Charge
The 'charge' or accusation has been dealt with in Chapter XVII of the Code of Criminal Procedure, 1973 and it includes any head of charge when the charge contains more heads then one.
In any criminal trial, 'charge' is an important aspect of the trial as it gives an opportunity to the accused to understand in his own language the 'accusations' which are sought to be made against him by the prosecution in order to bring him to book by the Court/Magistrate. The 'charge' is written in the language of the court which is read out to the accused in open Court and accused is asked whether he/she pleads guilty or pleads not guilty to the charge. In case, an accused pleads guilty to the charge, the Court records the plea of the accused and convicts him thereon and in case the accused chooses to plead not guilty and claims to be tried, the court fixes a date for the examination of witnesses and on the date so fixed, the court shall proceed to take all such evidence as may be produced in support of the prosecution and trial proceeds in the court till judgment of acquittal or conviction is pronounced by the trial court.
The contents of 'charge' have been given in section 211 of the Code of Criminal Procedure, 1973. This section reads as under:
Section 211 -
(1) every charge under this Code shall state the offence with which the accused is charged.
(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned on the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge be written in the language of the court.
(7) If the accused, having been previously convicted of any offence is liable, by reason of such previous conviction to enhanced punishment, or to punishment of a different kind, for a subsequent offence; and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the court may add it any time before the sentence is passed.
The purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged and must convey to him with sufficient clearness and certainty what the prosecution intends to prove against him and of which he will have to clear himself; Mannalal v. State, MANU/WB/0117/1967 : AIR 1967 Cal 478.
Sections 211 to 214, give clear and explicit directions as to how a 'charge' should be drawn up. It has been repeatedly held that the framing of proper charge is vital to a criminal trial and that this is a matter on which the judge should bestow the most careful attention; Balakrishnan v. State, MANU/KE/0100/1958 : AIR 1958 Ker 283.
Section 212 of the Code says that "charge" must contain such particulars as to the time and place of the alleged offence and the person against whom, or the thing in respect of which it was committed so that accused clearly takes notice of the matter with which he is charged.
It further says that when the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence, provided that the time included between the first and last of such dates shall not exceed one year.
Any number of acts of breach of trust committed within one year amounts only to one offence. But where a series of acts extends over more than a year the joinder of charges is illegal; Dhanjibhoy v. Karim Khan, (1904) PR No. 14 of 1905.
A charge for criminal breach of trust framed in contravention of this section is merely an irregularity which can be cured under section 215 of the Code and will not vitiate the trial when the accused is not prejudiced; Kadiri Kunhahammad, MANU/SC/0212/1959 : AIR 1960 SC 661.
In Sanghi Brother v. Sanjay Choudhary, MANU/SC/8097/2008 : AIR 2009 SC 9, the Supreme Court held that suspicion about commission of offence and involvement of the accused is sufficient to frame a charge against the accused.
Section 213 reads - When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.
In case the charge does not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed so that the accused understands the charge fully well.
Section 214 says that in every charge, words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable, and section 215 says that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was infact misled by such error or omission and it has occasioned a failure of justice.
The charge should give clear picture to the accused that he understands the contents of the charge which he would defend during the trial after he pleads not guilty and claims trial. In case any error appears in the 'charge' and is pointed out by the defence then it can be considered by the court if the accused is misled by such error or omission and the same has caused a failure of justice.
"Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record". The Code of Criminal Procedure has ample provisions to meet such a situation; K. Prema S. Rao v. Vadla Srinivasa Rao, (2003) 1 SCC: 2003 Cr LJ SC 69 (217).
This section is intended to prevent any failure of justice for non-compliance with the matters required to be stated in the charge, unless the irregularity in the 'charge' has misled the accused and occasioned a failure of justice, the conviction cannot be set-aside; Yeshwant v. State, (1926) 28 Bom LR 497.
The Code of Criminal Procedure under section 216 has given the power to the court to alter or add to any charge at any time before the judgment is pronounced. Such addition or alteration is then explained to the accused and the court may proceed with the trial as if such addition or alteration was there in the original charge if it does not cause prejudice to the accused in his defence.
Section 216 reads as under:
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) If the alteration or addition to any charge shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that the court is of opinion that proceeding immediately with the trial is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition to charge is such that the court is of the opinion that proceeding immediately with the trial is likely to prejudice the accused or the prosecutor, it may either direct a new trial or adjourn the trial for such period which may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
The purpose of any addition or alteration in the charge is to acquaint the accused with the added or altered accusation and in case the same does not prejudice his defence than the trial could be further proceeded as if the addition or alteration was already in the original charge but in case if it prejudices the accused, then re-trial can be directed by the court and witnesses could be recalled and examined and cross-examined in the court. The accused gets an opportunity to defend himself if the re-trial is directed by the court on the basis of alteration or addition in the charge. The legislation has recognised the valuable right of the accused to defend himself in the court if the original charge is altered or added and he may seek further trial and defend himself on the altered or added charges. The accused is allowed to recall or resummon any witness who may have been examined prior to alteration or addition of charge, unless the court considers that the prosecutor or the accused desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice. The court may also grant permission to accused to call any further witness who the court thinks to be material for the trial as per section 217 of the Cr PC.
The Cr PC provides under section 218 that for every distinct offence, there shall be a separate charge and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of charges framed against such person. The illustration is, suppose "A" is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.
Sections 219 says that three offences of the same kind within a year may be charged together.
Section 219 refers to the case of one person accused of more offences than one of the same kind within a period of one year, not exceeding three offences. It is not applicable where several people are tried jointly; Budhai Sheikh, (1905) 33 Cal 292.
It is not enough that the acts must be similar or that the offences must be similar, but in order to bring a case within this section, the offences must be "of the same kind" as defined in sub-section (2) of section 219; Chandra v. State, (1951) 53 Bom LR 928 (Full Bench).
In order to form the same transaction, a group of facts so connected together as to involve certain ideas e.g. unity, continuity and connection. In order to determine whether a group of facts constitutes one transaction, it is necessary to ascertain whether they are so connected together as to constitute a whole which can properly be described as a transaction; Kanshiram Jhunjhunwalla v. State, (1935) 62 Cal 808.
Section 220 of the Code provides for the trial for more than one offence. This section reads as under:
Section 220 -
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person 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, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in-force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(5) Nothing contained in section 220 shall affect section 71 of the Indian Penal Code.
In Jagannath v. State of Harayana, 1983 Cr LJ 1574; it was held that, section 220 of the Code is applicable to offences which are committed in series of acts so connected together as to form the same transaction.
Section 221 provides for the provisions where it is doubtful what offence has been committed. This section says that:
Section 221 -
(1) If single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once or he may be charged in the alternative with having committed some of the said offences.
(2) If in such a case, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
Section 223 of the Code provides for the joint trial of persons in certain circumstances. This section says that:
Section 223 -
The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the course of the same transaction;
(b) person accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of 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;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of 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.
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Session may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.
Section 224 of the Code provides for the withdrawal of remaining charges on conviction on one of several charges in the following words:
Section 224 -
When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the court, withdraw the remaining charge or charges, or the court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which the said court (subject to the order of the court setting aside the conviction) may proceed with the inquiry into or trial of, the charge or charges so withdrawn.
Section 224 provides for certain charges to be withdrawn with the permission of the court after the accused has been convicted on one or more of the charges. Such withdrawal of the charges shall have the effect of acquittal in respect of those charges.
In Hem Chand v. State of Jharkhand, MANU/SC/7322/2008 : AIR 2008 SC 1903, it was held that at the stage of framing charge the Court exercises a limited jurisdiction. At that stage the Court will not weigh the evidence. It would only have to see as to whether a prima facie cases has been made out and would not delve deep into the matter for the purpose of appreciation of evidence. The Court would not ordinarily considers as to whether the accused would be able to establish his defence, if any. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence are brought on records at the trial.
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