Author : Zaina Asif
1.What are charges ? What is the definition and constituent of charge and it's object?
Will omission to frame a charge be incurable?
Ans. Section 2(b) of the Criminal Procedure Code defines charge as any head of a charge when the charge contains more heads than one. The legal definition mentioned in the code is not inclusive enough for a layman to understand. However, the definition could simply be interpreted to mean as an “accusation”. Purpose of the charge is to show precisely and concisely the matter of offence by which he is charged and to give notice to the accused as to what prosecution intends to prove against him at the trial. In a summons case its not necessary to make a formal charge (Section 251) . In (Supreme Court of India, Mohan Singh vs State Of Bihar on 26 August, 2011) The purpose of framing a 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 a trial.
Section 211 and 212 of the Code prescribe the forms and contents of the charge. According to Section 211 of the Criminal Procedure Code, every charge under the code shall include the following:
1) The offence with which the accused is charged. In instance, if the act is of stealing, the exact title as used in Indian Penal Code must be stated, i.e. “theft”.
2) After the title of the offence, the offence must be described by explaining the act that constitutes the offence. For instance, the offence is “theft” committed by stealing the properties of ‘A’.
3) The law and the section of the law against which the offence is said to have been committed. For instance, for the offence of theft elements are, ‘taking property out of the possession of its lawful owner’ and ‘with a dishonest intention’.
This means that when a charge is framed against an accused, then it is equivalent to the statement that the accused while committing the said offence has fulfilled every legal condition required to constitute the said offence in the particular case. Also, the said charge shall be written in the language of the Court. According to Section 212, the charge shall contain the following components: Time and place of the alleged offence; The person (if any) against whom the offence was committed; The thing (if any) in respect of which the offence was committed by the accused.
In case an offence is committed which is of the nature of the criminal breach of trust or dishonest misappropriation when the exact amount in question cannot be determined, then, in the said charge it shall be sufficient to specify the gross sum of money or movable property, as the case may be, in respect of which the offence was committed. In addition, the dates between which the said offence was committed shall also be mentioned in the charge sheet. It shall also be noted that it shall not be necessary to specify the exact items in question or the exact dates, provided that the time included between the first and the last date of such dates does not exceed one year.
Under Section 215 & 464 of CrPC object is to prevent failure of justice. The two sections read together lay down that whatever the irregularity in framing of a charge, it is not fatal unless there is prejudiced caused to the accused. (The Constitution Bench inWillie (William) Slaney vs. State of Madhya Pradeshreported in A.I.R. 1956 SC)
In order to decide whether the error or omission has resulted, there is a twin test that can be conducted: 1) failure of justice. 2) prejudice of the accused. The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Nor could a conviction recorded on charged under wrong provisions be reversed if the accused was informed of the details of the offences committed and thus no prejudice was caused to him.
2. Can a person be convicted for a minor offence even if no charge is framed?
Ans. Section 222, contemplates a conviction for a minor offence. The minor offence is a component part of the major offence of which the accused is charged.
(Supreme Court of India
Shamnsaheb M.Multtani vs State Of Karnataka on 24 January, 2001) & (Dalbir Singh vs. State of U.P. [2004 (5) SCC 334])
The section, lays down a limit under which a person who has been charged of a particular offence can be convicted of any minor offence which is a component part of that offence. As such, the section provides an exception to the general rule that a person cannot be convicted of an offence with which he is not charged. 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 be less than the major offence. 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. But a charge of rape under Section 376, I.P.C. cannot be altered into a charge and conviction for the offence of kidnapping under Section 366, I.P.C. because the two offences involve different elements and different questions of fact and the offence of kidnapping cannot be said to be minor to, or included in, the offence of rape. 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.
3. When can court alter charges , till what stage?
Ans. Section 216 states the conditions under which the Court can alter or amend or add to any charge. (Anant Prakash Sinha v. State of Haryana)
The following conditions are:
1) Before the judgement is pronounced, the Court can alter or amend any charge;
2) Such alteration or addition has to be read and explained to the accused
3) If in the opinion of the Court, the addition or alteration to the charge does not prejudice the accused in his defence or the prosecutor in the conduct of his case, then the Court may alter or amend the charge and proceed with the trial according to its discretion;
4) But if the Court is of the opinion that the alteration or addition to the charge is likely to prejudice the accused or the prosecutor as aforesaid, then following the alteration or amendment, the Court may, at its discretion either direct a new trial or adjourn the trial for such period as it may consider necessary;
5) If the previous sanction is necessary to be obtained for the prosecution of the offence stated in the altered or added charge, then the Court shall not proceed with the case until such sanction is obtained.
The courts have "comprehensive" power to alter or add charges in a criminal case at any stage of trial prior to the pronouncement of judgement.
"The court has ample power to amend or alter a charge only with a condition that it should give full opportunity to the accused to make out his defence," a bench of justices Kailash Gambhir and Indermeet Kaur said.
4. What is the effect of staying of charge or cancellation of charge?
Ans. Section 224 of the Code states that in a case, if a charge containing more heads than one is framed against the same person, and when the conviction has been made on one or more of them, then the complainant, or the officer conducting the prosecution, may withdraw the remaining charge or charges with the consent of the Court. However, the Court, on its own accord, may order to stay the inquiry into the charge or the trial of such charge or charges. Such withdrawal of the charge or charges shall have the effect of the acquittal of the accused on such charge or charges, unless the conviction is set aside, in the case of which the said Court may proceed with the inquiry into, or trial of the charge or charges so withdrawn. It must be noted that the said inquiry shall be subject to the order of the Court setting aside the conviction.
It is well established that this section applies only to cases where the accused has been convicted of one of several distinct charges before the other charges have been tried.
5. What is forfeiture of bond , under what circumstances and by what can court forfeiture a bond?
Ans. The word 'forfeit' as per Black's Law Dictionary, Fifth Edition means, to lose, or lose the right to, by some error, fault, offence, or crime; to incur a penalty; to become liable to the payment of a sum of money, as the consequence of a certain act. The expression 'forfeiture of bond' in the present context therefore, takes in two things. One is an act, fault or error. The other is, incurring a penalty or becoming liable to the payment of a sum of money as a consequence of such act, fault or error.
Section 446 lays down the 'procedure when bond has been forfeited'. It contains the procedure to be followed when a court is satisfied that the bond has been forfeited. Before a court initiates proceedings under Section 446 of the Code to recover the penalty, the court must be satisfied that 'the bond has been forfeited'. Such forfeiture must have been "proved" to the satisfaction of the court. Thus, the 'proof of satisfaction of forfeiture of a bond' is the most essential pre-requisite for commencing proceeding under Section 446 of the Code. Without such “proof”, no proceeding under Section 446 of the Code can be initiated. The forfeiture of bond becomes automatic if the accused fails to appear on the date and time fixed for his appearance. When the accused is absent on a date fixed in the case of a bond for his appearance in court, the only cause which can be shown by him or his surety against payment of the penalty is that there was good cause for his absence. Division Bench of Hon'ble High Court of Patna speaking through Justice Sahai and Justice Anant Singh agreeing (while dealing with similar provisions in the old code) in (Tarni Yadav v. The State AIR 1962 Pat 431) has observed as under:
“When the accused is absent on a date fixed in the case of a bond for his appearance in court, the only cause which can be shown by him or his surety against payment of the penalty is that there was good cause for his absence. There is no reason why this very point should be considered twice; once before holding that the bond has been forfeited and again when the person who has executed the bond shows cause against payment of the penalty.”
Nothing contained in Section 446 gives any power to a court 'to forfeit' a bond as if forfeiture is the outcome of the court's order. But, it is a general practice that court passes orders under Section 446 of the Code such as, "I hereby forfeit the bond", "this Court forfeits the bond" etc. But in Form No. 45, 48 and Section 446 of the Code that the person who 'forfeits' the bond-amount is the person who executes the bond. The bond amount is forfeited by the accused and not by the court. This is indicated by the usage of the expressions, "you have forfeited" in Form No. 48, "the accused binds himself to forfeit", "they bind themselves to forfeit" etc., in Form No. 45. Thus, the bond is forfeited by the person who executes the bond and not by the court. Forfeiture is not an event which takes effect as a consequence of a court's order.
6. What is discharge?Is it different from acquittal?What is the criteria for discharge? What is the level of satisfaction required for charge framing?
Ans. Discharge in layman's language means to release from an obligation.
(CRIMINAL APPEAL NO. 957 OF 2017 M.E. SHIVALINGAMURTHY ... APPELLANT(S) VERSUS CENTRAL BUREAU OF INVESTIGATION,BENGALURU)
( Supreme Court of India, Union Of India vs Prafulla Kumar Samal & Anr on 6 November, 1978 (locus classicus)
(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while .
giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
According to section 227, After hearing from both the parties if the court considers that there is no sufficient ground to proceed against the accused, discharges him and records the reason for doing so. There is no scope for examination of any witness but there is scope for both sides to argue their case in favour of framing charge or discharge.
In ( State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568) accused applied under section 91 CrPC to obtain materials for discharge which was in hold of prosecution. Section 91 is for the courts to examine if the documents are necessary and desirable for the defense of the accused. The question of invoking section 91 shouldn't arise since at the initial stage of framing of a charge the defence of the accused is not relevant.
An exception to above general rule is carved out in (Supreme Court of India
Nitya Dharmananda @ K. Lenin vs Sri Gopal Sheelum Reddy Also Known ... on 7 December, 2017) The court reiterated that the court ordinarily has to proceed on the basis of the material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there's a material of Sterling quality, so, if the investigator or the the prosecutor withheld such type of material then the court is not debarred from summoning or relying upon the same. In such scenario, the accused can apply to the court under section 91 CrPC to summon such material which is of Sterling quality.
Discharge is different from acquittal as:
1) A discharged person can be rearrested and committed for a further enquiry and A person who has been acquitted cannot be arrested for the same case in which he has been acquitted by the Court.
2) An acquittal may also result from absence of the complainant, or withdrawal or a compounding of offence and When a Magistrate proceeds with less serious offence, it amounts to a discharge of graver charge and the accused can be directed to be committed.
3) An acquittal bars second trial on the same facts and for the same offence, or on the same facts for any other offence for which different charges from the one made against the accused might have been made under Section 221(1) of CrPC and A discharge does not bar the institution of fresh proceedings when new or better evidence becomes available against the accused.
Satisfaction for framing of charge :
(Supreme Court of India, Suresh Alias Pappu Bhudharmal vs The State Of Maharashtra on 2 March, 2001) held that at the stage of section 227and 228, Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.