Whether charges under section 395 or 498-A IPC against more than one person can be framed without the aid of section 34 or 120-B IPC?

Question: Whether charges under section 395 or 498-A of IPC against more than one person can be framed without the aid of section 34 or 120-B IPC?

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Answer

Section 240 of the Code of Criminal Procedure lays down provisions for framing of charge. The section runs down as below:

“(1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

Power of Court to order separate trial in cases where joinder of charges or of offenders is permissible

The basic rule regarding charge is that for every distinct offence there shall be a separate charge & for every such charge there shall be a separate trial. The only exceptions recognized are contained in Sections 219,220,221 & 223 of CrPC. Therefore separate trial is the rule and a joint trial is an exception. The sections containing the exceptions are only enabling provisions.

A court has got the discretion to order a separate trial even though the case is covered by one of the exceptions enabling a joint trial. A joint trial of a very large number of charges is very much to be deprecated even though it is not prohibited by law. A separate trial is always desirable whenever there is a risk of prejudice against the accused in a joint trial. The Supreme Court has taken the view that it is the option of the court whether to resort to Section 219,220 & 223 of the Code or whether to act as laid down in Section 218 and that the accused has no right to claim joinder of charges or of offenders.

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 persons can be charged and tried together for the same or distinct offences as the case may be. According to this section, the person can be charged and tried jointly in the following circumstances or situations:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Moreover, Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for the action of an offence not committed by him but by another person with whom he shared the common intention.

It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There may be other provisions in the IPC like Section 120-B or Section 109 which could then be invoked to catch such non-participating accused. Thus participation in the crime in furtherance of the common intention is a sine qua non Section 34 IPC.

Thus, charges under section 395 or 498-A IPC against more than one person can be framed without the aid of Section 34 or 120-B IPC.

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