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Charge
#.Introduction:
Charge in simple words means ‘accusation’.It is a formal recognition of a concrete
accusation by the magistrate or court based upon a complaint or information against the
accused.
Section 2(e) of the BNSS defines ‘charge’ which states that, the charge includes any head of
charge when the charge contains more than one head.
In case the accused is not informed about the charge against him it will lead to injustice as
the accused is not aware of the charge against him and th us, he would not be able to prepare
his defense.
One of the basic requirements of a fair trial in criminal cases is to give precise information to
the accused as to the accusation against him and then the ‘charge’ is to be read and
explained to the accused.
Purpose of Framing Charge:
The Supreme Court in the case of V. C. Shukla v. State (1979) held that the purpose
behind framing charge is to give clear, unambiguous, or precise notice of the nature
of accusation that the accused is called upon to meet in the course of a trial.
Provisions dealing with “Charge”:
Section 234 – 237 Contents of Charge
Section 239-240 Powers of the court to alter the charge
Section 241 Basic rule
Section 242-244 and 246 Exceptions
Section 247 Effects of withdrawal
Section 238 and 510 Effects of errors
Form and content of a charge:
Section 234 of BNSS constitutes essentials elements of the contents of the charge:
The charge form shall state the offence for which the accused is charged.
The charge form shall specify the exact offence name for which the accused is charged.
In case there is no specific name given under any law for the offence which the accused is
charged with, then the definition of the offence must be clearly stated in the charged form and
informed to the accused.
The law and provisions of the law to be mentioned in the charge form.
The charge shall be written in the language of the court.
If the accused has been previously convicted of any offence, then the fact, date and place of previous
conviction should be stated in the charge for enhanced punishment which the court might pass if it
finds the accused guilty of the offense charged.
In the case of Court in its Motion v Shankroo (1982), the court held 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), the court held that defect in charge vitiates the conviction.
#. Particulars as to Time, Place and Person: Section 235 asserts
The charge framed shall contain the particulars as to the time and place of the alleged
offence and the person against whom the offence is committed in order to give the
accused precise information and clear notice of the matter for which he is charged.
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The exact time need not be mentioned in the charge form when the accused is charged
with criminal breach of trust or dishonest misappropriation of money or any other movable
property, the gross sum specified and the dates on which such alleged offence has been
committed will be sufficient.
For example, in case of murder the date and time of murder and the details of the accused and
the deceased will be sufficient.
In Ranchhod Lal v. State of Madhya Pradesh (1964), it was held that failure to mention the
particulars precisely due to the nature of the information may not invalidate the proceedings.
When the Manner of Committing Offence Must be Stated: Section 236
When the nature of the case is such that the particulars indicated in Section 234 and Section
235 do not provide the accused with adequate notice of the allegation with which he is
charged, the charge shall contain such particulars of how the alleged offence is committed
as would provide for that purpose.
For example- A is accused of cheating B at a given time and place. The charge must set out
the manner in which A cheated B.
#. Alteration of Charge and the Procedure to be followed:
Power of the Court to Alter Charge: Section 239
This section explains that the court shall have the power to alter or add to a charge at any
time before the pronouncement of judgement.
After such alteration or any addition made to the charge, the charge shall be explained to
the accused.
If an alteration or addition to a charge is such that proceeding of the trial immediately would
not prejudice the accused in his defence or the prosecutor in the conduct of the case, the
court may, in its discretion, proceed with the trial as if the altered or added charge was the
original charge after the alteration or addition has been added.
If an addition or alteration to a charge is such that proceeding of the trial immediately would
prejudice the accused in his defence or the prosecutor in the conduct of the case, the court
may either order a new trial or adjourn it as it deems fit.
If the offence stated in the altered or added charge is one for the prosecution, the case shall
not move forward unless sanction has been obtained for prosecution in respect of facts
constituting the offence on which the altered or added charge is founded.
The principle that has to be kept in mind is that the charge so framed by the Magistrate is in
accordance with the material produced before him or if subsequent evidence comes on record.
Unless the evidence has been let in, charges already framed cannot be altered, as that is
not the intent of Section 239 BNSS.
It is obligatory on the part of the court to see that no prejudice is caused to the accused, and
he is allowed to have a fair trial.
The trial court or the appellate court may either alter or add to the charge provided the only
condition is:
The accused has not faced charges for a new offence.
The accused must have been given the opportunity of defending the charge against
him.
Recall of Witness When Charge is Altered: Section 240
Section 240 of BNSS deals with recalling of witnesses when the charge is altered or
added by the court after commencement of the trial, altered or added, it may do so on its
own and no order needs to be passed for that purpose.
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#. The Basic Rule and Its Exception
Separate Charge for Distinct Offence: Section 241
There should be a separate charge for each unique offence for which the individual is
accused, and each charge shall be tried separately.
However, if the accused person requests in writing for the trial of all charges together and the
Magistrate believes that the accused person will not be prejudiced, the Magistrate may try all or
any number of allegations brought against him.
Illustration: A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A
must be separately charged and separately tried for the theft and causing grievous hurt.
Exception:
Exception-1 Offences of same kind within year may be charged together (Sec-242)
Section 242 of the BNSS asserts that when a person is accused of more than one offence,
but not exceeding three of the same kind, and it is committed within 12 months, then
regardless of the fact that whether it has been committed against the same person or not, 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 BNS,2023 or any special or local laws.
The proviso to Section 242 states when the accused is punishable under Section 303(2)
BNS, it is said to be the offence of the same kind as an offence punishable under Section 305
BNS.
Exception 2
Section 243(1) of BNSS: 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.
Exception 3
Section 243(2) of BNSS: When the accused is charged with one or more offences of criminal
breach of trust or dishonest misappropriation of property the accused may be charged with and
tried at one trial for every such offence.
Exception 4:
Section 243(3) of BNSS: 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.
Ramayan Bhagat v. The State (1968): In this case, it was said that a man may be prosecuted
under Section 7 of the Essential Commodities Act, 1955 for having rice above the prescribed
limit and also for dacoity in respect of the same bags of rice.
Exception 5:
Section 243(4) of BNSS: 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 IPC.
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Exception 6:Section 244 of BNSS 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 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.
Achhut Rai v. Emperor (1926): In this case, where the accused is charged with murder under
Section 302 of IPC, the accused cannot be convicted under Section 194 of the Indian Penal Code:
Exception 7: Section 246 of BNSS 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 attempt 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 317 (2),(5) of BNS
Accused of offences under Chapter X of the BNS
The proviso to Section 246 of BNS 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.
Dinesh Kumar v. State (2015): 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 themselves.
#. Conviction of an offence not charged when such offence is included in an
offence charged (When Offence Proved Included in Offence Charged: Section 245):
This section provides that when the accused is charged with several offences and some of
which when combined and proved a complete minor offence, then the accused may be
convicted of a minor offence though he was not charged with such minor offence.
Where an accused is charged with an offence, he may be convicted of an attempt to commit
such offence although the offence is not separately charged.
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.
#. Withdrawal of Remaining Charges on Conviction on one of Several Charges: Section-247
It states that when the accused is charged with more than one head, and after
the conviction of the accused under that head, either the complainant or the officer
conducting the prosecution may withdraw remaining charge with the consent of the court.
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Vibhubti Narayan Chaubey v. State of UP (2002), in this case, a charge can be withdrawn
under this section only after the judgment and it cannot be deleted.
#. Effect of errors: Section 238 and 510 of BNSS deals with effect or errors.
The idea behind these sections is to prevent failure of justice where there has been an only
technical breach of rules and while not going to the roots of the case as such.
Section 238 of BNSS 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): 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.
Section 510 of BNSS states that 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.
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