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Framing of Charge in Sessions Courts
Bangladesh
Collected By BdawSource!Com
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ABBREVIATIONS
A. D : Appellate Division.
A. I. R. : All India Report.
A.C.M.M : Additional Chief Metropolitan Magistrate.
B.C : Before the Christ.
B. L. C : Bangladesh Law Chronicles.
C.M.M : Chief Metropolitan Magistrate
Cr. . C : Code of Criminal rocedure.
C. !. : Chief !ustice.
D. L. R. : Dha"a Law Report.
#. C. D. : #igh Court Division.
I. L. R. : Indian Law Report.
. L. D : a"istan Law Digest.
.C : enal Code.
p. : age.
pp. : ages.
$.C : $upreme Court.
$ec. : $ection.
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TABLE OF CASES
1. H. M Ershad V. State% &' ()**+, DLR (#CD, '-- p.)+
+. Shariful Islam V. Billal Hossain &The State% &' ()**+, DLR(#CD, p./++ p.)'
-. Forhad Hossain Md! and others V State" '0 ()**1, DLR (#CD, p.p.--/.--* .)*

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Table of Contents
Page
Abstract
Chapter 1
Introduction
11! Meaning of charge )
1" Definition )

Chapter "
Essential Ele#ents of Charge
"1 Contents of a Charge -
"" 2orm and re3uirements &
Chapter $
Alteration of Charge
$1 2raming of charge before 4rial in the Magistrate Court 5
$" 2raming of Charge before 4rial in the $ession Court 5
$$ Court ma6 alter Charge /
$% Charge to be framed 1
$&. 7hen framing of charge could be finished )0
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Chapter'%
(udicial Application
%1 4rial in Court ))
%" 4rial in $ession Court )-
Chapter &
Conclusion +0
Reference +)
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ABSTRACT
Charge is an important step in a criminal proceeding. 7ithout framing charge trial is
vitiated. 4he foundation of trial is charge which should be specific and particular in its
description. 4he statement of charge should be read in the open Court and the over must
"now what charge is leveled against him. 8ver6 time% specific offence% man6 of
commission of offence. Charge should be done in brevit6 in the language of the court.
And the same be read over to the accused in the language which he understand. Charge is
not an accusation in abstract% but a concrete accusation of an offence alleged to have been
committed b6 a person. 4he framing of a proper charge is vital to a criminal trial and this
is a matter on which the 9udge should bestow the most careful attention. 4he charge must
contain sufficient particulars as to time% place% person and circumstances.
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Chapter )1
Introduction
11 *eaning of charge
4he word :Charge; has not been defined in the Code. It onl6 states that in section &(),
(c, that Charge includes an6 head of charge when the charge contains more heads than
one. #owever% it is fundamental principle of law that the accused should "now the
e<act nature of allegation brought against him so that he ma6 not be pre9udiced in his
defence. It is% therefore% imperative that before a person is convicted of an6 offence he
should be formall6 charged% i.e.% informed with committed b6 him% and be given an
opportunit6 to defend himself against such charge. 4he charge in this countr6
corresponds to an Indictment in 8nglish law. It contains a list of offences to which the
accused must plead before the trial begins. In other words% a charge is a written
document containing the description of the offence which the court% in in3uir6 or trial%
finds rima facie proved b6 evidence before it to have been committed b6 the accused
and re3uires him to defend it.
1" +efinition
A charge is an important step in a criminal proceeding. It separates the in3uir6
stage from trial. It is onl6 when a prima facie case is disclosed about a certain offence
that a charge is framed
)
the whole ob9ect A charge is an important step in a criminal
proceeding. It separates the in3uir6 stage from trial. It is onl6 when a prima facie case
is disclosed about a certain offence that a charge is framed the whole ob9ect of framing
a charge is to enable the defence to concentrate its attention on the case that he has to
meet% and if the charge is framed in such a vague manner that the necessar6
ingredients of the offence with which the accused is convicted are not brought out in
the charge% then the charge is defective. 4he charge in this countr6 corresponds too an
Indictment in 8nglish law. It contains a list of offences to which the accused must
plead before the trial begins. In other word a charge is
)
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a written document containing the description of the offence which the court% in
in3uir6 or trial.
)
Determining the e<act motivation of prosecutors when the6 select one charge over
another is impossible. 4he6 can identif6 the factors that con.seriousl6 entered into
their choice% but the6 are seldom able to pinpoint the conversation the6 had or the
words the6 read that were responsible for in9ecting these ideas% reinforcing them% and
turning them into final decisions. 4he ob9ect of charge is to tell the accused as
precisel6 and concisel6 as possible of the offences with which he is charged and will
be tried. An accused is entitled to "now with the greatest precision and particularl6 the
acts said to have been committed and the section of the penal law infringed. If the
charge does not specif6 the accused the time% place and occurrence of offence
committed b6 the accused and the law under which it will be tried% he will not be in a
position to prepare his defence. 4hus one of the main purposes of another purpose of a
charge is to serve the principles of natural 9ustice. =o one should be condemned
unheard>. 4he third purpose of a charge is to substantiate the principle of presumption
of innocence of the accused% in other words% criminal standard of proof. 4he
prosecution has to prove a case against the accused be6ond reasonable doubt.
)
Md. ?ahurul Islam% The Code of Criminal #ro$edure% &
th
ed% (Dha"a: $uper offset printers
Ltd%+000,. p.51&.
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Chapter )"
Essentials ele#ents of Charge
"1 Contents of a Charge
$ections ++) to ++& specif6 the particulars that should be stated in the charge.
articulars are as follows:
articulars as to the time and place of the alleged offence% and the person (if an6,
against whom% or the thing (if an6, in respect of which% it was committed.
$tatement of the offence with which the accused is charged.
articulars of the manner in which the alleged offence was committed% when the
particular of nature of the case do not give the accused sufficient notice of the matter
with which he is charged. A statement of law and the section of the law against which
the offence is said to have been committed. If the law which creates the offence does
not give it an6 specific name so much of the definition of the offence must be stated as
to give the accused notice of the matter with which he is charged. 4he previous
convictions of the accused% if an6% where such conviction is sought to be proved at the
trial. In case of particular offences such as criminal breach of trust of dishonest
misappropriation of mone6% the dates between which the offence is alleged to have
been committed and the gross amount involved% together with such particulars as ma6
be necessar6 to give the accused notice of the manner in which the offence was
committed% should also be given.
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"" ,or# and re-uire#ents
a, 4he charge should be precise but should give the necessar6 particulars re3uired b6
law.
b, 8ver6 charge shall state the offence with which the accused is charged.
c, 4he charge shall be written either in 8nglish or in the language of the Court.
d, 2or ever6 distinct offence of which an6 person is accused there shall be a separate
charge and ever6 such charge shall be tried separatel6.
e, 4he law and section of the law against which the offence is said to have been
committed shall be mentioned in the charge.
f, 4he court framing charge should avoid all unnecessar6 words. Abbreviations or
recondite words should as far as possible be also avoided.
g, An omission% defect or error in the charge which does not pre9udice or mislead the
accused and does not result in an6 failure of 9ustice cannot be regarded as material.
Illustration
(a, A is charged% under section -+5 of the penal Code with voluntaril6 causing
grievous hurt to B b6 means of an instrument for shooting. 4his is e3uivalent to a
statement that the case was not provided for b6 section --' of the penal Code and that
the general e<ceptions did not appl6 to it.
(b,A is accused of murder% cheating% theft% e<tortion% adulter6 or criminal intimidation%
or using a false propert6 mar". 4he charge ma6 state that A committed murder or
cheating or theft% or e<tortion or adulter6 or criminal intimidation or that he used a
false propert6 mar"% without reference to the definitions of those crimes contained in
the enal Code@ but the sections under which the offence is punishable must% in each
instance be referred to in the charge.
A charge is an important step in a criminal proceeding. It separates the in3uir6 stage
from trial. 4he whole ob9ect of framing a charge is to enable the defence to
concentrate its attention on the case that he has to meet and if charge is framed in such
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a vague manner that the necessar6 ingredients of the offence with which the accused is
convicted are not brought out in the charge% then the charge is defective. 4he framing
of a proper charge is vital to a criminal trial and this is a matter on which the
Magistrate or !udge should bestow the most careful attention. A charge should be
carefull6 drawn up in accordance which the offence disclosed. 4he charge should be
precise in its scope and particulars.
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Chapter )$
Alteration of Charge
$1 ,ra#ing of charge before Trial in the *agistrate Court
$ection +&+ specifies the time of framing charge b6 the Magistrate. An the da6 fi<ed
for the trial to begin the accused appears% or is brought before the Magistrate. 4he
Magistrate will first consider the record of the case. And he will hear the parties.
#aving done that if he considers the charge to be groundless% he ma6 discharge the
accused. If on the other hand% the Magistrate is of the opinion that there is a prima
facie case for the accused% and he is competent to tr6 the case% he shall frame a formal
charge. 4he charge must contain sufficient particulars as to time% place% person and
circumstances. $o that the accused ma6 have notice of the matter with which he is
charged. It is ver6 important to note that formal trial starts with the framing of charge.
$" ,ra#ing of Charge before Trial in the Session Court
After the opening of the prosecution case% the $ession !udge will give both the sides
chance to argue in favour of framing charge or discharge. After such hearing and
considering the record of the case if the !udge considers that there is no sufficient
ground or prima facie case for proceedings against the accused% he shall discharge the
accused and record the reason for so doing. If% on the other hand% the !udge considers
that there is a prima facie case against the accused% it shall frame a charge 2ormal trial
starts with the framing of charge.
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$$ Court #a. alter Charge
(), An6 Court ma6 alter or add an6 change at an6 time before 9udgement is
pronounced.
(+, 8ver6 such alteration or addition shall be need and e<plained to the accused.
+

Illustration
An6 court ma6 alter or add to an6 charge at an6 time before the !udgments
pronounced. 8ver6 such alteration or addition shall be read over and e<plained to the
accused. 4he court shall decide according to the circumstances of the case% as to
whether the trial should proceed immediatel6 after alteration of the charge or some
time is to be given to the parties. 4he court has discretion to alter or add to a charge
framed under the code. 7here in the course of the evidence an offence more
aggravated than the one complained of is discovered% it is the dut6 of the court to
charge the accused with the more aggravated offence.
-
It is the dut6 of the Magistrate to alter or amend the charge% when in the course of a
trial he finds at an6 time before 9udgement is pronounced that the trial has proceeded on
imperfect or erroneous charge%
&
+
% The Code of Criminal #ro$edure Dha"a: 4he Deput6 Controler forms and publications office.
)**1,. .**.
-
?ahirul #u3% La% and #ra$ti$e of Criminal #ro$edure% )0
th
ed% ( Dha"a: Bangladesh Law Boo"
Compan6.+000,%p.&++.
&
Md. ?ahurul Islam% I&id% p./0).
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$% Charge to be fra#ed
If% after such consideration and hearing as aforesaid% the Magistrate is of opinion that
there is ground for presuming that the accused has committed an offence. 4he
magistrate shall frame a formal charge relating to the offence of which he is accused
and he shall be as"ed to the offence of which he is accused and he shall be as"ed
whether he admits that he has committed the offence with which he charged.
'

4he Magistrate before tal"ing an6 evidence but considering the provision lf section
+&) A Cr. . C shall frame charge. A charge under this section should allege all that is
necessar6 to constitute the offence charged. 4he conditions for the framing of a charge
are presumption of the commission of an offence on materials before the court.
Charged should be framed on perusal of papers as contemplated under section +&) A
Cr. . C needs the following conditions namel6: (a, the e<istence of a prima facie case
on the basis of materials before the court (b, the offence being triable under Chapter
BB (c,
5
the Magistrates competenc6 to tr6 and (d, the Magistrates power to inflict
ade3uate punishment. An the fulfillment of these conditions% charge should be framed.
If% after such consideration and hearing as aforesaid% the Court is of opinion that there
is ground for presuming that the accused has committed an offence% it shall frame in
writing a charge against the accused. 7here the Court frames a charge under sub.
section (),. 4he charge shall be read and e<plained to the accused and the accused shall
be as"ed whether he pleads guilt6 of the offence charged or claims to be tried section
.+5'(D,.
/
4he charge.sheet to which the accused is called upon to plead is a ver6 important
document. It should be drawn up and considered with e<treme care and caution% so
that accused ma6 have no doubt whatever as to the offences to which he is called upon
to answer and the !udge of the Appellate Court also ma6 have no doubt upon the
'
Muhammed $ohul #ossain% Criminal #ro$edure Code Toda'% -
rd
8dition (Dha"a: $uper offset
printers Ltd.%)**5,% p.+00 .
5
/
Md. ?ahurul Islam% I&id% p. /)5.
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matter. 4he word :Cround> means basis% foundation or valid reason. 4he whole ob9ect
of framing a charge is to enable the defence to concentrate its attention on the case that
he has to meet. Conditions for framing of a charge are (i, presumption of the
commission of an offence on the materials before the court (/ C7= ')+, and (ii,
offences triable e<clusivel6 b6 a Court of $ession.
Special la/ pre0ails o0er this section
7here a special law is applicable the provisions of that law cannot be ignored.
4herefore% where the provisions of the Motor Dehicles Ardinance are applicable% resort
to the provisions of section +&+ is illegal.
(), If% after such consideration and hearing as aforesaid% the Court is of opinion that
there is ground for presuming that the accused has committed an offence% it shall frame
in writing a charge against the accused.
(+, 7here the Court frames a charge under sub.section (),. 4he charge shall be read
and e<plained to the accused and the accused shall be as"ed whether he pleads guilt6
of the offence charged or claims to be tried.4he charge.sheet to which the accused is
called upon to plead is a ver6 important document. It should be drawn up and
considered with e<treme care and caution% so that accused ma6 have no doubt
whatever as to the offences to which he is called upon to answer and the !udge of the
Appellate Court also ma6 have no doubt upon the matter. 4he word :Cround> means
basis% foundation or valid reason.
4he whole ob9ect of framing a charge is to enable the defence to concentrate its
attention on the case that he has to meet. Conditions for framing of a charge are (I,
presumption of the commission of an offence on the materials before the court and
(ii, Affences trouble e<clusivel6 b6 a Court of $ession.
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$& 1hen fra#ing of charge could be finished
4he opportunit6 allowed b6 the legislature to the accused in sec.+&5 (&,(5, of cross.
e<amining the witness for the prosecution after the charge sheet has been framed can
not be substituted for the opportunit6 to which he is entitled when the witness are
e<amined and before the charge is framed. 4he Magistrate is not bound to ta"e more
evidence than is sufficient to convince him of the truth of the charge. 4he evidence of
even one witness could be sufficient under this section to 9ustif6 the Magistrate in
framing charge. 4he fact that the charge was not framed as it could have been
immediatel6 after the evidence of the witness for the prosecution had been completed
and a few other prosecution witness are e<amined.in.Chief before the framing of the
charge can at best be regarded as an irregularit6 and if a cross.e<amination then ta"es
place. A second cross e<amination refused. 4he alteration enables the accused to cross.
e<amine the prosecution witnesses on their first attendance.
1


1
7oodroffes%Commentaries On The Code Of Criminal #ro$edur"+
nd
8dition.+ volume ( India:
Law publisher pvt.Ltd., p./1/./11.
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Chapter )%
(udicial Application
%1 Trial in Court
4he charge is the in3uir6 stage from trial. 4he whole ob9ect of framing a charge is
to enable the defence to concentrate its attention on the case that accused has to
meet and if charge is framed in such a vague manner that the necessar6 ingredients
of the offence with which the accused is convicted are not brought out in the
charge% then the charge is defective. 4he famil6 of a proper charge is vital to a
criminal trial and this is a matter on which the 9udge should best the most careful
attention. A charge is defined as a precise formulation of the specific accusation
made against a person who is entitled to "now its nature at the ver6 earliest stage.
4he necessit6 of a s6stem of written accusation specif6ing a definite criminal
offence is the essence of criminal procedure.
*
4he charge should be stated for the
guidance of the trial courts that in all cases where charge are framed for substantive
offence read with the penal code additional separate charges should be framed
against each individual accused for an offence directl6 committed b6 him while
being a member of such assembl6. the re3uirements of Law under section.++) is
that a charge should the offence committed b6 the accused and mention the specific
name of the offence if an6 specific name has been given to it b6 law. If the law has
does not give an6 specific name of the offence particulars should be set out to give
re3uisites notice to the accused.
)0
Consideration of the statements made under section )5) Cr. C while framing of
charge or otherwise is a necessar6 part of the Courts dut6. 4he court has 9urisdiction to
pass an order of discharge if it was give reasons but if it framed charge. It was not
re3uired of the court to record reasons. 4he case having been sent to the $pecial !udge
after ta"ing cogniEance b6 the $enior $pecial !udge there is no illegalit6 in the adding
*
(ahirul Hu)" I&id" *.++,.
)0
(ahirul islam" I&id" *.+-..
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of a fresh charge b6 the former
))
.. 4he petitioner have enclosed a certificated of the
Registration Certificate issued to the complainant under =o. )00-5 in Class )% with the
description of goods reads as follows Agricultural implements of larger "ind for the on
the ver6 face of it the complainant opposite part6 does not hold an6 Registered 4rade
Mar" in respect of Rice #auler $creen is there fore prima facie his petition of
complainant does not disclose an6 offence against the petitioners.
4he petitioners further alleged in their application that before filling the present
petition of complainant% the complainant opposite part6 instituted 4itle $uit =o.1F//
on 0'.0'.// in the Court of the District 9udge% Dha"a for permanent in9unction and for
damages for infringement of registered 4rade Mar" =aw"a Brand against the firm
MF$ Agrani ra"aushali Gar"haua on the same allegation as made in the petition of
complaint . An the +).0'.// the complainant opposite part6 obtained an e/ *art' order
of temporar6 in9unction against the said firm. As preferred 2.M.A. =o.++0F// and also
obtained an ad.internist of operation of the order of temporar6 in9unction from this
Court. we have perused the petition of complaint of the complainant opposite part6. It
is not the case of the complainant that b6 long user practice and business tradition the
=aw"a brand has ac3uired the status of a propert6 mar" in the Rice #auler $creens
manufactured b6 the complainant that the =aw"a Brand on Rice #auler $creens is his
registered trade mar". Registration =o. )00-5 does not disclose that. It does not show
that the =aw"a brand is a registered trade mar" of the complainant opposite part6 in
respect of his Rice #auler $creens. An the face of it there fore the complainant
opposite part6 has falled to ma"e out a *rima fa$ie offence HF$% &1) or &1+ of the
enal Code against the petitioners. it is also found that prior to the filling of the
petition of complaint the complainant opposite part6 filed 4itle $uit =o.01F// in the
Court of the learned District !udge % Dha"a for permanent in9unction and for damages
for infringement of registered trade mar" =aw"a Brand on the same
)+
allegation as
made in the petition of complaint and that the suit is still pending in the case of 0-- it
was held% IArdinaril6 the infringement of a trade mar" is rather a civil than a criminal
wrong% but as civil proceedings ma6 re3uire much time and e<penditure to bring them
))
H.M.Ershad V. State.0, ()**+,%DLR% #CD% p.'--.
)+
1u**ell Vs. #oonnusami Tenan" 1-22! I.L.1Mad.
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to a conclusion% the legislature in its an<iet6 to protect traders% has allowed resort to
the Criminal Courts to provide a speed6 remed6 in cases where the aggrieved part6 is
diligent and does not one b6 his conduct show that;s the case is not one of urgenc6.
If%4here fore the person aggrieved falls to resort to the Criminal Courts within a 6ear
of the offence coming to his "nowledge% the law assumes that the case is not civil
remed6 b6 an action for in9unction
%" Trial in Session Court
ower of the session court to frame appropriate charge is not trammeled b6
specification contained in the sending of the case and not of the accused the session
court can add certain person as accused not included in the sending order. In the matter
of famil6 of charge the court can not act bindle. 4he charge framed b6 the Magistrate
can not be held to be illegal onl6 because while framing the charge the 9udge has
referred to certain document. 4he Magistrate is bound to consider not onl6 the first
information report% but also the statements recorded under section .)5) of the Code of
Criminal rocedure.
)-
4he trial Court to frame charge under an6 particular section of the enal Code. #e
submits that the learned $essions !udge committed gross illegalit6 in directing the
learned magistrate to frame a charge under section -+5 of the enal Code against this
petitioner. 4he learned Advocate for the petitioner in support of his submission placed
reliance on the decisions reported. 4he trial Court to frame a charge under a particular
section of the enal Code which cannot be interfered with b6 the provisional Court b6
wa6 of giving direction for altering the charge or framing the charge. In view of the
consistent decisions of the superior Courts of this count6 I hold that the impugned
order dated +0.)0.*) passed b6 the learned session !udge is illegal and it re3uires
interference. In this case charge.sheet was submitted b6 the police under the aforesaid
sections of the enal Code. $ection +&)A of the Code of Criminal rocedure provides
that if the Magistrate on consideration of the record of case and the documents
submitted there with and ma"ing such e<amination if an6% of the accused as the
)-
?ahirul islam% I&id3+41.
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Magistrate thin"s necessar6 and after giving the prosecution and the accused an
opportunit6 of being heard% considers the charge to be groundless% he shall discharge
the accused and record his reasons for so doing and section +&+ of the Code of
Criminal rocedure provides that if% after such consideration as contemplated under
section +&)A of the Code of Criminal rocedure the Magistrate is of opinion that there
is ground for presuming that the accused has committed in offence% the Magistrate
shall frame a formal charge relating to the offence of which he is accused. #ere% in the
present case before us% it appears that the learned Magistrate% after hearing the learned
Advocate of both the sides and on consideration of the materials on record% framed
charge under sections )&/F-+-F-+' of the enal Code and thereafter proceeded with
the trial. 4hen the informant moved the learned sessions !udge in Criminal Revision
=o. -- of )**) under sections &-'F&-5 and &-*A of the Code of Criminal rocedure
and after hearing both the sides he passed the impugned direction. But the consistent
view of this Court as found from the aforesaid two decisions that the learned sessions
!udge cannot pass an6 such direction for framing charge under a particular section of
the enal Code. Considering the case of the respective parties the learned $essions
!udge ma6 direct for further en3uir6 but he cannot form his own opinion in such a
provisional application and direct the trial Court to frame charge under a particular
section of the enal Code. If during trial it transpires that charge ought to have been
framed under a higher section of the enal Code or a change in the charge is necessar6
then the trial Court ma6 ta"e an6 step for framing fresh charge and proceed with the
trial. #ere in this case% on consideration of the materials on record% if the trial Court
finds that a charge under section -+5 of the enal Code would have been the proper
charge that court has the authorit6 to frame a fresh charge% But in the present case
before us the revisional Court acting under sections &-5F&-' and &-*A of the Code of
criminal rocedure directed the trial Court to frame charge under a particular section
of the enal Code% that is% under section -+5 of the enal Code.
$ection +&+ of the Code of Criminal rocedure has given wide power to the trial
Court to frame a charge under a particular section of the enal Code which cannot be
interfered with b6 the revisional Court b6 wa6 of giving direction for altering the
charge or framing the charge. In view of the consistent decisions of the superior
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Courts of this count6 I hold that the impugned order dated +0.)0.*) passed b6 the
learned session !udge is illegal and it re3uires interference.
4he time of hearing of the petition filed certain that the case is punishable under section
-+5 of the enal Cold% but those documents cannot he considered b6 this Court at this
stage. If the offence is punishable under section -+5 of the enal Code this ma6 be
agitated before the trial Court who% if necessar6 ma6 after the charge but that cannot be
directed from an6 revisional Court.
)&
In that case there were allegation of the use of lathes
b6 a number of the accused persons were twent6 in all as well as an allegation that al
fired a pistol twice "illing one person and another. 4he accused persons were placed on
charge under sections )&/% )&1 and section -+-% -0/ and -0+ read with section )&* of the
India enal Code. 4here were no specific charge against $ura9 al for having caused
death b6 means of pistol shot% although he was specificall6 charged section )&1 I$ for
being armed with while engaging in a riot. 4he absence of the charge against $ura9 al
uFs -0/ and -0+ IC regarded as a ver6 serious lacuna in the proceed and it was
considered whether this lacuna had predicted him in his trial. It was observed that a
charge a substantive offence read with section )&* IC a charge of Iconstructive
liabilit6> and that individual liabilit6 of a person can be fi<ed with a specific charge in
respect of a particular offence.
Hpon these facts the $upreme Court held J
7hether or not section )&* IC. Creates a distinct offence ( as regards which there has
been conflict of views in the #igh Courts, there can be no doubt that it creates a distinct
head of criminal liabilit6 which has come to be "nown as I constructive liabilit6 a phrase
not used in IC 4here can therefore be no doubt that the direct individual liabilit6 of a
person can onl6 be fi<ed upon him with reference to a specific charge in respect of the
particular offence.
$uch case is not covered b6 sections +-5 and +-/ Cr.C. 4he framing of a specific and
distinct charge in respect of ever6 distinct head of criminal liabilit6 constituting an
offence% is the foundation for a conviction and sentence% thereof%
4he 3uestion then arose for consideration whether such lacuna has pre9udiced the accused
or not.
)&
Shariful Islam V. Billal Hossain &The State" &' ()**+, DLR(#CD, p./++.
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An consideration of the 3uestion of pre9udice it was held. In all the circumstances above
noticed % we are satisfied that the absence of specific charges against the appellants under
sections -0/ and -0+ IC has materiall6 pre9udiced him. Charges were framed under
sections )&1F-0+F)&* of the enal Code. 4he accused appellants were convicted under
section -0+ of the enal Code. It was argued that since no charge was framed against the
accused appellants under section -0+ of the enal code% the6 were seriousl6 pre9udiced
and that the order of conviction and sentence as passed upon them should be set aside. It
was held in that case that the conviction of the two aforesaid accused for murder under
section -0+ C direct was% b6 virtue of sections +-5 and +-/ Cr .C% not illegal although
the6 was% on the evidence% an element of doubt in regard to the precise offence. 7hether
under section -0+ or sections -0+F)&* C% committed% which was sufficient to 9ustif6%
within the term of section +-5 Cr.C the framing of a charge under section -0+F)&* C
and conviction the two accused under section -0+ C on the basis of direct evidence of
d6e.witnesses.
B6 section +-5 CR.C the Court is e<pressl6 permitted to frame a charge in respect of
an6 of the several offences which might have been charged. B6 the application of section
+-/ Cr.C a conviction can legall6 be obtained% in a case of this "ind% of an6 offence
which appears from the evidence to have been committed although it was not e<pressl6
charged. . 4he $upreme Court of a"istan had also ta"en into consideration the facts and
circumstances of the case of $ura9 al and distinguished the same b6 sa6ing that the facts
in the case of $ura9 al were distinct and admitted of no doubt as to the complicit6 of the
accused with the distinct head of crime and as such provisions of the sections +-5 and
+-/ of the Code of Criminal rocedure were not applicable but in the cse of Md.Anwar
the facts being doubtful in nature as to what offence or distinct head of liabilit6 the case
would fall% there was room for doubt and as such% such doubtful facts rendered the case of
Md Anwar to fall uFs. +-/ CrFC. 2urthermore% their Lordships felt that no pre9udice was
caused to the accused in that case b6 alteration of the charge.
Let us now e<amine the provision of sections +-5 and +-/ of the Code of Criminal
rocedure so as to see if the same are attracted in the instant case in the conte<t of the
facts appearing. $ection +-5 Cr.C. runs as follows :
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If a single act or series of acts is of such a nature that it is doubtful which of several
offences the facts which can be proved will constitute% the accused ma6 be charged with
having committed all or an6 of such offences% and an6 number of such charges ma6 be
tried at once@ or he ma6 be charged in the alternative with having committed some one of
the said offences.
$ection +-/ Cr.C runs as follows :
If in the case mentioned in section +-5% the accused is charged with the offence and it
appears in evidence that he committed a different offence for which he might have been
charged under the provisions of that section% he ma6 be convicted of the offence which he
is shown to have committed% although he was not charged with it.
4he principle as enunciated in section +-5 Cr.C is an e<ception to the general rule that
ever6 distinct offence there shall be a distinct charged $ection +-5 contemplates
somewhat uncertainl6 the beginning of the trial as to the offence comes b6 the accused
and as such doubt or uncertainl6 persist till facts disclosed in the evidence there
prosecution witnesses and such doubt ma6 rest at the conclusion of the trial. But where
the6 still continues till the end of the trial% in which of the several offences committed
caused% the accused must be convicted for such or an6 of the offence although no specific
has been framed with regard to such offence.
In the instant case the fact disclosed prosecution witnesses is that the accused appellant
and others entered into padd6 field where $ona Miah was plouging and started ploughed
ensued which subse3uentl6 turned into violets saults ending in the murder of $ona Miah
common ob9ect of the unlawful assembl6 forcible possession of the land and to cause the
use of the weapons carried b6 the member unlawful assembl6. 7hen broil ensued
accused plants suddenl6 inspired b6 common intention the murder of $ona Miah.
Accused Ghurshed struc" the deceased on the bac" and head b6 their sulfas causing fatal
in9ured sulted in $ona Miah;s death Hpon circumstances the court framed charges
)&1F-0+F)&* .C. 4he Court appears to be sure as to which sections of the enal Code
tract in order to frame the charge.$uch being tract in order to frame the charge. $uch
being the element of doubt persisted from beginning of the trial and it remained
conclusion of the trial. 4he learned 9udge have framed charge under section -0+F-& penal
code argued that since charges under section )&1F'5of the enal Code have not been
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brought the prosecution % the accused appellant cannot victed uFs. -0+ or that at the
appellate stage action of charge is permissible under Law.
$ection &+-(),(b,Cr..C 8merson appellate Court to (), reverse the finding and ac3uit or
discharge the accused or order a Court of competent 9urisdiction subordinate to such
appellate Court or committed for trial or (+, alter the finding reduce the sentence or (-,
with or without altering the finding alter the nature of the sentence but sub9ect to the
provision of section )05% sub.section (-, not so as to enhance it. It is thus clear that
sec%&+-(),(b, is confined to cases of appeals preferred against order of conviction and
sentence and that this power can not be e<ercised for the purpose of reversing an order of
ac3uittal passed in favour of part6 in respect of an offence charged while dealing with an
appeal against the order of conviction in respect of an offence found proved.
4he statements made under section )5) while framing charge or otherwise is the
necessar6 part of the courts dut6. 4rial Court has the whde power under the law
regarding framing of charge. 4his can not be interfered with lightl6 either b6 the
revisioned court or the appellate Court. Hsuall6 olice submit charge drawing
attention of the witness to his previous statements. 7e% therefore% hold that to frame a
charge or to consider an application of the accused person that the charge brought
against him is groundless trial Court is not obliged to concider the statements of an6
witness recorded under section )5& CrC. 7e%therefore%find no illegalit6 in the order
dated 0&.0*.*' under. the ground that he was not sure as to their respective addresses
and %as such% if the6 were released important witnesses would be lost. 7e full6
appreciate this view of the learned $pecial 4ribunal 9udge. But at the same time we
find that the6 can not be "ept in the 9udicial custod6 for a indefinite period.
within two months from the date of receipt of the LC. Records and then shall discharge
the two girls from the 9udicial custod6 after a reasonable time.
)'
)'
Forhad Hossain Md! and others V State" '0 ()**1, DLR (#CD, p.p.--/.--*.
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Chapter )&
CONC23SION
Charge is an accusation against a person with respect to the commission of an offence.
8ver6 charge shall state the section of the law along with the name of the offence% if an6%
which the accused is charge and shall also state the time% place and the manner of the
occurrence as well as the person against whom or the thing in respect of which the
offences has been committed. revious conviction of the person charged with% if an6% ma6
also be mentioned% because it directs severe punishment. 2or ever6 offences there shall be
a separate Charge and the charge be tried separatel6 e<cept in the cases mentioned with
the section. In one series of acts so connected together as to form the same transaction%
more offences than one are committed b6 the same person% the person ma6 be charged
with and tried at one trial for ever6 such offences.
If the offences so committed falls with in the definition the accused ma6 be charged with
both offences and tried at one trial for each of such offences. An framing of charge the
same be read over and e<plained to the accused and his repl6 shall have to be recorded in
the prescribed form and the Magistrate shall sign the same. 4he matter of framing of the
charge ma6 also be noted in the order sheet of the case. In necessar6 charge can be
attested. And if it attested it should be read over the same.
Reference
). Md. ?ahurul Islam% The Code of $riminal #ro$edure% &
th
ed% (Dha"a: $uper offset
printers Ltd%+000,.
+. C.2.$amford% Criminal La% & It #ro$ess" 1
st
ed% (Colifornia: Broo"s publishing
Compan6%)*15,.
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www.bdlawsource.com
-. The Code of Criminal #ro$edure Dha"a: 4he Deput6 Controller forms and
publications office.)**1,.
&. ?ahirul #u3% La% and #ra$ti$e of Criminal #ro$edure% )0
th
ed%(Dha"a:
Bangladesh Law Boo" Compan6.+000,.
'. Md. Abdul #alim% Te/t Boo5 on Criminal #ro$edure Code% +
nd
ed%
( Dha"a: CCB publication%+001,.
5. !ustice KD Chandrachud and Monohar%The Code of Criminal #ro$edure% )'
th
ed%
( =ew Delhi: wadhwa and Compan6 Law ublishers%+00+,.
/. 2ive 6ears MLR Criminal Reference%(Dha"a: !anani Art ress%+00),.
1. Michel Allen% Te/t Boo5 on Criminal La%% 1
th
ed% (=ew Kor": A<ford Hniversit6
ress%+00',.
*. ! A #6mongross% Theor' of Criminal 6usti$e% /
th
ed% (=ew Kor": A<ford
Hniversit6 ress%+00+,.
)0. Muhammed $ohul #ossain% Cr *.$. Toda'% -
rd
ed% (Dha"a% $uper offset printers
Ltd.%)**5,.
Case References
1. H. M Ershad 7.State% &'()**+, DLR (#CD, '--.
+.Shariful Islam 7. Billal Hossain &The State" &' ()**+, DLR (#CD, p./++.
-. Forhad Hossain Md! and others 7. State% '0 ()**1, DLR (#CD, p.p.--/.--*.
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