MEANING OF CHARGE?
The term charge in law means a plethora of things. It can be a charge by a magistrate or a charge under company law. It can also be a jury charge, and assigned duty (you are in charge of certain matter), an encumbrance, lien or a claim, a person entrusted with a thing, price or cost of a thing etc. Here we are going to discuss a charge in criminal law. This charge is something which is usually coined in the Code of Criminal Procedure of 1973 as well.
Before getting into the statute, let us look into the definition of charge in the Black’s Law Dictionary (8th ed. 2004). A criminal charge is a formal accusation of an offence. It is considered as a preliminary step to prosecution.
The Code of Criminal Procedure, 1973 is the specific document which deals with the criminal charges in India. Chapter XVII of CrPC exclusively deals with “The Charge”.
Most of cases the Court of Magistrate is considered as the court of the first instance or the trial court, but in some cases like in case of Murder, Rape etc. where the punishment exceeds 10 years the first court of instance is Session’s Court. Usually, the Magistrate take cognizance of the offence/s and initiate the trial proceedings. He will be one who makes the charge sheet as well.
As per the procedure, the FIR (this is not applicable in case of private complaint always) and the closure report will be presented before the magistrate and he prepares the charges on the accused under his judicial prudence.
PARTICULARS OF CHARGE:
Section 211 to Section 214 deals with particulars of charge in general.
Section 211 is about the contents of the charge. The section explicitly says that every charge put on the accused shall state what offence he or she is accused with. We know that most of the criminal offences are codified under the Indian Penal Code of 1860, thus there are provisions (most of them are) with proper titles. If the accused is charged with any of these offences where the title itself indicates the name of the offence then the title used shall be used for the purpose of charging an accused with that offence. If there is no title or name to the offence then the definition of the same shall be mentioned. This is specifically mentioned because in an adversarial system the accused shall know what all are charged against him. No ambiguity or confusion is entertained in the identification of charges, while one read it. The law and the section of the law shall be mentioned specifically. All these shall be written in the language of the Court.
There are provisions in the law, where the punishment is severe for subsequent offences. In those cases, where the accused has already convicted for the same offence earlier then the fact, date, place of the previous conviction shall be recorded in the charge.
Section 212 specifically deals with time, place and person. The charge shall contain the time and place of the alleged offence and the person if there is any against whom it is charged or the thing if there is any in respect of which the offence was committed. This is something to give reasonable notice to the accused of the offences he has charged with.
The second subsection to the provision says that, if the accused is charged with offences of criminal breach of trust or dishonest misappropriation of money or other movable property, then the court shall record the specific amount (the gross sum) or the movable property (like a diamond ring or a table or a pen) of which the offence has been committed along with the dates it has been committed. If this is not specified say the items and the dates are not specified then all shall be treated as one offence as said in S. 219 (three offences of the same kind within a year may be charged together). The proviso again asserts the particulars of S. 219 stating that the offences shall be within a year.
Section 213 is something a bit deeper and steep. This provision says that the manner of committing an offence and when it shall be recorded. There are offences where the particulars like title, definition, date, time, place and person may not be sufficient to give accused a reasonable notice with regard to the matter. In those cases the charge shall also contain such particulars as to the manner in which the alleged offence was committed. For example, in case of cheating the charge must contain the manner of cheating. But this won’t be necessary in case of a theft.
Section 214 deals with the words used in a charge. While recording a charge the words so used in describing an offence shall be considered to have been used in the sense attached to them by the law under which the said offence is punishable. This is for giving more clarity towards the offence charged against the accused.
In short, the contents of charge must contain the offence with which the accused is charged with, the specific name of the offence, if it is given by law or the description of the offence & the law and section under the law against the offence has been committed. The contents of a charge shall be in the language of the court.
CAN CHARGE BE ALTERED?
Once Charges are fixed on an accused then the trial begins soon. But what if there is a glitch happened while framing of charges. It is very well known that an FIR or any other police report is not the ultimate authority to consider one person as guilty of an offence or not. The court finds a person guilty during the trial and the same is pronounced as a judgment at the end of the trial. Thus, it is obvious that there may be a difference regarding the guilt of the person of an offence as well. But still, we have the charges already framed. So, what we will do?
Section 216 plays in such a circumstance. It deals with the alteration of charges. Any court may alter the charges or add any charges at any time before the judgment is pronounced. In case of addition the same has to be read and explained to the accused very well. He should not be unknown about the newly added charges against him.
Then the major question is how it will affect the trial thereafter. Subsection 3 to the provision states that, if the court opines that the alteration or addition of charges will not be prejudicial to the accused in his defence or the prosecutor in the conduct of the case, then under the Court’s discretion the trial can be proceeded as the altered or added charge had been the original charge. The fifth subsection speaks about one practical aspect. There are cases where the prosecution needs the previous sanction. If those altered or added charges are of this nature then the trial shall not proceed until the sanction is gained. If it is already obtained then this won’t apply.
EFFECT OF DEFECTIVE CHARGE:
Another obvious question is, what if there is an error in the framed charges?
Section 215 deals with the effect of errors. According to this provision, no error while framing charges is considered as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. The defect stated can be with regard to stating the offence or other particulars required to be stated in the charge and omission to state the offence or to any of those particulars at any stage. There are five illustrations to this provision as well.
Charges are usually framed by Magistrate. But in some offences, the first court of instance is Session’s Court and the charges are framed by the Session’s Judge.
The general principle regarding charges as purported by Section 218 of the Code of Criminal Procedure, 1973 is that every offence of which a particular has been accused shall come under a separate charge and each such charge shall be tried separately and distinctly. This means that each offence has to be treated as a separate entity and should be tried distinctively.
But, Section 218(2) carves out exceptions to Section 218(1). The provisions of Section 219, 220, 221 and Section 223, override the provisions as mentioned under Section 218 of the Code of Criminal Procedure. This means that Section 219- 223 talks about the Joinder of Charges.
The general rule in case of charges is that there shall be a separate charge for every distinct offence, which shall be tried separately. But, Sections 219, 220, 221 and Section 223 carve out the exceptions to this basic rule. In simpler words, a separate trial is a rule while a joint trial is its exception.
The provisions regarding the exceptions have only enabling nature, and it is at the discretion of the Courts whether or not to apply them to a particular case. In the case of Ranchhod Lal v. State of Madhya Pradesh AIR 1965 SC 1248, it was held that it is at the discretion of the court whether to apply Section 219, Section 220 and section 223 of the Code Of Criminal Procedure, 1973 or resort to Section 218. The accused has not been given this right to resort to joinder of charges.
The question regarding the misjoinder of charges and joint trial for distinct offences was answered by the Supreme Court in the case of Union Of India v. Ajeet Singh (2013) 4 SCC 186. It was held by the court that the principles underlying the provisions in the Code of Criminal Procedure, 1973 only act as a guiding principle.
On a personal note defective of charges needs an amendment.
This Article is Authored by ARCHANA P. P, 5th Year B.A. LL. B (Hons) Student at The National University of Advanced Legal Studies.
