Joinder of Charges

[ss. 233-240 Cr. P. C. 1898]

Justice Dr. Munir Ahmad Mughal
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Introduction
The soul of all justice is fair trial.
Criminal justice is no exception to it. The
law on the subject of charge is contained
in chapter 19 of the Code of Criminal
Procedure, 1968 which comprises twenty
sections (namely, ss. 221 to 240). Out of
them sections 221 to 232 deal with form
of charges while sections 233 to 240 deal
with joinder of charges. Here we shall
1
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analyse and discuss the following eight

topics, namely, Separate Charges for distinct
offences.1
Three offences of same kind within
one year may be charged together.2
Trial for more that one offence.3
When it is doubtful what offence has
been committed?4
When a person is charged with one
offence, he can be convicted of
another.5
When offence proved included in
offence charged.6
What persons may be charged
jointly?7
1

Section 233 Cr. P. C. 1898.

Section 234 Cr. P. C. 1898.
3
Section 235 Cr. P. C. 1898.
4
Section 236 Cr. P. C. 1898.
5
Section 237 Cr. P. C. 1898.
6
Section 238 Cr. P. C. 1898.
2

2
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 Withdrawal of remaining charges on

conviction on one of several charges. 8
In this analysis we shall try to
understand and explain the rules on
each subject given by the adjective law
that is the Cr. P. C. 1898 and also the
application of the same by the Courts
in Pakistan. This study will thus reflect
the theory and practice of near a dozen
decades. This study will help
understand the readers the role of the
law, the bench and the bar in
maintaining the rule of law on the
criminal side and up keeping the very
purpose of all justice which is termed
as the fair trial.
The Key Words
7
8

Section 239 Cr. P. C. 1898.

Section 240 Cr. P. C. 1898.
3

In this paper the Key words relating to

charge are: definition of charge,
groundless charge, defect in charge, an
irregularity when curable and when not
curable, not exceeding three, not
reducing in writing, defective, error in
framing, omission to frame, same
transaction, validity of , withdrawal of,
alteration of, failure of justice, failure to
prove, joinder of , mis-joinder of ,
Offences, several offences, shall state
the offence, scheduled offences, offences
of same kind and offences not of same
kind, previous conviction, trial, joint
trial, withdrawal of trial, challan case and
private complaint , causing prejudice to
accused.

Coherence and sequence in the

scheme of the Code of Criminal
Procedure, 1898
The Code of the Criminal Procedure,
1898 is so beautifully drafted and
arranged that there is graceful sequence
in its contents. It is an adjective law9 and
provides mechanism to foster the cause
of justice and not to hamper the same.
Courts are not to sit as silent spectators,
if public prosecutor for any reason fails
or neglect to discharge his duties, the
Court as guardian of law is required to
act in furtherance to the cause of justice.
Code of Criminal Procedure is provided
to promote the cause of justice and
9

Law is classified as substantive law and adjective law.

Substantive law is that which defines the rights and
obligations of citizens while an adjective law is that which
provides machinery whereby and in the manner those are to
be got, executed or implemented. This is also called
procedural law.
5

technicalities and procedural intricacies

are never allowed to impede the cause of
justice.10
Is the Cr. P. C. 1898 an Exhaustive
Code?
The Code of Criminal Procedure 1898
professes to deal exclusively with the
law of procedure in the minutest details
the procedure to be followed in every
mater pertaining to general
administration of criminal law.
The procedure as provided in the Code is
not designed to aid prosecution or the
accused but to unearth the truth11.
10

2000 MLD 865.

The courts are to sift the truth from falsehood. The end of
all law is that the truth must prevail. The various human
traits and psychology under the impulse of vested interests
conceals the truth, the reality and the pure facts which
cause disorder and mischief in the society. A law is enacted
to prescribe a rule of conduct to be observed in a society
whereby peace and order prevails. It is broken for many
11

reasons. The breakers are booked and the administration of

justice plays its role to mend, set, redress, and compensate
etc.etc. This is again done according to law. Before justice
complainant and accused are equal and both have their
legal rights which are to be respected. Sides are not to be
taken by the Court. Impartiality is to be observed
throughout the proceedings. Justice is not to be denied to
either side. Those who stress law is not morality forget that
law is also not immorality. Truth is not related to
immorality, rather it is all morality. To keep a thing at its
proper place is called justice according to the definition of
this term in Islam. Propriety pre-requires correctness and
legitimacy. Guidance available in the Holy Quran on the
subject of fair trial is:



8. O ye who believe! stand out firmly for Allah, As
witnesses to fair dealing, and let not the hatred of others to
you make you swerve to wrong and depart from justice. Be
just: that is next to piety: and fear Allah. For Allah is wellacquainted with all that ye do.
[5:8]

As such on matters in which it declares

law12, and on points specially dealt with
by it, the Code must be deemed to be
exhaustive.13

135. O ye who believe! Stand out firmly for justice, as
witnesses to Allah, even as against yourselves, or your
parents, or your kin, and whether it be (against) rich or
poor: for Allah can best protect both. Follow not the lusts
(of your hearts), lest ye swerve, and if ye distort (justice) or
decline to do justice, Verily Allah is well- acquainted with
all that ye do.
[4:135]

12
13

29 I.A. 196.
23 Cal 563 (P.C.).
8

What matters relate to procedural

law?
Matters relating to remedy, mode of trial,
the manner of taking evidence, and
forms of actions are all maters relating to
procedure.14
What is to be done where in a
particular matter no provision of
law is available in the Cr. P. C.
1898?
In cases of absence of any provision in
case of a particular matter, the Court may
act on the principle that every procedure
should be understood as permissible till
it is prohibited by law.15
Absence of any provision on a particular
matter in the Code does not mean that
there is no such power in criminal Court
14
15

PLD 2001, SC 607

1992 MLD 1944.
9

which may act on the principle that every

procedure should be understood as
permissible till it is shown to be
prohibited by law.16
What is a Charge?
A charge is defined in Cr. P. C. 1898 in
section 4(c) which reads as under:
( c ) Charge includes any head of
charge when the charge contains more
heads.
Such a definition is called an inclusive or
enlarging definition which maintains the
ordinary dictionary meaning of the word
defined and includes certain more things
in it.
Ordinary meaning of a charge is an
allegation of some deviation from the
norms of a society. When such deviation
16

AIR 1956SC 116.

10

is made punishable under the law it is

called a charge.
The term charge has been judicially
interpreted to mean a precise formulation
of the specific accusation against a
person who is entitled to know its nature
at the earliest. It denotes charge
formulated after inquiry which an
accused is to face in the trial. The object
of framing charge is to afford the
defence an opportunity to concentrate its
attention on the case that it has to meet.17
Thus before framing a charge a Court is
, To make a perusal of the Police
Report,
To examine all documents that come
on the record of the Court,
17

KLR 1993 Criminal Cases 8.

11

 To examine all statements that were

recorded by the Police or any
Magistrate during the investigation
and have come on the record of the
Court,
To consider that what ever has come
before the court prima facie makes
out an offence against the accused,
and
To make an opinion that in the
presence of all that material accused
should face a trial.
Charge is not final determination
of the guilt of the accused.
It does not per se means that the accused
is held guilty. To hold him guilty, the
charge is to be established by the
Prosecution standing on its own legs
12

beyond any reasonable doubt.

Admissible and relevant evidence is to
be produced and made subject to the acid
test of cross examination. This is also to
be seen according to law and under the
law. A judge is also not above law. He is
to proceed according to law. His
proceedings are called judicial
proceedings. At every step whether
discretionary or non discretionary he is
to remain judicial and fair. Every dent in
the prosecution case is to give benefit of
doubt to the accused and all principles of
fair trial are to be observed at all stages
from start to end.
A charge is not rigid or
unchangeable.

13

Charge once framed may be altered or

changed at any stage and any number of
time. This power is available to the Court
under section 227 of the Cr. P. C. 1898. 18
This change is also not arbitrary,
whimsical or at the sweet will of the
court. It is according to law and in
accordance with law. It is also not to
cause harassment or prejudice to the
accused or to give any hidden benefit to
the prosecution. Every action of the court
must be in accordance with the facts and
circumstances of the case as come on the
record in a fair manner.
What is mandatory for a charge to
contain?
A charge must contain all material
particulars as to,18

200P.Cr.L.J. 576.
14

 The time,
The place,
the specific name of the alleged
offence,
the manner in which it was
committed, and
particulars of the accused.19
What is an offence?
According to section 4(o) an offence
means any act or mission made
punishable by any law for the time being
in force; It also includes an act in
respect of which a complaint may be
made under section 20 of the Cattle
Trespass Act, 1871.

19

2000 P. Cr. L. J. 367.

15

Distinction between intentions,

preparation, endeavours to do,
short of execution, attempt, and
commission.
Intention means firm resolution of
heart and mind to do an act.
Preparation means an effort to
collect all that is needed to bring that
intention into action.
Planning, Endeavours to do is
practical advancement to wards the
target.
Short of execution means from the
side of the intender all was done but
the scheme failed due to some
external reason.
Attempt means more than mere
preparation or planning which if not
prevented would have brought the
ultimate design.
16

Judicial interpretation of the

words attempt to commit a crime
An accused is liable for attempt when his
failure to commit an offence is not due to
any act or omission of his own, but to the
intervention of some factor independent
of his own volition.20

In a criminal case the Honourable

Supreme Court of Azad Jammu and
Kashmir observed:
The requisite elements of an attempt to
commit a crime are:
1. an intent to commit it,
2. an overt act towards its
commission,
3. failure of consummation, and
20

PLD 1970 Lahore 230; AIR 1961 SC 1698.

17

4. the apparent possibility of

commission.21
Attempt as interpreted by the
Federal Shari`at Court in Pakistan
Whether a particular act done with the
requisite intention towards the
commission of an offence is sufficiently
proximate to its commission to
constitute an attempt or is so remote as
to constitute only a a preparation for its
commission, depends upon the fact and
circumstances of each case. According to
Salmond, an attempt is an act of such a
nature that it is itself evidence of the
criminal intent with which it is done. The
scope of Shari`ah/ in relation to the
concept of attempted crime is much
wider than that of the modern criminal
law. The Shari`ah/ provides for
21

1995 P. Cr. L.J. 877 (Supreme Court AJ&K).

18

punishment for ever abortive or intended

offence and there is no exception to this
rule. E.g. if a person raises a stick to
strike another man but a third person
intervenes to prevent the first person, the
first person will be guilty of an offence
and liable to punishment. 22
General rule laid down by section
233 of the Cr. P. C. 1898
Section 233 Cr. P. C. lays down the
general rule that every distinct offence,
for which any person is accused, shall be
charged and tried separately.
This section provides two things,
namely,1. That there shall be a separate
charge for every distinct offence; and
2. That there shall be a separate trial
for every such charge except in four
22

PLD 1991 FSC 268.

19

cases as provided in ss. 234, 235, 236

and 239.
Why sections 233 to 240 Cr. P. C.
are to be read together?
The reason is that sections 233 to 240 Cr.
P. C. deal with joinder of charges and
they must be read together and not in
isolation. When the exceptions contained
in sections 234, 235, 236 and 239 Cr. P.
C. are read with the general rule
contained in section 233 CR. P. C. , it
appears that the object of exception is to
avoid the necessity of same witnesses
giving the same evidence two or three
times in different trial and to join in one
trial those offences with regard to which
the evidence would overlap.

20

How many categories are there of

the distinct offences in the light
of the illustration to section 233?
There are seven categories of distinct
offences in the light of the illustration of
section 233 Cr. P. C. and those are:
Offences falling under different
sections of the same penal
enactment.23
Offences falling under different penal
enactments.24
Offences committed on different
occasions even though they may fall
under the same section.25
Offences committed against different
persons. 26
23

(51) 55 Cal WN (3DR) 37.

AIR 1933 Lahore 231.
25
(50) 3 Sau LR 242.
26
AIR 1939 Cal. 32.
24

21

 Offences committed by different

persons individually though they may
be of the same kind, as where three
persons were charged with being
drunk.
Allegations of misappropriation
against accused not in respect of any
single amount but relating to different
specific amounts received by him on
different dates from different persons.
Cases, in which the offences of
the same kind committed on one
occasion, are taken as one offence
and not distinct offences:

Theft of several articles from one

person or more at the same time.27
27

AIR 1936 Rangoon 94.

22

 The receiving of stolen property

belonging to different owners or the
gangs of different theft but received
at same time.28
The making of any number of false
allegations in one statement.29
The misappropriation of several
amounts of money not proved to be
committed on different occasions.30
A single use of several forged
documents as genuine in a Court of
law.31
Receiving of bribe partly on one
day and partly on another.32
Attempt to murder two persons by
firing a single shot at them.33
28

AIR 1923 ALL 547.

(09) 10 Criminal Law Journal 150.
30
(86) 14 Cal. 128.
31
(93) 20 Cal. 413
32
(1900-01) 5 Cal. WN 332.
33
AIR 1952 SC 45.
29

23

 An alternate charge of perjury.34

What is the criterion for the joinder
of charges?
The criterion for the joinder of charges is
the accusation and not the ultimate result
of the trial. 35
What is a transaction?
Transaction means a group of facts so
connected together as to involve certain
ideas namely, unity, continuity and
connection.36

34

(84) 10 Cal. 937.

AIR 1956 ALL 466.
36
1990 SCMR 1360.
35

24

Do the principles underlying

sections 233 and 239 apply to
summons cases or to warrant
cases or to both?
The principles underlying sections 233
and 239 Cr. P. C. 1898 apply to both
summons and warrant cases. 37
What is the cumulative effect of
sections 235 and 237 of the Cr. P.
C. 1898?
Giving both the sections 235 (i) and 237
(i) their significance the obvious
conclusions is that where several
offences are committed in the course of
the same transaction they may all be
tried jointly whether those offences are
37

1974 P. Cr. L. J. Note 94 p. 59.

25

of the same kind or not and whether their

number exceeds three or not and
irrespective of whether they a re
committed within a period of one year.
On the other hand, where the sameness
of the transaction is wanting, only three
offences of the same kind alleged to have
been committed during the period of one
year can be tried jointly. 38
How and on what basis judicial
discretion vested in a court of law
under sections 233 and 239 is to
be exercised ?
The discretion vested in the Court by ss.
233 and 239 Cr. P. C. 1898 is expected
like any other discretion vested in a
Court of law to be exercised on sound
judicial principles and in the light of the
38

(1953) Cut 96.

26

facts and circumstances of each case. It

is obvious where such a joint trial is
likely to embarrass an accused person or
cause some serious hardship to the
defence it goes without saying that the
Court ought not to exercise.
Where joint trial is likely to cause any
embarrassment to the accused, it should
not be resorted to.39
In which provisions of law there
have been provided exception to
the general rule given in section
233 Cr. P. C. 1898?
Exception to the general rule given in
section 233 Cr. P. C. are contained in
sections 234, 235, 236 and 239 of the Cr.
P. C. 1898.
39

PLD 1964 SC 120

27

What is the distinction between an

illegality and an irregularity for the
purposes of s. 537 Cr. P. C. ?
Where non-compliance with the
provisions of Cr. P. C. is with regard to a
matter of a formal character, it is an
irregularity curable under section 537 Cr.
P. C. but where the non-compliance
amounts to as a serious and substantial
disregard of the provisions of the Cr. P.
C. relating to the mode of conducting a
trial, it is an illegality.
A trial in contravention of the relevant
provision of Ch. 19 of Cr. P. C. is illegal
and section 537 of the Code cannot be
invoked. 40

40

PLD 1952 Lahore 185.

28

What is section 240 of the Cr. P.

C.? To which case it applies?
Section 240 of the Cr. P. C. deals with
the withdrawal of remaining charges on
conviction on one of several charges.
When a charge containing more heads
than one is framed against the same
person, and when a conviction has been
had on one or more of them, the
complainant, or the officer conducting
the prosecution, may with the consent of
the Court, withdraw the remaining
charge or charges, or the Court of its
own accord may stay the inquiry, in to or
trial of such charge or charges. Such
withdrawal shall have the effect of an
acquittal on such charge or charges,
unless the conviction be set aside, in
which case the said Court (subject to the
29

order of the Court setting aside the

conviction) may proceed with the inquire
into or trial of the charge or charges so
with drawn.
The essential ingredients to attract
section 240 of the Cr. P. C. 1898 are as
under:
This section applies after the charge
containing more than one head is
framed.
Such charge should have been framed
against the same person.
A conviction has been had one or
more of those heads.
Discretion is given by law to the
complainant and also to the
Prosecutor to withdraw the remaining
charge or charges with the consent of
the Court. It is common sense that the
complainant or the Prosecutor shall
30

have to apply to the Court for

obtaining such consent of the Court
and the Court is to consider the
matter and pass a judicial order to
grant permission or refuse
permission. It is only after the grant
of such permission or consent the
remaining charge or charges may be
withdrawn. This provision also shows
that it is not compulsory for the
complainant or the Prosecutor to do
so.
The Court may suo moto stay the
inquiry into or trial of such charge or
charges.
Where conviction is set aside the
Court shall proceed subject to the
order of the Court setting aside the
conviction.
Where conviction is not set aside and
withdrawal is with consent of the
31

Court, the legal effect shall be that of

an acquittal on such charge or
charges.41

41

See for details in AIR 1929 ALL 899; AIR 1925 Patna
623; AIR 1947 Madh 89; and AIR 1959 All 703 in Indian
Jurisdiction.
32