to wit nesses for 216. When the accused has given in any list of witnesses Summons under section 211 and has been committed for trial, the Magistrate shall summon such of the witnesses included defence in the list as have not appeared before himself, to appear cused is before the Court to which the accused has been committed 1: committed. Provided that where the accused has been committed to the High Court, the Magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the Crown, and such witnesses may be summoned accordingly: when ac summon unneces ness unless Provided also that if the Magistrate thinks that any wit- Refusal to ness is included in the list for the purpose of vexation or delay2, or of defeating the ends of justice, the Magistrate may sary witrequire the accused to satisfy him that there are reasonable deposit grounds for believing that the evidence of such witness is made. material, and, if he is not so satisfied, may refuse to summon the witness 3 (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such Magistrate thinks necessary to defray the expense of obtaining the attendance of the witness. ants and 217. Complainants and witnesses for the prosecution and Bond of defence, whose attendance before the Court of Session or complainHigh Court is necessary, and who appear before the Magis- witnesses. trate, shall execute before him bonds binding themselves to be in attendance when called upon at the Court of Session or High Court, to prosecute or to give evidence, as the case may be. in case of attend or If any complainant or witness refuses to attend before the Detention Court of Session or High Court, or to execute the bond above in custody directed, the Magistrate may detain him in custody until refusal to he executes such bond, or until his attendance at the Court to execute of Session or High Court is required, when the Magistrate bond. shall send him in custody to the Court of Session or High Court, as the case may be. 218. When the accused is committed for trial, the Magis- Committrate shall issue an order to such person as may be appointed ment when by the Local Government in this behalf, notifying the com- fied. to be noti 16 Cal. 714. 2 3 Cal. 573, per Jackson J. 38 All. 668: 4 Mad. H. C. 81. Charge etc. to be to High mitment1, and stating the offence in the same form as the charge, unless the Magistrate is satisfied that such person is already aware of the commitment and the form of the charge; and shall send the charge, the record of the inquiry and forwarded any weapon or other thing which is to be produced in evidence, to the Court of Session or (where the commitment is made to the High Court) to the Clerk of the Crown or other officer appointed in this behalf by the High Court. Court or English translation to be for warded to High Court. Power to When the commitment is made to the High Court and any part of the record is not in English, an English translation of such part shall be forwarded with the record. 219. The Magistrate may summon and examine supplesummon mentary witnesses after the commitment and before the commencement of the trial, and bind them over in manner hereinbefore provided to appear and give evidence. supplementary wit nesses. Custody of accused pending trial. Such examination shall, if possible, be taken in the presence of the accused, and, where the Magistrate is not a Presidency Magistrate, a copy of the evidence of such witnesses shall, if the accused so require, be given to him free of cost. 220. Until and during the trial, the Magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused, by warrant, to custody. Charge to state offence. Specific name of CHAPTER XIX. OF THE CHARGE. Form of Charges. 221. Every charge under this Code shall state the offence with which the accused is charged. If the law which creates the offence gives it any specific offence suf- name, the offence may be described in the charge by that ficient de- name only. scription. How If the law which creates the offence does not give it any stated specific name, so much of the definition of the offence must 1 See form of notice, Sched. V. No. 27. be stated as to give the accused notice of the matter with where ofwhich he is charged. fence has no specific The law and section of the law against which the offence name. is said to have been committed shall be mentioned in the charge1. The fact that the charge is made is equivalent to a state- What imment that every legal condition required by law to constitute plied in the offence charged was fulfilled in the particular case 2. charge. of charge. In the Presidency-towns the charge shall be written in Language English; elsewhere it shall be written either in English or in the language of the Court. conviction If the accused has been previously convicted of any offence, Previous and it is intended to prove such previous conviction 3 for the when to be purpose of affecting the punishment which the Court is com- set out. petent to award, the fact, date and place of the previous conviction shall be stated in the charge. If such statement is 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; that it did not fall within any of the general exceptions of the same 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, 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 Indian Penal 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 property-mark, without reference to the definitions 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. 1 The Madras High Court ruled in 1881, that when the accused is liable to be punished under the Whipping Act, the charge must state the liability, 5 Mad. 158. For forms of charges, see Sched. V. 2 See the Evidence Act, sec. 105. Particulars place and person. (d) A is charged, under section 184 of the Indian Penal Code, 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. 222. The charge shall contain such particulars as to the as to time, 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 1. When manner of committing offence must be stated. Words in charge taken in sense of law under which offence is punishable. 223. When the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in 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 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 of his public functions at a given time and place. The charge must set out the manner in which A 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 B from punishment. The charge must set out the disobedience charged and the law infringed. 224. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable. 1 Accuracy and certainty in stating the offence are more especially required where the accused is sought to be implicated for acts not com mitted by himself, but by others with whom he was in company, 11 Cal. 108, 11 Cal. 106: and see 6 All. 204, per Straight J. 225. No error in stating either the offence or the par- Effect of ticulars required to be stated in the charge, and no omission errors, to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was misled by such error or omission 1. Illustrations. (a) A is charged, under section 242 of the Indian Penal Code, 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. (b) A is charged with cheating B, and the manner in which he cheated B is not 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 defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in this 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 was 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 that A was misled, and that the error was material. on commit or with 226. When any person is committed for trial without Procedure a charge2, or with an imperfect or erroneous charge, the Court, ment withor, in the case of a High Court, the Clerk of the Crown, out charge may frame a charge, or add to or otherwise alter3 the charge, imperfect Sessions Judge or Clerk of the Crown may think the prisoner ought to be tried for, 8 Bom. 200. 1 See secs. 232 and 237, infra. 2 These words apply, not only to a case in which there is no charge at all, but also to a case in which there is no charge of such an offence as the 3 with due caution, see 6 Bom. H. C., Cr. 76. charge. |