Framing of Charge
On a plain reading the provisions of the section 265C of the CrPC it appears that there is no scope to consider the extraneous or defence materials at the time of framing of charge as has been accepted by the High Court Division. [73 DLR (AD) 229]
In the case of Rahela Khatun vs Abul Hossain reported 48 DLR (AD) 213 wherein this Division has held that-
"A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case". [73 DLR (AD) 229]
Section 221-Learned trial Court though found Tota Mia guilty for the offence under sections 302/34 of the Penal Code, but he was not charged under said sections of law earlier and in view of such facts and circumstances it is held that he has been prejudiced for the sentence so passed against him, as he had no opportunity to defend himself from the said charge and accordingly, the order of conviction and sentence of accused Tota Mia under sections 302/34, PC is not sustainable
in law and, as such, it is liable to be set aside. Abu Bakkar Siddiqui vs State 9 BLC 251.
Section 221-It should be stated for the guidance of the trial Courts that in all cases where charges are framed under sections 147, 148 for substantive offence read with section 149 of the Penal Code additional separate charges should be framed against each individual accused for an offence directly committed by him while being a member of such assembly and they should carefully take note of the provisions of sections 221, 233 and 236 of the CrPC Charge which causes prejudice to the accused due to error or irregularity makes out a case for retrial. Ali Akbar Khan vs State. 34 DLR 95.
Section 221-Joinder of scheduled and non- scheduled offences is an illegality. Tamiz Meah vs Government of the People's Republic of Bangladesh. 33 DLR 203.
Section 221-The requirement of law under section 221 CrPC is that a charge should state the offence committed by the accused and mention the specific name of the offence if any specific name has been given to it by law. If the law does not give any specific name of the offence particulars should be set out to give requisite notice to the accused. In particular, this section provides that, when a specific offence is alleged to have been committed by the accused the necessary ingredients of the said offence would be impliedly imported to the charge. Hachi Meah vs State. 17 DLR 692.
Section 221-When any section of any law is quoted at the time of framing of charge, the section must be quoted in the language in which the law is framed. Habibur Rahman alias Raju vs State. 2000 BLD 177.
in law and, as such, it is liable to be set aside. Abu Bakkar Siddiqui vs State 9 BLC 251.
Section 221-It should be stated for the guidance of the trial Courts that in all cases where charges are framed under sections 147, 148 for substantive offence read with section 149 of the Penal Code additional separate charges should be framed against each individual accused for an offence directly committed by him while being a member of such assembly and they should carefully take note of the provisions of sections 221, 233 and 236 of the CrPC Charge which causes prejudice to the accused due to error or irregularity makes out a case for retrial. Ali Akbar Khan vs State. 34 DLR 95.
Section 221-Joinder of scheduled and non- scheduled offences is an illegality. Tamiz Meah vs Government of the People's Republic of Bangladesh. 33 DLR 203.
Section 221-The requirement of law under section 221 CrPC is that a charge should state the offence committed by the accused and mention the specific name of the offence if any specific name has been given to it by law. If the law does not give any specific name of the offence particulars should be set out to give requisite notice to the accused. In particular, this section provides that, when a specific offence is alleged to have been committed by the accused the necessary ingredients of the said offence would be impliedly imported to the charge. Hachi Meah vs State. 17 DLR 692.
Section 221-When any section of any law is quoted at the time of framing of charge, the section must be quoted in the language in which the law is framed. Habibur Rahman alias Raju vs State. 2000 BLD 177.
Section 221-Charge-Charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. Abdur Razzaque va State 48 DLR 457.
Sections 221 and 222-Object of framing of charge The object of framing a charge is to enable an accused person to known the substantive charge which he will have to meet at the trial. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J). State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13.
Sections 221 & 222-The failure of the trial Court in not mentioning the particulars which are required to be mentioned under sections 221 and 222 of the Code while framing charge deprived the accused proper defence and as such the error has occasioned failure of justice. Bashir Kha vs State 50 DLR 199
Sections 221 & 222-Form of charge where a minor is taken away from the guardianship- Where a female under 16 years of age is kidnapped by the accused with intent that she may be compelled or knowing it to be likely that she will be compelled to marry against her will, the charge must state from whose guardianship that female had been kidnapped. Ear Ali vs State 11 DLR 242; (1959) PLD (Dac)-750.
Sections 221 & 232-Charge-charge under section 201 Penal Code was framed against the appellants and although no charge under sections 302/34 Penal Code was framed they were convicted thereunder. Conviction without such a charge being framed is illegal. Muslim vs State 47 DLR 185.
Sections 221 and 439-Since no charge was framed against her (Julekha), naturally she had no opportunity to take defence against any allegation so alleged. Since the illegality has been done and the absconding accused was not provided with any opportunity to reply against her charge, inasmuch as no charge having been framed against her, the findings and decision holding the absconding accused Julekha guilty for the offence under sections 302/34 of the Penal Code is illegal and, as such, she though did not prefer appeal by surrendering before the court of law, the High Court under section 439 of the Code of Criminal Procedure can take cognisance of the case of the non-appealing accused Julekha and set aside the order of her conviction and sentence. Abu Bakkar Siddiqui vs State 9 BLC 251.
Sections 221 & 237-The appellant was charged under section 412 of the Penal Code but he was convicted under sections 395/397 of the Penal Code under misconception of law which cannot be sustained in law. Abul Hashem Molla vs State 1 BLC 211
Sections 221, 222 and 223-Since from the prosecution papers disclosed prima-facie case against the petitioner there was no error in the order framing charge. Begum Khaleda Zia vs State, 21 BLC (AD) 16.
Sections 221, 222 & 223-For the purpose of framing a charge the Court is required to consider judicially as to whether on consideration of the materials on record, it can be said that the accused has reasonably connected himself with the offence alleged to have been committed and that on the basis of the said material there is reasonable probability or chance of the accused being found guilty of the offence alleged. Abdur Rashid vs State, 20 BLC 758.
Sections 221, 222 and 342-Framing of charge is beginning of a case, the accused- petitioner will get ample opportunity to prove her innocence at the trial by adducing evidence and also under section 342 of the Code. Begum Khaleda Zia vs State, 19 BLC 398.
Sections 221 & 537-A charge is an importan step in a criminal proceeding and the accused is answerable to the charges levelled against him. The object of framing charge is to ensure that the accused may have as full particulars as are possible of the accusation brought against him. Defect in framing charge is not curable under section 537 of the CrPC. Moslem Ali Mollah alias Moslem Molla vs State 48 DLR 427.
Section 222-Merely because charge has been framed against the accused, the case is not proved against him and it is the prosecution which has to prove its case beyond reasonable doubt, and the accused shall have all the right to take his defence by cross-examining the prosecution witnesses and also by examining his own witnesses, if he so desires. Ahmed Lal Mia vs State, 66 DLR (AD) 204.
Section 222-A careful exploration of the order framing charge demonstrates that the time/period of commission of offence had not been at all stated to convict-appellant and provision contained in section 222 of the Code of Criminal Procedure, thus, appears to have been grossly violated and by this illegality committed in framing the charge the convict-appellant had been highly prejudiced in proper defence. Joarder Akmal Hossain vs State, 14 BLC 855.
Sections 222 and 439-In the post mortem report we find mark of injuries were detected and it was written in the relevant column but in the opinion column the Doctor opined that the deceased died due to heart failure. We respectfully agree with the cited decision. The post mortem report is not a conclusive evidence. It is mere a piece of evidence as per the provision of the Evidence Act. It is one of the evidence and where there are eye-witness the Court can record conviction on the basis of the testimony of ocular witness leaving aside the post mortem report. Further we have meticulously scrutinized the impugned order wherein it appears that the learned Sessions Judge has rightly observed in the impugned order that he has considered the seizure list, post mortem report, injury certificate, FIR, the sketch map and statements of witnesses and thereafter he framed charge. Amzad Hossain Sardar vs State, 15 BLC 750.
Section 222-The Special Judge committed wrong in holding the trial jointly for two separate offences punishable under two different special laws and triable in two different forums, and convicting the appellant under section 5(2) read with section 5(1)(e) of the Act II of 1947, who at the time of occurrence was a private individual. Lieutenant General (Retd) Hussain Mohammad Ershad vs State, 23 BLC 137.
Section 222-Though 4 small packets of heroin were recovered from the alleged possession of this petitioner but the charge did not reflect the same. It is the mandatory provision of law that the charge must reflect the occurrence of the case including its time and place. Ruhul (Md) vs State, 20 BLC 503.
Section 222-To back up charge no evidence had been led that on 15-3-1999 convict-appellant Muhibur Rahman Manik in furtive league with accused Gopal Chandra Das and six (6) others, with intent to endanger life or property of other persons and to establish himself politically, out of his own interest and fund, procured explosive substances and kept those in his possession and control in room No. 3 of the two-storied building and also, in room No. 5 of the building. Prosecution signally failed to validate charge through legal evidence. Muhibur Rahman Manik vs State 12 BLC 269 న 15-2
Inca Section 222(1) Non-mention of particulars as to things-trial illegal-The trial Magistrate framed charge under section 457 of the Pakistan Penal Code in the following manner:
That you, on about 15-9-52 at Debergati, P/S. Babuganj, committed house trespass at night in the dwelling hut of PW 2."
The charge under section 380, Pakistan Penal Code was framed as follows:
"That you, on or about the same date and place committed theft in the dwelling hut of PW 2."
Held: The charge is defective that it does not state what articles were taken out of the possession of PW 2. Safiuddin vs Crown 5 DLR 519.
Section 222(2) The provisions of the special law will prevail over those of the general law. A person accused of more offences than one may be tried at one trial for all such offences. The limitation of one year as contained in the proviso to sub-section (2) of section 222 is not applicable for trial of a person accused of more offences than one under the Act. ATM Nazimullah Chowdhury vs State, 65 DLR 500
Section 222(2) The entire proceedings against the accused appellants are vitiated for defect of charge due to non-compliance of section 222(2) proviso of the Code of Criminal Procedure. Abul Khair vs State 58 DLR 500
Section 222(2) Misappropriation of money and not goods-The case referred to in section 222(2) is a case in which the charge is criminal breach of trust or dishonest misappropriation of money and it does not apply to a case of criminal breach of trust or dishonest misappropriation of goods, and affords no jurisdiction for mixing up money and goods. Debendra Nath vs Crown 2 DLR 366.
Section 222(2)-When a person is charged with criminal breach of trust of certain property entrusted to him, he cannot be convicted of embezzling, not the property, but the amount obtained by dealing with it. Debendra Nath vs Crown, 2 DLR 366.
Ara Section 222(2) Charging in a lump for an aggregate sum-Charging in a lump for an aggregate sum is permissible under section 222(2) only in case of breach of trust or misappropriation of money but each item of omission to enter was found to be a separate fence and unless they were covered by section 235, Criminal Procedure Code they offended the provisions of section 233, CrPC. Sailendra Prasad vs Crown 2 DLR 349.
Section 222(2) Provisions of sub-section (2) of section 222 which constitute an exception to the general rule regarding joinder of charges explained. Provisions of sub-section (2) of section 222, CrPC are exception to the general rule regarding joinder of charges and these provisions provide for a trial only in respect of criminal breach of trust or dishonest misappropriation of money of a gross sum in respect of which the offence is alleged to have been committed specifying only the dates between which the offence is alleged to have been committed.
This cannot be extended to an offence of a criminal misconduct by a public servant. Abdul Motaleb vs State, 25 DLR 14.
Section 222(2) Criminal breach of trust in respect of several items-charge is to limit the period of committing such offence to one year If this provision of law not observed, the judgment must be set aside, such illegality not curable under section 537, Criminal Procedure Code. Mansur Ali vs State, 39 DLR 184.
Section 222(2) In the instant case it is stated in the FIR that alleged misappropriation took place at any time within 14 years 10 months while he was in-charge of that section. But the learned Divisional Special Judge framed the charge in lump of this long period in one charge which obviously is contrary to law. Kazi Ahammad Bazlul Karim vs State 11 BLC 60
Sections 222(2), 234(1) 342 & 537-The defect in framing the charge is curable under section 537, CrPC but for the improper examina- tion of the accused person under section 342 of the CrPC the case is sent back on remand for holding fresh trial in accordance remand for Nizamuddin Dhali vs State I BLC 312
Sections 222(2), 234(1) & 537- Charges framed in violation of the mandatory provision of section 234(1) read with section 222 (2) of the CrPC is an illegality not curable under section 537 of the Code and as such the impugned conviction and sentence are set aside. Abul Kalam Azad vs State 48 DLR 294.
Sections 222(2), 234(1), 517 & 537-As the charge was framed violating the mandatory provisions of section 234(1) read with section 222(2) of the CrPC and such illegality is not curable under section 537 for which the appellant is acquitted but the entire misappropriated amount of money already deposited through Treasury Chalan by the appellant should be treated as public money Abul Kalam Azad vs State 1 BLC 316
Sections 222(2) and 537-As the charge was framed for misappropriation of money in between 10-11-79 and 25-11-81 covering a period of two years violating section 222(2) of the Code vitiating the whole trial is not curable by section 537. Abdul Bari Mollah vs State 3 BLC 474
Sections 222(2), 234(1) and 537-In the instant case the accused-appellants along with another were charged under sections 148/323/ 326/302/34 of the Penal Code and in view of such facts and circumstances the charge so framed in this case is illegal and as such the accused- appellants had been prejudiced which is not curable under section 537, CrPC. In the absence of any findings about the individual accused who carried such dangerous weapon cannot be convicted under section 148 of the Penal Code. Mirashuddin vs State 7 BLC 342.
Sections 222, 234 and 537-Violation of the provisions of sub-section (2) of section 222 of the Code in respect of framing of charge against an accused is not curable by section 537 of the Code and, as such, the trials of those cases stood vitiated. But admittedly the provisions of sub- section (IB) of section 6 of the Act were not brought to the notice of the Courts nor those were agitated by any party before the Courts. So necessarily there was no finding in place with regard to the primacy of the provisions of sub- section (IB) of section 6 of the Criminal Law Amendment Act Act over those of section 222 and section 234 of the general law in those decisions. ATM Nazimullah Chowdhury vs State, 65 DLR 500.
Sections 222(2) and 234(1)-Any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. All the offences committed over any length of period of time could be tried in one trial upon framing one charge. State vs Md Ibrahim Ali, 66 DLR (AD) 33
Section 223 Charge must give the proper details to the accused-Where the charges are so defective that they do not give any notice to the accused as to the nature of the case which the prosecution sought to make against him, the trial held is illegal. MA Motaleb vs State 13 DLR 436.
Section 223-In framing a charge for criminal breach of trust, the mode in which the offence is alleged to have been committed should be specified in the charge without which the
accused is bound to feel difficulty in defending himself. A Salam Chowdhury vs Crown 4 DLR 80
Sections 223 and 561A-As there was no alleged intention on the part of the petitioners that Shimu Akter alias Kulsuin committed suicide and no charge can be framed against the petitioners under section 306 of the Penal Code even on the basis of allegations made against them and as such the proceeding against the petitioners is quashed. Abdul Khaleque Howlader vs State 3 BLC 591.
Section 225-Non-compliance with rules of procedure such as misjoinder of charges, will not amount to an illegal exercise of jurisdiction. Anwar Hussain Talukder vs Province of East Pakistan 12 DLR 615.
Section 225 Charge Omitting to state particulars of the offence Death following injuries caused by accused Trial not vitiated Where the circumstances showed that the accused could have, been under no illusion as to the charge they had to defend themselves against, and at no stage during the trial any exception was taken to the charge, it could not be said that any prejudice is caused to the accused in their defence by the omission of certain words from the charge or that
the said omission had occasioned in fact a failure of justice. The omission was curable under sections 225 and 537. Hazrat Jamal vs State 11 DLR (SC) 84; (1958) PLD (SC) 383.
HONDA Section 225 Date of offence stated as 6th May, 1951, or near about-Precise date of mis- appropriation not fixed-Charge not defective. Alauddin vs Ramzoo 7 DLR (WPC) 34.
Sections 225 and 227-The Jana Nirapatta Bighnakari Aparadh Daman Tribunal constituted under section 22 of the Jana Nirapatta (Bishesh Bidhan) Ain, 2000 has no jurisdiction to try the offences under the Arms Act which is a scheduled offence and the same is exclusively triable by Special Tribunal constituted under section 26 of
the Special Powers Act, 1974. Abdul Mannan vs State 9 BLC 512.
Sections 225 & 535-Defect in charge curable-When the first information report and the evidence have given the exact time of the occurrence, a mis-statement in the charge as to the time of the occurrence cannot mislead the accused in his defence and the trial cannot be said to have been vitiated in view of the provision under sections 225 & 535 CrPC. Abdul Hashem Master vs State 44 DLR 159.
Sections 225 and 227-Considering the facts and submission made on behalf of the appellant and the provisions of law as well, it appears ex- facie that the charges as framed by the Tribunal, particularly the charges framed under sections 19(f) and 19A of the Arms Act, is illegal and with- out jurisdiction. Accordingly, the charges as framed by the Tribunal so far it relates to the framing of charges under sections 19(f) and 19A of the Arms Act was set aside and the Tribunal was directed to frame charge under the Jana Nirapatta (Bishesh Bidhan) Ain, 2000 amending or altering the charges under the provisions of sections 225 and 227 of the Code of Criminal Pro- cedure. The appellant was also enlarged on bail. Ahmed Hossain vs State 9 BLC 506.
Section 227-In a criminal proceeding charge is always framed under a penal provision. Section 12 of the Ain, 2012 being not a penal provision, the order of framing charge so far it relates to that particular section appears to be misconceived. Besides, there is no scope of awarding punishment under any penal provision of the Ain, 2012 inasmuch as the offence was allegedly committed before enactment of the Ain, 2012 when another law of the same nature was in force with the penal provision of lesser sentence. The offence as well as its punishment, if any, in the case would he dealt with under the provisions of the Ain, 2002. The defect in the charge framing order as would not vitiate the proceedings. Gias Uddin Al-Mamun (Md) vs State, 23 BLC 537.
Section 227 Charge may be altered at any time even before pronouncement of the judgment. For proper adjudication the trial court should, in consideration of the entries contained in the cheque namely the designation of the petitioner as the Managing Director of the Company, alter the charge. Shariful Haque (Md) vs State represented by the Deputy Commissioner, 70 DLR 209.
"Section 227-Revision-Where an altera tion in the charges occasioned a failure of justice, the court of revision may interfere.
Section 227-The test to be applied as to whether an accused person charged under one section can be convicted under another section is whether he had notice of the offence of which he is to be convicted so that he was not prejudiced by the conviction. Jaifar vs Idris Ali 3 DLR 144.
Section 227-Court may alter a charge Charge and conviction under sections 302/34, 307/34 and 397, PPC-Conviction changed to one under section 394, PPC in appeal. Fateh Sher vs Crown 8 PLD (Lah) 157.
Section 227-Where there is no non- obstante clause the jurisdiction of the court, constituted under the Code of Criminal Procedure cannot be taken away or barred the court below committed no illegality in taking cognisance or framing of charge under the general provision of law. Moniruzzaman vs ANM Didar-e-Alam 54 DLR 445.
Section 227-The Court under section 227 of the Code of Criminal Procedure is competent to alter or amend the charge at any stage of the proceeding before pronouncement of judgment. Nasim vs State 57 DLR 546.
Section 227-Charge can be altered at any time before delivery of judgment as per provisions of section 227 of the Code of Criminal Procedure. After framing a charge under sections 304/34 of the Penal Code, there is no legal bar to find the - accused guilty under lower sections 304/34 of the Penal Code. Mahir Mollah vs State 5 BLC 386.
Sections 227, 241A & 242-The case having been sent to the Special Judge after taking of cognisance by the Senior Special Judge there is no illegality in the adding of a fresh charge by the former. HM Ershad vs State 45 DLR 533.
Section 227(1) The Court is competent to add or alter charge if situation arises and the materials placed before it reveals justification. HM Ershad vs State 45 DLR 533.
Sections 227(1)(2)-If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. State vs Md Ibrahim Ali, 66 DLR (AD) 33.
Section 231-The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case. Gias Uddin-al-Mamun (Md) vs State, 70 DLR (AD) 123.
Section 231-Nature of proceedings-The proceedings envisaged in section 231 are in the nature of a limited enquiry relevant to the new matter appearing in the added or altered charges, and such a limited enquiry may also have been conducted or directed under the powers derived from section 375 CrPC. Fazal Elahi vs Crown 5 DLR (FC) 44 (P.62 r. h. col.).
Section 231-Resummoning of witnesses after alteration of charge-The accused petitioner was charged under section 161, PP Code and section 5(2) of the Prevention of Corruption Act, 1947, under one head and subsequently, on the prayer of the prosecution, charge under section 5(2) of Act II of 1947 having been withdrawn, it amounted to alteration of charge within the meaning of section 231 and the accused is entitled to recall the prosecution witnesses even if the alteration did not affect his defence. Nurul Islam Azizi vs Crown 1 DLR 141.
Sections 231 and 540-As per provision of section 231 of the Code if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. Gias Uddin al-Mamun (Md) vs State, 70 DLR (AD) 123.
Section 232-The accused has been prejudiced by absence of charge or framing of the charge at a belated stage. Section 232 CrPC contemplates a new trial or remanding of the case to the trial Court in such a situation. It is too late now to direct a retrial after a long lapse of time. Abdur Razzaque @ Geda vs State 48 DLR 457
Section 232-Scope-The error referred to in the section relates to the allegations of the prosecution upon which the charge is founded and there cannot be said to be an "error" in a charge because the evidence for the prosecution is subsequently at the trial found to be false or insufficient to establish the charge. AIR 1948 Sind 40 ILR 1947 Kar 1 49 Cri L Jour 72 (DB). Where a person is convicted of an offence, and the Appellate Court or the High Court is of the opinion that he has been misled in his defence by the absence of a charge or by an error in the charge, a retrial shall be ordered on an amended charge. AIR 1949 All 599 + AIR 1942 Pat 143 + AIR 1922 Lah 135. Where an accused is charged with one offence and convicted of a different offence without a charge being framed in respect of it, a retrial can be ordered if it is found that he has been misled in his defence by the absence of a charge. AIR 1915 Cal 181 (DB) + AIR 1924 Mad 584 (DB) + AIR 1927 All 75.
Section 232-Absence of charge or any error in the same is not fatal under section 232, Criminal Procedure Code, 1898, unless accused is shown to have been misled in his defence. PLD 1999 Lah 156 (FB). But the Indian view is that in such a case the Appellate Court should direct retrial under this section. AIR 1969 All 387. It is to be noted that the words "by the absence of a charge" cannot be read to mean "where there is a charge but none more for the offence of which the accused is convicted". That would necessitate reading into the section words that are not there. AIR 1956 SC 116-1956 Cri L Jour 291.
Section 233-The object of this section is to save the accused from being embarrassed in his defence if distinct offences are tried together in one case. The legislature has engrafted certain exceptions to the provision contained in section 234, 235, 236 and 239. Zahed Hossain vs State, 61 DLR 386.
Section 233-দুটি খুনের জন্য আসামীদের বিরুদ্ধে একটি চার্জ গঠন করা হয়েছে। ইহা আইনসংগত হয় নাই। দুটি হত্যার জন্য পৃথক পৃথক ভাবে চার্জ গঠন করতে হবে। Abdul Aziz vs Sekendar Ali 50 DLR 111.
Section 233 The element of continuity of action was also present in the instant case in that the petitioner and others encircled the house of the victims and that thereafter petitioner and some others entered into the hut of the victims and caused injuries by sharp cutting weapons in consequence whereof the death occurred. In this state of the matter it can in no way be said that the offences or, in other words, causing death of the two persons by the petitioner and others was not committed or done in the course of the "same transaction" or in one transaction. Delower Hossain Khan vs State 54 DLR (AD) 101.
Section 233-Offences separate-joint trial, not proper-The accused were charged with inflicting fatal injuries on N on 13-4-52. Some of them were also charged for inflicting injuries on N and B on 12-4-52.
Held: The two incidents are independent of each other and are separate and unconnected, and, as such, they cannot be tried jointly. Qader Dad vs Sultan Bibi 8 DLR (FC) 55 (58).
Section 233 Charging in a lump for an aggregate sum-Section 233 provides that for every distinct offence of which a person is accused there shall be a separate charge. The only exception to this rule is the one provided in section 222, clause (2) but that exception does not apply to a charge of falsification of accounts because it applies in case of breach of trust or dishonest misappropriation of money. Sailendra Prasad vs Crown 2 DLR 349 (356).
Section 233 Offences inseparably connec- ted-Misjoinder of charges-Where the offence of having been in possession of a spear which is, punishable under the Arms Act is so connected with offences punishable under the Penal Code as to form part of the same transaction, it cannot be said that the trial was vitiated on account of misjoinder of charges, and in such a case the accused could have been legally charged and triad at one trial for all the offences committed by him during the same transaction. Sadiq vs Crown 3 DLR (FC) 381.
Section 233-Unless it could be shown that the misjoinder of charges had, in fact, prejudiced the-accused and occasioned a failure of justice an objection of the nature is not tenable. Prohibition against misjoinder of charges applies to summary trials as it does to ordinary trials. The record must show that there was no misjoinder of charges. Sadiq vs Crown 3 DLR (FC) 381.
Section 233 Offence of criminal miscon- duct under section 5 of Prevention of Corruption Act (II of 1947) and offences of specific instances of bribery under section 161, PPC-Not of the same kind-trial for both illegal. Crown vs Ghulam Mohammad 1950 PLD (Lah) 479.
Section 233-Accused, an ammunition dealer, charged under the Arms Act for making three false entries and for possessing 8 cartridges in excess-Accused prejudiced by misjoinder of charges. Ramesh Chandra Chowdhury vs Crown 4 DLR 97.
Section 233 Prohibition against misjoinder of charges applies to summary trials as it does to ordinary trials. The record must show that there was no misjoinder of charges. Abdul Hanif vs Crown 7 DLR 274.
Section 233 Accused tried and sentenced in one trial for theft, forgery and attempting to cheat in respect of one document as well as for theft, forgery and cheating in respect of another trial-illegal. Md Hafeez vs Crown 1952 PLD (Lah) 34.
Section 233 When the accused was charged under one head under section 409, PPC, in a lump for an aggregate sum defalcated by him consisting of 13 different items of value received for 13 demand drafts and also charged under section 477A under one head for falsification of accounts by omitting to enter these receipts in the account books of the bank.
Held: There was a misjoinder of charges. vitiating the trial. Sailendra Prasad vs Crown 2 DLR 349.
Sections 233 & 234-See under section. 239(d) in case of Nur-Din vs Crown 2 PCR 135 (149).
Section 233-Misjoinder of charges-Mis joinder of charges vitiates the trial and not curable under section 537, CrPC. Abdul Motaleb vs State, 25 DLR 14.
Section 233 Where there is ample evidence to show that petitioners were confederates and partners in their misdeeds a joint trial is permissible. Sheikh Kaloo vs State. 9 DLR 253.
Section 233-Trial of 14 offences commit- ted in the course of different transactions by an accused was made the subject-matter of one single trial. Such trial was vitiated for non-compliance of the mandatory provisions of section 233 CrPC and cannot be justified by any of the exceptions mentioned thereto such defect cannot also be cured under section 537, CrPC. Aminul Islam va State, 24 DLR 150.
Section 233 Charge: There should be a separate charge for each distinct offence- The provision is mandatory-Causing the death of two persons are two distinct offences-framing of one charge for two specific offences of murder, even if committed in the same occurrence or same transaction, is defective and confusing. State vs Azahar Gazi 23 DLR 32
Section 233-Conviction for abetment with
out the charge of abetment not always sustainable. A charge of murder was framed under section 302 read with section 34, PPC against four persons and the Court convicted all of them not on the substantive offence of murder but for abetment of murder though no charge was framed against item for abetting the commission of offence of murder.
Held: When a person is charged with substantive offence he cannot in all cases be convicted for abetment thereof. Every case must depend upon its own facts and if the facts justify the conviction for abetment though the person was charged with commission of offence itself, there is no bar in law to such conviction.
Abetment of an offence is not a minor offence of the substantive offence within the meaning of section 238, CrPC. The substantive offence and its abetment are two distinct offences and each has got its ingredients. The ingredients that must be proved for the abetment of an offence are quite different from those required to establish the substantive offence. A charge for the substantive offence, as such, gives no intimation of a trial to be held for abetment. Tamiza Khatoon vs State, 24 DLR 57.
Section 233-Defect in the frame of charge: Omission to frame two charges in accordance with the first part of section 233, CrPC is an irregularity curable under section 537 of the Code. State vs Abdul Aziz 23 DLR 91.
Section 233-Several acts of misappropria- tion charged jointly against two accuseds, along with one additional act against one only of the accused without any evidence of conspiracy, abetment or sameness of transaction-Misjoinder of persons-trial vitiated. PLD (1957) (Lahore) 461.
Section 233-Scope and object-The wholesome rule expressed in section 233 was intended to prevent embarrassment and difficulty to the accused in defending himself in respect to the charge or charges brought against him. The Legislatures at the same time recognised that under certain circumstances which the Legislature thought would not cause any embarrassment to the accused, the accused could be tried in respect of more than one offence in the same trial and thus multiplicity of trials avoided. These circum- stances are mentioned in sections 222(2), 234, 235, 236 and 239, CrPC. 1986 P CrLJ 2884 + 1985 P CrLJ 2318+ AIR 1965 Mys 128 + AIR 1952 Bom 177. Therefore except in the cases mentioned in the last mentioned sections there shall be a separate charge for every distinct offence of which any person is accused and that every such charge shall be tried separately, but two points are to be borne in mind in this connection. The first is that the general rule laid down in section 233 was enacted for the benefit of accused persons and not for that of the prosecution. The second point is that it is of the utmost importance that the accused should not be exposed to the risk of conflicting decisions. PLD 1965 Lah 349(FB).
Section 233-Objects of section-The object
of the section is to give the accused notice of the charges which he has to meet and to see that he is not embarrassed by having to meet charges in no way connected with one another, AIR 1952 Bom 177 (FB)+AIR 1954 SC 436+AIR 1956 All 466 (FB), or the complexity of charges levelled against him or any charge which he may not be
able to defend properly. PLD 1960 Kar 287-PLR 1960(1) WP $38.
Section 233-Amalgamation of cases There is no provision in the Code for amalgama- ting cases. The sections relating to joinder of charges and joinder of persons nowhere permit a Magistrate to amalgamate two cases started separately. AIR 1949 Cal 632 (Overruled on another point in AIR 1958 Cal 133 (FB)).
Section 233-Appeals-The section applies to the trial of two appeals arising out of two separate cases. AIR 1928 Cal 230-29 Cri L Jour 512 (DB).
Section 233-Separate charges For every distinct offence of which any person is accused, a separate charge should be framed, NLR 1983 Cr 654(2)+PLD 1965 Lah 349(FB)+AIR 1956 Bom 450 (DB)+AIR 1948 Sind 40 (DB), even though the case is one in which the accused may be tried at one trial for all the offences under the provisions of sections 234, 235, 236 and 239. NLR 1983 Cr 654(2)+AIR 1939 Cal 32 (DB)+ AIR 1938 PC 130+AIR 1955 Pepsu 43 (DB).
Section 233 Where a number of accused are tried together and they are charged with different offences it is desirable to frame a separate charge in respect of each separate offence. AIR 1956 Bom 609-1956 Cri L Jour 1066 (DB). Where it is intended to charge an accused person in the alternative with having committed one or the other offence, separate alternative charges should be framed. AIR 1956 Bom 450-1956 Cri L Jour 867 (DB).
Section 233 Carbon copies of evidence in one case, if may be used in other case-Where the evidence recorded in one case is carbon-copied and placed on the record of another case or if the
evidence of one witness is adopted from one case into the file of another case without appearance of the witness and without his examination and cross-examination, it amounts to causing serious prejudice to the defence and also amounts to an illegality which vitiates the trial and is not curable under section 537, CrPC. 1996 P CrLJ 314-PLJ 1996 CrC 406.
Section 233-Charges which cause prejudice to the accused due to error or irregularity makes out a case for re-trial. Ali Akbar Khan vs State 34 DLR 95.
Sections 233, 235(1) and 561A-The impugned order passed by the revisional Court, does not amount to an abuse of the process of the Court. Acts of the accused, in placing requisitions to withdraw money for the same purpose, were in inter related and the same do not constitute distinct offences requiring to frame distinct charges as required under section 233 of the Code. Abul Kalam Azad alias Baku va State (Criminal) 16 BLC 459.
Sections 233, 236 & 237-Under section 34 the two elements that constitute the crime are the common intention and the participation in the crime, while those in the case under section 149 are the common object and the participation in the unlawful assembly. Where the common object becomes equivalent to the common intention and where participation in the assembly is coupled with the participation in the crime then the two elements of both the constructive liabilities become the same. In such cases, no separate charge need be framed for each of them as laid down under section 233, CrPC and the conviction of the accused may be altered from one under sections 302/149 to that under sections 302/34 without there being a charge for the latter as provided under sections 236 and 237, CrPC. State vs Abdul Hye Miaj 1 BLC 125
Sections 233 to 239 Ingredients of these sections examined and expounded-Sections 233 to 239 deal with the joinder of charges and they must be read together and not in isolation.
Section 234 lays down three limitations. These are (1) that the offences must be of the same kind, (2) that they must have been committed within the space of one year, and (3) that more than three offences should not be joined in the same trial. Directions in regard to joinder of three charges stated under section 234 are not mandatory in the sense that it is not obligatory on the Magistrate not to try the offences separately, but it is entirely at the discretion of the Magistrate whether or not to resort to section 234.
Each of the four sections namely, sections 234, 235, 236 und 239 can individually be relied upon as justifying a joinder of charges in matter of trials, but use cannot be made of two or more of these four sections together to justify a joinder. It is, therefore, not possible to combine the provisions of two or more sections, or the different sub-clauses of sections 239 in any one case, or to justify a trial of several persons partly by applying the provisions of one clause and partly by applying another clause or other clauses, and a joint trial is permissible only if it is permitted by any of the sections. State vs Mirza Azam Beg 16 DLR (WP) 127.
Section 234 FIR, charge-sheet and other materials on records show that the offence is one by a series of acts happened on a particular period of time which is about 3 (three) years and 6 (six) years (for two cases). Therefore, it being one offence section 234 of the Code, a provision relating to several offences of the same kind is not applicable in these cases. Md Hossain vs State represented by the Deputy Commissioner, Dhaka, 23 BLC 256.
Section 234 The period of one year is available in section 234 of the Code, but it is absent in section 6(1B) of the Act, 1958 and thereby in view of the provision laid down in section 6(1) of the Act. 1958 section 6(1B) excludes the application of section 234 of the code which relates to the period of the commission of the alleged offence. Kazi Riazul Manir vs Md Shafiul Alam, 23 BLC 638.
Section 234-The period of one year is available in section 234 of the Code of Criminal Procedure but it is absent in section 6(1B) of the Criminal Law Amendment Act and thereby in view of the provision laid down in section 6(1) of the Criminal Law Amendment Act, 1958 section 6(1B) excludes the application of section 234 which relates to the period of the commission of the alleged offence. Habibur Rahman Molla vs State, 61 DLR I
Section 234 While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code. This observation is made through overlooking sub-section (IB) of section 6 of the Act, 1958. The observation is expunged. Manzur Ahmed vs Government of the People's Republic of Bangladesh, 70 DLR (AD) 155.
Section 234-Misjoinder of charge is an illegality not curable under section 537-The accused was put on his trial to answer charges for misappropriation and falsification of accounts in respect of a sum of Rs. 332 regarding the purchase of tube-wells and misappropriation of another sum of Rs. 435 showing a bogus payment in connection with the sinking of a tube-well and the third allegation was that the accused had accepted a donation of Rs. 200 for sinking a tube-well in certain locality, but did not deposit the same in the fund of the Union Board.
In respect of the charge of misappropriation as well as falsification of accounts of the first two items of Rs. 332 and 435, the accused was acquit- ted by the Special Judge, in respect of the item of Rs. 200 for misappropriation and falsification of accounts he was convicted under sections 409 and 477A of the PPC, and sentenced to certain terms of imprisonment under both the sections.
On appeal to the High Court, it was conten- ded, on behalf of the accused that trial has been vitiated for non-observance of the mandatory provisions of section 234, CrPC.
Held: Misappropriation and falsification of accounts committed in respect of Rs. 332 cannot be said to have been committed in the course of the same transaction so far as misappropriation and falsification of accounts in respect of Rs. 435 is concerned.
Similarly, misappropriation and falsification of accounts in respect of Rs. 200 cannot be said to have been committed in the course of the same transaction with the other two misappropriation and falsification of accounts. Therefore, the trial has been vitiated on account of the contravention of the provisions of section 234. Abdul Awal Khan vs State 13 DLR 846
Section 234 Offences under section 161 of the Pakistan Penal Code, and under section 5 of the Prevention of Corruption Act are distinct and separate offences. Abdus Salam vs State 12 DLR 100; (1960) PLD (Dac) 425.
Section 234 Writ of certiorari was issued and conviction quashed when it was clear that the trial was held patently in violation of the provisions of section 234. Mozammil Ali vs AFM Majid 12 DLR 408.
Section 234-It was contenced that each monthly delivery of the salary drawn by the accused constituted by itself a complete offence of cheating, and, as such, there could be no justifica tion for lumping up forty-eight such offences in one charge and trying the same.
Held: It could by no means be said that these facts of cheating were done in the course of the same transaction. The charge as framed is cer- tainly defective. But insofar as the petitioner has only been convicted of one offence of cheating and not forty-eight counts of cheating, there is really no case of misjoinder of offences in this case. Sayed Mosaraf Hossain vs State 12 DLR 834; (1961) PLD (Dac) 506.
Section 234-In respect of three offences of the same kind committed within twelve months, a charge under section 161, Pakistan Penal Code was framed and separate charge for these offences was also framed against the same person under section 5(2), Prevention of Corruption Act, and the accused was on his trial to answer both the charges-Trial vitiated by misjoinder of charges. Arshed Ali Khan vs State 12 DLR 90; (1960) PLD (Dac) 412.
Section 234-Offence of criminal breach of trust and forgery, and falsification of accounts to cover such breach-Not of same kind. 1957 PLD (Lah) 290.
Section 234-A conviction under section 161 of PPC on proof of ten instances of bribe-taking is illegal under section 234, but legal under section 5 of the Prevention of Corruption Act by virtue of section 5(2) of CrPC. Golam Mohd. vs Crown 6 DLR (WP) 170.
Sections 234-236-Misjoinder of charges Charges under sections 409/461, PPC in respect of some property and charges under sections 5(1)(d) of Act II of 1947 in respect of some others illegal, vitiating the trial-The accused was charged under section 409 PPC for criminal breach of trust - in respect of certain items of property (clothing) and in respect of the same items of property was also charged under sections 467/471, Pakistan Penal Code, for making false entries in the records and for falsely certifying of their being properly disposed of. The offence was alleged to have been committed on 7-1-55.
In the same trial he was further charged with the offence of criminal misconduct under section 5(1)(d) of Act II of 1947 for obtaining by corrupt and illegal means various other items of goods (CI sheets, Quaker Oats, etc.) out of those received by him between 17-10-54 and 6-6-55.
Held: The appellant was confronted with practically four charges.
The lumping together of four offences or even of the offences under sections 409 and 467, PC and under the Act II of 1947 together is not covered by section 235.
The accusation, as it is, not protected by section 234 of the Code, nor is the combination protected by section 235 of the said Code.
It is not permissible for the prosecution to combine and supplement the three sections in such a manner so as to contravene the provisions of any of the three sections. Abdul Hai Jamaley vs State 16 DLR (Dac) 159.
Section 234-Accuseds were charged for having in their possession on 3 different dates foodstuff in excess of quantities permissible under law They were further charged for setting up a mill and for crushing rice in violation of the East Pakistan Rice Mill Control Order, 1943.
Held: Five offences have been charged in one trial and thus there was misjoinder of charges which has vitiated the trial. High Court competent to interfere in case of misjoinder of charges under Article 98 of the Constitution as held by the Full Bench in the case of Abdul Kuddus 13 DLR 213: Kazi Abdul Matin vs Sub-Divisional Magistrate 20 DLR 931.
Section 234-Read with section 222(2)- Charge under section 222(2) is to be treated as a charge for one offence for the purpose of section 234. The words "one offence within the meaning of section 234", in section 222(2) are significant. The charge framed under sub-section (2) of section 222 has to be treated as a charge of one offence for the purpose of section 234 only. It may be said that it has no bearing as regards section 235, CrPC. So far as section 235, CrPC is concerned all items of misappropriation have to be taken as all distinct offences. Dishonest misappropriation and criminal misconduct fall within two different laws. Abdul Motaleb Khan vs State, 25 DLR 14.
Section 234 Misjoinder of charges-One charge both under sections 460 and 302/34 Penal Code framed against all the accused is defective and conviction thereunder is set aside. Abdul Quddus vs State 44 DLR 441.
Sections 234 and 236-Applicability of sections 234 & 236-Manner of Section 234 and section 236 apply to cases where one person may be dealt with at one trial for more than one offence while section 239 applies to the trial of more persons than one jointly. Where two inci- dents are independent and wholly unconnected with each other, no joint trial is permitted. Lal Mia vs State 40 DLR 377.
Sections 234-236-Misjoinder of charge- When the accused have been charged under sections 302/34 Penal Code on the allegation that they committed murder in furtherance of common intention, the addition of section 460 Penal Code in the charge is materially defective. The accused having been convicted and sentenced under sections 302/34 their conviction and sentence at the same time under section 460 in the same case is bad in law and should be set aside. Khelu Mia vs State 43 DLR 573.
Sections 234 and 561A-The contention that there cannot be three separate cases out of single transaction and the petitioners cannot be put on trial in three separate cases arising out of one transaction is of no substance. Abul Fazal vs State 53 DLR (AD) 100.
Sections 234 and 239, 535 and 423(b) (2) An accused person can be convicted of a particular offence only if he was charged with the same. The ordinary rule that the accused cannot be convicted of any offence with which he is not charged is circumscribed by exceptions. The power of the appellate court under section 423(b)(2) is, however, subject to the condition that the appellate court cannot enhance the sentence imposed by the trial court. (SK SINHA, JAGREEING WITH NAZMUN ARA SULTANA, J). State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13.
Section 235-The various acts were done in pursuance of a particular end in view and they were connected together by proximity of time, unity of purpose and continuity of action and those acts formed parts of the same transaction within the meaning of section 235, CrPC. (Per Siddiqur Rahman Miah J: agreeing). Zahed Hossain vs State, 61 DLR 386.
Section 235-Same transaction-Several persons animated by a common purpose and indi vidually doing different offences, all liable participant to the offence joining it at subsequent stage, equally responsible. State vs Darajuddin Mondal 13 DLR 256; (1962) PLD (Dac) 424.
Section 235-Nine misappropriations of different sums at different times charged in form of a lump sum by a single charge at the same trial. Trial bad for misjoinder in absence of proof of same transaction. Mojahiuddin Faridi vs State 1957 PLD (Kar.) 814.
Section 235 Misjoinder of charges under sections 147 & 242, PPC-trial vitiated. 10 DLR (SC) 134.
Section 235-The expression "by the same person" occurring in section 235 of CrPC indi- cates that where there are more than one accused, the section has no application. Gabinda Chandra Pandit vs Crown 6 DLR 445.
Section 235-Trial for more than one offence when committed in a series of acts as to form the same transaction. A perusal of section 235 of the CrPC clearly shows that an accused" may be charged with and tried at one trial for any number of offences which he is alleged to have committed in one series of acts so connected together as to form part of the same transaction. KM Zakir Hossain vs State 28 DLR 452.
Section 235-The expression "same transac- tion" explained. The expression 'same transaction - has, however, not been defined in the Code. It should, however, be noted that a series of acts to be regarded as forming the same transaction must be connected together in some way, for instance, by proximity of time, unity of purpose, unity of place and continuity of action. It is not necessary that all of them should be present to make several incidents part of the same transaction. If the various acts are done in pursuance of a particular end in view and as accessory thereto, they may be treated as parts of the same transaction. The real and substantial test for deter mining whether several offences are connected together so as to form one transaction depends upon wheth.. hey are so related to one another in poir..purpose or as cause and effect as to constitute one continuous action. KM Zakir Hossain vs State 28 DLR 452.
Section 235 Trial for more than one off- ence-One series of acts so connected together, as to form the same transaction-Explained with reference to the facts of the present case. In the instant case, it has been proved that all the four advances of money were given between 19-2-1965 and 10-4-1965 for the same work namely, the brick manufacture for Pabna-Trimohoni Road; the control of sale of tender forms and the acquisition of land were also related to and for the purpose of the same work. The allegation was that the various acts were done in pursuance of a particular end in view, namely, to obtain pecuniary benefits for the contractor. It is evident that the series of acts were connected together by proximity of time, unity of purpose and continuity of action. Under these circumstances the High Court has found that these acts undoubtedly formed parts of the same transaction within the meaning of section 235 of the Code and those acts were only specific instances or modes of abuse of official position and formed one charge of criminal misconduct under section 5(2) of Act II of 1947. KM Zakir Hossain vs State. 29 DLR (SC) 250.
Sections 235 and 239 The provisions of section 235 and 239 of the Code vest a discretion with the Court to try offences of the kinds indicated therein jointly in the circumstances mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. (Per Siddiqur Rahman Miah J agreeing). Zahed Hossain (Md) vs State, 61 DLR 386.
Sections 235 and 239 Whether a series of acts are so connected together as to form the part of the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formula of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction. The circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. A transaction may be continuous one extending over a long period and two places. The expression "part of the same transaction" must be understood as including both immediate cause and effect of an act or even also its collocation or relevant circumstances. Mufti Abdul Hannan Munshi altas Abul Kalam vs State, 69 DLR (AD) 490-
Sections 235 & 239-Joint trial of offences or persons-When can be held-Fundamental principle The provisions of sections 235 and 239 vest a discretion in the Court to try offences of the kinds therein jointly in circumstances therein mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. Where a joint trial is likely to embarrass an accused person or cause some serious hardship to the defence, the Court should not exercise this discretion.
Even though sections 235 and 239 give a discretion to the Court to try certain persons and for offences jointly, yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial. In a criminal trial it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and anything which is likely to cause any serious embarrassment to him in the conduct of his defence should be avoided. Where joint trial is wrongly held, the trial is illegal irrespective of the question of prejudice. Noor Ahmed va State 16 DLR (SC) 233.
Sections 235 & 403-Same offence that was committed by the accused and as he has already been tried and convicted the second conviction is coram non judice and trial is vitiated as being hit by section 403, CrPC. The legislature has provided that separate charges referred to in illustrations (a) to (h) of section 235, CrPC respectively may be tried at the same time. The requirement of law is that separate charges could be made but they ought to have been tried in the same trial. Md Abdul Latif vs State 29 DLR 157.
Section 235(1)-"Same transaction" Test- Offences must be linked together to make a continuous whole-Offences of criminal breach of trust and forgery and falsification of accounts to cover such breach-Offences committed in course of "same transaction". Golam Jilani vs State PLD (1957) (Lah.) 290.
Section 235(1)-Trial for more than one offence if the acts are so connected as to form the same transaction. When a person by forgery com- mits two offences one of which comes under section 467 and the other under section 193, PPC, he can be charged with and tried under section 235(1), CrPC, for both the offences together. Abdul Hakim vs State 10 DLR 23.
Section 235(1) Application of the section -Charge of misappropriation under section 409 of the Penal Code, coupled with one of criminal misconduct under section 5(2) of the Act II of 1947 in one and same trial.
Held: A charge of misappropriation can be tried under section 235(1) of the Code with a charge of criminal misconduct in respect or the corresponding amount to cover up the misappro- priation because in such a case the misappro- priation and criminal misconduct are parts of the same transaction.
But an act of misappropriation and an act of criminal misconduct in respect of a different act of misappropriation cannot be tried in the same trial as they cannot be said to have been committed in course of the same transaction. In the present case, the charge under section 409 is not a charge in respect of a single act of misappropriation: as many as 411 acts of misappropriation were committed on a number of occasions, though within a space of one year. It cannot, therefore, be said that they were committed in course of the same transaction. Similarly, their corresponding offences of criminal misconduct cannot also be said to have been committed in course of the same transaction. Obviously, all acts of misappropria- tion have been lumped together in a single charge under the enabling provisions of law in sub- section (2) of section 222, CrPC which is evidently an exception to the general rule. Abdul Motaleb Khan vs State 25 DLR 14.
Section 235(2)-Accused cannot be sentenced under section 161, PPC and also under section 5(2) of Prevention of Corruption Act, though his conviction under the two sections is valid in view of section 235(2). Md Yusuf vs Crown 7 DLR 302.
Section 235(2)-Attacking complainant with knife and robbing him of his cash-box-Same transaction. Akbar Shah vs Crown PLD 1950 (Bal) 21.
Section 235(2) Offence under section 409, Penal Code and that under section 5(2) of Prevention of Corruption Act not same kind of offence. Abdul Motaleb Khan vs State, 25 DLR 14.
Sections 235-237-Where from the facts of the case it is not clear which of the several offences has been committed, the accused may be charged with having committed all or any of such offences and he may be convicted of the offence which he is shown to have committed, although he was not charged with it. Parveen vs State 51 DLR 473
Sections 235-237 and 403-When facts of the case are such that it is doubtful which of the several offences has been committed the accused may be charged with having committed all or any of such offences; and after trial for one such offence the accused may be convicted for the other offence even though he was not charged thereof-In the instant case "robbery" and "un- authorised possession of firearms" are not offences of the same nature contemplated in sections 236 and 237 (1) CrPC, but these are two distinct offences for which a person may be charged for each of them as provided in section 235(1) CrPC. Arfan Ali vs State 42 DLR (AD) 22.
Sections 235 and 239 Section 235 empowers trial of a person for more offences than one if those are committed in the same transaction but section 239 provides for persons accused of different offences committed in the course of the same transaction. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.
Sections 235 and 239-Whether a series of acts are so connected as to form the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formuia of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction. State vs Md Abu Taher 56 DLR 556.
Section 235-The accused raised objection on the score of defect in charge at any stage of the trial. The objection raised for the first time in the Appellate Division is not entertainable by virtue of explanation appended to section 537 of the Code of Criminal Procedure. Rajib Kamrul Hasan vs State 53 DLR (AD) 50.
Section 236-Additional or alternative charges in case of doubt Section 236 can be called in aid where in the case of one of the accused persons who is being jointly tried with others it is, at the time the charge is framed, doubtful which of several offences the facts which can be proved will constitute. In such a case an additional charge or a charge in the alternative can be added against that accused person. Bashir Md vs Crown 8 DLR (FC) 61; PLD 1956 (FC) 147.
Section 236-Misjoinder of charges Eleven persons were charged under section 396 and alternatively, under sections 302/120B of the Penal Code.
Held: The trial was vitiated by misjoinder of charges. Neither section 239(d) nor section 236 of the Code of Criminal Procedure justified such a joinder. Crown vs A Quddus 5 DLR 52.
Sections 236 & 237-Charge was framed under section 302, read with 149, PPC. But conviction was founded on section 304(1), read with section 34, PPC Conviction valid in law in view of sections 236 and 237. Ahmed Ali vs State 12 DLR 365; (1960) PLD (Dac.) 828.
Sections 236 & 237-If there is some element of doubt, a charge can be validly framed for a substantive offence read with section 149, PPC and conviction can be founded and sentence can legally be passed for the substantive offence. The precise evidence was that the two accuseds shot dead two persons, one of the accused shooting and killing one person and the other accused shooting and killing another person. On account of an allegation that there was a 3rd shot by another person which hit none, the Court framed a charge against the two accused under section 302 read with section 149, PPC.
The Court, however, convicted each of the accused under section 302 and sentenced each to death. The contention was raised that the two accused had been prejudiced by failure at the trial to place them upon a charge of direct liability.
Held: It is true that specific charge under section 302, PPC might also have been framed against each of the accused individually, but by section 236, CrPC, the Court is expressly permitted to frame a charge in respect of any of the several offences which might have been charged. By the application of section 237, CrPC, a conviction can legally be obtained in a case of this kind, of any offence which appears from the evidence to have been committed, although it was not expressly charged. When, therefore, at the conclusion of the trial, the learned Sessions Judge was satisfied regarding, the individual liability of each of the accused it was open to him to record a conviction against each of them under section 302, PPC. Md Anwar vs State 9 DLR (SC) 1.
Sections 236, 237 and 403-A criminal charge once having been adjudicated upon by a competent Court and such adjudication is final whether it ends in acquittal or conviction and it may be pleaded as a bar in a subsequent prosecution for the same offence. But when the offences are not such and it comes within the scope of sections 236 and 237 and disclosed distinct offences committed in course of the same transaction, a fresh trial is not barred. These condemned prisoners Nasir and Faruque had faced trial by a court of competent jurisdiction in respect of the offence under sections 302/34 of the Penal Code which ended in acquittal and the same having not been set aside by the High Court Division, they cannot be vexed twice for the same offence as it is barred by section 403, CrPC. State vs Ershad Ali Sikder @Ershad Sikder 9 BLC 294.
Sections 236 and 237-Though charge was framed under sections 302/34 of the Penal Code but conviction was awarded for offence of sections 302/109 of the Penal Code on the basis of evidence led by prosecution and learned Trial Judge was well justified in his decision in convicting condemned prisoner Sharifa and convict-appellant Arif for offence of sections 302/109 of the Penal Code. State vs Md Abdus Samad Azad alias Samad 9 BLC 39.
Sections 236 & 237-When an accused is charged under sections 302 and 134 Penal Code his conviction under section 201 Penal Code is legal. Kalu vs State 45 DLR(AD) 161.
Sections 236, 237, 238, 417 and 423-A finding of acquittal can be converted into one of conviction only in an appeal under section 417 which being in accord with section 423 CrPC is the correct view taken in Bawa Singh's case. Mofizuddin vs State 40 DLR (AD) 286.
Sections 236 & 237-An offence under a particular section if not proved but some other offence is made out by the prosecution, the accused persons can be very well convicted and sentenced for the other offences proved before the court through legal evidence. Al-Amin vs State 51 DLR 154
Sections 236, 237, 238 & 337-The accused raised no objection on the score of defect in charge at any stage of the trial. The objection raised for the first time in the Appellate Division is not entertainable by virtue of explanation appended to section 537 of the Code of Criminal Procedure. Rajib Kamrul Hasan vs State 53 DLR (AD) 50.
Section 237-Once a Court takes cogni sance, it is open to it subsequently, to charge the accused with any offence, which appears to have been committed by him. B Fane-Saunders vs Abdus Satter 7 DLR (WPC) 99.
Section 237-When Court takes cognisance of an offence it is open to him to subsequently, charge the accused with any other offence which appears to have been committed by him, even though the Court had not issued process for that offence in the first instance when the complaint was made. B Fane-Saunders vs A Satter 7 DLR (WP) 99.
Section 237-When a charge under section 302, PPC fails against an accused there is nothing illegal to convict him under section 201, PPC, if the offence under this section is established against him. This is permissible even though the charge under section 201 was not in terms framed against him, as such, a course is permissible under the provision of section 237 of the CrPC. Afsaruddin Choukidar vs State 21 DLR 783
Section 237-In view of the provisions of section 237 of the Code of Criminal Procedure the conviction of the petitioner under section 381 is maintainable although he was charged under section 408 but not under section 381 of the Penal Code.
In view of the provisions of section 237 CrPC and being in respectful agreement with the pronouncements of the learned Judges, I am of the view that although in this case the petitioner was charged under section 408 of the Penal Code and not under section 381 of the Penal Code still his conviction under section 381 of the Penal Code is quite maintainable as the petitioner was fully aware of the nature of accusation against him and had the opportunity to meet the elements of offence punishable under section 381 of the Penal Code and he was not also prejudiced by conviction under section 381 of the Penal Code. Mahbubul Alam vs State 41 DLR 7.
Section 237-Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged in respect of a single act or series of acts, then, subject to absence of prejudice, the accused may be convicted of the offence, which he is shown to have committed although he was not charged with it. Parveen vs State 51 DLR 473
Section 237-The trial Court committed gross mistake in passing sentence under different penal provisions with which the convicted accused persons were not even charged with. Alam vs State 54 DLR 298.
Section 237-Law is well settled that if an offence under a section is proved though not charged the accused can be convicted for the offence proved on the strength of the provision of section 237 of The Code. State vs Ershad Ali Sikder 56 DLR 305.
Section 237-According to Mulla J the process of altering a finding in an appeal from conviction must operate only within the limits prescribed under sections 236, 237 and 238 CrPC and this process of alteration must stop whenever it comes up against a finding of acquittal and a finding of acquittal can be converted into one of conviction only in an appeal under section 417. Mafizuddin vs State 40 DLR (AD) 286.
Section 237-Evidence on record being the same to constitute an offence under section 404 Penal Code the conversion of offence from one under section 380 Penal Code to one under section 404 Penal Code (while maintaining the sentence passed by the trial Magistrate) does not prejudice the accused and as such the trial and conviction is valid in law. Makhan Chandra Das vs Nimai Chandra Das 21 DLR 384.
Section 237-Accused charged under one section and the courts found the accused guilty of another charge. The original charge having thus failed and subsequent charge not being put to the accused, the accused cannot be convicted for subsequent charge. Akbar Ali vs State 21 DLR 145.
Section 237-Condition which must be fulfilled before a man charged with one graver offence can be convicted of a minor offence in respect of which no charge was framed. Sultan Ahmed vs State 12 DLR (SC) 53.
Sections 237 and 238-Even where a charge was framed against an accused person in respect of an offence, he may be convicted for lesser offence provided the case attracts section 237 and 238 of the Code. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J). States Dafader Marfoth Ali Shah, 68 DLR (AD) 13.
Sections 237 and 238-Appellate Court can alter the conviction for other offence for which no charge was made. Jahangir Hossain vs State 40 DLR 545.
Section 238 Person charged, where circumstances will permit, with commission of the substantive offence can be convicted for abetment of commission of that offence even though not so charged-It cannot be laid down as a matter of universal rule that in no case can there be a conviction for abetment when the accused is charged with the substantive offence or vice versa. It cannot also be held as an inflexible rule that in every case where a charge is framed for abetment the accused can be convicted of the substantive offence or vice versa simply because both the charges could be framed against him. Each case will depend upon its facts and the relevant question that has to be answered is, whether the evidence adduced in support of the charge gave sufficient notice of all the facts which could constitute the offence for which he is convicted. If the answer is in the negative, the conviction must be set aside but if, however, the answer is in the affirmative, the conviction can be maintained. State vs Abed Ali 14 DLR 701.
Section 238-When a person is charged with one offence, he can be convicted of another The test to be applied as to whether an accused person charged under one section can be convicted under another section is, whether he had notice of the offence of which he is to be convicted and so was not prejudiced by the conviction. Jafar vs Idris Ali 3 DLR 144.
Section 238-When a person is charged with one offence, he may be convicted of another, if no prejudice is caused. Md Faruq vs State, PLD 1956 (SC) 743; 8 DLR (SC) 135.
Section 238-When the graver charge gives notice of all circumstances going to constitute the minor offence, conviction for the minor offence without a charge is legal. An offence under section 448, PPC is not a minor offence in relation to the offence of dacoity under section 395, or receiving looted property under section 412-Conviction for the former offence without the accused being charged with it is illegal. Sultan Ahmed vs State 12 DLR (SC) 53.
Section 238-When offence under section. 364, PPC is established but no charge has been framed under that section the accused can be convicted for the offence under section 364 under the provisions of section 238, CrPC. Akaluddin vs State 15 DLR 466.
-If the major offence and the minor offence with which the accused are charged are quite distinct and apart as far as their essential ingredients are concerned, section 238 will not help and the conviction of the accused for the so- called minor offence will not be sustainable unless and until the accused is specifically charged with it. Md Hanif vs Crown 8 DLR (WPC) 21.
Section 238 Offence consisting of several particulars conviction on minor offence, though not charged, lawful. Under section 238 when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and such combination is proved he may be convicted of the minor offence though he was not charged with it. The section further provides that when a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Chand Mia vs State, 20 DLR 455.
Section 238-Abetment of an offence is not a minor offence within the meaning of section 234, CrPC. The substantive offence and its abetment are two distinct offences and each has got its ingredients. A charge for substantive offence gives no intimation of a trial to be held for abetment. Tamiza Khatoon vs State. 24 DLR 57.
Section 238-An offence to be a minor offence to a major one must be a cognate offence to the major one, having the main ingredients in common. State vs Sree Ranjit Kumar Pramanik 45 DLR 660.
Section 238-An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence.
Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman vs State 51 DLR (AD) 33
Section 238 "Minor offence". Where the charge is for a major offence but a minor offence is proved, the accused may be convicted of the latter. 1972 SCMR 255 + 1969 P CrLJ 259.
Section 238 Powers of Appellate Court and High Court-An Appellate Court may exercise the powers under this section and may alter a conviction for a major offence into one for a minor offence. 1972 SCMR 255+AIR 1954 Madh-B.97 (DB)+AIR 1944 All 137 (FB). The power of an Appellate Court to alter a finding under clause (a) or (b) of section 423, CrPC so as to convict the accused of an offence disclosed by the evidence on record, even though no charge in respect of that offence had been framed, is limited to cases falling under sections 236 and 238 of the Code. 1986 P CrLJ 1482 (DB)+AIR 1963 MP 97+AIR 1944 All 137 (FB). In an appeal against an order of acquittal the High Court has power under section 423 (1)(a) to convert an order of acquittal into an order of conviction in respect of an offence other than that for which the accused was tried by the trial Court and acquitted by it, exercising powers under sections 236, 237 and 238. AIR 1958 SC 561958 SCR 739 = 1958 Cri L Jour 228.
Section 238(2) It is true that no charge was framed against the accused under section 25B(2) but in view of the provisions of section 29 of the Special Powers Act and sub-section (2) of section 238 of the Code of Criminal Procedure, he may be convicted under sub-section (2) of section 25B of the Special Powers Act, 1974. Shamsul Haque vs State 49 DLR 528.
Section 239 When offence is committed in course of same transaction there cannot be two cases and the accused can be charged jointly. Taslimuddin (Md) alias Md Taslim Uddin vs State, 20 BLC 471.
Section 239 When one considers all the sections of the Chapter, it becomes apparent that the intention of the Legislature in using the words "former part of this Chapter" was that all sections in Chapter XIX, which precede section 239 were applicable to the extent to which they were not repugnant to the provision of that section itself. Nur Din vs Crown 2 PCR 135.
Section 239-In a charge of conspiracy, all manner of acts, whether or not they are done in pursuance of the conspiracy, cannot come under clause (d) of section 239. The offence of conspiracy, being a substantive offence in itself, commences at the point of time when the conspirators first get together and form the design and continues upto the point of time when the object of the conspiracy has been achieved. State vs A Rahim 10 DLR 61.
Section 239-Infringement of section 239, clause (d) would constitute an illegality as distinguished from an irregularity. Abdur Rahim vs Abdul Jalil 10 DLR 61.
Section 239-Non-compliance with the provision of section 239 leads to illegality and cannot be cured under section 537. CrPC. Nur Din vs Crown 2 PCR 135(147 rt-hand. Col)..
Section 239-Alternative charges when persons are tried jointly the section permits the trial on alternative charges against any of the accused persons who are being jointly tried under section 239. Bashir vs Crown. 8 DLR (FC) 61; PLD 1956 (FC) 147.
Section 239-It cannot be laid down that where accuseds are being tried together under section 239 it is not possible to have an alternative charge against one of those accused persons. Bashir vs Crown 8 DLR (FC) 61; PLD 1956 (FC) 147.
Section 239-Joint trial not legal unless offences charged are committed in the same transaction. When a trial is held in a mode different from that laid down in the Code, it is bad and no question of prejudice arises. Md Mosaddar vs State 10 DLR (SC) 129.
Section 239-If two or more accused persons are to be jointly tried with regard to different offences of the same kind committed within a period of twelve months the accusation must be that all the offences were committed jointly by all of them. Nur Din vs Crown 2 PCR 135 (144 rt- hand. Col).
Section 239 Joint trials of different persons are allowed because they are accused of having committed the same or similar offence connected one with the other and if it were permissible to add against one of the accused persons charges which have no connection with the charge with respect to which all of them are being tried it is by no means unlikely that the case of those accused persons who are not tried for the additional charge will be prejudiced. A mode of trial which is likely to confuse any of the accused persons must as far as possible be avoided. Nur Din vs Crown 2 PCR 135 (145).
Section 239-Joint trial of a receiver of property looted in a dacoity along with persons
549
involved in the dacoity who were charged with dacoity with murder under section 396, PPC. Held: Trial valid. Ali vs Crown 6 DLR (WPC)
62.
Section 239-Joint trial of two persons- Each having received separate lots of property stolen in one theft-trial legal. Saidoo vs Crown PLD (Lah) 535.
Section 239-Joint trial not mandatory always and should not be resorted to when it is likely to embarrass the accused persons. This section gives a judicial discretion to the Court to try such cases jointly but the manner in which this discretion should be exercised must depend on the facts of each case. Where the case is of such a nature that the two accuseds should not be tried jointly, such joint trial should not be held. Lal Mohammad Sarder vs State 12 DLR 423; (1960) PLD (Dacca) 931.
Section 239 The section is an enabling section and the discretion rests with the Court whether it would, in a particular case, exercise that power of trying more than one person jointly even in cases which are covered by the said section. It is only reasonable to expect that if a Court finds that such a trial would prejudice either or any of the accuseds or embarrass them in any way, the discretion to so try jointly will not be exercised. Almas Ali Khan vs State 11 DLR 221: (1959) PLD (Dac) 750; (AIR) 1947 Mad. 524 rel 16 CWN 600 dissented).
Section 239-Joint trial of offences of persons-When can be held-Fundamental principle-The provisions of sections 235 and 239 vest a discretion in the Court to try offences of the kinds indicated therein jointly in circumstances therein mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. Where a joint trial is likely to embarrass an accused person or cause some serious hardship to the defence, the Court should not exercise this discretion.
Even though sections 235 and 239 give a discretion to the Court to try certain persons and for offences jointly, yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial. In a criminal trial, it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and any thing which is likely to cause any serious embarrass- ment to him in the conduct of his defence should be avoided.
Where joint trial is wrongly held, the trial is illegal irrespective of the question of prejudice. Noor Ahmed vs State 16 DLR (SC) 233.
Section 239-Joint trial of two persons where one of the accused was charged under section 409 and another under section 408, PPC and each was also charged alternatively under sections 408/109/ and 409/109 respectively.
Held: The charges in the present case were in the alternative; firstly, the appellant was charged under section 409, PPC and in the alternative for abetment under section 408 whereas accused Khaliq was charged substantively under section 408 and for abetment of an offence under section 409 and, therefore, the position was that the principal offender and the abettor had, on the basis of the accusation made, been tried together. This was permissible under the law. Almas Ali Khan vs State (1959) PLD (Dac) 750.
Section 239-Different offences by several persons, committed in course of the same tran- saction-all of them can be tried together under clause (b) of the section. A abetted B and C to murder X. Thereupon B and C murdered X and while murdering X also caused injuries to D and F. Question was while A was tried with B and C for an offence of murder, could he be tried along with D and F for offence under sections 323/34, PPC. which A did not abet.
Held: Such a trial is valid under section 239 (b)(d). Md Sajjad vs State 12 DLR (WP) 55; (1960) PLD (Lahore) 520.
Section 239 In case of joint trial com- pliance with the provisions of clause (d) manda- tory, the offence must be committed in the course of the same transaction In such a joint trial there is really no question of prejudice but the question is whether the law with regard to the mode of trial has been contravened.
If it has been contravened the trial is bad and no question of curing any irregularity arises.
On a charge which falls under clause (d) of section 239, it is necessary that the offences must be committed in the course of the same transac- tion. In order to determine whether the different offences arise out of the same transaction, one has to look to the proximity of time and place and community of purpose. Mawadin vs State 15 DLR (WP) 55.
Section 239-Eleven persons were charged under section 396, PPC for dacoity with murder and also alternatively charged under sections 302/120B, PPC, for entering into conspiracy to commit murder.
Held: The trial was vitiated by misjoinder of charges. Neither section 236 nor section 239 (d) of the Code justified such a joinder. Crown vs A Quddus 5 DLR $2.
Section 239 No nexus between possession of instruments of counterfeiting and possession of forged documents misjoinder of charges-Where there is no nexus between the possession of the instrument of counterfeiting and the possession of the forged documents as specified in the charges the trial of the accused in respect of both the charges, is a misjoinder of charges. Ashrafuddin Ahmed vs State 16 DLR (Dacca) 223
Section 239(b) Principal offender and the abettor cannot be tried together. Section 239 (b) does not permit the trial of a principal offender and a person accused of abetment unless the trial relates to only one offence and the misjoinder of charges and persons in a case of this type is not a mere irregularity but illegality.
Joint trial in respect of large number of counts is to be deprecated even though the law may not prohibit it for two reasons-(1) that the provision relating to misjoinder of charges and accusation is unfortunately very sparsely understood and (2) that this would eliminate the chances of any trial being eventually declared vitiated for misjoinder of charges of accused. State vs Mirza Azam Beg 16 DLR (WP) 127.
Section 239(b)- "Transferred by one offence"-Refers to original offence of theft stolen properties found in possession of various accuseds-Subject-matter of more than one theft clause (f) not attracted-Joint trial held illegal- Conviction quashed. Waryam vs Crown 1950 PLD (Lahore) 348.
Section 239(d) Usual criteria of deter- mining whether offences arise in the course of same transaction is to see whether they are connected with each other. State vs A Rahim 10 DLR 61.
Section 239(b) "Same transaction" Community of purpose of design and continuity of action are essential elements. 10 DLR (SC) 29
Section 239(b) Sameness of transaction must be established by direct or circumstantial evidence offence must have been committed by all the accused jointly within the period of 12 months. Nur Din vs Crown 2 PCR 135 (139).
Section 239 Question whether several acts or events constitute one transaction or not is a question of fact to be determined by reference to facts and circumstances in each case. SMK Alvi vs Crown. 5 DLR (FC) 161 (170 left-hand-Col).
Section 239 For the determination of the sameness of transaction within the meaning of section 239(d), it is the accusation that has to be looked at and not the result of the trial. G Muhammad vs Crown 16 DLR (WPC) 170.
Section 239 The point of time at which it falls to be determined whether different offences charged were committed in the course of the same transaction is the stage of accusation, and not the stage of conclusion of the trial. SMK Alvi vs Crown 5 DLR (FC) 161 (170 rt-hand Col.)
Section 239-In order to come to the conclusion that the two incidents, which took place at different times, were part of the same transaction, the 'Court must' have before it some evidence, direct or circumstantial, in support of it. Nur Din vs Crown 2 PCR 135.
Section 239 Sameness of transaction is to be determined by reference to initial accusation and not to subsequent charge-Five accuseds concerned in murder and seventeen including these five were concerned in causing injuries to prosecution witnesses after termination of first incident-joint trial not allowed by law. Md Khan vs Crown 1953 PLD (Lah.) 262.
Section 239-Same transaction Continuity of action Transaction being the same mere omission to mention certain connecting links, does not matter much-The facts are that the appellant No.1 who disposed of the objections case ex parte on 17-11-60, became annoyed with Maju Bibi (PW 1) when she approached him first to know as to why her case was not being taken up and, secondly, when she appeared before him with the review application. Although he fixed a date for hearing the review application, he whispered into the ears of his peshkar, appellant No. 2, who, in his turn, asked Maju Bibi to see the appellant No.1 at his residence that evening. When Maju Bibi went to the residence of appellant No.1 that evening, he demanded bribe from her not only for himself but for appellant No. 2 as well.
According to his direction, Maju Bibi gave bribe to appellant No.1 on 29-11-60 and gave Rs.10 as bribe to appellant No. 2 through the hand of her son on 30-11-60.
Held: Not only there was community of purpose or design and continuity of action between the appellant No.1 and appellant No. 2 but also that the third factor proximity of time and places is present in the instant case.
If there is sufficient and good evidence to show that the transaction was one and the same, then the mere absence of certain links in the accusations will not make the trial illegal. If at all it is a defect, it is curable, under section 537. Delwar Hossain vs State 16 DLR (Dac) 349.
Section 239-Trial in cases of different offences by different accuseds Clause (d) of section 239 of the Code of Criminal Procedure seems to be the appropriate provision of law applicable-in the instant case as clause (d) of section 239 of the Code provides that persons accused of an offence and persons accused of abetment may be charged and tried together. The petitioner Zaker Hossain was charged as the principal accused and the other persons as abettors.
According to their Lordships of the Privy Council, Babulal vs Emperor (AIR 1938 PC 130) the question of the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation and not by looking at the result of the trial. It is on the basis of what appears on the face of the accusation that the Court may proceed to charge and try. Md Abdul Latif vs State 29 DLR 157.
Section 239 If one person commits breach of trust-in respect of a certain amount and another amount during a period of one year, they must be charged separately. They may be tried in the same trial if permissible under section 239. A Salam Chowdhury vs Crown 4 DLR 80.
Section 239-Joinder of charges under sections 302 and 201 of Pakistan Penal Code, against two persons, illegal. The appellant as well as B, another accused, were both placed on their trial to answer two different charges.
The appellant was charged under section 302, PPC which reads, as follows:
"That you, on or about 10-9-55 at Guniak, committed murder by intentionally or knowingly causing the death of ...........
The other accused (who had been acquitted) was charged under section 201, PPC as follows: That you on or about 10th day of Sept., 1958 at Guniak knowing or having reason to believe that offence, to wit, murder punishable with death has been committed did cause certain evidence of the said offence to disappear............
Held: The offences alleged to have been committed by the two accuseds are unconnected with each other and are separate offences and, as such, they could not be tried together in the same trial. It makes no difference that the accused B has been acquitted. Chota Abu vs State 12 DLR 392; (1960) PLD (Dac) 918; 10 DLR 61 fol. 6 DLR 171; 7 DLR 572 ref.
Section 239-Misjoinder of charges- Validity of trial-In a case where it is found that the trial is vitiated by misjoinder, then in the eye of law there has been no valid trial and therefore an accused cannot be acquitted after setting aside conviction. State vs Constable Lal Mia 44 DLR (AD) 277.
Section 239-Joinder of charges Sameness of transaction-Circumstances which must bear on the determination whether certain acts or events constitute a single transaction in each individual case are proximity of time, proximity of place, continuity of action and community of purpose or design. Which factor or factors shall be given relative importance depends on the farte of each case. State vs Constable Lal Min 44 DLR (AD) 277.
Sections 239 & 537-Sameness of transac- tion Defect If there is good evidence that the transaction was one and the same, then mere absence of certain links in the accusation will not make the trial illegal. If at all it is a defect which is curable under section 537 CrPC. State vs Constable Lal Mia 44 DLR (AD) 277.
Section 239 The offences have been committed in course of the same transaction. Under such circumstances putting the accused persons on trial in eight cases separately would entail unnecessary harassment and there will be wastage of court's time as well. Under the provi- sion of section 239, CrPC a joint trial of several accused is permissible. Accordingly, a direction was given to the court below to consolidate the cases and to hold joint trial under section 239 of the Code. Moslaha Kamal Dayna vs State 6 BLC 511.
Section 239 Territorial jurisdiction-The place of trial or inquiry is regulated by section 173 to 183 and the provisions of subsequent Chapter XIX dealing with the joinder of charges and the provisions could not have been intended to nullify the effect of the earlier sections. Section 239 and the other sections preceding it in Chapter XIX do not deal with the question of territorial jurisdiction at all, and in fact proceed on the assumption that the Magistrate taking cognisance of the case would be the one having territorial jurisdiction in the matter. PLD 1962 Kar 499=PLR 1962(1) WP 636. Therefore a Magistrate cannot try persons for offences committed outside his jurisdiction, though otherwise the case may fall within the provisions of this section. AIR 1946 Sind 1+AIR 1959 Cal 500+AIR 1929 Mad 839.
Section 239 Joint complaint-A joint complaint by two or more persons is not contemplated by the Code and separate petitions or complaints should be filed under section 233 for each distinct offence of which any person is accused, and there should be separate charge for each offence. There is no provision in the said sections authorising two or more complainants to file a single complaint. Provisions like section 247 clearly indicate that a complaint could be filed by only one person. AIR 1962 Mad 443.
Section 239 There can be no question of misjoinder of charges where all offences are committed in the course of the same transaction. Afzal vs Feroza Peshkar, I BSCD 151.
Section 239-Usual criteria applied for determining whether offences arose out of the same transaction. In a charge of conspiracy, all manner of acts, whether or not they are done in pursuance of the conspiracy cannot come under clause (d) of section 239 CrPC Infringement of section 239(d) leads to an illegality and not mere irregularity. Fakku Meah vs State 10 DLR 26.
Section 239-Working days should be understood to mean actual working days during which the learned Judge holds the Court. Nurul Islam Monzoor vs State 53 DLR 59.
Section 239 There is no absolute direction to allow bail, even in case of failure to complete the trial within the statutory period, as the mandate, if any, for allowing bail is subjected by the words, unless for reasons to be recorded in writing, the Court otherwise directs. Nurul Islam Monzoor vs State 53 DLR 59.
Section 240-When no order on, a charge is made, the inference is one of acquittal-A charge can be either withdrawn or stayed under section 240. If it is not so withdrawn or stayed, the Magistrate is bound to pass judgment on each count and pass an order either of acquittal or conviction, as the case may be. It is not open to a Magistrate to pass an order on a charge framed against an accused person. The inference which would follow from not recording a conviction would be that the accused was found not guilty and was acquitted. Abul Mansur Rehman vs Crown 5 DLR 26.
Section 240-Appeal-Pending an appeal against conviction in one case, the Court cannot stay the trial of charges in respect of other cases. 9 Cri L Jour 495+1898 Rat 977.
Section 240-Withdrawal of appeal against acquittal-A person who brings an appeal with the leave of the Court from an order of acquittal of the respondent, does not have the right to abandon the appeal at his will as such a course is opposed to public policy and is unwarranted both by the rules and practice of the Court. PLD 1970 SC
224-22 DLR (SC) 263.
Section 240-Stage of withdrawal-A charge can be withdrawn only when conviction has been had on one of the charges. Where a person was charged under sections 302 and 201, PPC, but before the trial began the Public Prosecutor withdrew the charge under section 201, the withdrawal is not under this section, therefore a trial on a charge under section 201, Penal Code, could not be proceeded with under this section, when the conviction of the charge under section 302, Penal Code is set aside on appeal. 2 Cal L Jour 18.
Section 240-When all the charges have been tried and the accused found guilty, no withdrawal of any charge can be made. In such cases, if the Court considers a certain term of imprisonment adequate to meet the offence under each head, the practice is not to convict on one head and drop the others, but to convict on each head and pass concurrent sentences. 1886 Pat 288+1886 Rat 286.
Section 408-Where a partner receives partnership goods, he does not do so in a fiduciary capacity and, therefore, when he sells some quantity of jute of the partnership business which was made over to him to carry to some place and himself appropriated the price thereof, he cannot be convicted on a charge of criminal breach of trust under section 408. Abdul Gafur vs D Ahmed 3 DLR 449.
Section 408 Though it is permissible under section 408 to inflict sentence of fine simultaneously with the substantive sentence of imprisonment, ordinarily the double sentence should not be inflicted unless necessary in the interest of justice. Kismat Ali vs A Kader 4 DLR 36.
Section 408 The petition of complaint containing specific allegation against an employee of the Grameen Bank under section 408 of the Code should not be thrown away for legal defect giving opportunity to the offenda to go scot-free. The Magistrate shall send the petition of complaint to the Commission accordance with procedure laid down under Rules 13(3) of the Bidhimala to deal with in accordance with law. Shanik Chandra Barmen vs State 66 DLR 114
Section 408-Since violation of rule 4 by not sending the FIR to the Commission for investigation has been mandated as directory by the Appellate Division and since alleged commission of offence under section 408 of the Code, being a schedule offence has to be investigated by the Commission in view of section 20 of the Act as such, issuance of the order by the Investigating Officer of the Commission to appear before it to assist the investigation, is mandated as lawful. Saidul Haque Shamim (Md) vs Anti-Corruption Commission (Spl. Original) 19 BLC 201.
CHARGE
Charge-alteration
or amendment
The
Court may at any time alter or amend any charge during the trial under section
227 Cr.P.C. Hussain Mohammad Ershad Vs. The State, 14BLD(AD) 161
Charge-object
of
When
any section of any law is quoted at the time of framing of charge, the section
must be quoted in the language in which the law is framed. Habibur Rahman alias
Raju Vs. The State, 20BLD(HCD)177
Charge
A
charge is a formal accusation framed against the accused persons facing a
trial. The object of framing charge is to enable the accused to precisely know
the substantive they will have to meet at the trial. When evidence is admitted
on a distinctly different charge beyond the accusation, the accused are
prejudiced in their defence. Cr.P.C. S. 221
Kamala
and others Vs. The State, 15BLD(HCD)449
Charge
Proceedings
of pending cases of Martial Law Courts after withdrawal of Martial Law
Martial
Law Courts are extra- constitutional Tribunals and these do not leave behind
any legacy of continuation or succession after the lifting of Martial Law.
The
Divisional Special Judge was wrong in disposing of the case, which was sent to
him for disposal after withdrawal of Martial Law, on the basis of the evidence
recorded by the Summary Martial Law Court. Saidur Rahman Vs. The State, 16BLD
(HCD)294
Charge
Particulars
of Charge
A
charge is to contain particulars as to time, place and manner of the-occurrence
so that the accused can effectively meet the alle- gations brought against him.
Unless the charge contains particulars regarding the time, place and manner of
the occurrence the ac- cused is likely to be seriously prejudiced in his
defence. Section-222. Cr.P.C
AbdurRazzak
alias Geda Vs. The State, 16BLD(HCD)312
Charge
Conviction
without framing charge
Conviction
of the appellants under sec- tions 302/34 of the Penal Code without framing any
charge thereunder is clearly illegal-Cr.P.C. Ss. 221, 232(2)
Muslim
and others Vs. The State, 15 BLD(HCD) 298
Framing
Charge
Section
242 of the Code of Criminal Pro- cedure has given wide power to the trial Court
to frame a charge under a particular section of the Penal Code which can not be
interfered with by the revisional Court by way of giving direction for altering
the charge or framing the charge. Shariful Islam Vs. Md. Billal Hossain and the
State, 13 BLD (HCD)392
Framing
of charge
Under
section 241A of the Code the Magistrate will consider only the documents of the
prosecution submitted with the case record. Documents in support of the defence
may form part of the record after charge is framed and trial begins.
The
learned Additional Sessions Judge while exercising revisional jurisdiction was
wrong to find the charge groundless on con- sideration of the documents filed
for the first time before him in support of the defence case. The order of
discharge is illegal and the same is quashed Cr.P.C. Ss. 241A and 561A
Mahbuba
Akter and others Vs. Md. Mozemmel Hoque and others, 15BLD(HCD) 339
Framing
of charge
The
usual and well-settled principle of law is that a criminal proceeding can only
be quashed after cognizance has been taken and process issued thereupon. But
there may be a rare case where the High Court Division may be justified in
interfering even at the initial stage where the continuation of the proceeding
is barred under any law or the F.I.R. or the petition of complaint does not
disclose any offence Cr.P.C. Ss. 241A, 265C and 561A
Syed
Mohammad Hashem alias Hashem Vs. The State, 15BLD(AD)11
Framing
of charge
While
framing charge the trial Court is only to see if on the basis of the materials
on record a prima facie case to go for the trial has been made out against the
accused persons. Section-242 Cr.P.C
Mr.
Moudud Ahmed Vs. The State, 16BLD(AD)27
Framing
of charge--particular of a charge A charge must contain the particulars as to
the time and place of the alleged offence and these should be reasonably
sufficient to give the accused notice of the matters he will have to face at
the trial. In the instant case, no date or dates of the commission of the
alleged offence having been mentioned in the charge, it is to be held that the
provision of section 222 Cr.P.C. has not been complied with. NizamuddinDhali Vs
The State, 16BLD (HCD)580
Framing
of charge
While
taking cognizance of an offence under this Act the Bishesh Adalat will consider whether a prima facie case has been disclosed against the accused on
perusal of the FIR, the charge-sheet and other materials on record. After
hearing the prosecution and the accused the Bishesh Adalat will decide whether
to frame charges or to discharge the accused-Nari-O-ShishuNirjatan (Special
Provisions) Act, 1995(XVIII of 1995) Section-17
Md. Mohiuddin and others Vs. Md. Motiur Rahman and another, 17BLD(AD) 193
Framing of charge
Law
requires that the first and last dates of the charge of criminal breach of
trust or dishonest misappropriation of money shall not exceed one year. In the
present case the charge of misappropriation of money ex- tended over a period
of 2 years which vitiated the trial. The case was sent back on remand to the
trial Court for holding trial according to law-Cr.P.C., Section.222(2),
Proviso. Abdul Bari Molla Vs. The State, 17BLD (HCD) 223 Ref: 7 BLD 413; 39 DLR
184; 45 DLR 352 Cited
Framing of charge
The object of section 265C of the Code of Criminal Procedure is to enquire into the materials on record for prima facie satisfaction of the Court as to whether the accused should be discharged or proceeded against so that innocent persons may not be harassed on false and frivolous allegations.
If
on the other hand, if the Court finds that there is ground for presuming that
the accused has committed an offence it shall frame necessary charges against
him under section 265D of the Code. Khondker Maniruzzaman Vs. The State, 17 BLD
(HCD) 11
Framing of charge
Sections 265C and 265D Cr.P.C. are abridged substitution of the now repealed Chapter XVIII of the Code and these cast a duty upon the Sessions Judge to apply his judicial mind in considering the materials collected by the prosecution and placed on record in order to come to a decision whether charge should be framed against a particular accused or not. Jobaida Rashid Vs. The State, 17BLD (HCD) 366
Charge-sheet
Submission of charge sheet after expiry of specified and extended time
Further investigation having not been stopped by the Magistrate after the expiry of specified and extended time, the submission of a subsequent charge sheet can be treated as one as if on the basis of a fresh F.I.R. Investigation of a case being a matter of procedure and amendment of the law relating to investigation having retrospective effect, no vested right accrued to the accused petitioner from failure to complete investigation within the specified time. Kitab Ali Sikdar Vs. The State, 15BLD (HCD) 482 Ref: 45 DLR 610-Cited