Contents of A Charge
Contents of A Charge
Charge-
According to Section 2(b) of Cr P C, when a charge contains more than one heads, the head
of charges is also a charge.
Contents of a Charge
Like that- A is charged under section 184 of the Indian Penal Code (45 of 1860) with
intentionally obstructing a sale of property offered for sale by the lawful authority of a
public servant. The charge should be in those words.
d. The law and section of the law against which the offence is said to have been
committed shall be mentioned in the charge.
Like that- if a person is charged with Murder, the charge must specify Section 302 of Indian
Penal Code along with the name of offence “Murder”.
Section 212, crpc provides that the charge must 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, the offence was committed as are reasonably sufficient to give to the
accused notice of the matter with which he is charged.
For example, if a person is charged with Murder, the charge must specify the name of
the victim and date and place of the murder.
c. Descriptions of property, against which the offence is alleged to be committed,
d. when the charge is of criminal breach of trust or criminal misappropriation of money, it
shall be sufficient to specify-
i. the gross sum in respect of which the offence is committed;
ii. The dates between which it is committed provided the time between the first and the
last date shall not exceed one year.
Sometimes, the information as given previous, even the time and place do not provide
sufficient notice of the offence which a person is charged.
In such situations, Section 213, mandates that the manner in which the offence was made
must also be specified in the charge.
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 be 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 or his public functions at
a given time and place. The charge must set out the manner 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 intent to save punishment. The
charge must set out the disobedience charged and the law infringed.
Presumption-
a. 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.
Illustrations-
A is charged with the murder of B. This is equivalent to a statement that A's act
fell within the definition of murder given in sections 299 and 300 of the Indian
Penal Code;
that it did not fall within any of the general exceptions of the said Code;
and that it did not fall within any of the five exceptions to section 300, or that,
if it did fall within Exception 1, one or other of the three provisos to that exception
applied to it.
A is charged under section 326 of the Indian Penal Code with voluntarily
causing grievous hurt to B by means of an instrument for shooting.
This is equivalent to a statement that the case was not provided for by section 335 of
the said Code, and that the general exceptions did not apply to it.
In general, an error in a Charge is not material unless it is shown that the error misled the
accused or that the error caused injustice.
unless the accused was in fact misled by such error or omission, and it has
occasioned a failure of justice."
It means if such error misled the accused and resulted in a failure of justice, then magistrate
is bound to frame fresh charge.
Illustrations:
(a) A is charged under section 242 of the Indian Penal Code, 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 A was in fact misled by this omission, 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. Court may infer from such facts
that the omission to set out the manner of was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the
murdered person's name was Haidar Baksh, and the date of the murder was the 20th 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 20th January, 1882, and Khoda
Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for
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 that the error was material.
The above illustrations show that when the accused in not misled, the error is not material.
For example, in the case of Rawalpenta Venkalu vs State of Hyderabad, 1956, the charge
failed to mention the Section number 34 of IPC but the description of the offence was
mentioned clearly. SC held that the section number was only of academic significance and
the omission was immaterial.
Section 464 further provides that an order, sentence, or finding of a court will not be deemed
invalid merely on the ground that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any misjoinder of charges,
unless in the opinion of the court of appeal, confirmation, or revision, a failure of justice has
in fact happened because of it.
If such a court of appeal, court of confirmation, or revision court find that a failure of justice
has indeed happened, in case of omission, it may order that a charge be immediately framed
and that the trial be re-commenced from the point immediately after the framing of the
charge, and
in case of error, omission, or irregularity in the charge, it may order new trial to be held upon
a charge framed in whatever manner it thinks fit.
As is evident, the object of these sections is to prevent failure of justice where there has been
only technical breach of rules that does not affect the root of the case as such.
As held in the case of Kailash Gir vs V K Khare, Food Inspector, 1981, the above two
sections read together lay down that whatever be the irregularity in framing the charge, it is
not fatal unless there is prejudice caused to the accused.
This section allows the court to alter the charge anytime before the judgement is
pronounced.
Section 216:
1. Any court may alter or add to any charge at any time before judgment is
pronounced.
2. Every such alteration or addition shall be read and explained to the accused.
3. If the alteration or addition to a charge is such that proceeding immediately with
the trial is not likely, in the opinion of the court to prejudice the accused in his
defence or the prosecutor in the conduct of the case the court may, in its
discretion, 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 is such that proceeding immediately with the trial is
likely, in the opinion of the court to prejudice the accused or the prosecutor as
aforesaid, the court may either direct a new trial or adjourn the trial for such
period as may be necessary.
5. lf the offence stated in the altered or added charge is one for the prosecution of
which previous section is necessary, the case shall not be proceeded with until
such sanction is obtained, unless sanction had been already obtained for
a prosecution on the same facts as those on which the altered or added charge is
founded.
6. Thus, even if there is an error in a charge, it can be corrected at a later stage.
7. An error in a charge is not important as long as the accused in not prejudiced
and principles of natural justice are not violated.
Difference between Charge and FIR
A First Information Report is a description of the situation and the act that
constitutes a cognizable offence as given to the office in charge of a police station by
any person. Such information is signed by the person giving the information. If the
information is given orally, it is reduced in writing by the officer in charge, read over
to the informant, and then signed by the person. The substance of this information is
also entered into a register which is maintained by the officer. This is the first time
when an event is brought to the attention of the police. The objective of the FIR is to
put the police in motion for investigating the occurance of an act, which
could potentially be a cognizable offence.
Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the
offences but Charge is a precise formulation of the offences committed. An FIR is a
description of an event, while a Charge is a description of the offences committed in
that event. An FIR may or may not name an offender but a charge is always against a
person. An FIR is always of a cognizable offence, but a charge may also include a
non-cognizable offence.
Question –
1. The general rule is that “For every distinct offence of which any person is
accused there shall be a separate charge and every charge shall be tried
separately”. Discuss, and what are its exceptions. Or
2. Discuss the rules related to joinder of charges & joinder of accused under
code of criminal procedure.
Ans.
INTRODUCTION:- The object of the rule embodied in the sec. 218 of Cr. P. C.,
is to ensure a fair trial and to see that the accused is not bewildered or perplex to
confuse by having been asked to defend several unconnected charges or distinct
offences lumped together in one charge or in separate charges. The basic principle
is prescribed in S. 218 as follows:-
Illustration
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.
Exception
There are few exceptions under which-
the charge may be frame for more than one offence, and
all of its heads may tried in single trial.
ii. the Magistrate is of opinion that such person is not likely to be prejudiced
thereby,
iii. Magistrate may try together all or any number of the charges famed against
such person.
Where there are many accused charged with separates offences and they are not
fall in the ambit of legal provision as given is S. 223, they may make the
application for the same. And
If the Magistrate satisfies that accused will not be adversely affected and it is
expedient, he will try all the offences together.
Sushil Kumar v/s Joy Shankar-1971: It was held that charges under 408 and
477A of IPC could be tried together. In this case several persons accused on
several items of embezzlement were tried jointly.
Case State of Gujrat v/s Bai Fatima-1975: It was held that the accused had
inflicted the injuries on the members of the prosecution party in exercise of the
right of self-defence.
Criminal Procedure code gives the power to magistrate that under certain
circumstance he can frame the charge under more than one head and he can try of
all heads in a same trial. The provisions are as follows:-
i. Three offences of same kind within a year may be charged together:- (S.219)
a. When a person is accused of more offences than one of the same kind
committed, and
b. All these offences has been committed within the space of twelve months
from the first to the last of such offences,
c. He may be charged with and tried at one trial for any number of them not
exceeding three.
Provisions of section are only enabling provisions, it applies where offences are of
the same kind but it does not apply where offences are not of the same kind such as
criminal breach of trust and falsification of accounts. Rahmat v/s State of U. P.-
1980.
The code does not define the meaning of the term transaction. However, it is well
accepted that a precise definition of transaction is not possible and even Supreme
Court has not attempted to define it.
If an act constitute an offence falling within two or more separate definitions of any
law in force for the time being offences as defined by the law at the time being in
force,
The person accused of them may be charged with, ant tried at one trial for each of
such offences.
For example, A beats B. This act constitutes an offence as per Section 323
(Voluntarily causing hurt) as well as Section 252 (Assult or criminal force other than
on grave provocation). Thus, the person may be charged with both and tried for both
the offences at the same trial.
the person committing those acts may be charged with and tried at one trial.
For example, A commits theft, and in doing so voluntarily causes hurt to B when B is
opposing the theft. Here are two act done by the A makes separate offence i.e. 379 &
323 but when it is taken in group it creates a different kind of offence i.e. robbery.
A acts may be charged with and tried at one trial for the offences U/S 379, 323 & 393.
See Sction 71 of Indian Penal Code This section shall not affect S 71.
But -
i. In same matter when the accused is charged under one offence, and it appears in
evidence that he committed a different offence for which he might have been
charged,
ii. He may be convicted for the offence which is shown to have been committed
by evidence, although he was not charged with it.
For example-
i. A is accused of an Act which may amount to theft, or receiving stolen property,
or criminal breach of trust or cheating.
ii. He may be charged with theft, receiving stolen property, criminal breach of
trust and cheating, or
iii. he may be charged in the alternative with having committed all of them.