SANGRAMSINH S/O RAKESHSINH DALELSINH SIKARWAR vs STATE OF GUJARAT
- Court
- Gujarat High Court
R/CR.RA/1949/2026 JUDGMENT DATED: 13/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1949 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
✓
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SANGRAMSINH S/O RAKESHSINH DALELSINH SIKARWAR
Versus
STATE OF GUJARAT
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Appearance:
MR CHETAN K PANDYA(1973) for the Applicant(s) No. 1
MR SOAHAM M JOSHI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/07/2026
ORAL JUDGMENT
1. Rule. Learned APP waives service of rule for the
respondent-State.
2. The applicant is original accused No.1 in Sessions
Case No. 9 of 2026 and is an under-trial prisoner since
10.09.2025. An FIR No.11191024251 registered at Ramol
Police Station, Ahmedabad on 10.09.2025 for the offences
under Sections 140(2), 296(b), 115(2), 351(3) and 61(2) of the
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Bharatiya Nyaya Sanhita, 2023 and Section 135 of the Gujarat
Police Act was filed against the applicant and four others and
after investigation, the charge-sheet came to be filed before
the Court of the Chief Judicial Magistrate, Ahmedabad City.
As the Additional Chief Judicial Magistrate did not have the
jurisdiction to try the case the case was committed to the City
Sessions Court, Ahmedabad and came to be registered as
Sessions Case No.9 of 2026. The applicant has been arrested
on 10.09.2025 and is in custody since then. The learned
Additional Sessions Judge Court No.7, City Civil and Sessions
Court, Ahmedabad was pleased to frame a charge at Exh.27
against the applicant and five others on 12.05.2026 and the
applicant has inter alia has filed the present application
challenging the framing of charge mainly on the ground that
the mandatory requirement of Section 249 of the Bharatiya
Nagarik Suraksha Sanhita (herein after referred to as
B.N.S.S.) has not been followed by the learned Trial Court
prior to framing of the charge.
3. Heard learned advocate Mr. Chetan K. Pandya for
the applicant and learned Additional Public Prosecutor Mr.
Soaham M. Joshi for the respondent - State.
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4. Learned advocate Mr. Chetan K. Pandya for the
applicant submits that the learned Trial Court has to follow
the mandatory provisions regarding the trial before a Court of
Sessions as mentioned in Chapter-XIX of the B.N.S.S., but the
same has not been followed and if the Rojkam is perused, on
12.05.2026, i.e. the date on which the charge was made, the
applicant was in judicial custody and was not well and was not
kept present physically or through video conferencing before
the learned Trial Court. Moreover, the accused No.2 was
absconding and was not present before the learned Trial
Court. In spite of that, the charge at Exh.27 was framed
against all the accused and the signature of the applicant was
taken on a blank piece of paper and a copy of the same is
produced, wherein the applicant has requested for time, but
without considering the same and without following the
procedure for opening of the case for prosecution by hearing
the learned APP, the charge has been framed in the absence
of the applicant as well as the absconded - accused No.2.
Learned advocate further submits that prior to framing of the
charge, the record of the case and documents had to be taken
into consideration and the learned Trial Court could not have
bypassed the statutory procedure under Sections 249, 250
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and 251 B.N.S.S. and directly proceeded to frame the charge.
The applicant was in judicial custody on 12.05.2026 and was
not present before the Court either physically or through
video conferencing and his non-production before the learned
Trial Court was not attributable to him. Moreover, the
accused No.2 was absconding and mechanically a charge
could not be framed against the accused who were not
present before the Court without following the procedure
prescribed for them. Learned advocate submits that the
charge framed pursuant thereto is required to be set aside
and the matter must be remanded to the learned Trial Court
for proceeding afresh from this stage as contemplated under
Section 249 of the B.N.S.S.
4.1 Learned advocate Mr. Chetan K. Pandya for the
applicant has relied on the order passed by this Court in the
case of Manishaben Gajjugiri Goswami Vs. State of
Gujarat in Criminal Revision Application No.245 of 2021
and the order passed in Ashok Shambhubhai Chovatiya Vs.
State of Gujarat in Criminal Revision Application
No.1535 of 2019 .
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5. Learned Additional Public Prosecutor Mr. Soaham
M. Joshi has fairly submitted that the Rojkam does not reflect
that the procedure as contemplated under Section 249 of the
B.N.S.S. has been followed by the learned Trial Court and
necessary orders may be passed by the this Court.
6. Before examining the legality of the procedure
adopted by the learned Trial Court, it would be apposite to
refer to the statutory scheme governing trials before the
Court of Sessions which are contained in Sections 249, 250
and 251 of Chapter-XIX of the B.N.S.S.
Section 249 of the B.N.S.S. reads as under:
“When the accused appears or is brought before the Court,
in pursuance of a commitment of the case under section 232,
or under any other law for the time being in force, 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 250 of the B.N.S.S. reads as under:
“(1) The accused may prefer an application for discharge
within a period of sixty days from the date of commitment of
the case under section 232.
(2) If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.”
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Section 251 of the B.N.S.S. reads as under:
“(1) If, after such consideration and hearing as aforesaid, the
Judge is of opinion that there is ground for presuming that
the accused has committed an offence which
(a) is not exclusively triable by the Court of Session, he may,
frame a charge against the accused and, by order, transfer
the case for trial to the Chief Judicial Magistrate, or any
other Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial Magistrate, or
the Judicial Magistrate of the first class, on such date as he
deems fit, and thereupon such Magistrate shall try the
offence in accordance with the procedure for the trial of
warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused within a period of sixty
days from the date of first hearing on charge.
(2) Where the Judge frames any charge under clause (b) of
sub-section (1), the charge shall be read and explained to the
accused present either physically or through audio-video
electronic means and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried.”
7. The statutory sequence contemplated by Chapter-
XIX of the B.N.S.S. is clear and unambiguous and the stages
contemplated under Sections 249, 250 and 251 are not
isolated or independent stages which may be rearranged
according to convenience. They constitute a sequential
statutory procedure governing the commencement of a trial
before a Session Court. The prosecution is first required to
open its case in terms of Section 249 and thereafter, the Court
is required to consider the record of the case and documents
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submitted therewith and hear the submissions of the
prosecution and the accused.
8. Upon such consideration, the Court is required to
decide whether the accused deserves to be discharged under
Section 250 or whether the charge deserves to be framed
under Section 251 of the B.N.S.S. Section 249 of the B.N.S.S.
is not an empty formality and the opening of the prosecution
case and the opening of the case for prosecution serves a
definite statutory purpose. It enables the Court to understand
the nature of the accusation, the factual foundation of the
prosecution case and the evidence by which the prosecution
proposes to establish the guilt of the accused. The procedure
contemplated under Section 249 facilitates meaningful
consideration by the Court at the stages of Sections 250 and
251 of the B.N.S.S.
9. In State of Bihar Vs. Ramesh Singh , reported in
(1977) 4 Supreme Court Cases 39: 1977 Supreme Court
Cases (Cri) 533: 1977 SCC OnLine SC 233, the Hon’ble
Supreme Court in Para-4 has observed as under:
4. Under Section 226 of the Code while opening the
case for the prosecution the Prosecutor has got to
describe the charge against the accused and state by what
evidence he proposes to prove the guilt of the accused.
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Thereafter comes at the initial stage the duty of the Court
to consider the record of the case and the documents
submitted therewith and to hear the submissions of the
accused and the prosecution in that behalf. The Judge has
to pass thereafter an order either under Section
227 or Section 228 of the Code. If "the Judge consider that
there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his
reasons for so doing", as enjoined by Section 227. If, on
the other hand, "the Judge is of opinion that there, is
ground for presuming. that the accused has committed an
offence which-….(b) is exclusively triable by the Court, he
shall frame in writing a charge against the accused”, as
provided in Section 228. Reading the two provisions
together in juxtaposition, as they have got to be, it would
be clear that at the beginning and the initial stage of the
trial the truth, veracity and effect of the evidence which
the Prosecutor proposes to adduce are not to be
meticulously judged. Nor is any weight to be attached to
the probable defence of the accused. It is not obligatory
for the Judge at that stage of the trial to consider in any
detail and weigh in a sensitive balance whether the facts,
if proved, would be incompatible with the innocence of the
accused or not. The standard of test and judgment which
is to be finally applied before recording a finding
regarding the guilt or otherwise of the accused is not
exactly to be applied at the stage of deciding the matter
under Section 227 or Section 228 of the Code. At that
stage the Court is not to 'see whether there is sufficient
ground for conviction of the accused or whether the trial
is sure to end in his conviction. Strong suspicion against
the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if there is a
strong suspicion which leads 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 against the
accused. The presumption of the guilt of the accused
which is to be drawn at the, initial stage is not in the
sense of the law governing the trial of criminal cases in
France where the accused is presumed to be guilty unless
the contrary is proved. But it is only for the purpose of
deciding prima facie whether the Court should proceed
with the trial or not. if the evidence which the Prosecutor
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proposes to adduce to prove the guilt of the accused even
if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any,
cannot show that the accused committed the offence, then
there will be no sufficient ground for proceeding with the
trial. An exhaustive list of the circumstances to indicate as
to what will lead to one conclusion or the other is neither
possible nor advisable. We may just illustrate the
difference of the law by one more example. If the scales of
pan as to the guilt or innocence of the accused are
something like even at the conclusion of the, trial, then, on
the theory of benefit of doubt the case is to end in his
acquittal. But, if, on the other hand, it is so at the initial
stage of making an order under Section 227 or Section
228, then in such a situation ordinarily and generally the
order which will have to be made will be one
under Section 228 and not under Section 227.
10. It would be apt to reproduce the observations of
the Hon’ble Supreme Court in Para-10 made in the case of
Union of India Vs. Prafulla Kumar Samal and Another ,
reported in (1979) 3 Supreme Court Cases 4: 1979
Supreme Court Cases (Cri) 609: 1978 SCC OnLine SC
312, which is reproduced as under:
10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code
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.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be,
fully justified in framing a charge and proceeding
with the trial.
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(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application.
By and large however if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some
suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge
the accused.
(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present
Code is a senior and experienced Judge cannot act
merely as a Post office or a mouth-piece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case and
so on. This however does not mean that the Judge
should make a roving enquiry into the pros and cons
of the matter and weigh the evidence as if he was
conducting a trial.
11. In Sajjan Kumar Vs. Central Bureau of
Investigation , reported in (2010) 9 Supreme Court Cases
368: (2010) 3 Supreme Court Cases (Cri) 1371: 2010
SCC OnLine SC 1045, the Hon’ble Supreme Court in Para-
21 has observed as under:
21. On consideration of the authorities about the
scope of Section 227 and 228 of the Code, the following
principles emerge:-
(i) The Judge while considering the question of framing
the charges under Section 227 of the Cr.P.C. 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. The
test to determine prima facie case would depend upon
the facts of each case.
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(ii) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained, the Court will be fully justified in
framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a
mouthpiece of the prosecution but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court,
any basic infirmities etc. However, at this stage, there
cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.
(iv) If on the basis of the material on record, the Court
could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved
beyond reasonable doubt that the accused has
committed the offence.
(v) At the time of framing of the charges, the probative
value of the material on record cannot be gone into but
before framing a charge the Court must apply its judicial
mind on the material placed on record and must be
satisfied that the commission of offence by the accused
was possible.
(vi) At the stage of Sections 227 and 228, the Court is
required to evaluate the material and documents on
record with a view to find out if the facts emerging
therefrom taken at their face value discloses the
existence of all the ingredients constituting the alleged
offence. For this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept all
that the prosecution states as gospel truth even if it is
opposed to common sense or the broad probabilities of
the case.
(vii) If two views are possible and one of them gives rise
to suspicion only, as distinguished from grave suspicion,
the trial Judge will be empowered to discharge the
accused and at this stage, he is not to see whether the
trial will end in conviction or acquittal.
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12. On perusal of the documents produced by the
learned advocate for the accused and particularly the copy of
the Rojkam and copy of the charge, produced before this
Court. Prima facie it indicates that the learned Trial Court
proceeded directly to the stage of framing charge without
following the procedure contemplated under Section 249 of
the B.N.S.S. There is nothing in the Rojkam to indicate that
the learned Additional Public Prosecutor opened the case of
the prosecution by describing the charge brought against the
accused and stating the evidence by which the prosecution
proposed to prove the guilt of the accused. More importantly,
the record does not satisfactorily indicate that the learned
Trial Court thereafter, undertook the sequential exercise
contemplated under Sections 250 and 251 of the B.N.S.S.
after affording an effective opportunity of hearing to the
concerned accused hence, the procedure adopted by the
learned Trial Court, therefore, cannot be approved.
13. There is yet another aspect of the matter which
requires serious concentration. As per the Rojkam, the
applicant-accused No.1 was admittedly in judicial custody and
on 12.05.26, i.e. the date on which the charge was framed, he
was not physically produced before the learned Trial Court
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and was also not produced through video conferencing.
14. Section 308 of the B.N.S.S. embodies the general
principle that evidence or other proceedings affecting the
accused should be taken in the presence of the accused or
when his personal attendance is dispensed with, in the
presence of his advocate, including through audio-video
electronic means, at the designated place.
15. Section 355 of the B.N.S.S. makes provisions for
inquiries and trials being held in the absence of accused in
certain cases and the learned Trial Court is empowered to
dispense with the personal attendance of the accused and
proceed with the trial in his absence where statutory
conditions are satisfied. The B.N.S.S. therefore, recognizes
that in appropriate circumstances, the Court may proceed in
the absence of an accused, however, such absence must be
dealt with by a judicial order passed in accordance with law
and the Court cannot merely ignore the absence of an accused
who is in judicial custody and proceed to frame charge against
him as if he was present before the learned Trial Court. Thus,
when an accused is in judicial custody and is unable to be
physically produced for legitimate reasons, the Court is not
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powerless and in the present matter, it appears that facilities
for the applicant-original accused to be produced through
video conferencing were available, but as the applicant was
not well, he was not produced before the learned Trial Court
through video conferencing. It is on record that the applicant
was neither physically present nor connected through video
conferencing and there is nothing brought to the notice of this
Court to indicate that his personal attendance was dispensed
with by a reasoned judicial order before proceeding to frame
charge. The framing of the charge is an important stage of a
criminal trial and the charge is required to be read over and
explained to the accused and the accused is required to be
asked whether he pleads guilty or claims to be tried, and
when the applicant was neither physically present nor
produced through video conferencing, the compliance of the
requirement of Section 251 becomes doubtful.
16. In such circumstances, this Court is of the
considered view that the procedure adopted by the learned
Trial Court qua the present applicant cannot be sustained.
The record also indicates that the accused No.2 was
absconding when the charge at Exh.27 came to be framed
against him. The statutory provisions relating to absconding
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accused cannot be bypassed by mechanically treating such
accused as being present before the Court and framing
charge against him along with the accused who are present
before the Court. Whether presence of an accused cannot be
secured and the case of the remaining accused is ready to
proceed, the Court is required to consider the appropriate
course permissible under the B.N.S.S. including separation of
proceedings wherever warranted rather than mechanically
framing a charge against an accused who is not before the
Court. This Court may clarify that it is not laying down an
absolute proposition that no judicial proceedings whatsoever
can ever be undertaken in the absence of an accused. The
B.N.S.S. itself recognizes exceptions. What is impermissible is
proceeding against an absent accused without examining and
complying with the statutory provisions applicable to such
absence. The cumulative effect of the efforts with
circumstances demonstrate a material departure from the
procedure prescribed under Chapter 19 of the B.N.S.S.
17. With regard to the scope of jurisdiction in a
revision application, it would be appropriate to reproduce the
observations of the Hon’ble Supreme Court in Amit Kapoor
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Vs. Ramesh Chander & Anr. passed in Criminal Appeal
No.1407 of 2012 (Arising out of SLP {Crl.} No.1516 of
2010) in Para-12 which is as under:
12. The jurisdiction of the Court under Section
397 can be exercised so as to examine the correctness,
legality or proprietary of an order passed by the trial
court or the inferior court, as the case may be. Though
the section does not specifically use the expression
‘prevent abuse of process of any court or otherwise to
secure the ends of justice’, the jurisdiction under Section
397 is a very limited one. The legality, proprietary or
correctness of an order passed by a court is the very
foundation of exercise of jurisdiction under Section
397 but ultimately it also requires justice to be done. The
jurisdiction could be exercised where there is palpable
error, non-compliance with the provisions of law, the
decision is completely erroneous or where the judicial
discretion is exercised arbitrarily. On the other
hand, Section 482 is based upon the maxim quando lex
liquid alicuiconcedit, conceder videtur id quo res ipsa
esse non protest, i.e., when the law gives anything to
anyone, it also gives all those things without which the
thing itself would be unavoidable. The Section confers
very wide power on the Court to do justice and to ensure
that the process of the Court is not permitted to be
abused.
18. In view of the well settled principles of law that
revisional jurisdiction under Sections 397 and 401 of the code
of B.N.S.S. is supervisory and is intended to correct patent
defects of jurisdiction, errors of law, material irregularities
and perversity resulting in miscarriage of justice, ordinarily,
the revisional Court would be slow to interfere with an order
framing charge. However, the present case does not require
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this Court to undertake a meticulous appreciation of the
prosecution evidence or to decide whether sufficient material
exists for framing charge.
19. The challenge in the present revision application
goes to the legality of the procedure adopted by the learned
Trial Court itself and when the statutory sequence prescribed
under Sections 249, 250 and 251 of the code of the B.N.S.S.
have not been followed and the charge has been framed
against an accused in judicial custody without his physical or
virtual presence and without an appropriate order of the
Court, the revisional Court would be justified in exercising his
supervisory jurisdiction.
20. In view of the above, this Court is of the considered
opinion that the impugned procedure adopted by the learned
Trial Court cannot be sustained and the proceedings are
required to be remanded to the learned Trial Court for fresh
consideration from the stage contemplated under Section 249
of the B.N.S.S.
21. In the result, the present criminal revision
application succeeds and is hereby allowed. The impugned
order framing charge dated 12.05.2026 passed by the learned
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Additional Session Judge, City Sessions Court No. 7,
Ahmedabad City in Sessions Case No. 9 of 2026 dated
12.05.2026 is hereby quashed and set aside and the
proceedings are remanded for fresh consideration from the
stage contemplated under Section 249 of the Code of Criminal
Procedure.
22. The learned Trial Court shall proceed with the case
afresh in the following manner:
(i) ensure the presence or lawful
representation/participation of the accused persons in
accordance with the provisions of the Code;
(ii) follow the procedure prescribed under Section 249 of
the BNSS;
(iii) thereafter afford an effective opportunity of hearing to
the prosecution and the accused at the stage contemplated
under Section 250;
(iv) independently consider whether any accused deserves
to be discharged under Section 250 or whether charge
deserves to be framed under Section 251;
(v) if charge is framed, strictly comply with the
requirements of Section 251(2) of the BNSS; and
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(vi) deal with the case of the absconding accused in
accordance with the provisions of the BNSS.
23. The learned Trial Court shall undertake the
aforesaid exercise expeditiously and without being influenced
by the earlier order framing charge or by any observations
made in the present order, except insofar as they relate to the
procedure required to be followed.
24. It is further clarified that this order shall not be
construed as expressing any opinion regarding the existence
or otherwise of a prima facie case against any of the accused.
25. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(S. V. PINTO,J)
ROHAN SONI
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