Crpc 2

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Information about Crpc 2

Published on October 20, 2014

Author: rittikadattana

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1. Code of Criminal Procedure Charge and Effect Of Errors By Rittika Dattana Page 1

2. Contents S.No. Particulars Pages 1. 2. 3. 4. Table of Cases Charge  Meaning  Purpose  Contents  Form Errors in Charge  Section 215  Section 216  Section 446 Bibliography 5 6-9 10-14 15 By Rittika Dattana Page 2

3. Table of Cases  K.Veeraswami Vs Union Of India, (1991) 3 SCC 655  Inder Pal vs. Emperor, AIR 1936 Lah. 409  V.C. Shukla v. State, C.B.I.,1980 Supplementary SCC 92  Mohan Singh V. State of Bihar, [2011] 12 S.C.R. 327  Shashidhara Kurup vs Union of India, AIR 2013 SC 840  Rawalpenta Venkalu vs State of Hyderabad, 1956  Kailash Gir vs V K Khare, Food Inspector, 1981  Darbara Singh v. State of Punjab, AIR 2013 SC 840  C.B.I. Vs. Karimullah Osan Khan, 4th March, 2014 By Rittika Dattana Page 3

4. CHARGE Trial begins from the framing of the charge in a criminal case and ends at the pronouncement of the judgment in acquittal or conviction. The law of trial is the province of the Criminal Procedure which is an adjective law and is the machinery for the implementation of the substantive law. One basic requirement of a fair trial in criminal jurisprudence is to give precise information to the accused as to the accusation against him. This is vitally important to the accused in the preparation of his defence. In all trials under the Criminal Procedure Code the accused is informed of the accusation in the beginning itself. In case of serious offences the Code requires that the accusations are to be formulated and reduced to writing with great precision & clarity.1 This piece of information to the accused is known as “charge”. This charge is then to be read and explained to the accused person. Chapter XVII from Sections 211-224 Cr.P.C. deals with charges, the mode of charges, the particulars to be mentioned in charges as well as joiner of charges and joiner of accused. Meaning of Charge: The word ‘Charge’ has not been defined in the Code. It only states that in section 4(1) (c) that Charge includes any head of charge when the charge contains more heads than one.2 As per Wharton's law Lexicon, Charge means to prefer an accusation against someone. When a Police officer gives a Police report under section 173 Cr.P.C. recommending prosecution, it is called a charge sheet. After questioning the accused and hearing the arguments, the magistrate frames charges on the accused for which he is tried. The Apex Court in K.Veeraswami Vs Union Of India3 defined charge sheet in the following words: “The investigating officer collects material from all sides and prepares a report, which he files in the court as charge-sheet. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the Cr.P.C. The statutory requirement of the report under Section 173(2) would be complied with of the various details prescribed therein are included in the report. This report is intimation to the magistrate that upon investigation into a cognizable offence the 1 http://www.mondaq.com/india/x/257582/Crime/Framing+Of+Charges+An+Overview, 2nd Feb, 2014, 9.21 PM 2 http://www.assignmentpoint.com/arts/report-on-framing-of-charge-in-sessions-courts.html , 8th Feb, 2014, 11.12 PM 3 (1991) 3 SCC 655 By Rittika Dattana Page 4

5. Investigation Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2), purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied with all the documents and statements of witnesses required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.“ The Purpose of Framing Charge: A charge is an important step in a criminal proceeding. It separates the inquiry stage from trial. It is only when a prima facie case is disclosed about a certain offence that a charge is framed the whole object The purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged and must convey to him with sufficient clearness and certainty4 what the prosecution intends to prove against him and of which he will have to clear himself. It was pointed out in Inder Pal vs. Emperor5 that a charge is intended to inform the accused with certainty and accuracy the exact nature of the offence leveled against the accused. The primary object of framing a charge is to give notice of the essential facts which the prosecution proposes to establish to bring home charge to the accused so that he will be able to defend and may not be prejudiced. It has been repeatedly held that the framing of a proper charge is vital to a criminal trial and that is a matter on which the judge should bestow the most careful attention.6 In the ruling of a four-Judge Bench of The Hon’ble Supreme Court in V.C. Shukla v. State7, Justice Desai delivering a concurring opinion opined that ‘the purpose of framing a 4 Jaswantrai v. Stae of Bombay, AIR 1956 SC 575 (585): 1956 SCR 483(504-05): 1956 CrLJ 1116; Willie Slaney v. State of M.P., AIR 1956 SC 116; (1955) 2 SCR 1140: 1956 CrLJ 291. 5 AIR 1936 Lah. 409 6 Balakrishnan v. State, AIR 1958 Ker 283; Basavaraja v. State of Karnataka, (2008) 9SCC 329: (2008) 3 SCC (Cri) 767. 7 C.B.I.,1980 Supplementary SCC 92 at page 150 and paragraph 110 By Rittika Dattana Page 5

6. 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’. Thus one of the main purposes of another purpose of a charge is to serve the principles of natural justice “No one should be condemned unheard”. The other purpose of a charge is to substantiate the principle of presumption of innocence of the accused, in other words, criminal standard of proof. The prosecution has to prove a case against the accused beyond reasonable doubt. Contents of Charge Section 211 specifies the contents of a Charge as follows: (1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law that creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law that 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. In Mohan Singh V. State of Bihar8, it was held that where in charge no mention of Section 302 of IPC was there, but mentioned that the accused had murdered the deceased, then all the ingredients of the charge were considered to be mentioned and the requirement of Section 211, sub-section (2) was complied with. 8 [2011] 12 S.C.R. 327 By Rittika Dattana Page 6

7. Time and Place of the offence As per section 212, the charge must also specify the essential facts such as time, place, and person comprising the offence. For example, if a person is charged with Murder, the charge must specify the name of the victim and date and place of the murder. In case of Shashidhara Kurup vs Union of India, 1994, no particulars of offence were stated in the charge. It was held that the particulars of offence are required to be stated in the charge so that the accused may take appropriate defence. Where this is not done and no opportunity is afforded to the accused to defend his case, the trial will be bad in law for being violative of the principles of natural justice. Manner of committing the offence Sometimes, even the time and place do not provide sufficient notice of the offence which a person is charged. In such situations, Section 213, mandates that the manner in which the offence was made must also be specified in the charge. It says that when the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that Purpose. Words in charge taken in sense of law under which offence is punishable When the question arises of how to interpret the words in a charge, then, in this connection, the provision of Section 214 of the Code deals with the answer. Section 214 of the Code is set out below: 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. By Rittika Dattana Page 7

8. Cause and Effects of errors in a Charge Sections 215, 216 and 464 of the Code deals with the cause and effect of errors in framing of a charge. A detailed analysis of them is given hereafter: Section 215 In general, an error in a Charge is not material unless it can be shown that the error misled the accused or that the error caused injustice. Section 215 says, "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence 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." In the case of Rawalpenta Venkalu vs State of Hyderabad, 1956, the charge failed to mention the Section number 34 of IPC but the description of the offence was mentioned clearly. SC held that the section number was only of academic significance and the omission was immaterial. 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.9 The mere omission to frame a charge or a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to sub serve the ends of justice & not to frustrate them by mere technicalities. The Supreme Court observed that it is a settled law that a fundamental defect should be found in the charges if the Court has to quash it. Whether the accused was misled and whether there was reasonable possibility of prejudice being caused to the accused on account of defective charges are relevant considerations in judging the effect of wrong or deficient charges. Section 215 makes it clear that no error or omission in stating either the offence or the particulars required to be stated shall be regarded as material unless the accused was in fact misled by such error or omission and it was occasioned a failure of justice.10 9 SS Rout v. State of Orissa, 1991 Cri LJ 1595 10 http://www.shareyouressays.com/119417/effect-of-error-in-charge-section-215-of-crpc, 12th Mar, 2014, 9.11 PM By Rittika Dattana Page 8

9. Section 464 This section provides that an order, sentence, or finding of a court will not be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation, or revision, a failure of justice has in fact happened because of it. If such a court of appeal, confirmation, or revision find that a failure of justice has indeed happened, in case of omission, it may order that a charge be immediately framed and that the trial be recommenced from the point immediately after the framing of the charge, and in case of error, omission, or irregularity in the charge, it may order new trial to be held upon a charge framed in whatever manner it thinks fit. As is evident, the object of these sections is to prevent failure of justice where there has been only technical breach of rules that does not affect the root of the case as such. As held in the case of Kailash Gir vs V K Khare, Food Inspector, 1981, the above two sections read together lay down that whatever be the irregularity in framing the charge, it is not fatal unless there is prejudice caused to the accused. In Darbara Singh v. State of Punjab11, the apex Court concluded that the accused has to satisfy the court that if there is any defect in framing the charge it has prejudiced the cause of the accused resulting in failure of justice. It is only in that eventuality the court may interfere. The Court elaborated the law as under: “The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).” 11 AIR 2013 SC 840 By Rittika Dattana Page 9

10. Section 216 Section 216 allows the court to alter the charge anytime before the judgment is pronounced. (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) lf the offence stated in the altered or added charge is one for the prosecution of which previous section 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. Thus, even if there is an error in a charge, it can be corrected at a later stage. An error in a charge is not important as long as the accused in not prejudiced and principles of natural justice are not violated. On 4th March, 2014, the Supreme Court in C.B.I. Vs. Karimullah Osan Khan decided upon legality of the order passed by the Designated Court under TADA (P) Act, 1987 for Bomb Blast Case, Greater Bombay, rejecting the application filed by the Central Bureau of Investigation (for short ‘CBI’) under Section 216 of the Code of Criminal Procedure (for short ‘CrPC’) for addition of the charges punishable under Section 302 and other charges under the Indian Penal Code (for short ‘IPC’) and the Explosives Act read with Section 120-B IPC and also under Section 3(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short ‘TADA Act’). The facts of the case are that Mumbai and its surrounding areas witnessed a series of bomb blasts on 12.3.1993, whereby 257 persons were killed, 713 persons got injured and extensive damage to properties worth approximately Rs.27 crores was caused. The State Police had registered 27 criminal cases. On 4.11.1993, a single charge-sheet was filed in the Designated Court against 189 accused persons, of which 44 were shown as absconding. By Rittika Dattana Page 10

11. Investigation from the State Police was transferred to CBI on 19.11.1993. CBI, later, submitted supplementary reports before the Designated Court under Section 173(8) CrPC and the case was registered as Court Case No.BBC-1 of 1993. During the course of investigation, the involvement of the respondent accused, by name Karimullah Osan Khan, was disclosed and efforts were made to arrest him. The Designated Court issued proclamation against him and, on 5.8.1994, he was declared as a proclaimed offender. Later, the Designated Court, on 8.9.1994, issued warrant of arrest against him. The Designated Court framed a common charge of criminal conspiracy on 10.4.1995 against all the accused persons present before the Court and also against the absconding accused persons, including the respondent under the following Sections: 1. Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of IPC r/w section 3(2) (i) (ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and r/w Section 302, 307, 326, 324, 427, 435, 436, 201 and 212 of IPC. 2. Section 3 and 7 r/w Section 25(1A), [1B(a)]. of the Arms Act, 1959. 3. Section 9-B (1),(a),(b),(c) of the Explosives Act 1884. 4. Section 3, 4(a), (b), 5 and 6 of the Explosives Substances Act, 1908. 5. Section 4 of Prevention of Damage to Public Property Act, 1984. Karimullah Osan Khan, who was absconding, was arrested in Mumbai on 22.8.2008, and was remanded to the police custody and investigation was carried on. During further investigation, the respondent accused made a confession which was recorded under Section 15 of the TADA Act, wherein he had admitted his role in the criminal conspiracy, for which the above mentioned common charges had been framed. On completion of investigation, a supplementary charge-sheet dated 17.11.2008 was filed against the respondent accused for offence of criminal conspiracy as well as the offence punishable under Section 3(3) of TADA Act and lists of additional witnesses and additional documents were enclosed along with the supplementary charge-sheet. On 1.1.2009, the Designated Court framed charge of conspiracy against the respondent accused under Section 120-B IPC read with Section 3(3) of TADA Act but, it is the statement of CBI, that inadvertently the original charge of criminal conspiracy under Section 3(2) of TADA Act read with Section 120-B IPC and other offences applicable were not mentioned. On 3.2.2009, the evidence was closed by the CBI and on 6.2.2009, the statement of the respondent accused was recorded. CBI, as already indicated, filed an application on 26.2.2009 under Section 216 CrPC for alteration of charge by addition of the charges punishable under Section 302 IPC and other charges under the IPC and the Explosives Act read with Section 120-B IPC and Section 3(2) of the TADA Act. The Designated Court, on 28.4.2009, rejected the application filed by the CBI, against which this appeal has been preferred. By Rittika Dattana Page 11

12. The apex court stated that “Taking note of all those aspects and the fact that the respondent was declared as a proclaimed offender and was absconding for more than 15 years and sufficient materials are already on record and all elements of the crime are interconnected and interrelated, the Court cannot simply discard the confession made by him on 27.8.2008 during investigation, which was recorded under Section 15 of TADA Act, wherein he had admitted his role in the criminal conspiracy, of course, that has to be dealt with in accordance with law. Following that, the supplementary charge-sheet was filed against the respondent accused for offence of criminal conspiracy as well as for offences punishable under Section 3(3) of TADA Act and a list of additional witnesses and documents was enclosed with that. The Designated Court framed charge of criminal conspiracy against the respondent under Section 120-B IPC read with Section 3(3) of TADA Act but, inadvertently, the original charge of criminal conspiracy under Section 3(2) of TADA Act read with Section 120-B and other offences, was not mentioned. The Designated Court failed to appreciate that the supplementary charge-sheet dated 17.11.2008 filed against the respondent accused was in continuation of the original charge- sheet filed on 4.11.1993 and the list of witnesses annexed to the supplementary charge-sheet was shown as list of additional witnesses. Further, the entire material available at that time, which led to the framing of charges during abscondance of the respondent accused and other accused persons, is available to the prosecution to be used against the respondent at the stage of charge or at the stage of modification of the charge.”12 Looking into all those aspects, the apex court held that, this was a fit case where the Court ought to have exercised its powers under Section 216 CrPC and allowed the application dated 26.12.2009 filed by CBI for alteration of charge and consequently the impugned order was set aside. 12 http://judis.nic.in/supremecourt/imgs1.aspx?filename=41282, 9th March, 2014, * PM By Rittika Dattana Page 12

13. Bibliography Web links:  http://www.mondaq.com/india/x/257582/Crime/Framing+Of+Charges+An+Overview  http://www.assignmentpoint.com/arts/report-on- framing-of-charge-in-sessions-courts. html  http://www.shareyouressays.com/119417/effect-of-error- in-charge-section-215-of-crpc  http://www.indiankanoon.org Books: Kelkar R.V., Criminal Procedure, Fifth Edition 2008, Reprint 2011, Eastern Book Company, Lucknow By Rittika Dattana Page 13

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