A, an accused is charged with culpable homicide not amounting to murder. Can he be convicted for ‘criminal breach of trust’ without specifically framing the charge for criminal breach of trust?

Question: A, an accused is charged with culpable homicide not amounting to murder. Can he be convicted for ‘criminal breach of trust’ without specifically framing the charge for criminal breach of trust?

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Answer

An accused person is entitled to know with certainty and accuracy the exact nature of the charge brought against him. Unless he has knowledge of the charges against him, he would be seriously prejudiced in his defence.

Section 222(2) of CrPC provides as follows:

“When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it”.

The words “minor offence” has not been defined by law: they have to be taken, not in any technical sense, but in their ordinary sense. The test to determine what is a minor offence is not the gravity of punishment, when a person is charged with an offence, consisting of several particulars, and if all the particulars are proved, then it will constitute the main offence, while if only some of those particulars are proved and their combination constitutes a minor offence, the accused can be convicted of the minor offence though not so charged.

The minor offence should be composed of some of the ingredients of the main offence, i.e., it should be essentially a cognate offence of the major offence and not entirely distinct and different offence, constituted by altogether different ingredients.

Accordingly, it was held in Anil Kumar v. the State of Rajasthan, 1992 Cr LJ 3637 (Raj) that a person charged with murder and causing disappearance of evidence under sections 302 and 201 IPC cannot be convicted of abetment of suicide under section 306 IPC, without framing a charge, which is not a minor offence in respect of the offence of murder and causing disappearance of evidence.

The Supreme Court held that non-framing of charge or some defect in the drafting of charge, per se, will not vitiate the trial itself. The same will have to be examined in the facts and circumstances of a given case. Thus, in a case where the charge was framed for the offence of dacoity with murder under section 396 of IPC, it was held that the accused can be convicted under section 302 of IPC without being specifically charged. It was observed that the offence of murder will have to be read into the provisions of section 396 of IPC, qua doctrine of “legislation by incorporation“.

But the same is not the case at hand. The offence of culpable homicide not amounting to murder cannot be read into provisions of convicted for ‘criminal breach of trust’ qua doctrine of “legislation by incorporation”. If the court has to charge the accused it cannot do so without specifically framing the charge for criminal breach of trust.

To quote Lord Porter from the Privy Council decision in Thakur Shah v. Emperor (AIR 1943 PC 192) the alteration or addition is

“Always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred”.

Thus, applying the aforesaid reasoning and legal provision to the present case at hand, where A, the accused is charged with culpable homicide not amounting to murder, he cannot be convicted for ‘criminal breach of trust’ without specifically framing the charge for criminal breach of trust.

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