Charge and Charge-Sheet

crlreview.in/charge-and-charge-sheet

Admin

Author: Shreya Sahoo

Charge-Sheet

Introduction
An investigation report is contemplated under Section 173, CrPC which is indispensable
in its terms. By exercising power under Chapter XII, CrPC materials regarding
investigation is to be collected, to form the premise of the report and this is a continuous
process which starts with the assemblage of evidence procured in pursuance to the
exercise of power under Section 156 and concludes with submission of the report under
Section 173.[1] This report which is commonly termed as “charge-sheet” or “challan” is
the final report submitted by the investigating officer to a competent magistrate, after
completion of his investigation. According to Section 173(2), the following has to be
stated in such a police report-

1. Name of the parties

2. Nature of information
3. Names of the persons who seem to be familiar with the situation of the case
4. Whether any crime seems to have been committed and, if so, by whom
5. Whether the accused has been arrested
6. Whether he has been released on his bond and, if so, whether with or without
securities
7. Whether he has been sent to the custody in compliance to Section 170

Section 173 mandates that a report ought to be prepared in case of non-cognisable

offence even if the magistrate has not directed the preparation of such a report after the
magistrate commands the police to investigate a non-cognisable offence under Section
156. The case cannot be disposed of without obtaining the order of the magistrate.
However, the police receive information of a cognisable offence and the case is
registered, even if the investigating officer cannot be disentitled from investigating any
non-cognisable or subsidiary offence which may emanate out of the facts. He can include
these latter findings in the final report under Section 173.[2]

According to Section 173 investigation must be completed without bogging down the
process unnecessarily and that as soon as the report is prepared, the investigation
officer must forward it to the magistrate.[3] Further, if the officer discovers any of the
facts to be false, he is not obligated to file a charge-sheet. For instance- if the officer
upon conducting investigation finds out that the injuries were administered in pursuance
1/8
of right of private defence, it is not an imperative duty of the officer to file a charge-
sheet.[4] Also, an incomplete charge-sheet cannot be considered to be a “police report” at
all as dwelled on under Section 173 (2), to authorize the magistrate to take cognisance of
the offence.

The Code of Criminal Procedure instructs that, the authority to ascertain as to whether a
case is made out against the accused or not rests with the police officer conducting the
investigation.[5] The magistrate cannot compel the police officer to change their view to
comply with his opinion.[6] Additionally, after the magistrate has once conceded to the
final report he cannot take cognisance of an offence on a complaint on the same facts
constituting the offence since that will produce two inconsonant judicial orders.[7]

A failure to act in accordance with the provisions of this Section by the police does not
result in impairment of the trial proceeding, however, such an irregularity will attract
Section 465.[8]

Also, in instances where a case and its counter case with regard to an offence is
registered by the police, based on contrasting narrative, the investigating officer is not
required to file two separate charge-sheets in both the cases.

After the completion of the investigation when report of the commission of offence has
been made to the magistrate, he is not entitled either under Section 159 or Section 202
to make an additional enquiring with respect to the same matter[9] or ask the police to
make such enquiries.[10]

Notice to informant when the court does not take cognisance

The Supreme Court in the landmark judgment of Balwant Singh laid down that if after
the police report has been advanced under Section 173(2), the magistrate does not take
cognisance of the offence and decides to drop the case owing to absence of adequate
evidence and grounds for holding a proceeding against some of the persons mentioned
in the F.I.R, he should give a notice and opportunity to the informant to be heard at the
time of deliberation of the report. But sending such notices is not obligatory on the part
of the magistrate or relative of the deceased.[11]

Section 173 (2) (ii) mandates that the officer-in-charge of the police station shall also
communicate to the first informant, the action taken by him in pursuance to the
information provided to him by the informant.[12]

Sub-Section 4: No Power to Discharge Accused

Section 173 (4) appears to be dealing with cases exclusively provided under Section 169,
that is, if the police officer on the edifice that no reasonable suspicion or evidence is
present against an accused may release the accused on bonds as directed by the
magistrate. The prosecution in such a case can resort to Section 321, to seek permission
to retreat. However, a discharge under this Section is illegal.[13] Further, the words “or
2/8
otherwise” indicate that the magistrate may order prosecution of the accused who has
been released on bond under Section 169 since his powers are independent of the
question whether police have arrested the accused or not who in his view ought to be
put on trial.[14]

Sub-Section (5)
Section 173 (5) says that if Section 170 applies to a police report forwarded to the
magistrate under Section 173 (2), then the police officer must send the report with all the
documents or pertinent details to the magistrate on which the prosecution will rely apart
from the one which they had sent during the investigation. Also, copies of recorded
statements under Section 161 of all the witness whom the prosecution presents to
examine must be attached to those documents which are being forwarded to the
magistrate. The provision is purported to be noticed for the accused with respect to what
he has to meet during the trial.[15] Additionally, this subsection is applicable to such
statements which have been recorded. Also, even when any document has not been
attached with a police report, still the prosecution can produce the document at the
trial.[16] This provision regulates the warrant as well as the summons cases.[17]

The non-compliance of this provision in furtherance of which statements recorded by the

witnesses for examination was not furnished should not be allowed to have a far-
reaching effect as to vitiate the trial.[18] Moreover, the accused has to prove that he has
been prejudiced and miscarriage of justice has taken place due to the non-compliance of
Section 173 (5), before a trial can be rendered ineffective.

Sub-Section (6)
If the police officer is of the opinion that some part of the statement are not pertinent to
the subject matter of the proceeding or that the revelation is not of any significance in
interest of justice and unadvisable in the interest of the public, then he may ask the
magistrate to rule out such statement along with corresponding reasons.

Sub-Section (7)
The investigating police officer if possible should supply the copies of all or any of the
documents alluded in Section 173 (5) to the accused. Where a conversation between the
complainant and the accused has been recorded on a tape and furthermore tape has
been filed in the court, the court cannot decline the tapes to the accused.[19]

Sub-Section (8): Filing of Two Charge-Sheets

It is inevitable that the main police report is submitted to the magistrate after the
consummation of the investigation vide Section 173 (2). Nonetheless, if the investigating
police officer discovers extra evidence as to the innocence or guilt of the accused person,
the officer must in the interest of justice be permitted to make additional investigation
and to forward supplementary report(s) to the concerned magistrate. And this
3/8
proposition of law has been enacted under Sub-Section (8) of Section 173. This provision
delegates an explicit and specific power upon the investigating officer to continue
addition investigation even after cognisance has been taken by the court.[20]

In Nataraj Jin Periasami v. Inspector of Police, it was observed that:

“Section 173(8), has been newly added in order to make it expressly clear that merely
because an investigating officer has sent a police report to the Magistrate, he will not
stand precluded from making further investigation in the case and submitting a further
report or reports to the Magistrate regarding the additional evidence gathered by him in
the further investigation. Because of this express provision, it should not be taken that if a
police officer had committed an error in giving full and proper particulars regarding the
names of parties, the nature of information, the names of witnesses, etc. in his first report,
he cannot correct the mistake by filing a second report. When the Code provided for even
further investigation being done after a report is filed before a Magistrate, there can be no
bar whatever for the police filing a second or revised report on the materials already
gathered during the investigation specially when the second report is intended to set right
certain mistakes or omissions in the first report.”

Two charge-sheets can be filed by the police, against the same offender under Section
409, 467, 471, 477 and 420 of Indian Penal Code (hereforth IPC). Merely because further
investigation has been ordered and charge-sheet has been filed by the police, the
previous charge-sheet will not be quashed.[21]

This sub-section is only permissive suggesting that neither the accused nor the
prosecution cannot implore as a matter of right a command from the court to direct
further investigation by the investigation officer under Section 173 (8) after a charge-
sheet had been filed.[22]

Procedure to file Charge-Sheet

1. Filing Of First Information Report

Section 154 (i) mandates an officer in charge of a police station to record any information
he receives in written form if it is apparent or is revealed that the crime committed
qualifies as a cognisable offence. However, in case of a non-cognisable offence, the
information is recorded in a book dedicated for that purpose and the police officer in
charge of that station shall refer the informant to a competent magistrate in accord to
Section 155 (1). No investigation shall be undertaken by the police officer until such
orders are received. After such orders are received the police officer may exercise his
power to investigate except for the fact that he cannot exercise his power to arrest
without warrant.

2. Initiation Of Investigation: Cognisable Offence

4/8
In case of a cognisable offence, an officer-in-charge may begin the investigations without
the magistrate’s order. If prima facie the commission of a cognisable offence is revealed
then the police officer must prepare a police report or commonly known as a “charge-
sheet” on the basis of the investigation conducted by him or his competent
subordinates. The magistrate is then entitled to take cognisance of the case.

3. Initiation Of Investigation: Non-Cognisable Offence

In case of a non-cognisable offence, the officer under Section 155 (1) must refer the
informant to the magistrate with proper jurisdiction and further initiate investigation
pursuant to the orders of the magistrate. Further a report by a police officer after an
investigation opposed to Section 155 (2) could be deemed to be a complaint under
Section 2 (d) and Section 190 (1) (a) of the code subject to the condition that at the
inception of the investigation the concerned police officer is led to surmise that the case
involved commission of a cognisable offence or if there is any suspicion regarding the
same and on investigation it is discovered that the case involves commission of a non-
cognisable offence. However, the report cannot be treated as a complaint under Section
2 (h) or Section 190 (1) (a) of the code, if the police at the commencement of
investigation had known that the case involved commission of a non-cognizable offence.
In the case of P. Kunhumuhammed vs. State of Kerala[23] the court laid down the
following rule:

“Whenever a report of a police officer relating to a non-cognizable offence is brought to

the notice of a Magistrate he has to look into the matter and apply his judicial mind and
find out whether (a) it is a case where re-investigation has to be ordered under Section
202 of the Code or (b) whether it could be treated as a complaint under Section 2(h) and
Section 190(1)(a) of the Code and if so cognizance could be taken, (c) or whether it is a
case where the report cannot be treated as a complaint under Section 2(A) and Section
190(1)(a) of the Code or (d) it is a fit case for taking cognizance taking into consideration
all the attendant circumstances.”

Forms of Charges
Framing of charge basically is that stage of a pre-trial procedure where it is conveyed to
the accused that he is not to be discharged and therefore must either face a trial or
admit guilt. Framing of charge is the conclusion of pre-trial proceedings and a final order
qua the accused is passed.[24] In V.C. Shukla v. C.B.I.,[25] Desai, J., concurring with the
majority opinion said :

5/8
 “Charge serves the purpose of notice or intimation to the accused, drawn up according to
specific language of law, giving clear and unambiguous or precise notice of the nature of
the accusation that the accused is called upon to meet in the course of trial. Section 211,
clearly prescribes what the charge should contain and a bare reading of it would show
that the accused must be told in clear and unambiguous terms allegations of facts
constituting the offence, the law which creates offence with a specific name, if given to it,
and the section which is alleged to be violated with the name of the law in which it is
contained. 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. It is thus an intimation or notice to the accused of what precise offence or what
allegations of facts he is called upon to meet. The object of a charge is to warn an accused
person of the case he is to answer.”

A prima facie case has to be established before the framing of charge can be done.
Hereunder is a breakdown of the sections under the code related to framing of charges
with respect to the type of case or trial:

1. Section 227 and Section 228 – Sessions trial;

2. Section 239 and Section 240 – Warrant cases;
3. Section 245 (1) and (2) – Summons cases.

The main motive behind sections 211, 212 and 213, is certainly to empower the accused
to know about the charges levelled against him and be prepared before evidence is
presented.[26] Section basically provides for requirements of a charge which have been
enumerated below –

1. Offence with which the accused has been charged with must be stated against
such charge.
2. The charge framed must correspond to an offence created under the IPC. [27]
3. The charge so framed must comprise the words used in the Section of IPC
pertaining to which the charges have been framed. Sir Asutosh Mookerjee, J.,
observed that
“It is a wholesome rule that the court should adhere to the language of the
statute as far as practicable, when a charge is drawn up; nothing is gained by
a paraphrase, while opportunity is afforded to the accused to take exception
to the form of the charge.”
4. The charge must imperatively state the intention if it forms the gist of the offence,
otherwise, the omission to mention the intention will vitiate the charge.[28]
5. The charge must not be indefinite and vague. [29]

The charge must also contain the law and section against which the offence has been
committed. It must also include the particulars such as the time and place of the offence
which the accused has been alleged to have committed. Section 212 bestows
responsibility on the judges to give reasonably sufficient notice to the accused otherwise
he might be implicated for the acts he has not committed.
6/8
In cases where charges are framed separately against the accused then the person will
be tried for every distinct offence.[30] Section 223 is the only section related to the
framing of charges which speaks about joint trial of more than one person. This section
lays down the rule for joinder of different accused at a single trial for committing same or
different offence in same course of transaction. This section is an exception to the
general principle laid down in Section 220 which says that for every distinct offence, the
charge and trial must be separate.

Also, in case of an error or omission in stating either the offence or the particulars
necessary shall be considered to be substantive, except for instances where such an
error or omission has misled the accused and has prompted in failure of justice.[31]

[1] Sardar and Others v. The State, AIR 1961 Cal 181.

[2] Shri Ram Krishana Dalmia vs State, 1958 Cr LJ 683.

[3] R.P. Kapur v. State of Punjab, AIR 1960 SC 866.

[4] Valummel Thommachan v. State, 1994 Cr LJ 1738 (Ker).

[5] Union of India v. Sushil Kumar Modi, JT 1997 (1) SC 679.

[6] Abhinandan Jha v. Dinesh Mishra, 1968 Cr LJ 97 (SC)

[7] Bhuneshwar Prasad Sinha v. State of Bihar, 1981 Cr LJ 795 (Pat)

[8] 1962 (2) Cr LJ 544 (545) (J&K).

[9] 1899 AWN 87.

[10] AIR 1932 Lah 611.

[11] Bhagwant Singh v. Commissioner of Police, 1985 Cr LJ 1521 (SC)

[12] Amar Singh Tyagi v. Indra Pal Gautam, 1995 Cr LJ 1639 (All).

[13] 48 Cr LJ 774.

[14] 7 Cr LJ 414

[15] AIR 1957 SC 623

[16] M. Moses Nadar v. State, 1982 Cr LJ 555 (Mad)

[17] 1957 Cr LJ 188

[18] 1959 Cr LJ 959

[19] State of Maharashtra v. S. P. Munje, 1999 Cr LJ 1510 (Bom)

7/8
[20] Anil A Lokhande v State of Maharashtra, 1981 Cri LJ 125,130

[21] Sharafat v. Station Officer P.S. Kotwali, Muzaffarnagar, 1999 Cr LJ 283 (All).

[22] Shyama charan Dubey v. State of UP 1990 Cri LJ 456, 459

[23] 1981 Cri LJ 356

[24] Jarnail Singh v. State, 1992 Cr LJ 810 (Raj).

[25] 1980 Cr LJ 690 (SC)

[26] Ishwar Das v. State of Sikkim, 1998 Cr LJ 4447 (Sikkim).

[27] 9 WR (Cri) 23.

[28] 14 Cr LJ 129

[29] 25 Cr LJ 1186

[30] Section 218, Code of Criminal Procedure.

[31] Section 215, Code of Criminal Procedure.

About the Author: Shreya is a 2017-22 Batch Student at Nationa Law University Odisha.

Disclaimer: Although we try to ensure that the information provided, whether in relation
to the products, services, or offering or otherwise provided (hereinafter mentioned as
“INFORMATION”) on the website is correct at the time of publishing, we or any third
parties do not provide any warranty or guarantee as to the accuracy, timeliness,
performance, completeness or suitability of the information and materials found or
offered on this website for any particular purpose. It shall be your own responsibility to
ensure that any products, services or information available through this website meet
your specific requirements. Neither the website nor any person/organization acting on
its behalf may accept any legal liability/responsibility.

Terms-and-conditions/ (Click Here)

Criminal Law Review © 2019. All Rights Reserved.

8/8