Law to Justice Uncategorized A critical analysis of the provisions relating to charge under CrPC, 1898

A critical analysis of the provisions relating to charge under CrPC, 1898

A critical analysis of the provisions relating to charge under CrPC, 1898 

1.Introduction

The concept of framing of charge in the criminal trial system comes from the principle of natural justice or Universal justice, one principle of natural justice is Audi alteram partem. Giving an opportunity of being heard does not mean only giving the opportunity of telling, also, it includes giving a reasonable time and opportunity to collect evidence to prove or disprove something in the trial, for that reason without giving precise information about the accusation it is not possible for the accused to collect evidence effectively and significantly to prove himself not guilty, And not consistent, save as to some provisions hereinbelow discussed, with article 31 and 35 of the Constitution of People’s Republic of Bangladesh. Framing of charge is one stage among ten stages of a criminal trial.

2.Definition

A charge means an allegation or accusation upon which an accused gets arrested. The word ‘Charge’ has not been defined in the Code of Criminal Procedure, 1898. It only states that in section 4(1) (c) that Charge includes any head of charge when the charge contains more heads than one. The definition could simply be interpreted to mean an “accusation”. It is the concrete accusation as recognized by the Magistrate or the Court, based on the prima facie evidence adduced against the accused.

A charge is an important step in a criminal proceeding. It separates the inquiry stage from trial.

It is only when a prima facie case is disclosed about a certain offence that a charge is framed the whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The charge in this country corresponds too an Indictment in English law

2.1 Type of cases where charges are framed:

A charge is generally required to be framed in three types of cases:

1) SESSIONS CASES under section 265D of Cr.P.C.

2) WARRANT CASES triable by magistrate instituted on police reports under section 157 of Cr.P.C.

3) WARRANT CASES triable by magistrate instituted under section 190 of Cr.P.C.

In trials of summons cases and in summary trials, the charge is not framed, instead of charge plea is held.

2.2.Purpose of charge framing

Every accused has the right to know what the prosecution has against him.The underlying principle of the criminal law on informing the accused of the charge against him is to provide an equal opportunity to each and every individual to prepare his defence and avail justice. In the case of V.C. Shukla vs. State, Justice Desai, while delivering the conclusive judgement opined, “the purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of the accusation that the accused is called upon to meet in the course of a trial.

3. Framing of Charge: 

To proceed with the trial of a case, the framing of charges must be done accurately to avoid delay and misuse of power. Framing of charges is the second stage of criminal trial, after the appearance of the accused and before the recording of evidence. The framing of a charge as a judicial act is not a mere formality and hence application of mind is crucial. The basic motto of Section 242 or 265D, as the case may be, is to ensure that the accusations made against the accused are not false and baseless and frivolous and that there is some material aspect to proceed. It becomes clear after reading section 241A and 242 together or 265D with 265C, as the case may be, that what the court has to see is whether it is a prima facie case against the accused and he is in any manner connected with the incident leading to the prosecution. Certain rules are given below to find out that the case is prima facie or proper evidence against the accused.

In the case of “Durnity Daman Commission Vs. Ezbahul Bar Chowdhury”; in interpreting the section 241A of the Code of Criminal Procedure observed that: Section 241A of the Code of Criminal Procedure, 1898 provides that at the time of framing charge if the magistrate considers the charge to be groundless, then the magistrate can discharge the accused. The term ‘groundless’ in this connotation denotes the evidence or materials produced before the magistrate are insubstantial, insignificant, trivial and there exists no sufficient reason to bring the accused under trial.

It 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 for the purpose of seeing whether the offence alleged against the accused persons is made out. At the stage of charge, the Court is to examine the materials only with a view to be satisfied that a prima facie case has been made out against the accused persons.

3.2 Framing of Charge before Trial in the Session Court

After the opening of the prosecution case, the Session Judge will give both the sides a chance to argue in favour of framing charge or discharge. After such hearing and considering the record of the case if the Judge considers that there is no sufficient ground or prima facie case for proceedings against the accused, he shall discharge the accused and record the reason for so doing. If, on the other hand, the Judge considers that there is a prima facie case against the accused, it shall frame a charge Formal trial starts with the framing of charge.

3.3 When a charge is framed

When a case Is filed under section 154 or a complaint register case under section 190, as the case may be, of Code of Criminal Procedure, 1898 and after investigation if the accused is, by the magistrate, if the magistrate upon his motion thinks that the accused has committed an offence or fall under section 242 of same code, or by the Court of Session, if the Court of Session upon its own motion thinks that the accused has committed an offence or fall under section 265D, as the case may be, not discharged under section 241A of same code or under section 265C , magistrate under section 242 of CrPC or the Court of Session under section 265D, as the case may be, shall frame a formal charge relating to the offence of which the said person is accused.

The charge-sheet to which the accused is called upon to plead is a very important document. It should be drawn up and considered with extreme care and caution, so that the accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter or ground. The word ‘Ground’ means basis, foundation or valid reason.

3.3A Special law prevails over this section:                                                

Where a special law is applicable the provisions of that law cannot be ignored.

3.4 Form and content of a charge:

Section 221 of CrPC Attitude essential element of the contents of the charge:

  1. The charge form shall state the offence for which the accused is charged
  2. The charge form shall specify the exact offence name for which the accused is charged.
  3. In this case, there is no specific name given under any law for the offence which the accused Is charged, then the definition of the offence must be clearly stated in the form and information to the accused
  4. The law and provision of the law to be mentioned in the charge form
  5. The charge shall be written in the language of the court

Durnity Daman Commission Vs. Ezbahul Bar Chowdhury: Criminal Petition For Leave To Appeal No. 12 of 2017 (date of judgment 31.01.2021) (unreported)

  1. The accused shall be informed about his previous allegations which would expose him to enhance punishment if found guilty for the offence charged

In the case of Haji Anwar Tota vs. State, the court observed that , Mere mentioning of the section under which the accused is charged without mentioning the substance of the charge amounts to a serious breach of procedure.

In Dal Chand v State (1981) , FJ. the court held that defect in charge vitiates the conviction

Section 222 asserts the charge form shall contain:

  1. The offence for which the accused is charged and the particulars like that time, place, and the person against whom the offence is committed and giving to the accused the precise and clear notice of matter for which he is charged.
  2. The exact time need not be mentioned in the chat form when the accused is charged with criminal breach of trust or dishonest misappropriation of money or any other movable property, it is sufficient if the gross sum is specified and the date on which such alleged offence has been committed.

In Kamal Prodhan and Ors vs State, DJ. Court held that failure to mention the particulates precisely due to the nature of the information may not invalidate the proceedings.

Manner when shall be mentioned:

Section 223 assert when the nature of the case is such that the particulars mentioned in section 221 and 222 do not give the accused sufficient notice of the matter with he is charged, the charge

DJ Domestic Judgment , FJ Foreign Judgment

shall contain such particulars of how the alleged offence is committed as will be sufficient for that purpose.

3.5 Alteration of charge and the procedure to follow such alteration

Section 227, 228 and 229 states that,

The court shall have the power to alter or add to the charge at any time before the judgment is pronounced.

The trial court of the appellate court may order order for add to the charge provided only condition is

  1. accused has not faced charges for new offence
  2. Accused must have been given the opportunity of meeting and defending the charge against him

After such alteration or any addition made to the charge, the charge shall be explained to the accused to enable him to prepare to meet the fresh challenges.

If the court concludes that the alteration or edition of the charge is likely to be prejudiced to the accused or to the prosecutor then the court may proceed with the original trial or adjourn it. the case shall not move forward unless the sanction is obtained in respect of the facts constituting the offence.

3.6 Recalling of Witness When Charge is Altered:

According to Section 231 of the Code, whenever the charge has been altered after the commencement of the trial, the accused and the prosecutor shall be allowed:

  1. To recall or re-summon a witness who has already been examined and examine him in reference to such alteration or addition;
  2. However, if the Court is of the opinion that the prosecutor or the accused is recalling or re-examining the witness with the view of vexing or delaying or defeating the ends of justice, then the Court may, by providing reasons in writing refuse to allow to re-examine such witness;
  3. To call any further witness that the Court may deem material for the case.

4. Joinder of charges

In the case of Sohel Dewan & ors Vs State,DJ sections of joinder of charges are not compelling. They only permit the joint trial of charges under certain circumstances, and the courts may consider the same in the interest of the administration of justice after thoroughly studying the facts and circumstances of each case.

Under section 233, for every distinct offense of which the accused is charged, there shall be a separate charge and tried separately.

The initial requirement of a fair trial in criminal cases is a precise statement of the accusation. 

4.A Exceptions to the basic rule:

Exception 1

Section 234 of Cr.PC asserts when a person is accused of an offence of more than one, but not exceeding three of the same kind, and the offence is committed within twelve months then the accused may be charged and tried at one trial for all the offences committed. Offences are said to be of the same kind when they are punishable with the same amount of punishment under the same Section of Penal Code or any special law or local laws. The proviso to Section 234 of Cr.PC states when the accused is punishable under Section 379 of PC, and it is said to be the offence of the same kind as an offence punishable under Section 380 of PC. 

In Madan Mohan Sahu v. Khustia Jobo Songo (2010), cheques were issued within twelve months. The court held that it was not necessary to file two separate complaints against their dishonor and it is enough if a single complaint is filed. 

Exception 2

Section 235(1) of Cr.PC When the accused commits several offences in the same transactions, then he may be tried jointly and it is immaterial whether the offence is of the same kind or not, or whether the number exceeds three or not, and whether the offence is committed within one year or not. Mohinder Singh v. The State of Punjab,this case, it was held that the court may or may not try all the offences together in one trial. 

Exception 3

Section 235(2) of Cr.PC When the accused is charged with an offence which is falling under two or more separate definitions of law, then the accused may be charged with and tried at one trial for each of such offences. 

Exception 4

Section 235(3) of Cr.PC When the accused commits several acts and one of which constitutes an offence and when it is combined constitutes a different offence, the accused person may be tried at one trial for the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts. 

Example: A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged with and convicted of an offence under Section 323, 392 and 394 of PC. 

Exception 5 

Section 236 of Cr.PC lays down a few conditions:

  1. When a single act or series of acts is of such a nature that it is doubtful what offence the accused has committed then the accused may be charged with having committed all or any of such offences and the charges against may be tried at once or the accused may be charged in the alternative with having committed someone of said offences. 
  2. When the accused is charged with one offence but it appears that in the evidence there is altogether a different offence for which he was charged then the accused is convicted for the offence only which he committed although he has not been charged with it.

This section is applicable only in cognate offences such as theft and criminal breach of trust and it does not include offences such as murder and theft. 

Rashed vs State In this case, where the accused is charged with murder under Section 302 of PC, the accused cannot be convicted under Section 194 of the Penal Code. 

Exception 6

Section 239 of Cr.PC provides certain persons can be tried jointly:

  • Accused who committed the same offence in the same course of the transaction.
  • Accused of an offence and person accused of abetment of or attempting to commit such offence. 
  • Accused of more than one offence of the same kind and committed by them jointly within twelve months. 
  • Accused of different offences committed in the course of the same transaction
  • Accused of an offence which includes theft, extortion, cheating, criminal misappropriation, concealment of property. 
  • Accused of offences under Section 411 and 414 of the Penal Code. 
  • Accused of offences under Chapter XII of the Penal Code.

However, when a number of persons are charged with separate charges and they do not fall within the categories of any persons mentioned in section 239, they may apply in writing to the Magistrate or the Court of Sessions, as the case may be, and the Magistrate or the Court of Sessions upon satisfaction that the case would not be prejudiced may try all such persons together..

The provision to Section 223 of Cr.PC provides that the magistrate on an application of the accused person may direct their joint trial even if they do not fall under the categories specified if the magistrate believes that trial of such persons would not be prejudicially affected. 

The provisions regarding the exceptions to the basic rule as mentioned in Section 234, 235, 236 and 239 are only enabling in nature. It is the discretion of the court whether to apply these exceptions and try the charges jointly or not.

In the case of Mohammad Abul Khasem vs State , it was held that it is the discretion of the Court whether to allow the joining of charges or not. It is not upon the accused to resort to this right.

Rabeyaa Khatonn vs State: In this case, the court held that where several persons are alleged to have committed several separate offences, which are not wholly unconnected then there may be a joint trial unless such joint trial is likely to cause either embarrassment or difficulty to the accused in defending.

Desire of accused

In cases where the accused himself wants a joint trial and the magistrate is satisfied that such joint trial will not prejudice the accused, joint trial is allowed to be carried out.

4.2 Conviction of an offence not charged when such offence is included in an offence charged:

Charged under an offence convicted for another:

Section 237 states that Where the accused is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

Proves to consist minor offence than the gravity of charged offense:

Section 238 of Cr.PC provided when the accused is charged with several offences and some of which when combined and proved form a complete minor offence, then the accused may be convicted of a minor offence though he was not charged with such minor offence.

Unless the conditions are fulfilled for the conviction of the accused of the minor offence, the conviction cannot take place. Eg: where the sanction is lacking.

This section applies only when the major and minor offences are cognate.

No person can be convicted for a major offence if he is charged with a minor one.

In the cases of Mohinder Singh v. State of Punjab and Chandi Prasad v. State of U.P the same ruling was held.

Withdrawal of remaining charge on conviction on one of several charges:

Section 240 of Cr.PC states when the accused is charged with more than one head, and after the conviction of the accused under that head then either the complainant or the officer conducting the prosecution may withdraw the remaining charge with the consent of the court. Imtiaz Faroq vs state, in this case, a charge can be withdrawn under this section only after the judgment and it cannot be deleted.

4.3 Effect of errors 

Section 232 of Cr.PC deals with effects or errors. 

The idea behind these sections is to prevent failure of justice where there has been only a technical breach of rules and while not going to the roots of the case as such. Section 232 of Cr.PC states there shall be no error or omission either in stating the offence or the particulars which are required to be stated in the charge, and they shall be regarded as material at any stage of the trial unless the accused was mislead by such error or occasioned as a consequence and as a consequence it has failed justice. 

  • Bhagabat Das v. The State of Orissa (1989), FJ: In this case, the court held that the insignificant irregularities in stating the particulars of the offence in the charge will not affect the trial or its outcome. 
  • In Nurul Haque Absar vs State, DJ the HCD was considering these aspects of the matter and made it clear that a complaint about the charge was never raised at any earlier stage and the learned Judges came to the conclusion that the charge was fully understood by the appellants in that case and they never complained at the appropriate stage that they were confused or bewildered by the charge. The sad thing is true here. Therefore, the Court refused to accept any grievance relating to error in the framing of the charge.
  • In Mainuddin Azhar Gir vs. V.K. Khare, Food Inspector, it was observed that Under Section 232 of CrPC, the objective is to prevent failure of justice where there has been an only technical breach of rules not going to the root of the case as such. The two sections read together to lay down that whatever the irregularity in the framing of a charge, it is not fatal unless there is prejudice caused to the accused. Therefore, any small defects or error in framing the charges is no ground to set aside the whole conviction.

No sentence or order given by the competent jurisdiction shall be invalid merely on the ground that no charge was framed or charged framed was based on some error, omission, irregularity, including any misjoinder of charge unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has been occasioned. 

If the court concludes there has been omission or irregularity or error to frame a charge then the court may order a charge to be framed and that the trial may be recommenced from that point immediately after framing of the charge or direct the new trial to be held upon the new charge framed. 

Provided, if the court is in the opinion that facts of the case are such that no valid charge could be preferred against the accused then the conviction shall be quashed.

4.4 When framing of charge could be finished

The opportunity allowed by the legislature to the accused of cross-examining the witness for the prosecution after the charge sheet has been framed can not be substituted for the opportunity to which he is entitled when the witness are examined and before the charge is framed. The Magistrate is not bound to take more evidence than is sufficient to convince him of the truth of the charge. The evidence of even one witness could be sufficient under this section to justify the Magistrate in framing charge. The fact that the charge was not framed as it could have been immediately after the evidence of the witness for the prosecution had been completed and a few other prosecution witnesses are examined-in-Chief before the framing of the charge can at best be regarded as an irregularity and if a cross-examination then takes place. A second cross-examination was refused. The alteration enables the accused to cross-examine the prosecution witnesses on their first attendance.

5. Sections 221 to 241 of the Code of Criminal Procedure, 1898 has discussed the framing of charges, and joinder of charges. There are some particulars that are directive and some are mandatory.

Section 225 has discussed the errors of charge. No errors will vitiate the proceeding of trial unless and until having any possibility to prejudice to the accused or to the prosecutor.

A charge is altered, is need, under section 228 and court may proceed if it thinks for such alteration no injustice or prejudiced will be occurred to the prosecutor or to the accused, it is not appropriate for modern rule of law

5A. Recommendations

  1. If any error occurs in charge when the charge is framed it should be taken as negligence to the duty. Sometimes some errors may lead the innocent to be convicted or escape the criminal from the law if not found out or not challenged in the court of appeal.
  2. If any alter is needed in charge, the law should mandatorily give a specific time to the parties of the case to defend the case against each other.
  3. (1) While considering the question of framing the charges, the Judge under Section 242 of the Code needs to weigh the evidence to conclude whether it’s a prima facie case or not; 
  4. (2) Where the accused has clearly and properly explained the materials and the accusations against him, the court will be fully justified in framing a charge and proceeding with the trial.
  5. (3) In situations where the judge is satisfied with the evidence produced and where no grave suspicion has been raised then taking into consideration the facts of the case, the judge has the power to discharge the accused. 
  6. (4) Under Section 242 of the Code, while exercising his jurisdiction, the total effect of the evidence and the document produced by the court, and any other basic infirmities appearing in the case and so on. Hence the judge should not make roving enquiries into pros and cons of thr case and weigh the evidence

7. Conclusion

Charge is an accusation against a person with respect to the commission of an offence. Every charge shall state the section of the law along with the name of the offence, if any, which the accused is charged with and shall also state the time, place and the manner of the occurrence as well as the person against whom or the thing in respect of which the offence has been committed. Previous conviction of the person charged with, if any, may also be mentioned, because it directs severe punishment. For every offence there shall be a separate Charge and the charge be tried separately except in the cases mentioned with the section. In one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, the person may be charged with and tried at one trial for every such offence.

If the offences so committed falls within the definition the accused may be charged with both offences and tried at one trial for each of such offences. On framing of charge the same be read over and explained to the accused and his reply shall have to be recorded in the prescribed form and the Magistrate shall sign the same. The matter of framing of the charge may also be noted in the order sheet of the case. In necessary charge can be attested. And if it attested it should be read over the same.

8. References:

  1. Vatuk lal- The Criminal Procedure and Practice
  2. Legalbites- law journal
  3. Zahirul Islam- The code of Criminal Procedure
  4. Case study

Read: Elements of crime

Writer| Nayem H Ovi

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