Case Note & Summary
The litigation arose from a criminal application filed before the Bombay High Court by the applicant, who was accused No.1 in Sessions Case No.472/2023 pending before the trial court. The State of Maharashtra was the respondent, and the informant had filed an intervention application, which was allowed. The applicant challenged the order of the trial court framing charge on 18 March 2024 for offences punishable under Sections 302, 363, 364, 364-A and 201 read with Sections 120B and 34 of the Indian Penal Code, 1860 and Section 66-C of the Information Technology Act, 2000. The primary grievance was non-compliance with the mandatory procedure under Sections 226 and 227 of the Code of Criminal Procedure, 1973. The material facts showed that on 18 March 2024, the Roznama recorded that both accused were produced through video conference from Taloja Jail, the Special Public Prosecutor was present, the advocate for accused No.1/petitioner was present, the advocate for accused No.2 was absent, the charge was explained and framed, and the procedure for recording pleas was completed. However, the Roznama did not record that the prosecutor opened the case as required by Section 226 or that the court heard both sides before deciding to frame charge as required by Section 227. The applicant contended that this absence itself demonstrated non-compliance, while the respondents argued that the grievance ought to have been raised before the trial court and that the absence of any protest in the Roznamas suggested that procedure was followed. The court considered the legal issue whether the mandatory procedure under Sections 226 and 227 was complied with and whether the absence of noting in the Roznama vitiated the framing of charge. The court observed that Section 226 imposes a duty on the prosecutor to open the case, and Section 227 requires the court to hear both sides before deciding whether to frame charge. These stages are sequential, and if the accused is not discharged, the question of framing charge arises under Section 228. The court relied on Bharat Uttam Rajurkar v. State of Maharashtra, which held that compliance with these provisions is not an empty formality and must be reflected from the record. The court disagreed with the view in Prathamesh Sitaram Latne v. State of Maharashtra because the earlier decision in Bharat Rajurkar was not brought to the notice of that court. The court also rejected the argument that the accused should have raised the grievance before the trial court. It held that when the grievance is about non-compliance of mandatory provisions, the failure to object does not relieve the prosecution or the trial court from their responsibility, and absence of protest cannot substitute for compliance. The court noted that both accused were undertrial prisoners, and even if represented, lack of recorded protest did not absolve the authorities. Accordingly, the High Court allowed the petition, set aside the framing of charge dated 18 March 2024, and directed the trial court to seek compliance of Sections 226 and 227 of the Code of Criminal Procedure and thereafter adopt appropriate procedure as per law. The court also observed that the prosecution was at liberty to emphasize the conduct of the accused in not raising the grievance earlier if a delay in trial was alleged, and cautioned that undertrial prisoners are not expected to delay proceedings by filing unnecessary applications.
Headnote
A) Criminal Procedure - Framing of Charge - Mandatory compliance with Sections 226 and 227 CrPC - Code of Criminal Procedure, 1973, Sections 226, 227, 228 - The trial court framed charges on 18 March 2024 for offences under the Indian Penal Code, 1860 and the Information Technology Act, 2000 without recorded compliance of the prosecutor opening the case and the court hearing both sides. Held that Sections 226 and 227 are sequential and mandatory; non-compliance vitiates the framing of charge and the charge was set aside (Paras 3-4, 9, 16). B) Criminal Procedure - Roznama/Record of Proceedings - Evidentiary value of court record - Code of Criminal Procedure, 1973, Sections 226, 227 - The Roznama dated 18 March 2024 did not note that the Special Public Prosecutor opened the prosecution case or that the court heard the accused before framing charge; the only notings were presence, charge explanation, framing, and plea recording. Held that compliance must be reflected in the record, and absence of such noting supports the inference of non-compliance (Paras 5-6, 11-12). C) Criminal Procedure - Procedural Objection/Waiver - Failure to raise grievance before trial court - Code of Criminal Procedure, 1973, Sections 226, 227 - Respondent argued that the accused should have raised grievance before the trial court and that absence of protest in Roznamas indicated compliance. Held that failure to object does not relieve the prosecution and trial court of the mandatory duty, and absence of protest cannot substitute for compliance; the argument was rejected (Paras 7, 12-13). D) Criminal Procedure - Precedent - Binding effect of earlier decision - Bharat Uttam Rajurkar v. State of Maharashtra - The court followed Bharat Rajurkar which held compliance with Sections 226 and 227 CrPC is not an empty formality and must be reflected in the record; distinguished Prathamesh Sitaram Latne because that decision did not consider Bharat Rajurkar and was based on presence and non-restraint alone. Held that Prathamesh could not be applied in favour of respondents (Paras 6, 10-12). E) Criminal Procedure - Relief and Directions - Setting aside charge and remand for compliance - Code of Criminal Procedure, 1973, Sections 226, 227 - The High Court allowed the petition, set aside the charge framed on 18 March 2024, and directed the trial court to first secure compliance of Sections 226 and 227 and then adopt appropriate procedure; prosecution was given liberty to emphasize conduct of the accused if delay grievance arises; accused cautioned against delaying tactics (Paras 14-16).
Issue of Consideration
Whether the trial court complied with the mandatory provisions of Sections 226 and 227 of the Code of Criminal Procedure, 1973 before framing charge on 18 March 2024, and whether the absence of noting in the Roznama regarding such compliance vitiated the framing of charge.
Final Decision
The petition was allowed. The framing of charge on 18 March 2024 was set aside. The trial court was directed to seek compliance of the provisions of Section 226 and 227 of the Code of Criminal Procedure and then to adopt appropriate procedure as per law. The prosecution was given liberty to emphasize the conduct of the accused in not raising the grievance earlier if delay in trial is alleged; accused were cautioned not to delay proceedings.
Law Points
- Compliance with Sections 226 and 227 CrPC is mandatory
- Prosecutor must open case
- Court must hear both sides before deciding on charge
- Record/Roznama must reflect compliance
- Non-compliance vitiates framing of charge
- Failure to raise grievance before trial court not fatal
