Criminal Law is the Law related to Crime. Hence, it is also called the Law of Crimes. Other terms related to Criminal Law are Criminology – the systematic study of criminals and Penology – the study of punishments in relation to the crime and the management of prisons. Criminal Law is concerned with wrongs committed against the public as a whole.

Criminal Law in India
The Criminal Law of India is divided into two categories.
– Substantive Law
– Procedural Law
Substantive Law provides for the definitions of various offences and prescribes punishments for the respective offences. The Indian Penal Code, 1860 (IPC) falls under the Substantive Law.

Procedural Law provides a mechanism for the enforcement of the Criminal Law. The Code of Criminal Procedure, 1973 comes under this category.

Effect of lost / stolen cheque on Cheque Bouncing 138 NI Act case

,
Section 138 of the Negotiable Instruments Act, 1881 provides for a punishment if a person who has issued a cheque is unable to clear the cheque and the said cheque gets dishonored. A criminal case is made against the person who had issued the cheque (drawer) for issuing a cheque and fraudulently not having sufficient funds in his account or for a stop payment direction to the bank. The maximum punishment in such cases is upto 2 years imprisonment, or fine amounting to double the cheque amount, or both. The intent of the legislature behind such an offence was that if a person has issued a cheque for payment to somebody, in that case he should respect such action and if he fails to make the payment due to insufficiency of funds then he would be criminally tried.

In various cases, the cheque has been lost / stolen by someone and then because the cheque was not credited and the payment was not made by the bank in favor of the person who had presented the cheque to the bank, in such a case will the offence still be made under the provisions of Section 138 of the Negotiable Instruments Act, 1881?

According to Section 138 of the Negotiable Instruments Act,

“138. Dishonour of cheque for insufficiency, etc. of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation.—For the purposes of this section, ‘debt or other liability’ means a legally enforceable debt or other liability.”

On a simple reading of the above section, we can understand from the said provision that a legal fiction has been created that the person who had drawn the cheque is presumed to have committed an offence under the act in the said circumstances. However, “A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself”[1]. On this aspect, the Supreme Court has observed in the case of State of A.P. v. A.P. Pensioners’ Assn. [2] that,

“30. … In other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Thus, it is not possible to construe the legal fiction as simply as suggested by Mr Lalit.”

The Supreme Court in the case of Raj Kumar Khurana v. State of (NCT OF DELHI) and Another,[1] had decided whether if a cheque is lost or reported stolen, can a case of cheque bouncing under 138 NI Act be still made, and observed that,

“Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. (See R. Kalyani v. Janak C. Mehta[3] and DCM Financial Services Ltd. v. J.N. Sareen[4]) Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be:

(i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or

(ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.”

The Supreme Court further observed that since the parameters for invoking the provisions of Section 138 NI Act are limited, the Bank’s refusal to honor the cheque is not mischief as per the provisions of Section 138 NI Act.

Thus, as per the Supreme Court, if it can be proved that the cheque was reported stolen or lost and the same was intimated to the bank and / or to the police, a complaint under Section 138 NI Act cannot be made out as there has to be a strict interpretation that has to be given to the provisions of Section 138 because of the legal fiction that has been made in it.

——————–

[1] (2009) 6 SCC 72

[2] (2005) 13 SCC 161

[3] (2009) 1 SCC 516

[4] (2008) 8 SCC 1

Criminal Liability of Corporate Officials in India

,

For a long time, corporations in India were not held liable for criminal offences due to the requirement of mens rea or the intention to commit the offence and inability to award imprisonment or arrest, etc. However, corporations are no longer immune.

Laying the Theoretical Framework: Corporate Criminal Liability

The recognition of the company as a separate legal entity is the basic cornerstone of laws relating to corporate liability around the world. However, courts struggled in attempting to fasten liability over companies for acts which were considered criminal offences. The courts had historically struggled on two main fronts in this regard

(1) to assign mens rea, i.e. a criminal intent factor to fictional entities such as companies, and

(2) to punish corporates where statutory punishments were mostly corporal in nature, i.e. requiring punishment via imprisonment.

On the face of this need, emerged the doctrine of corporate criminal liability, which basically enables the courts to single out individuals responsible for criminal acts committed in the name of companies. For offences which did not require the proof of mens rea, the simple answer that courts came up with was to introduce a modified version of the Doctrine of Vicarious Liability through which the controlling persons of the company would be made liable[i]. But soon company directors were also brought to answer for the criminal acts for which criminal intent was also necessary to be proven[ii]. This was called the theory of ‘Identification’ or ‘Attribution’, a modified form of vicarious liability, where for the purpose of the criminal act, the person in control of the affairs of the company (that is to say its directors and managersand the company were considered one and the same.

Jurisprudence of Corporate Criminal Liability of Directors

Gone are the times when the world viewed Indian Companies as ‘family businesses’. With time, the structures adopted in Indian companies have grown increasingly specialized and complex, with specific directors being nominated to take charge of specified activities of the Company. As we will see, the provisions for making the direction and management of a company liable are mostly deeming provisions. However, there can be an opinion amongst stakeholders while dividing duties amongst the board members that in case criminal liability arises against the company then the director nominated for overlooking that aspect of its business shall also be held criminally liable. The legal approach, though, is a little more complex than that.

Earlier, the courts in India only recognized that companies can act through their managers and directors, but the law as it stands now however, consolidates the position that companies are as culpable as any living person and can be prosecuted and punished for the same, this is governed by two major decisions in this regard. First is the case of Standard Chartered Bank v. Directorate of Enforcement[iii] wherein the constitution bench of the Supreme Court held that a company can be prosecuted and convicted for an offence requiring minimum imprisonment. And secondly, in Iridium India Telecom Ltd. v. Motorola Inc[iv], wherein the issue was whether a company could be held liable under Section 420 of the Indian Penal Code, 1860, the Apex Court answered in the affirmative and clarified further, that even if the offence would require the proof of mens rea, a company can be made liable to the act as the guilty mind of the person in control of the company’s affairs is ‘attributed’ to the company as well.

Director’s Liability under India’s Legislative Framework

Certain legislations have a provision titled as ‘Offences by Companies’, which makes the person in charge of and responsible at the time of commission of the offence liable for that offence along with the company unless the person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commissioning of such offence. Under the said provision, the director, manager, secretary or any other official of the company may also be held liable if it is shown that the offence was committed with his consent or connivance.

The Companies Act, 1956 employed the concept of “officer who is in default”, to impose the liability for defaults by a company over officers responsible for its management. However, penalties under the Companies Act, 1956 were seen as largely ineffective against cases of serious internal frauds committed by the promoters and senior management of companies. But, with the enactment of the Companies Act, 2013 ( the “Act”), came also the statutory recognition of the duties of a director, such as exercise of due and reasonable care, skill, diligence, and independent judgement.  Earlier, by virtue of their positions, only the MD, whole-time directors, and company secretaries used to fall within the scope of “officer who is in default”, but the Act has significantly expanded this scope to include any person who would, in the given scenario, have had superintendence/ control/ direction/ management over the affairs of the company. Under the Act, independent directors can also be made answerable for lapses in performing their duties. The Act also includes the elements of knowledge and intent in determining who is an officer who is in default. Moreover, section 447 of the Act, which deals with fraud, makes persons liable who act or abuse their position with intent to deceive, to gain undue advantage, or to injure the legitimate interests of others (company/ shareholders/ creditor/ persons) whether or not there is wrongful gain or loss. Nevertheless, it is necessary to prove intent and knowledge in most cases.

Apart from the Companies Act, 2013, offences by companies are also stipulated under various other legislations. These provisions extend the liability for contravening the provisions under the relevant statute to companies, and the persons in charge of and responsible for the conduct of the business of the company. Further, these provisions typically provide for a non-obstante clause which stipulates that if it is proved that the director, manager, secretary or other officer of the company connived, consented to the offence or can be attributed to the negligence, then such director, manager, secretary or other officer shall also be deemed guilty and proceeded and punished accordingly.

Some of the legislations that contain the above-mentioned provision would be as follows:-

  • the Air (Prevention and Control of Pollution) Act, 1981;
  • the Water (Prevention & Control of Pollution) Act, 1974;
  • the Prevention of Money Laundering Act, 2002;
  • the Securities Contracts (Regulation) Act, 1956;
  • the Securities Exchange Board of India Act, 1992;
  • the Competition Act, 2002; and
  • the Income Tax Act, 1961.

Supreme Court on Liability of Corporations and its Officials

The law on this aspect has evolved over time. Now, a corporation can be convicted of offences involving mens rea by applying the doctrine of attribution[1]. Thus, the corporation can be held responsible for offences committed in relation to the business of the corporation by the persons in control of its affairs. The legal position in the US and UK has also crystallised to ensure a corporation can be held liable for crimes of intent. In the UK, the courts have adopted the doctrine of attribution to the corporation liable for acts committed by the directing mind, i.e., the directors and managers.

It is now clear that the criminal intention of the company’s directors or officials can be attributed to the company to make the company liable. However, the question then arises whether the reverse is possible – i.e. whether the officials of the company can be held responsible for acts of the company? This question was recently answered by the Supreme Court of India in Sunil Bharti Mittal v. Central Bureau of Investigation ((2015) 4 SCC 609). The Apex Court in this case in no uncertain terms held that an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company. However, to make an individual liable, there must be sufficient evidence of his active role coupled with criminal intent and/or a provision must be specifically incorporated into the statutory regime that attracts the doctrine of vicarious liability[2]. It may thus be noted that when the company is the offender, vicarious liability of the directors cannot be imputed automatically, in the absence of any statutory provision to this effect.

The question that arises basis the above discussion, then, is whether any person simply designated as an officer in default by the Company, can be held criminally liable.

In Sunil Bharti Mittal v. Central Bureau of Intelligence[v] the Supreme Court gave recognition to the theory of attribution/ identification in determining whether a director or person in charge of the company can be prosecuted for an offence by the company. The court stated that the person upon whom the acts of the company must be attributed must be the ‘alter-ego’ of the company, that is the degree of identity between the acts of the company and the ‘directing mind and will’ of the responsible persons must be high enough for the courts to infer them as one and the same. Moreover, just because a person is at the helm of the affairs, that would not make him/her liable for crimes requiring intent. In this case, the Supreme Court held that the special court was right to not accept charge sheet against the managing director just because he was the head of the company.

The discerning criteria thus is whether the proof of intent is required to prove an offence. An officer who is in default for contraventions which do not require proof of intent, may, thus, be prosecuted by virtue of his/her position, but the same is simply not tenable in offences where proof of intent is required.

An example of a statute which allows the nomination of person-in-charge for the obligations under a legislation is under section 66 of the Food Safety and Standards Act, 2006,. The provision in this enactment state that a director or manager can be nominated to be responsible for any contraventions of the provisions of the respective enactments.

It is to be noted, that only when the legislation permits the nomination of the responsible director, and such nomination is made before the commission of the offence, only then a director specifically nominated for offences under an act can be prosecuted, even if there is no direct intent[vi].

Hence,

The thumb rule is thus that unless it is specifically provided in a statute, a director may be made criminally liable only if there is existing proof of intent against the director. The directors must ensure that they diligently avoid the commission of such offences in the name of the Company, the onus shall nevertheless remain upon them to prove that the offence was committed without their knowledge or consent[vii].

Who can be held liable?

It is worth clarifying that a person cannot be held liable merely on the basis of the designation. No presumption can be drawn against the person occupying the position of a chairman or managing director only on the basis of their position. There is no universal rule that a director of a company is in charge of its everyday affairs. A person should fulfil the ‘legal requirement’ of being a person in law (under the statute governing companies) responsible to the company for the conduct of the business of the company and also fulfil the ‘factual requirement’ of being a person in charge of the business of the company.

The concept of vicarious liability of corporate officials has evolved substantially over the past decade. It is worth noting that it has become a tendency to implead the senior management officials of the company along with the company to exert pressure on the company to settle. In a lot of instances, such senior officials may also be summoned by the investigating authorities. There is almost unanimous judicial opinion that a clear case needs to be spelt out against the person in the complaint before fastening criminal liability.

Furthermore, in case the court is required to issue summons, there has to be strict compliance with statutory requirements. Summoning is a serious issue and criminal law cannot be set in motion as a matter of routine, and summons should only be issued after recording reasons in writing. The Indian Courts have so far been very cautious in their approach and have generally protected the corporate officials from harassment by the investigating agencies unless there is enough material against the official concerned.

It may be interesting to note that the above provision attaching liability to the directors, etc., is similar to the law in the UK to some extent wherein the corporate officials can be held liable if they consented, connived or neglected in their duties. Consent and connivance both presuppose knowledge.

Similarly, in the US, the corporate officials are held liable under the ‘Responsible Corporate Officer Doctrine’, which holds a corporate officer criminally liable for the criminal violations committed by a subordinate where the said officer occupies a position of responsibility and authority in the company and has the power to prevent such a violation, but fails to do so.

However, it must be noted that as opposed to the US and UK, there is no provision for Deferred Prosecution Agreements (DPA) in India, wherein the company can reach any settlement with the prosecution to avoid criminal sanctions.

To the comfort of corporates, so far we have seen that courts have taken a balanced view. They have not shied away from acting against the senior official if it is established that the official was responsible for the crime. At the same time, however, they have protected senior officials where their personal involvement could not be proved. Having said that, the need of the hour is to take certain deterrent measures to impose costs or punish complainants for initiating frivolous proceedings.

 

[1] Doctrine of Attribution– The doctrine of attribution implies that the criminal intent of the “alter ego” of the company / body corporate, i.e., the person or group of person that guide the business of the company, would be imputed to the corporation. Mens rea is attributed to the company on the basis of the alter ego of the company.

 [2] Doctrine of Vicarious Liability- This doctrine implies that the officials of the company shall be held responsible for the acts of the company by virtue of their position in the company.

[i] Queen v. Great North of England Railways Co., [1846] 9 QB 315; State v. Morris & Essex Rail Co.,23 N.J.L. 360 (1852); Commonwealth v. Proprietors of New Bedford Bridge, 68 Mass (2 Gray) 339 (1854)

[ii] New York Central and Hudson River Rail Road Co. v. United States, 212 US 431 (1909); Moussell Brothers Ltd. v. London & North West Railway Co Ltd, [1917] 2 KB 836; Lennard’s Carrying Co Ltd v. Asiatic Petroleum Co Ltd, [1915] AC 705

[iii] AIR 2005 SC 2622

[iv] (2011) 1 SCC 74

[v] AIR 2015 SC 923

[vi] R. Banerjee v. H.D. Dubey, MANU/SC/0731/1992

[vii] Ministry of Agriculture v. Mayhco Monsanto Biotech (India) Limited, (2016) 137 SCL 373 [CCI]

 

PROCESS OF TRIAL OF CRIMINAL CASES IN INDIA

,

India has a well-established statutory, administrative and judicial framework for criminal trials. Indian Penal laws are primarily governed by 3 Acts:

  1. The Code of Criminal Procedure, 1973 (Cr.P.C.);
  2. The Indian Penal Code, 1960 (IPC);
  3. The Indian Evidence Act, 1872 (IEA).

Cr.P.C. is a comprehensive and exhaustive procedural law for conducting a criminal trial in India, incuding the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and the rights of the accused for a fair trial. The procedure for a criminal trial in India, is primarily, except as otherwise provided, governed by The Code of Criminal Procedure, 1973 (Cr.P.C.). IPC is the primary penal law of India, which is applicable to all offences, except as may be provided under any other law in India. IEA is a detailed treaty on the law of “evidence”, which can be tendered in trial, manner of production of the evidence in trial, and the evidentry value, which can be attached to such evidence. IEA also deals with the judicial presumptions, expert and scientific evidence. There are certain other laws, which have been enacted to deal with criminality in special circumstances.

It is also important to note that India follows the adversarial system, where generally the onus of proof is on the State (Prosecution) to prove the case against the accused, and until and unless the allegation against the accused are proved beyond reasonable doubt, the accused is presumed to be innocent. In certain exceptional cases, which may relate to terrorism, etc., the onus of proof has been put on the accused person, who claims to be not guilty.

India has a highly developed criminal jurisprudence and prosecution system, supported by judicial precedents, however, there may be certain issues or concerns relating to the execution of the same by Police and implementation by Judiciary. The courts in India, particularly High Courts and Supreme Court have been proactively guarding the rights of the accused. Even Article 21 of the Constituion of India has been interpreted in a highly dynamic manner to protect the rights, life and liberty of the citizens, by also incorporating the principles of natural justice.

By the flowchart herein-below, an attempt is being made to make the reader briefly understand the process of criminal investigation and trial in India, as a lot of foreign companies and Ex-pats are coming to India, and due to unfortunate circumstances, they may, at times find themselves embroiled in unnecessary criminal cases.

Process of Criminal Trial in India Flow Chart (2).jpg

To appreciate the process of Indian criminal law, it is necessary that to understand following important terminology:

  1. Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authoised to give bail to the accused at the time of arrest or detention.
  2. Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.
  3. Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and dependant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.
  4. Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.
  5. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.
  6. Whether an offence/case is bailable or not bailable, and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC.
  7. F.I.R (first information report), is formal recordal of a complaint, by police in case of commission of a cognizable offence, and can be considered as a first step in the process of the investigation of a cognizable offence by Police.
  8. The Table II of the 1st Schedule of Cr.P.C., gives a general guideline to determine whether an offence is bailable, non- bailable, cognizable or non-cognizable. The criteria in the table below, is applicable in those cases which are silent on this aspect. For easy understanding, the following criteria may be understood:
Offence Cognizable or Non-Cognizable Bailable or Non-bailable
Punishable With Imprisonment For Non-cognizable Bailable
Punishable With Imprisonment For Cognizable Non-Bailable
  • Less Than 3 Years or with fine only
  • 3 Years or more

 

  1. The criminal investigation process and prosecution mechanism in India, can be started in any of the following manner:
    1. On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.]
    2. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence.
    3. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C.

 

India: Framing Of Charges: An Overview

,

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 Criminal Procedure Code the accused is informed of the accusation in the beginning itself. In case of serious offences the Code requires that the accusations are to be formulated and reduced to writing with great precision & clarity. This “charge” is then to be read and explained to the accused person1.

Charge serves the purpose of notice or intimation to the accused, drawn up according to specific language of law, giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of trial2.

Relevant Legal Provisions of Criminal Procedure Code (CrPC)

  • Section 211 & Section 212 specifies about Contents of Charge and mentioning of particulars as to time and place of the alleged offence in the charge.

This rule is to an extent relaxed in a case of criminal breach of trust or of dishonest misappropriation. When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates. It is obvious that the relaxation given by the above rule is applicable only in case of criminal breach of trust or dishonest misappropriation and not in case of any other offence like theft, falsification of accounts under Section 477-A of the IPC, cheating etc.

This rule is intended to cover cases of persons who showed a deficiency in the accounts with which they were entrusted but who could not be shown to have misappropriated this or that specific sum3.

  • Section 213 talks about; when manner of committing offence must be stated:

When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner is which the alleged offence was committed as will be sufficient for that purpose.

  • Section 214 gives a rule for interpreting the words used in the charge: It provides that in every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.

Basic Procedure regarding charge & its trial

The initial requirement of a fair trial in criminal cases is a precise statement of the accusation. The code seeks to secure this requirement, first, by laying down in Sections 211 to 214 of CrPC as to what a charge should contain; next, stipulating in Section 218 of CrPC that for every distinct offence there should be a separate charge; and lastly, by laying down in the same section that each charge should be tried separately, so that what is sought to be achieved by the first two rules is not nullified by a joinder of numerous & unconnected charges4.

Section 218 reads as Separate charges for distinct offences

The object of section 218 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges & are tried together5. Another reason is that the mind of the court might be prejudiced against the prisoner if he were tried in one trial upon different charges resting on different evidence. It might be difficult for the court trying him on one of the charges not to be influenced by the evidence against him on the other charges. The strict observance of Section 218(1) may lead to multiplicity of trials, therefore exceptions, in suitable cases, have been provided by Section 218(2) in Sections 219,220,221 & 223. The effects of non-compliance with provisions regarding charge would be considered later. It would however be useful to allude to the decision of the Supreme Court in context of non-compliance with Section 218. In every case, in which a departure from the requirements of Section 218 has occurred, the question before the courts is, whether the omission to frame the required charge has or has not in fact occasioned a failure of justice by prejudicing the accused in his defence, & whether he has thus been deprived of a fair trial6.

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 separate trial. The only exceptions recognized are contained in Sections 219,220,221 & 223 of CrPC. Therefore separate trial is the rule and the 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 trial7. 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 risk of prejudice to 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 offenders8.

Applicability of provisions relating to joinder of charges to cases where no charge is framed

As will be seen later, in all summons cases though it is necessary to state to the accused the particulars of the offence of which he is charged, it is not necessary to frame a formal charge. In such cases a question may arise whether the provisions relating to joinder of charges & of offenders are applicable to such proceedings. The Code does not make any express provision in this regard. However the courts have taken the view that these provisions are equally applicable in summons cases also9.

Amendment/Alteration of charge

According to Section 216 (1) of CrPC, any court may alter or add to any charge at any time before judgment is pronounced. The section invests a comprehensive power to remedy the defects in the framing or non-framing of a charge, whether discovered at the initial stage of the trial or at any subsequent stage prior to the judgment.

The code gives ample power to the courts to alter or amend a charge whether by the trial court or by the Appellate Court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it & putting forward any defence open to him, on the charge finally preferred against him10. The court has a very wide power to alter the charge; however, the court is to act judiciously and to exercise the discretion wisely. It should not alter the charge to the prejudice of the accused person11.

Withdrawal of remaining charges on conviction on one of several charges

Section 224 of CrPC states that when a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent, of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn. The section is applicable where the accused in convicted of one of several distinct charges before the other charges are tried. It is necessary that the several charges made must be in respect of distinct offences and the section will not apply where the several charges are made under Sections 220(3), 220(4), or Section 221.

Effects of omission to frame, or absence of, or error in charge

Under Section 215 & 464 of CrPC object is to prevent failure of justice where there has been only technical breach of rules not going to the root of the case as such. The two sections read together lay down that whatever the irregularity in framing of a charge, it is not fatal unless there is prejudiced caused to the accused12. The object of the section is to prevent failure of justice where there is some breach of the rules in the formulation of the charge. However, the section also makes it clear that insignificant irregularities in stating the particulars of the offence will not affect the trial or its outcome. In order to decide whether the error or omission has resulted in a failure of justice the court should have the regards to the manner in which the accused conducted his defence & to the nature of the objection.

The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Nor could a conviction recorded on charged under wrong provisions be reversed if the accused was informed of the details of the offences committed and thus no prejudice was caused to him13. The mere omission to frame a charge or a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice & not to frustrate them by mere technicalities.

Conclusion

In a criminal trial the charge is the foundation of the accusation & 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 & not the other matters14.

In framing 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 17315.

The judge needs to be only convinced that there is a prime facie case, where there is no necessity to adduce reasons for framing charges. However, the magistrate is required to write an order showing reasons if he decides to discharge the accused16.

The sections dealing with charge do not mention who is to frame the charge. The provisions dealing with different types of trials however provide that it is always for the court to frame the charge. The court may alter/ add to any charge at any time before the judgment is pronounced.

But if a person has been charged, the court cannot drop it17. He has either to be convicted or acquitted18. All this has an important bearing on the administration of justice.