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CHARGE

Table of Contents

Question Bank

What is a charge? What are the forms and contents of charge? Write exceptions to the general rule for regarding separate charge for distinct offence.
Discuss the form and contents of charge and also explain whether charge can be altered?
What is meant by charge in Criminal Procedure Code? State in contents and importance.
What is meant by charge? What particulars must be specified in the charge?
What is charge? What are the contents of the charge? Who can alter the charge?

SYNOPSIS

Charge:-
Drawing of ‘charge’ (Ss. 211 to 214)

(1) Contents of charge (S.211) :-

(2) Particulars as to time, place and person. (S.212):-

(3) When manner of committing offence must be stated (S.213)-

(4) Words in charge taken in sense of Law under which offence is punishable (S.214):-

III. Defective Charge / Alteration of a Charge (Ss. 215 to 217 & S.464):-

Effect of error (S.215) :-

(2) Alteration of a charge and the procedure thereafter (Ss. 216 & 217) :-

Joinder of charges (S.218 to 223) :-
A) General Rule :-
B) Exceptions :-

(1) Desire of accused (S. 218) proviso :-

(2) Three offences of same kind within a year (S.219):-

(3) Offences in course of same transaction [S. 220(1)] :-

(4) Offences of criminal breach of trust or misappropriation of property connected with falsification of accounts [S. 220(2)] :-

(5) Same act constituting different offences (S. 220 (3):-

(6) Same acts constituting one and also different offences (S. 220 (4):-

(7) Where it is doubtful what offence has been committed (S. 221(1) and 222(2):-

8) Joiner of Accused/ Joint Trial (S. 223):-

Withdrawal of charges (S. 224).

I. Charge:-

(1) According to Wharton’s Law Lexicon. ‘Charge’ is to prefer an accusation against one.

To ‘charge’ a person thus means to accuse him. The charged person is known as the ‘accused person’ or the accused.

(2) The charge is the document setting out a “precise formulation of the specific accusation made against the person who is entitled to know its nature at the earliest stage.”

(3) Charge is a “formation of accusation.”

A charge differs from an ‘allegation’ made by a complainant (incompetent) or an informant (of a crime). The difference is that the charge is drawn up by a Magistrate or Court and read over to the accused to be answered by him when the Magistrate or Court finds a prima facie case against him. The charge is framed on the basis of allegations and evidence in support thereof.

The provisions relating to the charge are intended to give the accused full notice of the offence charged against him. It is drawn up in writing. A charge is a basic written document containing a description of the offence that an accused is called upon to answer. It is an important principle of criminal law that an accused must know the precise accusation against him before he is called upon to enter his defence.

The accused is entitled to know with the greatest precision what acts he is said to have committed and under what section of the Penal Law his acts fall.

In summons cases, a charge is not necessary.

II. Drawing of ‘charge’ (Ss. 211 to 214)

Ss. 211 to 214 give clear and explicit directions as to how a charge should be drawn up to tell an accused as precisely and concisely as possible of the matter he is charged with.

(1) Contents of charge (S.211):-

(i) Every charge under this Code shall state the offence with which the accused is charged.

(ii) If the Law which creates an offence gives it any specific name, e.g., kidnapping from lawful guardianship, grievous hurt, criminal trespass, theft, etc., the offence may be described in the charge by that name only.

(iii) If the law that creates the offence does not give it any specific name, so much of the definition of the offence must be stated to give the accused notice of the matter with which he is charged.

(iv) The Law and section of the Law against which the offence is said to have been committed shall be mentioned in the charge.

(v) The fact that the charge is made is equivalent to a statement that every legal condition required by the Law to constitute an offence charged is fulfilled in the particular case.

(vi) The charge shall be written in the language of the Court.

(vii) If an accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or the punishment of a different kind, for a subsequent offence. It is intended to prove that such a previous conviction will affect the punishment that the Court may consider fit to award for the subsequent offence; the fact, date, and place of the previous conviction shall be stated in the charge. If such a statement has been omitted, the Court may add it at any time before the sentence is passed.

(2) Particulars as to time, place, and person. (S. 212):-

(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom or the thing (if any) in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2) 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, and the dates between 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 within the meaning of S. 219.

The time between the first and last of such dates shall not exceed one year.

(3) When the manner of committing offence must be stated (S.213)-

When the nature of the case is such that the particulars mentioned in Ss. 211 and 212 do not give an 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, which is sufficient for that purpose.

Illustrations

(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which the theft was effected.

(b) A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B,

(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A, which is alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place; the charge must set out the manner in which A obstructed B in the discharge of his functions.

(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.

(f) A is accused of disobeying a direction of the law with the intent to save B from punishment. The charge must set out the disobedience charged, and the Law infringed.

(4) Words in charge are to be taken in the sense of Law under which offence is punishable (S.214):-

In every charge, words used in describing an offence shall be deemed to have been used in a sense attached to them respectively by the Law under which such offence is punishable.

III. Defective Charge / Alteration of a Charge (Ss. 215 to 217 & S.464):-

The following sections deal with defective charges and alterations.

1. Effect of error (S.215):-

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 should be regarded at any stage of the case as material unless the accused was, in fact, misled by such error or omission. It has occasioned a failure of justice.

Illustrations

(a) A is charged under Sec. 242 of the Indian Penal Code (45 of 1860), with “having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit,” the word “fraudulently” being omitted in the charge. Unless it appears that This omission misled a, the error shall not be regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge or is set out incorrectly. A defends himself, calls witnesses, and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.

(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in this case, a material error.

(d) A is charged with the murder of Khoda Baksh on the 21^st of January, 1882. In fact, the murdered person’s name was Haidar Baksh, and the date of the murder was the 20^th of January, 1882. A was never charged with any murder but one and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled and that the error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20^th of January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21^st of January, 1882. When charged with the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh-. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled and the error was material.

This S. 215 and S.464 deal with the cases in which a charge is framed, but there are errors, omissions, or irregularities. S. 215 provides that no error or omission in the statement of the offence or the particulars required to be stated in the charge is to be regarded as material at any stage unless the accused has been misleading. It has, in fact, occasioned a failure of justice, where the accused is not misled, and the defect in the charge is not material.

(2) Alteration of a charge and the procedure thereafter (Ss. 216 and 217):-

Any Court may alter or add to any charge at any time before judgment is pronounced provided –

(i) Every such alteration or addition shall be read and explained to the accused.

(ii) If the alteration and addition in the charge is such that proceeding immediately with the trial is not likely to prejudice any party in the conduct of the case, the Court may, after such charge has been made, proceed with the trial as if the altered or added charge had been the original charge.

(iii) If the alteration and addition are such that proceeding immediately with the trial is likely to prejudice any party as aforesaid, the Court may either direct a new trial or adjourn the trial for such time as necessary.

(iv) If the offence stated in the altered and added charge is one for the prosecution of which the previous sanction is necessary, the case shall not be proceeded until such sanction is obtained, altered, and added is founded.

(v) Recall of witnesses when the charge is altered (S.217):-

Whenever a charge is altered after the commencement of the trial, every party shall be allowed –

(a) to recall or resummon and examine with reference to such change in the charge any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the party desires to recall or reexamine such witness for the purposes of vexation or delay or for defeating the ends of justice, and

(b) also to any further witness whom the Court may think to be material.

IV. Joinder of charges (S.218 to 223) :-

A) General Rule:-

S.218 lays down a general rule. It lays down that, for every distinct offence, there must be a separate charge, and every such charge shall be tried separately [S.218 (1)]:-

Illustration

A is accused of 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.

The object of this rule is to save the accused from being embarrassed in his defence if distinct offences are clubbed together in one charge or separate charges and are tried together. If the accused is tried in one trial upon different charges on different evidence, it is not unlikely that the Court will get prejudiced against the accused person. The rule under S.218(1) has been laid down to avoid such a situation.

B) Exceptions:-

Adherence to the above general rule strictly may lead to a multiplicity of trials and unnecessarily harassing the accused. Therefore, S. 218 itself and sections 219, 220, 221, and 223 provide exceptions in suitable cases to the above general rule. Those exceptions help avoid the multiplicity of criminal proceedings and save time and money.

(1) Desire of accused (S. 218) proviso:-

Proviso to S. 218 provides that where the accused person, by an application in writing, so desired and the Magistrate is of the opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.

Similarly, where several persons are charged with separate offences, the Magistrate or Court of sessions may, if such person, by an application in writing, so desires and if he or satisfied that such persons would not be prejudicially affected thereby. It is expedient to do so, try all such offences and persons together (Proviso to S. 223).

The rule relating to separate trials is for the benefit of the accused, but if it prejudicially affects the accused, the accused should get relief, provided the Court also considers it appropriate to give such relief.

(2) Three offences of the same kind within a year (S.219):-

When the person is accused of more offences than one of the same kind committed within one year, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three.

Offences can be said to be of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or the special or local Law.

(3) Offences in the course of the same transaction [S. 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.

Illustration

(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged with and convicted of offences under sections 225 and 333 of the Indian Penal Code (45 of 1860).

(b) A commits house-breaking by day with the intent to commit adultery and commits, in the house so entered, adultery with B’s wife. A may be separately charged with and convicted of offences under sections 454 and 497 of the Indian Penal Code (45 of 1860).

(c) A entices B, the wife of C, away from C, with the intent to commit adultery with B, and then commits adultery with her. A may be separately charged with and convicted of offences under sections 498 and 497 of the Indian Penal Code (45 of 1860).

(d) A has in his possession several seals, knowing them to be counterfeit, and intending to use them for the purpose of committing several forgeries punished under section 466 of the Indian Penal Code. A may be separately charged with and convicted of the possession of each seal under section l73 of the Indian Penal Code (45 of 1860).

(e) With intent to cause injury to B, A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such proceeding, and also falsely accuses B of having committed an offence, knowing that there is no just lawful ground for such charge. A may be separately charged with and convicted of two offences under section 211 of the Indian Penal Code (45 of 1860).

(f) A, with intent to cause injury to B, falsely accuses him of committing an offence, knowing there is no just or lawful ground for such a charge. On trial, A gives false evidence against B, intending thereby to cause B to be convicted of a capital offence. A may be separately charged with and convicted of offences under sections 211 and 194 of the Indian Penal Code (45 of 1860).

(g) A, with six others, commits the offences of rioting and grievous hurt. A: assaulting a public servant endeavoring in the discharge of his duty, and as such, suppressing the riot. A may be separately charged with and convicted of offences under sections 147, 325, and 152 of the Indian Penal Code (45 of 1860).

(h) A threatens B, C, and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged with and convicted of each of the three offences under section 506 of the Indian Penal Code (45 1860).

This section allows several offences, even exceeding a period of more than twelve months, to be tried at one trial if they are committed in one series of acts so connected together as to form the same transaction.

Transaction means a group of facts so connected that certain ideas, viz. unity, continuity, and connection, are involved. 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 that can properly be described as a transaction.

(4) Offences of criminal breach of trust or misappropriation of property connected with falsification of accounts [S. 220(2)] :-

Where a person is accused of one or more offences of criminal breach of trust or dishonest misappropriation of a property and is accused of committing falsification of accounts to felicitate or conceal the commission of such offence, he may be charged with or tried for at one trial for every such offence.

Illustration

A is accused of criminal breach of trust and falsification of accounts, both of which are punishable under S. 409 and 477 A of the Indian Penal Code. A can be tried jointly for both offences.

(5) Same act constituting different offences (S. 220 (3):-

If the acts alleged constitute an offence falling within two or more separate definitions of any law, the person accused of them may be charged with and tried at one trial for each of such offence

Illustrations

1) A wrongfully strikes B with a cane. A may be separately charged with and convicted of offences under S. 325 and 323 of the Indian Penal Code.

2) Several stolen sacks of corn are made over to A and B, who knew they were stolen property, for the purpose of concealing them. A and B thereupon voluntarily assist each other in concealing the sacks at the bottom of the grain pit. A and B may be separately charged with and convicted of offences under S. 411 and 414 of the Indian Penal Code[1]

(6) The same acts constitute one, and there are also different offences (S. 220 (4):-

If several acts of which one or more than one would by itself, or themselves constitute and constitute a different offence when combined, the person accused of them may be charged with and tried at one trial for individual offence as well as the combined offence.

Illustration

A commits robbery on B and, in doing so, voluntarily causes hurt to him. A may be separately charged with and convicted of offences punishable under S. 323, 392 and 394 of the I.P.C.

(7) Where it is doubtful what offence has been committed (S. 221(1) and 222(2):-

Suppose a single act or series of acts is of such a nature that it is doubtful on facts proved which of several offences have been committed. In that case, the accused may be charged with one of such offences or with several offences in the alternative (S. 221 (1)).

If, in such a case, the accused is charged for one offence and it appears on evidence that he has committed different offences for which he might have been charged, he can be convicted of that offence (S. 222 (2)).

Illustrations

a) A is charged, under S. 407 of the I.P.C., with criminal breach of trust regarding property entrusted to him as a carrier. It appears that he did commit a criminal breach of trust under section 406 of that Code regarding the property, but that was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under S. 406.
b) under S. 325 of the I.P.C, A is charged with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under s. 335 of that Code.

8) Joinder of Accused/ Joint Trial (S. 223):-

Whereas Ss. 219 to 222 (and proviso to S. 218) permits the joinder of charges against the same person. The object of this provision is to avoid a multiplicity of trials. However, such a joint trial is to be held taking justice and fairness into consideration.

The following persons may be charged and tried together-

a) Persons accused of the same offence committed in the course of the same transaction (S. 223 (a)):-

The word ‘same offence’ means an offence arising out of the same act or series of acts. They imply that the accused persons must have acted in concert or association.

b) Persons accused of an offence and persons accused of abetment to commit such offence (S. 223 (b).
c) persons accused of more than one offence of the same kind, committed by them jointly within twelve months.
d) Persons accused of different offences committed in the course of the same transaction

E.g., if a woman was raped by E and also cheated of her ornaments by Y while leaving her back to her house- X and Y can be jointly tried.

e) Persons accused of theft, extortion, cheating, or criminal misrepresentation and persons accused of receiving, retaining, or assisting in the disposal or concealment of property obtained either in the commission of these offences or of abetment or of attempting to commit such offences.
f) Persons accused of offences of distinctly receiving stolen property or assisting in the concealment of such stolen property.

For example, If a dacoity is committed in Pune in which golden ornaments were stolen. Subsequently, A and B, on separate, distinct occasions, received separate, distinct lots of those ornaments. In this case, A and B may be tried jointly.

g) Persons accused of any offence relating to counterfeit coin or of any other offence relating to the same coin or of abetment or attempt to commit any such offence, and
h) persons accused of and charged with separate offences do not fall within any of the above categories if they desire to be tried jointly may make an application in writing and if the Magistrate is satisfied that such accused would not be prejudicially affected. It is expedient to do so, try all accused together.

V. Withdrawal of charges (S. 224):-

When an accused is charged for two or more offences and is convicted on one or more of them, the complainant or prosecution may, with the leave of the court, withdraw the remaining charge or charges. Similarly, on its own accord (suo motu), the court stays the inquiry into or trial on such charges.

Such withdrawal shall have the effect of an acquittal on such charge or charges unless the conviction is set aside; in this case, the said court may proceed with the inquiry into, or trial of, the charge or charges that were so withdrawn.

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[1] (3) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure, A may be separately charged with, and convicted of, offences under S. 317 and 304 of Indian Penal Code.

(4) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant, of an offence under S. 167 of the I.P.C. A my be separately charged with, and convicted of, offences under S. 471 (read with S. 466) and 196 of that Code.