INTRODUCTION
Providing precise pieces of information about the accusations to the suspect is one of the fundamental requirements of a fair criminal trial. For counter defence, this information will be helpful to him/ her. In Indian Criminal Procedure (starting now, the Code), the accused is informed about the accusations before the initiation of proceedings.[2] If he/ she is charged with a serious crime, then these accusations should be clearly and precisely formulated and be reduced to writing.[3] Thus, such ‘charge’ is to be read over and explained to the accused.
However, the Code has formulated that for each offence, there has to be a separate charge, and each separate charge will have a separate trial.[4] This paper will delve into the significance of this provision in the Criminal Procedure of India. It is also an attempt to understand scenarios where the court can do away with having a separate charge. Instead, club these charges and try them under a single trial. It is also necessary to know what is ‘charge’ under the Code.
CHARGE
Section 2(b) of the Code of Criminal Procedure, 1973, defines ‘charge’. However, the definition is complex to decipher. There is nothing in the description to tell what ‘charge’ means. In laymen terms, ‘charges’ are the alleged offences that a person is accused of and will be tried for in the court of law. The sole purpose is to give equal opportunity to the accused of preparing defences and availing justice. The accused should have an unambiguous, precise and clear knowledge of the accusations levied on him/ her. The same was upheld in the case VC Shukla v State through CBI.[5]
SECTION 218: SEPARATE CHARGES FOR DISTINCT OFFENCES
218 of the Code provides the fundamental rule concerning ‘charge’. It says that
“for every distinct offence the person is accused of, there shall be a separate charge and every such charge shall be tried separately. Though, if the accused wants and the Magistrate believes that it will not be prejudiced to the accused, the Magistrate may try together all or any number of the charges framed against such person.”[6]
As highlighted in previous paragraphs, this rule is accused of favouring. It is to save such a person from embarrassment while defending the case. Separate charges with separate trials also prevent any bias of the court, which can be prejudicial to the accused. It prevents the court from getting influenced by any evidence or witness summoned in a different charge.
At this stage, it is crucial to delve in the interpretation of Distinct offences. Distinctions can be based on time of occurrence, place, victims or acts. To better the understanding, let us discuss Banwarilal Jhunjhunwala v Union of India.[7]In this case, there was a firm which entered into a supply contract. They had to supply a particular specified variety of wood to the Railways.[8]The supply had to be done at different places of varying qualities.[9]The firm did not keep up with the promise and supplied inferior quality wood.[10]The certifying officers whose sole job was to inspect the quality of wood; did not check honestly and issued false certificates.[11]Relying on these false certifications, the firm got their payments.[12] The firm was charged under §109, 120-B and 420 of the Indian Penal Code. Also, under §1(d) read with §5(2) of the Prevention of Corruption Act, and were sent up for trial.[13]
In the hearing, it was contended that each transaction at distinct places should be considered a separate offence. It should not be regarded as a single offence by single charge considering all the deals one whole. There are different offences of cheating and finding all those a part of one only offence is contrary to law.
The court held that it is not opposed to law and all the transactions at different places amount to one single offence of cheating. The conspiracy was not to get various cheated sums but to benefit from one single sum of money from all the transaction. It was to cheat the whole amount due under the contract of trade.[14] At the same time, the judges agreed that all different transactions against the separate bill did constitute the offence of cheating. However, all these transactions were aimed at obtaining that more significant sum.
From the above case, it is clear that there is no straightjacket formula to determine a distinct offence. The court has to resolve it on case to case basis. If in the above example, the time of occurrence would have spanned over some time, it might have been considered a distinct offence. Further, if there have been different conspiracy contracts involved, it would be possible to frame a separate offence. Such discretion is left with the court who can balance out the situation and initiate the trial accordingly.
EXCEPTIONS TO THE RULE OF SEPARATE CHARGE
At this stage, it is essential to note that if separate offence rule is strictly followed, there will be a multiplicity of cases. Therefore, exceptions to this rule are provided in the Code under §219, 220, 221 and 223.[15] However, these sections are not mandatory; they are merely enabling provisions. If the offences fall under any exceptions, the court still has the discretion to order a separate trial.[16] The accused cannot claim it as a right. Even the Supreme Court has upheld this stance.[17]
ESSENTIALS OF EXCEPTIONS
- Consent cannot be a basis for a joint trial. The scenario must fall within these clauses.
- These rules are not to be employed to the detriment of the accused.
- The clauses are not mutually exclusive, but you cannot apply them in parts.
- The power is discretionary.[18]
CONCEPTS OF EXCEPTIONS
- To prevent multiplicity of offences (§219, joint trial).[19]
- To ensure comprehensiveness and convenience (§220(1), Single-trial of offences in the same transaction).[20]
- Trial for more than one cases of criminal misappropriation & breach of trust (§220(2), to give effect to the fiction in §212(2)).[21]
- When one criminal act has several aspects, all of them should be adjudged together[22] (§220(3) & (4)).[23]
- The rare class of cases where while the evidence can establish broad fact about the offence, not all the incidents and circumstances are known. Then it is permissible to charge the accused with having committed all or any of different but connected offences and also to convict him of an offence which he has not been expressly charged (§221).[24]
- The joint trial of several persons in specified cases because of some primary connection between the various offences committed by him (§223).[25]
Exception 1: SECTION 219
Three offences + Same Kind + Within one year = Can be joined under on trial. Only one person can be brought within the ambit of this exception.
Exception 2: SECTION 220(1)
It talks about joining of charges if the offence is committed in the same transaction. Here, the word ‘transaction’ is nowhere defined in the Code. However, the proximity of time or place/ unity of purpose and design/ continuity of action in respect of a series of acts can help determine the same transaction.[26] Also, it is not necessary that each one of these elements must co-exist. A proximate connection between the series of acts is the relevant question.
Exception 3: SECTION 220(2)
This provision talks about criminal misappropriation, criminal breach of trust and their companion offences of falsification of records. All these can be clubbed together and tried in a single trial. In a nutshell, a joint hearing of companion offences is permitted.
Exception 4: SECTION 220(3)
Sometimes the same criminal act may fall under different definitions of the offence provided in distinct statutes. Such charges can also be tried together.
Exception 5: SECTION 220(4)
Acts forming an offence, also constituting different offences when taken separately or in groups are to be tried together. Example: hurt caused during a robbery. Such offences can be clubbed and tried together.
Exception 6: SECTION 221
This provision talks about situations where it is doubtful what offence has been committed. This provision covers the situation where the broad facts constituting the offence is known, but the specifics are not available. Alternative charges are permitted in such cases. It is also possible to convict the accused of the offence that was not expressly charged but might have been charged. The section can apply only concerning cognate offences and not when the offences are of district character.
Exception 7: SECTION 223
Talks about situations in which certain accused people can be tried together on account of some essential connection between the various offences.
CONCLUSION
Hence, just so that the accused can be well-prepared with his defences, it is essential to tell him about his accusations and how is he going to be tried. While doing so, it is also necessary to frame different charges so that there could be a free and fair trial; hence, avoiding any influence of pieces of evidence and witnesses of one charge on the trial of another accusation. However, it is also necessary to club these charges, if and when, needed to prevent multiplicity of cases.
[2] The Code of Criminal Procedure, 1973, §211.
[3]Ibid.
[4] The Code of Criminal Procedure, 1973, §218.
[5]VC Shukla v State through CBI, 1980 AIR 1382.
[6] The Code of Criminal Procedure, 1973, §218.
[7]Banwarilal Jhunjhunwala v Union of India, AIR 1963 SC 1620.
[8]Ibid.
[9]Ibid.
[10]Ibid.
[11]Ibid.
[12]Ibid.
[13]Ibid.
[14]Ibid.
[15] The Code of Criminal Procedure, 1973, §218(2).
[16]Chunoo v. State, AIR 1954 ALL 795.
[17]Union of India v Ajeet Singh, (2013) 4 SCC 186.
[18]State of Andhra Pradesh v Cheemalpatti Ganeshwara Rao, AIR 1963 SC 1850.
[19] The Code of Criminal Procedure, 1973, §219.
[20] The Code of Criminal Procedure, 1973, §220(1).
[21] The Code of Criminal Procedure, 1973, §229(2).
[22]Jodhpur Woolen Mills ltd v State of Rajasthan, 1995 CriLJ 769 ¶5.
[23] The Code of Criminal Procedure, 1973, §220(3), (4).
[24] The Code of Criminal Procedure, 1973, §221.
[25] The Code of Criminal Procedure, 1973, §223.
[26]Praveen v State of Maharashtra, 2001 CriLJ 34176 ¶10.
This article is authored by Kartik Sharma, Third-Year, B.A.LL.B. (Hons) student at The West Bengal National University of Juridical Sciences, Kolkata.
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