Decoding Charge

The concept of charge under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is central to the Indian criminal justice system, defining the formal allegations made against an accused person during a trial. The charge serves as a vital procedural tool that encapsulates the specific offence(s) alleged to have been committed, providing the accused with a clear and detailed understanding of the accusations they face.

Under the BNSS, the framing of a charge is not merely a procedural step but a legal requirement designed to uphold fairness, ensuring the accused receives adequate notice of the offence, its legal basis, and the particulars of the incident. This procedural safeguard helps balance the rights of the accused with the interests of justice, enabling an effective defence while facilitating judicial transparency. The provisions within the BNSS related to charges define not only the contents and specifications of a charge but also the procedures for modifying, interpreting, and managing charges in various contexts, making it a crucial foundation for an impartial trial process.

What are the required contents of a charge under BNSS?

Every charge must include:

• The specific offence with which the accused is charged.
• If the offence has a particular name under the law, it may be described by that name alone.
• If no specific name exists, the charge must include enough of the offence’s definition to inform the accused of the allegation.
• The relevant law and section of the law that the offence violates.
• A statement that assumes all legal conditions necessary to constitute the offence are fulfilled.
• The charge must be written in the language of the Court.
• If the accused has a previous conviction that could lead to an enhanced punishment for a subsequent offence, the charge should mention the previous conviction’s fact, date, and place. If omitted, it may be added before sentencing.

What purpose does a charge serve in a trial?

The charge serves as a formal notice to the accused, drawn in the specific language of the law, providing clear and precise information about the nature of the accusation. This notice ensures the accused is adequately informed of what they must defend against in trial.

What particulars must a charge include regarding the time, place, and persons involved?
The charge must specify:

• The time and place of the alleged offence.
• The person or thing against whom or in respect of which the offence was committed.
• These details should be sufficient to give the accused clear notice of the accusation.

How should charges be handled in cases involving criminal breach of trust or dishonest misappropriation?

In cases of criminal breach of trust or dishonest misappropriation:

• It is sufficient to specify the gross sum or describe the movable property involved.
• It is unnecessary to provide specific items or exact dates, but the time span between the first and last dates must not exceed one year.

When must the manner of committing the offence be included in a charge?

If the nature of the case demands more specificity to inform the accused adequately, the charge must detail how the alleged offence was committed.

How are words in a charge to be interpreted?

Words describing an offence in a charge are understood according to the legal definitions under the applicable law.

What is the effect of errors or omissions in a charge?

Errors in stating the offence or required particulars in the charge are not deemed material unless they misled the accused and caused a failure of justice.

Can a court alter or add to a charge?

Yes, a court can alter or add to any charge at any point before the judgment, provided the change is explained to the accused, and neither the accused nor the prosecution is prejudiced by the alteration.

What happens when a charge is altered after the trial has commenced?

If a charge is altered after the trial begins, the prosecutor and accused are permitted to:

• Recall or re-summon witnesses examined previously.
• Call any further witnesses relevant to the alteration, unless the court deems the request for recall or re-examination to be for vexation, delay, or injustice.

How should separate charges be handled for distinct offences?

Each distinct offence requires a separate charge and trial. However, if the accused submits a written request, and the Magistrate believes no prejudice will result, multiple charges may be tried together.

Can multiple offences of the same kind committed within a year be charged together?

Yes, if a person is accused of committing multiple offences of the same kind within twelve months, they may be charged and tried together, with a maximum of five offences in one trial.

How are multiple offences in a single transaction to be charged and tried?

If multiple offences are committed by the same person in a series of acts forming one transaction, all such offences may be charged and tried together.

What if an act or series of acts may constitute different offences?

If an act could constitute multiple offences, the accused can be charged with all or any of these offences, or in the alternative with one of them.

What if a minor offence is proven instead of the charged offence?

If only some particulars of the charged offence are proven, forming a minor offence, the accused may be convicted of the minor offence even if it wasn’t specifically charged.

Can persons accused of the same or related offences be jointly charged?

Yes, persons accused of:

• The same offence in a single transaction.
• An offence and its abetment or attempt.
• Offences of the same kind committed within twelve months.
• Different offences within a single transaction.
• Related offences such as theft, extortion, cheating, or receiving stolen property.
• Counterfeit coin offences or related offences.
• Such persons can be charged and tried together.

What happens to remaining charges if one charge leads to conviction?

If the accused is convicted on one charge among several, the prosecution may withdraw the remaining charges with the court’s consent, or the court may stay the inquiry or trial of these charges, resulting in an acquittal unless the conviction is overturned.

The provisions on charges within the Bharatiya Nagarik Suraksha Sanhita, 2023, underscore the Indian legal system’s commitment to fairness, clarity, and precision in criminal proceedings. By laying down specific requirements for the content, language, and structure of charges, and by detailing processes for handling errors or alterations, the BNSS ensures that the accused is not prejudiced by ambiguities or procedural oversights. This clarity in charging provisions serves a dual purpose: it preserves the accused’s right to a fair trial while also streamlining judicial processes, thus enhancing the efficacy of the criminal justice system. Ultimately, the provisions on charges within the BNSS reinforce the principles of due process, making the charge an essential procedural step toward achieving justice.

 Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.