Whether public prosecutor has duty to give fair idea regarding prosecution case to the trial court?

 POSITION OF LAW

15. Section 226 of the Code of Criminal Procedure corresponds to Sub-section (1) of the old Section 286 with verbal changes owing to the abolition of the jury. Section 286 of the 1898 Code reads as under:

286.(1) 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.

(2) The prosecutor shall then examine his witnesses.

Section 226 of the 1973 Code reads thus:

226. 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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 Code of Criminal Procedure, the answer would be that the Section 173(2) of the Code of Criminal Procedure report in the case would give a fair idea thereof, and that the stage of framing of charges Under Section 228 of the Code of Criminal Procedure is reached after crossing the stage of Section 227 of the Code of Criminal Procedure, which affords both the prosecution and Accused a fair opportunity to put forward their rival contentions.

20. Section 226 of the Code of Criminal Procedure, over a period of time has gone, in oblivion. Our understanding of the provision of Section 226 of the Code of Criminal Procedure 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1041 of 2022

Decided On: 26.07.2022

Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, Abhay Shreeniwas Oka and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/0920/2022.

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