The Charge : Sections 211-224 and 464 of CrPC

What is Charge?

Charge is a first notice to accused of his offence, it should convey to him in sufficient clearness and certainty what the prosecution intends to prove and which case the accused is to meet. The charge sheet corresponds to indictment under English Law.

Section 2(b) of the Code of Criminal Procedure (in short crpc) defines a charge as including any head of charge, when the charge contains more than one. However the Code of Criminal Procedure does not define what a charge is. In law a charge may be define as a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him.

Purpose and Object

The purpose of a charge is to tell the accused, as precisely and concisely as possible, about the matter with which he is charged and the object of a charge is to warn the accused of the case which he has to answer. The forms in which the charges may be framed are set forth in Second Schedule of the Code of Criminal Procedure.

The Legal Provisions

The provisions regarding charge are contained in Sections 211 to 224 and 464 of the crpc. Sections 211 to 214 of crpc deals with what a charge should contain. Section 211 of the crpc lays down that every charge shall contain the following particulars:-

(1) The offence with which the accused is charged.

(2) If the law which creats the offence gives it, any specific name, the offence may be described in the charge by that name.

(3) If the law which creats the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the acused notice of the matter with which he is charged.

(4) The law and the section of the law against which the offence is said to have been committed shall be mentioned in the charge.

(5) The fact that charge is made is equivalent to statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

(6) The charge shall be written in the language of the court.

(7) If the accused having been previously convicted of any offence is liable, by reason of such previous conviction to enhanced punishment or to punishment of a different kind, for a subsequent offence and it is intended to prove such previous conviction for the purpose of affecting the punishment, which the court may think fit to award for the subsequent offence the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.

Section 212, crpc then provides that the charge must contain such particulars as to the time and place of the alleged offence, and the person, if any against whom, or the thing if any, in respect of which, the offence was committed as are reasonably sufficient to give to the accused notice of the matter with which he is charged.
According to Section 212(2), crpc when the charge is of criminal breach of trust or criminal misappropriation of money, it shall be sufficient to specify
(a) the gross sum in respect of which the offence is committed;
(b) the dates between which it is committed provided the time between the first and the last date shall not exceed one year.

Section 213, crpc lays down that if the nature of the case is such that the particulars mentioned in Sections 211 and 212 of crpc do not give to the accused sufficient notice of the matter with which he is charged, the charge must also mention such particulars of the manner in which the alleged offence was committed as would be sufficient for that purpose. e.g. A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.

Effect of a defective charge

The matter have been provided in Sections 215 and 464 of the Code of Criminal Procedure. The two sections read together lay down that whatever the irregularity in framing of a charge, it is not fatal unless there is prejudice caused to the accused. 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 and not to frustrate them by mere technicalities. 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 charges under wrong provisions be reversed if the accused was informed of the details of the offence committed and thus no prejudice was caused to him.

The court may alter or add to any charge at any time before the judgment is pronounced (sections 216 and 217, crpc). But if a person has been charged the court cannot drop it. He has either to be convicted or acquitted.





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Dispute regarding possession of immovable property : Section 145, 146 crpc.

Disputes over land and water, crops and other produce of land and rights of user in respect of immovable property often result in breach of the peace, violence and bloodshed. Sections 145 and  146 of the Code of Criminal Procedure (in short crpc) together constitute a scheme for the resolution of a situation where there is likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries.

Sub-section (1) of Section 145 of crpc reads as: - Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

Further Sub-section (2) of Section 145, crpc says- For the purpose of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

In order to take preventive action under Section 145 two essential conditions must be satisfied, 

(i) there must be dispute relating to land or other objects mentioned in Subsection (1); and

(ii) the dispute is likely to cause a breach of peace.

The Magistrate exercising jurisdiction under Section 145, crpc must be satisfied about these two conditions either from a police report or from any other information which would include an application by the dispossessed person.

On being satisfied about the existence of a dispute likely to cause a breach of peace, the Magistrate issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statement.

On perusal of the written statements he would proceed to record evidence to decide which of the parties was in possession on the date of the preliminary order. If he decides that- 

(i) one of the parties was in possession he declares possession of such party;

(ii) if on the other hand he is unable to decide who was in possession, or

(iii) if he is of opinion that none of the parties was in such possession, he may say so.

If he decides that one of the parties was in possession he declares the possession of such property. In the other two situations he attaches the property. Thus a proceeding began with a preliminary order followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders.

The Magistrate may, however, stop the proceedings at any time if one or the other of the parties satisfies him that there has never been or that there is no longer any dispute likely to cause a breach of the peace. The Magistrate then cancels the preliminary order vide Section 145(5), crpc except in this event a proceeding initiated by a preliminary order under Section 145(1) must run its full course.

Whether a composite order of attachment of disputed property under Section 146, crpc can be passed by the Magistrate while passing the preliminary order under Section 145(1), crpc?

A Magistrate who wants to pass an order under Section 146(1), crpc has at first to pass an order under Section 145(1), crpc in order to assume jurisdiction to attach the property under Section 146(1), crpc. There is nothing in the said two sections or in the Code of Criminal Procedure to prevent a Magistrate to pass the said orders in the same strain and in the same sitting, the order under Section 146(1) just following the order under Section 145(1) of the code.

A Magistrate can pass a composite order of attachment on disputed property under Section 146(1) while passing the preliminary order under Section 145(1), crpc. But such an order is only valid in the following circumstances 

(i) the order under Section 145(1) should be separately drawn than the order under Section 146(1), crpc,

(ii) that the order under Section 145(1) must precede order under Section 146(1) crpc,

(iii) it must be borne out from both the orders that they satisfy separately the existence of the conditions for drawing such orders under the two sections.

Did you know?

The proceeding under Section 107, crpc are for public peace and tranquility whereas those under Section 145, crpc relate to dispute regarding possession between parties concerning any land or water or boundaries thereof. 

There is no bar to filing criminal proceedings under Section 145, crpc over the same disputed immovable property for which civil proceedings are pending. The jurisdiction of the Magistrate under Sections 145 and 146, crpc to maintain peace will prevails over the orders of the civil court except where

(i) the determination of rights by the civil court has become final, or

(ii) the civil court has appointed a receiver.

An order made under Section 145, crpc deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached.  

Disclaimer - All the contents are for general use and information. Consult your lawyer before acting.