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FRAMING OF CHARGES


Section 137 Rules with regard to framing of charges:

Statement of the offence based on description of what offence has been committed. 

Particulars are the words which will describe the offender and it will also briefly describe the particulars of the offence.  it will describe the property or goods which are the subject matter.  If the goods are specific, there will be a proper description of the goods.  The particulars are supposed to reveal the ingredients of the offence.

If there are things like instruments or documents to be indicated in the charge sheet, Section 137 (e) makes provision that where it is important to refer to document it shall be sufficient to describe it without setting a copy thereof.  If it is a cheque for example you don’t need to attach a photocopy.

137 (e)            where it is necessary to refer to a document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out a copy thereof;

The issue of joinder becomes relevant depending on the charge.

A charge must have
Statement
Particulars – the particulars must be clear, concise, must describe the elements of the offence

Where there is more than one person charged, you can join persons if they have jointly committed an offence, it must be clear in the facts that there was unity of purpose.  It will depend on the circumstances, if you want to charge them with only

Is there a common purpose?  Charge the people jointly.

Particulars
Two men have car jacked a motor vehicle – there is no violence – theft of motor vehicle – charge the persons with committing the theft of motor vehicle.
Sura Mbaya will be charged jointly with others not before the court.  Joinder means that there is more than one offence in the same transaction so one has to join all the offences in one charge sheet.

Charge him separately on another charge sheet for stealing a Toyota Corolla

Particulars
Sura Mbaya jointly with others not before the Court

Second count:  Theft of Toyota Corolla
Where facts are not clear on lets say sexual assault, charge with the highest charge which would be rape.  There is provision that were someone is charged with rape and evidence is adduced that a lesser offence was committed the court can reduce the charge to the lesser offence.  the court cannot enhance a charge but it can reduce the charge depending on the evidence.

COUNT NO. 1           Theft of Range Rover

COUNT NO. 2           Theft of Toyota Corolla

Each statement of offence must attract its own particulars.  A charge is duplex where in one charge there is more than one offence.  the rule of joinder of counts and joinder of charges.

ALTERNATIVE CHARGE
It is different from a count, if in the main charge there is not enough evidence adduced, then there is an alternative charge to which evidence can be adduced that another offence occurred.

In doctrine of recent possession –

An alternative charge can only be brought in respect of the person in whose possession the goods have been found.

COUNT NO. 1

STATEMENT

PARTICULARS

COUNT NO. 2

STATEMENT

PARTICULARS

ALTERNATIVE CHARGE

STATEMENT

PARTICULARS

COUNT NO. 3

STATEMENT

PARTICULARS
The good rule is to charge with Rape as count No. 3 knowing very well that if there is no evidence to support rape the court will if there is evidence reduce the charge to indecent assault.

In ones legal opinion they will have given all the details and the charge that one drafts is based on ones legal opinion.

Alternative charges are comparative and therefore the court cannot find you guilty of the main charge as well as the alternative.  The court will not find a person guilty of theft and then guilty of possession.  In terms of making findings, as a court one should never find somebody guilty of the main charge and the alternative.

There is a provision for amendment of charges which means in the course of trial,

Section 214 of the CPC it states that where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:

This section is to the effect that if it appears to the court that the charge should be amended, it can move itself and require the prosecutor to amend the charge.  Alternatively the prosecutor can make an application to the court to amend the charge.  A new charge is brought with red underlinings to show that it has been amended.

Substitution means that there is a totally different charge.  If for example someone has been charged with dangerous driving, if thereafter the victim of the Accident dies, the prosecution can substitute it with one of causing death by dangerous driving and they can substitute the charge.

If in the course of evidence it emerges that other charges that ought to have been drafted were not drafted the court can direct that the other charges be drafted, the police will then go and draft and bring a new charge sheet.  Provided where a charge is so altered the court shall call upon the accused person to plead to the additional or substituted charges.  The court must take a fresh plea giving the accused to admit or deny.

Where the charges are altered the accused may demand that the witnesses or any of them may be recalled and give evidence afresh or be further be cross-examined by the accused or his advocates.  This means that once a charge is altered or amended the accused is at liberty to require the witnesses who had already given evidence to be recalled to either given evidence afresh or to be re-examine.

Variance between charge and evidence, and amendment of charge.
In the court file in the proceedings it must be indicated that the accused person; that Section 214(1) is complied with. 

The charge will be read and explained to the accused person.  The accused person is required to respond.  214(2) court file should indicate that the accused has the right to have the witnesses recalled, it should all be recorded down and the court should proceed to recall the witnesses.
214(2)           Variance between the charge and evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.

One of the most common variances is the variance of time, this is due to time since proceedings take place long after the offence.  the witnesses usually give varied times.  It has taken awhile and there will be variance of time.  The provision is saying that variance of time should not be a material thing.

214(3)  where an alternation of a charge is made under sub section (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has thereby misled, deceived, adjourn the trial for such a period as may be reasonably necessary.

The court shall adjourn the trial for such a period as may be reasonably necessary.  If the substitution or amendment brings in a different charge, then one would have been misled and will need time to reorganise themselves.  For example if you beat up somebody and within the stipulated time they later die, one is then charged with manslaughter.   Like when Patni was charged with murder of an employee – it takes one by complete surprise and they usually will need time to go and organize themselves.

 
 
 

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