Framing Charges Under Section 193 IPC Without Following Section 340 CrPC is Illegal: Calcutta High Court

In a significant ruling Calcutta High Court quashed the charge of fabricating false evidence under Section 193 IPC against police officials accused of custodial violence but upheld the murder charge under Section 302 IPC. The case, Subhajit Banerjee v. State of West Bengal and Bikash Biswas v. State of West Bengal (C.R.R. 1486 of 2024 & C.R.R. 1576 of 2024), arose from the alleged custodial death of Bhushan Deshmukh in 2015.

While striking down the charge under Section 193 IPC, Justice Suvra Ghosh held: "The learned trial court has erred in framing charge against the petitioners under Section 193 IPC without compliance with Section 340 CrPC. Cognizance of an offense under Section 193 IPC cannot be taken unless the procedure under Section 340 CrPC is followed."

However, the High Court found no illegality in framing a murder charge under Section 302 IPC, despite the fact that the sanction for prosecution and the charge sheet were under Section 304 IPC.

"The trial court has the prerogative to frame charges based on the material available. The mere fact that sanction was granted under Section 304 IPC does not preclude the framing of a charge under Section 302 IPC if sufficient grounds exist," the court observed.

Custodial Death Sparks Criminal Proceedings Against Police Officials

The case stemmed from the death of Bhushan Deshmukh, who was in police custody at Burtolla Police Station on September 20, 2015. Deshmukh, arrested under the Arms Act, was allegedly assaulted in custody before being shifted to a hospital, where he was declared dead. A magisterial inquest and postmortem examination led to a fresh complaint (Burtolla Police Station Case No. 327 of 2015) against several police officials, including the petitioners.

After an investigation, a charge sheet was filed under Sections 167, 193, 323, 348, 409, 304, and 34 IPC, but when the case reached the Chief Judge, City Sessions Court, Calcutta, on February 28, 2024, the trial court framed charges under Sections 323, 348, 302, 167, 193, 409, and 34 IPC—including the more severe charge of murder under Section 302 IPC.

Challenging this order, the petitioners moved the Calcutta High Court under Article 227 of the Constitution, arguing that the trial court had exceeded its jurisdiction in framing certain charges.

"Charge Under Section 193 IPC is Unlawful Without Compliance with Section 340 CrPC"
One of the primary issues before the High Court was whether the trial court could frame charges under Section 193 IPC without adhering to the mandatory procedure laid down in Section 340 CrPC. The petitioners argued that under Section 195(1)(b)(i) CrPC, no court can take cognizance of an offense under Section 193 IPC unless a judicial inquiry is conducted and a complaint is filed by the court itself.

The High Court agreed, citing the Supreme Court’s ruling in M.S. Ahlawat v. State of Haryana (2000 SCC (Cri) 193), which held: "Before a person is prosecuted for an offense under Section 193 IPC, the procedure under Section 340 CrPC must be strictly followed. The bar under Section 195 CrPC cannot be circumvented."

The court noted that the alleged fabrication of evidence took place in connection with an earlier police case (Burtolla Police Station Case No. 319/2015) and not in a judicial proceeding. Therefore, the bar under Section 195 CrPC was applicable, and the trial court had no authority to frame a charge under Section 193 IPC without first conducting an inquiry under Section 340 CrPC.

"The trial court's failure to adhere to the statutory mandate renders the charge under Section 193 IPC unsustainable. It is accordingly quashed," ruled the High Court.

"Sanction Under Section 304 IPC Does Not Bar the Court From Framing Charge Under Section 302 IPC"

Another major contention raised by the petitioners was that the charge sheet was filed under Section 304 IPC, and the sanction for prosecution was also granted under Section 304 IPC, yet the trial court framed a charge under Section 302 IPC. The petitioners argued that this was legally impermissible.

Rejecting this argument, the High Court observed: "Merely because sanction for prosecution was granted under a particular section does not mean the trial court is bound to frame charges under that section alone. If prima facie material exists, the court has full discretion to frame a charge under any appropriate provision."

The court found that the case diary and available material indicated a prima facie case for murder and that the trial court had acted within its jurisdiction in framing a charge under Section 302 IPC.

"The learned trial court appears to have arrived at its conclusion after considering the entire material before it. The framing of charge under Section 302 IPC cannot be vitiated merely on the ground that sanction was accorded for prosecution under Section 304 IPC," the judgment stated.

"Failure to Record Prosecution’s Opening Under Section 226 CrPC Does Not Vitiate Charge Framing"

The petitioners also challenged the framing of charges on the ground that the prosecution did not formally open its case under Section 226 CrPC before the trial court. Section 226 mandates that the prosecutor must describe the charges against the accused and explain the evidence they intend to rely upon.

While acknowledging that the trial court’s order did not explicitly record the prosecution’s submissions, the High Court held that this omission did not invalidate the charge-framing process.

"The mere absence of a detailed record of the prosecution's submissions does not vitiate the charge-framing process, especially when the trial court has considered the case diary and material on record," the court observed.

After reviewing the entire record, the High Court passed the following ruling:

•    The charge under Section 193 IPC is set aside due to non-compliance with Section 340 CrPC.
•    The charges under Sections 302, 323, 348, 167, 409, and 34 IPC remain, and the trial will proceed accordingly.
•    The petitioners' request for discharge under Section 227 CrPC is rejected, as there is sufficient prima facie evidence warranting trial.
•    The petitioners had been provided CCTV footage under Section 207 CrPC, and they never requested it to be played in open court.
Concluding the judgment, the High Court observed:

"Prima facie material for framing charges against the petitioners having been found, the allegations need to be substantiated through trial. The question of exonerating them at this stage does not arise."

This ruling is significant for two reasons. First, it reaffirms that courts cannot take cognizance of false evidence-related offenses without complying with Section 340 CrPC. Second, it clarifies that a trial court is not bound by the prosecution’s charge sheet or sanction order when framing charges—if evidence supports a more serious offense, the court has the authority to frame an appropriate charge.

By quashing the charge under Section 193 IPC but upholding the murder charge under Section 302 IPC, the Calcutta High Court struck a balance between procedural safeguards and ensuring accountability in cases of custodial violence.

Date of Decision: February 14, 2025