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What is meant by Commencement of proceedings?

[Sec 200, 201, 202]

When can a complaint be dismissed?[Sec 203]

"Commencement of proceedings" happens with the proceedings that take place


after "taking of cognizance" of an offence by a magistrate under Section 190,
which can happen either on a complaint by any person, a police report, any other
source other than a police officer, or upon his own knowledge. However, when
cognizance is taken upon a complaint made by any person, it is critical to examine
the complainant to ensure that the complaint is genuine before starting the trial
and summoning an accused.

According to 41st Law Report, everyday experience of the court shows that a vast
number of complaints to the magistrate are ill founded and therefore they should
be carefully considered at the very start and those which are not very convincing
on the face should be subjected to further scrutiny so that an accused person is
summoned only in substantial cases. What this means is that frivolous and
vexatious cases that are just meant to harass an accused must be weeded out.
This is exactly the objective of Section 200, which implores a magistrate to
examine the complainant under oath and any witnesses.

Section 200 says: A Magistrate taking cognizance of an offence on complaint


shall examine upon oath the complainant and the witnesses present, if any, and
the substance of such examination shall be reduced to writing and shall be signed
by the complainant and the witnesses, and also by the Magistrate.

Provided that, when the complaint is made in writing, the Magistrate need not
examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official
duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate
under section 192 after examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.

In MacCulloch vs State, 1974, it was held by SC that the provisions of section


200 are not a mere formality, but have been intended by the legislature to be
given effect to for the protection of the accused persons against unwarranted
complaints.

It is also necessary that to start the trial process, the magistrate must be
competent to take cognizance the alleged offence. Section 201 says that if the
magistrate is not competent to take congnizace of an offence, he shall (a) if the
complaint is in writing, return it for presentation to the proper Court with an
endorsement to that effect; (b) if the complaint is not in writing, direct the
complainant to the proper Court.

To further protect a person from frivolous cases arising from complaints from
private parties, Section 202 empowers a magistrate to inquire into the case
himself or direct an investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding and he can postpone the issue for process for this
purpose.

It is important to note that the "weeding" as envisaged by Section 200-203 is only


applicable to cases where cognizance is taken by the magistrate upon a complaint
by a private party. It is not applicable to cognizance taken upon a police report.

Issue of Process (Section 204)

Once it is determined that a prima facie case exists against the accused, the
magistrate proceeds with the case as per Section 204 by the way of issuing a
process. Which means :

(1) If in the opinion of a Magistrate taking cognizance of an offence there is


sufficient ground for proceeding, and the case appears to be –

(a) a summons-case, he shall issue his summons for the attendance of the
accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for
causing the accused to be brought or to appear at a certain time before
such Magistrate or (if he has no jurisdiction himself) some other Magistrate
having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-
section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons


or warrant issued under sub-section (1) shall be accompanied by a copy of
such complaint.

(4) When by any law for the time being in force any process-fees or other fees
are payable, no process shall be issued until the fees are paid and, if such
fees are not paid within a reasonable time, the Magistrate may dismiss the
complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87
(Section 87: Issue of warrant in lieu of, or in addition to, summons).

Dismissal of a Complaint - Section 203

As mentioned before, upon receiving a complaint, a magistrate can conduct an


inquiry or direct investigation of the complaint under Section 202(1). Section 203
empowers a magistrate to dismiss the complaint, if, after considering the
statements on oath from the complainant or his witnesses or the result of the
inquiry or investigation, he believes that there are no sufficient grounds for
proceeding further. He must record the reasons for dismissal. The magistrate must
apply his mind on the collected statements and inquiry report to determine
whether there is any merit in the complaint. However, as held by SC in Chandra
Deo Singh vs Prokash Chandra Bose, 1963, the test specified by Section 203
for dismissing a complaint is only whether sufficient grounds exist for proceeding
further and not whether sufficient grounds exist for conviction. Thus, even if the
magistrate does not see sufficient grounds for conviction but sees sufficient
ground for proceeding further with the trial, he must not dismiss the complaint. SC
further observed that where there is a prima facie evidence against the accused,
even though the accused might have a defence, the issue of process cannot be
refused because the hearing of defence must be done at the appropriate stage
and at appropriate forum.
What are the preliminary pleas that can be used to bar a trial? "Every
offence shall ordinarily be inquired and tried by court within the local
limits of whose jurisdiction it was committed." Explain the statement and
state its exceptions, if any.

General Concept

When an accused appears or is brought before the court for a trial, he may raise
certain pleas or objections to avoid the trial. For example, he may plead that the
court does not have jurisdiction in the case or that the offence happened too long
ago, or that he has already been tried and acquitted for the same offence. Such
pleas are meant to stop the trial from proceeding further and discharge the
accused. However, such pleas may also be raised by prosecution when the court
does not have competency or jurisdiction in the case.

Such pleas are supposed to be brought forth at the beginning of a trial or as soon
as charges are framed. However, there is no explicit direction in Cr P C regarding
the timing for such pleas.

The follow are the pleas that can be raised –

1. Court without Jurisdiction - Jurisdiction of criminal courts is of two kinds.


One that determines the competency of the court to try a specific offence and
the other that determines whether the offence happened in the territory of the
court, which is also known as territorial jurisdiction.

Competency of the Court to try the offence - Section 26 read with column 6
of the first schedule determines which court can try a given offence. For
example, offences against public tranquility can be tried by any magistrate while
the offence of counterfeiting a government stamp can be tried only by a Court of
Session. Similarly, only the prescribed court or magistrate has the power for all
the offences defined in IPC and other laws.

Thus, any party to the proceeding can raise the plea that the court is not
competent to try the concerned offence. Section 461 provides that it any
magistrate, who is not empowered to try an offence, tries the offender for that
offence, the proceedings shall be void.

Also, an executive magistrate has no power to try for any offence.

Further, as per Section 479, no magistrate or judge can try any case in which he is
a party or in which he is interested. If a trial is initiated in violation of this rule, a
plea can be raised in this regard.

Territorial Jurisdiction - This jurisdiction is determined according to Section 177


to 188 of CrPC. These rules have been enacted mainly for the purpose of
convenience of the court, the investigating agency, the accused, and the victim.
The general concept is that only the court in whose territory the offence or any
part of offence has happened, can try that offence. In simple terms, an offence
committed in Mumbai cannot be tried in a court in Delhi. However, most case are
not as simple as that. For example, A hurts B by a knife in Dewas and D dies
because of the wound in Indore. In this case, both the courts in Dewas and Indore
have jurisdiction. However, if the victim B lives in Bhopal and if FIR of his death is
filed in Bhopal, can A be tried in Bhopal? If not, and if A is tried in Bhopal, A can
raise pleas to bar the trial in Bhopal.

Any violation of the rules of territorial jurisdiction does not ipso factor vitiate the
trial unless it has in fact resulted in failure of justice. However, if a plea of
territorial jurisdiction is raised in the beginning of the trial, then such objection
must be sustained and the trial must be stopped. It cannot gain legitimacy under
Section 462 in that case.

2. Time barred proceedings - Earlier, any offence committed could have been
taken cognizance of after any number of years. This caused grave injustice to the
accused as important witnesses became unavailable, or important evidence was
destroyed by time. For these reasons, CrPC has now incorporated some general
rules for taking cognizance of the crimes within a specific period of their
happening. In general, the principle that offences punishable with only fine or with
imprisonment up to 3 yrs should be tried within a limited time. The provisions
regarding such limitations are contains in Section 467 to 473 and an accused can
take advantage of the appropriate section to raise the plea that the case against
him is barred by the prescribed period of limitation.

Section 468 contains the basic rule which provides that no court shall take
cognizance of an offence punishable with fine only or with imprisonment up to
three yrs after the expiry of the period of limitation.

The period of limitations are –

a) 6 months, if the offence is punishable by fine only.


b) 1 yr, if the offence is punishable with imprisonment of a term not exceeding
1 year.
c) 3 yrs, if the offence is punishable with imprisonment of a term not exceeding
3 year.

These provisions are subject to any other provision which might have been
created explicitly for any particular offence.

Trial of offences of serious nature, i.e. offences which entail punishment of


imprisonment of more than 3 yrs, or death, as of yet, are not barred by any time
limitation.

3. Plea of autrefois acquit and autrefois convict –

Autrefois Acquit and Autrefois Convict is a basic principle of natural


justice. This means that if the offender has already been tried for the exact same
offence before and he has been either acquitted or convict in that trial, he cannot
be tried again on that offence. Art 20(2) of the constitution recognizes this
principle as a fundamental right. It says that no person shall be prosecuted and
punished for the same offence more than once. While the article gives this right
only upon previous conviction, section 300 fully incorporates this principle.
To invoke the principle of Autrefois acquit or Autrefois convict, it is necessary that,
the accused has to establish that he has been tried by a court of competent
jurisdiction.

The offence tried by the first court and the offence tried now must be the same.
The word same offence indicate that the ingredients of the two offences are
identical and it is not sufficient that if the two offences areise from the same set of
facts. (State of Bombay vs. L S Apte)

4. Disabilities of the accused - Under the broad interpretation of Article 21 by


Supreme Court, an accused has a fundamental right to be represented by a legal
practitioner in his trial. If he is indigent, it is the responsibility of the state to
provide a lawyer for him. Section 304 also requires the court to assign a pleader
for the accused in certain situations. If this is not done, a plea can be raised in this
regard. If the trial still proceeds, despite the objects, the trial is deemed to be
vitiated.

Further, when the accused is of unsound mind and consequently incapable of


making his defence, the code requires the court to postpone the trial until the
accused has ceased to be so. The accused can raise this plea for objecting the
trial.

5. Principle of issue estoppel -

6. Application of res judicata -


Discuss the causes of Juvenile Delinquency.
is a child in need of care and protection?
State the procedure followed by Juvenile Justice Court.
State the orders that can be passed for delinquent children under this
act. Describe the main features of Juvenile Justice (Care and Protection)
Act, 2000. What protections are given by the legislature and the judiciary
to juvenile delinquents?

Causes of Juvenile Delinquency


Common sense stuff

Reasons for enacting this act –

WHEREAS the Constitution has, in several provisions, including clause (3) of article 15,
clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary
responsibility of ensuring that all the needs of children are met and that their basic human
rights are fully protected;

AND WHEREAS, the General Assembly of the United Nations has adopted the Convention
on the Rights of the Child on the 20th November, 1989;

AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of
standards to be adhered to by all State parties in securing the best interests of the child;

AND WHEREAS, the Convention on the Rights of the Child emphasizes social reintegration
of child victims, to the extent possible, without resorting to judicial proceedings;

AND WHEREAS, the Government of India has ratified the Convention on the 11th
December, 1992.

AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in
mind the standards prescribed in the Convention on the Rights of the Child, the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the
Beijing rules), the United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (1990), and all other relevant international instruments.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-

Art 15(3) - State can make any special provision for women and children.

Art 39 (e) - It shall be the duty of the state to ensure that the health and strength of
workers, men and women, and the tender age of children are not abused and that citizens
are not forced by economic necessity to enter avocations unsuited to their age or
strength;

Art 39 (f) - It shall be the duty of the state to ensure that children are given opportunities
and facilities to develop in a healthy manner and in conditions of freedom and dignity and
that childhood and youth are protected against exploitation and
against moral and material abandonment.

Art 45/Now Art 21A - The State shall endeavor to provide, within a period of ten years
from the commencement of this Constitution, for free and compulsory education for all
children until they complete the age of fourteen years.
Art 47 - The State shall regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among its primary duties and,
in particular, the State shall endeavor to bring about prohibition of the consumption
except for medicinal purposes of intoxicating drinks and of drugs which are injurious to
health.

Art 51(k) - It shall be the duty of the citizen of India who is a parent or guardian to
provide opportunities for education to his child or, as the case may be, ward between the
age of six and fourteen years.

Child in need of care and protection [OPMUNEVACCC]

As per Section 2(d), "child in need of care and protection" means a child -

a) who is found without any home or settled place or abode and without any
ostensible means of subsistence,
b) who resides with a person (whether a guardian of the child or not) and such person
has threatened to kill or injure the child and there is a reasonable likelihood of the
threat being carried out, or has killed, abused or neglected some other child or
children and there is a reasonable likelihood of the child in question being killed,
abused or neglected by that person,
c) who is mentally or physically challenged or ill children or children suffering from
terminal diseases or incurable diseases having no one to support or look after,
d) who has a parent or guardian and such parent or guardian is unfit or incapacitated
to exercise control over the child,
e) who does not have parent and no one is willing to take care of or whose parents
have abandoned him or who is missing and run away child and whose parents
cannot be found after reasonable inquiry,
f) who is being or is likely to be grossly abused, tortured or exploited for the purpose
of sexual abuse or illegal acts,
g) who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
h) who is being or is likely to be abused for unconscionable gains,
i) who is victim of any armed conflict, civil commotion or natural calamity;

Neglected Child

The term neglected child has been removed from the current JJA and has been replaced
with "Child in need of care and protection" defined above. The old act defines "neglected
juvenile" as a juvenile who-

(i) is found begging; or

(ii) is found without having any home or settled place of abode and without any
ostensible means of subsistence and is destitute;

(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the
juvenile; or

(iv) lives in a brothel or with a prostitute or frequently goes to any place used for the
purpose of prostitution, or is found to associate with any prostitute or any other
person who leads an immoral, drunken or depraved life;
(v) who is being or is likely to be abused or exploited for immoral or illegal purposes or
unconscionable gain;

Section 2(k) - "juvenile" or "child" means a person who has not completed eighteenth
year of age;

Section 2(l) - "juvenile in conflict with law" means a juvenile who is alleged to have
committed an offence;

Section 2(b) - "Begging" means –

i. soliciting or receiving alms in a public place or entering into any private premises for
the purpose of soliciting or receiving alms, whether under any pretence;

ii. exposing or exhibiting with the object of obtaining or extorting alms, any sore,
wound, injury, deformity or disease, whether of himself orof any other person or of
an animal;

Composition and Procedure followed by Juvenile Justice Court.

Composition

As per Section 4

(1) The State Government may constitute for a district or a group of districts specified in
the notification, one or more Juvenile Justice Boards for exercising the powers and
discharging the duties conferred or imposed on such Boards in relation to juveniles in
conflict with law under this act.

(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first
class, as the case may be, and two social workers of whom at least one shall be a woman,
forming a Bench and every such Bench shall have the powers
conferred by the Code of Criminal Procedure, on a Metropolitan Magistrate or, as the case
may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be
designated as the principal Magistrate.

(3) No Magistrate shall be appointed as a member of the Board unless he has special
knowledge or training in child psychology or child welfare and no social worker shall be
appointed as a member of the Board unless he has been actively involved in health,
education, or welfare activities pertaining to children for at least seven years.

(4) The term of office of the members of the Board and the manner in which such member
may resign shall be such as may be prescribed.

(5) The appointment of any member of the Board may be terminated after holding inquiry,
by the State Government, if –

i. he has been found guilty of misuse of power vested under this act,

ii. he has been convicted of an offence involving moral turpitude, and such
conviction has not been reversed or he has not been granted full pardon in
respect of such offence,

iii. he fails to attend the proceedings of the Board for consecutive three months
without any valid reason or he fails to attend less than three fourth of the sittings
in a year.
Section 5 – Procedure

(1) The Board shall meet at such times and shall, observe such rules of procedure in
regard to the transaction of business at its meetings, as may be prescribed.

(2) A child in conflict with law may be produced before an individual member of the Board,
when the Board is not sitting.

(3) A Board may act notwithstanding the absence of any member of the Board, and no
order made by the Board shall be invalid by reason only of the absence of any member
during any stage of proceedings: Provided that there shall be at least two members
including the principal Magistrate present at the time of final disposal of the case.

(4) In the event of any difference of opinion among the members of the Board in the
interim or final disposition, the opinion of the majority shall prevail, but where there is
no such majority, the opinion of the principal Magistrate, shall prevail.

Section 6 - Powers of the Board

(1) Where a Board has been constituted for any district or a group of districts, such Board
shall, have power to deal exclusively with all proceedings under this Act, relating to
juvenile in conflict with law.

(2) The powers conferred on the Board by or under this Act may also be exercised by the
High Court and the Court of Session, when the proceedings comes before them in appeal,
revision or otherwise.

Orders that can be passed for delinquent children

Section 15 - Orders that may be passed regarding a Juvenile

1. Where a Board is satisfied on inquiry that a juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other law for the time being in
force, the Board may, if it thinks so fit,-

(a) allow the juvenile to go home after advice or admonition following appropriate
inquiry against and counseling to the parent or the guardian and the juvenile;

(b) direct the juvenile to participate in group counseling and similar activities;

(c) order the juvenile to perform community service;

(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over
fourteen years of age and earns money;

(e) direct the juvenile to be released on probation of good conduct and placed under
the care of any parent, guardian or other fit person, on such parent, guardian or
other fit person executing a bond, with or without surety, as the Board may require,
for the good behavior and well-being of the juvenile for any period not exceeding
three years;

(f) direct the juvenile to be released on probation of good conduct and placed under
the care of any fit institution for the good behavior and well-being of the juvenile for
any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
i. in the case of juvenile, over seventeen years but less than eighteen years of age
for a period of not less than two years;

ii. in case of any other juvenile for the period until he ceases to be a juvenile :

Provided that the Board may, if it is satisfied that having regard to the nature of the
offence and the circumstances of the case it is expedient so to do, for reasons to be
recorded, reduce the period of stay to such period as it thinks fit.

2. The Board shall obtain the social investigation report on juvenile either through a
probation officer or a recognized voluntary organization or otherwise, and shall take
into consideration the findings of such report before passing an order.

3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the
Board may, if it is of opinion that in the interests of the juvenile and of the public, it is
expedient so to do, in addition make an order that the juvenile in conflict with law shall
remain under the supervision of a probation officer named in the order during such
period, not exceeding three years as may be specified therein, and may in such
supervision order impose such conditions as it deems necessary for the due supervision
of the juvenile in conflict with law .

Provided that if at any time afterwards it appears to the Board on receiving a report from
the probation officer or otherwise, that the juvenile in conflict with law has not been of
good behavior during the period of supervision or that the fit institution under whose care
the juvenile was placed is no longer able or willing to ensure the good behavior and well-
being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in
conflict with law to be sent to a special home.

The Board shall while making a supervision order under sub-section (3), explain to the
juvenile and the parent, guardian or other fit person or fit institution, as the case may be,
under whose care the juvenile has been placed, the terms and conditions of the order
shall forthwith furnish one copy of the supervision order to the juvenile, the parent,
guardian or other fit person or fit institution, as the case may be, the sureties, if any, and
the probation officer.

In case of Municipal Corporation of Delhi vs Rattanlal, 1971, it was held that while
allowing the release of a juvenile, the court should consider the following - circumstances
of the case, circumstances of the accused, age, and family background.

Section 16 Orders that may not be passed against a Juvenile

(1) Notwithstanding anything to the contrary contained in any other law for the time being
in force, no juvenile in conflict with law shall be sentenced to death or life
imprisonment, or committed to prison in default of payment of fine or in default of
furnishing security :

Provided that where a juvenile who has attained the age of sixteen years has
committed an offence and the Board is satisfied that the offence committed is of so
serious in nature or that his conduct and behavior have been such that it would not be
in his interest or in the interest of other juvenile in a special home to send him to such
special home and that none of the other measures provided under this Act is suitable or
sufficient, the Board may order the juvenile in conflict with law to be kept in such place
of safety and in such manner as it thinks fit and shall report the case for the order of
the State Government.

(2) On receipt of a report from a Board under sub-section (1), the State Government may
make such arrangement in respect of the juvenile as it deems proper and may order
such juvenile to be kept under protective custody at such place and on such conditions
as it thinks fit :

Provided that the period of detention so ordered shall not exceed the maximum period
of imprisonment to which the juvenile could have been sentenced for the offence
committed.

In Rejesh Kheton vs State of W B, 1983, it was observed that the main object of the
provision contained in Section 16 of the act is to prevent the juvenile from the contact
of hardened criminals so that they are saved from contamination.

In Sheela Barse vs U of I, AIR 1986, it was held that juveniles should not be held in
jail but in Shelter Homes.

Observation Home - Section 8

Special Home - Section 9

Bail to Juvenile - Section 12

Protections given by the legislature and the judiciary to juvenile


delinquents

Protection by Legislature - The legislature has enacted several laws for the protection of
Juveniles. Most important among them is Juvenile Justice (Care and Protection) Act, 2000.

Legal Protection

Through Juvenile Justice (Care and Protection) Act, 2000, several measures have been
adopted to ensure that a juvenile is not punished or treated like hardened criminals. Some
of the measures are -

a) Hearing of cases involving juvenile by Juvenile Justice Board


b) Bail Provisions for juvenile
c) No prison term to juvenile.
d) No joint proceeding of Juvenile and Non Juvenile
e) Removal of disqualification attached to conviction

Social Protection

a) Juvenile Justice Act also contains measures to ensure that a juvenile in conflict of
law is given opportunities to reform.
b) Establishment of Observation and Special Home
c) Education and Training facilities

Preventive Measures
a) Several acts such as employment of juveniles in dangerous activities, forcing
juveniles to beg, or steal, or giving intoxicating substances to a juvenile, publication
of names or other details of a juvenile in conflict of law in media, have been made
cognizable offences by JJA.
b) Supervision by Probation Officer to ensure that a juvenile is not influenced by bad
elements.
c) Several other acts such as Factories Act, 1948 include provisions for protection of
Juveniles.

Constitutional Provisions

a) Article 21A - Right to education


b) Article 24 Prohibition of employment of children in factories, etc. No child below
the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
c) Article 39 provides that that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and
material abandonment.
d) Article 45 Provision for free and compulsory education for children

Protections given by Judiciary

Judiciary has always been very sympathetic to the cause of Juveniles. Even before
appropriate laws were enacted, Judiciary promoted directives for the protection of
juveniles through its judgment.

For example, it was the judiciary, which emphasized on Education for children by making
it a fundamental right under Article 21.
PROBATION

The Term “Probation “is derived from the Latin word “Probate” or “probo” which means
“to test or to prove” or “I prove”

When a person is convicted of an offence, as a special case by virtue of his age or other
reason is not sent to prison but his kept under the supervision / observation for the
purpose of correcting him as a good citizen, he is said to have been kept on probation.
The official who supervises is called “Probation Officer”.

Therefore, “Probation” means “the conditional suspension of a sentence by the Court, in


selected cases, especially of young offenders, who are not sent to prisons but are
released on probation, on agreeing to abide by certain conditions”.

Earlier, probation was designed only for child offenders (Juvenile delinquents). Now it can
be extended to delinquent of any age(generally upto 21 years).

Morrison Committee defined “probation” as “the submission of an offender while at


liberty to a specified period of supervision by a social case worker, who is an officer of the
court.”

Objective:

a) Save some selected types of offender from the rigours of punishment.


b) Further Probation reduces crime rate and reduces crowd in jails.
c) Aim is reformation of delinquents as responsible citizens in the society.

History

a) Reformative School Act – Dealt with concept of probation


b) CrPC – Sec 562 – contains 155 offences which come under the purview of probation
c) Children Act- made provison for probation
d) Section 562 of Code of CP 1898 was repealed with passing of Probation of Offender
Act, 1958
e) Cr.PC 1973 also made provision for the system of probation (Sec 360)

Advantages:

a) Enables a convicted person to correct himself as a responsible citizen


b) Process is less expensive when compared to institutional treatment
(imprisonment)
c) The PO will be able to make use of all the community facilities for
rehabilitation.

Disadvantages :

a) The PO maybe influenced to furnish a good report so that the person is


released
b) It eliminates fear among child and young delinquents and accelerates crime.
Discuss the aims and objectives of Probation of Offenders Act, 1958.

State the powers of the court regarding release of certain offenders on


probation of good behavior under this act.

Explain the offenses in which a court can and cannot grant the benefit of
probation.

Explain the procedure followed against the offender who breaches the
probation conditions.

Section 360 of CrPC and Section 4 of Probation of Offenders Act both


empower the court to release a convicted offender on probation of good
behavior.

Which section has overriding effect?

Mahatma Gandhi once said, "Hate the crime not the criminal". This means that we
need to eliminate crime and eliminating criminals is not the way to do it. While it is
true that punishment gives a sense of satisfaction to the victims and to the society
in general, it has been observed that in most of the cases punishment, specially
imprisonment, does not actually reform the criminal. In most cases, once a person
comes out of a prison, he gets back to his old ways of being in conflict with the
law. This is true even more with young criminals, whose minds are not fully
mature. They get influenced in the wrong way because of their interaction with
hardened criminals in jails.

One way to counter this problem is to provide opportunities and guidance to


young and first time offenders instead of committing them to jails. The idea behind
such treatment is that, normally, human beings do not resort to crime unless they
are forced due exceptional circumstances. If we want to reduce crime, we should
make sure that chance criminals are given an opportunity to get reformed instead
of turning into hardened criminals. This is the aim behind Probation of Offender's
Act, 1958. It allows the court to take into account the nature of the crime, the age
of the offender, and the circumstances of the crime, and instead of committing the
offender to jail, release him under supervision and guidance of a probation officer.
This ensures that the offender is integrated back into the society.

The act is based on the reformatory approach, which is adopted in many countries
of the world. For example, in USA, almost 60% of the offenders are released on
probation.

The object of probation has been laid down in the judgment of Justice Horwill in
In re B. Titus - S. 562 is intended to be used to prevent young persons from being
committed to jail, where they may associate with hardened criminals, who may
lead them further along the path of crime, and to help even men of mature years
who for the first time may have committed crimes through ignorance or
inadvertence or the bad influence of others and who, but for such lapses, might be
expected to make good citizens. In such cases, a term of imprisonment may have
the very opposite effect to that for which it was intended. Such persons would be
sufficiently punished by the shame of having committed a crime and by the
mental agony and disgrace that a trial in a criminal court would involve.

It must, however, be kept in mind that reformation does not always work. Some
crimes are so abhorrent and some criminals are so unrepentant that it is best to
punish them so that the price of committing the crime keeps them from
committing it again. For some of them, there is no hope for reform, and it is best
to protect the society from them by locking them away for life.

Main Features of the Act / Powers of the court regarding release of


certain offenders

Depending on the circumstances of the case, a court may release the person in
two ways - release after admonishing the person, which is provided in Section 3,
and release on probation of good conduct, which is provided in Section 4. Both
are explained below.

Section 3 : Release After Admonishing

Admonishing means to warn or reprimand. In this mode of release, the court


scolds the person, and in a way, tries to appeal to the good conscious of the
person and releases him. Section 3 says thus:

When any person is found guilty of having committed an offence punishable under
Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of
the Indian Penal Code or any offence punishable with imprisonment for not more
than two years, or with fine, or with both, under the Indian Penal Code or any
other law, and no previous conviction is proved against him and the court by
which the person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence and the character of
the offender, it is expedient so to do, then, notwithstanding anything contained in
any other law for the time being in force, the court may, instead of sentencing him
to any punishment or releasing him on probation of good conduct under section 4,
release him after due admonition.

The conditions required to be released under this section are –

1. The offence must be punishable with imprisonment for less than 2 yrs or
with only fine or with both. Or if the offence is punishable under any of the
Sections 379, 380, 381, 404, and 420.
2. The offender does not have any prior convictions.

If the above conditions are satisfied, then the court must take into consideration
the nature of the crime and the antecedents and character of the offender and if it
thinks suitable, it can release the offender after warning.

Section 4: Release on Probation

As per Section 4, if any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the court by which the person
is found guilty is of opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the offender, it is
expedient to release him on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being in force, the court may,
instead of sentencing him at once to any punishment, direct that he be released
on his entering into a bond, with or without sureties, to appear and receive
sentence when called upon during such period, not exceeding three years, as the
court may direct and in the meantime to keep the peace and be of good behavior.
The section further requires that the offender or his surety has a fixed place of
residence or regular occupation in a place where the court exercises jurisdiction.
Also, before making any such order, the court shall take into consideration the
report, if any, of the probation officer concerned in relation to the case. However,
it is not necessary that the court has to act on probation officers report. It can also
gather information from other source and on its own analysis.

The court may also require the offender to remain under the supervision of a
probation officer during certain period, if it thinks that it is in the interests of the
offender and of the public. It can also impose appropriate conditions which might
be required for such supervision. In case the court does specify such conditional
release, it must require the offender has to enter into a bond, with or without
sureties, enumerating the conditions. The conditions may relate to place of
residence, abstention from intoxicants, or any other matter as the court thinks
appropriate to ensure that the crime is not repeated.

As per Section 5, the Court directing the release of an offender under section 3 or
section 4, may, if it thinks fit, make at the same time a further order directing him
to pay-

(a) such compensation as the court thinks reasonable for loss or injury caused to
any person by the commission of the offence ; and

(b) such costs of the proceedings as the court thinks reasonable.

Offenses in which benefit of probation can and cannot be granted

Section 4, as described above, gives a general direction to the court for deciding
when and when not to give the benefit of probation. The words, "if the court is of
the opinion" basically give discretionary power to the court in this respect.

Section 6, however, tries to impress upon the court to lean in favor of giving
benefit in cases of young and immature adults. When any person under twenty-
one years of age is found guilty of having committed an offence punishable with
imprisonment (but not with imprisonment for life), the court by which the person is
found guilty shall not sentence him to imprisonment unless it is satisfied that,
having regard to the circumstances of the case including the nature of the offence
and the character of the offender, it would not be desirable to deal with him under
section 3 or section 4, and if the court passes any sentence of imprisonment on
the offender, it shall record its reasons for doing so. For the purpose of satisfying
itself whether it would not be desirable to deal under section 3 or section 4, the
court shall call for a report from the probation officer and consider the report, if
any, and any other information available to it relating to the character and
physical and mental condition of the offender.

Thus, even though no mathematical rule is given, the general intention of the
legislature is to give the benefit of probation as much as possible.

In Jugal Kishore Prasad vs State of Bihar 1972, the Supreme Court observed
that the object of the Probation of Offenders Act, "is in accordance with the
present trend in the field of penology, according to which efforts should be made
to bring about correction and reformation of the individual offenders and not to
resort to retributive justice. Modern criminal jurisprudence recognizes that no one
is a born criminal and that a good many crimes are the product of socio-economic
milieu."
In absence of a precise formula to determine when and when not the benefit of
probation can be given, we have to look at SC court judgments to understand what
kind of offenses are eligible for this benefit. SC has accepted the applicability of
probation for many kinds of offences.

For example, in Isherdas v. State of Punjab, the Supreme Court held that the
Probation of Offenders Act was applicable to the offenses under the Prevention of
Food Adulteration Act, 1954.

In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR


1976, the appellant was below 21 years of age. The appellant was at one time a
well known child film actor and won several awards for acting in films.
Subsequently he fell in bad company and took to evil ways. SC held that even if
the point relating to Section 6 is not raised before the High Court, the court was
bound to take notice of the provisions of the section and give its benefit to the
applicant. It further held that Section 6 lays down an injunction not to impose a
sentence of imprisonment on a reason who is under 21 years of' age and if found
guilty of having committed an offence punishable with imprisonment other the
that for if unless it is satisfied that it would not be desirable to deal with him under
Section 3 or Section 4. This inhibition on the power of the court to impose a
sentence of imprisonment applies not only at the state of trial but also at the
stage of High Court or any other court when the case comes before it in appeal or
revision.

However, in Uttam Singh vs Delhi Administration, 1971, the appellant was of


36 yrs of age and was caught with 3 sets of playing cards and obscene
photographs. SC refused to allow him the benefit of release on probation having
regards to his age and nature of crime.

There have been cases where the court has let of even rapists on probation and
there have been cases where even minor offenses have not been given the benefit
of probation. It can be said that this benefit is given on case to case basis after
looking at the peculiarities of the case. It is not possible to categorize the offences
in this respect.

Section 9: Procedure when the offender breaches the conditions of


Probation

As per Section 9, if the court which passes an order under section 4 in respect of
an offender or any court which could have dealt with the offender in respect of his
original offence has reason to believe, on the report of a probation officer or
otherwise, that the offender has failed to observe any of the conditions of the
bond or bonds entered into by him, it may issue a warrant for his arrest or may, if
it thinks fit, issue a summons to him and his sureties, if any, requiring him or them
to attend before it at such time as may be specified in the summons.

The court before which an offender is so brought or appears may either remand
him to custody until the case is concluded or it may grant him bail, with or without
surety, to appear on the date which it may fix for hearing.

Section 9 (3) : If the court, after hearing the case, is satisfied that the offender
has failed to observe any of the conditions of the bond or bonds entered into by
him, it may forthwith

(a) sentence him for the original offence; or


(b) where the failure is for the first time, then, without prejudice to the
continuance

in force of the bond, impose upon him a penalty not exceeding fifty rupees.

Section 9 (4) If a penalty imposed under clause (b) of sub-section (3) is not paid
within such period as the court may fix, the court may sentence the offender for
the original offence.

It is important to note that the sentencing in respect of which the probation is


given is merely suspended when the offender is released on probation under
Section 4. Thus, if any condition of the probation is violated, the court may
sentence the offender for the original offence without conducting a fresh trial.

Section 13: Probation Officer and his duties

As per Section 13, a probation officer under this Act shall be –

(a) a person appointed to be a probation officer by the State Government or


recognised as such by the State. Government ; or

(b) a person provided for this purpose by a society recognized in this behalf by the
State Government; or

(c) in any exceptional case, any other person who, in the opinion of the court, is fit
to act as a probation officer in the special circumstances of the case.

Section 14 - Duties of probation officers

A probation officer shall, subject to such conditions and restrictions, as may be


prescribed,-

(a) inquire, in accordance with any directions of a court, into the circumstances
or home surroundings of any person accused of an offence with a view to
assist the court in determining the most suitable method of dealing with him
and submit reports to the court.
(b) supervise probationers and other persons placed under his supervision and,
where necessary, endeavor to find them suitable employment ;

(c) advise and assist offenders in the payment of compensation or costs


ordered by the court ;

(d) advise and assist, in such cases and in such manner as may be prescribed,
persons who have been released under section 4; and

(e) perform such other duties as may be prescribed.

Section 360 of CrPC and Section 4 of Probation of Offenders Act


As per Section 19, in the states where Probation of Offenders Act is enacted,
Section 360 of CrPC shall cease to apply. Thus, it is clear that Section 4 of
Probation of Offenders Act has overriding effect.

Section 360 of CrPC - Order to release on probation of good conduct or after


admonition :--(1)When any person not under twenty-one years of age is convicted
of an offence punishable with fine only or with imprisonment for a term of seven
years or less, or when any person under twenty-one years of age or any woman is
convicted of an offence not punishable with death or imprisonment for life, and no
previous conviction is proved against the offender, if it appears to the Court before
which he is convicted, regard being had to the age, Character or antecedents of
the offender, and to the circumstances in which the offence was committed, that it
is expedient that the offender should be released on probation of good conduct,
the Court may, instead of sentencing him at once to any punishment, direct that
he be released on his entering into a bond, with or without sureties, to appear and
receive sentence when called upon during such period (not exceeding three years)
as the Court may direct, and in the meantime to keep the peace and be of good
behavior.
Q. What provisions are given in CrPC for compelling appearance in
courts? What do you know about Summons in this context? Describe the
procedure for issue and service of a Summons. How can a Summons be
served on a govt. employee or outside local limits?

Processes for compelling appearance


To meet the ends of justice, it is critical to produce the accused and other witness
or related parties before the court whenever needed. If the accused is found guilty
at the conclusion of the trial, he must be present in person to receive the
sentence. Also, his presence is necessary if imprisonment is to be enforced.
Further, the supremacy of the law will be questionable if there is no formal process
to bring the required persons before the court. For this reason, Chapter VI
(Sections 61 to 90) of CrPC provides three ways for compelling the appearance
of any person who is required to be present in the court, in the court -
1. Summons,
2. Warrant, and
3. Proclamation for person absconding
While Summons is an order of the court to the person to appear before it, Warrant
is an order of the court given to a third person to bring the person who is required
to be present in the court, in the court. Which method is to be used in a particular
situation depends on the judicial officer, who is guided by the provisions of this
code. The third method is used when the person has absconded or is in any other
way avoiding arrest, in which case the Court may publish a written proclamation
requiring him to appear at a specified place and at a specified time not less than
thirty days from the date of publishing such proclamation

The code classifies all criminal cases into summons cases and warrant cases. A
case is a warrant case if the offence is punishable by death, imprisonment for life
or imprisonment for more than two years. A summons case is a case that is not a
warrant case. Thus, the basis of classification is the seriousness of the offence.
Since summons case contains a lesser sentence, there is less probability of the
accused violating the court order. Therefore, generally, a summons is issued for a
summons case and a warrant is issued for a warrant case. However, when a
summons is not productive in making a person appear before the court, the count
may issue a warrant to a police officer or any other person to forcibly produce the
required person before the court.

Summons
A Summons is a process issued by a Court, calling upon a person to appear before
a Magistrate. It is used for the purpose of notifying an individual of his legal
obligation to appear before the Magistrate as a response to a violation of the law.
It is addressed to a defendant in a legal proceeding. Typically, the summons will
announce to the person to whom it is directed that a legal proceeding has been
started against that person, and that a file has been started in the court records.
The summons announces a date and time on which the person must appear in
court.

A person who is summoned is legally bound to appear before the court on the
given date and time. Willful disobedience is liable to be punished under Section
174 of IPC. It is a ground for contempt of court.

As per Section 61, every summons issued by a Court under this Code shall be in
writing and in duplicate. It must be signed by the presiding officer of the Court or
by such other officer as the High Court may, from time to time, by rule direct. It
must also bear the seal of the Court.

Procedure for issuing a Summons


When a request in appropriate format is made to the court for compelling the
appearance for a person, the court either rejects the request or issues a
Summons. As per Section 204, if in the opinion of the magistrate taking
cognizance of the offence, there is sufficient ground for proceeding, he shall issue
a summons if it is a summons case. If it is a warrants case, he may issue a warrant
or a summons as he thinks fit. However, Section 87, empowers a magistrate to
issue a warrant even if the case is a summons case if he has reason to believe that
the summons will be disobeyed. He must record his reasons for this action.

The summons should contain adequate particulars such as the date, time, and
place, of the offence charged. It should also contain the date, time, and place
where the summoned person is supposed to appear. The standard format of a
summons is given in Form 1 of Second schedule.

As per Section 205, a magistrate issuing the summons may permit the accused
to appear by his lawyer if he sees reason to do so.

Procedure for serving a Summons


CrPC describes the procedures for serving a summons on various categories of
individuals - a person, a corporate body, a government servant, and a person
residing outside the jurisdiction of the court.

Section 62 describes the procedure for serving a Summons on a person as


follows -
(1) Every summons shall be served by a police officer, or subject to such rules as
the State Government may make in this behalf, by an officer of the Court issuing it
or other public servant.
(2) The summons shall, if practicable, be served personally on the person
summoned, by delivering or tendering to him one of the duplicates of the
summons.
(3) Every person on whom a summons is so served shall, if so required by the
serving officer, sign a receipt therefore on the back of the other duplicate.

In case of Danatram Karsanal, 1968, it was held that summons should not only
be shown but a copy of it be left, exhibited, delivered, or tendered, to the person
summoned. In a case, where a copy was tendered to the person, it was held that
the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be
summoned is employed abroad, the court can send summons to the concerned
embassy official for the purpose of service since the embassy official is also a
public servant. Merely affixing the summon on a conspicuous part of the house will
not amount to service of the summon.

Service of summons on corporate bodies and societies (Section 63) -


Service of a summons on a corporation may be effected by serving it on the
secretary, local manager or other principle officer of the corporation, or by letter
sent by registered post, addressed to the chief officer of the corporation in India,
in which case the service shall be deemed to have been effected when the letter
would arrive in ordinary course of post. In this section, "corporation" means an
incorporated company or other body corporate and includes a society registered
under the Societies Registration Act, 1860.

In the case of Central Bank of India vs Delhi Development Authority, 1981,


it was held that a Branch Manager is a local manager and if he has been served
the service shall be deemed to have been effected on the company itself.

Service when persons summoned cannot be found (Section 64) -


Where the person summoned cannot, by the exercise of due diligence, be found,
the summons may be served by leaving one of the duplicates for him with some
adult male member of his family residing with him, and the person with whom the
summons is so left shall, if so required by the serving officer, sign a receipt
therefor on the back of the other duplicate. A servant is not considered to be a
member of the family within the meaning of this section.

Procedure when service cannot be effected as before provided (Section


65) -
If service cannot by the exercise of due diligence be effected as provided in
section 62, section 63, or section 64, the serving officer shall affix one of the
duplicates of the summons to some conspicuous part of the house or homestead
in which the person summoned ordinarily resides; and thereupon the Court, after
making such inquiries as it thinks fit, may either declare that the summons has
been duly served or order fresh service in such manner as it considers proper.

The service of summons on a witness can also be done by post. As per Section
69 -
(1) Notwithstanding anything contained in the preceding sections of this Chapter,
a Court issuing a summons to a witness may, in addition to and simultaneously
with the issue of such summons, direct a copy of the summons to be served by
registered post addressed to the witness at the place where he ordinarily resides
or carries on business or personally works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an
endorsement purporting to be made by a postal employee that the witness
refused to take delivery of the summons has been received, the Court issuing the
summons may declare that the summons has been duly served.

Service of summons on a Govt. employee (Section 66) -


Section 66 details the procedure for serving a summons on a Government
employee as follows -
(1) Where the person summoned is in the active service of the Government, the
Court issuing the summons shall ordinarily sent it in duplicate to the head of the
office in which such person is employed; and such head shall thereupon cause the
summons to be served in the manner provided by section 62, and shall return it to
the Court under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.

Service of summons outside local limits (Section 67) -


When a Court desires that a summons issued by it shall be served at any place
outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a
Magistrate within whose local jurisdiction the person summoned resides, or is
believed to be there, served.
Q. What is a Charge? What are the contents of a Charge? Discuss the
effects of errors in a Charge? How is a Charge different from FIR?

Charge
As per Wharton's law Lexicon, Charge means to prefer an acusation against some
one. To charge a person means to accuse that person of some offence. However,
charge is not a mere accusation made by a complainant or an informant. A charge
is a formal recognition of concrete accusations by a magistrate or a court based
upon a complaint or information against the accused. A charge is drawn up by a
court only when the court is satisfied by the prima facie evidence against the
accused. The basic idea behind a charge is to make the accused understand what
exactly he is accused of so that he can defend himself. A charge gives the accused
accurate and precise information about the accusation against him.A charge is
written in the language of the court and the fact that the charge is made means
that every legal condition required by law to constitute the offence charged is
fulfilled in the particular case.

It is a basic principle of law that when a court summons a person to face a charge,
the court must be equipped with at least prima facie material to show that the
person being charged is guilty of the offences contained in the charge. Thus, while
framing a charge, the court must apply its mind to the evidence presented to it
and must frame a charge only if it is satisfied that a case exists against the
accused. In the case of State vs Ajit Kumar Saha 1988, the material on record
did not show a prima facie case but the charges were still framed by the
magistrate. Since there was no application of mind by the magistrate, the
order framing the charges was set aside by the High Court.

According to Section 2(b) of Cr P C, when a charge contains more than one heads,
the head of charges is also a charge.

Contents of a Charge
Section 211 specifies the contents of a Charge as follows [ONDSLP] -
(1) Every charge under this Code shall state the offence with which the accused is
charged.
(2) If the law that creates the offence gives it any specific name, the offence may
be described in the charge by that name only.
(3) If the law that creates the offence does not give it any specific name so much
of the definition of the offence must be stated as to give the accused notice of the
matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been
committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a 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.

A charge must list the offence with which the person is charged. It must specify
the law and the section against which that offence has been done. For example, if
a person is charged with Murder, the charge must specify Section 300 of Indian
Penal Code. If the law gives a name to that offence, the charge must also specify
that name and if the law does not specify any name for that offence, the charge
must specify the detail of the offence from the definition of the offence so that the
accused is given a clear idea of it.

In many cases, on offender is given a bigger sentence for subsequent offence. In


such cases, the charge must also state the date and place of previous conviction
so that a bigger punishment may be given.

Illustrations -

(a) A is charged with the murder of B. This is equivalent to a statement that A's act
fell within the definition of murder given in sections 299 and 300 of the Indian
Penal Code (45 of 1860); that it did not fall within any of the general exceptions of
the said Code; and that it did not fall within any of the five exceptions to section
300, or that, if it did fall within Exception 1, one or other of the three provisos to
that exception applied to it.
(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with
voluntarily causing grievous hurt to B by means of an instrument for shooting. This
is equivalent to a statement that the case was not provided for by section 335 of
the said Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal
intimidation, or using a false property-mark. The charge may state that A
committed murder, or cheating, or theft, or extortion, or adultery, or criminal
intimidation, or that he used a false property-mark, without reference to the
definition, of those crimes contained in the Indian Penal Code; but the sections
under which the offence is punishable must, in each instance, be referred to in the
charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with
intentionally obstructing a sale of property offered for sale by the lawful authority
of a public servant. The charge should be in those words.

Time and Place of the offence


Further, as per section 212, the charge must also specify the essential facts such
as time, place, and person comprising the offence. For example, if a person is
charged with Murder, the charge must specify the name of the victim and date
and place of the murder. In case of Shashidhara Kurup vs Union of India
1994, no particulars of offence were stated in the charge. It was held that the
particulars of offence are required to be stated in the charge so that the accused
may take appropriate defence. Where this is not done and no opportunity is
afforded to the accused to defend his case, the trial will be bad in law for being
violative of the principles of natural justice.

It is possible that exact dates may not be known and in such cases, the charge
must specify information that is reasonably sufficient to give the accused the
notice of the matter with which he is charged. In cases of criminal breach of trust,
it will be enough to specify gross sum or the dates between which the offence was
committed.

Manner of committing the offence


Some times, even the time and place do not provide sufficient notice of the
offence which which a person is charged. In such situations, Section 213,
mandates that the manner in which the offence was made must also be specified
in the charge. It says that when the nature of the case is such that the particulars
mentioned in sections 211 and 212 do not give 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.

Illustrations-

(a) A is accused of the theft of a certain article at a certain time and place the
charge need not set out the manner in which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set
out the manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge
must set out that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge or his public
functions at a given time and place. The charge must set out the manner
obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not
state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save
punishment. The charge must set out the disobedience charged and the law
infringed.

Effects of errors in a Charge


In general, an error in a Charge is not material unless it can be shown that the
error misled the accused or that the error caused injustice. Section 215 says, "No
error in stating either the offence or the particulars required to be stated in the
charge, and no omission to state the offence shall be regarded at any stage of the
case as material, unless the accused was in fact misled by such error or omission,
and it has occasioned a failure of justice."

Illustrations:
(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with
"having, been in possession of counterfeit coin, having known at the time when he
became possessed thereof that such coin was counterfeit," the word "fraudulently"
being omitted in the charge. Unless it appears that A was in fact misled by this
omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set
out in the charge, or is set out incorrectly. A defends himself, calls witnesses and
gives his own account of the transaction. The court may infer from this that the
omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set
out in the charge. There were many transactions between A and B, and A had no
means of knowing to which of them the charge referred, and offered no defence.
Court may infer from such facts that the omission to set out the manner of was, in
the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact,
the murdered person's name was Haidar Baksh, and the date of the murder was
the 20th January. 1882. A was never charged with any murder but one, and had
heard the inquiry before the Magistrate, which referred exclusively to the case of
Haidar Baksh. The court may infer from these facts that A was not misled, and that
the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and
Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882.
When charged for the murder of Haidar Baksh, he was tried for the murder of
Khoda Baksh. The witnesses present in his defence were witnesses in the case of
Haidar Baksh. The court may infer from this that A was misled, and that the error
was material.

The above illustrations show that when the accused in not misled, the error is not
material. For example, in the case of Rawalpenta Venkalu vs State of
Hyderabad, 1956, the charge failed to mention the Section number 34 of IPC but
the description of the offence was mentioned clearly. SC held that the the section
number was only of acedemic significance and the ommission was immaterial.

Section 464 further provides that an order, sentence, or finding of a court will not
be deemed invalid merely on the ground that no charge was framed or on the
ground of any error, omission or irregularity in the charge including any misjoinder
of charges, unless in the opinion of the court of appeal, confirmation, or revision,
a failure of justice has in fact happened because of it. If such a court of appeal,
confirmation, or revision find that a failure of justice has indeed happened, in case
of omission, it may order that a charge be immediately framed and that the trial
be recommenced from the point immediately after the framing of the charge, and
in case of error, omission, or irregularity in the charge, it may order new trial to be
held upon a charge framed in whatever manner it thinks fit.

As is evident, the object of these sections is to prevent failure of justice where


there has been only technical breach of rules that does not affect the root of the
case as such. As held in the case of Kailash Gir vs V K Khare, Food Inspector,
1981, the above two sections read together lay down that whatever be the
irregularity in framing the charge, it is not fatal unless there is prejudice caused to
the accused.

Further, Section 216 allows the court to alter the charge anytime before the
judgement is pronounced.

Section 216:
(1) Any court may alter or add to any charge at any time before judgment is
pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately
with the trial is not likely, in the opinion of the court to prejudice the accused in his
defence or the prosecutor in the conduct of the case the court may, in its
discretion, after such alteration or addition has been made, proceed with the trial
as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is
likely, in the opinion of the court to prejudice the accused or the prosecutor as
aforesaid, the court may either direct a new trial or adjourn the trial for such
period as may be necessary.
(5) lf the offence stated in the altered or added charge is one for the prosecution
of which previous section is necessary, the case shall not be proceeded with until
such sanction is obtained, unless sanction had been already obtained for
a prosecution on the same facts as those on which the altered or added charge is
founded.

Thus, even if there is an error in a charge, it can be corrected at a later stage. An


error in a charge is not important as long as the accused in not prejudiced and
principles of natural justice are not violated.

Difference between Charge and FIR


A First Information Report is a description of the situation and the act that
constitutes a cognizable offence as given to the office in charge of a police station
by any person. Such information is signed by the person giving the information. If
the information is given orally, it is reduced in writing by the officer in charge, read
over to the informant, and then signed by the person. The substance of this
information is also entered into a register which is maintained by the officer. This
is the first time when an event is brought to the attention of the police. The
objective of the FIR is to put the police in motion for investigating the occurance of
an act, which could potentially be a cognizable offence.

An FIR is a mere allegation of the happening of a cognizable offence by any


person. It provides a description of an event but it may not necessarily provide
complete evidence. No judicial mind has to be applied while writing the FIR.
However, upon receipt of an FIR, the police investigates the issue, collects
relevant evidence, and if necessary, places the evidence before a magistrate.
Based on these preliminary findings of the police, the magistrate then formally
prepares a charges , with which the perpetrator is charged.
Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the
offences but Charge is a precise formulation of the offences committed. An FIR is a
description of an event, while a Charge is a description of the offences committed
in that event. An FIR may or may not name an offender but a charge is always
against a person. An FIR is always of a cognizable offence, but a charge may also
include a non-cognizable offence.

Q. Explain the principle of separate charges for distinct offences. Are


there any exceptions? (sec 218, 219, 220, 221, 223). When can multiple
offences be charged separately, when can they be tried in the
same/different trial? What do you understand by Joinder of charges?

The initial requirement in conducting a fair trial in criminal cases is a precise


statement of the charges of the accused. This requirement is ensured by CrPC
through Sections 211 to 214, which define the contents of a charge. Precise
formulation of charges will amount to nothing if numerous unconnected charges
are clubbed together and tried together. To close this gap, Section 218
enunciates the basic principle that for every distinct offence there should be a
separate charge and that every such charge must be tried separately.

Section 218 says thus -


(1) For every distinct offence of which any person is accused there shall be a
separate charge and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires
and the Magistrate is of opinion that such person is not likely to be prejudiced
thereby the Magistrate may try together all or any number of the charges framed
against such person.
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another
occasion. A must be separately charged and separately tried for the theft and
causing grievous hurt.

The object of Section 218 is to save the accused from being frustrated in his
defense if distinct offences are lumped together in one charge or in multiple
charges but tried in the same trial. Another reason is that the court may become
prejudiced against the accused if he were tried in one trial for multiple charges
resting on different evidence since it might be difficult for the court not be get
influenced on one charge by evidence against him on other charges.
It must be noted that Section 218 says "distinct offences" must be charged and
tried separated. It does not say "every offence" or "each offence". It has been held
in Banwarilal Jhunjhunwala vs Union of India AIR 1963, that "distinct
offence" is different from "every offence" and "each offence". Separate charge is
required for distinct offence and not necessarily for every offence or each offence.
Two offences are distinct if they are not identical and are not in any way
interrelated. A distinct offence may distinguished from other offences by
difference in time or place of commitment, victims of the offence, or by difference
in the sections of the law which make the acts as offence.
However, a strict observance to Section 218 will lead to multiplicity of trials, which
is also not desirable. Therefore sections 219 to 223 provide certain exceptions to
this basic rule. These are as follows -
[3TBDGDJ]

Exception 1. Three offences of the same kind within a year - Section 219 -
When a person is accused of more than one offences of the same kind within a
span of twelve months, he may be charged and tried at one trial for any number of
such offences not exceeding three. For example, if a person is accused of theft in
three different homes in the span 12 months, he can be charged with all the three
at once and tried at the same trial. The period of 12 months is counted from the
occurance of the first offence up to the last offence.
An offence is considered to be of the same kind if it is punishable by the same
amount of punishment under the same section of IPC or of the local or special law.
Further, if the attempt to commit an offence is an offence, then it is considered an
offence of the same kind for the purpose of this section.

Exception 2. Offences committed in the course of same transaction -


Section 220(1) - If a person commits multiple offences in a series of acts that
constitutes one transaction, he may be charged with and tried in one trial for
every such offence. The code does not define the meaning of the term transaction.
However, it is well accepted that a precise definition of transaction is not possible
and even Supreme Court has not attempted to define it. In case of State of AP vs
Cheemalapati Ganeshwara Rao, AIR 1963, SC observed that, it would always
be difficult to define precisely what the expression means. Whether a transaction
is to be regarded as same would depend upon the facts of each case. But is is
generally thought that were their is proximity of time, place, or unity of purpose
and design or continuity of action in a series of acts, it may be possible that they
form part of the same transaction. It is however not necessary that every one of
these elements should coexist for considering the acts as part of the same
transaction.
For example, A commits house-breaking by day with intent to commit adultery,
and commits in the house so entered, adultery with B's wife. A may be separately
charged with, and convicted of, offences under sections 454(Lurking house
trespass or house breaking with an intention to commit offence punishable with
imprisonment) and 497(Adultery) of the Indian Penal Code.

Exception 3 - Offences of criminal breach of trust or dishonest


misappropriation of property and their companion offences of
falsification of accounts - Section 220(2) - Usually the offence of criminal
breach of trust or dishonest misappropriation of property is committed with the
help of offence of falsification of accounts to conceal the main offence. This
section allows such offences to be charged with and tried at one trial.

Exception 4 - Same act falling under different definitions of offences -


Section 220(3) - If an act constitutes an offence under two or more separate
definitions of any law in force, the person may be charged with and tried at one
trial for each of the offences. For example, A wrongfully strikes B with a cane. This
act constitutes an offence as per Section 323 (Voluntarily causing hurt) as well as
Section 252 (Assult or criminal force otherthan on grave provocation). Thus, the
person may be charged with both and tried for both the offences at the same trial.

Exception 5 - Acts forming an offence, also constituting different


offences when taken separately or in groups - Section 220(4) - When
several acts together constitute an offence and those acts, which taken
individually or in groups, also constitune another offence or offences, the person
committing those acts may be be charged with and tried at one trial. For example,
A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be
separately charged, with and convicted of offences under sections 323(Voluntarily
causing hurt), 392(Robbery) and 394(Voluntarily causing hurt while committing
robbery) of the Indian Penal Code.

Exception 6 - Where it is doubtful what offence has been committed -


Section 221 - If a single act or a series of acts is of such nature that it is doubtful
which of the several offence the facts of the case will constitute, the accused may
be charged with having committed all or any of such offences and all or any of
such charges may be tried at once. Further, in such a situation, when a person is
charged with an offence but according to evidence it appears that he committed
another offence, he may be convicted of the offence which he is shown to have
committed even if he is not charged with that offence. For example, A is accused
of an, Act which may amount to theft, or receiving stolen property, or criminal
breach of trust or cheating. He may be charged with theft, receiving stolen
property, criminal breach of trust and cheating, or he may be charged with having
committed theft, or receiving stolen property or criminal breach of trust or
cheating.
Further, in the same case mentioned, lets say, A is only charged with theft and it
appears that he committed the offence of criminal breach of trust, or that of
receiving stolen goods. He may be convicted of criminal breach of trust of
receiving stolen goods (as the case may be) though he was not charged with such
offence.

Another illustration is as follows - A states on oath before the Magistrate that he


saw B hit C with a club. Before the Sessions Court A states on oath that B never hit
C. A may be charged in the alternative and convicted of intentionally giving false
evidence, although it cannot to be proved which of these contradictory statements
was false.

Exception 7 - Certain persons may be charged jointly - Section 223 - The


following persons may be charged and tried together, namely:-
(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, such offence;
(c) persons accused of more than one offence of the same kind, within the
meaning of section 219 committed by them jointly within the period of 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 possession of which is alleged
to have been transferred by any such offence committed by the first-named
persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal
Code (45 of 1860) or either of those sections in respect of stolen property the
possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45
of 1860) relating to counterfeit coin and persons accused of any other offence
under the said Chapter relating to the same coin, or of abetment of or attempting
to commit any such offence; and the provisions contained in the former part of
this Chapter shall, so far as may be, apply to all such charges :

Provided that where a number of persons are charged with separate offences and
such persons do not fall within any of the categories specified in this section, the
Magistrate may, if such persons by an application in writing, so desire, and if he is
satisfied that such persons would not be prejudicially affected thereby, and it is
expedient so to do, try all such persons together.