.

GENERAL

Though the term "trial" is not defined in the Code, it can be said to be a judicial proceeding
ending in acquittal or conviction. For the purposes of determining mode of trial, generally all
criminal cases are divided into two categories; (1) offences punishable with death, imprisonment
for life or imprisonment for a term exceeding two years (warrant cases); and (ii) other offences
(summons cases). Both the categories again may be subdivided into two categories. Thus, a
warrant case may be tried (a) by a court of session; or (b) by a magistrate. Similarly, a summons
case may be tried by a magistrate (a) as a summons case; or (b) as a summary trial. Chapters
XVIII and XIX (Sections 225-250) deal with warrant cases by a court of session and magistrates
respectively whereas Chapter XX (Sections 251-259) provides procedure for trial of summons
cases by magistrates and Chapter XXI (Sections 260-265) makes provisions relating to
summary trials. In this chapter, we will discuss about warrant cases.

2. TRIAL BY COURT OF SESSION

(a) Scheme

As stated above, warrant cases are more serious than summons cases. But even in warrant
cases, there is a sub-division. More serious cases are to be conducted by a court of session
while less serious cases are to be conducted by magistrates. Whether a particular offence is
triable by a court of session or by a magistrate can be ascertained by referring to the First
Schedule.

A court of session cannot take cognizance of any offence directly even if such offence is
exclusively triable by such court. However, there is an exception to this rule provided in Section
199 of the Code relating to an offence of defamation of public servants and high public
dignitaries. Special procedure is prescribed for such cases in Section 237 of the Code.

Sections 225 to 237 deal with the procedure for trials before a court of session. It can broadly be
divided into three stages. (i) Opening of the case by the public prosecutor, (ii) Recording of
evidence; and (iii) Acquittal or conviction of the accused.

(b) Conduct of trial

Every trial before a court of session should be conducted by a public prosecutor. "Public
prosecutor" is defined as a person appointed app under Section 24 and includes any person
acting under his direction. "To conduct" means "to lead, guide, manage."" Therefore, so long as
the public prosecutor leads and guides, the pleader of the complainant cannot raise any
objection. A counsel engaged by a private party cannot be allowed to conduct the prosecution
though the public prosecutor may take assistance of a lawyer engaged by a complainant. It may,
however, be stated that the Amendment Act, 2008 has allowed the victim to engage an
advocate of his choice to assist the prosecution. But the public prosecutor cannot abdicate his
functions by sitting back and handing over the conduct of prosecution case to the complainant's
advocate. Again, a public prosecutor is not merely a representative or an agent or a mouthpiece
of the State. He is also an officer of the Court. It is his duty to place all facts and evidence before
the Court so as to enable the Court to determine the guilt or innocence of the accused on that
basis and not to obtain conviction at any cost.
(c) Discharge

When the accused appears or is brought before the court in pursuance of the commitment of
the case under Section 209, the prosecutor will open his case by describing the charge against
the accused and stating by what evidence he proposes to prove the guilt of the accused

Section 227 provides for discharge of an accused. It states; "If, upon consideration of the record
of the case and the documents submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge the accused and record his
reasons for so doing.

This provision is intended to eliminate harassment to the accused when there is no prima facie
case against him. At that stage of the trial, however, veracity and effect of the evidence should
not be meticulously judged. Nor any weight should be attached to the probable defence of the
accused. The standard and test which should be applied for finding guilt or otherwise of the
accused cannot exactly be applied at the stage of deciding the matter under Section 227. If the
scales as to the guilt or innocence of the accused are even at the initial stage of making an
order under Section 227 or Section 228, then in such a situation, ordinarily and generally the
order will have to be made under Section 228 (framing of charge) and not under Section 227
(discharge). Section 227 enables the Judge to discharge the accused if there is no sufficient
ground for proceeding against him. The "ground" in the context is not a ground for conviction but
a ground for putting the accused on trial. The guilt or innocence then would be determined at
the trial and not at the time of framing of charge. "The test is whether there is sufficient ground
for proceeding and not whether there is sufficient ground for conviction." If the materials placed
before the Court disclose grave or strong 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 power under Section 227 is conferred on a senior and experienced judicial officer and,
therefore, it is reasonable to presume that this jurisdiction will be exercised reasonably and
judiciously. He will not act as a mere post office to frame the charge at the behest of the
prosecution but will apply his judicial mind exercising his discretion in order to determine
whether or not prima facie case has been made out by the prosecution for trial. If there is a
strong suspicion which leads the court to think that the accused has committed an offence, it is
not open to say that there is no sufficient ground for proceeding against the accused. On the
other hand, if the evidence which the prosecutor proposes to adduce to prove the guilt of the
accused even if fully accepted cannot prove him guilty, there will be no sufficient ground for
proceeding with the trial. In other words, if there is no prima facie evidence of the evidence is
totally unworthy of credit, it is the duty of the magistrate to discharge the accused; if there is
some e evidence on which a conviction may reasonably be based, he must commit the case.

The test to determine prima facie case depends on the facts of each case and it is neither
feasible nor advisable to lay down a rule of universal application." It however, been held that if
two views are equally possible and the Judge is satisfied It has that the evidence produced
before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully
within his right to discharge the accused."

Again, the Sessions Court while discharging the accused under Section 227 has to record
reasons for doing so, but not for framing the charge." The object of recording reasons is to
enable the superior court to examine the correctness or otherwise of those reasons. The
superior court can decide whether or not the order of discharge is proper in the facts and
circumstances of the case.

(d) Framing of charge

After considering the record of the case and after hearing the submissions on behalf of the
prosecution and the accused, if the Judge is of the opinion that there is ground for presuming
that the accused has committed an offence which is not exclusively triable by the court of
session, he may frame a charge and transfer the case to the Chief Judicial Magistrate. If the
offence is exclusively triable by the court of session, he shall frame a charge against the
accused in writing." The charge shall then be read out and explained to the accused and he
shall be asked whether he pleads guilty or claims to be tried.2

The framing of a charge is not a mere formality but a judicial act and it is required to be
performed after application of mind. The object of Section 228 is to ensure that the court is
satisfied that the accusation made against the accused is not false and frivolous but there is
some material for proceeding against him. Before forming this opinion, the judge has to consider
the entire record, FIR or complaint, statements of witnesses and submissions of the parties. At
the same time, however, the court is not expected to make roving inquiry into the pros and cons
of the matter and weigh the evidence as if it were a trial. Reading Sections 227 and 228
together, it is clear that what the Court has to see is whether there is prima facie case against
the accused and he is in any manner connected with the incident leading to the prosecution.
The test is whether the materials on record, if unrebutted, makes conviction of the accused
masonably possible. Again, whether or not prima facie case has been made out Against the
accused would depend upon the facts and circumstances of each case and it is difficult to lay
down a rule of universal application

Na

The charge should not only be read over but should be explained to the accused For that
purpose, the Judge may even interrogate the accused in order to ascertain whether the accused
understands the responsibility when he pleads guilty to the charge. But omission or irregularity
in reading over or explaining the charge will not vitiate the trial unless it is shown that
non-compliance of the requirement has resulted into failure of justice or has caused prejudice to
the accused.

(e) General principles

In Union of India v. Prafulla Kumar, the Supreme Court laid down general principles as to when
charge should be framed or an order of discharge can be passed by the court. After considering
leading decisions on the point, FAZL ALL summarised the legal position which, it is submitted,
lays down correct law on the point.

His Lordship pronounced:

(1) That the Judge while considering the question of framing the charges under Section 227 of
the Code 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.

(2) Where the materials placed before the Court disclose 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.

(3) 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.

(4) That in exercising his jurisdiction under Section 227 of the Code, the Judge which 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 enquiry into the pros and cons of the matter and weigh the evidence as if he was
conducting a trial.

(1) Conviction on plea of guilty

If the accused pleads guilty to the charge, the Judge shall record the plea and may, in his
discretion, convict him thereon. It is, however, not obligatory for the Court to convict the accused
on such plea. It is in the discretion of the Court and such discretion has to be exercised with due
care, caution and circumspection and on sound judicial principles bearing in mind the ultimate
objective to do justice to the accused. Such plea must be clear, unambiguous and unequivocal.
It must distinctly admit each and every fact necessary to constitute the offence. Where a 'plea of
guilty' is qualified or accompanied by some reservations, it cannot be said to be a 'plea of guilty.
The Judge also should satisfy himself whether or not the accused understood the the charge in
order to ascertain whether such plea was voluntary. The plea of guilty must be made by the
accused himself and not by his pleader unless the pleader is permitted by the Court to appear in
the place of the accused. Before recording plea of guilty, the accused must be confronted with
summary of allegations.

A plea of guilty no less than a confession must be accepted with caution. The Court before
recording conviction on the basis of such plea, ought to explain the charge to the accused and
satisfy itself that the accused fully understood the implications of such plea. Usually in serious
cases and offences punishable with death or imprisonment for life the Court would be rather
reluctant to convict the accused only on the basis of the plea of guilty. Though there is no legal
bar to recording conviction in such cases, ordinarily the Court will proceed with the trial by
recording the evidence. "The more grievous the charge, the more care and circumspection is
expected to be exercised by the Court in accepting and acting upon the plea of guilty. It is the
practice of Sessions Courts in the Bombay State never to accept a plea of guilty to a capital
charge. It is submitted that this is a healthy practice and should be followed by all Sessions
Courts.

A plea of guilty can be permitted to be withdrawn by the Court if it is satisfied that there was
mistake or misunderstanding on the part of the accused or it would be desirable that the
accused should be allowed to join issue.

The stage of pleading guilty is immediately after framing of the charge by the Court. Therefore,
after the trial is started and some witnesses have been examined, no plea of guilty can legally
be recorded. In such cases, the Court has to conviet or acquit the accused on consideration of
evidence led before the Court. When there is a joint trial against more than one accused and
one of the accused pleads guilty, the Court may record his plea and convict him and proceed
with the mal against the other accused." When the accused has been convicted on the plea of
guilty and appeal is filed for enhancement of sentence, the appellate court may set aside the
sentence and order re-trial if it is satisfied that lenient sentence was imposed on the accused by
plea bargaining.

(g) Prosecution evidence

If the accused does not plead guilty or claims to be tried or is not convicted on the plea of guilty,
the Judge shall fix a date for examination of witnesses, On the date so fixed, he shall take
evidence produced in support of the prosecution." As a general rule, the prosecution should
examine all witnesses essential to the

unfolding of the prosecution story and acquainted with the facts of the case. If any material
witness has been deliberately withheld the Court may draw adverse inference against the
prosecution. n. At the same time, however, there is no provision in the Code nor any inviolable
rule that all the witnesses must be examined by the prosecution. If a large number of persons
are present at the time of occurrence, it is not necessary that all of them should be examined at
the trial. If some of the witnesses have been examined and their evidence is found to be reliable
and sufficient to prove the charge, the prosecution may well decide to refrain from examining the
remaining witnesses. Similarly, if any witness is won over by the accused party and as such is
not likely to state the truth; or is unnecessary; or is an accomplice; the prosecution may refuse
to examine him. The test whether a witness is material is not whether he would have given
evidence in support of the defence but whether he is "a witness essential to the unfolding of the
narrative on which the prosecution is based. The question whether a witness is so material or
not depends upon the facts and circumstances of each case and no rule of universal application
can be laid down."

It is not the law that omission to examine any and every witness even on minor points would
undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference
against the prosecution. What is the effect of non-examination of a particular witness depends
upon the facts and circumstances of each case. The Court cannot normally compel the
prosecution to examine a witness which it does not choose to examine. But the prosecutor
should never adopt the device of keeping back material witnesses only because their evidence
is likely to go against the prosecution. Therefore, if it is shown that the persons who had
witnessed the incident have been deliberately kept back, the Court may draw an adverse
inference and in a proper case record such failure as constituting a serious infirmity in the proof
of the prosecution case.4"

In Masalti v. State of U.P.," the Supreme Court rightly stated:

"It is not unknown that where serious offences like the present are committed and a large
number of accused persons are tried, attempts are made either to terrorise or win over
prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his
witnesses have been won over, it would be unreasonable to insist that he must tender such
witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court
all material evidence available to it which is necessary for unfolding its case, but it would be
unsound to lay down as a general rule that every witness must be examined even though his
evidence may not be very material or even if it is known that he has been won over or
terrorised. (emphasis supplied). It is submitted that the following observations of their Lordships
of the Privy worth quoting:

Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this
which is so dependent on the particular circumstances of each case. Still less do they desire to
discourage the utmost candour and fairness on the part of those conducting prosecutions, but at
the same time they cannot, speaking generally. gyrove of an idea that a prosecution must call
witnesses irrespective of consider-ations of number and of reliability, or that a prosecution ought
to discharge the functions both of prosecution and defence. If it does so confusion is very apt to
result, and never is it more likely to result than if the prosecution calls witnesses and then
proceeds almost automatically to discredit them by cross-examination. Wimesses essential to
the unfolding of the narrative on which the prosecution is based, must, of course, be called by
the prosecution, whether in the result of the effect of their testimony is for or against the case for
the prosecution." (emphasis supplied)

Section 232 enacts that if after the prosecution evidence, examination of the accused and
hearing the parties, the judge considers that there is no evidence that the accused has
committed the offence, he shall record an order of acquittal.

The underlying object of Section 232 is to expedite the conclusion of the sessions mal by
avoiding unnecessary harassment to the accused by calling upon him to adduce oral evidence
as also to avoid waste of public time when there is no evidence all. This section also affirms the
well established principle of criminal jurisprudence that the prosecution must stand on its own
legs and can succeed only on its evidence and cannot take advantage of weakness of the
defence."

The words "no evidence" should not be equated with insufficient evidence or unsatisfactory,
untrustworthy or inconclusive evidence. They mean that there is not on the record "any"
evidence which even if true would amount to legal proof of the offence charged against the
accused." The Court cannot at that stage embark upon an elaborate review of the prosecution
evidence since such appreciation can be made at the stage of pronouncement of judgment
under Section 235. While recording an order of acquittal, the judge should record reasons as to
why he came to the conclusion that there was no evidence since the order of acquittal is subject
to appeal. 54

(h) Defence evidence

Where the accused is not acquitted under Section 232, he will be called upon to enter on his
defence and to adduce evidence in support thereof. If the accused files any written statement, it
will be taken on record. If he applies for attendance of witnessey or production of any document
or thing, the Judge will issue process unless he considers for reasons to be recorded that such
application requires to be rejected on the grond that it is made for the purpose of vexation or to
cause delay or for defeating the ends of justice." After examination of defence witnesses is over,
the public prosecutor will sum up his case and the defence will give reply." The wont "reply"
means "reply generally on the whole case"

(1) Acquittal or conviction

After hearing the arguments, the Judge will deliver judgment. If the accused is convicted, the
judge must hear him on the question of sentence and then impose sentence on him in
accordance with law. No such hearing may be necessary if the accused is released on
probation of good behaviour or after admonition under Section 360 of the Code.

Section 235(2) is a salutory provision and enjoins upon the Court a duty to hear the accused on
the question of sentence. The imperative language leaves no room for doubt that the provision
is mandatory and obligatory and non-compliance thereof goes to the root of the matter. It cannot
be treated as mere irregularity curable under Section 465 of the Code. Failure to afford such
opportunity to the accused will vitiate the sentence. The conviction will, however, stand and the
accused cannot claim de novo trial.

The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts
and considerations bearing on the question can, in the exercise of that right, be placed before
the Court. There may be a number of circumstances of which the court may not be aware and
which may be taken into account for awarding the sentence. The accused has to be heard on
his personal, social and domestic circumstances before the sentence is imposed. The social
compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a
sense of being wronged, the lack of means to be educated in the difficult art of an honest living,
the parentage, the heredity-all these and similar other considerations can hopefully and
legitimately, tilt the scales on the propriety of sentence. The mandate of S. 235(2) must,
therefore, be obeyed in its letter and spirit, (emphasis supplied).

In Santa Singh v. State of Punjab, in concurring judgment, FAZL ALI, J. rightly observed: 61

"Having regard to the object and the setting in which the new provision of Section 235(2) was
inserted in the 1973 Code, there can be no doubt that it is one of the most fundamental parts of
the criminal procedure and non-compliance thereof will es facie vitiate the onder. Even if it be
regarded as an irregularity, the prejudice waward to the accused would be inherent and implicit
because of the infraction of the rules of natural justice which have been incorporated in this
statutory provision, because the accused has been completely deprived of an opportunity to
represent to the Court regarding the proposed sentence and which manifestly resalta in a
serious failure of justice." (emphasis supplied)

It is, however, not necessary that the accused must be personally heard by the court. The
accused may exercise that right either by instructing his counsel or by filing an affidavit or
otherwise by placing before the court material circumstances bearing on quantum of sentence.
The court may, in appropriate cases adjourn the matter by allowing the accused to produce
necessary data on record. Usually, it would happen where conviction is recorded for the first
time by a higher court.

The court while deciding quantum of sentence is in an altogether different domain than those
which come into play on the question of conviction. The obligation to hear the accused,
therefore, is not discharged by putting a formal question as to what he has to say on the
question of sentence. The judge must make a genuine effort to elicit from the accused all
information having bearing on the question of sentence. It is. therefore, the bounden duty of the
judge to cast aside the formalities of the court scene and approach the question of sentence
from a broad, sociological point of view. If the hearing is not afforded by the trial court, the
appellate court need not necessarily remand the case. Instead it may hear the accused and
impose appropriate sentence. Again, where minimum sentence has been awarded, it is not
necessary to remit the matter to the trial court for reconsideration on the question of sentence.
In case of allegation of previous conviction by the prosecution and denial by the accused, the
judge after recording conviction against the accused may take evidence of such previous
conviction and shall record his finding thereon. This provision is intended to determine the
liability of the accused to enhanced punislunent due to previous conviction.

The language of Section 236 is clear. It can be invoked only after the accused is convicted. The
object of prohibiting proof of previous conviction until the guilt against the accused is recorded is
to ensure against prejudice being caused to him, at the trial. It is enough for the prosecution to
prove previous conviction against the accused. It is, however, not necessary that the sentence
imposed in the earlier case should be in force. Unfortunately this provision has been rarely
employed