Module 3

MODULE 3

COGNIZANCE AND TRIAL

3.1. POWER OF THE COURTS TO TAKE COGNIZANCE OF OFFENCES

The Code does not define the term “cognizance of offence” or “taking
cognizance of an offence”, although the meaning of the term is well settled
by the Courts. This is the process by which the entire charge sheet filed by
the police along with the case diary and other evidence gathered during the
course of the investigation is submitted to the magistrate to determine
whether there is an actual case at hand, or whether the charges are frivolous.
Therefore, the cognizance-taking magistrate acts as a check on cases to
ensure that the trial courts are not overburdened and that the appropriate
charges are framed to the appropriate trial court.

Therefore, the magistrate “applies his mind” to the suspected commission of
an offence for the purpose of proceeding to take subsequent steps (such as
scrutinizing the complaint, issue of process etc) towards inquiry and trial.
When a Magistrate applies his mind for ordering an investigation under
Section 156(3) or issuing a search warrant, he cannot be said to have taken
cognizance of the offence.

“Applies His (or Her) Mind”:

“What is taking cognizance has not been defined in the Criminal
Procedure Code and I have no desire to attempt to define it. It seems to
me clear, however, that before it can be said that any magistrate has
taken cognizance of any offence under Section 190(1)(a) Criminal

Procedure Code, he must not only have applied his mind to the
contents of the petition but he must have done so for the purpose of
proceeding in a particular way as indicated in the subsequent
provisions of this Chapter - proceeding under Section 200 and
thereafter sending it for inquiry and report under Section 202. When
the Magistrate applies his mind not for the purpose of proceeding
under the subsequent sections of this Chapter, but for taking action of
some other kind, e.g.,ordering investigation under Section 156(3),or
issuing a search warrant for the purpose of the investigation, he cannot
be said to have taken cognizance of the offence.”

- Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani
Kumar Banerjee

Section 190:

(1) Subject to the provisions of this Chapter, any Magistrate of the first class,
specially empowered in this behalf under sub- section (2), may take
cognizance of any offence-

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon it police report of such facts;

(c) Upon information received from any person other than a police officer, or
upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second
class to take cognizance under sub-section (1) of such offences as are within
his competence to inquire into or try.

“May” Take Cognizance:

“We are unable to construe the word 'may' in Section 190 to mean
'must.' The reason is obvious. A complaint disclosing cognizable
offences may well justify a Magistrate in sending the complaint, under
Section 156(3) to the police for investigation. There is no reason why
the time of the Magistrate should be wasted when primarily the duty to
investigate in cases involving cognizable offences is with the police. On
the other hand, there may be occasions when the Magistrate may
exercise his discretion and take cognizance of a cognizable offence.”

– Gopal Dass Sindhi v. State of Assam AIR 1961 SCC 986.

3.2. POWER TO TAKE COGNIZANCE

Any Magistrate of the First Class may take cognizance of any offence. Any
Magistrate of the Second Class, if specially so empowered by the CJM, may
take cognizance of such offences as are within his competence to inquire into
or try. Except as otherwise expressly provided by the Code or by any other
law, a Sessions Court is not to take cognizance of any offence as a court of
original jurisdiction unless the case has been committed to it by a Magistrate.

Taking Cognizance After Lapse of Several Years:

“The FIR in the instant case was registered against the applicant on 7-
4-86…ground was taken by the applicant for quashing the proceedings
on the ground of delay as the matter was initiated in 1986 and a charge
was ordered to be framed in 1997.. It was for the Court prima facie to
appreciate the materials and to take cognizance and the Court had

taken cognizance and the case has reached the stage of charge-sheet
and a judicial decision has come from the court of sessions that
materials were there not only for taking cognizance but for framing
charge as well. The order of cognizance and the order dated 25-6-98
are, therefore, not against the principles of law and the proceedings
cannot be quashed.”
– 1999 Cri LJ 1264.

Section 473: Condoning the Delay :
“Section 473 confers power on the Court taking cognizance after the
expiry of the period of limitation, if it is satisfied on the facts and in the
circumstances of the case that the delay has been properly explained
and that it is necessary so to do in the interest of justice…This
discretion conferred on the Court has to be exercised judicially and on
well recognised principles. This being a discretion conferred on the
Court taking cognizance, where-ever the Court exercises this
discretion, the same must be by a speaking order, indicating the
satisfaction of the Court that the delay was satisfactorily explained and
condonation of the same was in the interest of justice...”

- State of H.P. v. Tara Dutt (2000) 1 SCC 230.

Section 191: Transfer of Case: When a Magistrate takes cognizance of an
offence under clause (c) of sub-section (I) of section 190, the accused shall,

before any evidence is taken, be informed that he is entitled to have the case
inquired into or tried by another Magistrate, and if the accused or any of the
accused, if there be more than one, objects to further proceedings before the
Magistrate taking cognizance, the case shall be transferred to such other
Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

A failure to tell the accused of his right to be tried by another Magistrate is an
illegality that vitiates the trial. Further, the refusal of the accused person’s
request for transfer is illegal.

3.3. LIMITATIONS ON THE POWER TO TAKE COGNIZANCE

Section 195(1)(a): Prosecution for Contempt of Lawful Authority of Public
Servants:

After reading the section, consider the following case:

Tejpal is one of the seven inmates at Vasco's Sada sub jail, located 35 km
from here, who were found with a mobile phone during a surprise raid on
Sunday (Feb 23). Tejpal, police said, was booked late Thursday under
Sections 120 (b), 130 and 188 IPC and violation of other sections of the
Prison Act.

Chief Minister Manohar Parrikar said Tejpal's prison cell was raided
following a tip-off by journalists based in Delhi, who informed the
government about the Tehelka founder making calls to the national capital
every morning.

Section 195(1)(b): Prosecution for documents given as False Evidence:
In order to take cognizance of offences relating to fabricating false evidence,
false statement submitted in any Court etc., a complaint in writing of that
Court, or of some other Court to which that Court is subordinate is required.
The purpose of this section is to bar private prosecutions where the course of
justice is sought to be perverted, leaving it to the court itself to uphold its
dignity and prestige.

Section 196(1): Prosecution for Offences against the State: The prior
Sanction of the Central or State Government is mandatory in such cases.

Section 196(2): Prosecution for the Offence of Criminal Conspiracy:
No court shall take cognizance of the offence of any criminal conspiracy
punishable under section 120B of the Indian Penal Code (45 of 1860), other
than a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or
upwards, unless the State Government or the District Magistrate has
consented in writing to the initiation of the proceeding:
Provided that where the criminal conspiracy is one to which the provisions of
section 195 apply, no such consent shall be necessary.
Prosecution of Judges and Public Servants:

When any person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the Government is
accused of any offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty no court shall take
cognizance of such offence except with the previous sanction.

"Explanation.—For the removal of doubts it is hereby declared that no
sanction shall be required in case of a public servant accused of any offence
alleged to have been committed under section 166A, section 166B, section
354, section 354A, section 354B, section 354C, section 354D, section 370,
section 375, section 376, section 376A, section 376C, section 376D or section
509 of the Indian Penal Code.

It is, therefore, clear that under the new rape law, there is an exception to the
norm of prior sanction required for prosecution of judges and public servants.

3.4. COMMENCEMENT OF JUDICIAL PROCEEDINGS

3.4.1. SCRUTINY OF COMPLAINT

If a complaint is presented to a Magistrate who is not empowered to take
cognizance, he shall direct the complainant to the proper court. If Magistrate
applies his/her mind to with a view to taking subsequent steps, must examine
complainant under oath and reduce it to writing under Section 200. If
complainant is a public servant/judge acting in the discharge of official
duties, or case is made over to another Magistrate under Section 192,
examination under Section 200 is not required.

The Magistrate has to determine whether there is evidence in support of the
allegations made in the complaint, and not whether the evidence is sufficient
to warrant a conviction. Any Magistrate on receipt of a complaint, may, if he
thinks fit, either inquire into the case himself or direct police officer to do so.
No investigation is to be directed if offence is triable exclusively by a
Sessions Court. In such offences, a broad-based enquiry is to be conducted by
the Magistrate who is required to examine all the witnesses produced by the
complainant on oath.

3.4.2. DISMISSAL OF COMPLAINT:

After considering the statements of witnesses on oath (if any) or after the
investigation or inquiry, Magistrate may dismiss the complaint if he/she is of
the opinion that there are no sufficient grounds for proceeding. In every such
case, the Magistrate shall briefly record the reasons for dismissing the
complaint. A second complaint on same facts could be entered only if the
order was passed on an incomplete record or a misunderstanding of the
nature of the complaint, or it was manifestly absurd or unjust, or where new
facts which, with reasonable diligence, have been brought on record in
previous proceedings, could not have been adduced.

3.4.3. ISSUE OF PROCESS

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

3.4.4. SECTION 207: SUPPLY OF STATEMENTS AND DOCUMENTS
TO THE ACCUSED:

(i) The police report
(ii) The first information report recorded under section 154
(iii) The statements recorded under sub-section (3) of section 161 of all

persons whom the prosecution proposes to examine as its witnesses,
excluding therefrom any part in regard to which a request for such
exclusion has been made by the police officer under sub- section (6)
of section 173.
(iv) The confessions and statements, if any, recorded under section 164.
(v) Any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub-section (5) of section
173.

3.4.5. SECTION 209: COMMITMENT OF CASE TO THE SESSIONS
COURT:

When in a case instituted on a police report or otherwise, the accused appears
or is brought before the Magistrate and it appears to the Magistrate that the
offence is triable exclusively by the Court of Session, he shall-

(a) Commit, after Complying with the provisions of section 207 or section
208 (relating to supply of copies of statements),as the case may be, the case
to the Court of Session, and subject to the provisions of this code relating to
bail, remand the accused to the custody until such commitment has been
made;

(b) Subject to the provisions of this Code relating to bail, remand the accused
to custody during, and until the conclusion of the trial;

(c) Send to that Court the record of the case and the documents and articles, if
any, which are to be produced in evidence;

(d) Notify the Public Prosecutor of the commitment of the case to the Court
of Session.

3.4.6. SECTION 210: CONSOLIDATION OF CASES RELATING TO THE
SAME OFFENCE

(1) When, in a case, instituted otherwise than on a police report (hereinafter
referred to as a complaint case), it is made to appear to the Magistrate, during
the course of the inquiry or trial held by him, that an investigation by the
police is in progress in relation to the offence which is the subject-matter of
the inquiry or trial held by him, the Magistrate shall stay the proceedings of
such inquiry or trial and call for a report on the matter from the police officer
conducting the investigation.

(2) If a report is made by the investigating police officer under section 173
and on such export cognizance of any offence is taken by the Magistrate
against any person who is an accused in the complaint case, the Magistrate

shall inquire into or try together the complaint case and the case arising out of
the police report as if both the cases were instituted on a police report.

3.5. BAIL – CHAPTER 33

Bail is an important concept within the CrPC and is continuously present. It
is given to those accused who have been detained but are conditionally
released, whether before trial or during it. The purpose of Bail is to ensure
that the detainee be readily available for investigation when required and
therefore, the appropriate conditions are given. Keeping in mind this purpose,
Bail is rarely granted in those cases where the offence is grave and serious,
there is history or possibility of a repeated offence, there is possibility of
tampering with evidence or witnesses, possibility of escape or similar
situation.

3.5.1. The Origins of “Bail”:

The concept of bail has a long history and deep roots in English and
American law. In medieval England, the custom grew out of the need to free
untried prisoners from disease-ridden jails while they were waiting for the
delayed trials conducted by travelling justices. Prisoners were bailed, or
‘delivered’, to reputable third parties of their own choosing who accepted
responsibility for assuring their appearance at trial. If the accused did not
appeal, his bailor would stand trial in his place.

3.5.2. The Concept of “Bail”:

“Bail” remains an undefined term in CrPC. Nowhere else has the term been
statutorily defined. Conceptually, it continues to be understood as a right for
assertion of freedom against the State imposing restraints.The dictionary
meaning of the expression “bail” denotes a security for appearance of a
prisoner for his release. Bail may, thus, be regarded as a mechanism whereby
the State devolutes upon the community the function of securing the presence
of the prisoners, and at the same time involves participation of the
community in administration of justice.”- Vaman Narain Ghiya v. State of
Rajasthan (2009) 2 SCC 281.

3.5.3. Freedom of the Individual vs. The Interests of Justice:

“Personal liberty is fundamental and can be circumscribed only by some
process sanctioned by law.A balance is required to be maintained between
the personal liberty of the accused and the investigational right of the police.
It must result in minimum interference with the personal liberty of the
accused and the right of the police to investigate the case. It has to dovetail
two conflicting demands, namely, on the one hand the requirements of the
society for being shielded from the hazards of being exposed to the
misadventures of a person alleged to have committed a crime; and on the
other, the fundamental canon of criminal jurisprudence viz. the presumption
of innocence of an accused till he is found guilty.”

- Vaman Narain Ghiya v. State of Rajasthan (2009) 2
SCC 281.

3.5.4. The Basic Rule when Exercising Discretion = Bail, Not Jail:
“The basic rule may perhaps be tersely put as bail, not jail, except where
there are circumstances suggestive of fleeing from justice or thwarting the
course of justice or creating other troubles in the shape of repeating offences
or intimidating witnesses and the like, by the petitioner who seeks
enlargement on bail from the Court. We do not intend to be exhaustive but
only illustrative.”

- State of Rajasthan v.Balchand, (1977) 4 SCC
308.

3.5.5. Bail and Article 21:
“…under the criminal laws of this country, a person accused of offences
which are non-bailable, is liable to be detained in custody during the
pendency of trial unless he is enlarged on bail in accordance with law. Such
detention cannot be questioned as being violative of Article 21 of the
Constitution, since the same is authorized by law. But, even persons accused
of non- bailable offences are entitled to bail if the Court concerned comes to
the conclusion that the prosecution has failed to establish a prima facie case
against him and/or if the Court is satisfied by reasons to be recorded that in
spite of the existence of prima facie case, there is need to release such
accused on bail, where fact situations require it to do so”
- Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2005) 2 SCC 42.

3.5.6. Consequences of Pre-Trial Detention:

“The consequences of pre-trial detention are grave. Defendants’ presumed
innocent are subjected to the psychological and physical deprivations of jail
life, usually under more onerous conditions than are imposed on convicted
defendants. The jailed defendant loses his job if he has one and is prevented
from contributing to the preparation of his defence. Equally important, the
burden of his detention frequently falls heavily on the innocent members of
his family.”

- Moti Ram v. State of M.P.,(1978) 4 SCC
47.

3.5.7. Bail Provisions in the CrPC:

The law relating to bail is contained in sections 436 to 450 of chapter XXXIII
of the Code of Criminal Procedure, 1973. Section 436 deals with situation, in
what kind of cases bail should be granted. Section 436 deals with the
situation when bail may be granted in case of a bailable offence. Section 439
deals with the special powers of the High Court or the Court of Sessions
regarding grant of bail. Under sections 437 and 439, bail is granted when the
accused or the detenu is in jail or under detention. Section 438 deals with
situations where the Courts of Session or High Court may grant ‘anticipatory
bail’.

3.5.8. Section 436: Bail Where Arrestee is Accused of Non-Bailable Offence:

(1) When any person other than a person accused of a nonbailable offence is
arrested or detained without warrant by an officer in charge of a police

station, or appears or is brought before a court, and is prepared at, any, time-,
while-in, the custody of such officer or at any stage of the proceeding before
such court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, [may, and shall, if
such person is indigent and in unable to furnish surety, instead of taking bail]
from such person, discharge him on his executing a bond without sureties for
his appearance as hereinafter provided:

[Explanation. –Where a person is unable to give bail within a week of the
date of his arrest, it shall be a sufficient ground for the officer or the Court to
presume that he is an indigent person for the purposes of this proviso.]

3.5.9. Section 436(2): Failure to Comply with Conditions When Released
Under 436(1):

(2) Notwithstanding anything contained in sub-section (1), where a person
has failed to comply with the conditions of the bail-bond as regards the time
and place of attendance, the court may refuse to release him on bail, when on
a subsequent occasion in the same case he appears before the court or is
brought in custody and any such refusal shall be without prejudice to the
powers of the court to call upon any person bound by such bond to pay the
penalty thereof under section 446.

“The right to claim bail granted by Section 436 of the Code in a bailable
offence is an absolute and indefeasible right. In bailable offences, there is no
question of discretion in granting bail as the words of Section 436 are
imperative. The only choice available to the officer or the court is as between

taking a simple recognizance of the accused and demanding security with
surety…There is no express provision in the Code prohibiting the court from
re-arresting an accused released on bail under Section 436 of the Code.”

– Rasiklal v Kishore AIR 2009 SC
1341.

3.5.10. Section 436A: Maximum Period for Which Undertrials Can be
Detained:
Section 436A of the CrPC provides that in cases other than cases where death
sentence is provided, once the prisoner, during the period of investigations,
inquiry or trial has undergone detention up to half of the maximum period of
imprisonment specified for that offence under the law, he should be released
by the court on his personal bond with or without sureties subject to
expectations as may be recorded for reasons in writing by the court. Further,
no person can be detained during the period of investigations or inquiry or
trial for more than the maximum period of imprisonment provided for the
said offence under the law.

3.5.11. Judicial Custody, Chargesheet and Bail in NonBailable Cases:
“…If an accused person fails to exercise his right to be released on bail for
the failure of the prosecution to file the charge-sheet within the maximum
time allowed by the law, he cannot contend that he had an indefeasible right
to exercise it at any time notwithstanding the fact that in the meantime the

charge-sheet is filed. But, on the other hand he exercises the right within the
time allowed by law and is released on bail under such circumstances, he
cannot be rearrested on the mere filing of the chargesheet.”

– Sanjay Dutt v State II,(1994) 5
SCC 410.

3.5.12. Other Situations Where Granting of Bail is Mandatory in Non-
Bailable Cases:

Where there are no reasonable grounds for believing accused is guilty of
nonbailable offence, but sufficient grounds for further inquiry into his/her
guilt, accused shall, pending such inquiry, be released on bail, with written
reasons being recorded by Court granting bail. If the trial of a any non-
bailable offence triable by Magistrate is not concluded within 60 days from
the first date fixed for taking evidence in the case, such person shall, if he has
been custody for the duration of the aforementioned period, be released by
the Magistrate, unless for reasons recorded in writing the Magistrate directs
otherwise. The accused may also be released after the trial but before the
judgment, if the court is of the opinion that the accused is not guilty of the
non-bailable offence.

3.5.13. Section 437(1): When Bail May be Taken in a NonBailable Offence:

(1) When any person accused of, or suspected of, the commission of any non-
bailable offence is arrested or detained without warrant by an officer in

charge of a police station or appears or is brought before a court other than
the High Court or Court of Session, he may be released on bail, but-

(i) Such person shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable
offence and he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more, or he
had been previously convicted on two or more occasions of a cognizable
offence punishable with imprisonment for three years or more but not less
than seven years.

3.5.14. May - “Discretion” in Granting Bail in Cases of Non-Bailable
Offences:

“The provisions of CrPC confer discretionary jurisdiction on Criminal Courts
to grant bail to accused pending trial or in appeal against convictions, since
the jurisdiction is discretionary, it has to be exercised with great care and
caution by balancing valuable right of liberty of an individual and the interest
of the society in general.”

– Sanjay Chandra v.CBI (2012) (“2G
Case”).

3.5.15. “Reasonable Grounds for Believing”:

“It has also to be kept in mind that for the purposes of granting the bail, the
legislature has used the words “reasonable grounds for believing” instead of
“the evidence” which means the court dealing with the grant of bail can only
satisfy itself as to whether there is a genuine case against the accused and that
the prosecution will be able to produce prima facie evidence in support of the
charge. It is not expected, at this stage, to have the evidence establishing the
guilt of the accused beyond reasonable doubt.”

- Prahlad Singh Bhati v.NCT,Delhi,(2001) 4
SCC 280.

3.5.16. Factors to be Considered When Exercising Discretion:
“(i) whether there is any prima facie or reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing,if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with;and
(viii) danger, of course ,of justice being thwarted by grant of bail

While a detailed examination of the evidence is to be avoided while
considering the question of bail, to ensure that there is no prejudging and no
prejudice, a brief examination to be satisfied about the existence or otherwise
of a prima facie case is necessary.”

– Sanjay Chandra v
CBI.

3.5.17. Decision in the 2G Case:

“The (lower) Courts have refused the request for grant of bail on two
grounds: - The primary ground is that offence alleged against the accused
persons is very serious involving deep rooted planning in which, huge
financial loss is caused to the State exchequer; the secondary ground is that
the possibility of the accused persons tempering with the witnesses. In the
present case, the charge is that of cheating and dishonestly inducing delivery
of property, forgery for the purpose of cheating using as genuine a forged
document. The punishment of the offence is punishment for a term which
may extend to seven years… It is, no doubt, true that the nature of the charge
may be relevant, but at the same time, the punishment to which the party may
be liable, if convicted, also bears upon the issue.

Therefore, in determining whether to grant bail, both the seriousness of the
charge and the severity of the punishment should be taken into consideration.
The grant or refusal to grant bail lies within the discretion of the Court. The
grant or denial is regulated, to a large extent, by the facts and circumstances

of each particular case. But at the same time, right to bail is not to be denied
merely because of the sentiments of the community against the accused. The
primary purposes of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping him, pending the
trial, and at the same time, to keep the accused constructively in the custody
of the Court, whether before or after conviction, to assure that he will submit
to the jurisdiction of the Court and be in attendance thereon whenever his
presence is required. When the undertrial prisoners are detained in jail
custody to an indefinite period, Article 21 of the Constitution is violated.
Every person, detained or arrested, is entitled to speedy trial, the question is:
whether the same is possible in the present case.

There are seventeen accused persons. Statement of the witnesses runs to
several hundred pages and the documents on which reliance is placed by the
prosecution, is voluminous. The trial may take considerable time and it looks
to us that the appellants, who are in jail, have to remain in jail longer than the
period of detention, had they been convicted. It is not in the interest of justice
that accused should be in jail for an indefinite period. No doubt, the offence
alleged against the appellants is a serious one in terms of alleged huge loss to
the State exchequer; that, by itself should not deter us from enlarging the
appellants on bail when there is no serious contention of the respondent that
the accused, if released on bail, would interfere with the trial or tamper with
evidence. We do not see any good reason to detain the accused in custody,
that too, after the completion of the investigation and filing of the
chargesheet.

We are conscious of the fact that the accused are charged with economic
offences of huge magnitude. We are also conscious of the fact that the
offences alleged, if proved, may jeopardize the economy of the country. At
the same time, we cannot lose sight of the fact that the investigating agency
has already completed investigation and the charge sheet is already filed
before the Special Judge, CBI, New Delhi. Therefore, their presence in the
custody may not be necessary for further investigation. We are of the view
that the appellants are entitled to the grant of bail pending trial on stringent
conditions in order to ally the apprehension expressed by CBI.”- – Sanjay
Chandra v.CBI (2012) 1 SCC 40.

3.5.19. Section 437(1)(i):Death, Imprisonment for Life or for Seven Years or
More:

Provided also that no person shall, if the offence allege to have been
committed by him is punishable with death, imprisonment for life, or
imprisonment for seven years or more be released on bail by the Court under
this sub-section without giving an opportunity of hearing to the Public
Prosecutor.

“It is also clear that when an accused is brought before the Court of a
Magistrate with the allegation against him of an offence punishable with
death or imprisonment for life, he has ordinarily no option in the matter but to
refuse bail subject, however, to the first proviso to Section 437(1) CrPC and
in a case where the Magistrate entertains a reasonable belief on the materials
that the accused has not been guilty of such an offence. This will, however,

be an extraordinary occasion since there will be some materials at the stage of
initial arrest, for the accusation or for strong suspicion of commission by the
person of such an offence…”

– Gurcharan Singh v. State (Delhi Admn.), (1978) 1
SCC 118.

3.5.20. Section 437 (3): Bail With “Conditions”:

When a person accused or suspected of the commission of an offence
punishable with imprisonment which may extend to seven years or more or
of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian
Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit,
any such offence, is released on bail under subsection (1) the Court shall
impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond
executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of
which he is accused, or suspected, of the commission of which he is
suspected, and

(c) that such person shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or to any police officer
or tamper with the evidence, and may also impose, in the interests of justice,
such other conditions as it considers necessary.

3.6. ANTICIPATORY BAIL

Policy behind “Anticipatory Bail”: “The suggestion for directing the release
of a person on bail prior to his arrest (commonly known as “anticipatory
bail”) was carefully considered by us. Though there is a conflict of judicial
opinion about the power of a court to grant anticipatory bail, the majority
view is that there is no such power under the existing provisions of the Code.
The necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for the purpose
of disgracing them or for other purposes by getting them detained in jail for
some days. In recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from false cases, where
there are reasonable grounds for holding that a person accused of an offence
is not likely to abscond, or otherwise misuse his liberty while on bail, there
seems no justification to require him first to submit to custody, remain in
prison for some days and then apply for bail.”

– Law Commission, 41st
Report.

Anticipatory Bail: A Misnomer “The term 'anticipatory bail' is a misnomer. It
is not as if the bail is presently granted by the court in anticipation of arrest.
When the court grants anticipatory bail it makes an order that in the event of
arrest a person, he shall be released on bail. This somewhat extraordinary
power is exercised only in exceptional cases and is entrusted to the higher
echelons of the judicial service namely the court of Sessions and the High
Court. ”

- Balchand Jain v. State of M.P. (1976) 4 SCC
(Cri) 689.

Therefore, it is only on arrest that the order granting “anticipatory bail”
becomes operative.

3.6.1. Section 438(1): Granting Anticipatory Bail:

(1) Where any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section that in
the event of such arrest he shall be released on bail; and that Court may, after
taking into consideration, inter alia, the following factors, namely:- i) the
nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence;

(iii) the possibility of the applicant to flee from justice;

(iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the
application forthwith or issue an interim order for thegrant of anticipatory
bail.

3.6.2. “Reason to Believe”:

“Section 438 is a procedural provision which is concerned with the personal
liberty of an individual who is entitled to plead innocence, since he is not on

the date of application for exercise of power under Section 438 of the Code
convicted for the offence in respect of which he seeks bail. The applicant
must show that he has “reason to believe” that he may be arrested in a non-
bailable offence. Use of the expression “reason to believe” shows that the
belief that the applicant may be arrested must be founded on reasonable
grounds. Mere “fear” is not “belief ” for which reason it is not enough for the
applicant to show that he has some sort of vague apprehension that someone
is going to make an accusation against him in pursuance of which he may be
arrested. Grounds on which the belief of the applicant is based that he may be
arrested in non-bailable offence must be capable of being examined.”

- Adri Dharan Das vs. State of W.B., (2005) 4
SCC 303.

3.6.3. Procedure Relating to Grant of Anticipatory Bail:

Section 438 has been amended to the effect that the power to grant
anticipatory bail should be exercised by the Court of Session or High Court
after taking into consideration certain circumstances. If the Court does not
reject the application for the grant of anticipatory bail, and makes an interim
order of bail, it should, forthwith give (‘short date’) notice to the Public
Prosecutor and Superintendent of Police and the question of bail would be
reexamined in the light of the respective contentions of the parties. The
presence of the person seeking anticipatory bail in the Court should be made
mandatory at the time of hearing of the application for the grant of

anticipatory bail if, at the request of the Public Prosecutor, the Court
considers it necessary in the interests of justice.

3.6.5. Section 438(2): Conditions:
(2) When the High Court or the Court of Session makes a direction under
sub- section (1), it may include such conditions in such directions in the light
of the facts of the particular case, as it may thinks fit, including –
(i) a condition that the person shall make himself available for interrogation
by a police officer and when required;
(ii) a condition that the person shall not, directly or indirectly,- make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the court or to any
police officer,
(iii) a condition that the person shall not leave India without the previous
permission of the court;
(iv) Such other condition as may be imposed under sub-section (3) of section
437, as if the bail were granted -under that section.
3.6.6. Proviso to Section 438 (1) Read With Section 438(3):

Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this sub-section or has
rejected the application for grant of anticipatory bail, it shall be open to an
officer in-charge of a police station to arrest, without warrant the applicant on
the basis of the accusation apprehended in such application. If such person is
thereafter arrested without warrant by an officer in charge of a police station
on such accusation, and is prepared either at the time of arrest or at any time
while in the custody of such officer to give bail, he shall be released on bail,
and if a Magistrate taking cognizance of such offence decides that a warrant
should issue in the first instance against that person, he shall issue a bailable
warrant in conformity with the direction of the court under sub-section (1).

3.7. SECTION 439(1): POWER OF HC OR COURT OF SESSION IN
GRANTING BAIL

(1) A High Court or Court of Session may direct.

(a) That any person accused of an offence and in custody be released on bail,
and if the offence is of the nature specified in sub-section (3) of section 437,
may impose any condition, which it considers necessary for the purposes
mentioned in that sub-section;

(b) That any condition imposed by a Magistrate when releasing any person
on bail be set aside or modified: Provided that the High Court or the Court of
Session shall, before granting bail to a person who is accused of an offence
which is triable exclusively by the Court of Session or which, though not so
triable is punishable with imprisonment for life, give notice of the application

for bail to the Public Prosecutor unless it is, for reasons to he recorded in
writing, of opinion that it is not practicable to give such notice.

3.7.1. “Concurrent Jurisdiction”:

“It is true that the High Court and the Court of Session have got concurrent
jurisdiction to entertain an application for grant of bail both under Sections
438 and 439 Cr. P.C. But, for that reason, the matter cannot be left
completely to the option of the accused person…Although the High Court
has concurrent jurisdiction with the Sessions Court to grant bail under either
of the aforesaid two sections, it is,according to me, desirable that the ordinary
practice should be that the lower court should be first moved in the matter,
though in exceptional cases or special circumstances, the High Court may
entertain and decide an application for bail either under Section 458 or
Section 438, Cr. P. C, This is specially important because any expression of
opinion by the superior court is likely to prejudice, if not frequently, in cases
few and far between, the trial in the lower court.”

- Hajialisher v. State of Rajasthan.

3.7.2. Exercising the Discretion under Section 439:

“The order of the High Court, howsoever brief it may be, should make it
appear that the High Court while forming opinion on prayer for bail was
conscious of the reasons for rejection of prayer for bail as assigned by the
Sessions Court. A perusal of the impugned order of the High Court does not
show the above said requirement having been satisfied. The High Court has
not said a word as to why the reasons assigned by the Sessions Court for

rejecting the prayer for bail need to be ignored or are not relevant or why the
High Court was inclined to exercise its power favourably to the accused
applicant in spite of the availability of grounds to the contrary set out in the
order of the Sessions Court…The impugned order of the High Court suffers
from this infirmity.”

- Ram Pratap Yadav v. Mitra Sen Yadav (2003)
1 SCC 15.

3.7.3. Section 389(1): Powers of Appellate Court in Granting Bail:

(1) Pending any appeal by a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the
sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing on bail or on his
own bond a convicted person who is convicted of an offence punishable with
death or imprisonment for life or imprisonment for a term of not less than ten
years, shall give opportunity to the Public Prosecutor for showing cause in
writing against such release:

Provided further that in cases where a convicted person is released on bail it
shall be open to the Public Prosecutor to file an application for the
cancellation of the bail.

3.7.4. Exercising the Discretion under Section 389(1):

“The practice not to release on bail a person who has been sentenced to life
imprisonment was evolved on the basis that once a person has been found

guilty and sentenced to life imprisonment, he should not be let loose so long
as his conviction and sentence are not set aside; but the underlying postulate
of this practice was that the appeal of such person would be disposed of
within a measurable distance of time so that if he is ultimately found to be
innocent, he would not have to remain in jail for an unduly long period. The
rationale of this practice can have no application where the court is not in a
position to dispose of the appeal for five or six years.”

- Kashmira Singh v. State of Punjab (1977) 4
SCC 291.

Note: “Supreme Court” is not the “Appellate Court” under Section 389(1).

3.7.5. The Curious Case of “Lalu Prasad Yadav:

Lalu Prasad challenged the Jharkhand High Court's interim order rejecting his
plea for bail during the pendency of his appeal against the trial court order
sentencing him to undergo an imprisonment of five years and a two fines
totalling to an amount of Rs.25 lakhs. Faulting the high court order, Lalu
Prasad in his petition has said that fellow accused R.K. Rana who too was
convicted for the same offence as he was and awarded five years rigorous
imprisonment was granted bail six days before his bail plea was rejected. He
further said that while declining his bail plea, the high court has "failed to
exercise judicially, the discretionary power conferred on it under Section 389
of the Code of Criminal Procedure" and it did not assign any reason for
rejecting the bail plea, he argued.

Senior advocate Ram Jethmalani appearing for the politician, submitted
Prasad had already spent 12 months behind bars, including two months of his
five-year sentence, and sought bail, saying the Jharkhand High Court before
which his appeal was pending would take at least seven to eight years to
decide the case. A bench headed by Chief Justice P Sathasivam granted bail
after noting that several other similarly placed convicts have already been
granted bail in the case.

3.7.6. Section 437(5) and Section 439(2): Cancellation of Bail:

S. 437(5) Any court which has released a person on bail under sub-section
(1), or sub- section (2), may, if it considers it necessary so to do, direct that
such person be arrested and commit him to Custody.

S. 439 (2) A High Court or Court of Session may direct that any person who
has been released on bail under this Chapter be arrested and commit him to
custody.

Situations Wherein Bail Can be Cancelled:

“…there are five cases where a person granted bail may have the bail
cancelled and be recommitted to jail:--(1) Where the person on bail, during
the period of bail, commits the very same offence for which he is being tried
or has been convicted, and thereby proves his utter unfitness, to be on
bail…;(2) If he hampers the investigation as will be the case if he, when on
bail, forcibly prevents the search of places under his control for the corpus
delicti or other incriminating things; (3) If he tampers with the evidence, as
by intimidating the prosecution witnesses interfering with the scene of

offence in order to remove traces or proofs of the crime, etc. (4) If he runs
away to a foreign country, or goes underground, or beyond the control of his
sureties; and (5) If he commits acts of violence, in revenge, against the police
and the prosecution witnesses and those who have booked him or are trying
to book him.”

- The Public Prosecutor vs. GeorgeWilliams AIR
1951 Mad 1942.

3.8. CHARGE

3.8.1. Meaning of “Charge”
“In this Code, unless the context otherwise requires, - (b) “charge” includes
any head of charge when the charge contains more heads than one.”
Charge essentially means accusation. Whatever the nature and type of the
trial, it is always for the Court to frame the charge. In any trial of a warrant
case, a formal charge in writing is essential. In a summons case, it is
sufficient if the substance of the accusation is stated to the accused.
3.8.2. Section 211: Contents of Charge:
(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.

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 propertymark, 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.

3.8.3. Particulars as to Time, Place and Person:

(1) The charge shall 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, it was committed, as are reasonably sufficient to give the
accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest
misappropriation of ‘money or other moveable property, it shall be sufficient

to specify the gross sum or, as the case may be, described the movable
property in respect of which the offence is alleged to have been committed,
and the dates between which the offence is alleged to have been committed,
without specifying particular items or exact dates, and the charge so framed
shall be deemed to be a charge of one offence within the meaning of section
219:

Provided that the time included between the first and last of such dates shall
not exceed one year.

3.8.4. Section 213: When Manner of Committing Offence Must be Stated :

When the nature of the case is such that the particulars mentioned in sections
211 and 212 do not 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 charge and the law
infringed.

3.8.5. Alteration of Charge and Procedure Thereafter:

(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 sanction 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.

3.8.6. Section 217: Recall of Witnesses

Whenever a charge is altered or added to by the court after the
commencement of the trial, the prosecutor and the accused shall be allowed-
(a) To recall or re-summon, and examine with reference to such alteration or
addition, any witness who may have been examined, unless the court, for
reasons to be recorded in writing, considers that the prosecutor or the
accused, as the case may be, desires to recall or re-examine such witness for
the purpose of vexation or delay or for defeating the ends of justice; (b) Also
to call any further witness whom the court may think to be material.

3.8.7. Section 216 and 217 Read Together:

“The Code of Criminal Procedure gives ample power to the courts to alter or
amend a charge whether by the trial court or by the appellate Court provided
that the accused has not to face a charge for a new offence or is not
prejudiced either by keeping him in the dark about that charge or in not
giving a full opportunity of meeting it and putting forward any defence open
to him, on the charge finally preferred against him…In the present case the
learned Judge of the High Court did not intend nor did he direct a new trial;
only an opportunity was given to the accused to safeguard himself against
any prejudice by giving him a opportunity to recall any witness and adduce

any evidence on this behalf…The offence with which the appellant was
charged alternatively was the same…Therefore no prejudice was caused, nor
was likely to be caused to the accused by the amendment of the charge.”

- Kantilal v. State of Maharashtra (1969) 3
SCC 166.

3.8.9. The Basic Rule (Section 218): Separate Charge for Each Distinct
Offence:

(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.

(2) Nothing in sub-section (1) shall affect the operation of the provisions of
sections 219, 220, 221 and 223.

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.

3.8.10. “Distinct Offence”:

“The expression 'every distinct offence' must have a different content from
the expression 'every offence' or "each offence'. A separate charge is required
for every distinct offence and not necessarily for each separate offence. The
question is, what is meant by 'every distinct offence'. 'Distinct' means ‘not

identical’. It stresses characteristics that distinguish while the word separate'
would stress the 'two things not being the same.' Two offences would be
distinct if they be not in any way inter-related. If there be some interrelation,
there would be no distinctness and it would depend on the circumstances of
the case in which the offences were committed whether there be separate
charges for those offences or not.”

- Banwarilal’s Case AIR 1963 SC
1620.

3.8.11. Policy Reason Behind Section 218:

“This section embodies the general law as to the joinder of charges and lays
down a rule that for every distinct offence there should be a separate charge
and every such charge should be tried separately. No doubt the object of
section is to save the accused from being embarrassed in his defence if
distinct offences are lumped together in one charge or in separate charges and
are tried together but the Legislature has engrafted certain exceptions upon
this rule contained in sections 219, 220, 221 and 223.”

- AIR 1954 SC 436.

If the accused is to be tried in one trial upon different charges on different
evidence, it is not unlikely that the court might get prejudiced against the
accused person. Thus, Section 218 aims to avoid such a situation.

3.8.12. Section 223: Certain Persons May Be Charged Jointly:

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
abetment 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 of Court of Session 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.

Illustrations:

(a) A rescues B a person in lawful custody, and in so doing causes grievous
hurt to C, a constable, in whose custody B was, A may be charged with, and
convicted of, offences under sections 225 and 333 of the Indian Penal Code
(45 of 1860).

(b) 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 and 497 of the
Indian Penal Code (45 of 1860).

(c) A entices B, the wife of C, away form C, with intent to commit adultery
with B, and then commits adultery with her. A may be separately charged
with, and convicted of, offences under sections 498 and 497of the Indian
Penal Code(45 of 1860).

§ Three Offences of Same Kind within One Year May be Charged
Together:

(1) When a person is accused of more offences than one of the same kind
committed within the space of twelve months from the first to the last of such

offences, whether in respect of the same person or not, he may be charged
with, and tried at one trial for, any number of them not exceeding three. (2)
Offences are of the same kind when they are punishable with the same
amount of punishment under the same section of the Indian Penal Code (45
of 1860) or of any special or local laws:

§ Offences Committed in the Course of the Same Transaction Section
220(1):

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

If persons A, B and C are tried for an offence of murder what intrinsic
difficulty would there be in trying X, Y and Z of abetment of the same
offence? The transaction in which all of them have participated is the same
and the abetment by X, Y and Z of the offence committed by A, B and C
would itself establish the connection of their acts with those of X,Y and Z.

§ Same Act Falling Under Different Definitions of Offences:

Section 220(3): If the acts alleged constitute an offence falling within two or
more separate definitions of any law in force for the time being by which
offences are defined or punished, the person accused of them may be charged
with, and tried at one trial for, each of such offences.

Illustration: (i) A wrongfully strikes B with a cane. A may be separately
charged with and convicted of, offences under sections 352 and 323 of the
Indian Penal Code (45 of 1860).

§ Acts Forming an Offence, also Constituting Different Offences When
Taken Separately or in Groups – Section 220(4)

Several acts, of which one or more than one would by itself or themselves
constitute an offence, constitute when combined a different offence, the
person accused of them may be charged with, and tried at one trial for the
offence constituted by such acts when combined, and for any offence
constituted by any one, or more, or such acts.

Illustration to sub-section (4) (m): 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, 392 and 394 of the Indian Penal
Code (45 of 1860).

§ Section 221: Where Offence Committed is Not Clear:

(1) If a single act or series of acts is of such a nature that it is doubtful which
of several offences the facts which can be proved will constitute, the accused
may be charged with having committed all or any of such offences, and any
number of such charges may be tried at once: or he may be charged in the
alternative with having committed some one of the said offences.

(2) It in such a case the accused is charged with one offence, and it appears in
evidence that he committed a different offence for which he might have been
charged under the provisions of sub-section (1), he may be convicted of the
offence which he is shown to have committed, although he was not charged
with it.

Illustrations:

(a) 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.

(b) In the case mentioned, A is only charged with theft. 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.

(c) 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.

§ Section 222: When Offence Proved Included in Offence Charged:

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

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

(3) When a person is charged with an offence, he may be convicted of an
attempt to commit such offence although the attempt is not separately
charged.

(4) Nothing in this section shall be deemed to authorize a conviction of any
minor offence where the conditions requisite for the initiation of proceedings
in respect of that minor offence have not been satisfied.

Illustrations: (a) A is charged under section 407 of the Indian Penal Code (45
of 1860) with criminal breach of trust in respect of property entrusted to him
as a carrier. It appears, that he did commit criminal breach of trust under
section 406 of that Code in respect of the property, but that it was not
entrusted to him as a carrier. He may be convicted of criminal breach of trust
under the said section 406.

(b) A is charged under section 325 of the Indian Penal Code (45 of 1860),
with causing grievous hurt. He proves that he acted on grave and sudden
provocation. He may be convicted under section 335 of that Code.

§ “Minor Offence”:

“We have perused the Trial Court’s record. We find that though charge for
offence punishable under Section 302 of IPC had been framed against
appellant A-1, no such charge was framed against appellant A-2,even with
the aid of Section 34 IPC. The only charge framed against A-2 was for an
offence punishable under Section 201 read with Section 34 of IPC. True that
Section 222 CrPC clothes the Court with the power to convict a person of an
offence which is minor in comparison to the one for which he is charged and

tried, but by no stretch of imagination, offences under Sections 304-B and
498-A IPC, under which appellant A-2 was convicted by the Trial Court,
could be said to be minor offences in relation to that under Section 201 IPC,
for which he was charged.In fact, the three offences are distinct and belong to
different categories. The ingredients of the offences under the said Sections
are vastly different. Therefore, Section 222 CrPC had no application on facts
in hand.”

- Sukharam v. State of Maharashtra (2007) 3 SCC
(Cri) 426.

§ Section 224: Withdrawal of Remaining Charges on Conviction on One
or Several Charges:

When a charge containing more heads than one is framed against the same
person, and when a conviction has been had on one or more of them, the
complainant, or the officer conducting the prosecution, may, with the
consent, of the court, withdraw the remaining charge or charges, or the court
of its own accord may stay the inquiry into, or trial of, such charge or charges
and such withdrawal shall have the effect of an acquittal on such charge or
charges, unless the conviction be set aside, in which case the said court
(subject to the order of the court setting aside the conviction) may proceed
with the inquiry into, or trial of, the charge or charges so withdrawn.

§ Section 215: Effect of Errors:

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.

Illustration: 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.

§ Section 464: Effect of Omission to Frame, or Absence of, or Error in
Charge:

(1)No finding sentence or order by a court of competent jurisdiction shall 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 charge, unless, in the opinion of the court of appeal,
confirmation or revision, a failure of justice has in fact been occasioned
thereby.

(2) If the court of appeal, confirmation or revision is of opinion that a failure
of justice has in fact been occasioned, it may-

(a) In the case of an omission to frame a charge, order that a charge be
framed and that the trial be recommenced from the point immediately after
the framing of the charge.

(b) In the case of an error, omission or irregularity in the charge, direct a new
trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the court is of opinion that the facts of the case are such that
no valid charge could be preferred against the accused in respect of the facts
proved, it shall quash the conviction.

§ “Prejudiced by the Charge”

“This Court has ruled in Willie (William) Slaney v. The State of Madhya
Pradesh; that 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. That does not touch
jurisdiction. 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…the essential
question being whether the accused were prejudiced by the charge. ”

- Kahan Singh v. State of Haryana (1971) 3
SCC 226.

Illustrations

b) A is charged with cheating B, and the manner in which he cheated B is 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 d court may infer from such facts that the omission to set out the
manner oft 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 wa 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 thatA
was misled, and that the error was material.

§ Determining Prejudice: “Nature of the Objection and the Manner of the
Defence”

“…to establish a charge of conspiracy knowledge about indulgence in either
an illegal act or a legal act by illegal means is necessary. In some cases, intent
of unlawful use being made of the goods of services in question may be
inferred from the knowledge itself. This apart, the prosecution has not to
establish that a particular unlawful use was intended, so long as the goods or