Section 226 CrPC - Public Prosecutor Owes A Duty To Give A Fair idea Regarding Prosecution Case To Trial Court: Supreme Court

The Supreme Court observed that before a Trial Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.Section 226 CrPC permits the prosecution to make the first impression regards a case, one which might be difficult to dispel, the bench comprising Justices AM Khanwilkar, Abhay S Oka and JB Pardiwala observed. The court observed thus in a judgment allowing an appeal against the Jammu and Kashmir High Court which had upheld upheld a Trial Court order discharging the accused from the offence of murder on the ground that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure".The court, to examine the correctness of the order discharging the accused from murder charges, referred to Sections 226-228 of the Code of Criminal Procedure. At the outset, it noted that Section 226 CrPC corresponds to sub section (1) of the old Section 286 with verbal changes owing to the abolition of the jury. The old Section 286 provided that, in a case triable by jury, when the jurors have been in chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by reading from the Indian Penal or other law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused.The present Section 226 deals with opening case for prosecution: When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."Section 226 of the CrPC permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the CrPC, the prosecution would be doing itself a disfavour. If the accused is to contend that the case against him has not been explained owing to the non compliance with Section 226 of the CrPC, the answer would be that the Section 173(2) of the CrPC report in the case would give a fair idea thereof, and that the stage of framing of charges under Section 228 of the CrPC is reached after crossing the stage of Section 227 of the CrPC, which affords both the prosecution and accused a fair opportunity to put forward their rival contentions.', the bench said.The court further noted that Section 226 CrPC, 'over a period of time has gone, in oblivion'. "Our understanding of the provision of Section 226 of the CrPC is that before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.", the bench observed.Case detailsGhulam Hassan Beigh vs Mohammad Maqbool Magrey | 2022 LiveLaw (SC) 631 | SLP(Crl) 4599 OF 2021 | 26 July 2022 | Justices AM Khanwilkar, Abhay S Oka and JB Pardiwala HeadnotesCode of Criminal Procedure, 1973 ; Section 227-228 - Cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure" - Whether Trial Court could have discharged the accused from offence of murder - At the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record - Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. (Para 31)Criminal Trial - Post Mortem Report - The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence - It can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872 (Para 29)Code of Criminal Procedure, 1973 ; Section 45 - Expert Witness - A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the...

Section 226 CrPC - Public Prosecutor Owes A Duty To Give A Fair idea Regarding Prosecution Case To Trial Court: Supreme Court

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