that any prejudice was caused to this accused.
There was no need to frame fresh charge in the format in the present case as
charge for all purposes was already framed as per the impugned order. The court
must consider here that when the charge was framed in the year 2010 the public
servant was very much alive and unfortunately he died when the format ofcharge was filled in by the trial court as per the impugned order. This filling up of
the form may be considered to be a part of the order dated 31st May, 2010.
Much was argued by the petitioner that the charge was framed as per the
impugned order against a dead person but one must take into consideration the
peculiar facts and circumstances of this case. It may be noted that only format of
charge was filled in vide the impugned order which may practically be treated as
continuation of order dated 31.05.2010.
This being the observation of this court I find no reason to set aside the
impugned order and to remit back the case to the Metropolitan Magistrate having
jurisdiction for disposal as the offence allegedly committed by this accused was
under Section 420/511 read with Section 120B of the IPC as he entered into
criminal conspiracy with the public servant (accused no.1) being alive on the date
of framing of charge on 31.05.2010. There is no question of issuing such a
direction in view of the decision of the Apex Court as relied upon both by the
prosecution and the defence that is Jitendra Kumar Singh (supra).
Thus, this revisional application is dismissed on contest. There will be no
order as to costs.
The impugned order is hereby affirmed.
The interim order if any, stands vacated.
Office is directed to communicate this order to the learned trial court
forthwith so that the learned trial court may proceed with the trial from that
stage as left on 16.05.2014.Certified copy of this order, if applied for, be given to the parties as per
rules.
(Indrajit Chatterjee, J.)
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