Guidelines for framing a charge against the accused

 

GUIDELINES FOR FRAMING A CHARGE AGAINST THE ACCUSED.

 

According to sections 211,212,213,214,215,216,217,218,219(1) of CrPC the guidelines for framing a charge against the accused is as follows:

Section 211: Contents of charge

1.  Every charge under this code shall state the offence with which the accused is charged.

2.  If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.

3.  If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.

4.  The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.

5.  The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

6.  The charge shall be written in the language of the court.

7.  If the accused, having been previously convicted on any offence, is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.

Illustrations:

a.  A is charged with murder of B. This equivalent to a statement that A’s act fell within the definition of murder given in sections 299 and 300 of Indian penal code (45 of 1860), that it did not fall within any of the general exceptions of the said code, and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within exception 1, one or other of the three provisions to that exception applied to it.

b.  A is charged under section 326 of the Indian penal code (45 of 1860), with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said code, and that the general exceptions did not apply to it.

c.  A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property – mark. The charge may state that A committed murder, or cheating or theft,or extortion, or adultery, or criminal intimidation, or that he used a false property mark, without reference to the definition of those crimes contained in the Indian penal code (45 of 1860); but the sections under which the offence is punishable must, in each instance, be referred to in the charge.

d.  A is charged under section 184 of the Indian penal code 945 of 1860) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.

Section 212: Particulars as to time, place and person

1.  The charge shall contain such particulars as to the time and place of the alleged offence, and the person(if any) against whom, or the thing(if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

2.  When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219;

Provided that the time included between the first and last of such dated shall not exceed one year.

Section 213: When manner of committing offence must be stated

When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.

Illustrations:

a.  A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which the theft was effected.

b.  A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.

c.  A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.

d.  A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place. The charge must set out the manner in which A obstructed B in the discharge of his functions.

e.  A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.

f.   A is accused of disobeying a direction of the law with intent to save B from punishment. The charge must set out the disobedience charged and the law infringed.

 

Section 214: Words in charge taken in sense of law under which offence is punishable

 

In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.

 

Section 215: Effect of errors:

“No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact mislead by such error or omission and it has occasioned a failure of justice. It is well established principle that an accused can consent to nothing, which is not authorised by law. What is called benefit of doubt is not the same thing as the benefit of mistake as to weapons used by the accused.

Illustration :

A is charged with cheating B and the manner in which he cheated B is not set out in the charge or is set out incorrectly. A defends himself, calls witnesses and gives his own account of transaction. The court may infer from this that the omission to set out the manner of the cheating is not material

Section 216: Court may alter charge

1.  Any court may alter or add to any charge at any time before judgment is pronounced.

2.  Every such alteration or addition shall be read and explained to the accused.

3.  If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

4.  If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.

5.  If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

 

Section 217: Recall of witnesses when charge altered.

 

Whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed:-

a.  To recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice.

b.  Also to call any further witness whom the court may think to be material

         Section 218: Separate charge for distinct offences

1.  For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately.

Provided that where the accused person, by an application in writing, so desires and the magistrate is of opinion that such person is not likely to be prejudiced there by, the magistrate may try together all or any number of the charges framed against such person.

2.  Nothing in sub-section(1) shall affect the operation of the provisions of sections 219,220,221 and 223.

Illustration:

A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately charged and separately tried for the theft and causing grievous hurt.

There should be a separate charge for each distinct offences.

 

Section 219(1): Three offences of same kind within a year may be charged together.

 

1.  When a person is accused of more offences that one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.