Formation, Alteration and Joinder of Charges

“THE CHARGE”

 

• INTRODUCTION

The term “charge” is not precisely and accurately defined anywhere in the code. But, sec. 2(b) merely says that – “Charge includes any head of the charge when charge contains more than one heads.” A charge is a precise formulation of the specific accusations made against a person. It enables the accused to prepare his defence.

• FORM AND CONTENT OF CHARGE

[Sec.211] Content of Charge

The section mentions all the particulars that a Charge shall contain. They are mentioned below:

1. It shall state the offence
2. The name of the particular offence (if any).
3. If name is not there, the definition if the offence.
4. The law and section of offence.
5. Charge shall be written in the language of the Court that the State Government has provided.
6. If there is a repeat offence and there is enhanced punishment for it. Then that too should be stated.

[Sec.212] Particulars as to time, place and person.

sub-sec (1) Charge shall also contain:

1. Time & place of alleged offence.
2. The person (if any) against whom the alleged offence was committed,

OR

1. The thing (if any) in respect of which offence was committed

sub-sec (2) If accused is charged with Criminal Breach of trust or Dishonest Misappropriation of money etc., then the dates between which it is committed shall be mentioned.

[Sec.213]When manner of committing offence must be stated.

Where the particulars mentioned above (i.e. in Sec. 211 & 212) are not sufficient to give of the offence, then the charge shall also contain the particulars of the manner in which the alleged offence was committed.

[Sec.214] Words in charge taken in sense of law under which offence is punishable.

This section provides a rule for Interpreting the words used in describing an offence in a charge, that such words shall be understood in the sense attached to them by the law under which such offence is punishable.

[Sec.215] Effect of Errors.

This section is to effect that an error in stating the offence or particulars in the charge, or an omission to state the offence or particulars in the charge, shall not be regarded material at any stage.

But, if the accused has been misled by such error or omission and which resulted in miscarriage of Justice, then the Court shall regard such defect as material.

The Hon’ble Supreme Court has said that unless accused is misled or prejudices, defect in the charge cannot upset the conviction.¹

• ALTERATION OF THE CHARGE

[Sec.216] Court may alter charges.

sub-sec (1) Any Court may Alter or Add to any charge at any time before judgement is pronounced.

The Hon’ble Supreme Court has said that charge cannot be altered in a manner that is prejudicial to the accused.²

sub-sec (2) Every Alteration or Add shall be read and explained to the accused.

sub-sec (3) If the court thinks that the alteration is not likely to prejudice the accused, then the court may proceed as the altered charge had been the original charge.

sub-sec (4) If the court thinks that the alteration is likely to prejudice the accused, then the court may either direct a new trial, for such period as may be necessary.

[Sec.217] Recall of witnesses when charge altered.

The magistrate may even call for the witness if so required for the fresh charge.

• JOINDER OF CHARGES

[Sec.218] Separate Charge for distinct offence.

sub-sec (1) For every distinct offence, there shall be a separate charge.

Provided, when the accused gives an application in writing, requesting for Joinder of charges, then the Magistrate may try the charges together.

sub-sec (2) Nothing in the sub-section (1) of this section shall effect the operation of the provision of Sec. 219, 220, 221 and 223.

It has been held that the reason behind this provision is so that the judge can take a note of the evidence in other case in the trial of the first case.³

The Supreme Court has also held that that expression “Every Distinct Offence” used in section 218, has a different context from the expression “every offence” or “each offence”. Two offences would be said to be distinct if they be not in any way inter-related.⁴

EXCEPTIONS to the basic rule given under section 218

1. [Sec.219] This section states that three offences of same kind within one year may be charged together.
2. [Sec.220]What offences may be charged together

sub-sec (1) Offences committed in one series of acts or as a part of same transaction.

sub-sec (2) When person charged with Criminal Breach of Trust or Dishonest Misappropriation of Property, is accused of falsification of accounts (for concealing or facilitating such offence).

sub-sec (3) same act falling under different definition of offences.

sub-sec (4) several acts which independently constitute some offence and collectively constitute some different offence.

3. [Sec.221]Where it is doubtful what offence has been committed

Where it is doubtful as to which of the several offences can be alleged to have been committed, then the accused may be charged with all or any of the offences.

4. [Sec.223]What person may be charged jointly

Following persons may be charged jointly:

1. Person accused of same offences or offences committed in the same transaction.
2. Persons accused of an offence and persons accused of abetment or attempt to commit such offence.
3. Person accused of more than one offence of same kind, committed by them jointly within the period of 12 months.
4. Persons accused of different offences that are committed in the course of same transaction.
5. Persons accused of Theft, Extortion, Cheating, etc.
6. Persons accused of offences of receiving or disposing off stolen property under section 411 & 414 of Indian Penal Code, 1860.
7. Persons accused for counterfeiting.

Provided that the magistrate and the Court of Sessions anyways have the power to try two persons, who are separately charged, as jointly.

¹JT 2001 (10) SC 423

²AIR 1954 SC 266

³(1923) ILR 45 All 642

⁴1963 AIR 1620

 

Author: Shivam Srivastava,
School of Law, IIMT