CHAPTER XVII - THE CHARGE
A—Form of charges
211. Contents of charge –
(1)
Every charge under this Code shall state the offence with which the accused is
charged
(2)
If the law which creates the offence gives it any specific name, the offence
may be described
in
the charge by that name only
(3)
If the law which creates the offence does not give it any specific name so much
of the
definition
of the offence must be stated as to give the accused notice of the matter
with
which he is charged
(4)
The law and section of the law against which the offence is said to have been
committed shall
be
mentioned in the charge
(5)
The fact that the charge is made is equivalent to a statement that every legal
condition
required
by law to constitute the offence charged was fulfilled in the particular case
(6)
The charge shall be written in the language of the Court
(7)
If the accused, having been previously convicted of any offence, is liable, by
reason of such
previous
conviction, to enhanced punishment, or to punishment of a different kind, for a
subsequent
offence, and it is intended to prove such previous conviction for the purpose
of
affecting
the punishment which the Court may think fit to award for the subsequent
offence, the
fact
date and place of the previous, conviction shall be stated in the charge; and
if such statement
has
been omitted, the Court may add it at any time before sentence is passed
Illustrations
(a)
A is
charged with the murder of B This is equivalent to a statement that A's act fell within the
definition
of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860);
that it
did
not fall within any of the general exceptions of the said Code; and that it did
not fall within
any
of the five exceptions to section 300, or that, if it did fall within Exception
1, one or other of
the
three provisos to that exception applied to it
(b)
A is
charged under section 326 of the Indian Penal Code (45 of 1860) with
voluntarily
causing
grievous hurt to B by means of an instrument for shooting This is equivalent to a
statement
that the case was not provided for by section 335 of the said Code, and that
the general
exceptions
did not apply to it
(c)
A is
accused of murder, cheating, theft, extortion, adultery or criminal
intimidation, or using a
false
property-mark The charge may state that A committed murder, or cheating, or
theft, or
extortion,
or adultery, or criminal intimidation, or that he used a false property-mark,
without
reference
to the definition, of those crimes contained in the Indian Penal Code; but the
sections
under
which the offence is punishable must, in each instance, be referred to in the
charge
(d)
A is
charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally
obstructing
a sale of property offered for sale by the lawful authority of a public servant
The
charge
should be in those words
212. Particulars as to time, place and person -
(1)
The charge shall contain such particulars as to the time and place of the
alleged offence, and
the
person (if any) against whom, or the thing (if any) in respect of which, it was
committed, as
are
reasonably sufficient to give the accused notice of the matter with which he is
charged
(2)
When the accused is charged with criminal breach of trust or dishonest
misappropriation
of money or other moveable property, it shall be sufficient to specify the
gross
sum
or, as the case may be, described the movable property in respect of which the
offence is
alleged
to have been committed, and the dates between which the offence is alleged to
have been
committed,
without specifying particular items or exact dates, and the charge so framed
shall be
deemed
to be a charge of one offence within the meaning of section 219:
Provided
that the time included between the first and last of such dates shall not
exceed
one
year
213. When manner of committing offence must be stated -
When
the nature of the case is such that the particulars mentioned in sections 211
and 212 do not
give
the accused sufficient notice of the matter with which he is charged, the
charge shall also
contain
such particulars of the manner is which the alleged offence was committed as
will be
sufficient
for that purpose
Illustrations
(a)
A is
accused of the theft of a certain article at a certain time and place The
charge need not set
out
the manner in which the theft was effected
(b)
A is
accused of cheating B at a given time and place The charge must be set out the manner in
which
A cheated B
(c)
A is
accused of giving false evidence at a given time and place The charge must set
out that
portion
of the evidence given by A which is alleged to be false
(d)
A is
accused of obstructing B, a public servant, in the discharge of his public functions at a
given
time and place The charge must set out the manner in which A obstructed B in the
discharge
of his functions
(e)
A is
accused of the murder of B at a given time and place The charge need not state the
manner
in which A murdered B
(f)
A is
accused of disobeying a direction of the law with intent to save B from punishment The
charge
must set out the disobedience charge and the law infringed
214. Words in charge taken in sense of law under which offence is
punishable -
In
every charge words used in describing an offence shall be deemed to have been
used in the
sense
attached to them respectively by the law under which such offence is punishable
215. Effect of errors –
No
error in stating either the offence or the particulars required to be stated in
the charge, and no
omission
to state the offence or those particulars, shall be regarded at any stage of
the case as
material,
unless the accused was in fact misled by such error or omission, and it has
occasioned a
failure
of justice
Illustrations
(a)
A is
charged under section 242 of the Indian Penal Code (45 of 1860), with
"having been in
possession
of counterfeit coin, having known at the time when he became possessed thereof
that
such
coin was counterfeit," the word " fraudulently" being omitted in
the charge Unless it
appears
that A was in fact misled by this omission, the error shall not be
regarded as material
(b)
A is
charged with cheating B, and the manner in which he cheated B is not set out in the
charge,
or is set out incorrectly A defends himself, calls witnesses and gives his own account of
the
transaction The Court may infer from this that the omission to set out the
manner of the
cheating
is not material
(c)
A is
charged with cheating B, and the manner in which he cheated B is not set out in the
charge
There were many transactions between A and B, and A had no means of knowing to
which
of them the charge referred, and offered no defence The Court may infer from
such facts
that
the omission to set out the manner of the cheating was, in the case, a material
error
(d)
A is charged
with the murder of Khoda Baksh on the 21st January, 1882 In fact, the murdered
person's
name was Haidar Baksh, and the date of the murder was the
20th
January, 1882 A was never charged with any murder but one, and had heard the
inquiry
before
the Magistrate, which referred exclusively to the case of Haidar Baksh The
Court may
infer
from these facts that A was not misled, and that the error in the charge was immaterial
(e)
A was
charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh
(who
tried to arrest him for that murder) on the 21st January, 1882 When charged for
the murder
of
Haidar Baksh, he was tried for the murder of Khoda Baksh The witnesses present
in his
defence
were witnesses in the case of Haidar Baksh The Court may infer from this that A was
misled,
and that the error was material
216. Court may alter charge
(1)
Any Court may alter or add to any charge at any time before judgment is
pronounced
(2)
Every such alteration or addition shall be read and explained to the accused
(3)
If the alteration or addition to a charge is such that proceeding immediately
with the trial is
not
likely, in the opinion of the Court to prejudice the accused in his defence or
the prosecutor in
the
conduct of the case the Court may, in its discretion, after such alteration or
addition has been
made,
proceed with the trial as if the altered or added charge had been the original
charge
(4)
If the alteration or addition is such that proceeding immediately with the
trial is likely, in the
opinion
of the Court to prejudice the accused or the prosecutor as aforesaid, the Court
may either
direct
a new trial or adjourn the trial for such period as may be necessary
(5)
If the offence stated in the altered or added charge is one for the prosecution
of which
previous
sanction is necessary, the case shall not be proceeded with until such sanction
is
obtained,
unless sanction had been already obtained for a prosecution on the same facts
as those
on
which the altered or added charge is founded
217. Recall of witnesses when charge altered -
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—
(a)
to recall or re-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 the prosecutor or the accused, as the case may be, desires to recall or
re-examine
such
witness for the purpose of vexation or delay or for defeating the ends of
justice;
(b)
also to call any further witness whom the Court may think to be material.
