Justice P. Devasass observed that it will be against the spirit of Criminal law to direct the defence counsel to file a draft charge because he is constitutionally (See Article 22(1), Constitution of India) bound to defend the accused and not offend him.
I have not heard of a defence counsel filing a draft charge. No defence counsel will come forward to do so. However, there is no harm in the prosecution indicating the charges to be framed. But, it cannot be a draft charge, it should not be a draft charge.
the Court said.
It is brought to the notice of the Court that in criminal cases filing of draft charges is being insisted upon by the trial Courts.
While disposing the Criminal Petitions the Court further pointed out that asking a Public Prosecutor to file draft charge is like asking the counsels in a civil case to file draft issues.
A Court should not ask it. It cannot delegate its judicial function to them.
The benefit of a Court itself framing the charges or learned a Civil Judge himself framing the issues is that the Court will get grip of the case/ matter.
The Court will get educated. The Court will put both the Prosecutor and the defence counsel on the right path. The Court’s attention would be focussed on the work to be done.
Chapter XVII of the Code commencing from Section 211 to 223 deals with the content of the charge and matters connected thereto.
Framing of charges in a criminal trial is a judicial function. It is to be performed by the Court.
If one look at the phraseology employed in Sections 239-240, 227-228, 245-246 Cr.P.C, the guidance is provided in the Section itself.
Further, reasonable opportunity should be provided to both sides before framing the charges. Thus, hearing before framing charges is contemplated.
Even if the defence has not filed any discharge petition, before framing the charges the Trial Court is bound to hear both sides.
The hearing contemplated in the said Section enables the Court to get assistance from both sides.