CHARGE – CrPC Notes

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(Sections 211-224 of CrPC):

  • One of the basic requirements of a fair trial is to give precise information to the accused as to the accusation ­­against him. This is vitally important to the accused, to be informed at the beginning itself, so as to prepare a defence. In case of serious offences, the Code requires that the accusation are to be formulated and reduced to writing with great precision and clarity, after which it is read out and explained to the accused person – this is the procedure to be followed in trials of warrant cases and trials before the Court of Session {please see S. 240(2), 246(2) and 228(2)}.
  • There is no particular definition of charge in terms of what it is supposed to constitute. Section 2(b) includes any head of charge, when the charge contains more than one head.
  • The judge only needs to be convinced of a prima facie case, where there is no reason to adduce reasons for framing a charge. If he however dismisses the charge, then he needs to provide reasons in writing to do so.

Sections 211-214 deal with what the charge should contain, in terms of it’s content.

Sections 216 and 217 mention the power of the Court to alter the charge and what the procedure post the alteration is.

Section 218 provides the basic rule that for every distinct offence, there needs to be a separate charge and every such charge needs to be tried separately.

Flowing from the above, Sections 219, 220, 221, 223 give exceptions to the above.

Section 222 gives the circumstances in which a person can be convicted of an offence he was not charged with, to begin with.

Section 224 mentions the effect of withdrawal of remaining charges, when one of the charges has received a conviction.

Section 215 and 464 provide the effects of an error in stating the offence or other details in a charge.

NOTE: The above framework is necessary for contextualization and location of different sections and their purpose, under the overall umbrella of having to frame a charge.

The Trial must begin with a charge.

Section 211 – Contents of charge. A charge cannot be made under Common law, it must be coming out of a specific statute and this must be reflected in the charge. If you commit the same offence more than once then there can be an enhanced punishment. The fact that you have already served punishment period for an offence will not ensure that your punishment is not enhanced. If multiplicity of the offence is discovered during the course of trial, then the court is well within its powers to alter the charges. This is given under

212: specifies that the charge must contain particulars of time, place and person/thing related to alleged offence – the standard to be applied is anything that is reasonably sufficient to give the accused notice of the matter.

For example, if the above are not stated in case of housebreaking or theft, that would be a vague charge. However, in the case of adultery, it may be impossible to specify the particulars of when and where the sexual intercourse took place. In such cases, a broader period of start time and end time of the adultery may be specified.

Section 212(2) is drafted to meet certain contingencies and allows for the mention of the aggregate details and an overall accusation (instead of a precise one) involved in cases of criminal breach of trust OR dishonest misappropriation. The charge so framed shall be only of one offence.

213 and 214 – self explanatory.

215 – Basically stipulates that even if an error does occur in framing of the charge, it can only be regarded as material if it is shown that the accused was in fact misled by such an error or omission and has resulted in a failure of justice.

In this relation, S. 464 provides for a re-trial in cases where a material error has resulted in a failure of justice. In determining this, the courts must adopt a broad vision and look at substance, not at technicalities. The parameters for judging the aforementioned should be the manner in which the accused conducted his defence and the nature of the objection. If there happens to be a mismatch to the prejudice of the accused, then this is material. If it is clear from the answers of the accused and the nature of his case that it did not prejudice him, then not material.

Section 216- Court may alter charge. This can be done anytime before the judgement is given. The trial will then take place from the altered charge.

Alteration, addition or amendment of this charge is allowed. However, the importance of this section lies in prescribing the limitations imposed on this discretionary power of the Courts to ensure that the accused is not prejudiced as a result. For example, sub-sections (2) and (3) envisage scenarios where such changes do not particularly affect the defence/preparation of the accused, then the Court in it’s discretion can proceed with the immediately with the trial as though the amendment had been part of the original charge. Conversely, if it does cause such an adverse impact on the accused, then Court can order a new trial/adjournment.

The Court can make a change upon it’s own motion or by the prosecution, and the new charge needs to be explained to the accused. It is important to remember that a court cannot ignore the basic requisites of a charge when engaging in these changes. For example, rape cannot be substituted by adultery, as adultery requires only the husband to file this complaint.

Section 217 – Recall of witness when charge altered.

Section 218 – Separate charges for distinct offences

  • Every distinct offence must have a separate charge and every separate charge must be tried separately.
  • An accused has a right under this section to make an application for joinder of charges and the Magistrate can grant it if he thinks that shall not prejudicially affect the accused.
  • The object of S. 218 is to ensure that an accused is not at a disadvantage because he has to meet several charges that are in no way connected to one another. It is also to avoid prejudice from entering the mind of a court when it sees that in a different trial the person has been convicted on a different charge with different pieces of evidence on the same facts.
  • Distinct offence: The offences should not have a connection between them and should not be inter-related in any way. NOTE: A separate charge is required for every DISTINCT OFFENCE, not for every SEPARATE OFFENCE.

 Exception to Section 218 is

  1. Section 219 – Same offence

the rule is self-explanatory. Attempt to commit an offence , the offence itself come under the ambit of ‘same kind’ of offence to be tried within the twelve month time period. What the section laid down is that trial must be limited to is three offences, but any number of charges can be pressed. He can also be tried separately on a different trial for other charges.

 Section 220 – Same transaction

ONE TRIAL FOR SEVERAL OFFENCES – if in one series of acts which are so connected together so as to constitute the same transaction, more than one offence is committed, then he can be charged with and tried for every such offence at one trial itself. The real test to determine whether several offences are so connected as to form the ‘same’ transaction depends on whether they are so related to one another in the point of purpose, cause and effect, as principal and subsidiary acts so as to constitute one continuous action.

Section 221-

CASES WHERE IT IS DOUBTFUL WHICH OFFENCE HAS BEEN COMMITTED:

  • If there is a single act, or a series of acts, which is of such nature that it is doubtful which of the several offences such facts will constitute, the accused may be charged with all or any of the offences.
  • Even if he has been charged with a number of offences, but the one made out during the course of the trial is a different one, he may be convicted of the latter.
  • This section contemplates a set of facts that all amount to a single offence, but where it is doubtful as to which one it actually is. It applies to those rare cases where the prosecution is unable to establish exclusively any one offence.

 Section 223 – What persons may be charged jointly.

Section 224- Withdrawal of remaining charges on conviction on none of several charges

Section 228 – Framing of Charges

Section 227- Discharge (by Judge)

Section 239 – When accused shall be discharged (by Magistrate) – the magistrate can discharge on the basis of the police report under Section 173.

Quashing – is that it never existed, and can be done by the High Court and Supreme Court. This is the more popular remedy.

Sufficiency of grounds means that there must be a prima facie case of not, and this can be grounds for discharge.

Prima facie case if there is a document purport the possibility of existence of evidence.

P. Vijayan v. State of Kerala

Facts: The appellant in this case is a former police officer who was allegedly present when a fake encounter was taking place of Naxalite in Kerala.

Issue: Whether there are sufficient grounds for discharge of the appellant?

Decision: The court held that there are no sufficient grounds for discharge. The court can discharge the case if they feel that no sufficient case has been made out by the prosecution. However, if the court feels that there is a strong suspicion then the case should go on to the trial stage. The court has the discretionary authority to decide what is sufficient and what is not. The judge should apply his ‘judicial mind’.

Sampat Singh v. State of Haryana

An FIR was lodged against Dharampal; alleging misuse of authority and corruption.

The police submitted a report u/s 173 of the Cr. PC to the Magistrate calling for cancellation of the allegations against the accused. The Magistrate accepted the report and discharged the accused.

A petition was filed in the HC u/s 226 of the Constitution; for transferring the case of Dharmpal to the CBI. It was prayed that the accused, holds a position of power in the government; was in a position to influence the investigation of the police. Therefore, the investigation in order to be fair and impartial should be conducted by an independent agency i.e.  CBI.

The HC found no merit in the case, dismissed the petition.

It is against this that present SLP has been preferred.

So, a SLP was filed was filed u/s 136, which is basically a special leave to appeal against any order, judgment and decree of the SC, from any court or tribunal; praying for the investigation to be transferred to the CBI.

The SC examined the legality of the order, and said that u/s 173 of the Cr. PC, when an investigation culminates into a final report without delay; it is the duty of the competent court within its authority under sanction of the law, to scrupulously scrutinize the final report and apply its judicial mind and take a decision whether to accept or reject the final report.

The Magistrate had passed an unreasoned order and without application of his judicial mind accepted the report of the police.

In the instant case, it was also noted by the SC, that the case against the accused was registered under provisions of the Prevention of Corruption Act. Under this act, the provisions explicitly say that the offence under this act is triable by a Special Judge only.

So, the Magistrate before whom the cancellation report has been placed, instead of acting on it by him, should have forwarded the same to the Special Judge who was competent to try the case.

Held-: The order of the Magistrate was set aside and he was directed to transmit all the papers along with the cancellation report to the Special judge having jurisdiction.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.


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