Laws relating to charge

LAWS RELATING TO CHARGE

A project File Submitted To

Rayat College Of Law

In Partial Fulfillment Of The Requirement Of

Course

B.Com L.L.B. (Hons.) For 6th Semester

Subject: Code Of Criminal Procedure

Under The Supervision Of: Submitted By:-

Mr. Sonu Saini Komal

Assistant Professor B.Com L.L.B

Rayat College of Law 6th Sem

Railmajra 14621

RAYAT COLLEGE OF LAW(RCL)

SESSION- 2018-2019

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CERTIFICATE OF ORIGINALITY

I am pleased to declare that this project file titled Charge is my original work which assigned to
me as per my syllabus under the supervision of Assistant Professor Mr. Sonu Saini.

All sources used for this project file has been fully and properly cited. It contains no material
which to a substantial extent has been accepted for the award of any other such paper by any
college or any university, except where due acknowledgement is made in this project file.

Under The Supervision Of: Submitted By:-

Mr. Sonu Saini Komal

Assistant Professor B.com L.L.B

Rayat College of Law 6th Sem

Railmajra 14621

ACKNOWLEDGEMENT

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I would like to express my special thanks of gratitude to my teacher Sonu Saini who gave me the
golden opportunity to do this wonderful project on the topic Charge, which also helped me in
doing a lot of Research and i came to know about so many new things I am really thankful to
them.

Secondly i would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

TABLE OF CONTENTS

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1. Introduction……………………………………………………………………………....5
2. Meaning of charge……………………………………………………………………..5-6
3. Purpose……………………………………………………………………………..……..6
4. Object………………………………………………………………………………...…6-7
5. Form and contents of charge…………………………………………….....................7-8
6. Alteration and addition to charge…………………………………………………...8-11
7. Joinder of Charge…………………………………………………………………...11-12
8. Basic rule and exceptions…………………………………………………………...12-22
9. Conviction of an offence not charged when such offence is included in offence
charged……………………………………………………………………………....21-23
10. Withdrawal of Charge………………………………………………………………….23
11. Effect of omission or error………………………………………………………….23-24
12. Quashing of Charge…………………………………………………………………24-25
13. Conclusion……………………………………………………………………...……….25

INTRODUCTION

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In order to have a fair criminal trial, the accused should know the accusation against him. This is
necessary so that he can prepare his defence. The accused is informed about the accusation
against him in the beginning of the trial.

he object of the rule embodied in the sec. 218 of Cr. P. C., is to ensure a fair trial and to see that
the accused is not bewildered or perplex to confuse by having been asked to defend several
unconnected charges or distinct offences lumped together in one charge or in separate charges.
We will read the rules relating to joinder of charges described in different part of this section.
There is no exception to the rule that there should be separate charge for each offence.

The court shall frame the charge in form whether he committed such offence as alleged in the
F.I.R. On framing the charge, if accused denies, the court records his denial in writing and
proceeds for trail.1 In a criminal trial th4e charge is the foundation of the accusation and every
care must be taken to see that it is not only properly framed but evidence is only tendered with
respect to matters.2 The provisions regarding charge are contained in section 211 to 224 and 464.
The section 211 to 214 deal with what the charge should contain. Section 216 and 217 mention
the power of the court to alter the charge and the procedure to be followed after such alteration.
Section 218 gives the basic rule that for every offence there shall be a separate charge and every
charge shall be tried separately. Sections 219,220,221 and 223 give exceptions to the above rule.
section 222 deals with the circumstances in which the accused can be convicted of an offence for
which he was not charged. Section 224 mentions the effect of withdrawal of the remaining
charges on conviction of one of the several charges. Sections 215 and 464 mention the effects of
errors in stating the offence or other particulars in the charge, and of omission to frame, or error
in the charge

MEANING

Charge simply means an accusation. Charge is a notice of the allegation that is given to the
accused giving clear intimation of the nature of the accusations. It should be concise and precise
information of what the prosecution intends to prove against him and what he should defend.

1
http://thelawstudy.blogspot.com/2015/12/charge-its-contents-and-purpose.html
2
Ramkrishan swalaram redkar v. state of maharshtra 1980 Cri. LJ 254 (Bom)

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In Biricch Bhuian Vs Stae of Bihar 3 it was observed that A charge may be defined as precise
formula of a specific accusation made against a person of an offence alleged to have been
committed by him.

DEEFINITION

There is no clear definition of charge given under the code, however Section 2 (b) of the Cr.P.C
which reads as follows:- “ 2. Definitions. – In this Code, unless the context otherwise requires, –
(b) charge includes any head of the charge when the charge contains more head than one”.
According to Section 2 (b) of Cr.P.C, when a charge contains more than one heads, the head of
charges is likewise a charge.

The legal position is well settled that at the stage of framing of charge the Trial Court is not to
examine and assess in detail the materials placed on record by the prosecution nor is it for the
Court to consider the sufficiency of the materials to establish the offence alleged against the
accused persons. At the stage of charge the Court is to examine the materials only with a view to
be satisfied that prima facie case of commission of offence alleged has been made out against the
accused person.4

Tulsabai v. State of M.P.;5: at the time of framing of the charge, the Court need not to make
elaborate enquiry. The order of framing charge even cannot be interfered if prima facie materials
are found.

PURPOSE OF CHARGE

The purpose of charge is to give a notice to the offender that a case against him has been
instituted and also gives him information about the nature of accusations instituted against him,
so that he can prepare his defence accordingly. It is to tell the accused, as precisely as possible
about the matter with which he is charged.

OBJECT OF CHARGE

The object of the charge is to warn the accused of the case which he has to answer.

3
AIR 1963 AIR 1120
4
https://kanoonirai.com/alteration-of-charge/
5
1993 Cri LJ 368(M.P.)

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In V C Shukla Vs State6, The Court held that the purpose of framing of charge is to give
intimation to the accused of clear, unambiguous and precise notice of the nature of accusation
that the accused is called upon to meet in the course of trail.

CHARGE

ALTERATION AND BASIC RULE AND IRREGULARITIES IN

FORM AND CONTENT OF CHARGE

Section 211 of Crpc provides for the contents of charge. It is as follows7:-

1. Offence to be stated – In a charge sheet, the offense must be expressed, so that the
accused may shield him.
2. Description of Offence by Name – The Charge ought to depict offense by name which is
given by that the creates an offense.
3. Definition of offense – Where the criminal law does not give any specific name to the
offense than a definition/ meaning of the offense must be expressed.
4. Law or Section of Law – A charge must contain the law or the section of the law against
which the offense is asserted to have been committed.
5. Compliance with substantive Requirements of offense – The charge must fulfill the
requirements of offense, i.e., which it must not come within the exceptions, or if it comes,
then it must be mention in it.
6. The language of the Charge – The charge shall be framed in English or the Court’s
language or the language understandable by an accused.

6
1979 AIR 962)
7
https://www.legalbites.in/crpc-notes-charge-allegations/

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7. Previous conviction of the accused – Where the accused is liable to enhanced punishment
by virtue of his previous conviction and such previous conviction has to be proved; such
charge might state the fact, date, and place of the previous conviction.

Section 212. provides for Particulars as to time, place and person

Clause 1 says that the charge should contain the time and place where the offence was committed
and the person against whom the offence was committed so that the accused gets the notice of
the offence with which he is charged.

2. if the accused is charged with criminal breach of trust or dishonest appropriation of money or
other property, then the gross sum or the dates on which it was committed should be mentioned.
There is no need to specify particular items or exact dates. Also, the charge framed shall be
treated as one offence .

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

Section 213. when the manner of committing the offence must be stated.

When the details mentioned in sections 211 and 212 are not sufficiently informative to the
accused about his accusation, then the charge shall include the briefs of the manner in which the
offence was committed.

Section 214 words in charge taken in sense of law under which the offence is punishable.

The words used to describe the offence in every charge shall have the same meaning as under the
law under which such offence is punishable.

ALTERATION OF CHARGE AND PROCEDURE TO BE FOLLOWED AFTER SUCH

Power to alter charge

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Alteration of charge may be taken place during the trial if court found that there is sufficient
material on record to show commencement of any offence which is not charged by the court8

Section 216. court may alter charge.

216(1) provides for the power of the court to alter or add any charge before the judgement is
pronounced.

Procedure after alteration of charge:

After the alteration of charge, the following procedure is followed i.e. mentioned in section
216(2) to section 216(5) and section 217.

216(2) provides that every alteration or addition shall be read over and explained to the accused,
so that he may prepare his defence.

216(3) provides if the court thinks that the alteration or addition to the charge is such that
proceeding further with the case will not do any injustice to the accused or the prosecutor, the
court may proceed with trial as if the altered charge was the original charge. However it is the
discretion of the court. In Ranbir yadav v. state of Bihar9, it was observed that the touchstone
of such a direction, as to a fresh trial, would be an evaluation by the judge, as to whether
prejudice has been caused to the accused or prosecution due to such an alteration.

216(4) provides if the court thinks that the alteration or addition to the charge is such that
proceeding further with the case will do prejudice to the accused or the prosecutor, the court has
two options: either direct a new trial or adjourn the trial. It is the court’s discretion.

216(5) says that if previous sanction is necessary for the offence stated in altered charge, the
court shall not proceed with the case until such sanction is obtained, unless such sanction has
already been obtained for the same charge.

In Gokulchand Dwarkadas Morarka v. R10, it was observed by the court that the concluding
words-“unless sanction has been already obtained for a prosecution on the same facts as those on

8
https://kanoonirai.com/alteration-of-charge/
9
1995 4 SCC 392
10
(1948) 49 Cri LJ 261

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which the altered or added charge is founded”- show that the legislature contemplated that the
sanctions under the Code would be given in respect of the facts constituting the offence charged.

Sec. 216 of CrPC confers jurisdiction on all Courts, consisting specific Courts too, to modify or
add any charge framed earlier, at any time before the judgment is pronounced. 11 The courts are
empowered enough to change the charges if there is something which is left out during previous
proceedings. The test is that it must be carried out by considering the materials available on the
record.12

In Thakur Shah v. Emperor13; The Privy Council spoke on alteration or addition of charges as
follows:

“The alteration or addition is always, of course, subject to the limitation that no course should be
taken by reason of which the accused may be prejudiced either because he is not fully aware of
the charge made or is not given full opportunity of meeting it and putting forward any defence
open to him on the charge finally preferred.”

In Jasvinder Saini and Ors.v.State (Government of NCT of Delhi) 14, it was observed that The
Courts are entrusted through statutory provisions to exercise the power of addition of charge or
modification of charges when some materials are placed before the court, which has reasonable
nexus with the charges which are sought to be added or modified.

In Hasanbhai Valibhai Qureshi v. State of Gujarat,15: The supreme court is held that
Whenever an application is moved for alteration or addition of the charge under section 216 of
the code, the court should decide on a consideration of broad probabilities of the case, based
upon total effect of the evidence and documents produced is satisfied that any addition or
alteration of the charge is necessary.

11
C.B.I.v.Karimullah Osan Khan,AIR 2014 SC 2234.
12
Hasanbhai Valibhai Qureshiv.State of Gujarat and Ors., (2004) 5 SCC 347.
13
AIR 1943 PC 192
14
(2013) 7 SCC 256.
15
AIR 2004 SC 2078

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Section 217 provides for the recall of witnesses when charge altered.

It says that whenever a charge is altered by the court, the prosecutor and the accused shall be
allowed to recall any witnesses for the examination in relation to the altered or added charge, the
accused has a right and the court is bound to recall the witness whom the prosecution or accused
desires, unless the court thinks that the prosecution or accused desires to resummon the witnesses
just to defeat the ends of justice or for delaying the proceedings, then it may refuse. The court
shall also record its reasons for doing so in writing.The court can also call any further witness if
it thinks material.

The provisions of this section are mandatory and the Court is bound to allow the prosecution and
the accused 10 recall and examine any witness who may have been already examined. The
omission to comply with the provisions of this section is not curable under Section 464 of the
Code16

JOINDER OF CHARGES:

BASIC RULE OF CHARGE

Separate charges for Exceptions to the Basic Rule

Where it is
doubtful what
Three offences of same Persons
Trials for more than offence has been
kind within year be charged
one offences (220) committed (221)
charged together (219) jointly(223)

Sections 218 to 224 deal with joinder of charges and they must be read together and not in
isolation. They all deal with the same subject-matter and set out different aspects of it. When
they are read together as a whole, it becomes clear that Sections 221 and 222 cover every type of
16
http://www.shareyouressays.com/knowledge/section-217-of-code-of-criminal-procedure-1973-cr-p-c-
explained/115042

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case in which a conviction can be sustained when there is no charge for that offence provided
there is a charge to begin with.

BASIC RULE:

Section 218 provides for the basic rule. It says that every offence shall have a separate charge
and every separate charge shall be tried separately.

What is a distinct offence?

Offence can be distinct on the basis that it was done on different time, against different person or
can be of different nature.

Proviso to sub section 1 says that the accused person may apply to the magistrate that his charges
be tried together, the magistrates may allow it if he thinks that it won’t prejudice such person.

The object of Section 218 is to save the accused from being perturbed in his defence if several
charges which are in no way connected with one another, are lumped together in one trial. That
apart the mind of the Court is also likely to be prejudiced against the accused if he were tried in
one trial upon different charges resting on different evidence.

Effect of Contravention of Sec.218:- The effect of the contravention of the provisions of this
sec. has been considered by the Supreme Court in following number of cases:-

Sushil Kumar v/s Joy Shankar-17: It was held that charges under 408 and 477A of IPC could be
tried together. In this case several persons accused on several items of embezzlement were tried
jointly. There was no failure of justice in consequence of the joinder of charges had occurred.

In V.N. Kamdar v. Delhi Municipality18-: It was held, “that the provisions of sec. 218 to 224
would indicate that separate charge and separate trial for such distinct offence is the normal rule
and joint trial is an exception when the accused have committed separate offence.”

17
1971
18
1973

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In Banwarilal jhunjhunwala v UOI19 \it was observed that “The expression ‘every distinct
offence’ must have a different content from the expression ‘every offence’ or “each offence’. A
separate charge is required for every distinct offence and not necessarily’ for each separate
offence. ‘Distinct’ means “not identical.’ It stresses characteristics that distinguish while the
word ‘separate’ would stress the ‘two things not being the same.’ Two offences would be distinct
if they be not in any way inter-related. If there be some interrelation, there would be no
distinctness and it would depend on the circumstances of the case in which the offences were
committed whether there be separate charges for those offences or not. Such a view has been the
basis of certain decisions by the High Courts and this Court.

EXCEPTIONS TO BASIC RULE

218(2) provides that the exceptions to this basic rule are enumerated under sections 219,220,221
and 223.

Exception 1 to basic rule:

Section 219- Three offences of same kind within year may be charged together

The section provides one of the three exceptions to Section 218. The section bars a single trial of
more than three offences of the same kind committed within a span of one year. The section
merely authorises a combination or three offences of the same kind in a single trial. It does not
bar separate trial of the accused for each offence. It simply means that if one person did more
than offences, but not more than 3, of same kind within a year,then they can be tried jointly.20

What are offences of same kind?

The expression ‘offences of the same kind’ has been explained in sub-section (2) which says that
offences are of the same kind when they are punishable with same amount of punishment under
the same section of the Indian Penal Code or any special or local law. To illustrate,
embezzlement and abatement thereof are not offences of the same kind for the purpose of this
section.

19
AIR 1963 SC 1620
20
http://www.shareyouressays.com/knowledge/section-219-of-code-of-criminal-procedure-1973-cr-p-c-
explained/115044

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Proviso :

The proviso to Section 219 makes it clear that an attempt to commit an offence, where such
attempt is punishable by any law, is of the same kind as the actual offence. It says that section
379 and 380 of Indian Penal Code are same kind of offences and can be tried jointly. Thus the
offence under Section 307, IPC is of the same kind as the offence under Section 302, IPC.

The object of inserting proviso to this section is to avoid the necessity of the same witnesses
giving the same evidence two or three times in different trials, and to join in one trial, the
offences with regard to which the evidence would be overlapping.21

In Ranbir Kumar v. State of Punjab 22, three challans concerning offences in respect of
different charges were filed. In first and second challan, allegations of dishonest
misappropriation were on three counts but in the third challan it was on two counts. Detailed
particulars with definite dates, places and amount had been furnished.The Court held that
limitations for lumping three offences of the same kind within one year would be attracted in
such a case because lumping together charges at the stage of defence would result into some
prejudice to the accused.

Moreover, by presenting three separate challans more elaborate opportunity was afforded to the
accused. Under these circumstances, order rejecting prayer for clubbing of charge was proper did
not warrant any interference by the High Court.

The Allahabad High Court in Shri Ram Verma v. State23, has expressed a view that each of the
four exceptions mentioned in Sections 219, 220, 221 and 223 are to be individually relied upon
as justifying a joinder of charges in respect of any trial and it is not open to the prosecution to
take the help partly of one section and partly of another in order to justify the joinder of charges.
Thus each section is to be an exception individually and they cannot be joined together to
constitute an exception.

It has been held that the following are not the offences of the same kind for the application
of Section 219 of the Code—

21
www.legalbites.com
22
Punjab and Haryana HC 4 nov, 2004
23
AIR 1956 All 466, 1956 CriLJ 959

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(1) Forgery and giving false evidence (perjury)

(ii) Adultery and bigamy

(iii) Falsification of account and criminal breach of trust

(iv) Murder and grievous hurt.

Exception 2 to basic rule:

Offences committed in course of same transaction can be charged at one trial:

Section 220(1) of the Code of Criminal Procedure provides that if, in one series of acts so
connected together as to form the same transaction, more offences than one are committed by the
same person, he may be charged with and tried at one trial for, every such offence. Simply, if a
person commits more than one offence in a transaction, they can be tried together.

Illustration:

a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable
in whose custody В was. A may be charged with, and convicted of, offences under Sections 225
and 333 of the Indian Penal Code, 1860.

(b) A commits house-breaking by day with intent to commit adultery and commits in the house
so entered, adultery with B’s wife. A may be separately charged with, and convicted of, offences
under Sections 454 and 497 of the Indian Penal Code, 1860.24

What is a transaction?

The word ‘transaction’ means a group of facts so connected together as to involve certain ideas,
viz., unity, continuity and connection. If several acts committed by a person show a unity of
purpose or design that would be a strong circumstance to indicate that those acts form part of the
same transaction.25

24
Code of criminal procedure, 1973
25
http://www.shareyouressays.com/knowledge/offences-committed-in-the-course-of-the-same-transaction-
section-220-of-crpc/119453

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The word ‘transaction’ has not been defined in the Code. The Supreme Court in State of
Andhra Pradesh v. Cheemalapati Ganeswara 26, has observed that generally speaking where
there is proximity of time or place or unity of purpose and design or continuity of action in
respect of a series of acts, it may be inferred that they form part of the same transaction.

But the Supreme Court in K.T.M.S. Mohd. v. Union of India 27held that misjoinder of charges
cannot be said to be a mere irregularity but it leads to failure of justice and is a sufficient ground
for setting aside the conviction of the accused.

The Delhi High Court in Naresh Kumar v. State, 28held that where some heroin was recovered
from the attachi of the accused on the road and subsequently a few kilograms more heroin was
recovered from his house on his disclosure statement, both the recoveries formed a single
transaction and the two charges could be clubbed together and he could be tried in a single
composite trial.

Exception 3 to Basic rule:

Offences of criminal breach of trust or misappropriation of property:

According to Section 220(2) of the Code of Criminal Procedure, when a person charged with one
or more offences of criminal breach of trust or dishonest misappropriation of property as
provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219, is accused of
committing, for the purpose of facilitating or concealing the commission of that offence or those
offences, one or more offences of falsification of accounts, he may be charged with, and tried at
one trial for, every such offence.

It means that if any person commits the offence of criminal breach of trust or misappropriation of
property and commits offence to conceal it also, then these offences can be tried jointly.

Illustration:

26
1963 AIR 1850, 1964 SCR (3) 297
27
1992 AIR 1831, 1992 SCR (2) 879
28
18 July, 2008

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A wrongfully strikes В with a cane. A may be separately charged with, and convicted of,
offences, under Sections 352 and 323 of the Indian Penal Code, 1860.

Exception 4 to Basic Rule:

Same act falling under different definitions of offences, such offences may be tried at one
trial.

As per Section 220(3) of the Code of Criminal Procedure, if the acts alleged constitute an
offence falling within two or more separate definitions of any law in force for the time being by
which offences are defined or punished, the person accused of them may be charged with,
andtried at one trial for, each of such offences.

This section can be read with section 71 of Indian penal Code which says that “Where anything
is an offence falling within two or more separate definitions of any law in force for the time
being by which offences are defined or punished, or where several acts, of which one or more
than one would by itself or themselves constitute an offence, constitute, when combined, a
different offence, the offender shall not be punished with a more severe punishment than the
Court which tries him could award for any one of such offences.” Here also the accused can be
tried in one trial for all such offences.

Exception 5 to basic rule

Acts forming an offence also constituting different offences when taken separately or in
groups:

Section 220(4) of the Code of Criminal Procedure provides that if several acts of which one or
more than one would by itself or themselves constitute an offence, constitute when combined a
different offence, the person accused of them may be charged with, and tried at one trial for the
offence constituted by such acts when combined, and for any offence constituted by anyone, or
more, of such acts.

In simple words, if a person commits more than one offence and those offences when combined
constitute a different offence, then the accused can be tried at one trial.

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Here again the provisions of section 71 can be applied. It provides that where several acts, of
which one or more than one would by itself or themselves constitute an offence, constitute, when
combined, a different offence, the offender shall not be punished with a more severe punishment
than the Court which tries him could award for any one of such offences. However, section 220
(4) says that the accused can be charged and tried for all such offences at one trial

Section 220(5) says that nothing provided in section 220 shall affect section 71 IPC. The affect
of section 71 on sub section (3) and (4) have been discussed.

Exception 6 to Basic Rule

Where it is doubtful what offence has been committed?

Section 221(1) says that if the facts of an act are doubtbul that what exact offence that
constitutes, then the accused can be charged with all of them or all of them or any of them or any
number of charges can be tried at once.

Subsection (2) says that if a person is charged with one offence but the offence shows that he has
committed some other offence, then he may be convicted of that offence which he is shown to
have committed.

Commenting on the scope and applicability of the provisions contained in Section 221 of the
Code, the Supreme Court in Nanak Chand v. State of Punjab29, held that subsection (2) of the
section is entirely dependent on the provisions of sub-section (1) of the section.

The provisions of sub-section (1) would apply only in cases where there is no doubt about the
facts which can be proved by evidence but a doubt arises as to which of the several offences have
been committed on the proved facts in which case, any number of charges, can be framed. And if
there has been an omission to frame a charge, then under sub-section (2), the conviction could be
arrived at on the evidence although no charge for that particular offence has been framed.30

29
1955 AIR 274, 1955 SCR (1)1201
30
http://www.shareyouressays.com/knowledge/section-221-of-code-of-criminal-procedure-1973-cr-p-c-
explained/115041

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Reading both the sub-sections of this section together makes it clear that this section comes into
operation when on admitted facts of the case a doubt arises whether the offence (illegal act or
omission) committed by the accused falls under one or the other section of the Penal Statute.

In Sohrab Ali v. State of Assam 31the accused was charged of causing death of a pregnant lady
by administering poison to her. The High Court set aside the conviction under Section 302, IPC
but convicted him for an offence under Section 314, IPC on the same charge, holding that the
broad facts necessary for Section 314, IPC were seen incorporated in the existing charge and,
therefore, no prejudice was caused to the accused because of this alteration of the charge.

In Suresh Kumar v. State of Haryana32, the accused was charged under Section 302, I.P.C. for
causing death of his wife. Deceased had died within nine months of marriage. It was alleged that
she was being harassed as her parents failed to meet the demand of dowry made by the accused.

In this case the provision relating to presumption as to dowry death under Section 113-A of the
Evidence Act would be attracted. But in the absence of framing of specific charge under Section
304-B, I.P.C., the conviction of the accused under Section 302, I.P.C. was set aside. The High
Court however, remanded the case for fresh consideration on merits after framing of a proper
charge.

Exception 7 to Basic Rule

Section 223-What persons may be charged jointly?

The section provides for joint trial of several persons in certain specified cases because of some
basic connection between the various offences committed by them. 33 The joint trial of several
persons partly by applying one clause and partly by applying-another clause of this section is
permissible.

Section 223 says that:

The following persons may be charged and tried together, namely34:-

31
Gauhati High Court 24 JULY,1995
32
28 November, 2014 SC
33
Adnan bilal mulla v state of Maharashtra 2006 Cri LJ 564 (Bom)
34
Code of criminal procedure, 1973

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(a) persons accused of the same offence committed in the course same transaction;

(b) person accused of an offence and persons accused of abetment of, or attempt to commit, such
offence;

(c) person accused of more than one offence of the same kind, within the meaning of section 219
committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal
misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or
concealment of, property possession of which is alleged to have been transferred by any such
offence committed by the first named persons, or of abetment of or attempting to commit any
such last- named offence;

(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code or either of
those sections in respect of stolen property the possession of which has been transferred by one
offence;

(g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to
counterfeit coin and persons accused of any other offence under the said Chapter relating to the
same coin, or of abetment of or attempting to commit any such offence; and the provisions
contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate offences and such persons do
not fall within any of the categories specified in this section, the Magistrate may, if such persons
by an application in writing, so desire, and if he is satisfied that such persons would not be
prejudicially affected thereby, and it is expedient so to do, try all such persons together.

An accused person cannot assert any right to a joint trial with his co-accused. It is the right of the
prosecution to decide whom to prosecute.

It was held in case of Trilokchand v/s Rex35 and A.R.Autulay v/s R.S.Nayak36 that Under
sec.223 joint trail of several persons is permissible and applies only to trials and not to inquires.
35
1949
36
1988

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A joint trial of several persons under this section is not vitiated merely by the facts that at the end
of the trial the facts found happen to be different from those on the basis of which the charges
were originally framed.37

The Supreme Court in State of Andhra Pradesh v. Cheemalpati Goneswara Rao38, has
observed that “it is clear that the sections preceding Section 223 have no overriding effect on that
section, the Courts are not to ignore them but apply such of them as can be applied without
deviating from the provisions of Section 223.”

The Apex Court in Harjinder Singh v. State of Punjab 39, has clarified that it is not possible for
the Court under Section 223 of the Code to club and consolidate the case on a complaint where
the prosecution versions in the police challan case and the complaint case are materially
different, contradictory and mutually exclusive.

The essential elements in determining whether certain events form the same transaction, within
the meaning of Section 223 are the continuity of action and the sameness of purpose. Thus the
Supreme Court in Purushottam Dalmia v. State of West Bengal, 40held that the Court having
local jurisdiction to try the offence of criminal conspiracy can also try all offences committed in
pursuance of that conspiracy even if those offences are committed outside the territorial
jurisdiction of that Court.

However, where there is risk of prejudice being caused to the accused person in a joint trial, it is
always desirable to arrange a separate trial. Commenting on this point, the Supreme Court in
Ranchod Lai v. State of Uttar Pradesh 41, has observed that it is the option of the Court whether
to resort to Sections 219, 220, and 223 of the Code or to act as laid down in Section 218 and the
accused has no right to claim joinder of charges or joinder of offenders.

OTHER PRINCIPLES RELATED TO CHARGE:

CONVICTION OF AN OFFENCE NOT CHARGED WHEN SUCH OFFENCE IS

37
www.lawordo.com/criminal-procedure-code-crpc-notes/
38
1963 AIR 1850, 1964 SCR (3) 297
39
AIR 1985 SC 404, 1986 CriLJ 831, (1985) 87 PLR 103, 1984 (2) SCALE 996, (1985) 1 SCC 422
40
1961 AIR 1589, 1962 SCR (2) 101
41

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Section 222. -Sub section (1)contemplates a conviction for a minor offence in which the charge
is of an offence which consists of several particulars, a combination of some only of which
constitutes a complete minor offence. Thus the minor offence is a component part of the major
offence of which the accused is charged. The section provides an exception to the general rule
that a person cannot be convicted of an offence with which he is not charged.

It was held in Maung Ba v/s the King 42The conviction of minor offence included in the offence
charged in either of two cases, where the offence charged consists of several particulars and
combination is proved but the remaining particulars are not proved . And where the facts are
proved which reduce the offence charged to a minor offence.43

Subsection (2) says that if a person is charged with an offence but it can be reduced to a minor
offence, then he may be convicted of that minor offence.

What is a minor offence?

The meaning of expression minor offence is not defined or explained in the Code. The minor
offence for the purposes of section 222 is not something independent of the main offence or
which is simply punishable with lesser punishment. The major and minor differences must be
cognate and not such as are totally constituted by different elements.44

The criteria to decide that the offence is minor in relation to the offence charged is the
punishment provided for the committing of minor offence which must in all cases be less than
that provided for committing the major offence with the accused has been charged. To illustrate,
when the accused is charged of an offence of robbery under Section 392, IPC, the Court can
convict him for the offence of theft under Section 379 IPC which is a minor offence.

Sub-section (3) provides that when a person is charged with an offence, he may be convicted of
an attempt to commit such offence although he is not separately charged with the attempt. Thus
where the accused was charged under Section 376, IPC for the offence of rape, he could be
convicted for attempt to commit rape if rape was not proved, although he was not separately
charged for attempt to rape.

42
1938
43
Emperor v/sAbdul Wahab-1945.
44
R.V. Kelkar’s Criminal Procedure, sixth edition, published by E.B.C.

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In Saukat Hussain Guru v. State (NCT), Delhi 45, it was held that an accused could be
convicted for a minor offence even in absence of charge having been framed against him. In the
instant case, the accused was charged under Section 121 of IPC for the offence of waging,
attempting or abetting war against State.

The offence of concealment of such fact, in the circumstances was a minor offence. Therefore,
the accused could be convicted under Section 123 of IPC even in absence of charge. His plea
was that he did not get the opportunity to raise the defence of reasonable excuse was held to be
not tenable on the ground that it could also be raised in his trial under Section 121, IPC. He was
convicted under Section 123 and his review petition was also dismissed by the High Court. He
filed a curative petition before the Supreme Court which the Court quashed being not tenable.

WITHDRAWAL OF REMAINING CHARGES ON CONVICTION ON ONE OF

Section 224 provides that When a charge containing more heads than one is framed against the
same person and when a conviction has been had on one or more of them, the complainant or the
Officer conducting the prosecution may with the consent of the Court withdraw the remaining
charge or charges. The court of its own accord may stay the inquiry into or trial of such charges.
Court may proceed with the inquiry into or trial of the charge or charges so withdrawn.46

EFFECT OF OMISSION TO FRAME, OR ABSENCE OF, OR ERROR IN CHARGE.

Section 215. effect of errors.

It says that any error or omission to state the offence (under section 211) or the particulars (under
section 212) will have no effect in any stage of the case, unless that error or omission misled the
accused, or has resulted in failure of justice.

This section and Section 464 deal with the cases where a charge is framed but there are errors,
omissions or irregularities in the charge. But such error or omission or irregularity in statement
of the offence will not be material at any stage unless the accused has been misled thereby and,

45
14 May, 2008 SC
46
https://www.lawordo.com/criminal-procedure-code-crpc-notes/

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in fact, occasioned a failure of justice. In other words, where the accused is not misled, the defect
in the charge will not be material to set aside the conviction of the accused.

The Privy Council in Babulal v. King Emperor47, held that the irregularity of charging together
different offences instead of charging them separately was curable under this section and Section
464 (Section 537 of the old Code) if the accused was not prejudiced thereby.

The Supreme Court in Rawalpenta Venkalu v. State of Hyderabad48, observed that omission
to mention Section 34, IPC in the charge had only an academic significance and had not in any
way misled the accused and on the basis of evidence in the case the charge of murder had been
brought home against both the accused persons.

In William Stanley v State of M.P49. the Supreme Court ruled that a mere defect in the charge
or non-framing of charge does not vitiate the trial unless prejudice is caused thereby to the
accused, which has to be determined in each particular case.

The Supreme Court in State (N.C.T. Delhi) v. Navjot Sandhu, 50has observed that charges are
often framed by way of abundant caution but even then assuming that some inapplicable
provision has been mentioned in the charge-sheet, it is no ground for setting aside the charge and
invalidate the trial.

QUASHING OF CHARGE:

In State of Maharashtra v. Ishwar Piraji Kalpatri and others 51: it was observed that if on the
basis of allegations a prima facie case is made out, High Court has no jurisdiction as to quash the
proceedings and at the initial stage.

It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C.
seeking for the quashing of charge framed against them the Court should not interfere with the
47

48
AIR 1956 SUPREME COURT 17
49
AIR1956 SC 116
50
Appeal (crl.) 373-375 of 2004 SC
51
1996 Cri LJ 1127 SC

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order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of
the process of the Court a charge framed against the accused needs to be quashed.

Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in
mind that once the Trial Court has framed a charge against an accused the trial must proceed
without unnecessary interference by a superior court and the entire evidence from the
prosecution side should be placed on record.

in the case of State Of Delhi vs Gyan Devi And Ors52; it was observed that The charge can be
quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is challenged by cross-examination or rebutted by
defence evidence if any, cannot show that the accused committed the particular offence.

In Amit Kapoor vs Ramesh Chander & Anr;53: the court observed that Where the allegations
made and as they appeared from the record and documents annexed therewith to predominantly
give rise and constitute no ‘element of criminality’ and does not satisfy the basic ingredients of a
criminal offence, the Court may be justified in quashing the charge

CONCLUSION:

In a criminal trial the charge is the foundation of the accusation & every care must be taken to
see that it is not only properly framed but evidence is only tampered with respect to matters put
in the charge & not the other matters54.

In framing a charge during a criminal trial, instituted upon a police report, the court is required to
confine its attention to documents referred to under Section 173 55.The judge needs to be only
convinced that there is a prime facie case, where there is no necessity to adduce reasons for
framing charges. However, the magistrate is required to write an order showing reasons if he
decides to discharge the accused56.The sections dealing with charge do not mention who is to
frame the charge.

52
AIR 2000 SC
53
AIR 2012 SC
54
Ramakrishna Redkar v. State of Maharashtra, 1980 Cri LJ 254 (Bom)
55
State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181
56
Omvati v. State (Delhi Admn.), (2001) 4 SCC 38

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The provisions dealing with different types of trials however provide that it is always for the
court to frame the charge. The court may alter/ add to any charge at any time before the
judgment is pronounced.

But if a person has been charged, the court cannot drop it57. He has either to be convicted or
acquitted58. All this has an important bearing on the administration of justice.

BIBLIOGRAPHY

1. www.indiankanoon.org
2. www.livelaw.in
3. www.casemine.in
4. www.lawordo.com
5. www.shareyouressays.com
6. kanoonirai.com
57
State of Maharashtra v. B.K. Subbarao, 1993 Cri LJ 368 (Del)
58
Prakash Chander v. State (Delhi), 1995 Cri LJ 368 (Del

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7. www.legalbites.in
8. thelawstudy.blogspot.com/

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