Charge and Notice of Accusation Compared | BNSS 2023

Charge and Notice of Accusation: the Formal Charge in a Sessions and Warrant Trial, the Particulars of the Offence in a Summons Trial, and the Consequence of a Defect

Not every criminal trial begins with a written charge. In a Sessions trial and in a warrant case the court frames a charge in writing, in the form Chapter XVIII prescribes, and reads it over and explains it to the accused. In a summons case and in a summary trial it does not: section 274 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires only that the particulars of the offence be stated to the accused, and he is then asked whether he pleads guilty or has any defence to make.

The difference is one of formality, not of principle. Both procedures serve the same object — telling the accused what he is said to have done — and the formality is graduated to the seriousness of the case. A trial that may end in imprisonment for life warrants the precision of a written charge; a trial that can end only in a small fine does not, and the cost of the formality would exceed its value.

1. The Two Procedures

Figure 1: The two compared

Section 274, BNSS 2023: the summons-case procedure

When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge:

Provided that the Magistrate may, on the application of the prosecution or the accused, and for reasons to be recorded in writing, permit any person to be examined in the manner the section provides.

	A formal charge	The particulars of the offence
Where used	A Sessions trial under section 251; a warrant case on a police report under section 263; a warrant case instituted otherwise under section 269	A summons case under section 274; a summary trial under Chapter XXII, which follows the summons-case procedure
Form	In writing, in the language of the Court, framed in accordance with Chapter XVIII	Oral. The particulars are stated to the accused. No formal charge is framed
Contents	The offence; its specific name or so much of its definition as gives notice; the law and the section; time, place, person and thing; and where necessary the manner	The particulars of the offence of which he is accused — enough for him to know what he must meet
What follows	It is read and explained, and he is asked whether he pleads guilty or claims to be tried	He is asked whether he pleads guilty or has any defence to make
Alteration	Section 239: may be altered or added to at any time before judgment, read and explained, with the right of recall under section 240	The particulars may be restated. The same principles of notice and prejudice apply
Conviction on a plea	Section 252 in a Sessions trial; section 264 in a warrant case: the plea is recorded and the accused may be convicted on it	Section 275: the plea is recorded in the words used by the accused and he may be convicted on it
Record of evidence	The full record required for a warrant or Sessions trial	The memorandum of the substance of the evidence in a summons case; further abbreviated in a summary trial

2. Why the Distinction Exists

The Sanhita graduates its formality to the gravity of the case throughout. A summons case is one relating to an offence not being a warrant case, and a warrant case is one relating to an offence punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. A summons case is therefore, by definition, a case in which the maximum sentence is two years or less, and a very large proportion of them are punishable with fine alone.

The formality would cost more than it is worth. A written charge, framed, read, explained and liable to alteration with a right of recall, is a substantial procedural apparatus. Applied to a case that will be over in an afternoon, it consumes more of the court’s time than the case does.
The object is achieved without it. The accused is told the particulars of the offence and asked to plead. Where the particulars are sufficient, he knows what he must meet, and that is all a charge would have given him.
The summons-case procedure has its own protections. Section 275 requires the plea of guilty to be recorded in the words used by the accused; section 279 permits acquittal where the complainant does not appear; and section 281 permits the Magistrate to stop the proceedings in a case not instituted on a complaint.

📖 Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324

Facts: In a summons case the accused, after the particulars of the offence had been stated to him and he had pleaded not guilty, applied to the Magistrate to recall the process and drop the proceedings on the ground that no offence was made out. The question was whether a Magistrate in a summons case has any power to review or recall the issue of process after the plea has been recorded.

Held: The Supreme Court held that once the particulars of the offence have been stated under the summons-case provision and the plea of the accused recorded, the Magistrate has no power to review or recall the issue of process or to drop the proceedings; the Sanhita contains no provision empowering him to do so, and the general bar on a court altering its own order applies. The only course open to him thereafter is to proceed with the trial in accordance with the summons-case procedure and to acquit or convict at the end of it. The Court held that the remedy of an accused who contends that the proceeding is an abuse of process is to approach the High Court in its inherent jurisdiction; he cannot ask the Magistrate to undo what he has done.

Ratio: In a summons case, once the particulars have been stated and the plea recorded, the Magistrate cannot recall the process or drop the proceedings. He must try the case, and the remedy against an abusive prosecution lies in the High Court.

3. The Consequence of a Defect

Figure 2: The two-limb test

The same test governs both procedures, and it is stated in two places. Section 238 deals with an error or omission in a charge; section 510 deals with the omission to frame a charge at all, or the framing of an erroneous one. Both require the same two things to be shown, and both require them cumulatively.

Section 510, BNSS 2023

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 charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

📖 Sanichar Sahni v. State of Bihar, (2009) 7 SCC 198

Facts: The accused was convicted of offences in respect of which the charge framed was defective, and the conviction was challenged on the ground that a defect in the charge is by itself sufficient to vitiate the trial. The question was the approach a court of appeal should take to a defective charge.

Held: The Supreme Court held that a defect in the charge, or even the absence of a charge, does not vitiate the conviction unless a failure of justice has in fact been occasioned. The court must examine whether the accused was prejudiced in substance: whether he knew what he was being tried for, whether he had a fair opportunity to meet the case, and whether the defence he actually conducted was affected by the defect. The Court emphasised that the burden of establishing prejudice lies on the accused, and that a mere technical irregularity is not enough; the objection is to be tested against the whole record, including the evidence led, the questions put to the accused in his examination, and the defence taken. It held that where the accused understood throughout what he was facing, the conviction is not to be disturbed.

Ratio: A defect in, or the absence of, a charge does not vitiate a conviction unless a failure of justice has in fact been occasioned. The test is prejudice in substance, on the whole record, and the burden lies on the accused.

⚠ Four points on applying the test

The burden is on the accused. The defect does not speak for itself. He must show that he was in fact misled and that a failure of justice resulted.

The whole record is looked at. What the documents supplied told him, what evidence was led, what was put to him in his examination, and how he conducted his defence. If he cross-examined on the very matter he now says he was not told about, the objection fails.

The stage at which it is taken matters. An objection taken at the trial, when the charge could have been altered under section 239 and the witnesses recalled under section 240, carries far more weight than one taken for the first time in appeal.

Where the objection succeeds, the ordinary order is a retrial, on a proper charge — not an acquittal. An acquittal follows only where the material could not sustain any charge at all.

4. The Practical Consequences of the Distinction

Question	In a Sessions or warrant trial	In a summons trial
Is there a document the accused can point to?	Yes — the written charge, on the record	No. The record shows that the particulars were stated. Its adequacy is judged from the order sheet and the proceedings
Can the accused seek discharge?	Yes — sections 250 and 262, and now within sixty days	No. There is no discharge in a summons case. The Magistrate may stop the proceedings under section 281 in a case not instituted on a complaint
Can the process be recalled?	No by the same court; the remedy is the High Court	No, once the plea is recorded: Subramanium Sethuraman
Is the plea recorded specially?	The plea is recorded and the accused may be convicted on it	Section 275 requires it to be recorded in the words used by the accused, and he may be convicted on it
What if the complainant does not appear?	Does not arise in a police-report case	Section 279: the Magistrate may acquit the accused, unless he adjourns or dispenses with attendance
Can the case be withdrawn or compounded?	Section 360 for withdrawal from prosecution; section 359 for compounding	Section 280 permits withdrawal of a complaint with the leave of the Magistrate, which operates as an acquittal
Can it be converted?	A warrant case is not converted into a summons case	Section 276 permits the Magistrate, where the offence is punishable with imprisonment exceeding six months, to convert a summons case into a warrant case in the interests of justice

The last row deserves a note. Section 276 permits a Magistrate, in a summons case relating to an offence punishable with imprisonment exceeding six months, to recall the witnesses and rehear the case as a warrant case where he is of opinion that it is in the interests of justice to do so. The provision exists because the summons-case procedure, though appropriate for most minor offences, may prove inadequate where the case turns out to be more serious than it appeared; and the conversion carries with it the framing of a formal charge.

5. Key Takeaways

The position stated shortly

1. A formal written charge is framed in a Sessions trial (section 251) and in a warrant case (sections 263 and 269). It is in writing, in the language of the Court, and framed under Chapter XVIII.

2. In a summons case no charge is framed. Section 274 requires the particulars of the offence to be stated to the accused, and he is asked whether he pleads guilty or has any defence to make.

3. A summary trial follows the summons-case procedure, so no charge is framed there either.

4. The difference is one of formality, not of principle. Both serve the same object — notice — and the formality is graduated to the gravity of the case.

5. A summons case is by definition one in which the offence is not punishable with death, imprisonment for life, or imprisonment exceeding two years.

6. In a summons case, once the particulars have been stated and the plea recorded, the Magistrate cannot recall the process or drop the proceedings; he must try the case, and the remedy lies in the High Court: Subramanium Sethuraman.

7. Section 238 governs an error or omission in a charge; section 510 governs the omission to frame one at all. Both require that the accused was in fact misled and that a failure of justice was occasioned.

8. The burden is on the accused, the test is prejudice in substance on the whole record, and a technical irregularity is not enough: Sanichar Sahni.

9. The stage at which the objection is taken matters: one taken at the trial, when the charge could have been altered and the witnesses recalled, carries far more weight than one taken in appeal.

10. Where the objection succeeds, the ordinary order is a retrial on a proper charge, not an acquittal.

6. Frequently Asked Questions

Is a charge framed in every criminal trial?

No. A formal written charge is framed in a Sessions trial and in a warrant case. In a summons case and in a summary trial the particulars of the offence are stated to the accused under section 274 and no formal charge is framed.

Why is no charge framed in a summons case?

Because the offence is by definition not punishable with death, imprisonment for life or imprisonment exceeding two years, and the procedural apparatus of a formal charge would cost more than it is worth. The object of notice is achieved by stating the particulars.

Can a Magistrate drop a summons case after the plea is recorded?

No. Once the particulars have been stated and the plea recorded, he has no power to review or recall the issue of process; he must proceed with the trial and acquit or convict. The remedy against an abusive prosecution is a petition to the High Court: Subramanium Sethuraman.

Does the absence of a charge vitiate a conviction?

No, unless a failure of justice has in fact been occasioned. Sections 238 and 510 require both that the accused was in fact misled and that a failure of justice resulted, and the burden of showing it is on the accused: Sanichar Sahni.

Can a summons case become a warrant case?

Yes. Section 276 permits the Magistrate, in a summons case relating to an offence punishable with imprisonment exceeding six months, to recall the witnesses and rehear the case as a warrant case where he considers it to be in the interests of justice. The conversion brings with it the framing of a formal charge.

Is there a discharge in a summons case?

No. There is no provision for discharge. The Magistrate may stop the proceedings under section 281 in a summons case instituted otherwise than on a complaint, and may acquit under section 279 where the complainant does not appear.

Related Topics

The Charge under the BNSS, 2023: Sections 234 to 247
Joinder of Charges: Sections 241 to 247, BNSS
Summons Case and Warrant Case under the BNSS, 2023
Trial before a Court of Session: Sections 248 to 260, BNSS
Cognizance and the Framing of a Charge Distinguished
Irregular Proceedings and the Test of Failure of Justice