charge
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This article is written by Arushi Gupta, a 4th-year law student of DES Law College, Pune University. This is an exhaustive article which covers all the aspects relating to Charge under CrPC.

Introduction

Section 2(b) of the Criminal Procedure Code defines charge as any head of a charge when the charge contains more heads than one. 

The legal definition mentioned in the code is not inclusive enough for a layman to decipher. However, the definition could simply be interpreted to mean as an “accusation”. It is the concrete accusation as recognised by the Magistrate or the Court, based on the prima facie evidence adduced against the accused. 

Purpose of Charge

Under the Code of Criminal Procedure, an accused should be informed of the offence of which he is charged. The basic purpose of the charge is to let the accused know of the offence that he is charged with so that he can prepare his defence. The accused should be informed of the charge against him at the very beginning. Every accused has the right to know what the prosecution has against him.

The underlying principle of the criminal law on informing the accused of the charge against him is to provide an equal opportunity to each and every individual to prepare his defence and avail justice. It must be noted that in case of serious offences, the statute requires the charge to be reduced to writing precisely and clearly and must be read to the accused and explained with precision and clarity.

In the case of V.C. Shukla vs. State, Justice Desai, while delivering the conclusive judgement opined, “the purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of the accusation that the accused is called upon to meet in the course of a trial.”

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Types of Cases Where Charges are Framed 

The question of framing a charge against the accused arises only when the accused is not entitled to a discharge under Section 277 and 239 of the Criminal Procedure Code. 

Section 277 deals with the discharge of the accused in sessions cases. It states that if the judge, after hearing the accused and the prosecution and after considering the record of the evidence and the documents submitted herein, consider that there are not sufficient grounds to proceed against the accused, then the judge shall discharge him and record the reasons for doing so in writing.

Section 239 of the code deals with the discharge of the accused in warrant cases. It states that the Magistrate shall discharge the accused if, after considering the police report and the documents submitted under section 173 of the Code, comes to the conclusion that the charge against the accused is groundless. The Magistrate shall give the opportunity of being heard to the accused and the prosecution and record the reasons in writing. 

In the following types of cases the charges are framed under the Criminal Procedure Code:

  • Sessions cases under Section 228 of the Code;
  • Warrant cases instituted on police reports under Section 240 of the Code;
  • Warrant cases instituted otherwise on police report under Section 246(1) of the Code.

Sessions Case

Section 228 of the Code deals with the framing of charge in case of a trial before the Court of Sessions. In such a case, the charge is framed against the accused only when the accused is not entitled to discharge under Section 227 of the Code.

Section 228 of the Code states that:

If the Judge is of the opinion that the accused has committed an  offence which is:

  1. Not triable by the Court of Session, the Judge may frame the charge against the accused and may order to transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and he may order the accused to appear before such Magistrate on such date as required, and thereupon such Magistrate shall try the offence in accordance with the procedure for trial of warrant cases instituted on a police report;
  2. Exclusively triable by the Court, the Judge shall frame the charge against the accused in writing, in the case of which the charge shall be read and explained to the accused and shall ask the accused whether he pleads guilty of the offence he is charged with or claims to be tried.

Warrant Cases Instituted on Police Report

Section 240 of the Code deals with the framing of charges in case of warrant cases tried by a Magistrate instituted on police reports. It states that if the Magistrate, after consideration, examination and hearing, is of the opinion that there are sufficient grounds for presuming that the accused has committed an offence triable under this chapter, which the Magistrate is competent to try and is of the opinion that the accused of such offence could be adequately punished by him, he shall frame the charge in writing against the accused.

Warrant Cases Instituted Otherwise on Police Report

Section 246 of the Code states that when in any warrant case otherwise than on a police report, the accused is brought before a Magistrate and the Magistrate upon examination and hearing, is of the opinion that there are sufficient grounds to presume that the accused has committed the offence, then the Magistrate shall frame the charge against the accused in writing. 

In all the above cases, when the charge is framed against the accused, it is important the said charge is read and explained to the accused precisely and accurately. It shall also be important to ask the accused if he pleads guilty or if he has any defence to make. 

Contents of Charge

The initial requirement under the code for a free and fair trial is to inform the accused precisely and accurately, of the offence he is charged him so as to give him a fair opportunity to prepare his defence.

Section 211 and 212 of the Code prescribe the forms and contents of the charge. However, when the nature of the case is such that the offence in question cannot be described properly by the particulars as mentioned in the aforesaid sections, so as to give the accused sufficient notice of the offence with which he is charged, then the manner in which the offence was committed by the accused shall also be contained in the particulars of the charge.

This shall be considered sufficient for the purpose of providing sufficient notice to the accused of the offence with which he is charged.

According to Section 211 of the Criminal Procedure Code, every charge under the code shall include the following:

  • The offence with which the accused is charged;
  • If any law gives the offence any specific name, then the description of that charge by that name only;
  • The definition of the offence, under the law that does not give any specific name to the offence, so as to give notice of the matter to the accused of which he is charged;
  • The law and the section of the law against which the offence is said to have been committed.

Illustration (a) of this Section explains the above as follows:

If A is charged with the murder of B, it means that the offence is equivalent to the statement that the act of A fell within the meaning of the definition of Murder which is mentioned in Section 299 and Section 300 of the Indian Penal Code (45 of 1860). It also means that the act of A did not fall within any of the General Exceptions which are mentioned in the Indian Penal Code. It also means that it did not fall in any of the five exceptions to Section 300 or that, if it did fall within Exception 1 or one or more than one of the three provisions to that exceptions applied to it.

This means that when a charge is framed against an accused, then it is equivalent to the statement that the accused while committing the said offence has fulfilled every legal condition required to constitute the said offence in the particular case. Also, the said charge shall be written in the language of the Court.

Particulars as to Time, Place and Person

According to Section 212 of the Code, in order to give sufficient notice of the matter to the accused of which he is charged, then the charge shall contain the following components:

  • Time and place of the alleged offence;
  • The person (if any) against whom the offence was committed;
  • The thing (if any) in respect of which the offence was committed by the accused.

It should be noted that in case an offence is committed which is of the nature of the criminal breach of trust or dishonest misappropriation when the exact amount in question cannot be determined, then, in the said charge it shall be sufficient to specify the gross sum of money or movable property, as the case may be, in respect of which the offence was committed. 

In addition, the dates between which the said offence was committed shall also be mentioned in the charge sheet. It shall also be noted that it shall not be necessary to specify the exact items in question or the exact dates, provided that the time included between the first and the last date of such dates does not exceed one year.

Error in Charge

In order to understand the provisions in case of an error in charge Section 215 and 216 must be read with Section 464 of the Code.

Effect of Error

According to Section 215 of the Code, any error in stating the offence or any error in stating the particulars required to be mentioned in the charge shall not be material at any stage of the case. In addition, any omission to state such offence or the particulars of the charge shall be immaterial. However, if such error or such omission has misled the accused or if it has occasioned the failure of justice, then such error or omission shall be considered material.

When Court Can Alter or Amend a Charge

Section 216 states the conditions under which the Court can alter or amend or add to any charge:

  • Before the judgement is pronounced, the Court can alter or amend any charge;
  • Such alteration or addition has to be read and explained to the accused;
  • If in the opinion of the Court, the addition or alteration to the charge does not prejudice the accused in his defence or the prosecutor in the conduct of his case, then the Court may alter or amend the charge and proceed with the trial according to its discretion;
  • But if the Court is of the opinion that the alteration or addition to the charge is likely to prejudice the accused or the prosecutor as aforesaid, then following the alteration or amendment, the Court may, at its discretion either direct a new trial or adjourn the trial for such period as it may consider necessary;
  • If the previous sanction is necessary to be obtained for the prosecution of the offence stated in the altered or added charge, then the Court shall not proceed with the case until such sanction is obtained. 

Effect of Omission to Frame, or Absence of, or Error in Charge

Section 464 of the Code states the following:

(1) Any finding, sentence or order by a Court of competent jurisdiction shall not be deemed invalid merely on the ground that:

  • No charge was framed;
  • Any error, omission or irregularity in the charge, including misjoinder of charge.

Such finding, sentence or order of the Court shall be deemed invalid only when it is in the opinion of the Court of appeal, confirmation or revision, there has been a failure of justice.

(2) When the Court of appeal, confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, then – 

  1. In case there is an omission in the framing of the charge, the said Court may order that the charge may be framed and that the trial may be commenced again from the point immediately after the framing of the charge;
  2. In the case of an error, omission or irregularity in the charge, direct that a new trial to be commenced upon a charge framed in whatever manner that the Court may think fit.

Provided that if the Court is of the opinion that the facts of the case are of such a nature that no valid charge could be preferred against the accused in respect of the facts of the case proved, the said Court shall quash the conviction of the accused.

Reference may be made in this regard to the case of Tulsi Ram and Ors. vs. State of Uttar Pradesh. In this case, the Court considered these aspects and laid down that the appellants completely understood the charges against them and they never raised a complaint at an appropriate stage of the trial that they were confused or bewildered by the charge against them. Therefore, the Court refused to accept any grievances raised by the accused regarding the framing of charges against them.

Recalling of Witness When Charge is Altered

According to Section 217 of the Code, whenever the charge has been altered after the commencement of the trial, the accused and the prosecutor shall be allowed:

  1. To recall or re-summon a witness who has already been examined and examine him in reference to such alteration or addition;
  2. However, if the Court is of the opinion that the prosecutor or the accused is recalling or re-examining the witness with the view of vexing or delaying or defeating the ends of justice, then the Court may, by providing reasons in writing refuse to allow to re-examine such witness;
  3. To call any further witness that the Court may deem material for the case.

Basic Rule as to Charge and Trial of Charge

Section 218 to Section 224 of the Code deal with the Joinder of charges (which means that in certain cases more than one accused may be tried for the charge of the same offence).

Section 218 of the Code deals with the basic rule as to the trial of the accused. Sections 219, 220, 221 and 223 of the Code deal with the exceptions to the basic rule. Section 222 provides for the circumstances under which the accused can be convicted of an offence he was not charged with at the beginning of the trial. Section 224 deals with the withdrawal of remaining charges when one of the several charges has received a conviction. 

Section 218 of the Code states that for every offence the person is accused of, there shall be a separate charge and each of that charges shall be tried by the Magistrate separately. However, if the accused person desires and requests the Magistrate in writing and the Magistrate is of the opinion that such a person would not be prejudiced in the case, the Magistrate may try together all the charges or any number of charges as he may deem fit.

Exceptions to the Basic Rule

Trial of Three Offences of the Same Kind Within a Year

Section 219 of the Code states that when a person has committed more than one offence of the same kind within a span of twelve months from the first to the last offence, whether in respect of the same person or not, he may be charged with or tried at one trial for any number of offences, which shall not exceed three.

Trial for More Than One Offence

  • According to Section 220 of the Code, when the series of acts are such that they are so connected that they form part of the same transaction and more than one offence is committed by such series of acts, then the accused may be charged with and tried for every such offence in one trial.;
  • In case the person is charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219 of the Code, and when the person is accused of committing one or more offences of falsification of accounts for the purpose of facilitating or concealing the commission of that offence, then he may be charged with every such offence and may be tried for all such charges at one trial;
  • If the acts mentioned above constitute an offence falling within two or more separate definitions of any law for the time being in force then the accused person may be charged with such offences and tried for them at one trial;
  • In case of several acts when either one act by itself or more than one of those acts by themselves constituting an offence, combine together to constitute a separate offence, then the person accused of them may be charged with the offence constituted by such acts combined or for any offence constituted by one of those acts or more than one of those acts.

When it is Doubtful What Offence has been Committed

Section 221 of the Code states that if a single act or series of acts is of such a nature that it is doubtful which of several offences such acts shall constitute, the accused may be charged with all or any of such offences and any number of those charges may be tried at once. 

If such a case arises when the accused is charged with one offence but the evidence shows that he committed a different offence for which he might be charged with under the provisions of sub-section (1), then he may be convicted of the charge of offence of which the evidence shows to have been committed, even though he was not charged with it at the beginning of the trial.

Persons Who may be Charged Jointly

Section 223 of the Code provides a list of persons who may be charged jointly. It includes the persons accused of:

  • The same offence committed in the course of the same transaction;
  • An offence of abetment of, or attempt to commit an offence;
  • More than one offence within the meaning of Section 219;
  • Different offences committed in the course of the same transaction;
  • an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
  • An offence under sections 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by such offence;
  • any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.

However, when a number of persons are charged with separate charges and they do not fall within the categories of any persons mentioned in section 223, they may apply in writing to the Magistrate or the Court of Sessions, as the case may be, and the Magistrate or the Court of Sessions upon satisfaction that the case would not be prejudiced may try all such persons together.

The provisions regarding the exceptions to the basic rule as mentioned in Section 219, 220, 221 and 223 are only enabling in nature. It is the discretion of the court whether to apply these exceptions and try the charges jointly or not. In the case of Ranchod Lal v. State of Madhya Pradesh, it was held that it is the discretion of the Court whether to allow joinder of charges or not. It is not upon the accused to resort to this right.

Conviction of an Offence Not Charged

Section 222 of the Code mentions the conditions under which the accused may be convicted of an offence of which he was not charged. Such offences include:

  • A complete minor offence constituted by a combination of only some of the particulars of the charge when the combination is proved but the remaining particulars are not proved;
  • The minor offence resulting from the reduction of the offence charged with, when proved by the facts;
  • An attempt to commit the offence charged with.

Withdrawal of Remaining Charges on Conviction of One of the Several Charges

Section 224 of the Code states that in a case, if a charge containing more heads than one is framed against the same person, and when the conviction has been made on one or more of them, then the complainant, or the officer conducting the prosecution, may withdraw the remaining charge or charges with the consent of the Court. However, the Court, on its own accord, may order to stay the inquiry into the charge or the trial of such charge or charges. 

Such withdrawal of the charge or charges shall have the effect of the acquittal of the accused on such charge or charges, unless the conviction is set aside, in the case of which the said Court may proceed with the inquiry into, or trial of the charge or charges so withdrawn. It must be noted that the said inquiry shall be subject to the order of the Court setting aside the conviction.

It is well established that this section applies only to cases where the accused has been convicted of one of several distinct charges before the other charges have been tried.

Conclusion

The Criminal Procedure Code lays downs the basic rule of practice and procedure for framing of charge. Framing of charge is the most basic step of a case. Absolute duty of care must be exercised while framing of the charge as a failure of which may lead to the miscarriage of justice. Every person accused of an offence shall be informed of the charge specifically. It is important for a free and fair trial that the accused is made aware of the charge against him so that he can prepare his case.

The said charge shall be in the form and have the contents as mentioned in the Code so that the accused can understand the charge against him clearly. The Court has the power to alter or add to the charge at any time during the continuity of the case before the judgement is pronounced. But when the Judge or Magistrate is of the opinion that there is no prima facie evidence to establish a case against the accused, then the charge against the accused must be dropped and the accused must be discharged in accordance with the law.


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