Login : Advocate | Client
Home Post Your Case My Account Law College Law Library

Report No. 41

Chapter XIX

The Charge

19.1. Section 221.-

Section 221 lays down the main requirement for the framing of a charge as regards the offence with which the accused is charged.

Language of charge.- Su.-section (6) provides that in the Presidenc.-towns the charge shall be written in English and elsewhere it shall be written either in English or in the language of the Court. We see no justification at the present day to have a separate rule for Presidenc.-towns and recommend that there also the charge should be written either in English or in the language of the Court. A suggestion has been received that the charge should be written in the language of the accused when it is not the language of the Court. The Code expressly provides1 that in trials of warrant cases by Magistrates as well as in sessions trials, the charge should be read and explained to the accused. These provisions are adequate to secure a fair notice to the accused and there is no need to add a reference to the language of the accused in su.-section (6).

1. Sections 251A(4), 255(1) and 271.

19.2. Section 222.-

Section 222(1) prescribes the important general rule that full particulars as to the time and place of the offence and as to the person against whom or the thing in respect of which the offence was committed should be given in the charge. Su.-section (2) of the section provides a limited relaxation of the rule in a case of criminal breach of trust or of dishonest misappropriation. In these two cases it is sufficient to specify the gross sum embezzled or misappropriated and the dates between which the offence was committed, subject to the limitation that the interval between the first and the last of such dates shall not exceed one year. The charge so framed shall be deemed to be a charge of one offence within the meaning of section 234.

19.3. Effect of sections 222(2) and 234(1).-

The combined effect of sections 222(2) and 234(1) is that a person accused of breach of trust may be charged with and tried at one trial for three such offences committed within the space of 12 months, and in retard to each such offence the relaxation as to stating particulars of time, place and amount may be availed of. But when the embezzlement has been going on for a long time, say three years, it is not permissible to rely on section 222(2) for grouping together each year's embezzlement as one offence and then rely on section 234(1) for trying the three charges at one trial.

It is suggested that multiplicity of criminal proceedings is not avoided in such a case because both the sections have the same period limit of one year. By way of remedy the suggestion is made that the period mentioned in section 234(1) should be increased to two years and also that the number of charges that can be tried jointly may be increased from three to five or even six. We are unable to agree with either suggestion.

We do not think it is desirable to permit generally the joinder of more than three offences of the same kind at one trial or to increase the perio.-limit to two years. Apart from embezzlement cases it would not be to the advantage of the prosecution or of the defence to deal with numerous different transactions spread over a long period at one trial. Even in embezzlement cases the limit of one year, set in both the sections, is not unreasonable and there is no good justification for increasing it.

19.4. Sections 223 to 230.-

Sections 223, 224 and 225 do not call for any comments. In section 226 the special provision for the High Courts is not necessary and the words "or in the case of a High Court, the Clerk of the State" may be omitted. Similarly, since trial by jury is proposed to be abolished, in section 227(1) the latter part ("or in the case of trials by jury before the Court of Session or the High Court, before the verdict of the jury is returned") may be omitted. Sections 228, 229 and 230 also do not call for, any comments.

19.5. Section 23.-revision recommended.-

Under section 231, whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused "shall be allowed" to recall or r.-summon and examine, with reference to such alteration or addition, any witness already examined. Where an application is made for r.-summoning of such witnesses, the court is bound to grant it, and cannot refuse it on the ground that the accused cannot be prejudiced1 or even on the ground that the alteration is of such a nature that it cannot affect the evidence.

Now, it may happen that the application for recalling and r.-summoning the witness is made only for the purpose of vexation or delay or defeating the ends of justice. In such cases, the court should have a power to refuse the application. If the evidence of a witness is of a purely formal character and the other party merely desires to prolong the proceedings by taking advantage of the right given by the section, there is no reason why it should be mandatory for the court to r.-summon the witness. We, accordingly, recommend that section 231 be revised as follows.-

"231. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall on application be allowe.-

(a) to recall or r.-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the court, for reasons to be recorded in writing, considers that such application is made for the purpose of vexation or delay or for defeating the ends of justice;2

(b) to call any further witness whom the Court may think to be material."

1. Ramalinga v. Emp., AIR 1929 Mad 200 (201); Nagendra Nath v. Emp., AIR 1932 Cal 486 (487).

2. Cf. sections 251A(9) and 257(1).

19.6. Section 232 omitted and provisions included in section 535.-

Section 232 deals with the effect of a material error in, or absence of, a charge which has misled the accused in his defence. It provides that in such a case the court of appeal, revision or confirmation shall direct a new trial upon a charge framed in such manner as it thinks fit, or, if it is of opinion that on the facts proved in the case no valid charge could be preferred against the accused, it shall quash the conviction. This is hardly the proper place for such a provision. While the power of the superior courts to order retrial is referred to in subsequent sections like 376(b), 423(1) and 439(1), the effect of omission to frame a charge or an error in a charge is again provided for in sections 535 and 537(b). We consider that section 232 should be omitted and its provisions suitably modified and combined with the provisions in sections 535 and 537(b)1.

1. See para. 45.9 below.

19.7. Joinder of charge.-general scheme.-

The first requirement of a fair trial in criminal cases is a precise statement of the accusation. This requirement the Code seeks to secure, first by laying down in sections 221 to 224 what a charge should contain; next, by laying down in section 233 that for every distinct offence there should be a separate charge; and lastly, by laying down in the same section that (except in certain specified cases) each charge should be tried separately, so that what is sought to be achieved by the first two rules is not nullified by a joinder of numerous and unconnected charges.

These exceptions are based on some rational principle or other. In section 234, which permits a joint trial for offences of the same kind not exceeding three in number and committed within a period of twelve months, the principle is the avoidance of a multiplicity of proceedings. In section 235(1), the principle is the relation between offences forming part of the same transaction, separate trials whereof will naturally result in an incomplete comprehension of the totality of the crime even where they do not lead to conflicting judgments. The principle behind section 235(2) and section 235(3) is that if a criminal act has several aspects, all of them should be adjudged together.

Sections 236 and 237 (which should be read together) provide for the not unusual type of case in which while broad facts concerning an offence are, or can be, established by the evidence, not all the incidents and circumstances are known. In such cases it is permissible to charge the accused with having committed all or any of different but connected offences, and also to convict him of an offence with which he has not been expressly charged but might have been charged. Lastly, section 239 permits a joint trial of several persons in specified cases because of some basic connection between the various offences committed by them.

19.8. Section 23.-"distinct offence".-

The meaning of the expression "distinct offence" in section 233 has been fully explained by the Supreme Court in a recent decision.1 No changes are necessary in this section.

1. Banwari Lal v. Union of India. 196 Suppl 2 SCR 338: AIR SC 1620.

19.9. Section 234.-

We considered the question whether there is any need to increase the period of twelve months mentioned in section 234(1) or the number of offences which are triable at one trial. We are of the view that either increase would embarrass the accused and hinder a smooth and fair trial.

The principle laid down in section 234(2) as to when offences may be regarded as being "of the same kind" is, in our opinion, sound. The exception made by the proviso in regard to simple theft punishable under section 379 of the Penal Code and theft in a dwelling house etc., punishable under section 380 is also sound and the proviso does not require any addition, e.g., theft after preparation for violence (section 382) or robbery involving theft (section 392).

19.10. Section 23.-Joinder of charges of misappropriation and falsification of accounts.-

The application of section 235, particularly in relation to conspiracies, has been dealt with in a number of decisions1 of the Supreme Court, and the scope of the section in this respect is now well settled. There is some controversy,2 as to whether the joinder of three charges of criminal breach of trust or misappropriation with three charges of falsification of accounts connected with those offences is permissible, even when all the offences have been committed within the space of twelve months.

A charge specifying the gross sum, framed with reference to section 222(2), is no doubt a charge of one offence within the meaning of section 234, but this legal fiction contained in section 222(2) is only for the purposes of section 234.3 While the falsification of accounts connected with a single act of misappropriation can be said to form the same transaction and consequently a joint trial of the two offences is permissible under section 235(1), it is not permissible to try together even two offences of misappropriation and two connected falsifications of accounts, much less a series of misappropriations charged as one offence under section 222(2) and all the connected falsifications of accounts.

This position creates practical difficulties. Criminal breach of trust (or misappropriation) is often accompanied by falsification of accounts (or analogous offences) committed either to facilitate the breach of trust or to conceal its commission. The exclusion of such connected offences of falsification of accounts from the fiction created by section 222(2) deprives this section of its usefulness in many cases. While misappropriation on several occasions within a year accompanied by falsification of several items in the account books may be fairly described as parts of the same transaction, the several acts of falsifying the accounts cannot be clubbed together in one charge.

1. Purshottam Das Dalmia v. State, (1962) 2 SCR 101; R.K. Dalmia v. Delhi Administration, (1963) 1 SCR 253 (273); State of Andhra Pradesh v. Ganeshwar Rao, (1964) 3 SCR 297.

2. See cas.-law discussed in Sriram v. State, AIR 1956 All 466.

3. D.K. Chandra v. State, AIR 1952 Born 177; Krishna Murthy v. Abdul Subhan, AIR 1962 Mys 128.

Code of Criminal Procedure, 1898 Back

Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys