IMPORTANT POINT
The trial Judge must form an opinion before framing a charge, as mandated by Section 228 of Cr.P.C.

ORDER :

The 2nd accused in Sessions Case No.390 of 2022 on the file of Fast Track Special Court, Pathanamthitta, is invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C., for quashing Annexure-A5 charge framed against the petitioner.

2. The grievance pointed out by the petitioner is that though the trial court heard the petitioner under Section 227 of Cr.P.C., 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.

3. The petitioner is relying on Annexure-A3 proceeding sheet in S.C.No.390 of 2022 to say that the case was posted for hearing under Section 227 of Cr.P.C. on several occasions. On 17.04.2023, the case was posted for hearing under Section 227 of Cr.P.C., on which day, the defence prayed for hearing and it was posted as last chance to 24.04.2023. On 24.04.2023, Section 227 hearing was over, and the case was posted for recording plea to 18.05.2023. On 18.05.2023, the Judge was on leave and the case was adjourned by notification to 09.06.2023. On 09.06.2023, charge was framed against accused Nos.1 and 2 and they pleaded not guilty, and then the case was adjourned for evidence to 05.07.2023. Though the petitioner was heard under Section 227 of Cr.P.C., the learned Judge has not stated that there was no sufficient ground for a discharge, and when it proceeded for framing charge, the learned Judge failed to form an opinion as to whether there is ground for presuming that the accused has committed the offence alleged so as to frame the charge.

4. Learned counsel for the petitioner relied on the decision State of Karnataka v. L. Muniswamy and Others [Manu/SC/0143/1977] to say that the order framing a charge affects a person’s liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. In Thampi v. State of Kerala [2016 (1) KLT 34], this Court held that a mere reference to the materials on record will not cause any prejudice to the accused to say that the mandate under Sections 227 or 239 will not stand in the way of passing a speaking order with a reference to materials or documents from which the trial judge formed an ‘opinion’ that there are grounds for presuming that there is a prima facie case, which is triable before that Court. In that case, an application was filed by the accused for a discharge under Section 227 of Cr.P.C.

5. Sections 227 and 228 of Cr.P.C. read as follows :

“227. Discharge. —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.

228. Framing of charge. —(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.”

6. Going by