What does a formal charge mean? Is a complaint same as charge? -An analysis

This article was written by Punyam Bhutani, a student of Vivekananda Law School, Vivekananda Institute of Professional Studies (Affiliated to Guru Gobind Singh Indraprastha University, Delhi)

Introduction

One basic requirement of a fair trial in criminal jurisprudence is to give precise information to the accused as to the accusation against him. This is vitally important to the accused in the preparation of his defence. In all trials under the Code of Criminal Procedure, 1973 the accused is informed of the accusation in the beginning of the case itself. In case of serious offences, the Code requires that the accusations are to be formulated and reduced to writing with great precision and clarity. The “charge” is then read and explained to the accused person[1].

Charge under the Criminal Procedure Code, 1973

Meaning

Charge includes any head of charge when the charge contains more heads than one.[2]

The definition of charge in Criminal Procedure Code is very vague and beyond the comprehension of a layman. Before defining a charge in simple terms, it is vital to decode the definition and understand what the CrPC wants to say about the definition of charge.

In addition, a person can commit several offences by his one single act.

For instance, X steals all the jewellery of Y in his house by keeping all the inmates at gun point. Here, A has committed house trespass, theft, theft in a dwelling house, illegal possession of arms, assault, and so on and so forth.

Thus, 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’.

Purpose of Charge

The main object and purpose of charge was highlighted in the landmark judgement of V. C Shukla v. State [3]by Justice Faizalali.

It was observed that the purpose of charge is to give the precise and exact knowledge to the accused of the offence that he has been charged with to allow him an opportunity to prepare for his defence. The general practice and the basic rule is that the charge must be specific and not elongated. This allows the accused to prepare his defence on the specific charge. Moreover, charge also allows the Prosecutor to prepare its case and the evidence to commence the Prosecution.

Every offence puts upon the Prosecutor a very different burden to prove its case before the court. Though in common parlance, it is said that the prosecutor has the burden to prove beyond a reasonable doubt that the accused is guilty of the offences charged with. In practice, the weight of this burden changes from offence to offence. Offences which are punishable with severe sentences such as imprisonment for 7 years or more levy a greater burden on the prosecution than a offence punishable with 3 years imprisonment.

Therefore, it is essential that all the heads of charges are specified and elaborated to allow the Public Prosecutor to analyse the amount of evidence that would be essential to obtain a conviction.

Form of Charge

Charge is not a form but is levied against the accused. It is mentioned in the ‘Charge Sheet’ which is a form of charge.

The charge sheet is a general term which is used for the Final Report that the investigating authority, i.e., the Police is required to submit under Section 173 of the Act.

The charge sheet contains the offences which the police suspect the accused to have committed on the basis of the evidence that can be found during the course of an investigation. However, the actual charges are those and actual charge sheet is the one where the Magistrate puts a charge on the accused.[4]

“After the accused person is arrested, the police investigate the matter and try to arraign evidence that can be gathered. If after collecting the evidence, the police has reason to believe that the arrested person is the accused, the final report is prepared which contains the charge and the evidence.”

The accused with the final report is produced before the Judicial Magistrate. The Magistrate, after inquiry, informs the accused of the offences that he is charged with and mentions them on a separate sheet which is the charge sheet. This charge sheet is the form of charge which is Form No. 32 provided from in the second schedule of the CrPC.

Types of Cases where Charges are Framed

The question of framing a charge against the accused arises only when the accused is not entitled to a discharge under Section 277 and 239 of the Criminal Procedure Code.

• Section 277 deals with the discharge of the accused in sessions cases. It states that if the judge, after hearing the accused and the prosecution and after considering the record of the evidence and the documents submitted herein, consider that there are not sufficient grounds to proceed against the accused, then the judge shall discharge him and record the reasons for doing so in writing.
• Section 239 of the code deals with the discharge of the accused in warrant cases. It states that the Magistrate shall discharge the accused if, after considering the police report and the documents submitted under Section 173 of the Code, comes to the conclusion that the charge against the accused is groundless. The Magistrate shall give the opportunity of being heard to the accused and the prosecution and record the reasons in writing.

In the following types of cases the charges are framed under the Criminal Procedure Code:

• Sessions cases under Section 228 of the Code;
• Warrant cases instituted on police reports under Section 240 of the Code;
• Warrant cases instituted otherwise on police report under Section 246(1) of the Code.[5]
• Sessions Case

Section 228 of the Code deals with the framing of charge in case of a trial before the Court of Sessions. In such a case, the charge is framed against the accused only when the accused is not entitled to discharge under Section 227 of the Code.

• Section 228 of the Code states that:

If the Judge is of the opinion that the accused has committed an  offence which is:

1. Not triable by the Court of Session, the Judge may frame the charge against the accused and may order to transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and he may order the accused to appear before such Magistrate on such date as required, and thereupon such Magistrate shall try the offence in accordance with the procedure for trial of warrant cases instituted on a police report;
2. Exclusively triable by the Court, the Judge shall frame the charge against the accused in writing, in the case of which the charge shall be read and explained to the accused and shall ask the accused whether he pleads guilty of the offence he is charged with or claims to be tried.

Warrant Cases instituted on Police Report

Section 240 of the Code deals with the framing of charges in case of warrant cases tried by a Magistrate instituted on police reports. It states that if the Magistrate, after consideration, examination and hearing, is of the opinion that there are sufficient grounds for presuming that the accused has committed an offence triable under this chapter, which the Magistrate is competent to try and is of the opinion that the accused of such offence could be adequately punished by him, he shall frame the charge in writing against the accused.

Warrant Cases instituted otherwise on Police Report

Section 246 of the Code states that when in any warrant case otherwise than on a police report, the accused is brought before a Magistrate and the Magistrate upon examination and hearing, is of the opinion that there are sufficient grounds to presume that the accused has committed the offence, then the Magistrate shall frame the charge against the accused in writing.

In all the above cases, when the charge is framed against the accused, it is important the said charge is read and explained to the accused precisely and accurately. It shall also be important to ask the accused if he pleads guilty or if he has any defence to make.

Contents of Charge

The initial requirement under the code for a free and fair trial is to inform the accused precisely and accurately, of the offence he is charged him so as to give him a fair opportunity to prepare his defence.

Section 211 and 212 of the Code prescribe the forms and contents of the charge. However, when the nature of the case is such that the offence in question cannot be described properly by the particulars as mentioned in the aforesaid sections, so as to give the accused sufficient notice of the offence with which he is charged, then the manner in which the offence was committed by the accused shall also be contained in the particulars of the charge.

According to Section 211 of the Criminal Procedure Code, every charge under the code shall include the following:

• The offence with which the accused is charged;
• If any law gives the offence any specific name, then the description of that charge by that name only;
• The definition of the offence, under the law that does not give any specific name to the offence, so as to give notice of the matter to the accused of which he is charged;
• The law and the section against which the offence is said to have been committed.

This means that when a charge is framed against an accused, then it is equivalent to the statement that the accused while committing the said offence has fulfilled every legal condition required to constitute the said offence in the particular case. Also, the said charge shall be written in the language of the Court

Particulars as to Time, Place and Person

According to Section 212 of the Code, in order to give sufficient notice of the matter to the accused of which he is charged, then the charge shall contain the following components:

• Time and place of the alleged offence;
• The person (if any) against whom the offence was committed;
• The thing (if any) in respect of which the offence was committed by the accused.

It should be noted that in case an offence is committed which is of the nature of the criminal breach of trust or dishonest misappropriation when the exact amount in question cannot be determined, then, in the said charge it shall be sufficient to specify the gross sum of money or movable property, as the case may be, in respect of which the offence was committed.

In addition, the dates between which the said offence was committed shall also be mentioned in the charge sheet. It shall also be noted that it shall not be necessary to specify the exact items in question or the exact dates, provided that the time included between the first and the last date of such dates does not exceed one year.

Complaint under the Criminal Procedure Code, 1973

Complaint means any allegation made orally or in writing to the Magistrate, with a view to his taking action under the code, that some person, whether known or unknown, has committed an offence, but does not include a police report.[6]

The following are the relevant provisions in regards to the Complaints to Magistrates-

1. Section 200- Examination of Complaint
2. Section 201- Procedure by Magistrate not competent to take cognizance of the case.
3. Section 202- Postponement of issue of process
4. Section 203- Dismissal of Complaint.

(I) Essential requirements of a complaint:

• It must contain an allegation of commission of offence by anyone
• It can be made either orally or in writing
• It must be made to a Magistrate
• It must be made with a view to take action by the magistrate.

(II) Statements must be made with a view to take action

A complaint need only state the facts of the commission of the offence. No provision of the law in which the offence is defined to be stated. There is no such requirement.

(III) Recording the Sworn Statement

It is essential when the Magistrate takes cognizance of offence on a complaint. It is thus stated in Section 200 of the Code. The Magistrate may order an inquiry or investigation into the offence and after that if he is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint as stated in Section 203 of the Code.

In exceptional circumstances a second complaint after the first one is dismissed under Section 203, is maintainable.

Conclusion

 In a Criminal Trial the charge is the foundation of the accusation and every care must be taken to see that it is not only properly framed but evidence is only tampered with respect to matters put in the charge and not the other matter[7]

In framing of a charge during a criminal trial, instituted upon a police report, the court is required to confine its attention to documents referred to under Section 173.

Also, if a person is charged, the court cannot drop it.[8] He has to either convicted or acquitted.[9]

The concepts of Formal Charge are provided in different provisions of the code. While one seeks to establish a charge sheet, the other is only an allegation made to the magistrate and does not include a police report. Hence, both the provisions provided under the Code play an important bearing on the administration of justice in the Legal system of the country.`

Bibliography

Acts

The Criminal Procedure Code, 1973, Universal Lexis Nexis

Text Books

1. Cases and Material on Criminal Procedure Code, Vivekananda School of Law and Legal Studies (VSLLS), 2019-2020.
2. N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure, 6^th Edition, 2014
3. Ratanlal & Dhirajlal, Criminal Procedure, Lexis Butterworths Wadhwa, Nagpur, 2012
4. C. Sarkar, The Law of Criminal Procedure, Wadhwa & Co., Nagpur, 2007

Websites

1. https://blog.ipleaders.in/charge-crpc/
2. https://devgan.in/crpc/chapter_15.php
3. https://www.legalbites.in/meaning-form-and-content-of-charge-under-the-criminal-procedure-code-1973/
4. https://www.legalbites.in/meaning-form-and-content-of-charge-under-the-criminal-procedure-code-1973/

[1] The procedure is followed in Trials of Warrant Cases and Trials before Court of Session

[2] Section 2(b), The Criminal Procedure Code, 1973

[3] AIR 1980 SC 962

[4] K. N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure, 6^th Edition, 2014

[5] Ratanlal & Dhirajlal, Criminal Procedure, Lexis Butterworths Wadhwa, Nagpur, 2012

[6] Section 2(d), The Criminal Procedure Code, 1973

[7] Ramakrishna Redkar v. State of Maharshtra, 1980 Cri Lj 254 (Bom)

[8] State of Maharashtra v. B.K Subbarao, 1993 Cri Lj 368 (Del)

[9] Prakash Chander v. State (Delhi), 1995 Cri Lj 368 (Del)