The Charge, and What It Must Contain
Chapter Thirty-Eight
Syllabus topic 2.1, "Charge - Section 211 to 224"
Pages 252 to 257 of 699
In one line
A charge is the written accusation the court reads to the accused, and its whole purpose is to tell him precisely what he has to answer.
In exam wording: section 234 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires every charge to state the offence, to name it where the law gives it a name, to state so much of the definition as gives the accused notice where it does not, to mention the law and section, and to be written in the language of the Court.
Why the law has this at all
Because a man cannot defend himself against an accusation he has not been told.
That sounds obvious and it is the entire architecture of this chapter. If the accusation is vague, he cannot bring the witness who was with him that afternoon, because he does not know which afternoon. If it names no section, he cannot know whether the facts alleged even amount to an offence. If it changes silently during the trial, the defence he has prepared becomes useless.
So the Code fixes what a charge must say, allows it to be altered when the evidence turns out differently, and then, having allowed alteration, gives both sides the right to recall the witnesses who were examined before the change.
And because a rule about notice would be absurd if a slip of the pen destroyed a trial, section 238 makes an error immaterial unless it actually misled the accused and caused a failure of justice.
Some words this chapter uses
A charge is the formal accusation framed by the court. It is not the same as the police report, which is the material the prosecution relies on, nor the same as a complaint.
Framing a charge is the act of settling and recording it. In a Sessions trial that is section 251; in a warrant case section 263.
Particulars are the details of time, place, person and thing.
A failure of justice is a miscarriage: an outcome that would or might have been different.
Section 234: the contents of a charge
Sub-section (1). Every charge shall state the offence with which the accused is charged.
Sub-section (2). If the law creating the offence gives it a specific name, the offence may be described by that name only.
Sub-section (3). If the law gives it no specific name, so much of the definition must be stated as to give the accused notice of the matter with which he is charged.
Sub-section (4). The law and the section against which the offence is said to have been committed shall be mentioned.
Sub-section (5), and this one saves a great deal of drafting. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence was fulfilled in the particular case. So the charge need not recite that the act was not covered by a general exception; charging the offence asserts it.
The Charge, and What It Must Contain
Sub-section (6). The charge shall be written in the language of the Court.
Sub-section (7), previous conviction. Where the accused, having been previously convicted, is liable by reason of that conviction to enhanced punishment or punishment of a different kind, and it is intended to prove the conviction for that purpose, the fact, date and place of the previous conviction shall be stated in the charge; and if omitted, the Court may add it at any time before sentence is passed.
The illustrations to section 234 are worth reading because they show sub-section (5) working. A charge of murder is equivalent to a statement that the act fell within the definition, that it did not fall within the general exceptions, and that it did not fall within the exceptions to the murder section, or that if it did fall within Exception 1 one of the provisos applied. None of that has to be written out.
Section 235: time, place, person and thing
Sub-section (1). The charge shall contain such particulars as to the time and place of the alleged offence, and the person against whom, or the thing in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
Note the standard: reasonably sufficient to give notice. Not exhaustive, not perfect, sufficient.
Sub-section (2), the exception for breach of trust and misappropriation. Where the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it is sufficient to specify the gross sum, or to describe the movable property, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates. Such a charge is deemed to be a charge of one offence within the meaning of section 242.
The proviso: the time included between the first and last of those dates shall not exceed one year.
The reason for this exception is practical. A clerk who has been taking small sums out of a till for months cannot be charged with four hundred separate offences on four hundred unknown dates. So the Code allows one charge, for a gross sum, over a period, capped at a year.
Sections 236 and 237: manner, and meaning
Section 236. Where the particulars in sections 234 and 235 do not give the accused sufficient notice, the charge shall also contain such particulars of the manner in which the offence was committed as will be sufficient.
The Charge, and What It Must Contain
The six illustrations are the clearest thing in the chapter and are worth learning as pairs.
| The charge need not state the manner | The charge must state the manner |
|---|---|
| Theft of a certain article at a certain time and place | Cheating B: the manner must be set out |
| Murder of B at a given time and place | False evidence: that portion of the evidence alleged to be false must be set out |
| Obstructing a public servant: the manner of obstruction | |
| Disobeying a direction of the law to save B from punishment: the disobedience and the law infringed |
The pattern behind the pairs: where the offence is a single identifiable act, naming it is notice enough. Where the offence consists in how something was done, the how is the accusation.
Section 237. In every charge, words describing an offence are deemed to have been used in the sense attached to them by the law under which the offence is punishable. So "dishonestly" in a charge means what the Bharatiya Nyaya Sanhita says it means, not what a dictionary says.
Section 238: errors and omissions
No error in stating either the offence or the particulars, and no omission to state the offence or those particulars, shall be regarded at any stage as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
Two conditions, joined by and. It is not enough that the charge was wrong. It is not enough that the accused was misled. Both must be shown, and the second is the harder.
The illustrations show the test working. Where the word "fraudulently" was left out of a charge of possessing counterfeit coin, the error is immaterial unless it appears that the accused was in fact misled. Where the manner of cheating was not set out or was set out incorrectly, but the accused defended himself, called witnesses and gave his own account of the transaction, the error is immaterial, because his conduct shows he knew what he was answering.
Sections 239 and 240: alteration, and its price
Section 239(1). Any Court may alter or add to any charge at any time before judgment is pronounced.
That is a very wide power, and three sub-sections control it.
Sub-section (2). Every alteration or addition shall be read and explained to the accused.
Sub-section (3). If proceeding immediately is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may proceed with the trial as if the altered charge had been the original charge.
The Charge, and What It Must Contain
Sub-section (4). If proceeding immediately is likely to prejudice either of them, the Court may direct a new trial or adjourn for such period as may be necessary.
Sub-section (5), sanction. If the offence in the altered or added charge is one for which previous sanction is necessary, the case shall not be proceeded with until the sanction is obtained, unless sanction has already been obtained for a prosecution on the same facts.
Section 240, the recall right. Whenever a charge is altered or added to after the commencement of the trial, the prosecutor and the accused shall be allowed:
(a) to recall or re-summon and examine, with reference to the alteration, any witness already examined, unless the Court, for reasons recorded in writing, considers that the recall is desired for vexation or delay or for defeating the ends of justice; and (b) to call any further witness whom the Court may think material.
Section 240 is what makes section 239 fair. The power to alter a charge halfway through would be intolerable if the witnesses already cross-examined on the old charge could not be brought back.
A worked example
Sameer is tried before a Magistrate for cheating a shopkeeper, Ravi, in Dombivli on 14 March.
What must the charge say? That he is charged with cheating, section 234(1) and (2); the section of the Bharatiya Nyaya Sanhita under which it is punishable, section 234(4); the time, the place and that the person cheated was Ravi, section 235(1); and, because cheating is an offence that consists in how it was done, the manner in which he cheated Ravi, section 236 and its illustration (b).
Must the charge say that no general exception applies? No. Section 234(5) makes the charge itself equivalent to a statement that every legal condition was fulfilled.
The charge says 14 March; the evidence shows 14 April. That is an error in a particular. Under section 238 it is immaterial unless Sameer was in fact misled and a failure of justice resulted. If he defended the transaction on its merits and called his own witnesses about it, the illustrations suggest he was not misled.
Halfway through, the evidence turns out to make out criminal breach of trust instead. The Court may alter the charge at any time before judgment, section 239(1), and must read and explain it to Sameer. If proceeding at once would prejudice him, the Court must adjourn or order a new trial, section 239(4). Either way Sameer and the prosecutor may recall the witnesses already examined and examine them on the altered charge, section 240(a), and may call further material witnesses, section 240(b).
The Charge, and What It Must Contain
The altered charge needs sanction. The case cannot proceed until it is obtained, unless sanction was already given for a prosecution on the same facts, section 239(5).
Change the case. Sameer is a cashier accused of taking sums out of a till over eight months. The charge may specify the gross sum and the dates between which the taking occurred, without particular items or exact dates, and it counts as one offence, section 235(2). But the period cannot exceed one year.
Sameer has a previous conviction that makes him liable to enhanced punishment. Its fact, date and place must be stated in the charge, and if left out the Court may add it at any time before sentence, section 234(7).
Distinctions
| The offence has a name in the law | The offence has no name | |
|---|---|---|
| What the charge says | The name alone is enough, section 234(2) | So much of the definition as gives notice, section 234(3) |
| The section | Must be mentioned in either case, section 234(4) | Must be mentioned |
| Section 239(3) | Section 239(4) | |
|---|---|---|
| Test | Proceeding at once is not likely to prejudice either side | Proceeding at once is likely to prejudice |
| What the Court does | Proceeds as if the altered charge had been the original | New trial or adjournment |
| Error in the charge | Consequence | |
|---|---|---|
| Wrong, but the accused understood the accusation | Immaterial, section 238 | |
| Wrong, accused misled, but no failure of justice | Immaterial: both limbs are required | |
| Wrong, accused misled, and a failure of justice | Material |
What this does NOT mean
A charge is not the police report. It is the court's formulation of what the accused must answer.
Section 238 does not excuse a bad charge. It excuses an error that made no difference. Where the accused really was misled and justice failed, the error bites.
Section 239 does not let a court alter a charge after judgment. The power stops at the pronouncement of judgment.
And section 235(2) is not a general licence to be vague about dates. It is confined to criminal breach of trust and dishonest misappropriation, and the period is capped at one year.
Quick revision
- 234: state the offence; the name if the law gives one, else enough of the definition; the law and section; the charge is equivalent to a statement that every legal condition was fulfilled; in the language of the Court; a previous conviction relied on for enhanced punishment must be stated, and may be added before sentence.
- 235(1): particulars of time, place, person and thing, reasonably sufficient to give notice.
- 235(2): for criminal breach of trust or dishonest misappropriation, the gross sum and the dates between, without particular items or exact dates, counting as one offence; the period not exceeding one year.
- 236: the manner must be stated where the other particulars do not give sufficient notice. Not needed for theft or murder; needed for cheating, false evidence, obstruction, and disobedience of a direction of the law.
- 237: words bear the meaning of the law under which the offence is punishable.
- 238: an error or omission is immaterial unless the accused was in fact misled AND it occasioned a failure of justice.
- 239: alteration or addition at any time before judgment; read and explained; proceed if no prejudice, new trial or adjournment if there is; sanction first where the altered offence needs it.
- 240: after alteration, both sides may recall witnesses already examined, unless the Court records that it is for vexation, delay or defeating the ends of justice, and may call further material witnesses.
The Charge, and What It Must Contain
Test yourself
1. What is the purpose of a charge? To give the accused notice of the matter with which he is charged, which is the standard section 235(1) uses and the idea section 238 protects.
2. Must a charge state that the general exceptions do not apply? No. Section 234(5) makes the fact that the charge is made equivalent to a statement that every legal condition required to constitute the offence was fulfilled.
3. When must the manner of committing the offence be stated? When the particulars of offence, time, place, person and thing do not give the accused sufficient notice, section 236. The illustrations require it for cheating, giving false evidence, obstructing a public servant, and disobeying a direction of the law, and not for theft or murder.
4. When is an error in the charge material? Only where the accused was in fact misled by it and it has occasioned a failure of justice, section 238.
5. Until when may a charge be altered? At any time before judgment is pronounced, section 239(1).
6. What follows an alteration made after the trial has begun? The alteration must be read and explained to the accused, section 239(2); the Court proceeds at once or orders a new trial or adjournment according to prejudice, section 239(3) and (4); and both sides may recall witnesses already examined and call further material witnesses, section 240.
7. Over what period may a single charge of criminal breach of trust extend? Not more than one year between the first and last of the dates specified, proviso to section 235(2).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.