Basic Rules of Charge and its Exceptions

Basic Rules of Charge and its Exceptions | Overview

• Introduction
• Basic Rule of Charge
• Exceptions to the Basic Rule
• Application by the Accused
• Three Offences of the Same Kind within a Year
• Offences Committed in the Same Transaction
• Where it is Doubtful What Offence has been Committed
• Where Two or More Persons can be Charged Jointly

Charge and trial are the two most significant terms in criminal jurisprudence. Charge, on one hand, means the offence that the person is alleged to have committed while trial means the judicial process during which evidence is taken to prove and disprove such charge.

All criminal jurisprudence entails three basic rules of charge and trial that (a) a person must be charged separately for separate offences, (b) two offences must not be tried in one trial and (c) two or more persons should be tried separately. However, due to this basic rule of charge and trial, there can be a delay in disposal of cases, extra cost upon the litigants and most of all difficulty in respecting the evidence.

Therefore, the Criminal Procedure Code entails certain exceptions to the basic rule as well. The basic rule of charge and trial and the exceptions thereof are discussed in detail hereunder.

Introduction

Section 2 (b) of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’) defines ‘charge’ in an inclusive manner. According to this provision, the charge includes any head of the charge when there are more heads than one. When a criminal prosecution initiates, the Magistrate charges the accused and informs him of the number of offences that have been alleged against him. All these offences are called heads of charge and all of them individually and together are known as ‘charge’.

Criminal law is based on certain established principles, rules and guidelines which need to be adhered to. Presumption of innocence, the fairness of the trial, etc. are certain principles that are followed in criminal jurisprudence. Similarly, charging a person is also not random or at the discretion of the Magistrate. The Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) establishes a basic rule for charging a person in any prosecution.

Basic Rule of Charge

Section 218 lays down the basic rule of charge and trial. The basic rule states that there must be a different and separate charge for every offence that the person is accused of and every charge levied against the person shall be tried separately in distinct trials.

Thus, in a nutshell, there should be as many charges as the number of an offence committed and each charge must be individually tried on merits. Further, if there are more than one accused, it is also the fundamental rule that each of them should be tried separately and not jointly.

For instance, A, B and C decided to rob a bank and gathered arms for the purpose and devised a plan. According to their plan, they broke into the bank when it was close and held every staff hostages. They started pillaging money when one of the staff rang the bell. A shot the staff and police came to rescue. They tried escaping and in the process, they had to injure another hostage to let them escape.

In the entire process, A, B and C committed ‘robbery’, ‘murder’ and ‘voluntary causing grievous hurt’. Thus, the basic rule states that each of these persons must be tried for each of these offences separately. If they are found guilty of one does not mean they are guilty of all.

Exceptions to the Basic Rule

In general day to day lives, if we have been to court or have heard it at home or on any media reports, a person is always tried for all the offence together and also all the accomplices are charged and tried together with him.

Now, the question is how does it happen? How does the basic rule apply in practice? So, the answer to these questions is simple; that basic rules have so many and practical exceptions that there is hardly any situation when these fundamental rules apply. The following are the exceptions to the basic rule of charge and trial:

• Application by the Accused:

Proviso to Section 218 (1) specifically allows the accused person(s) to move an application in writing to the Magistrate requesting him to try him for all the offence together at one trial. This is usually done to save time and money. When all the charges are separately tried, it takes immense time when each evidence is analyzed and every witness is examined and cross-examined.

The process is repeated for every offence and new evidence and brought every time a new trial commences. This makes it a very tiring and never-ending process. Even when the accused is innocent he has to undergo years going through the trial. Moreover, this also has an adverse impact on the pockets of the accused since he has to engage a lawyer to defend him and the longer the trial goes, the higher amount will be spent on legal services.

In a criminal case, the accused is also not entitled to any kind of cost reimbursement for wrong or misunderstood trial. However, the application under Section 218 (1) cannot be processed on the request of the applicant alone. The Magistrate must look into the effect of joinder of charges and ensure that it will not prejudice the accused and affect the integrity of the fair trial.

• Three Offences of the Same Kind within a Year:

According to Section 219 CrPC, if a person is accused of commission of two or more offences which are similar in nature within a period of one year, i.e. 12 months, then he may be charged with all such offences together and tried for them together as well. This is an exception to the basic rule of separate charges for separate offences.

Under this provision, the essential requirements are: (i) that the person must have been charged and prosecuted for more than one offence. It does not include investigation being carried on for another offence. It means that if the person charged and tried for theft and another offence of criminal misappropriation is being investigated.

These offences cannot be joined unless the trial initiates for both offences, (ii) all the offences which are desired to be charged together must have been committed within a span of twelve months. It means that not more than twelve months should have passed after the commencement of trial for the first offence and before the commencement of trial for the last such offence, (iii)all the offences which are to be jointly charged and tried must be similar in nature.

Now, a similar offence does not mean all must be related to each or all must be sexual offence, etc. Section 219 (2) defines offence of similar nature as those for which the prescribed punishment, i.e. tenure of imprisonment and/or fine is same, offences which fall under same section or same chapter of the Indian Penal Code and offences and attempt to commit such offences are similar offences for the purpose of this section.

• Offences Committed in the Same Transaction:

This is the most important and basic exception to the fundamental rule of separate charges. This exception emerges from Section 220 which provides that when a series of acts have been performed by a person and during the course of such act, several offences have been committed, the person may be charged and tried for all such offences in one single trial.

For instance, in the aforementioned example where A, B and C robbed a bank, injured a hostage and killed another, though the basic rule requires them to be charged and tried separately for distinct offence, this provision creates an exception for such circumstances. Therefore, if the acts of the accused are such that it has been committed in the course of one single event, s/he can be charged for all the offences at once.

At the point when an individual accused of at least one offence of criminal breach of trust or exploitative misappropriation of property as mentioned in sub-section (2) of section 212 or in sub-section (1) of section 219, is blamed for perpetrating, to encourage or covering the commission of that offence or those offences, at least one offences of misrepresentation of records, he might be accused of and attempted at one trial for, each such offence.

On the off chance that the demonstrations asserted establish an offence falling inside at least two separate meanings of any law in power until further notice by which offences are characterized or rebuffed, the individual blamed for them might be accused of and attempted at one preliminary for, every one of such offences.

In the event that few demonstrations, of which at least one than one would without anyone else or themselves establish an offence, comprise when consolidated an alternate offence, the individual blamed for them might be accused of, and attempted at one preliminary for the offence established by such acts when joined, and for any offence established by any, at least one, of such acts.

• Where it is Doubtful What Offence has been Committed:

There can be circumstances where it becomes ambiguous as to what offence has been committed by the accused because of the similar nature of the acts. For instance, when the act may seem to be criminal breach of trust or criminal misappropriation of property or theft, the exception states that the person alleged to have committed either or any of these offences may be charged with any one or all of the offences and tried for them together at the discretion of the Magistrate.

This has been contemplated by Section 221 of the Code which empowers the Magistrate to charge in alternative or for all the offence that appears to be committed by the person. Moreover, the second clause also provides a remedy in case the actual offence committed by the person is completely distinct than the ones with which he was charged. It empowers the Magistrate to try and convict the person for the offence which has been brought out by evidence even though he is not charged for the same.

• Where Two or More Persons can be Charged Jointly:

As already asserted above, it is another basic rule of charge and trial that every person should be charged separately and tried severally. Section 223 makes an exception to this rule under which provision two or more person can be charged and tried together for the same or distinct offences as the case may be. According to the section, the person can be charged and tried jointly in the following circumstances or situations:

• Where two or more persons commit the same crime while in the same process or same course of action such as A and B together killed C by strangling him to death.
• Where two or more persons have together committed an offence such that one is the main culprit while others have attempted or abetted the commission of the offence such as A and B plan to rob a bank. A went inside and B waited outside in a car to drive them back.
• Where two or more offences which are of similar nature as expounded under Section 219 are committed by two or more person before the expiry of a period of twelve months.
• Where two or more persons plan to commit a certain crime and take part in the commission of the offence but the distinct offence is committed by them. For instance, A and B plan to kill C but B backs out of the plan last moment and A executes it alone but B commits the offence of giving false evidence to the police.
• Where the offence charged includes offences against property, the person(s) who steal the articles or property and those who receive the stolen goods knowing it to be stolen can be charged and tried together.
• Where two or more persons are accused of any offence or offences which fall under offences related to stamps and counterfeit coins, they can be charged and tried together.

REFERENCES:

1. Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th ed. 2006).
2. V. Kelkar, Lectures on Criminal Law (8th ed. 2016).
3. D. Basu, Criminal Procedure (6th ed. 2014).

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