The Charge under the | Section 234 to 247 BNSS

The Charge under the BNSS, 2023: Chapter XVIII, Sections 234 to 247, Contents, Particulars, Errors, Alteration and the Recall of Witnesses

A charge is the document that tells an accused person what he has to answer. Everything in Chapter XVIII of the Bharatiya Nagarik Suraksha Sanhita, 2023 follows from that single object. The requirements as to contents exist so that he knows the offence; the requirements as to particulars exist so that he knows the occasion; the rule that the manner must be stated where the rest is not enough exists so that he knows the case; and the rule that errors are immaterial unless he was in fact misled exists because a defect that did not defeat the object is not a defect that matters.

The chapter has fourteen sections. Sections 234 to 237 deal with what a charge must contain; sections 238 to 240 with errors, alteration and its consequences; and sections 241 to 247 with the joinder of charges and of persons, which is examined separately in this series.

1. Meaning and Object

The Sanhita does not define “charge” except to say, in section 2(1)(c), that it includes any head of charge when the charge contains more heads than one. What a charge is has therefore to be taken from what the chapter requires it to contain: a precise formulation of the accusation, framed by the court, stating the offence, the law, and the occasion.

📖 V.C. Shukla v. State (Delhi Administration), 1980 Supp SCC 92

Facts: The accused objected that the charges framed against them were vague and did not give sufficient particulars of the offences alleged, and that the prosecution should have been required to disclose in the charge the detail of the case it proposed to make.

Held: The Supreme Court explained the object and the limits of a charge. The object of framing a charge is to give the accused notice of the matter he is charged with, so that he may prepare his defence; it does not require the prosecution to set out its evidence or to disclose the particulars of the case it will lead. The charge is not a pleading and is not intended to serve the function of one. What the accused is entitled to is a statement of the offence with reasonable precision, sufficient to tell him what he must meet; and the sufficiency of a charge is judged by asking whether it gave him that notice, not by asking whether it could have been fuller. The Court held that a charge framed in the terms of the statutory definition, with the particulars of time, place and person, ordinarily satisfies the requirement.

Ratio: The object of a charge is notice, not disclosure. It must state the offence with reasonable precision so that the accused knows what to meet, and it is not required to set out the evidence.

1.1 Who frames it, and when

Trial	Provision	When
Sessions trial	Section 251	After considering the record and the documents and hearing the parties, where there is ground for presuming. Now within sixty days from the first hearing on charge
Warrant case on a police report	Section 263	After considering the police report and the documents, examining the accused and hearing the parties
Warrant case instituted otherwise	Section 269	After taking all the evidence for the prosecution, if a case is made out
Summons case	Section 274	No charge is framed. The particulars of the offence are stated to the accused
Summary trial	Chapter XXII	No formal charge; the procedure of a summons case is followed

2. Contents: Sections 234 to 237

Figure 1: What a charge must contain

Section 234, BNSS 2023

(1) Every charge under this Sanhita shall state the offence with which the accused is charged.

(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.

(3) If the law which 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 the 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 has been previously convicted of any offence, and it is intended to prove that previous conviction for the purpose of affecting the punishment, the fact, date and place of the previous conviction shall be stated in the charge; and if the statement is omitted, the Court may add it at any time before sentence is passed.

2.1 Particulars: sections 235 and 236

Section 235 requires the charge to 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. The standard is not precision for its own sake; it is reasonable sufficiency measured against the object of notice.

Section 236 adds a further requirement for the cases where the first two are not enough. Where the nature of the case is such that the particulars mentioned in sections 234 and 235 do not give the accused sufficient notice, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. The provision is directed at offences such as criminal breach of trust and cheating, where the name of the offence and the date tell the accused almost nothing about what he is said to have done.

⚠ Two points of practical importance

Sub-section (5) is a considerable saving. The mere making of the charge is equivalent to a statement that every legal condition required to constitute the offence was fulfilled. It follows that a charge need not recite each ingredient of the offence separately, and an objection that an ingredient was not spelt out is answered by the sub-section.

Sub-section (7) is the provision on previous convictions. Where the prosecution intends to prove a previous conviction for the purpose of affecting the punishment, it must be stated in the charge. The omission is curable — the Court may add it at any time before sentence — and section 259 permits the Judge, in a Sessions trial, to take evidence of an unadmitted previous conviction after he has convicted the accused, so that the fact does not prejudice the trial of the issue of guilt.

3. Errors, Alteration and Recall

Figure 2: Errors, alteration and the right of recall

3.1 Errors: section 238

Section 238, BNSS 2023

No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

The two limbs are cumulative. A defect that misled nobody is not material; and a defect that misled but caused no failure of justice is not material either. Section 510 makes parallel provision for the omission to frame a charge at all, or the framing of an erroneous charge: a finding or sentence is not invalid on that ground unless a failure of justice has in fact been occasioned.

📖 Main Pal v. State of Haryana, (2010) 10 SCC 130

Facts: The accused was convicted of an offence in respect of which no charge had been framed at all, the charge having been framed for a different offence. The conviction was challenged on the ground that a conviction cannot be founded on an offence the accused was never called upon to answer.

Held: The Supreme Court held that the omission to frame a charge, or the framing of an erroneous charge, does not by itself vitiate a conviction. The provisions on the effect of errors and on the omission to frame a charge require the court to ask whether the accused was in fact misled and whether a failure of justice has been occasioned. The test is one of prejudice in substance, and the whole record is to be examined: what the accused was told, what evidence was led, what questions were put to him in his examination, and how he conducted his defence. Where it appears that the accused knew throughout what he was facing and had a full opportunity to meet it, no prejudice results from the technical absence of a charge. But where he was convicted of an offence of which he had no notice and which he had no opportunity to meet, the conviction cannot stand; and in such a case the ordinary course is a retrial on a proper charge, not an acquittal. The Court also emphasised that the burden of showing prejudice is on the accused.

Ratio: The omission to frame a charge or an error in it does not vitiate a conviction unless the accused was in fact misled and a failure of justice resulted. The test is prejudice in substance, on the whole record, and the burden is on the accused.

3.2 Alteration: sections 239 and 240

Any Court may alter or add to any charge at any time before judgment is pronounced. The power is wide, and it exists because the case as it emerges in evidence frequently differs from the case as it appeared on the papers.
Every alteration or addition shall be read and explained to the accused. The object of the chapter is notice, and an altered charge of which he is not told serves none of it.
If proceeding immediately is not likely to prejudice the accused or the prosecutor, the Court may proceed as if the altered charge had been the original.
If it is likely to prejudice, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
Where the altered offence requires a previous sanction, the case shall not be proceeded with until that sanction is obtained, unless sanction has already been obtained for a prosecution on the same facts.

Section 240 completes the scheme. Whenever a charge is altered or added to after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon and examine, with reference to the alteration or addition, any witness who may have been examined — unless the Court, for reasons to be recorded in writing, considers that the party desires the recall for the purpose of vexation or delay or for defeating the ends of justice — and to call any further witness whom the Court may think to be material.

⚠ The right of recall is what makes the power of alteration fair

A charge may be altered at any time before judgment precisely because the party affected may then re-examine the witnesses on the new footing. The two sections are a pair, and neither works without the other.

It follows that an alteration made after the commencement of the trial without drawing attention to the right of recall, or with the right refused for no recorded reason, is open to challenge — not because the alteration was wrong, but because what makes it fair was withheld.

And it follows that the question under section 239(3) whether proceeding immediately is likely to prejudice the accused should be answered with the right of recall in view. Where the witnesses can be recalled and examined on the altered charge, prejudice is ordinarily avoided; where they cannot, an adjournment or a new trial is the course.

4. The Rest of the Chapter

Provision	Subject
Section 241	Separate charges for distinct offences, and separate trial of each; with a proviso permitting a joint trial where the accused so applies in writing and the Magistrate is of opinion that he is not likely to be prejudiced
Section 242	Three offences of the same kind within twelve months may be charged and tried together, up to a maximum of five
Section 243	Trial for more than one offence: the same transaction; criminal breach of trust with falsification of accounts; acts falling within two or more separate definitions; and several acts which when combined constitute a different offence
Section 244	Where it is doubtful what offence has been committed: the accused may be charged with having committed all or any of them, or in the alternative, and may be convicted of the one shown to have been committed even though he was not charged with it
Section 245	Where the offence proved is a minor offence included in the one charged, the accused may be convicted of the minor offence although he was not charged with it
Section 246	What persons may be charged jointly
Section 247	Withdrawal of the remaining charges where the accused is convicted on one of several charges, and the effect of the withdrawal

Sections 241 to 247 are examined in the separate topic on the joinder of charges. What should be held in mind here is that they are exceptions to the rule in section 241, and that the rule exists to prevent an accused being confronted at one trial with a mass of unrelated accusations against which he cannot realistically defend himself.

5. Key Takeaways

The position stated shortly

1. The object of a charge is notice: to tell the accused, with reasonable precision, what he is said to have done. It is not a pleading and does not require the prosecution to set out its evidence: V.C. Shukla.

2. Section 234: the charge shall state the offence; may describe it by its specific name where the law gives one; must otherwise state so much of the definition as gives notice; and must mention the law and the section.

3. Section 234(5): the making of the charge is equivalent to a statement that every legal condition required to constitute the offence was fulfilled. Each ingredient need not be separately recited.

4. Section 234(7): a previous conviction intended to be proved for the purpose of affecting the punishment must be stated, and the Court may add it at any time before sentence.

5. Section 235: particulars as to time, place, person and thing as are reasonably sufficient to give notice.

6. Section 236: where those are not enough, the charge must also state the manner in which the offence was committed — as in breach of trust or cheating.

7. Section 238: an error or omission is not material unless the accused was in fact misled and it has occasioned a failure of justice. The two limbs are cumulative, and section 510 makes parallel provision for the omission to frame a charge at all.

8. The burden of showing prejudice is on the accused, the test is one of substance on the whole record, and where the objection succeeds the ordinary order is a retrial, not an acquittal: Main Pal.

9. Section 239: any Court may alter or add to a charge at any time before judgment; the alteration is read and explained; the Court may proceed if no prejudice is likely, and must adjourn or order a new trial if it is; and a fresh sanction must be obtained where the altered offence requires one.

10. Section 240: on an alteration after the trial has begun, both parties may recall and re-examine any witness already examined, and call further material witnesses. That right is what makes the power of alteration fair.

6. Frequently Asked Questions

What is the object of framing a charge?

To give the accused notice of the matter with which he is charged, so that he may prepare his defence. It is not a pleading and does not require the prosecution to disclose its evidence: V.C. Shukla v. State.

Must every ingredient of the offence be stated in the charge?

No. Section 234(5) provides that 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.

When must the manner of committing the offence be stated?

Under section 236, where the nature of the case is such that the offence, the law and the particulars of time, place, person and thing do not give the accused sufficient notice. It applies typically to offences such as criminal breach of trust and cheating.

Does an error in the charge vitiate the trial?

No, unless the accused was in fact misled by the error or omission and it has occasioned a failure of justice. Both limbs must be established, and the burden of showing prejudice is on the accused: section 238, and Main Pal v. State of Haryana.

Can a charge be altered during the trial?

Yes. Section 239 permits any Court to alter or add to a charge at any time before judgment is pronounced. The alteration must be read and explained to the accused; the Court may proceed at once if no prejudice is likely, and must adjourn or direct a new trial if it is.

What happens to the witnesses after a charge is altered?

Section 240 entitles both the prosecutor and the accused to recall or re-summon and examine, with reference to the alteration, any witness already examined, and to call further material witnesses. The Court may refuse only for recorded reasons of vexation, delay or defeating the ends of justice.

Related Topics

Joinder of Charges: Sections 241 to 247, BNSS
Charge and Notice of Accusation Compared
Trial before a Court of Session: Sections 248 to 260, BNSS
Cognizance and the Framing of a Charge Distinguished
Commencement of Proceedings: Sections 227 to 233, BNSS
Irregular Proceedings and the Test of Failure of Justice