In a sessions trial the framing of charge is the hinge on which the whole prosecution turns. It is the point at which the Court of Session, having heard the Public Prosecutor open the case and having considered the record committed to it, decides whether the accused walks free under the discharge power or must stand trial on a written accusation. Section 228 of the Code of Criminal Procedure, 1973, now re-enacted as Section 251 of the Bharatiya Nagarik Suraksha Sanhita, 2023, governs that decision. This chapter unpacks the statutory text, the standard of scrutiny the Judge must apply, and the long line of Supreme Court authority — from State of Bihar v. Ramesh Singh to Bhawna Bai v. Ghanshyam — that defines the threshold of “ground for presuming”.
Where the Charge Fits in the Sessions Trial Sequence
A trial before the Court of Session is a tightly sequenced affair, and framing of charge sits at a precise location in that sequence. The scheme runs through Sections 225 to 237 of the CrPC (re-enacted as Sections 248 to 260 BNSS). Section 225 CrPC (Section 248 BNSS) requires every sessions prosecution to be conducted by a Public Prosecutor. The trial then opens under Section 226 CrPC (Section 249 BNSS), where the prosecutor “opens the case” by describing the charge and stating the evidence by which he proposes to prove the guilt of the accused. Only after this opening does the Judge turn to the twin provisions that decide whether the case proceeds: Section 227 (discharge) and Section 228 (framing of charge).
The architecture is deliberately binary. Section 227 CrPC (Section 250 BNSS) empowers the Judge, upon consideration of the record and documents and after hearing both sides, to discharge the accused if he considers there is “not sufficient ground for proceeding”. If, and only if, the Judge declines to discharge, Section 228 CrPC (Section 251 BNSS) commands him to frame a charge. Discharge and charge are thus two faces of a single judicial determination made at the same stage. After charge, the trial moves to Section 229 CrPC (Section 252 BNSS), conviction on a plea of guilty, and then to Section 230 CrPC (Section 253 BNSS), where a date is fixed for the examination of prosecution witnesses. Understanding this flow is essential because the standard governing Section 228 is the mirror image of the standard governing Section 227. For the conceptual foundations of this stage, see our introduction to framing of charges.
The Statutory Text of Section 228 CrPC
Section 228 CrPC is short but carefully structured. It provides that if, after consideration and hearing under Section 227, the Judge is of opinion that there is “ground for presuming that the accused has committed an offence”, then two routes open up. Under clause (a), if the offence is not exclusively triable by the Court of Session, the Judge may frame a charge and transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class, who shall then try the offence as a warrant case instituted on a police report. Under clause (b), if the offence is exclusively triable by the Court of Session, the Judge shall frame in writing a charge against the accused.
Sub-section (2) of Section 228 then requires that where a charge is framed under clause (b), it shall be read and explained to the accused, who shall be asked whether he pleads guilty of the offence charged or claims to be tried. Two textual signals deserve attention. First, the word in clause (b) is “shall” — once the Judge forms the requisite opinion, framing is mandatory, not discretionary. Second, the operative threshold is “ground for presuming”, a phrase the courts have read against Section 4 of the Evidence Act and which sets a standard considerably lower than proof. The careful student should read this provision alongside the requirements on the form and contents of a charge, which govern how the written charge under clause (b) must actually be drawn up.
Section 251 BNSS and the New Sixty-Day Rule
The Bharatiya Nagarik Suraksha Sanhita, 2023, re-enacts Section 228 as Section 251, preserving the substance but adding a significant procedural innovation. Section 251(1)(a) BNSS retains the power to frame a charge and transfer a non-exclusively-triable offence to a Magistrate. Section 251(1)(b) BNSS retains the mandate to frame a written charge for an exclusively-triable offence, but now adds the words “within a period of sixty days from the date of first hearing on charge”. Section 251(2) BNSS, like its predecessor, requires that the charge be read and explained to the accused — with the modern addition that the accused may be present physically or through audio-video electronic means.
This sixty-day timeline is part of a broader BNSS push to compress timelines and curb the chronic delays that plagued sessions trials under the old Code. It pairs with Section 250 BNSS (discharge), under which an accused may move a discharge application within sixty days from the date of commitment of the case. The legislative intention is unmistakable: the charge-or-discharge decision must be taken promptly, not allowed to drift for years while an accused remains under the shadow of an un-particularised accusation. For aspirants writing on the comparative scheme, the key takeaway is that the substantive test for framing — “ground for presuming” — is identical under both statutes; only the temporal discipline is new. The settled case law on Section 228, therefore, continues to govern the interpretation of Section 251.
“Ground for Presuming”: The Governing Threshold
The phrase “ground for presuming that the accused has committed an offence” is the doctrinal heart of Section 228. It is not the same as proof, nor even prima facie proof in the trial sense; it is a presumption-level standard. The locus classicus is State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, where the Supreme Court explained that at the initial stage the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged, and no weight is to be attached to the probable defence of the accused. The Court held that if there is “strong suspicion” leading the Court to think that there is ground for presuming the accused committed the offence, it is not open to the Court to say there is no sufficient ground for proceeding.
The corollary, also stated in Ramesh Singh, is that strong suspicion at the charge stage is enough to frame a charge, but if it remains in the region of suspicion at the close of trial it cannot take the place of proof of guilt. The standard at framing is thus consciously calibrated to be lower than the standard for conviction. This dual standard is the single most examined proposition in this area, and it links directly to the object of the charge as notice to the accused — the accusation is provisional, framed on suspicion, and is to be proved or disproved at trial.
The Grave-Suspicion Test: Prafulla Kumar Samal
If Ramesh Singh set the threshold, Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, refined it into the test most often cited in framing-of-charge litigation. Justice Fazal Ali distilled the position into four propositions. First, the Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Second, where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court is fully justified in framing a charge and proceeding with the trial. Third, the test depends on the facts of each case and no universal rule can be laid down. Fourth, and crucially, if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion, he is within his rights to discharge the accused.
The distinction between “suspicion” and “grave suspicion” is therefore decisive. Mere suspicion warrants discharge; grave suspicion warrants charge. This is the line a Sessions Judge must walk under Section 228 / Section 251. The power to “sift and weigh” is real but limited — the Judge is not to conduct a mini-trial, but neither is he a rubber stamp for the charge-sheet. Prafulla Kumar Samal remains the most reliable shorthand for the entire enquiry, and almost every later decision — including Sajjan Kumar v. CBI and P. Vijayan v. State of Kerala — expressly adopts its formulation.
Sifting Evidence Without Conducting a Mini-Trial
The recurring tension at the charge stage is between the Judge’s duty to act as a filter and the prohibition on pre-judging the case. Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394, captured this balance. The Court reiterated that at the initial stage, if there is a strong suspicion leading the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding. But it added the safeguard from Prafulla Kumar Samal: where two views are equally possible and the evidence gives rise to suspicion only, as distinguished from grave suspicion, the Judge is entitled to discharge.
In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76, the Supreme Court framed the enquiry differently but to the same end: at the stage of Sections 227 and 228, the Court must evaluate the material and documents on record to find out whether the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence. The phrase “taken at their face value” is the key — the Judge assumes the prosecution material to be true and then asks whether, on that assumption, the ingredients of the offence are present. If even on that generous assumption the ingredients are missing, discharge follows. This is why precise pleading of the particulars of the offence matters so much: the Judge tests the committal record against each statutory ingredient.
Probative Value Is Not to Be Weighed at This Stage
A closely related and heavily examined proposition is that the probative value of the prosecution material is not to be assessed when framing charge. In Soma Chakravarty v. State (CBI), (2007) 5 SCC 403, the Supreme Court held that at the stage of framing of a charge the probative value of the materials on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. If, on the basis of that material, the court could come to the conclusion that the commission of the offence is a probable consequence, a case for framing of charge exists. The Court drew a fine but important distinction: to frame a charge it is enough that the court thinks the accused might have committed the offence, whereas for conviction the conclusion must be that the accused has committed it.
This restraint on assessing probative value is what keeps the charge stage from collapsing into a full trial. The credibility of witnesses, contradictions in statements, and the fairness of the investigation are all matters reserved for trial, not for the framing stage — a point reaffirmed in Sajjan Kumar v. CBI, (2010) 9 SCC 368. The Judge accepts the material as true, asks whether it raises grave suspicion against the accused, and frames or declines accordingly. The exercise is one of legal sufficiency, not factual proof.
Sajjan Kumar v. CBI: The Consolidated Principles
For a single authority that gathers the entire law on framing and discharge, Sajjan Kumar v. CBI, (2010) 9 SCC 368, is the most useful. The Supreme Court synthesised the earlier decisions into a working set of principles. The Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case is made out. Where the material discloses grave suspicion not properly explained, the Court is justified in framing a charge. The Court is not to act as a mere post office or mouthpiece of the prosecution, but must consider the broad probabilities, the total effect of the evidence and the documents produced, and any basic infirmities appearing in the case.
At the same time, the Court must not undertake a roving enquiry into the pros and cons of the matter or weigh the evidence as if conducting a trial. Sajjan Kumar thus stands as the definitive consolidation: it neither lowers the bar to a rubber stamp nor raises it to a mini-trial. For an examinee, citing Sajjan Kumar alongside Prafulla Kumar Samal covers virtually the entire doctrinal field on the standard of scrutiny under Section 228 / Section 251.
P. Vijayan: Discharge as a Gatekeeping Function
Because Sections 227 and 228 are two outcomes of one enquiry, the discharge cases illuminate the framing standard. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, the Supreme Court explained the gatekeeping character of the discharge power. If on consideration of the record and the documents the Judge finds that the materials, taken at face value, disclose the existence of all the ingredients constituting the alleged offence, he must frame the charge; if not, he must discharge. The Court emphasised that the words “not sufficient ground for proceeding against the accused” in Section 227 clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise a judicial mind.
The case affirms that the filter under Section 227 is meant to prevent harassment of an accused by a baseless prosecution. Yet P. Vijayan also makes clear that once a prima facie case appears on the face of the material, the Judge has no option but to frame charge — the discretion is to discharge only where grave suspicion is absent. The decision is a useful bridge between the discharge and charge limbs and is frequently paired with Prafulla Kumar Samal in answer scripts.
Dipakbhai Patel: Material Must Be Translatable Into Evidence
A more recent and nuanced decision is Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547. The accused there was charged under Sections 489-B and 489-C IPC largely on the basis of statements of co-accused. The Supreme Court reaffirmed that at the stage of framing the charge the Court must sift the material produced and relied on by the prosecution, but the sifting is not meticulous in the sense of donning the mantle of a trial Judge after a full trial. All that is required is that the Court be satisfied that, on the materials available, a case is made out for the accused to stand trial.
The significant refinement in Dipakbhai Patel is the insistence that the “strong suspicion” must rest on materials capable of being “translated into evidence” at the trial. A mere statement of a co-accused, which may be legally inadmissible or of negligible evidentiary worth, cannot by itself supply the ground for presuming guilt. The Court therefore set aside the framing of charge on the facts. The lesson is that the charge stage, though not a trial, is not divorced from evidentiary reality: the material accepted as true must be material that the law would permit to be used as evidence. This connects to the requirement of precisely pleading the manner in which the offence was committed, since vague or inadmissible material cannot supply the ingredients.
Amit Kapoor: Framing, Quashing and the Outer Limits
The interaction between the framing power and the High Court’s revisional and inherent jurisdiction was authoritatively settled in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460. The Supreme Court reiterated that the expression “ground for presuming that the accused has committed an offence” in Section 228 deliberately uses a presumption-level standard, and that no meticulous examination of the evidence is needed for considering whether the case would end in conviction. The Court laid down a consolidated set of principles governing when a charge may be quashed, stressing that the inherent and revisional powers should be exercised sparingly and only where the charge is groundless or the material does not disclose the ingredients of the offence even taken at face value.
The practical importance of Amit Kapoor is that it marks the outer boundary of interference. A Sessions Judge who frames a charge on grave suspicion, having applied his mind to the committal record, is not lightly to be overruled. The High Court is not to re-weigh evidence; it intervenes only where continuance of the proceedings would be a manifest abuse of process or where no offence is disclosed. Amit Kapoor therefore completes the picture: it tells us not only how a charge is framed but how resistant a properly framed charge is to challenge.
Do Reasons Have to Be Recorded? The Bhawna Bai Position
A frequently litigated practical question is whether a Sessions Judge must record detailed reasons while framing a charge. The answer was given clearly in Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217. The Supreme Court held that for framing charges under Section 228 CrPC the Judge is not required to record detailed reasons; at the stage of framing the charge the court is not required to hold an elaborate enquiry, and only a prima facie case is to be seen. Whether the case is beyond reasonable doubt is not to be examined at that stage; a strict standard of proof is not required.
This must be read together with the discharge limb, where the position is the opposite: Section 227 expressly requires the Judge to record his reasons for discharging. The asymmetry is deliberate. An order of discharge ends the prosecution and therefore demands a speaking order; an order framing charge merely sends the matter to trial, where the accused gets a full opportunity, and therefore does not demand elaborate reasons. Bhawna Bai nonetheless requires application of judicial mind — the Judge must be satisfied on the record that a prima facie case exists. The order need not be elaborate, but it cannot be mechanical. This distinction is a favourite of examiners and should be stated crisply: reasons mandatory for discharge, not for charge.
Alteration and Addition of Charge After Framing
Framing under Section 228 / Section 251 is not the end of the story; the charge remains a living document. Section 216 CrPC (Section 239 BNSS) empowers the court to alter or add to any charge at any time before judgment is pronounced, and requires that every such alteration or addition be read and explained to the accused. This power exists precisely because the charge is framed on suspicion at an early stage, when the evidence is not yet fully unfolded; as the trial develops, the contours of the accusation may need adjustment. The court may also invoke Section 319 CrPC (Section 358 BNSS) to summon a person not originally arraigned, as explained in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, where the Constitution Bench held that this power may be exercised at any time after the charge-sheet is filed and before pronouncement of judgment.
The guiding principle on alteration is that no prejudice should be caused to the accused. Where alteration is likely to prejudice the accused or the prosecutor, Sections 217 and 218 CrPC provide for recall of witnesses and, in appropriate cases, a fresh trial. For the student, the point to internalise is that the “ground for presuming” threshold governs the initial framing, but the charge thereafter remains subject to judicial revision throughout the trial, always subject to the overriding requirement of a fair opportunity to the accused. The full menu of framing principles, including the special rules for specifying the thing stolen, cheated or misappropriated, is collected in the framing of charges hub.
Exam Strategy and Common Pitfalls
For judiciary and CLAT-PG aspirants, a few points repay careful memorisation. First, fix the section mapping cold: Section 226 CrPC = Section 249 BNSS (opening); Section 227 = Section 250 (discharge); Section 228 = Section 251 (framing); Section 229 = Section 252 (plea of guilty); Section 230 = Section 253 (date for prosecution evidence). Second, state the standard precisely — “ground for presuming” equals grave suspicion, which is more than mere suspicion but far less than proof beyond reasonable doubt. Cite Prafulla Kumar Samal and Sajjan Kumar together for full marks.
Third, do not confuse the reasoning requirements: reasons are mandatory for discharge under Section 227 but not for framing charge under Section 228, per Bhawna Bai v. Ghanshyam. Fourth, remember that probative value is not weighed at this stage (Soma Chakravarty), yet the material must be capable of translation into evidence (Dipakbhai Patel) — these are complementary, not contradictory. Finally, flag the BNSS innovation: the new sixty-day timeline for framing under Section 251(1)(b), counted from the first hearing on charge. A clean answer states the text, the threshold, the leading cases, the reasons-asymmetry and the BNSS timeline — in that order.
Frequently asked questions
What is the difference between Section 228 CrPC and Section 251 BNSS?
Both deal with framing of charge in a sessions trial and use the identical threshold of “ground for presuming that the accused has committed an offence”. The substantive test is unchanged. The key innovation in Section 251 BNSS is that, for an offence exclusively triable by the Court of Session, the written charge must be framed within sixty days from the date of first hearing on charge. Section 251(2) BNSS also permits the accused to be present physically or through audio-video electronic means when the charge is read and explained.
What standard does a Sessions Judge apply when framing a charge?
The Judge applies the “grave suspicion” standard, not proof. Under Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, the Judge may sift and weigh the evidence only to find whether a prima facie case exists; grave suspicion not properly explained justifies a charge, but mere suspicion warrants discharge. State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, adds that the truth and effect of the prosecution evidence are not to be meticulously judged at this stage and the probable defence is not to be weighed.
Can a Sessions Judge assess the probative value of evidence while framing charge?
No. In Soma Chakravarty v. State (CBI), (2007) 5 SCC 403, the Supreme Court held that the probative value of the materials cannot be gone into at the framing stage; the prosecution material must be accepted as true. If, on that footing, the commission of the offence appears a probable consequence, a charge must be framed. Questions of witness credibility and contradictions are reserved for trial, as reaffirmed in Sajjan Kumar v. CBI, (2010) 9 SCC 368.
Must a Judge record reasons when framing a charge?
No. Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217, held that detailed reasons need not be recorded while framing a charge under Section 228 CrPC; only a prima facie case is to be seen and no elaborate enquiry is required. This contrasts with discharge under Section 227, where the Judge is expressly required to record reasons. The framing order must still reflect application of judicial mind, but it need not be elaborate.
What happens if the offence is not exclusively triable by the Court of Session?
Under Section 228(1)(a) CrPC (Section 251(1)(a) BNSS), if the offence is not exclusively triable by the Court of Session, the Judge may frame a charge and transfer the case to the Chief Judicial Magistrate or another Judicial Magistrate of the first class, who then tries it as a warrant case instituted on a police report. Only where the offence is exclusively triable by the Court of Session is the Sessions Judge bound under clause (b) to frame the charge himself and proceed with the sessions trial.
Can a charge be altered after it is framed in a sessions trial?
Yes. Section 216 CrPC (Section 239 BNSS) allows the court to alter or add to any charge at any time before judgment, with the altered charge read and explained to the accused and subject to the safeguards in Sections 217 and 218 against prejudice. A person not originally charged may also be summoned under Section 319 CrPC (Section 358 BNSS); in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, the Constitution Bench held this power runs from filing of the charge-sheet until pronouncement of judgment.