Concept of the Charge (Sec. 211-224) under Criminal Procedure Code, 1973

The Charge (Sec. 211 – 224)

Brief Outline

Contents of Charge (Ss. 211 – 214)

• S.211 – Every Charge shall state the offence, its specific name, law and section of the law.
• S.212 – Particulars as to time and place of alleged offence.
• S.213 – When provisions u/s. 211 & 212 do not provide the accused sufficient notice if the matter with which he is charged, the manner of committing the offence shall be stated.
• S.214 – It provides for rules of interpreting words used in the Charge.
• S.215 – Only such omissions and errors shall be deemed to be material which cause prejudice to the accused.

Alteration of Charge (Ss. 216 – 217)

• S.216 – It provides for the power of the Court to alter the Charge/s before the judgment is pronounced.
• S.217 – Provides for the power to recall or re-summon or to call any further witnesses.

Joinder of Charges (Ss. 218 – 224)

• S.218 – Separate Charge for Distinct Offences.
• S.219 – Three offences committed in a span of one year.
• S.220(1) – Offences committed in course of same transaction.
• S.220(2) – Offences of Criminal Breach of Trust, Misappropriation of Property, Breach of Trust and Falsification of accounts.
• S.220(3) – Same act falling under different definitions of offence.
• S.220(4) – Acts forming an offence, also constituting different offence when taken separately or in groups.
• S.221 – Where it is doubtful what offence has been committed.
• S.223 – Certain persons may be charged jointly

• It is the basic requirement of a fair trial that the accused shall be given precise information to the accused as to the accusation against him.
• Such information renders the accused an opportunity to the accused to prepare his defence.
• Charges serves the purpose of notice or intimation to the accused.
• There is no necessity to hear the accused at this stage as a general rule.
• There is no need to appreciate evidence at this stage.
• Any material defect in the Charges would vitiate the conviction.
• In a summons – case, no formal Charge needs to be framed. (S.251)
• In warrants – case, a formal Charge must be framed. (S.240)

Section 2(b) of the Cr.P.C. defines Charge as – “Charge includes any head of charge when the charge contains more heads than one”

Form and Contents of Charge

Sec. 211 – Contents of Charge

Details about the offence – S.211(1)

• Every charge shall state the offence with which the accused is charged.
• In case there are more than one accused, then the Court shall consider the case of each and every accused individually before framing the Charge.

Specific name of Offence – S.211(2)

• If the law prescribes a specific name for the offence, then the Charge shall also mention such specific name only.
• For example, A is accused of Murder as provided u/s. 300 of the IPC. Therefore, in the Charge, the Court shall state the specific name of the offence i.e., murder.

No Specific name of the Offence – S.211(3)

• In such case where the offence does not provide for the specific name of the offence, the Court while framing the Charge must provide for the definition of the same, so as to give the accused sufficient notice of the offence alleged against the accused.
• For example, offence which do not have a specific name under the IPC, there definition given under the Code shall be mentioned in the Charge

Provisions of Law – S.211(4)

• The law and the sections of law dealing with the offence shall be stated in the Charge.
• Along with the Section Number, the illustration given along with the section shall also be stated.

Fulfillment of Legal Conditions – S.211(5)

• Once the accused is charged with the particular offence, such charge is equivalent to the statement that other legal conditions required by the law to constitute the offence were fulfilled.
• For example, if A is charged with murder, then such charge would be equivalent to the statement that:
• A’s act fell within the definition of murder;
• A’s act did not fall within the general exceptions;
• A’s act did not fall within the five exceptions given under Section 300, IPC.

Language of Charge – S.211(6)

• The charge shall be written in the language of the Court.
• The State Government shall determine the language that is to be followed by the Court.
• Such power can only be used to determine language of all the Courts except the High Court, as English is the only language permitted at the High Court.

Previous Conviction – S.211(7)

• If the previous conviction is to be used in order to enhance the punishment of the accused; then
• The date and place of such previous conviction shall be stated in the Charge.
• The purpose of S.211(7) is to inform the accused adequately that the allegations of previous convictions would expose him to enhanced punishment.

Sec. 212 – Particulars as to time, place and person

Particulars as to time and place of offence – S.212(1)

• The Charge shall cull out details about the time and date of the alleged offence.
• It helps in providing a reasonable notice to the accused of the details of the offence for which he is charged.

Time & Place in case of Criminal Breach of Trust or Dishonest Misappropriation – S.212(2)

• In above mentioned offences, it shall be sufficient to specify the gross sum or specify the movable property, without specifying the particular items or exact dates.
• The charge so framed shall be deemed to one offence within the meaning of S.219.
• The combined effect of S.212 and S.219 is that it prevents multiplicity of proceedings.

Sec. 213 – Mentioning Other Particulars when information u/s. 211 and 212 do not provide sufficient notice

• In case the information provided in the charge as provided u/s. 211 and 212 is not sufficient to give adequate notice to the accused of the offence alleged against him, then provisions of S.213 come into operation.
• The Court may provide other such particulars which would provide for the manner in which the offence was committed.

Sec. 214 – Rule for Interpreting the Words used in the Charge

• The words mentioned in the Charge shall be interpreted in a way that the same sense is attached to them by the law under which such offence is punishable.

Sec. 215 – Effect of Errors

• Only such errors or omissions in the charge shall be considered as material which tend to prejudice the accused or vitiate the trial.
• The accused must be misled by such omission or error.

Alteration of Charge

• The power to alter the Charge provides a comprehensive power to remedy the defects in the framing or non-framing of a charge.
• Such defect may be discovered at initial stage of the trial or at any subsequent stage.
• It ensures that the accused is duly tried and prosecuted for all the act committed by him.
• Alteration of charge ensures that upon discovery of new incriminating evidence against the accused the entire trial is not vitiated.
• The ultimate object is to do justice to the victim of the crime so as to ensure that the offender is duly punished as per law.

Sec. 216 – Court may alter charge

General Conditions – S.216(1)

• The Court may alter or add a charge at any stage before the Judgment is framed.
• The accused shall not be made to face a new offence by way addition of charges.
• The addition or alteration of charge shall not prejudice the accused.
• The accused shall be given adequate notice of such alteration or addition so as to prepare his defence.
• All the general rules as to framing of charges would also apply in case of alteration or addition of charges.

The Supreme Court in this case held that the trial Court has the power to amend the Charge before the Judgment is pronounced. It has also stated that the Trial Court must follow the prescribed procedure under the law while amending or altering the charge.

Read Over and Explained – S.216(2)

• The altered or amended charge must be read over and explained to the accused.
• This provides him the opportunity to prepare his defence to meet the new challenges.

Proceed with the trial as Original Charge – S.216(3)

• If the trial is not likely to be prejudiced by the alteration of charge, in such case the Court may proceed with the trial as if the accused or added charge had been the original charge.

Fresh Trial or New Trial – S.216(4)

• If the trial is to be prejudiced by such alteration of charge or addition, then the Court may order a new or fresh trial.
• However, it is incorrect to presume that merely because a new charge has been added a new trial shall be effectuated.

Previous Sanction – S.216(5)

• If in case the new or altered charge is such which requires the previous sanction before commencing with the prosecution, such trial shall not commence without obtaining such sanction.
• The sanction must be given for the offence charged against and it shall not be for an offence which is essentially different from that to which the sanction relates.

Sec. 217 – Power to recall or re-summon or call further witness

• Upon alteration or addition of the Charge the accused or the prosecution are entitled to recall or re-summon or call further witness.
• However, such power shall not be used to cause unnecessary delays and laches in the smooth ongoing of the trial.
• Such power can be exercised only if prejudice would be caused to the accused or the victim.
• S.217 does not cast any duty on the Court to inquire from the accused or the prosecution if they want to recall/re-summon/call any further witness.

Arguments on addition or alteration of Charge

• Arguments regarding the framing of proper are best left to be decided by the trial court at an appropriate stage.
• The superior courts shall refrain from interfering with order of altering the charge.
• Rules of natural justice shall apply at all stages while framing the Charges or altering or adding the Charge.

Joinder of Charges

Basic rule regarding framing of Charges and Trial

• The initial requirement of a fair trial in criminal cases is a precise statement of the accusation called the Charge.
• As a basic rule, there shall be a separate charge for every distinct offence otherwise it may cause prejudice to the accused.
• However, there are certain exceptions laid down to the basic rule, whereby different offences can be tried at one trial for the benefit of the accused and the Court.

Object of Joinder of Charges

• To avoid multiplicity of proceedings.
• To avoid harassment to the accused.
• To ensure that the mind of the Court is not prejudiced against the accused if was tried in one trial, upon different charges resting on different evidence.
• However, there is a need for carving out exceptions to the said rule, as in some cases strictly following the general rule of separate charge for distinct offence may cause multiplicity of judicial proceedings.

Sec. 218 – Separate Charges for Distinct Offences

• As a general rule, there shall be a separate charge for every distinct offence committed by the accused.
• However, if the accused himself gives his consent for joinder of charges, then the Court may allow such joinder of charges.
• Provisions of S.218 are designed to benefit the accused.

Factors distinguishing ‘Distinct Offence’ from ‘Each Offence’ or ‘Every Offence’

1. Difference in the time of occurrence of different offences;
2. Difference in place of occurrence;
3. Different victims of crime;
4. Difference in the acts constituting the two or more offences.

‘Distinct Offence’ vis-à-vis ‘Each Offence’

• Section 218 only provides for separate charge for every distinct offence and not each different offence.
• Which means that the factors which are mentioned above in order to distinguish ‘distinct offence’ from ‘every offence’ or ‘each offence’ have to be duly considered.

The Supreme Court held that the provisions pertaining to joinder of charges are permissive sections and they are not compelling sections. It means that, although these sections permit joinder of charges and joinder of persons, a court may well consider it desirable in the interest of justice and having regard to the circumstances of a particular case that the charges so framed should be split up and separate trials should take place in respect of them and the accused be tried separately.

Exceptions to the Basic Rule

Exception 1

Three offences of the same kind committed within one year – S. 219

• This section applies only to the case of a single accused person and not several accused persons as S.223 precisely deals with joinder of several accused in one trial.
• The following conditions shall be fulfilled in order to bring S.219 in to application:
• The accused must have committed three offences;
• Such offences must be committed within the span of one year/twelve months.
• All the three offences must be of the same kind.
• The offences of same kind means such offences which are punishable with the same amount of punishment under IPC, Special Law or locals laws.

EXCEPTION 2

Offences committed in course of same transaction – S.220(1)

• The primary requirement u/s. 220(1) is that the offences shall be committed by the same person i.e., there shall be a single accused person.
• The offences shall be so connected so as to form part of the same transaction.
• The term “same transaction” has not been defined as it is of a very wide import.
• However, it would depend on the following factors:
• Proximity of time;
• Proximity of place;
• Unity of purpose or design;
• Continuity of action.
• The offences shall be so connected that if a separate trial is ordered it will result in an incomplete comprehension of the totality of the crime even where they do not lead to conflicting judgments.

EXCEPTION 3

Offences of Criminal Breach of Trust, Dishonest Misappropriation of Property and their companion offences of Falsification of Accounts – S.220(2)

• Sub Sec. 2 of Sec. 220 applies when a person commits one or more offences pertaining to:
• Criminal Breach of Trust;
• Dishonest Misappropriation of Property;
• Falsification of Accounts.
• The reasonable object behind trying all these offences together is that either one of the abovementioned offence is carried out to give effect to other one.
• For example, in almost all the cases the offence of Criminal Breach of Trust is accompanied with the offence of falsification of accounts for the purpose of concealing the former offence.

EXCEPTION 4

Same act falling under different definitions of offence – S.220(3)

• There might be a case where a person is accused of committing an act which falls under the definition two or more offences.
• Therefore, a single act of the accused would be an offence under two or more provisions of IPC, Special Law or Local Laws.
• In such case all the offences shall be tried at one trial.
• For example, if a person kills a pedestrian by rash or negligent driving he can be held liable u/s. 304-A for causing the death and u/s. 279 for rash driving or riding on a public way.

EXCEPTION 5

Acts forming an offence, also constituting different offence when taken separately or in groups – S.220(4)

• Several acts, each constituting an offence and in combination constituting a different or a graver offence, may be tried at one trial.
• For example, hatching a criminal conspiracy to commit a murder would result in two offences i.e., 120-B for Criminal Conspiracy and 302 for murder both acts constituting separate offence, but when combined form a graver offence, can be tried at one trial.
• Section 220(5) provides that provisions of S.220 shall not effect S.71 IPC.

EXCEPTION 6

Where it is doubtful what offence has been committed – S.221

• It applies to cases where the facts are not doubtful but the application of the law to the facts is doubtful.
• It applies when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person.
• Section 221(2) gives wide powers to the Court to convict the accused of a crime not the subject of the charge i.e., not mentioned in the charge provided the following conditions are fulfilled:
• That the crime for which the accused was found guilty was established by the evidence; and
• Having the provided information, it was doubtful which of one or more offences would be established by the evidence.
• The section applies to cognate (similar) offences like criminal breach of trust and theft and not offences of distinct character such as murder and theft.

EXCEPTION 7

Certain persons may be charged jointly – S.223

• This section permits a joint trial of several accused persons in specified cases.
• There must be a basic connection between the various offences committed by the several accused persons.
• This section is enacted to benefit the accused.
• It also saves the time of the Court as it avoids the peril of multiplicity of proceedings.
• The following persons may be charged and tried together:
• Persons accused of same offence committed in the course of the same transaction;
• Persons accused of different offences committed in the course of same transaction;
• Persons accused of an offence and persons accused of abetment or attempt of such offence;
• Persons accused of more than one offence, committed in span on one year as per S.219;
• Persons accused of offence of theft, extortion, cheating or criminal misappropriation and persons accused of receiving or retaining or concealing the stolen property.

Withdrawal of remaining charge on conviction on one of several charges – S.234

• A charge cannot be deleted.
• It can only be withdrawn u/s. 234, after the judgment is delivered.
• S.234 is applicable where the accused is convicted of one of several distinct charges before the other charges are tried.
• The complainant or the officer conducting the prosecution may withdraw the charge or charges with the consent of the Court.
• Such withdrawal shall have effect of acquittal.
• Section 234 will not apply where several charges are made u/s. 220(3), 220(4) or 221.

Conviction for an “offence not charged” when such offence is included in “offence charged”  – S.222

• A person can be convicted of a minor offence which forms part of the offence with the which the accused has been charged.
• For example if a person is charged for S.302, he could be convicted under section 304, although he was not charged for the same.
• The two offences i.e., minor and major shall be cognate offences are not entirely distinct ones.
• The Principle on which Section 222 is based on is that a graver charge gives notice to the accused of all circumstances going to constitute the minor one of which he may be convicted.
• The expression “minor offence” is not defined under the Code.
• When a person is charged with an offence, he may convicted of an attempt to commit such an offence although he is not separately charged.

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