CRIMINAL LAW- II

LAW RELATING TO FRAMING OF CHARGES

SUBMITTED BY SUPERVISED BY

AYUSH SINGH NEGI (21 LLB18) Prof MUKUL RAIZADA

NATIONAL LAW UNIVERSITY

DELHI (INDIA)

2019
 ACKNOWLEDGEMENT

I would like to give a sincere thanks to Prof. Mukul Raizada for providing me the opportunity to
write the research project and would like to further express my gratitude to him for continuous
mentoring, supervision and guidance throughout the writing of this research project.

AYUSH SINGH NEGI

21 LLB18
 Table of Contents

CHANGES MADDE IN THE SYNOPSIS.................................................................................4

CHAPTER 1................................................................................................................................5
A WALKTHROUGH THE PROVISIONS OF FRAMING OF CHARGES..............................5
CHAPTER 2................................................................................................................................7
GENERAL TRENDS IN FRAMING OF CHARGESS and EFFECT ON FAIR TRIAL
PRINCIPLES...............................................................................................................................7
CHAPTER 3..........................................................................................................................................15
ISSUES AND DISCREPANCIES IN JOINDER OF CHARGES.........................................................15
CONCLUSION.....................................................................................................................................21
BIBLIOGRAPHY.................................................................................................................................24
 SYNOPSIS

INTRODUCTION
In the criminal trial, one of the basic requirements of ensuring fair criminal trial is that the

charges are framed properly and the accused is given the precise information of the offences

charged against him. Every person accused of the crime must be clearly aware of the offence he

is charged with in the beginning of the trial itself so that the accused can have sufficient time to

prepare properly for his defense. The right to fair trial is one of the basic norms of international

human rights law which is also enshrined in the constitution of various countries including India,

U.S.A., U.K., Canada.

In India, chapter xvii of the Code of Criminal Procedure (C.r.P.C) highlights the relevant

provisions relating to the framing of charges starting with the contents of charges under section

211 extending till section 228 which talks about the framing of charges by the judge after having

sufficient grounds for framing the charges. C.r.P.C upholds constitutional safeguards like once

the charges are framed, they must be reduced to writing with precision and clarity and must be

read and explained to the accused. Further the court has the power to alter the charges but not

alter the charges to the prejudice of the accused person. Charges forms the basis of accusation

and serves the purpose of intimating the accused giving him the precise, clear and unambiguous

notice of the nature of the accusation. With such huge importance in the criminal trial

jurisprudence, this research project focuses on the analysis of the relevant provisions related to

the framing of charges, the emerging issues arising in framing of charges, the practice and trend
of the court in framing of charges along with various case laws and judgments related to the

subject topic.

LITERATURE REVIEW

R.V.Kelkar’s Criminal Procedure: The book provides an interesting study of the fundamentals

criminal procedures. The topic wise treatment of the subject along with the reference to

academic writings and the judicial decision makes the study meaningful and comprehensive.

Sarkar’s Commentary on The Code of Criminal Procedure Code 1973: The book contains

the exhaustive and detailed commentary on the code along with chain of decisions of Supreme

Court and various High Courts. Also the book attempts to highlight the conflicting views in the

code and has given suggestive guidelines.

Batuklal’s Commentary on The Code of Criminal Procedure Code 1973: This book is

detailed and has critical analysis of provisions of Criminal Procedure Code. The commentary is

lucid and exhaustive. The treatment of case law is lucid and exhaustive. The treatment of the

case is analytical and comparative.

RESEARCH QUESTIONS

 What is the common practice and trend in judiciary regarding the framing of charges?

 What are the emerging issues which the courts are facing in relation to framing of
charges?
RESEARCH OBJECTIVE:

 To understand and analyze the provisions of the framing of the charges given in C.r.P.C

 To understand the practice of the courts regarding the framing of charges

 To understand the issues faced by the courts in framing of charges

 To understand the discrepancies in framing of the charges by the courts

RESEARCH METHODOLOGY

The research paper is doctrinal in nature and the researcher has used the descriptive method

while writing the research paper. In order to have a comprehensive understanding of the law

relating to the framing of charges, the researcher has followed various scholarly views and

thought related to the subject topic, various case laws and judgments. The researcher has also

included ideas taken from the secondary sources.

 CHANGES MADDE IN THE SYNOPSIS

RESEARCH QUSETIONS (EARLIER)

 What is the common practice and trend in judiciary regarding the framing of charges?
 What are the emerging issues which the courts are facing in relation to framing of
charges

RESEARCH QUESTIONS (NOW)

 What is the common practice and trend in judiciary regarding the framing of charges and
its effects on principles of fair trial
 What are the emerging issues with respect to joinder of charges and its effects on
principles of fair trial
 CHAPTER 1

A WALKTHROUGH THE PROVISIONS OF FRAMING OF CHARGES

The framing of charge is consider as one of the basic requirements of ensuring fair trial to the
accused, where the accused is well informed of the precise information of accusations against
him.1 Charge is basically an accusation made against the person in respect to the offence alleged
to be committed by him.2

The Framing of Charge is provided in chapter 17 of C.r.P.C. which lays down various provisions
related to charge. Section 211 of the code defines the content of charge which states that the
every charge must include the name and section of offence On similar lines section 212 states
that the charge must include the particulars of time and offence related to the offence committed
and if possible the name of the person or thing must also be contained in the charge against
whom the offence is alleged to be committed. “Further section 214 provides for the word used in
charge for describing the offence shall be deemed to have been used in the same sense as the
attached to the word by the law under which the offence is punishable.” 3 Section 215 states that
the if there is any errors or omissions while framing of charge or there is any defective charge
then such error, omission or defect will in itself not vitiate the trial unless it has resulted in the
failure of justice or caused great prejudice to the accused.4 Section 216 empowers the court to
alter the charges at any time before the judgment is pronounced provided that such alteration is
not causing ay prejudices to the accused

Section 218 states that for every distinct offence, there shall be a different charge and the same
must be tried separately. However the strict adherence to it may lead to the multiplicity of trials
and hence exceptions are provided for the same under section 219, 220, 222.

Section 219 talks about the joint of trial of different offence committed are of the same nature
and that such offences are committed within a span of 12 months and that the number of offence

1
VC Shukla v. State through CBI, 1980 AIR 962
2
Mohan Singh v State of Bihar, (2011) 9 SCC 272
3
R.P. Kataria and S.K.A. Naqvi, ‘Batuklal’s Commentary on The Code of Criminal Procedure Code, 1973’, (4 th edition
Orient Publication) 1280-85
4
Ratanlal and Dhirajlal, ‘The Code of Criminal Procedure’, (17 th edition, Lexis Nexis Butterworths) 447
shall not exceed 3.Expression ‘same kind’ means offences punishable with the same amount of
punishment under the same section. 5

Section 220 provides for the joint trial if different offences have been committed by the same
person within the same transaction. Here expression ‘same transaction’ can be attributed as
“where there is proximity of time or place or unity of purpose or design or continuity of action in
respect of series of acts.”6

On the parallel lines, section 221 of C.r.P.C provides for framing as many charges against the
accused if the court is doubtful regarding the offences committed. Similarly section 222 provides
for conviction of the person for the minor offence even though no such charge was framed if the
offence charges is consisted of several particulars but only the combination of few particulars
could be proved and that combination is constituting a minor offence.7

Section 224 states that the when a charge containing more than one head is framed against the
person and then conviction has been made in respect of one or more charge then either the
complainant or prosecution after the consent of the code may withdraw the remaining charges. 8

Section 228 talks about framing of charge by the Session Court, where if the judge is of the
opinion that the offence has been committed and the case is not triable by court of session then a
judge may frame a charge and transfer the case to the Chief Judicial Magistrate or Magistrate of
the first class. Whereas if the case is exclusively tirable by court then a judge may frame the
charge and read it and explain it to the accused. 9

For warrant cases, Section 240 provides for framing of charge upon the consideration of the
police report and examination, the magistrate is of the opinion that the offence has been
committed then the magistrate shall frame the charge accordingly. 10 Similarly under summon
case, as per section 251, the magistrate states the particulars of the offence of which the accused
is alleged to be committed but it is not necessary to frame a formal charge.

5
K.N. Chandreasekharan Pillai, ‘R.V. Kelkar’s Criminal Procedure’ (6 th edition, Eastern Book Company) 401
6
Sudipto Saarkar and VR Manohar, ‘Sarkar Code of Criminal Procedure’ (9 th edition, Lexis Nexis Butterworth)
7
Code of Criminal Procedure Code 1973, sec 222
8
Ibid. sec 224
9
Ibid. sec 228
10
Ibid. sec 240
 CHAPTER 2

GENERAL TRENDS IN FRAMING OF CHARGESS and EFFECT ON

FAIR TRIAL PRINCIPLES

 The magistrate is not required to satisfy about the credibility and authenticity of the
materials of the police report and prosecution

During the investigation, the police agency collects evidences, materials, and analyses and
examines the witness which is required to be sent to the magistrate who is competent to take
cognizance of the offence. Section 204 states that magistrate taking cognizance of offence has to
issue a process when there is sufficient ground for doing so. Further section 207 requires that the
magistrate to furnish to the accused the copy of police report, FIR under section 154, the
statement recorded of the witness under section 161(3), confession and statements if recorded
any under section 164. Section 208 says that the if the magistrate issuing process is of the
opinion that the offence alleged is triable by the court of session then the magistrate has to
furnish to the accused documents including the copy of statement recorded under section 200 or
202 or all the persons examined. Therefore during the stage of framing of charges, all these
evidences, records, statements, reports, is trial court require to conduct an inquiry and satisfy
itself about the credibility of the materials and records at this stage.

As it has been a general practice prevalent among the courts that the trial courts at the stage of
framing of charges are not required to conduct meticulous, roving and fishing inquiry to check
on the credibility of the records and material. Supreme Court in its recent judgment under Sonu
Gupta v Deepak Gupta11 ruled that during the stage of framing of charge, the court is not
required to check the credibility and sufficiency of the materials.

In Kanti Bhadra v State of West Bengal 12, the Supreme court further ruled that the where the trial
court decides to frame a charge, such court is not required to record the reasons for framing of
charges or to discuss the materials and evidence in detail. There is no legal requirement on the

11
(2015) 3 SCC 424
12
(2000) 1 SCC 722
part of the magistrate that he shall record the reasons as to why he is faming of charges.
Conversely, the framing of charges is in itself is a indicative that the trial judge after
consideration of police report and other materials that the there are grounds for presuming that
the accused has committed an offence Further the court has gone to such an extent by holding
that the in absence of legal requirement of writing the reasons for framing of charges, then why
to put the extra burden on the court which is already burdened. Hence now is the time to expedite
the court proceedings and remove the roadblocks causing delay in the proceeding.

Similarly in pointing out the misconceived position about checking the credibility of the
materials at the time of framing of charges, Supreme Court expressed their unhappiness and
made and remarks that during this stage, the court should not initiate evaluation of the evidence
and checking the truthfulness of the materials and deciding their worth. During the framing of
charge, the exercise must be limited to whether the materials relied by the prosecution are
sufficient in order to proceed further.13

In another relevant pronouncement, Supreme Court ruled that the stage of framing of charge, the
court is not required to go meticulously in order to determine the credibility, veracity and worth
of the materials. These standards and test are required to be applied before deciding the guilt of
accused. During framing of charges, even a strong suspicion exist on the mind of the trial judge
that leads him to form the opinion of that the offence has been committed is justified while
framing a charge. 14

 Effect on the Principles of Fair Trial

This practice of the courts that at the time of framing of charges, there is no requirement for the
courts to look into the credibility and sufficiency of the materials and further that the court is not
required to evaluate the evidences and checking the truthfulness of the materials provided by the
prosecution does not mean that the magistrate is required to believe whatever being provided to
him in the form of charge-sheet, materials, documents and other evidence. Magistrate is still
required to apply his judicial mind and it is only after the successful application of judicial mind
on the materials and documents the magistrate may frame charges accordingly. This is to make
sure that the charges framed against the accused are not made randomly and to protect the
13
State v S. Bangarappa, (2001) Crl 152
14
Supdt. & Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja, A.I.R. 1980 SC 52
accused from unnecessary judicial proceedings, the magistrate must apply his judicial mind
while framing charges.

Further in case of, the Madras High Court held that “although at the stage of framing of charge, it
is not required to meet the same standard as adopted at the stage of scrutinizing evidence but at
the same time all due diligence and care should be taken even while during the stage of framing
of charge as to whether the charges framed are substantiated with prima facie and sufficient
evidences and materials.”15

Further the ratio of the Supreme Court in Kanti Bhadra case that the court is not required to
record the reasons for framing of charges and mandating the same would be putting the extra
burden on the court. The judgment of this court is against the fair trial principles which state that
the accused must know the grounds and reasons for framing of charges. In order to ensure the
fair trial and justice the charges framed against the accused must be framed after the proper
application of judicial mind and after the proper recording of reasons which must be explain to
the accused so that he can defend himself. The mere reason that recording of reasons will cause
delay in the proceeding, we must not forget that principles of fair trial and justice are the explicit
right of the accused provided under Art 21 of the Constitution and it shall prevail in any
condition.

 Charges are framed on the basis of the materials and evidence provided by the
investigating authority and relied upon by the prosecution

Since charges are framed on the basis of the some documents provided to the magistrate. The
issue here is what kind of documents must be used to build charges against the accused. Most of
the times the trial court frame charges against the accused on the basis of materials and
documents provided by the magistrate and also the trial court magistrate also relies on the
documents supplied by the magistrate in light of the materials and records filed by the
prosecution.

15
Asstt. Director, Enforcement Directorate v. Khader Sulaiman, 2003 Mad LJ (Cri) 294 : 2003 CrLJ (Mad)
Supreme Court in State Anti Corruption Bureau, Hydereabad v Mukherjee and S P
Suryaprakasam16 held that the during framing of charges the trial court is required to look into
only police report and other required documents which are to be sent along with it as mentioned
in sec 173 of C.r.P.C. and at no point, the deviation should be allowed. The only right available
to this stage is the right of being heard and nothing beyond this. Although the accused at this
stage may be examined by the trial court but that it is prerogative to the court only. Further the
court also cited the case of Minakshi Bala v Sudhir Kumar,17 where also the court held that for
the purpose of framing of charges the trial court is required to rely only on the materials provided
by the prosecution and if it thinks fit may also examine or heard the accused along with the
prosecution. In the Anti Corruption Bureau, Hydereabad v Mukherjee and S P Suryaprakasam
case, the High Court rejected the prosecution case by relying on the materials provided by the
accused but later the Supreme Court made it clear that the court is required to rely only on the
materials supplied by the prosecution under sec 173.

 Effect on the Principles of Fair Trial

It has been observed that the court while framing of charges have to rely upon the materials
supplied by the police investigation under police report and documents sent along with it.
Further as it has been held in number of cases by the Supreme Court that the court cannot look
beyond the materials provided by the prosecution. This practice reveals that it often leads to the
situation where prosecution relies only on incriminating materials against the accused and
suppressing the evidence which are exculpatory in nature and capable of discharging the accused
in the initial stage of trial itself. This practice neglects the principle of fair trial where the
documents and materials which favor the accused are suppressed and the accused has given no
opportunity of being heard.

This was the consistent position of the courts over the past few decades. However, with the
recent judgment of Supreme Court in Nitya Dharmananda v Gopal Sheelum Reddy,18 the Apex
court held that “ ordinarily the court while dealing with the issue of charge, the court has to
proceed with materials and documents produced with the charge sheet but in some cases if the
court is satisfied that there has been materials of sterling quality which are being withheld by the
16
(1999 )SCC Crl. 373
17
(1994) 4 SCC 142
18
 (2018) 2 SCC 93
prosecution or not provided in the charge sheet, the court while exercising its power under
section 91 can summon or rely upon those documents even if such documents are not a part of
charge-sheet. “

This view of Supreme Court in Nitya Dharmananda case is considered as a relevant and in
consonance with the principle of fair trial where the accused has also given the opportunity of
being heard by supplying materials and evidence which are of sterling quality and are
exculpatory in nature at the stage of framing of charges.

 Court has the discretion to order for the separate trial even though the case is falling
under one of the provisions of joinder of charges.

The provisions from section 219 -223 overrides the provision of section 218(1) and talks about
the joinder of charges. Section 219 talks about the joint trial if the person is accused of three
offence of the same kind committed within the period of twelve months from the first offence to
the last offence.19 Section 220 states the offences committed in the course of same transaction
may be tried together.20 Section 221 provides for the joinder of charges where there is a doubt in
relation to the facts and circumstances of the offence committed then in such cases accused is
charged with one offence but during the evidence stage, if new offence emerge out then he may
be convicted of the same even though such offence was not earlier charged. Section 223 states
about the class of persons who can be charged and tried together. In Ranchoodlal v state of
Madhya Pradesh,21 it was ruled by the Supreme Court that it is the discretion of the court
whether to resort to joint charges and trial. It is not illegal to try a separate trial even if the
offences committed arise in the course of same transaction and that the accused person has no
right to claim joinder of charges or resort to joinder of charges. It is completely on the court
whether or not to apply provisions of joint charges as such provisions are only enabling in nature
and not mandatory.

 Effect on the Principles of Fair Trial

19
Code of Criminal Procedure Code, 1973, sec 219
20
Ibid. Sec 220
21
AIR 1965 SC 1248
Section 218 states for each distinct offence, there shall be a separate charge and every such
charge shall be tried separately. Such provision helps the accused from facing embarrassment if
different offence are charged together and later tried together and further prevents the judge from
keeping any prejudices against the accused. When the accused is tried for the different offence
charged together in one trial with different records, materials and evidence then it may create
difficulties for the magistrate who is trying the accused for one charge not to be influenced by
22
other materials and evidence related to other charges. Further if the departure or any deviation
from the requirements of section 218 has taken place, it may lead to the failure of justice and
then the court is required to look into the situation to see whether it has lead to the failure of
justice or has prejudiced the accused in his defense.

Although the court has the discretion i.e. whether to resort to provisions of joinder of charges or
the provisions of separate charge but this discretion should be applied accordingly keeping in the
mind the principles of fair trial, possibility of prejudice against the accused and failure of justice.

 The court has the enormous power to alter or add any charge at any time before the
pronouncement of judgment.

Section 216 gives the enormous power to the trial courts that to alter or any charge subject to the
conditions mentioned further in the section. The courts have considerable power to add or alter
any charge at any time before pronouncement judgment. In various decisions of Supreme Court
on section 216 regarding alteration and adding of charge like in Harihar Chakarvarty23 case or
Hasanbhai Qureshi24 case, it has been there stated that the trial court can made alteration in the
charge on the basis of materials before it in the complaint or any sort of evidence justifying such
alteration. Similarly in the recent judgment of Supreme Court in Anant Prakash,25 it was being
held that “the court can alter the charge on the basis of materials provided in the complaint or
FIR or the accompanying documents or materials brought on record during the course of trial

22
Sri G. Gnana Suvarna Raju, III Addl. District Judge, Visakhapatnam, ‘Examination of the Accused and Framing of
Charges’ 5
23
AIR 1954 SC 266
24
 (2004) 5 SCC 347
25
AIR 2016 SC 1197
and it is not to be understood in the sense that only unless the evidence has been let in, the
charges already framed cannot be altered as such is not the purpose of 216 of the Code.

 Effect on the Principles of Fair Trial

While altering the charge, the court is required to keep in mind the test of prejudice where it is
the obligation of the court to see that no prejudice has been caused to the accused while altering
or adding any charge and his right to fair trial has not been violated. Supreme Court in Anant
Prakash case that while altering the charges that there needs to be some basis and materials in
the form of compliant or FIR or documents or materials brought during the trial the court without
causing any prejudice and biasness against the accused upheld the principal of fair trial where the
alteration is made on the basis of some prima facie materials and not on the whims and fancies of
magistrate.

 Accused’s right to know about the accusations and charges framed against him

It is the duty and obligation on the part of the magistrate that while framing the charges under
section 228, 240 and 246, he must read and explain the charges to the accused. Cr.P.C. explicitly
provides for informing the accused when he is apperas before the trial court, the charges framed
must be read and explained to the accused as per section 228, 240 and 246.

Effect on Principles of Fair Trial

The principal of fair trial considers that the accused must be given the fair opportunity to defend
him but this opportunity would be of no meaning if the accused is not informed of his
accusations against him. Accused has a right to know the precise and specific charges framed.

 Framing of the Charges determines the commencement of trials

Framing of charges also plays a significant role in determining the time of commencement of
trial or in other words when the trials can be said to began. As there are different categories of
cases like cases before session court, warrant cases instituted on police report or otherwise than
police report and summon cases, hence it is relevant to know when the trial can be said to began
in these different categories of cases.

Supreme Court in Common Cause through its director v union of India 26 while dealing with the
issues as to when the trial can be said to commenced held that the generally in cases of trials
before session courts, the trial shall be said to be statrted when charges are framed under Section
228 where the judge is of the opinion that the there is ground for presuming that the offence
alleged has been committed by the accused. However in warrant cases, if the case is instituted on
the basis of police report then the trials shall be treated to be started when the charges are framed
by the magistrate after consideration and examination whereas in warrant cases where the case is
instituted otherwise than on police report like on complaint than such trials shall be considered to
be started when charges are made by the magistrate against the accused under section 240 of
C.r.P.C. While in trials summon cases, as per section 251 of C.r.P.C. the trials would be
considered to be initiated when the accused appears before the magistrate and the magistrate
states the particulars of offence of which he is accused.

26
AIR 1997 SC 1539
 CHAPTER 3

ISSUES AND DISCREPANCIES IN JOINDER OF CHARGES

The importance of framing of charges is very fundamental with respect to the principles of
natural justice and constitutional rights of the accused. Furnishing of charges and communicating
the same to the accused is an important element of fair criminal trial. However achieving
precision and perfection is framing of charges is sometime compromised due to the ambiguities
and uncertainties due to various plausible reasons like discrepancies in the investigation,
different perception of witness and investigating agency. Hence C.r.P.C. provides to deal with
such contingencies where the court due to pragmatic necessities may proceed with the trial of the
accused for the offences for which he is not charged.

Quit often it has been generally observed that the courts have a misunderstanding in
distinguishing between the alterative charge and inclusive charge which either results to the
failure of justice or the purpose of inclusive charge and alternative charge is being diluted. 27
Therefore this chapter offers an insight into the demystifying alternative and inclusive charges
along with the landmark judgments.

Alternative Charges

Section 221 of C.r.P.C provides for framing as may charges against the accused if the court is
doubtful regarding the offences committed. If the charges are framed against the accused in
relation to offence ‘A’ is framed but it is found that offence B has been proved against the
accused then the court may convict him for the offence of B though no specific charge was
framed regarding that offence.28

In Rafi v State of Uttar Pradesh,29 court observed that with progress in the criminal law, the law
has invented a new term i.e. ‘cognate charges’ other than the alternative charges. The differences
in the offences belonging to the same families in contradiction to the offences coming under the
different categories have encouraged the court to use the concept of cognate offence to punish

27
Ibid.
28
Neeraj Tiwari and Pattabhi Rama Rao Kovuru, ‘Judicial Understanding of Alternative and Inclusive Charge’, 29
29
(2011) 6 SCC 1
the offender for a less grave offence if the major, more serious offence cannot be proved beyond
the reasonable doubt.

Thus two conditions need to be satisfied i.e. a. The offence charged shall be the major offence
and b. that the minor offence must be the cognate offence to the major or serious offence the
person is charged with.

 Misreading and Mixing of alternative and inclusive charges and the faulty concept
of cognate offence

The above findings came after the combined reading of both the sections 221 and 222 and fused
the additional requirements of cognate offence in alterative charges which are not being
envisaged in the Code and further the concept of cognate offence is more inclined towards
section 222. This can be attributed to the misreading of both the sections. Looking at the
illustrations attached to section 221 illustrates that the person charged with the offence of theft
can be convicted for the offence of criminal breach of trust or even cheating which in no way can
be considered as cognate offences when we analyzes the ingredients of these offences. 30 Section
221 does not envisage a situation for the conviction of minor offence when the person is charged
with the major or serious offence which is in more conformity with section 222 of the code.

Effect of such discrepancy on Fair Trial Principle

Conviction of the person without charge is a herculean task keeping in mind all the fair trial
principles, principle of natural justice and the constitutional rights of the accused and if on
deviation the conviction of the accused without charge proves to be false conviction then it will
definitely lead to the failure of justice.

In cases of alternative charges, even the Apex Court failed to interpret section 221 of the Code
correctly and wrongly bring the cognate offence which accordingly means punishing the less
serious offence if the major one cannot be proved. On this interpretation, the Supreme Court
punished the accused with section 302 although he was charged with 396 read with 201 (dacoity
with murder) and held that the conviction under 302 cannot be set aside merely on the basis that
30
Supra n 1, 18
no specific/alternative charge for an offence is framed and further the dimensions of section 302
are being incorporated under section 396. Thus the court can be said to be gone into the more
technicalities and ingredients of the offence and misinterpreted section 221 and 222 of the Code
and within all these technicalities it failed to give attention to fair trial requirements which
envisages that the accused must be given enough opportunity to defend the accusations and
justified the conviction of the accused on a wrong reasoning.

According the earlier law commission report, the authors were of the opinion that for the purpose
of section 221, there are requirements for proving a neither cognate offence nor minor offence.
The court needs to emphasize on the nexus and proximity of the facts of the alleged offence, and
should not meticulously observe the ingredients of the offences. 31

Inclusive Charges

Section 222 of the Code provides for convicting the accused without a charge when the
prosecution fails to prove all the alleged facts but only some facts. If offence A committed
includes two separate offences X and Y then the court on proving of the offence of X can charge
the accused for the offence X though no such charge is framed for X offence. Here it is
considered that offence A is inclusive of offence of X and Y and therefore these charges are also
called inclusive charge.32 In case of inclusive charge and on analysis of this provision, it can be
said that the minor offence is not required to be a cognate offence though usually the minor
offences happens to be coming within the ambit of the major offence.

 Lack of uniformity and guidelines for convicting the accused without charge

In Sangaraboina Sreenu v State of Andhra Pradesh,33 Supreme Court while dealing with the
accused charged under Section 302 of IPC for murdering his wife but convicted under section
306 of the IPC by the High Court reversed the ruling of the High Court on the ground that the
section 306 which is related to the suicide and abetment to it cannot be considered as minor
offence which can come under the gamut of section 302 which talks about homicidal death hence

31
41st Law Commission Report, 1969
32
Ibid. 16
33
(1997) 5 SCC 348
the accused was acquitted. On critical examination of this judgment, it can be said that the court
only considered the section 222 of the C.r.P.C but failed to look beyond it. Had the court taken of
note of Section 221 of the code, there might have been the different result.

In Yatagiri Sreeivasulu v State of Andhra Pradesh,34 the court went on explaining the minor
offence for the purpose of section 222 of the Code. According to the court, minor offence has not
been employed any meaning in the C.r.P.C and has to be understood by taking into account
magnitude by giving a simple example of attempt to murder under and grievous hence motive as
well as the gravity of the injuries can be differentiated in these two offences. Similarly along
with the magnitude the punishment of the offence also describes the minor or major offence. It
was further stated that in order to attract section 222, the minor as well as the major offence must
belong to the same species of the offence. Alternatively, the ingredients of both the offence must
be broadly similar.

In Multtani v State of Karnatka,35 the court affirmed that the court while convicting the accused
for which no offence has been charged is framed must satisfy itself that the no failure of justice
has occasioned. In this case, the court was concerned with the issue of whether the person
charged under section 302 can be convicted for the offence under 304B.

In case of Dalbir Singh v State of Punjab,36 the court faced the issue where the accused charged
with the offence of 302, 304B and 498A of IPC, can be convicted of the offence punishable
under 306 of IPC, the High Court did not convicted the accused under section 306 even though
enough evidence implied the commission of offence Supreme Court after discussing the
provisions of section 221 and 222 and also discussing the failure of justice as given under section
464 of the Code, convicted the accused under section 306 by safely concluded that such a
conviction will not result in the failure of justice.

Again in another case of Dinesh Seth v NCT of Delhi,37 where the accused was charged with the
offence under 304B read with 34, the issue was whether he can also be convicted cruelty as
mentioned under 498A of IPC. The court relying on Dalbir Singh and disregarding the judgment

34
2015 ( 1 ) ALD(Crl.) 353 ( AP )
35
AIR 2001 SC 921
36
(2004) 5 SCC 334
37
(2008) 14 SCC 94
of Multtani which emphasized on the principle of failure of justice, convicted the accused under
section 498A as well.

Effects on Principles of Fair Trial

These judgments discussed above indicate that the law relating to the joinder of charges is
lacking uniformity. In various opportunities, the Supreme encountered, it failed to provide
uniform guidelines in relation to the conviction of the person without charge. Some judgments
focused on failure of justice principle while some other focused on whether the minor offence
should come under the broad categories of major offence charged.

The position of judiciary on alterative and inclusive charge is inconsistent and it seems that even
the Supreme Court lacks clarity in this regard. The court while interpreting section 221 which
talks about alternative charges misinterpreted the section and unnecessarily mixed section 221
and 222 and introduced the concept of cognate offence to punish the offender for a less grave
offence if the major, more serious offence cannot be proved beyond the reasonable doubt. The
court seems to be caught in the technicalities and ingredients of the offence and in between failed
to give attention to fair trial requirements which envisages that the accused must be given
enough opportunity to defend the accusations.

In case of inclusive charge as well the courts can be said to struggling while interpreting the
section 222 which talks about inclusive charges. Some judgments focused on failure of justice
principle while some other focused on whether the minor offence should come under the broad
categories of major offence charged but failed to emphasize on the important concept i.e.
whether the accused is given enough opportunity to defend himself and whether the accused
knew of what he is being tried for. Therefore it is the high time for the judiciary to lay clear
guidelines regarding the conviction of the accused without charge and thus prevented the
unwarranted convictions and acquittals.

The approach of the court in such ambiguous environment must be that while convicting the
person without a charge, the principle focus must be on whether the accused is given enough
opportunity to defend himself and further it’s horizon can be expand beyond the notice of
requirement of principles of natural justice. As the court held in Willie Slaney v State of M.P 38.,
38
AIR 1956 SC 116
that the accused must be knew of what he is being tried, the main facts and ingredients required
to be established against must be explained to him clearly and he must be given every
opportunity to defend his case.

It is high time for the judiciary to lay clear guidelines regarding the conviction of the accused
without charge and demystifying the confusions revolving around the provisions related to the
alternative and inclusive charge and thus prevented the unwarranted convictions and acquittals
and in doing so the court shall maintain a right balance between rights related to the fair trial of
the accused and the protecting the interest of society by punishing the right guilty person.39

CONCLUSION

39
Supra n.23, 40
In criminal trial, framing of charge is considered as one of the most important steps. Charge is
treated as the foundation of accusation and all due care and diligence shall be taken while at the
stage of framing of charge. Supreme Court in Mohan Singh v State of Bihar40 and V.C. Shukla v
State through C.B.I41 explained the importance of charge While at this stage, it is not necessary
to go into the deep and meticulous examination and investigation by the court.

The principal of fair trial states that the accused shall be given the fair opportunity to defend him
but this opportunity would be of no meaning if the accused is not informed of his accusations
against him. Therefore accused has a right to know the precise and specific charges framed
against him. The Code considering this view explicitly provides for informing the accused when
he appears before the trial court, the charges framed must be read and explained to him as per
section 228, 240 and 246.

The court at this stage is required to see whether the prima facie case has been made out or not.
Although during this stage, the court is not required to determine the credibility and truthfulness
of the materials and documents available but it does not mean that the court is required to believe
whatever materials being provided to the magistrate by prosecution or investigating authority.
Magistrate or the court is still expected that he must apply his judicial mind on the materials and
documents and to check whether these materials and documents are prima facie indicating the
offence committed and thus charges must be framed accordingly after the due diligence to
uphold the principles of fair trial one of which is that the innocence of the accused must be
proved from the beginning of the criminal proceedings in the court and that the magistrate must
not be biased towards the accused.

While another judicial practice of the court while framing of the charge is that the court is to rely
upon the documents and materials collected by the police investigation team and on the basis of
the police report and materials relied by the prosecution the court is required to frame the charges
but this practice leads to the situation where prosecution supplies and rely on only the
incriminating materials and withheld the materials which are exculpatory in nature and thus this
leads to the violation of principles of fair trial where the accused is not allowed to present the
documents which are indicating his innocence. But after the Nitya Dharmananda case, the

40
(2011) 9 SCC 272
41
1980 AIR 962
accused has also given the opportunity of being heard by supplying materials and evidence
which are of sterling quality and are exculpatory in nature at the stage of framing of charges.

Further the provisions from section 219 -223 overrides the provision of section 218(1) and talks
about the joinder of charges. Such provisions aim at preventing biasness against accused. It is
completely on the court whether or not to apply provisions of joint charges as such provisions are
only enabling in nature and not mandatory. Although the court has the discretion i.e. whether to
resort to provisions of joinder of charges or the provisions of separate charge but this discretion
should be applied accordingly keeping in the mind the principles of fair trial, possibility of
prejudice against the accused and failure of justice.

Similarly, Section 216 gives the enormous power to the trial courts that to alter or any charge
subject to the conditions mentioned further in the section. However, while altering the charge,
the court is required to keep in mind the test of prejudice where it is the obligation of the court to
see that no prejudice has been caused to the accused while altering or adding any charge and his
right to fair trial has not been violated.

The position of judiciary on alterative and inclusive charge is inconsistent and it seems that even
the Supreme Court lacks clarity in this regard. The court while interpreting section 221 which
talks about alternative charges misinterpreted the section and unnecessarily mixed section 221
and 222 and introduced the concept of cognate offence to punish the offender for a less grave
offence if the major, more serious offence cannot be proved beyond the reasonable doubt. The
court seems to be caught in the technicalities and ingredients of the offence and in between failed
to attention to fair trial requirements which envisages that the accused must be given enough
opportunity to defend the accusations.

In case of inclusive charge as well the courts can be said to struggling while interpreting the
section 222 which talks about inclusive charges. Some judgments focused on failure of justice
principle while some other focused on whether the minor offence should come under the broad
categories of major offence charged but failed to emphasize on the important concept i.e.
whether the accused is given enough opportunity to defend himself and whether the accused
knew of what he is being tried for. Therefore it is the high time for the judiciary to lay clear
guidelines regarding the conviction of the accused without charge and thus prevented the
unwarranted convictions and acquittals.

BIBLIOGRAPHY

Books
  N. Chandreasekharan Pillai, ‘R.V. Kelkar’s Criminal Procedure’
 P. Kataria and S.K.A. Naqvi, ‘Batuklal’s Commentary on The Code of Criminal
Procedure Code, 1973’
 Ratanlal and Dhirajlal, ‘The Code of Criminal Procedure’
 Sudipto Saarkar and VR Manohar, ‘Sarkar Code of Criminal Procedure’

CASES

 Anant Prakash Sinha v State of Haryana AIR 2016 SC 1197

 Asstt. Director, Enforcement Directorate v. Khader Sulaiman, 2003 Mad LJ (Cri) 294 :
2003 CrLJ (Mad)

 Common Cause through its director v union of India, AIR 1997 SC 1539
 Dalbir Singh v State of Punjab (2004) 5 SCC 334

 Dinesh Seth v NCT of Delhi (2008) 14 SCC 94

 Harihar Chakravarty vs The State Of West Bengal AIR 1954 SC 266
 Hasanbhai Valibhai Qureshi v state of Gujrat (2004) 5 SCC 347
 Kanti Bhadra v State of West Bengal (2000) 1 SCC 722
 Minakshi Bala v Sudhir Kumar (1994) 4 SCC 142
 Mohan Singh v State of Bihar, (2011) 9 SCC 272

 Multtani v State of Karnatka AIR 2001 SC 921

 Nitya Dharmananda v Gopal Sheelum Reddy (2018) 2 SCC 93

 Rafi v State of Uttar Pradesh (2011) 6 SCC 1

 Ranchoodal v state of Madhya Pradesh AIR 1965 SC 1248
 Sangaraboina Sreenu v State of Andhra Pradesh (1997) 5 SCC 348
 Sonu Gupta v Deepak Gupta (2015) 3 SCC 424
 State Anti Corruption Bureau, Hydereabad v Mukherjee and S P Suryaprakasam (1999 )
SCC Crl. 373
 State v S. Bangarappa, (2001) Crl 152
 Supdt. & Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja, A.I.R.
1980 SC 52
 VC Shukla v. State through CBI, 1980 AIR 962

 Willie Slaney v State of M.P. AIR 1956 SC 116

 Yatagiri Sreeivasulu v State of Andhra Pradesh 2015 ( 1 ) ALD(Crl.) 353 ( AP )
Statutes

 Code of Criminal Procedure Code 1973

Reports

 41st Law Commission Report, 1969

Articles

 Neeraj Tiwari and Pattabhi Rama Rao Kovuru, ‘Judicial Understanding of Alternative
and Inclusive Charge’
 Sri G. Gnana Suvarna Raju, III Addl. District Judge, Visakhapatnam, ‘Examination of the
Accused and Framing of Charge