All About Framing a Charge in a Criminal Case, an Important Skill!

What is a charge in a criminal case?

A charge in a criminal case is a written notice in which precise and specific accusation against the accused in regard to the offence is stated. It is the foundation of the criminal trial.  The charge conveys the accused the accusation which the prosecution intends to prove against him in the court. It enables him to prepare for his defense in regard to the accusation.

The charge is drawn up in the form of a statement and contains the description of the offence alleged to have been committed. The prosecution needs to tender evidence only on matters put in the charge and not on any other matter. Therefore the charge enables the accused to know the accusation against him in the case and remain ready to give evidence in his defense once the prosecution produces its evidence.

At the stage of framing of charge the court is not expected to foresee whether the prosecution will be able to prove the case against the accused. On the other hand the judge needs to be convinced that there exists a prima facie case.

Legal provisions

The Sections 211 to 214 of the Criminal Procedure Code, 1973 (CrPC) deal with what the charge should contain. The Sections 216 -217 state the power of the court to alter the charge. The section 218 says that for every distinct offence there should be a charge and every distinct charge must be tried separately. Section 219, 220 and 221 are exceptions to this rule.

The Section 221 deals with circumstances in which the accused can be convicted of an offence for which he was not charged with. The Section 224 deals with the effect of withdrawal of the remaining charges on conviction on one of the several charges. Sections 215 and 464 speak about errors or commissions in stating the offence.

Court should frame changes

It is the court which has to frame the charge. The concerned public prosecutor should verify the charge and request the court to amend and correct the charge if required. In framing the charge the court will have to confine its focus on the documents referred to in the police report or the documents a complainant files. There is no necessity to hear the accused at this state of framing of charge, except for discharge.

No reason need to be recorded for framing charge but for discharging the accused the magistrate need to record reasons. Neither there is need for appreciating evidence at this stage nor need witnesses to be called.

Altering or adding charges

The court can alter or add any charge before the judgment but a charge cannot be dropped but the accused should be acquitted in such a case of dropping of a charge. The court can exercise the power of addition or modification of charges under Section 216 of the CrPC only when there is some material before the court. The words “add to” in the section mean addition of new charge. An erroneous or improper charge may be corrected by re-framing it properly. The prosecution or a party cannot apply for deleting a charge or adding a new charge. But the prosecutor can request the court to amend or correct a charge if required.

The alteration or addition of charge shall be read to the accused. If the alteration or addition of charge prejudices the accused in setting up his defence the court can conduct a new trial. When the prosecution files an application for framing of additional charge the court has to decide the request. Alteration of charge without explaining it to the accused is illegal.

Requirements of a charge

Every charge shall contain the offence with which the accused is charged. The offence must be described in the charge by the name the offence is called in the law. Examples of   such offences are murder, cheating etc.

In some other cases specific details need to be given in the charge. The charge in respect to conspiracy must be specific. Stating that the accused conspired is not good enough a description in charge.  The particulars of the conspiracy should be noted so as the accused get a clear picture of the charge. When forgery is the charge it must state that the false document was fraudulently prepared to cause wrongful gain. In 504 IPC the objectionable words should be set out unless the accused is perfectly aware of them. When housebreaking is for hurt it cannot be charged for house breaking for adultery. Similarly if 302 of Indian Penal Code (IPC) is not framed but only 304 IPC is framed then he cannot be convicted for 302 IPC as it would cause prejudice to him.

When framing the charge the court should be satisfied that the prima facie ingredients of the offence alleged in the complaint are made out.

When the law does not have a name

If the law does not give any name to the offence but only describes it then the description of offence as provided in the law must be stated. The section and the name of the offence must be stated. The charge must be written in the language of the court.

If the punishment to the accused is liable to be enhanced on account of previous punishment, then the facts, date and place of such conviction should be stated.

Charge must include time, place & the victim

The time, place and person against whom the offence was committed, must be stated in the charge. The manner of committing the offence is also essential.

In several offences, failure to give the nature and particulars of the offence with certainty and accuracy is detrimental. In offences like arson, no particulars except the date, time and place are required. If the offence is criminal breach of trust, or misappropriation the date between which it was committed must be stated.

A charge does not turn invalid because of wrong mentioning of time. Particulars of committing the offence should also be there in the charge. The charge should provide a correct picture of the offence. The charge should refer to the section punishing and not the section defining the offence.

Charge is used as a statement of a specific offence and not as the statement of an entire series of offences. But it may include more heads than one in some cases. If charge is having two or more heads each charge must separately be detailed.

No formal charge is needed in summons case or summary trial. But in warrant and sessions cases charge needs to be framed. However there is no impediment for the court to frame charges even in summons cases.

Errors should not prejudice accused.

Any error in stating the charge or any omission in stating the offence shall not be material unless such error or omission misleads the accused in setting up his defence or causes a failure of justice.

A technical breach of judicial procedure should not result in failure of justice. Unless there is prejudice to the accused any error or irregularity is not fatal and it should not vitiate the trial. But this does not mean that the judges and Magistrates can overlook or ignore the provisions relating to charge wholly. The rule ought to be observed normally.

Similarly when wrong charge is framed and the accused is convicted it cannot remain valid. Therefore it should be set aside.

Joinder of charges

Normal rule is that for every offence there shall be a separate charge. Every such distinct charge shall be tried separately.  Distinct charge means it is non-identical and not interrelated with another in any way.  

However certain persons may be charged and tried together.  All person accused of the same offence, persons accused of an offence and persons accused of its abetment, persons accused of more than one offence of the same kind, persons accused of different offences in one transaction etc, can be charged and tried jointly.

If the accused applies for in writing and if the Magistrate thinks he should not be prejudiced, the Magistrate can try all or any number of charges together against such person. If a case is for murder and robbery then both interrelated offences cannot be split up into two. Similarly when an accused committed murder under section 302 and theft under section 380 the judge cannot separate both the charges and try for one only. The accused however has no right to claim joinder of charges or of offenders.

When there were two sessions cases - one on a police complaint and another on a criminal complaint - arose out of the same transaction, the Supreme Court, in Kevalkrishna v SurajBhan ( AIR 1980 SC 1780), decided both should be tried together so as to avoid conflicting judgments. But the prosecution version in a police report case and a complaint case are materially different, both cannot be clubbed together.

Joint trial for three offences in one year

When a person is accused of more than one offence of the same kind committed within one year in respect of same or other person he may be charged and tried in one case.

That means three offences of the same kind within one year can be tied together.

One trial for many offences in one transaction

If a person does more than one offence in one series of acts or same transaction, then he can be tried in one trial for all such offences. The offences in one transaction must have been so connected in such a way it constitutes a continuous whole.

Offence committed is doubtful

When an offence committed on a single act or a series of acts is doubtful in nature as to the section under which it falls, the accused can be charged for having committed all or any of them.

In such cases, even if an alternative charge is framed depending upon evidence he can be convicted in the offence not included in the charge, which might have been charged in normal course.

Persons jointly tried

All persons who have done an offence together may be charged jointly. Persons accused of an offence and abetting the offence can be tried together in joinder of charges. Persons accused of more than one offence of the same kind committed jointly within a period of 12 months can be joined for trial. Persons accused of theft, exhortation, cheating or criminal misappropriation and persons accused of receiving, retaining or assisting in disposal or concealment of property in a commission of offences can be tried together.

Similarly, persons accused of receiving and disposing of stolen property can be jointly tried. Persons engaging in offences relating to counterfeit coins and stamps can be tried together.

If any accused person desires to be tried together based on his written application if it would not prejudice him, he can be tried with others in a joint trial.

Withdrawal of charges

If a person accused is convicted for one of the several distinct charges before the other charges are tried, if the prosecution or complainant withdraw the remaining charges with permission of the court, such withdrawal would have the effect of acquittal unless the conviction is set side in the appeal.

This does not apply to cases falling under section 220 (3), 224 (4) or 221`(1) of the CrPC. But it applies to cases under Section 219 or 220 (1) of the CrPC.

Such permission for withdrawal is possible only when there is joinder of charges in the same case but it is not possible when separate charges of distinct offences are tried separately in different cases.

A model of charge with two heads - Example

I, (name and office of the Sessions Judge) hereby charge you (name of the accused person) as follows:

First - That you, on or about the ------- day of ---------- at -----------, committed murder by causing the death of ------------, and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within the cognizance of this Court of Session.

Secondly – That you, on or about the ---------- day of ----------- at ----------- by causing the death of ----------------, committed culpable homicide not amounting to murder, and thereby committed an offence punishable under Section 304 of the Indian Penal code, and within the cognizance of this Court of Session.

And I hereby direct that you be tried by this court on the said charge.

(Signature and Seal of the Sessions Judge)

Conclusion

Framing of charges in a criminal case is as important as framing of issues in a civil case. Both put the firm foundation in the respective court case. It is an area in which the advocates must have sound knowledge.

Improper framing of issues or charges can cause havoc in judicial proceedings. It may lead to failure in justice on account of improper decisions arising out of improper framing of issues or charges.

NB: The author, now with Thrissur Bar, can also be reach at rajankila@gmail.com