Trial before a Court of Session under the Criminal Procedure Code, 1973

Trial before a Court of Session (Sec. 225 – 237)

Brief Outline

Initial Steps in the Trial

S.225 – Trial shall be conducted by a Public Prosecutor.

S.226 – Opening case for Prosecution.

S.227 – Discharge.

S.228(1) – Framing of Charge.

S.228(2) – Explaining of Charge to the accused.

S.229 – Conviction on plea of guilty.

S.230 – Date of Prosecution Evidence.

Evidence for Prosecution

S.231– Examination of Prosecution Witnesses.

S.276 – Record of the Evidence.

Steps to follow the prosecution evidence

S.232 – Hearing of Parties.

S.232 – Order of Acquittal.

S.313 – Explanation of the Accused.

S.314 – Oral Arguments and memo of arguments on behalf of Prosecution.

Evidence for the defence

S.233(1) – Examination of Defence Witnesses.

S.233(2) – Written statement of the accused.

S.233(3) – Application for compelling attendance of a witness or production of docs.

S.276 – Record of Evidence.

Steps to Follow the Defence Evidence

S.234 – Arguments.

S.311 – Court Witnesses, if any.

Judgment & Connected Matters

S.235(1) – Judgment.

S.235(2) – Procedure to follow the order of conviction.

S.236 – Procedure in case of previous conviction.

Initial Steps in the Trial

Opening case for the Prosecution – S.226

• The prosecutor shall open his case.
• He shall produce a brief summary of all the relevant documents, evidence and witnesses against the accused.
• However, at this stage it is not necessary to give full details regarding the evidence.

Discharge – S.227

Meaning

• When, upon consideration of the relevant material placed on record the Court forms a prime facie opinion that there are no sufficient grounds to prosecute him, the Court may discharge such an accused.

Object of S.227

• To save the accused from prolonged harassment.
• To ensure that the accusation made against the accused is not frivolous.
• To enable the superior court to examine the correctness of the reasons for which he Sessions Judge ordered discharge.

Supreme Court Guidelines on Discharge

In the case of Union of India v. Prafulla Kumar Samal the Apex Court has laid down the following guidelines:

1. The Judge has undoubted power to weigh the evidence to find out whether a prime facie case is made against the accused or not.
2. If the evidence raises grave suspicion against the accused, in such cases the charge shall be framed and the trial shall proceed.
3. The factual matrix of each case has to be examined minutely by the Judge.
4. If there are two views, one in favor of the accused and one against, the Court shall favor the accused.
5. There is no general rule that can be followed while dealing with the issue of discharging the accused.
6. The Judge shall carry out an unbiased scrutiny of the evidence, before ordering discharge.
7. The Judge shall refrain from acting as mouthpiece of prosecution.

Framing of Charge – S.228(1)

• This stage is arrived at when the Court on perusal of the evidence submitted u/s. 226 is of the opinion that there exists a prime facie case.
• If the offence is not exclusively triable by a Court of Session, he may frame the charge and transfer the case to Chief Judicial Magistrate or other Judicial Magistrate, as the case may be.
• The object of the provision is to ensure that the accused is not vexed on basis of false accusations.
• It is not obligatory on part of the Court to take evidence from the accused at stage of framing charges.
• The standard test of proof is not applied at the stage of framing charges.

Explaining the Charge to the Accused – S.228(2)

• Once the charge is framed, the same shall be read over and explained to the accused.
• At this stage, the Court shall the accused if pleads guilty or not.
• It is the bounden duty of the judge to ensure that the accused has understood the charge.
• Non-compliance of this section would have the effect of vitiating the trial if the accused has been prejudiced by the same.

Conviction on plea of Guilty – S.229

• The plea of guilty must be taken in unambiguous terms.
• It shall be fully, fairly and adequately recorded by the Magistrate.
• The scrutiny of plea of guilty shall proportionally rise with the rise in gravity of offence. For instance, if an accused pleads guilty in case of offence punishable with death or imprisonment for life, the Court shall be reluctant to convict him on basis of such plea of guilty and may order trial.
• Once the accused is convicted on basis of plea of guilty then the judge shall hear the arguments on question of quantum of sentence.
• In case of previous conviction, the procedure prescribed u/s. 236 shall be followed.

Date for Prosecution Evidence – S.230

• If the accused refuses to plead guilty, and requests a trial, in such case the Court shall fix a date for examination of witness.
• On such date, the trial shall commence.

Evidence for Prosecution

Examination of Witnesses – S.231

• As per the date mentioned in the order passed u/s. 230, the Court shall commence with the examination of witnesses for the prosecution u/s. 231.
• The rules of procedure as per the Evidence Act shall be followed while conducting the examination.
• The examination of witnesses includes the following:
• Examination in Chief;
• Cross examination;
• Re – Examination.

Record of Evidence – S.276

• The evidence of each witness shall be taken down in writing by the Court.
• It can be recorded in two forms:
• Question/Answer
• Narrative
• Once the evidence is recorded it shall be read over and explained to the deponent.
• The statement of evidence shall be signed by the presiding judge.
• The Court shall also take into account the demeanor of the witness while he is deposing before the Court.
• The evidence shall be recorded in the language of the Court, and if it is recorded in any other language, the true translation of the same shall be recorded.

Steps to Follow the Prosecution Evidence

Hearing of Parties – S.232

• The Court can acquit the accused, if there lack of prime facie evidence against him upon hearing the prosecution.
• The Court can do so before calling the accused to put forward his defence.
• At this stage, the Court examines the evidence put forward by Prosecution and the statements of witnesses tendered during the examination.

Order of Acquittal – S.232

• In absence of clinching evidence against the accused, the Court may record an order of acquittal.
• The object of such provision is that there is no need to call for the defence of the accused, if there is no clinching evidence tendered by the Prosecution.
• The term “no evidence” against the accused means that there is no legal proof against the accused that he committed the crime for which he is charged.

Explanation of the Accused – S.313

• Once the prosecution evidence is complete, at such stage, before the accused is bought before the Court for his defence, he can give statements u/s. 313 in support of his defence, prior to the stage where the defence evidence starts.

Evidence for Defence

Examination of Witnesses – S.233(1)

• This provision is enacted to protect the interests of the accused.
• It gives the accused an opportunity to enter on his defence and adduce evidence in support thereof.
• The accused himself is a competent witness.

Written Statement of the Accused – S.233(2)

• The accused has a option to place on record his written statement for his defence.
• If the accused files such a written statement, in the case the Judge shall place it on the Record in the Court file.

Issue of Process – S.233(3)

• The accused may apply before the Court for compelling attendance of any witness or production of any document.
• The Judge shall consider the application in detail before accepting or denying the same.
• If the Judge is of the opinion that such application is merely filed by the accused to cause delay and laches in the trial, then the Judge may decline the same.

Record of Evidence – S.276        

(*Discussed above)

Steps to follow Defence Evidence

Arguments – S.234

• Once the evidence for the defence is complete, then the prosecution shall sum up its case and present the arguments.
• In case any point of law is raised by the accused, the prosecution shall address the said issue as well.
• Once the prosecution submits its arguments then the defence is entitled to put forth its reply to the same.

Court Witnesses, if any – S.311

• The Court can summon and examine any person at any stage, as a Court Witness, if his evidence appears to be essential and just for the case at hand.

Judgment and Quantum of Punishment

Judgment – S.235(1)

• After hearing the arguments and points of law the judge shall give a judgment in the case.
• Provisions regarding the particulars of the judgment like language, pronouncement etc., that have to be followed are contained in Ss.353 to 365.

Procedure to follow the order of Conviction – S.235(2)

Quantum of Sentence

• Once the accused is convicted by the Court, in such case the next thing that the Court is duty bound to consider is the question of quantum of sentence.

Factors to be considered

• Character of the accused.
• Age
• Nature and Gravity of Offence, etc.

Oral & Documentary Evidence

• During the hearing stage on the question of sentence, the parties can give oral and documentary evidence in support of their claim for lesser or greater punishment, as the case may be.

Duty of the Court

• The Court shall make genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.
• The Court shall approach the question of sentence from a sociological point of view.
• The Court is not required to follow the strict procedure while dealing with the question of sentence.

Effect of non-compliance

• A sentencing decision taken without following the requirements of S.235 in letter and spirit is likely to be struck down as violative of the rules of natural justice.

Procedure in case of previous conviction – S.236

• This section provides special procedure for determining liability to enhanced punishment as a consequence of previous conviction.
• In case a person has been charged under the previous conviction u/s. 211(7) and he does not admit that he has been previously convicted, then the Court may evidence in such regard.
• It is deemed appropriate to take such evidence regarding previous conviction after the accused is pronounced guilty, as otherwise it would have a tendency to prejudice the mind of the Court against the accused.

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