Joinder of Charges

Sub-section (2). Nothing in sub-section (1) affects sections 242, 243, 244 and 246. That sub-section is the map of the whole Part: those four are the exceptions and there are no others.

The illustration is deliberately plain: A accused of theft on one occasion and grievous hurt on another must be separately charged and separately tried.

Section 242: offences of the same kind within a year

Sub-section (1). Where a person is accused of more offences than one of the same kind, committed within the space of twelve months from the first to the last, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding five.

Three limits, and all three are examined: same kind, twelve months, not more than five.

Sub-section (2), what "same kind" means. Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Bharatiya Nyaya Sanhita or of any special or local law.

The proviso adds two deemings. An offence under section 303(2) of the Bharatiya Nyaya Sanhita is deemed of the same kind as one under section 305. And an offence under any section is deemed of the same kind as an attempt to commit it, where the attempt is itself an offence.

Section 243: more than one offence at one trial

This is the section that does most of the work, and it has four independent limbs.

Sub-section (1), the same transaction. If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence.

The illustrations show the range: rescuing a person from lawful custody and causing grievous hurt to the constable in doing it; house-breaking with intent to commit rape and then committing it; falsely accusing a man and then giving false evidence against him at the trial; rioting, grievous hurt and assaulting a public servant suppressing the riot.

Sub-section (2), falsification of accounts. Where a person charged with criminal breach of trust or dishonest misappropriation under section 235(2) or section 242(1) is accused of committing, for the purpose of facilitating or concealing that offence, one or more offences of falsification of accounts, he may be tried at one trial for every such offence.

Sub-section (3), one act, two definitions. If the acts alleged constitute an offence falling within two or more separate definitions of any law, he may be charged with and tried at one trial for each of them. The illustration is a man who wrongfully strikes another with a cane and is charged both with using criminal force and with causing hurt.

Sub-section (4), acts that combine into a different offence. If several acts, one or more of which would by itself be an offence, constitute when combined a different offence, he may be tried at one trial for the combined offence and for any offence constituted by any one or more of the acts. The illustration is robbery with hurt: charged both with the hurt and with the robbery.

Sub-section (5). Nothing in the section affects section 9 of the Bharatiya Nyaya Sanhita, which limits punishment where an act falls under several definitions.

Sub-sections (3) and (4) are about joinder of charges, not about double punishment. A man may be charged and convicted on both, and section 9 of the Bharatiya Nyaya Sanhita then controls what he is punished with.

Section 244: where it is doubtful which offence

Sub-section (1). If a single act or series of acts is such that it is doubtful which of several offences the provable facts will constitute, the accused may be charged with having committed all or any of them, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed one of them.

Sub-section (2). If he is charged with one offence and the evidence shows he committed a different offence for which he might have been charged under sub-section (1), he may be convicted of the offence he is shown to have committed, although he was not charged with it.

That is the practical value of the section. Where the facts are genuinely ambiguous at the outset, the prosecution is not forced to guess and then fail on a technicality.

Section 245: conviction of a minor offence

Sub-section (1). Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and that combination is proved but the remaining particulars are not, he may be convicted of the minor offence though he was not charged with it.

Sub-section (2). Where he is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

Sub-section (3). Where he is charged with an offence, he may be convicted of an attempt to commit it, although the attempt is not separately charged.

Sub-section (4), the limit. Nothing in the section authorises a conviction of a minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. So if the minor offence needed a sanction or a particular complainant, and that condition was not met, there can be no conviction of it.

The illustrations. A charged with criminal breach of trust as a carrier, where the entrustment as carrier is not proved but the breach of trust is, may be convicted of the simple offence. A charged with causing grievous hurt who proves grave and sudden provocation may be convicted of the lesser offence.

Note the direction of travel. Section 245 lets a court convict of less than what was charged. It never lets it convict of more.

Section 246: who may be tried together

Seven categories, and the trick to remembering them is that four are about the same episode and three are about property or coin.

(a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, it; (c) persons accused of more than one offence of the same kind within the meaning of section 242, committed by them jointly within twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, cheating or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property transferred by that offence, or of abetting or attempting that; (f) persons accused of offences under section 317(2) and (5) of the Bharatiya Nyaya Sanhita, or either, in respect of stolen property the possession of which has been transferred by one offence; (g) persons accused of an offence under Chapter X of the Bharatiya Nyaya Sanhita relating to counterfeit coin, and persons accused of another offence under that Chapter relating to the same coin, or of abetting or attempting it.

The proviso, the general power. Where a number of persons are charged with separate offences and do not fall within any of those categories, the Magistrate or Court of Session may, if those persons by an application in writing so desire, and if satisfied that they would not be prejudicially affected and that it is expedient, try them all together.

Notice the symmetry with section 241's proviso: joint trial outside the categories again depends on a written application by the accused persons themselves.

Section 247: withdrawal of the remaining charges

Where a charge containing more heads than one is framed against the same person, and 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, them.

The effect of such a withdrawal or stay is an acquittal on those charges, unless the conviction is set aside, in which case the Court may proceed with the inquiry or trial of the charges so withdrawn or stayed.

The purpose is proportionality. Once a man has been convicted of the gravest head, trying him on four lesser ones may add nothing but time.

A worked example

Imran breaks into a warehouse at night, is disturbed by a watchman, injures him, and takes away goods. His friend Salim, waiting outside, drives the goods away knowing they are stolen.

Can Imran be tried at one trial for house-breaking, causing hurt and theft? Yes. The acts are one series so connected as to form the same transaction, section 243(1), and the illustrations to that sub-section cover exactly this shape.

Can Imran and Salim be tried together? Yes, under section 246(e): Imran is accused of an offence including theft, and Salim of receiving or assisting in the disposal of property transferred by it. Section 246(d) would also serve, different offences in the same transaction.

Change the facts. Imran is separately accused of a theft at a shop in January, another in April, and another in September of the same year, all punishable under the same section with the same punishment. Those are offences of the same kind within twelve months, so he may be tried at one trial for them under section 242, up to five of them.

Change again. Imran is accused of a theft in one month and grievous hurt in another. That is the illustration to section 241: separate charges, separate trials, unless Imran himself applies in writing and the Magistrate is satisfied he will not be prejudiced.

The evidence is unclear whether what happened was theft or criminal breach of trust. Section 244(1) allows him to be charged with both, or in the alternative. If he is charged with theft and the evidence proves criminal breach of trust, section 244(2) allows conviction of the offence proved.

He is charged with criminal breach of trust as a carrier, but the entrustment as a carrier is not proved. Section 245(1) allows conviction of the simple breach of trust, which is the minor offence, although he was not charged with it.

He is convicted on the gravest head and four lesser heads remain. The prosecutor may, with the consent of the Court, withdraw them, or the Court may stay them of its own accord, section 247. That operates as an acquittal on those heads unless the conviction is later set aside.

Distinctions

What this does NOT mean

Section 243 does not authorise double punishment. Sub-section (5) preserves section 9 of the Bharatiya Nyaya Sanhita, which controls punishment where an act falls under several definitions.

Section 245 does not work upwards. A court may convict of a minor offence not charged; it may not convict of a graver one.

Section 242's five is a ceiling on the trial, not on the prosecution. More offences of the same kind may be prosecuted; they cannot all be tried together under that section.

And a misjoinder is not automatically fatal. Whether an irregular joinder vitiates the trial is governed by the irregular proceedings chapter, and the test there is the same failure-of-justice test that runs through section 238.

Quick revision

• 241: one distinct offence, one charge, tried separately. Joint trial only on the accused's written application where the Magistrate sees no likely prejudice. Sub-section (2) names the four exceptions.
• 242: offences of the same kind, within twelve months first to last, not more than five at one trial. Same kind means same punishment under the same section; an offence and an attempt at it are deemed the same kind.
• 243: (1) same transaction; (2) breach of trust or misappropriation plus falsification of accounts to facilitate or conceal it; (3) acts falling within two or more definitions; (4) acts which combined make a different offence, chargeable both ways. (5) saves BNS section 9.
• 244: where it is doubtful which offence, charge all or in the alternative, and convict of the one the evidence proves.
• 245: conviction of a minor offence though not charged, on part of the particulars or on facts reducing the offence; conviction of an attempt though not charged; not where the conditions for initiating proceedings for the minor offence are unmet.
• 246: seven categories may be tried together, and the proviso allows a joint trial outside them on the accused persons' written application where there is no prejudice and it is expedient.
• 247: on conviction on one of several heads, the remaining heads may be withdrawn with the Court's consent or stayed by the Court, which operates as an acquittal unless the conviction is set aside.

Test yourself

1. State the general rule as to charges. For every distinct offence of which a person is accused there shall be a separate charge, and every such charge shall be tried separately, section 241(1).

2. How many offences of the same kind may be tried at one trial, and over what period? Not exceeding five, committed within twelve months from the first to the last, section 242(1).

3. When are two offences "of the same kind"? When they are punishable with the same amount of punishment under the same section of the Bharatiya Nyaya Sanhita or of any special or local law, section 242(2); and an offence and an attempt to commit it are deemed to be of the same kind.

4. A man robs another and causes him hurt in doing so. On what basis may both be tried together? Under section 243(1) as offences in the same transaction, and under section 243(4) because several acts which would each be an offence combine into a different offence, so he may be charged both with the combined offence and with the offences constituted by the individual acts.

5. Can a court convict of an offence with which the accused was never charged? Yes in two situations: a minor offence under section 245, and, where it was doubtful which offence the facts would constitute, the offence actually proved under section 244(2).

6. Name any three categories of persons who may be tried together. Persons accused of the same offence in the same transaction; persons accused of an offence and persons accused of its abetment or attempt; and persons accused of different offences committed in the course of the same transaction. Section 246(a), (b) and (d).

7. What happens to the remaining heads of a charge once a conviction is had on one? The complainant or prosecuting officer may withdraw them with the consent of the Court, or the Court may of its own accord stay them; that operates as an acquittal on those heads unless the conviction is set aside, section 247.