The Charge

Introduction

• Charge in simple words means ‘accusation’.
  • It is a formal recognition of a concrete accusation by the magistrate or court based upon a complaint or information against the accused.
• Section 2(b) of the Code of Criminal Procedure, 1973 (CrPC) defines ‘charge’ which states that, the charge includes any head of charge when the charge contains more than one head.
• In case the accused is not informed about the charge against him it will lead to injustice as the accused is not aware of the charge against him and th us, he would not be able to prepare his defense.
• One of the basic requirements of a fair trial in criminal cases is to give precise information to the accused as to the accusation against him and then the ‘charge’ is to be read and explained to the accused.

Purpose of Framing Charge

• The Supreme Court in the case of V. C. Shukla v. State (1979) held that the purpose behind framing charge is to give clear, unambiguous, or precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial.

Contents of Charge: Section 211of CrPC

• Section 211 constitutes essential elements of charge:
  • It must state the offence with which the accused is charged.
  • The charge framed shall specify the exact offence name for which the accused is charged.
  • In case there is no specific name given under any law for the offence with which the accused is charged off, then the definition of the offence must be clearly stated so as to bring to the knowledge of the accused the exact matter with which he has been charged.
  • The law and the section of the law against which the offence is said to be committed shall be mentioned in the charge.
  • The mere fact that a charge has been filed equates to a declaration that every legal condition necessary by law to create the alleged offence has been met in this case.
  • The charge must be written in the language of the court.
  • If the accused has been previously convicted of any offence, then the fact, date and place of previous conviction should be stated in the charge for enhanced punishment which the court might pass if it finds the accused guilty of the offense charged.

Particulars as to Time, Place and Person: Section 212

• The charge framed shall contain the particulars as to the time and place of the alleged offence and the person against whom the offence is committed in order to give the accused precise information and clear notice of the matter for which he is charged.
• The exact time need not be mentioned in the charge form when the accused is charged with criminal breach of trust or dishonest misappropriation of money or any other movable property, the gross sum specified and the dates on which such alleged offence has been committed will be sufficient.
  • For example, in case of murder the date and time of murder and the details of the accused and the deceased will be sufficient.

When the Manner of Committing Offence Must be Stated: Section 213

• When the nature of the case is such that the particulars indicated in Section 211 and Section 212 do not provide the accused with adequate notice of the allegation with which he is charged, the charge shall contain such particulars of how the alleged offence is committed as would provide for that purpose.
  • For example- A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.

Alteration of Charge and the Procedure to be followed

Power of the Court to Alter Charge: Section 216

• This section explains that the court shall have the power to alter or add to a charge at any time before the pronouncement of judgement.
• After such alteration or any addition made to the charge, the charge shall be explained to the accused.
• If an alteration or addition to a charge is such that proceeding of the trial immediately would not prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, proceed with the trial as if the altered or added charge was the original charge after the alteration or addition has been added.
• If an addition or alteration to a charge is such that proceeding of the trial immediately would prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may either order a new trial or adjourn it as it deems fit.
• If the offence stated in the altered or added charge is one for the prosecution, the case shall not move forward unless sanction has been obtained for prosecution in respect of facts constituting the offence on which the altered or added charge is founded.
• The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accordance with the material produced before him or if subsequent evidence comes on record.
• Unless the evidence has been let in, charges already framed cannot be altered, as that is not the intent of Section 216 CrPC.
• It is obligatory on the part of the court to see that no prejudice is caused to the accused, and he is allowed to have a fair trial.
• The trial court or the appellate court may either alter or add to the charge provided the only condition is:
  • The accused has not faced charges for a new offence.
  • The accused must have been given the opportunity of defending the charge against him.

Recall of Witness When Charge is Altered: Section 217

• Section 217 of the CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial, altered or added, it may do so on its own and no order needs to be passed for that purpose.

The Basic Rule and Its Exception

• Separate Charge for Distinct Offence: Section 218
  • There should be a separate charge for each unique offence for which the individual is accused, and each charge shall be tried separately.
  • However, if the accused person requests in writing for the trial of all charges together and the Magistrate believes that the accused person will not be prejudiced, the Magistrate may try all or any number of allegations brought against him.
• Exception-1
  • Section 219 of the CrPC asserts that when a person is accused of more than one offence, but not exceeding three of the same kind, and it is committed within 12 months, then regardless of the fact that whether it has been committed against the same person or not, the accused may be charged and tried at one trial for all the offences committed.
  • Offences are said to be of the same kind when they are punishable with the same amount of punishment under the same section of Indian Penal Code, 1860 (IPC) or any special or local laws.
  • The proviso to Section 219 states when the accused is punishable under Section 379 IPC, it is said to be the offence of the same kind as an offence punishable under Section 380 IPC.
• Exception-2
  • Section 220(1) CrPC states that when the accused commits several offences in the same transactions, then he may be tried jointly and it is immaterial whether the offence is of the same kind or not, or whether the number exceeds three or not, and whether the offence is committed within one year or not.
  • Section 220(2) when the accused is charged with one or more offences of criminal breach of trust or dishonest misappropriation of property the accused may be charged with and tried at one trial for each such offence.
  • Section 220(3) CrPC states that when the accused is charged with an offence which is falling under two or more separate definitions of law, then the accused may be charged with and tried at one trial for each of such offences.
  • Section 220(4) if several acts, each of which would constitute an offence if done separately when combined constitutes a different offence, the accused person may be tried at one trial if the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts.
• Exception-3
  • Section 221 lays down certain conditions and states that when there is doubt about what offence the accused has committed, he may be charged with having committed all or any of such offences and it may be tried at once or in the alternative.
  • When the accused is charged with one offence, and it appears on the evidence that there is altogether a different offence which he has committed then in such a case he will be convicted for the offence which he has actually committed immaterial of the fact whether he was charged with it or not.
• Exception-4

Section 223 provides that certain persons can be tried jointly-

• • Accused who committed the same offence in the same course of transaction.
  • Accused of an offence and a person accused of abetment or attempt to commit such offence.
  • Accused of more than one offence of the same kind and committed by them jointly within 12 months.
  • Accused of different offences committed in the course of the same transaction.
  • Accused of an offence which includes theft, extortion, cheating, criminal misappropriation, concealment of property.
  • Accused of an offence under Section 411 and 414 of IPC.
  • Accused of offence under chapter XII of the IPC.
• The proviso to section 223 of CrPC provides that a Magistrate on an application of the accused person may direct their joint trial even if they do not fall under the categories specified, if the Magistrate believes that the trial of that persons would not be prejudicially affected.

When Offence Proved Included in Offence Charged: Section 222

• This section provides that when the accused is charged with several offences and some of which when combined and proved a complete minor offence, then the accused may be convicted of a minor offence though he was not charged with such minor offence.
• Where an accused is charged with an offence, he may be convicted of an attempt to commit such offence although the offence is not separately charged.
• Unless the conditions are fulfilled for the conviction of the accused of the minor offence, the conviction cannot take place.

Withdrawal of Remaining Charges on Conviction on one of Several Charges: Section 224

• It states that when the accused is charged with more than one head, and after the conviction of the accused under that head, either the complainant or the officer conducting the prosecution may withdraw remaining charge with the consent of the court.

Effect of Errors

• Section 215 and 464 of CrPC deals with the effect of errors.
  • The idea behind these sections is to prevent the failure of justice where there has been only technical breach of rules.
• According to Section 215 neither errors nor omissions in stating the offence or the particulars are considered as material at any stage of the except in the cases where the accused was in fact misled by the error or omission, and it resulted in failure of justice.
• Section 464 CrPC states that a mere omission to frame the charge or any error or irregularity in the charge including the misjoinder of charges will be no ground for de novo trial or a re-trial unless it has occasioned a failure of justice to the accused.

Case Laws

• Court in its Motion v. Shankroo (1982):
  • Himachal Pradesh High Court held that mere mentioning of the section under which the accused is charged, without mentioning the substance of the charge amounts to a serious breach of procedure.
• Bhagabat Das v. The State of Orissa (1989):
  • The Orissa High Court held that the insignificant irregularities in stating the particulars of the offence in the charge will not affect the trial or its outcome.

Conclusion

In a criminal trial, the framing of charge is the foundation of the accusation, and every care must be taken to see that it is not only properly framed but the evidence is also only for the matters concerned and not for any other matter.

Moreover, the fact that charge framed shall be read and explained to the accused serves the basic right of fair trial and furthers the ends of justice.