Charge under Crpc

Charge under Crpc

Meaning & content, framing, joinder & alteration of charge, error& withdrawal of charge

By Muhammad Iftekhar Khan, student at Banaras Hindu University

Meaning of charge

Charge simply means informing the accused person on grounds on which the accused is charged, and it is not exactly defined under crpc.

It is a stage of procedure after the cognizance had been taken by the magistrate and after charge framing trial begins.

Sec.2(b) of Crpc states that charge include any head of charge when the charge contains more than one head. But charge has not been clearly defined by Crpc,  Sec.2b in itself talking about joinder of charge.

Proper meaning of charge would be accrued by reading S.211(1) r/w s.228 ,240, 246 & 251 of Crpc.

Section 211(1)- According to this section  every charge shall state the offence with which the accused is charged.

Section 228 and 240 deals with the framing of charge

Section 246 deals with procedure where accused is not discharged

Section 251 states that substance of accusation to be stated in case of summon cases.

Objective of charge framimg

It was observed in case of Bharamappa gogi v. Praveen murti 2016 SC, that the objective of charge framing is-

-to aquaint the accused with incriminating facts and circumstances of the case to be proved against him

-to give opportunity to defend himself to accused

-to eliminate any kind of prejudice

-to find the genuineness of case

Content of charge

Content of charge has two aspects

1- legal aspect

2 -factual aspect

Legal aspect

Its has been dealt by sec 211 of crpc, and according to that

-every charge shall state offence with which accused is charged [ S.211(1)]

-if any specific has been given to the offence then the description of the same is necessary [ S.211(2)]

-proper definition should be given of the offence if any specific name is not given [S.211(3)]

-law and the sections of the offence shall be mentioned in charge  [S.211(4)]

Factual aspect

It has been given in Sec.212 of Crpc and according to that the necessary particulars such as time, place of commission of offence and person against whom the offence has been committed etc should be mentioned in the charge.

Framing of charge

The responsibility of framing of charge is given to trial court. The courts has the responsibility of framing along with reading and explanation of the charge to the accused

Following sections are relevant regarding this

-S.211(6)- framing reading and explanation of charge should be done in the language of court

-S.211(7)- deals with the framing of charge in case pf previous convicts

-S.216 and S.217 deals with the alteration of the charge

-S.227 and S.228 deals with the session trial

-S.239 , S.240, S.245 and S.246 deals with the warrant trial

Joinder of charge

S.218 states that-For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately

But proviso to this section provides the exception for joinder of charge  s.218.

According to the Proviso, where the accused person, by an application in writing  desires and the Magistrate is of opinion that such person is not likely to be prejudiced then Magistrate may try together all othe charges or any number of the charges framed against such person.

It means that when separate charges are framed for different offences but tried together in single trial, it is known as joinder of charges

Purpose

Pupose of this exception is to avoid the multiplicity of evidence and procedures and also to avoid the problem of multiple presence of accused 

condition

1-at the desire of the accused; and

2-with the permission of the magistrate. Here permission contains two things-

1. permission for joinder

    b- permission to the extent of joinder

When joinder of charge is used ?

1. At the desire of the accused and with the permission of the magistrate –Proviso to s.218
2. When Offence committed in same transaction [ s.220(1) & S.223(d)]
3. When there is a criminal breach of trust or dishonest misappropriation of property along with the falsification of account with the purpose of concealing the former act  [s.220(2)]
4. When any act falls under two or more definition [s.220(3)r/w 71 IPC]
5. When different offence are clubbed together and it gave rise to new offence s.220(4). 

Ex- s.395 & s.302 IPC when clubbed together give rise to new offence i.e. dacoity with murder u/s.396 IPC

6. In case of cognate offences. It can be understood under following categories-

    a-same offence

    s.219 says joinder can be made when there is offence of same     kind with same punishment and same sections of penal code are  involved, then within 12 month maximium of 3 charges can be joined

             b-similar offences

            According to s.221, when there is a doubt to what offence has     been committed then magistrate may frame cumulative or alternative   charges

            when any person is charged for one offence but on evidence found committed another offence. Here also joinder will be there even though person was not initially charged

            c- major and minor offences

         according to s.223,when any person is charged with several   particulars and on combination of some of which give rise to complete minor offence

Withdrawal of charge

According to s.224 withdrawal of the remaining charge can be made on conviction of atleast one of the charge. Withdrawal can be made by the complainant and prosecutor with the consent of the court

There are two condition  which is required for the withdrawal of the charge-

 1-conviction must be there for atleast one charge

 2-no appeal has been made against the convivtion

Error in framing of charge

Error in framing of charge include error in framing ,non framing, joinder or in communication of charge.It can be understood with the s.215r/w s.464.

s.215- Effect of errors.

s.464-  It deals the effect of omission to frame, or absence of, or error in, charge.

On analysing both the section it can be inferred that if  any error has been found by court then it will be seen that whether it is a material error or non material error. In case of non material error, court will treat it as no error but in case of material error court will have two options-

         a-court may alter the charge [s.216]

         b-court may recall the witnesses [s.217]

Here any error will be treated as an material error when accused is in fact mislead by error and it leads to the failure of justice

Alteration of charge

S.216 & 217 deals with the alteration of charge.

Alteration also include addition of charge, and it can be made at any time before the judgment has been made. Section also provides that any alteration which is made, should be communicated to the accused.

After alteration court considers three things-

1. whether after alteration there is a non material change. If it is found then courts continues with the same trial [s.216(3)]
2. whether after alteration there is a material change. If it is found then court has option to adjourn the trial or to start the new trial [s.216(4)]
3. whether any previous sanction is needed if it is found then court will stay with the proceeding [s.216(5)]

And after the alteration of charges and action of court thereto, parties to the case has two options as per s.217. Party may make resummoning, recalling, or re examination of old witnesses, or may call new witness with consent of the court.

Relevant Case laws

In case of Soma Chakravarty vs State through CBI 2007,court observed that charge framing will be done on the prima facie situation.

In this case Vikram Johar vs UP State 2019 and State By Karnataka Lokayukta Police vs M. R. Hiremath 2019 ,Supreme Court observed that at charge framing stage,  only those evidences are considered which are on record.

In case of Somnath Thapa vs State of Maharashtra 1996,it was observed that consideration for framing of charge and conviction is different. In framing of charge consideration of possibility of offence committed by accused but in case of conviction the consideration is certain that accused had committed the crime.

In case of Shivnandan paswan v. state of Bihar 1985,Court observed that in case of with drawal of charge public prosecutor should apply his own mind and don’t simply act on the direction of the state

In case of Sanichar Sahani v. state of Bihar 2003,Court observed that any error in framing of charge should be tested on real prejudice criterion

In case of Kamil v. state of UP 2018,accused is charged with s.324 r/w s.34 ipc but got convicted for s.302 r/w s.34 ipc. Court observed that there is no any material error

In case of CBI v. Karimullah khan 2018, Court observed that alteration of charge can be made at any stage of case

Conclusion

With the above discussion it is clear that charge framing stage is an important part of the proceeding. It should be dealt with utmost care as the entire trial will be based on the framing of charge. It gives opportunity as well as right to the accused to defend himself against all possibilities and to eliminate any kind of prejudice.