Exceptions of the general rules of Charge

General rule is that a person should be formally charged so that he is made aware of the offence with which he is charge and eventually convicted of. However there are exceptions to this rule. There are four exceptions to these rules as follows in s. 167, 168, 169 (i) and 169 (ii) of the Criminal procedure Code.For the first exception, it is provided under s.167 of the CPC. This section also must be read with s. 166 of the CPC.

According to s. 167, if the accused is charged with one offence and it appears in evidence that he had committed a different offence for which he might have been charged according to the section 166, he may be convicted of the offence which he has shown to have committed although he was not charged with it.

The qualification before this power may be exercised by the court is mentioned by the section itself, that is, the eventual offence must have been available to the prosecution under s. 166. It will be recalled that the section gives an option to the prosecutor whether to charge the accused with all the offences likely to be proved by a set of facts, or all the offences in the alternative. S. 167 show a situation where the prosecutor had chosen not to charge the accused with all likely offences but just one or two.

There are two tests in applying the s. 167 which has been stated in the case of Lew Cheok Hin. In this case, Tailor J stated that the first test is the facts must be such that the unframed charged was available from the start and could have been framed and tried concurrently under (s.166). The second test is the evidence must have been presented in such a way as to raise all the same issues of fact as would have been raised had the unframed charge been framed and trial claimed on it. Not only the evidence for the prosecution be the same but the court must be satisfied that the evidence for the defence could also be the same.

Now we can look at the cases that apply the exception of the general rule that apply in 167. In Sivalingam, the accused was charged for an offence of cheating under section 420 of the Penal Code. He was convicted and sentenced. He appealed to the High Court, where it was held that an offence of CBT under s. 409 was actually proved. The court substituted the conviction to one under s. 409 and maintained the sentence. The Federal Court, after hearing the question for reference held that in hearing an appeal from a conviction the power of the judge to alter a finding must be exercised subject to section 166 and 167 of the CPC. There must be clear evidence that a case for the substituted offence would have been made out or established in the court below.

In Gurdit Singh, the appellant was charged under s. 454 of the PC for the offence of housebreaking in order to commit theft. He was convicted and sentenced at the end of the trial at the magistrate’s court. His sole ground of appeal was that the sentence for four years imprisonment was manifestly harsh. Whe the appeal came before the high court, the DPP informed the court that from the appeal record the appellant could not have been convicted for an offence under s. 454. Instead, he should have been convicted for theft in a dwelling house punishable under s. 380. The HC was asked to exercise its revisionary powers by substituting a conviction for an offence under s. 380 of the PC. The judge then refeered to Sivalingam and Lew Cheok Hin, the latter where Taylor J. mentioned the two main tests required before s. 167 may apply. He was satisfied and he subsequently substituted the conviction to one under s. 380 of the PC and reduced the sentence to three years imprisonment.

Section 168 provides for the second exception where a person may be convicted for an offence he is not charged with. When an accused person is charged with an offence he may be convicted of having attempted to commit that offence, although the attempt is not separately charged. In the case of Quinn Howland, the court held that the accused could be convict for attempted robbery although he was tried for robbery.

The third exception is provided in s. 169 (1). When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence though he was not charged with it. Illustration (a) to the section serves as good example. If a person is charged under s. 407 of PC, among the elements which the prosecution has to prove are the offence of CBT, and that it is in respect to property and that the property is entrusted to him as carrier. If the prosecution succeed in proving CBT, and that it is in respect to property but not the fact that he is entrusted as a carrier, than the court may convict him of an offence under s. 406, instead. S. 406 requires proff of those elements only. Another example is the offence of voluntarily causing grievous hurt under s. 325 of PC. If, in the course of the trial, it is discovered that the hurt was only simple hurt, that is, that one of te conditions in s. 320 of the PC was not proved, then the court may proceed to convict the accused of voluntarily causing hurt under s. 323.

In Latip bin Ahmad, the first accused was charged under s. 148 of the PC with rioting while armed with a weapon. He was convicted under s. 147 with simple rioting. Terrel Ag. C.J. was of the view that this could be done in accordance with s. 169 (1) of the CPC without need to amend the charge. An accused person may be convicted of a minor offence of the same character without being charged. Hence, a person charged with murder may be convicted of culpable homicide not amounting to murder, or of voluntarily causing grievous hurt, without being specifically charged for it. In Kundan Singh, the appellants were charged with rioting under section 147 of the Penal Code but were convicted for causing hurt under section 323. The conviction was set aside on appeal. Murray-Anysley J stated that the The word “minor: means merely an offence with a smaller punishment attached than the offence with which an accused person was originally charged. On section 169 (1), his lordship said that the offence for which the accused is convicted must be one which necessarily included in the offence originally charge. Here, this was not the case, although causing hurt might have been an element in a case of riot.

Finally, s. 169 (2) provides for the fourth exception. Here, when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. Illustration (b) to the section provide a good example. When a person is charged with the offence of voluntarily causing grievous hurt under s. 325 of the PC, and he manages to prove that he acted so on provocation, then the court may convicted him under s. 335 of the PC. Provocation is an extraneous element which reduces the offence to minor offence. Likewise, when a person is charged with voluntarily causing hurt under s. 323 but he has managed to prove provocation, the court may convict him of an offence under s. 334 of the PC instead.

Subsection (ii) therefore covers the case where additional facts are proved, unlike subsection (i) which covers the case with only some of the facts constituting the original offence are proved. In the case Lew Cheok Hin, a “minor offence” understood in s. 169 is not identical with “less serious”. IT only means produced by deletion without other alteration. The maximum sentence for the comprised offence will usually be lighter.

In Francis Dang Anak Nuya, the accused was to have stood trial for the offence of murder. At the beginning of the trial, the DPP indicated that the accused wished to plead guilty to the lesser offence of culpable homicide not amounting to murder and sought the court’s advice as to whether the charge ought to be amended or not. According to Macdougall J, the correct procedure is for the charge of murder to be read to the accused for the plea. If he wishes to plead guilty to the lesser offence, it is open to him to plead not guilty to murder but guilty to culpable homicide not amounting to murder. The agreed facts should then be read to the accused. If he confirms that they are correct, it is open to prosecution to state whether it accepts that plea.

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