Every charge under the code of criminal procedure, 1973 shall state the offence with which the accused is charged. The motive behind a charge is precisely and succinctly to let know the accused individual, the issue for which he is being charged. It is necessary to pass on to the accused absolutely clearly and with certainty what the prosecution has accused him of or what the prosecution has against him. The underlying principle of criminal law is based on the fact that it is the right of the accused to be informed about the exact nature of the charge levelled against him.
Hence we see that knowing the charge which is levied against the accused is important for him to be known so that he can prepare his defence and so that justice is done by him. It is in the very beginning only that the accused is informed of his accusation in the beginning itself. It is to be kept in mind that in case of serious offences the statute requires the accusations to be formulated and reduced to writing with great precision & clarity. It is also necessary that the charge be then read and explained to the accused person.
Under section 2(b) CrPc, 1973, ‘charge’ includes any head of charge when the charge contains more heads than one. Hence it can be interpreted that when a charge contains more than one heads, the head of charges is likewise a charge.
Nature and Purpose of charge
It is a necessary characteristic of charge to be precise in its scope and particular in its details.
In V.C. Shukla vs. State, Justice Desai opined that, ‘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’.
Essentials of Charge
The following are the contents that are a must for a charge:
Stating the Offence
The offense must be expressed, in a charge sheet so that the accused may shield himself.
Describing the offence by the name
Along with the charge the name of the offence, related to such charge must be clearly defined and explained.
Defining and understanding the offense
In places where the criminal law has not named the offence then a definition/ meaning of the offense must be expressed.
Mentioning the law and section of law
The charge must contain the law or the section of the law against which the offense has been said to be committed.
Substantive requirements of offense to be complied with
The charge must fulfil the requirements of the offense, whether there are any exceptions are there or not and if there are then the charge should adhere to them.
It is to be noted that one of the basic essentials of charge is that the charge should be framed in English or the Court’s language or the language which is understandable by an accused.
Accused person’s previous convictions
Charge might state the fact, date, and place of the previous conviction in places where the accused is liable to enhanced punishment by virtue of his previous conviction and where such previous conviction has to be proved.
Details of Time, Place and Person
It is crucial for a charge to contain the time when offense happened, place where offense was committed, person against whom the offense was committed and any other object or thing against whom the offense was committed.
Particulars of the way in which the offence was committed
In cases where the information above is not sufficient to give notice of the offense with which the alleged accused has been charged, then it is expected that the charge shall include the particulars of the manner in which the alleged offense was committed.
Thing in respect of which offense is committed
It is important for a charge to express the property in respect of which the offence is said to have taken place.
1) ‘B’ 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 only to be constituted as one.
2) ‘O’ is accused of the murder of ‘A’ at a given time and place. The charge need not necessarily state the manner in which ‘O’ murdered ‘A’.
3) Omission of framing charges under section 306, of the Indian Penal Code with regard to section 215 of the Cr.P.C. may or may not lead to failure in justice. Generally such plea should not be allowed to be raised for the first time before the court until unless there are such materials on record which would establish against the accused the said charge. This has been observed in Harjit Singh vs. State of Punjab.
4) ‘A’ is accused of cheating ‘B’ at a given time and place. The charge must be set out in the manner in which ‘A’ cheated ‘B’.
5) ‘A’ has been accused of obstructing a person, ‘B’, who is 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 B has been obstructed by A in the discharge of his functions.
6) ‘H’ is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily causing grevious hurt to ‘M’ by means of an instrument for shooting. It is to be observed here that 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.
Type of cases where charges are framed:
A charge is generally required to be framed in three types of cases:
1) SESSIONS CASES under section 228 of Cr.P.C.
2) WARRANT CASES triable by magistrate instituted on police reports under section 240 of Cr.P.C.
3) WARRANT CASES triable by magistrate instituted otherwise than on police report or instituted on the basis of private complaint under section 246(1) of Cr.P.C.
In trials of summons cases and in summary trials, charge is not framed, instead of charge plea is held.
Form under Second Schedule where charge falls:
The form under which charges are to be framed are set out in FORM NO. 32 of the Second Schedule.
Charges with One Head
The format goes like this:
(a) I ________ (name) ______ (office of Magistrate, etc.), hereby charge you_______ (name of accused person) as follows —
(b) On section 30- That you, on or about the _____ day of_____, at _____ , describing the crime under section 30 of Indian Penal Code, and within the cognizance of this Court.
(c ) And I hereby direct that you be tried by this Court on the said charge.
(Signature and Seal of the Magistrate)
Charges with Two or More Heads
(a) I ________ (name) ______ (office of Magistrate, etc.), hereby charge you_______ (name of accused person) as follows —
(b) On section 30 -That you, on or about the ……… day of ………, at ………, and thereby committed an offence punishable under section 30 of the Indian Penal Code, and within the cognizance of the Court of Session.
Secondly — That you, on or about the ……… day of ………, at ………, ……………..(Description of the offence )thereby committed an offence punishable under section 30 of the Indian Penal Code, and within the cognizance of the Court of Session.
(c ) And I hereby direct that you be tried by this Court on the said charge.
(Signature and Seal of the Magistrate)
Legal Provision of Charge:
It is under Chapter XVII of the criminal procedure codes, 1973 that charge has been mentioned.
Sections 211 to 217 iterate the form of charges and Sections 218 to 224 explains the joinder of charges.
Furthermore, sections 227, 228, 239, 240 and 464 of the code also talks about the various provisions related to charge which will be explained ahead.
Section 211 and 212:
Under Section 211 & Section 212, the content of charge and the particulars as to time and place of the alleged offence is stated, the person against whom the crime was committed or the thing in respect of which it happened and other information which is sufficient to charge the accused.
However what needs to be kept in mind is that in cases where charges are of criminal breach of trust or dishonest misappropriation of money or any other moveable property, specifying the gross sum or the dates between which the crime was committed or the movaple property in regard of which the offence was conducted, without specifying the particular items or the exact dates and hence it will be known as a charge in meaning of section 219. There is a condition that the time included between the first and last of such dates shall not exceed 1year.
It shall be notes that the charge shall contain the particulars of manner in which the said offence has been committed in places where section 211 and 212 are not able to describe well the charge with which the accused is charged.
Section 214 gives a standard for translating the words utilized in the charge: It gives that in each charge words utilized in portraying an offense will be regarded to have been utilized in the sense attached to them separately by the law under which such offense is culpable.
Section 215,464 and 465 of the Code needs to be read together as all these deal with the same question. Section 215 enacts that no error or omission in the charge will be regarded as material unless it has occasioned a failure of justice.
In Tulsi Ram & ors. vs. State of Uttar Pradesh, under para 12, the court was considering these aspects of the matter and made it clear that a complaint about the charge was never raised at any earlier stage and the learned Judges came to the conclusion that the charge was fully understood by the appellants in that case and they never complained at the appropriate stage that they were confused or bewildered by the charge. The sad thing is true here. Therefore, the Court refused to accept any grievance relating to error in the framing of the charge.
This section deals with alteration in charge. The object is to secure fair trial to the accused and it is the duty of the court to ensure that alteration or addition of charge has not caused prejudice to him. It must be exercised judiciously though the power is wide and extensive,. However, the court cannot alter the charge to the prejudice of the accused. Similarly, such power cannot be exercised after the accused is discharged of all the charges in as much as no charge exists against him and the provisions of Section 216 do not apply.
This section deals with the recalling or re-summoning and examining the accused in regard with such alteration or addition been made to the charge. Also in case any further witness needs to be called then that is also permitted.
Joinder of Charges (Section 218-222)
Under the criminal procedure, sections 218 to 222 speak about the provisions related to joinder of charges in one trial against the same accused. The only exceptions recognized are contained in Sections 219,220,221 & 223 of CrPC .Hence separate trial is the rule and the joint trial is an exception. The sections with state the exceptions are only enabling provisions. A court can order a separate trial even though the case is covered by one of the exceptions enabling a joint trial in its discretion.
In Chunnoo vs. State, same was held.
In section 223 joint trial against two or more accused persons are dealt with.
Section 218 deals with the basic rule which says that for every distinct offence there must be a separate charge and a separate trial for each such charge.
The exceptions are elaborated as under and when any case falls under any one the following exceptions then in that case joinder of charges is permitted.
Desire of accused
In cases where the accused himself wants a joint trial and the magistrate is satisfied that such joint trial will not prejudice the accused, joint trial is allowed to be carried.
Three offences of same kind within one year:
In cases where the person is accused of more offences than one of the same kind committed within one year, then regardless of the fact that the crime has been committed with respect to the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three.
In the case of Manoharan v. Director General of Police, 2002, the same has been stated.
Offences in course of same transaction:
In situations where one series of acts so connected together form the same transaction, and more offences than one are committed by the same person, then in such cases he may be charged with and tried at one trial for every such offence.
Offences of criminal breach of trust or misappropriation of property connected with falsification of accounts:
A person may be charged with and tried at one trial for every such offence, in cases where he has committed one or more offences of criminal breach of trust or dishonest misappropriation of property and is accused of committing falsification of accounts or the purpose of facilitating or concealing the commission of such offence.
Same act constituting different offences:
A person may be charged with and tried at one trial only for every such offence where the alleged acts constitute an offence within two or more separate definitions under the law.
Same acts constituting one and also different offences:
In cases where an act constitutes of one or more than one offences, and also constitutes a different offence when combined, there may be joinder that is the person accused of them may be charged with and tried at one trial for individual offences as well as the combined offence.
Where it is doubtful what offence in the alternatives:
If it is doubtful on facts proved which of several offences has been committed; then in that case, the accused may be charged with one of such offences or with several offences in the alternatives. If in such a case, the accused is charged with one offence however if it appears on evidence that he has committed a different offence for which he might have been charged, he can be convicted of that offence.
Conviction for minor offence when major offence is charged:
In cases where an accused is charged for a case consisting of a minor offence, he can be convicted of such minor offence. In the same way in situations where an accused is charged with an offence and facts are proved which direct it to be a minor offence, he can be convicted of such minor offence even though he is not charged with such offence.
On the contrary, no person can be convicted for a major offence if he is charged with a minor one.
In the cases of Mohinder Singh v. State of Punjab and Chandi Prasad v. State of U.P the same ruling was held.
No conviction for major offence when minor offence is charged:
It is important to state that in case an accused is charged with a major offence then in that situation he can legally be convicted of a minor offence. However, vice versa is not true. Hence, if an accused is charged for a minor offence, he cannot be convicted for a major offence.
In the infamous case of Willie Slaney v. State of M.P., it was held by the honourable judges that ‘in case of charge for minor offence, no conviction for a major offence can be there’.
Withdrawal of Charges:
It has been stated under Section 224 states that when an accused is charged for two or more offences and if he is convicted on one or more of them, the prosecution or the complainant in that case may then with the due permission of the court, withdraw the remaining charges. In situations where the court permits withdrawal of charges, the same would amount to acquittal on the charges which are left and they cannot be inquired into except if the court order’s to set aside the conviction.
Discharge of the accused:
Under section 227 it is provided for discharge of an accused. It has been explained here that the judge has the power to discharge the accused, assisted by reasonable reasons for doing so and by considering the cases and the submitted documents and after hearing the accused and the prosecution.
This provision has been enacted with the intention of eliminating the possibility of harassment to the accused in situations when no prima facie case is against him. There is no need for mental judgement of the veracity and effect of evidence as the trail stage.
If under Section 227 or Section 228, the scale as to the guilt or innocence of the accused are equal at the beginning stage of making an order then in such a scenario, normally the order will automatically have to be made under Section 228 (framing of charge) and not under Section 227 (discharge). Willie Slaney v. State of M.P and Ganesh v. State of Orissa and State of Maharashtra v. Salman Khan, are some crucial cases proving the above true.
Framing of Charge:
The framing of a charge is a judicial act is not mere formality and hence application of mind is crucial. The basic motto of Section 228 is to ensure that the accusation made against the accused are not false and baseless and frivolous and that there is some material aspect to proceed. It becomes clear after reading section 227 and 228 together, that what the court has to see whether it is a prima facie case against the accused and he is in any manner connected with the incident leading to the prosecution. Certain rules are given below find out that is the case is prima facie or proper evidence against the accused.
When charge may be framed:
In Union of India v. Prafulla Kumar after keeping in mind a lot of cases the following points were given regarding when can charges be framed-
(1) While considering the question of framing the charges, the Judge under Section 227of the Code needs to weigh the evidence to conclude whether it’s a prima facie case or not;
(2) Where the accused has been clearly and properly explained the materials and the accusations against him, the court will be fully justified in framing a charge and proceeding with the trial.
(3) In situations where judge is satisfied with the evidence produced and where no grave suspicion has been raised then taking into consideration the facts of the case, the judge has the power to discharge the accused.
(4) Under Section 227 of the Code, while exercising his jurisdiction, the total affect of the evidence and the document produced by the court, and any other basic infirmities appearing in the case and so on. Hence the judge should not make roving enquiries into pros and cons of thr case and weigh the evidence as if he was conducting a trial.
Section 240- Framing of charge:
The magistrate shall frame a charge, upon considering the police report and the documents sent with it under Section 173 and after examining the accused and hearing the parties, if the magistrate is of the opinion that the accused has committed an offence which he is competent to try and could be adequately punished by him. The accused shall be explained the charge by reading it over to him and he shall be asked whether he pleads guilty or claims to be tired.
It is well settled that at the stage of framing of charge the trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials for the purpose of seeing whether the offence alleged against the accused persons is made out. At the stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case has been made out against the accused persons.
Where the material on record as product by the prosecution was sufficient for framing the charge of corruption, the Court need not wait for the public servant to satisfactorily explain the assets position.
Where the accused, in collusion with others, defrauded the bank to the tune of over 2 crore rupees, the Supreme Court observed that a blanket order enabling the accused not to appear before the court during investigation and even at trial should not be passed. His presence may become necessary for example, at the time of framing of charge.
Examination of accused and framing of charge, two distinct stages –
The Supreme Court deprecated the practice of examination of the accused and framing of charge are two important stages in criminal trial.
In the case Sajjan Sharma v. State of Bihar the accused were police officers. They are arrested the deceased for taking bribe. He was patient of asthma. He was put in a window-less room which was full of dust and cobwebs which are known allergies for triggering an asthma attack. He was brought to the hospital the next day in a comatose condition. His body showed no signs of pulse, respiration, or blood pressure. The court said that prima facie the accused could be proceeded against under Section 304, and Section.330, of IPC. Since there was little evidence to establish under section 302 hence she was not guilty under this.
The charge against the accused constituted of the fact that she dishonestly processed and verified fake bills. The bills in question were neither raised nor signed by the appropriate authority. The same was not entered in the bill register. Hence, the framing of charge against her was held to be proper. It was remarked by the court that a person signing a document is expected to make an enquiry before signing it. The presence of material on the record was sufficient to enable the court to form an opinion that the accused might have committed the offence. All the officers who dealt with the relevant files at one point of time or the other could not be taken to have participated in the conspiracy or guilty of aiding or abetting it. In such cases, it is necessary to deal with individual acts of criminal misconduct for finding out their respective roles. Some of the persons similarly situated were not proceeded against only because departmental proceedings ended in their favour. The court said that the doctrine of parity under Art. 14 of the Constitution should have been considered.
Non-interference in framing of charge
The Supreme Court gave the following understanding of the above term-
It is the statutory obligation of the High Court not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled-for and unjustified litigation under the cloak of technicalities of law.
Materials and documents filed by the accused cannot be considered, at the stage of framing of charge. Materials produced by the prosecution alone are to be considered. Depriving the accused of the opportunity to produce the material of sterling quality at this stage is not violative of Article 21 and 14 of the Constitution. This is to become roving or fishing inquiry and mini-trial at the stage of framing of charge has been held to be not permissible.
Frequently Asked Questions:
What is a charge sheet?
In order to prove the accusation of crime in the court of law a final report is prepared by the investigation or law enforcement agencies and this report is known as charge-sheet. This statement has not been defined in the Cr.P.C. The police officer submits report in order to prove that the accused is connected with or has committed any offence which is punishable under the code. The report contains all the stringent records right from the commencement of investigation procedure of lodging an FIR to the completion of investigation and preparation of final report.
What is the difference between charge and trial?
1) The prosecutor files the ‘charge-sheet’ containing ‘charge/s’ in the court.
1) After receiving the charge-sheet, the magistrate takes cognizance of the case and starts the proceedings.
2)The charge-sheet contains FIR, police-report, investigation, names and description of the accused and witness ,etc.
2) Cognizance of the case be receiving the charge-sheet is the first step of the trial and the trial includes all the proceeds of the court, and ends with announcement of judgement.3
3) Preparing and filing of charge-sheet are done by police and prosecutor, which is purely executive nature.
3) Trial is conducted by the court and it is of judicial nature.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje