Criminal Procedure Code : Trial Before A Court Of Session

TRIAL BEFORE A COURT OF SESSION

A trial is the initiating process carried out in Courts or in any competent authority with the obligation of hearing and settling disputes. The parties present their side of documents and other proofs as record of evidence, thereby, also standing with each of their arguments. It is a formal examination of a case happening in an open Court. The Court of Session is explained under section 9 of the Criminal Procedure Code, 1973. In general, it is the Court to examine about the criminal cases at the district level in a state. The State Government shall establish a Sessions Court for every Sessions division, presided over by a Judge appointed by the High Court. The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.  The Court of Session shall hold its sitting at such places or places as the High Court may, by notification, specify. Under the Criminal Procedure Code, 1973, chapter XVIII details about the enacted procedures that has to be followed accordingly by the Courts in disposing a case.

PUBLIC PROSECUTOR (Section 24)

  • For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor for conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the Central or State Government.
  • For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district.  
  • The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate who has been in practice for not less than ten years, as a Special Public Prosecutor.

INITIATION OF TRIAL (section 226)

  • The provision explains about the trial proceedings to be initiated and conducted by the public prosecutor appointed by the appropriate government.
  • In every trial before a Court of Session the prosecution shall be conducted by a public prosecutor.

OPENING CASE FOR PROSECUTION (SECTION 226 R.W.S. 209)

  • In a type of a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable by the Court of Session, the concerned Magistrate u/s. 207 or 208, may refer the case to the Court of Session.
  • The public prosecutor would be notified of the commitment of the case to the Court of Sessions. The accused either voluntarily appears or is brought before the Court for commitment of a case u/s. 209.
  • As specified in s. 225, the public prosecutor shall open the prosecution in favour of the public authority, his arguments by describing the charge brought against the accused.
  • The public prosecutor states and submits to the Court, the evidences through which he was proposed to prove the guilt of the accused.

The public prosecutor briefs the summary of the case. The Court mandatorily should secure presence of the accused person, but at the same time the Court cannot acquit the accused if not present.

PATH OF THE CASE

DISCHARGE (SECTION 227)

  • The judge hears the submissions and arguments from both the parties i.e., from the public prosecutor and the accused person. The judge considers the record of the case, document submitted for record of evidence.
  • If the judge considers that there is no sufficient grounds for presumption of the guilt charged over the accused person for proceeding the case, he shall discharge the accused person and record his reasons for doing so. This is a beneficent provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial.

Thereby, the case gets winded up and the judge exercises the power of discretionary jurisdiction of the Court i.e., the Judges in performing their official duty. The reasons for discharging must be recorded so as this helps for the superior Court, at times of any conflict, to verify the Judgements for such acquittal.

JUSTIFICATION GUARANTEED BY SUPREME COURT FOR DISCHARGE 

According to the Supreme Court,26 the following four principles are applicable in regard to the exercise of the power of discharging the accused under Section 227:

  • That the judge while considering the question of framing the charges has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
  • Where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
  • The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
  • That in exercising his jurisdiction under Section 227 the judge who under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on.
  • This, however, does not mean that the judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

CHARGE (Section 211)

The charge states the offence with which the accused is charged. It shall be written in the language of the Court.

FRAMING OF CHARGES (Section 228)

The judge takes into consideration the record of the case, document submitted for record of evidence. If the judge after hearing, considers that there is sufficient ground for presumption that the accused may or may not have committed offence, (1),

(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other judicial Magistrate of the First Class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the First Class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report.

(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.

  • It has been held in Rukmini Narvekar v. Vijaya Satardekar[1], that ordinarily, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as indicated in Section 227 CrPC can be taken into consideration by the court at the time of framing the charge.

Explanation of the charge (Section 228(2))

  • Where the offence is exclusively triable by the Court of Session and a charge has been framed in writing against the accused as mentioned above in Section 128(1), the charge shall be read and explained to the accused.
  • The accused shall then be asked whether he pleads guilty of the offence or claims to be tried.

A sessions judge can transfer a case only to the Chief Judicial Magistrate. This ensures the power of discretion to the sessions judge to transfer a case either to the Chief Judicial Magistrate or to any other Judicial Magistrate of 1st class or to any other. The Sessions Judge itself shall fix a date for the appearance of the accused before the Chief Judicial Magistrate or the Judicial Magistrate, as the case may be so that a lot of time which is wasted in summoning the accused by the Magistrate may be saved.

CONVIICTION ON PLEA OF GUILTY (Section 229)

  • If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.
  •  In Pawan Kumar v. State of Haryana[2], it has been clarified by the Supreme Court that if an accused who has not been confronted with the substance of allegations against him, pleads guilty to the violation of a provision of law, that plea is not a valid plea at all.
  • The need for observing safeguards before pleading guilty was stressed by the Bombay High Court in Anand Vitboba Lohkare v. State of Maharashtra[3].
  • If conviction for an accused is based on the plea of guilty, such persons right to appeal is curbed by the section 375.

EVIDENCE

DATE FOR PROSECUTION EVIDENCE (Section 230)

If the accused refuses to plead or does not plead, or claims to be tried or is not convicted under Section 229, the judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.

EXAMINATION OF WITNESSES

The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court (section 135 of Indian Evidence Act, 1872). The examination of witnesses may take place in three stages.

  • EXAMINATION – IN – CHIEF: the examination of a witness by the party who calls him shall be called his examination – in – chief.
  • CROSS – EXAMINATION: the examination of a witness by the adverse party shall be called his cross – examination.
  • RE – EXAMINATION: the examination of a witness, subsequent to the cross – examination by the party who called him, shall be called his re – examination.

PROCEDURES FOR COMMENCING PROSECUTION

EXAMINATION (Section 231)

  • On the date so fixed the judge shall proceed to take all such evidence as may be produced in support of the prosecution.
  • The judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
  • It is no doubt the duty of the prosecution to examine all material witnesses essential to the unfolding of the narrative on which the prosecution is based, whether in the result the effect of that testimony is for or against the case for the prosecution[4].

RECORD OF EVIDENCE (Section 276)

  • The judge who presides over the Court of Session in all trials makes in writing or dictation in open Court by an officer of the Court under his supervision, all evidences of witnesses for further reference.
  • As the evidence of each witness taken u/s. 275 or 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader and shall if necessary, be corrected (section 278(1)).

HEARING OF PARTIES

As the proceedings commence and such documents of production has also been recorded, the subsequent hearing of the arguments from both the parties take place. This ensures the principle of fair trial and justifiable and reasonable opportunity for making each side arguments.

ACQUITTAL (Section 232)

  • If, after taking the evidence for the prosecution, examining the accuse and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
  • This procedure can be understood as the sessions of the Court of Sessions trial. This helps the concerned acquitted person to be relieved from further unnecessary procedures which the authorities may compel him to produce where there is no solid proof.
  • In Prem v. State of Haryana[5], the Court observed that, if the judge does not think it proper to acquit him under Section 232, he has to call on the accused to enter on his defence and it is that stage at which the accused person is under duty to apply for the issue of process for summoning the defence witnesses.

ENTERING UPON DEFENCE (Section 233)

EXAMINATION

Where the accused is not acquitted under Section 232 as mentioned above, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

WRITTEN STATEMENT OF ACCUSED (Section 233(2))

  • The accused person, if he desires, can put in any written statement in his defence.
  • If he puts in any such statement, the judge shall file it with the record.
  • If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the judge shall issue such process unless he considers, for reasons to be recorded, that any such application should be refused on the ground that it is made for the purpose of vexation or for delaying the ends of justice.

ARGUMENTS (Section 234)

  • When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply.
  • Provided that where any point of law is raised by the accused or his pleader, the prosecution may with the permission of the judge, make his submission with regard to such point of law.  

JUDGEMENT OF ACQUITTAL OR CONVICTION (Section 235)

After hearing arguments and points of law (if any), the judge shall give a judgment in the case. In CrPC, under chapter XXVII, sections 353 to 365, deals with the elaborate provisions for the procedures for rendering judgement.

PROCEDURE FOR ORDER OF CONVICTION

  • If the accused is convicted, the judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
  • In Muniappan v. State of T.N[6], the Supreme Court has further held that the obligation to hear the accused on the question of sentence is not discharged by putting a formal question to him as to what he has to say on the question of sentence.
  • The court must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.
  • It is the bounden duty of the court to cast aside the formalities of the court scene and approach the question of sentence from broad sociological point of view.
  • Therefore, the questions which the judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act.
  • In Dagdu v. State of Maharastra[7], even in other cases remand may not always be necessary, and the higher court may itself hear the accused on the question of sentence and may give necessary facilities to the accused for this purpose.

PREVIOUS CONVICTION (Section 236)

In a case where a previous conviction is charged under the provisions of Section 211(7) and the accused does not admit that he has been previously convicted as alleged in the charge, the judge may, after he has convicted the said accused under Section 229 or 235, take evidence in respect of the alleged previous conviction and shall record a finding thereon.

PROCEDURE IN CASES INSTITUTED UNDER SECTION 199(2) (Section 237)

  • A Court of Session taking cognizance of an offence under sub-section (2) of Section 199 shall try the case in accordance with the procedure for the trial of warrant cases instituted otherwise than on a police report before a Court of Magistrate.
  • Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution. Every trial under this section shall be held in camera if either party thereto so desires or if the Court thinks fit so to do.
  • If, in any such case, the Court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice-President or the Governor of a State or the Administrator of a Union territory) to show cause why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.
  • The Court shall record and consider any cause which may be shown by the person so directed, and if it is satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make an order that compensation to such amount not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.
  • Compensation awarded under sub-section (4) shall be recovered as if it were a fine imposed by a Magistrate. No person who has been directed to pay compensation under sub-section (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section.
  • Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
  • The person who has been ordered under sub-section (4) to pay compensation may appeal from the order, insofar as it relates to the payment of compensation, to the High Court.
  • When an order for payment of compensation to an accused person is made, the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided.

BY ELAMATHY. S


[1] (2008) 14 SCC 1; State of orissa v. debendra nath, (2005) 1 SCC 568

[2] (1996) 4 SCC 17: 1996 SCC (Cri)

[3] 1999 Cri Lj 2, 857

[4] Habaeb Mohammad v. State of Hyderabad, 1954 Cri Lj 338

[5] 1975 Cri Lj 142.0, 1422 (P&H).

[6] (1981) 3 SCC 11: 1981 SCC (Cri) 617

[7] (1977) 3 SCC 68: 1977 SCC (Cri) 421, 442

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