Charge

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Charge

A charge is an allegation imposed against an accused. The basic foundation behind a charge is to inform in clear and precise manner to accused of the issues he is charged with. It is of the utmost importance to any accused to know what the prosecution supposes to prove against him. It is the fundamental principle of criminal law is to inform the accused about the offence he is charged with.

The Code of Criminal Procedure (Cr.P.C.) does not define a charge. Section 2(b) of Cr.P.C. only provides that -“charge includes any head of the charge when the charge contains more heads than one”.[1] The very purpose of the charge is to disclose in short to an accused the offence with which he is charged so as he can defend himself and answer.

The legal provisions regarding charges are embodied under Chapter XVII of the Cr.P.C.

Contents of Charge

Section 211 and 212 of Cr.P.C. prescribes certain contents and particulars of charge respectively. The need to prescribe the contents of a charge is that a proper charge is a crucial part of any criminal trial. In the case of Balakrishnan,[2] it was held that the framing of a proper charge is vital to a criminal trial and that is the matter on which the judge should bestow the most careful attention. A defect in the charge vitiates the conviction.[3]The following are the contents of a charge:

  1. Every charge shall disclose the offence an accused is charged with.
  2. Such offence should be written and specified by such name that has been specified by the law which creates the offence. Further, as per section 214, the words used to describe the offence charged shall be deemed to use in the same manner as the same has been specified under the law which makes such offence punishable.
  3. If the law which creates the offence does not assign any specific name to it, then such offence must be communicated to the accused in the manner that its meaning gets clear.
  4. Every charge shall contain the law and section against which such offence is alleged to be committed. Further, in the case of State of West Bengal v. Ajit Kumar Saha,[4]it was held that mere mention of a section under which a person is accused without mentioning the substance of the charge amounts a serious breach of procedure. Thus, it is necessary to mention not only the law and section but also its texture.
  5. The charge made must contain all the essential requirements of the offence i.e. it must not fall under any exception. If it falls within any of the exceptions it should be mentioned.
  6. Every charge should be written only in the language of the court.
  7. If the punishment of an accused is liable to be enhanced by the reason of his previous conviction and such previous conviction is intended to prove then the charge should mention the date, time and place of the previous conviction. It is important to enter in the charge about such previous conviction and also, the accused must plead not guilty. And, where the previous convictions are denied, the prosecution is bound to prove that there were such convictions and that the accused was the person convicted.
  8. Every charge shall contain all the particulars of the time and place of the alleged offence. The person (if any) or the thing(if any)against which the crime was committed must be mentioned. The object behind prescribing the particulars as to time, place and person is to inform to accused about the matter for which he is charged. Unless the accused has the knowledge he would be seriously prejudiced in his defence.[5] However, where it is not possible for the prosecution to mention particulars precisely having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge.[6]
  9. If any offence has been committed against any movable property of offence relating to breach of trust or misappropriation of money, the charge should state the gross sum or should describe the movable property against which the crime is alleged to be committed and the date on which the said offence is committed.

The framing of Charges

The framing of charges is one of the most imperative parts of any criminal process and it should be framed by the court after proper scrutiny. The section 228 ensures that the court is satisfied that the offence alleged against an accused is not erroneous and fraudulent and depends upon some material proceedings against him. A charge is required to be framed in all warrant cases whether triable by Court of Session or Magistrate. At the time of framing the charged the concentration has to be placed on that there exists a prima facie case against the accused. The test to determine prima facie case depends upon the facts and circumstances of each case.[7]

The Supreme Court of India in the case of Union of India v. Prafulla Kumar, [8] laid down the following principles as to when charge should be framed:

  1. That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
  2. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial;
  3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused;
  4. That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Alteration of Charge

Section 216(1) of Code empowers the court to alter any charge. However, such alteration can only be made before the pronouncement of judgment. Addition or alteration of a charge or charges implies one or more existing charge or charges.[9] For adding a new charge there must be material before the court either in the complaint or in the evidence to justify the action.[10] It is an inherent power of the court to correct the defects of the framing of charges discovered at the initial stage or any subsequent stage prior to judgment.

According to section 216(2), every alteration or addition made shall be explained and communicated to the accused. Where the court is of the opinion that the alteration or addition will not prejudice the accused or his prosecutor, the court may proceed with such alteration or addition as if it has been the original charge. But if the court is an opinion that it will prejudice the accused, it may adjourn the trial for the necessary period or may direct to start the new trial. Further, where it is necessary to take the previous sanction for any alteration, such case will not proceed until the sanction is received unless the sanction is already received for the prosecution on the facts on which such alteration is based.

Effect of Defect in the Charge

Section 215 is intended to prevent any failure of justice for non-compliance with the matters required to be stated in the charge.[11] The main purpose of this section is to prevent a miscarriage of justice when there is any defect in the formulation of charge. Section 215 provides that any error or omission in any offence or particulars in the charge will be considered material unless such error or omission prejudice the accused and misled the justice. The section contemplates that any irrelevant inconsistency in the charge will not affect the proceedings of the trial and its outcome.

Section 464 of the Code explains the same question. Section 464(2) provides for re-trial of the accused where there is a material error in the charges resulted in the failure of justice. The main concern should be that the accused had given a reasonable opportunity to defend himself and had a fair trial. The Supreme Court in the case of Rafiq Ahmad v. State of Uttar Pradesh held that non- framing of charges or some defect in the drafting of charge, per se, will not vitiate the trial itself. The same has to examine in the facts and circumstances of a given case.

Joinder of Charges

The general rule embodied under section 218 of the Code provides that for every different offence there shall be a separate charge and every charge shall be tried separately. The inclusion in one charge of several distinct offences is an illegality and the conviction on such a charge must be set aside.[12] This section makes mandatory to charge different offences differently except under certain conditions specified under sections 219, 220, 221 and 223.Application of section 218 may lead to the multiplicity of trials and thus, exceptions are essential.

Section 219 is an exception to the general rule established under section 218. Section 219 allows three charges of three offences of the same kind committed within twelve months to be tried together. Three offences of the same kind under this section contemplated a joint trial for three separate offences only when the offences which may form part of the same transaction as each of those three offences of the same kind, unless all the offences have taken together, can said to form part of one transaction.[13]Section 220 of the Code deals with the joinder of charges where the different offences are parts of one transaction. Section 220 allows to trial together where the offence exceeds three in number and committed over a period of twelve months if the offences are committed in one series acts so connected together as to form the same transaction. The Supreme Court has taken the view that it is the option of the court whether to resort to Section 219,220 & 223 of the Code or whether to act as laid down in Section 218 and that the accused has no right to claim joinder of charges or of offenders.[14]

Withdrawal of remaining Charges

According to section 224 of the Cr.P.C. states that where a charge contains more than one head against the accused and is been convicted on one or more of them, with the due permission of the Court withdraw the remaining charges. The Court under section is also empowered to withdraw the charges by his own after inquiring into the matter. A charge can be withdrawn under section 224 Cr.P.C. only after judgment and it cannot be deleted.[15]

Conclusion

A charge is the very foundation of accusation and utmost care has to be taken while framing it. A charge must be made for prima facie offences only but it can be subsequently altered when evidence is produced in the trial changing the entire aspect. Further, inefficiency in framing the charges should be avoided as such inefficiency vitiates the very principle of fair trial.

Illustrations

  1. Where X is accused of rape, murder and theft, the charge should state that he has committed rape, murder and theft.
  2. Where A is charged with mischief and criminal trespass on different occasions should be charged and tried separately for each offence.
  3. Where A is accused of committing the murder and charges are framed under section 302 of IPC, but during the trial evidence produced, concluded A guilty of section 304 of IPC, the charges can be altered.

Frequently Asked Questions (FAQs)

  1. What is charge under Cr.P.C.?

The meaning of charge has not been provided under the Code. In general sense, charges are the allegations against the accused. Charges are framed to inform the accused in a precise manner about the offences he is charged so he can defend himself.

  1. What is a joinder of charges under Cr.P.C.?

As per the general rule for a different offence, there has to be a separate charge and a separate trial. However, there is a certain exception embodied under section 219, 220, 221 and 223 of the Code. This exception provides certain circumstances in which the charges of different offence to be joined and tried together.

  1. What is the framing of Charges under Cr.P.C.?

The framing of charges is one of the most important stages of a trial. Charges are always made for a prima facie case.  It is the duty of the court to look upon whether any irrelevant or any fraudulent proceedings instituted against the accused.

[References]

[1]The Code of Criminal Procedure,  1973, Act No. 02, Acts of Parliament, 1974 (India).

[2]Balakrishnan, (1958) Ker 283.

[3] Dal Chand v. State, 1982 CrLJ 1477.

[4] State of West Bengal v. Ajit Kumar Saha, 1988 Cr LJ NOC 2 (Cal).

[5] Chittaranjan Das, AIR 1963 SC 1696.

[6] Ranchhod Lal, AIR 1965 SC 1248.

[7] Chandra Deo Singh v. Prakash Chandra, AIR 1963SC 1430.

[8]Union of India v. Prafulla Kumar, 1979 AIR 366, 1979 SCR (2) 229.

[9] T.J. Edward v. C.A. Victor Immanuel, 2002  Cr LJ 1670(Ker).

[10] Ibid.

[11] Radha Sasidharan v. the State of Kerela, 2006 CrLJ 4702.

[12] Asgar Ali Biswas, (1913) 40 Cal 846.

[13] Mangal Chandra Dan, (1954) Cut 599.

[14]Ranchhod Lal v. State of Madhya Pradesh, AIR 1965 SC 1248.

[15] Vibhubi Narayan Chaubey v. State of Uttar Pradesh, 2002 All LJ 2542.

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