What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding cognizance and Committals.

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ABSTRACT

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding Cognizance and Committals.

This paper covers the cognizance powers of four different courts and as we know each court has its own jurisdiction and the circle for operating is different for all courts. We will cover different aspects of cognizance under Sec 190 CrPC, for magistrate and also sections regarding different courts. This paper is concerned about the territorial and pecuniary jurisdiction of courts, here mainly I will try to reflect the scenario in State of Bihar, the process for executing their powers. We will also cover about committing of cases by lower court and also double committals by higher courts. Several cases regarding this will be covered and how these cases reflect the true nature of judiciary in deciding cases and giving justice to common people. This papers also covers the charges, its contents and also joinder of charges will be discussed, scenarios were joinder is possible and the circumstances and cases regarding that. This paper is also concerned about the faulty charges, and the process for rebuttals for that wrong charges, what rights are possessed by the accused if he is charges with wrong charges if proved, steps will be covered and the currents cases and judgments will be discussed for inoperative charged against the accused.

Keywords – Joinder of Charges, Rebuttals, Committals, Cognizance, Territorial Jurisdiction, Pecuniary Jurisdiction, Inoperative Charges.

What if charged framed are wrong? Process for rebuttals and powers possessed by different courts regarding Cognizance and Committals.

1. Introduction to charges and its Joinder.

1.1– If the definition of charge is concerned, it is defined under Sec 2(b) of the code of criminal procedure, it is generally all the allegations which the accused is responsible and in the further trail he/she will be tried with the given provisions i.e. Charge which is framed by the court. The charges are generally framed to clear he is accused and these are the further provision he will be charged with and a notice is sent to the accusation and to called upon for the court trials. The above statement was stated by the court in the case of V.C Shukla v/s State[1].

1.2 – Contents of the charges – Contents of the charges are defined in Sec 211 of the code of criminal procedure and the following content should be present while framing charges –

1.2.1 – Offence needs to be given for which the accused is being charged and to be tried further.

1.2.2 – If there is some specific name for specific offence in the law, then it is necessary to mention with that specific name.

1.2.3 – If in the case the specific name is not given then, the definition of the offence should be stated.

1.2.4 – All the necessary section for which the accused is charged or is said to have committed needs to be mentioned while framing the charges.

1.2.5 – The court language must be preferred while writing the charges.

2. Faulty while framing the charges and its repercussion –

Repercussion when framing the charges are given in Sec 215 and sec 464 respectively. The main objective of these sections are to prevent that there should be no injustice on the party’s end if some technical error or some breach of rule is exercised. These two when read together, mainly points out that whatever the errors or irregularity is present while framing the charges, it will not be considered as blunder mistake or fatal mistake if no prejudice caused to the accused.[2]

2.1 – These sections also say that if there is some error or irregularities in stating the particulars of the offence and in this scenario this irregularity or error will not the trial procedure or the outcome so generated.

2.2 – Then in this case to decide, when the irregularity or error has caused some prejudice to the accused, the could should have regard to the manner in which the accused presented or conducted his defence and also about the nature of the objection during the trial procedure.

2.3 – The object of the charge is to provide a notice about the matter that he is liable and charged with, and if this important information is conveyed  to the accused and in this scenario he can’t claim or try to escape from his liability just by stating that the charges were defective in nature[3] and the also the same principle applies to the conviction itself, if the conviction recording is done through provisions be reversed and if this is being informed to the accused then and there is no such prejudice caused whatsoever then in this case they can’t escape their liability dur to defective of charges. The mere omission and minor technical difficulties are not the sole cause which can make a person either convicted or acquitted for obvious reasons stated above.

3. Amendment or Alteration of charges

Sec 216(1) of Code of Criminal Procedure, says about that court has power to bring amendment in the charges at any point of time before judgement is given. This section provides a comprehensive power to correct the charges when framed wrong or also when there is no framing of charges but the charges needs to be framed, whether discovered at the initial stage or after trial procedure or during trial procedure but prior to the judgement can amend the charges.

This code provides a broad power to amend the charges either by the trial court or appellate court but the condition that the accused should be charged with new charges for the new offence and it should also not cause any prejudice by not stating him the fault  charges or not giving him opportunity to bring a defence against the defective charges or to attend the meeting regarding the defective charges.[4] But as we know this provides a wide power to the court, but court has to exercise this power efficiently and in the judicial manner that no prejudice is caused to the party either accused or defence whatsoever.[5]

4. Joinder of Charges

The main section regarding framing of charges comes under Sec 218 which states that for every offence so committed that the person so liable has to charge with a separate charge and should be tried separately and distinctively. But Sec 219 to Sec 223, talks about the joinder of charges which in case acts as an exception to the provisions under Sec 218. Following are the conditions which states that where joinder of charges is applicable –

4.1 – Sec 219 (1) and (2) jointly, talks about that if the offence so committed is of same kind and by the same person and then the charges will be joined and should be tried jointly and if the offense have been committed under a span of 12 months and clause (2) states that when the offense so committed are same and are comes under the same ambit of punishment and they can be charged jointly.

4.2 – If a person committed some offences and in a series of acts which are somewhat connected to each other and forming a same and single transaction, then also in this case the charged can be joined and a single trial for all the charges will be conducted and this provision is given under Sec 220.

4.3 – Sec 221 hereby deals with the confusion, that if some person done some offences using series of acts  and the confusion started regarding the proving of facts then in this case accued may be charged with the any of the offences so proved or all the offences so proved, and if accused is charged with one offence and during the evidence it is found that he has committed more offences or different offence, then he may be convicted with the same even if he has not committed the offence or charged with the same.

4.4 – Sec 223 deals with the class or group of persons who have committed the same offence and somewhat found common in their intentional thinking, then in this case all the persons are charged and tried jointly. Some conditions are given under Sec 223 which states about the following person which can be charged jointly – 

4.4.1– If the group of persons have committed the same offence and in the identical course of transaction.

4.4.2 – A single person who has committed the offence and the remaining other helped him or abetted him to do the same then they all will be charged jointly.

4.4.3 – All the person who comes under the spectrum of Sec 219 of Code of Criminal Procedure.

4.4.4 – All the person who have committed in the same course of transaction but different offences, then they will be tried jointly.

4.4.5 – The person who have committed offences such as extortion, theft, robbery or criminal misappropriation and all the person who are retaining these properties or concealing the property then all the persons liable are to be charged and tried jointly.

4.4.6 – The group of person or class of persons who have committed the offence which comes under the spectrum of Sec 411 and Sec 414 of Indian Penal Code respectively which deals with the stolen property and its possession then in this scenario they will be tried jointly.

4.4.7 – The group of persons which committed the offence which comes under the ambit of Chapter XII of Indian Penal Code which deals with the possession of counterfeit coins then in this case they will be charged jointly.

4.4.8 – Lastly, all the accused person which doesn’t comes under the ambit of the conditions stated above or the classes of Sec 223, cannot himself claim a joint trial. The proviso of this section provides discretionary power of the court.

5. Jurisdiction of Courts

Jurisdiction of courts can be stated as the limit on which a case can be tried or the extent where the court can exercise its power for which the appeals and suit are filed. The main rationale behind this jurisdiction procedure is that the case and appeals so filed should fall in the court’s geographical location so that the judgement so given could be converted into action and should fall under the court’s pecuniary limits. Now, types of jurisdiction and the court so defined under it –

5.1 – Subject Matter Jurisdiction – It can be defined as the courts which are given authority to try the case of particular subject matter. For example, we can say that the consumer courts or district forums have only authority to try cases related to consumer products, it can’t try civil or criminal cases.

5.2 – Territorial Jurisdiction – The name already defines this jurisdiction, this jurisdiction states that the geographical limits of the courts. The authority is vested only up-to its geographical limit, they can’t exercise their authority beyond their territorial limit. The courts so associated are the State high courts considering their state boundaries and the district courts considering their district geographical limits.

5.3 – Original Jurisdiction – It talks about the court for taking cognizance at the first instance of case, they are courts who have the original jurisdiction to try the particular cases as the first instances. It is different from appellate jurisdiction as in appellate a case comes after hearing of the particular case and is appealed again and in the case of original jurisdiction it is done at the first instance that the case is a fresh case and is in proceeding or tried the first time. For e.g. we can the high court of Allahabad has the original jurisdiction to try the cases of matrimonial, testamentary, probate and company matters.

5.4 – Appellate Jurisdiction – It defines as the authority of the court which can hear the case after reviewed from the lower courts or where the judgement is given from the lower court. The courts which holds the appellate jurisdiction are High courts and Supreme Court of India. These courts have power to overrule the past judgements or uphold the judgement or could also amend the sentence.

6Process of Magistrate’s cognizance and committals.

6.1 – Taking of Cognizance by Magistrate –

6.1.1 – Taking of cognizance is not defined in the Code of Criminal Procedure, but under Sec 190 it is stated that magistrate can take cognizance under Sec 190(1) (a), of Code of Criminal Procedure, he must not only have applied his mind only for the content of the petition but also  for the purpose of the accused that the accused gets his defence or should be tried lawfully.

6.1.2 – Sec 193 – Committal by the court of session, in this case the court of session has power to take cognizance of a case but this cognizance can only be taken if the case is itself committed by the magistrate unless this the court of session can’t take cognizance of a particular case. And this committal is done under Sec 209 od CRPC.

6.1.3 – Sec 195-199 – As we know that magistrate possess the power to take cognizance under Sec 190(1) but, this power is not absolute this authority or jurisdiction can be taken away by the conditions provided under the provisions given under Sec 195-199, so at the time of taking cognizance the magistrate should always examine the facts of the complaint etc. and determine his jurisdiction to take cognizance is there or not or is it taken by the latter provisions.

6.1.4 – Sec 345 – This sec of CRPC deals with taking cognizance with the offences namely contempt which is given in sec 175, 178, 179, 180 and 228 of Indian Penal Code and give power to civil, criminal or revenue courts to take cognizance for the same.

6.1.5 – Under Sec 190(1) (a) – it deals with the cognizance taken under complaint so presented by the person. Sec 190(1)(b) deals with the cognizance taken under police report presented by the police officer after investigation. Sec 190 (1) (c) deals with the cognizance upon the information which is received from any person after analysing the situation.

6.2 – Committal process of magistrate

Under Chapter XVIII, old Cr.P.C. procedure of inquiry into cases triable by the court of Sessions or High Court is indicated. Here also, the proceedings can be started either on private complaint or on a police report. U/s. 207-A of the Code, after report is filed U/s 173 Cr.P.C. by a police officer, the accused is supplied with document and the prosecution examines witnesses to the occurrence to establish prima-facie case against the accused. Based on the material available and on hearing both sides, Charges are to be framed either under one head or under two or more heads under Schedule V in forms XXVIII (1) and (2) respectively. The accused are to be supplied with copy of Charge under seal and signature of the Magistrate. On being satisfied that a prima-facie case is made out, the Magistrate has to commit the accused for trial to the Court of Sessions to take the trial. The Magistrate has to commit the accused for trial subject to provisions of the court regarding the taking of bail, warrant to custody as laid down u/s. 207-A (16). A committal order is to be passed bringing out the brief history of the case, evidence adduced before him and the fact of considering both the evidence and record. It shall also contain the stages of the enquiry like supply of documents, framing of charges etc. The Magistrate has to ascertain from the accused during his examination whether he is competent to defend himself or “Legal Aid” to be provided. He should also ascertain whether the accused has any defense and the particulars of the witnesses if stated or inform the accused that he can furnish the information before the Sessions Court. The Magistrate should not give any findings on the facts since it is only an enquiry at committal stage. Only with the committal of the accused by a Magistrate, the Sessions Court will have the jurisdiction to try the accused. This procedure is envisaged to save the valuable time of the Sessions Court and High Court

7. Conclusion

This paper covered all the important points related to charges, its joinder and faulty charges. Consequences of faulty charges were discussed i.e. if the charges then the defence can’t get acquitted or prosecution gets the conviction solely on the basis of faulty charges. If the faulty charges didn’t cause any prejudice to any of the parties then it can be amended or altered at any point of time before the judgement is given under Sec 216(1). Several circumstances where joinder of charges takes place were discussed which are covered under sec 219-223, i.e. when the class of person can be tried together or when the charges can be joined. After that different jurisdiction were discussed and how different courts lie under different jurisdiction i.e. consumer courts lie under subject matter jurisdiction and they can’t try the cases of civil or criminal matters, they don’t have authority or jurisdiction to do so. Further territorial, pecuniary, original and appellate jurisdiction were discussed. Cognizance power of magistrate is discussed i.e. under Sec 190 (1) magistrate has power to take cognizance on the matter i.e. apply his/her judicial mind, this power can be taken back under the conditions provided under sec 193-199. Lastly, the committal process of magistrate is discussed, how magistrate commits the case, and then tried by higher court i.e. session court’s judge.


[1] 1979 AIR 962

[2] Kailash Gir v/s V.K.Khare, Food Inspector, 1981, CriLj 1555, 1556(MP)

[3] SS Rout v/s State of Orissa, 1991 CriLj 254 (Bom.)

[4] Kantilal Cahndulal Mehta v/s State of Maharashtra, (1969) 3 SCC 166

[5] Harihar Chakravorhty v/s State of W.B., air 1954 SC 266

Author: Ujjwal Kumar, School of law, University of Petroleum and Energy Studies

Editor: Kanishka VaishSenior Editor, LexLife India

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