TRIAL BEFORE A COURT OF SESSION

A Court of Session cannot directly take cognizance of any offence exclusively triable by such
court according to the First Schedule. A competent Magistrate may take cognizance of such an
offence and commit the case to the Court of Session for trial.1 Even in respect of other offences
a Magistrate may commit a case to the Court of Session under the circumstances mentioned in
Sections 322 to 324. All such cases shall be tried by the Court of Session according to the
procedure laid down in Sections 226 to 236. These sections have been discussed in the
succeeding paragraphs.

According to Section 26, the High Court has got the power to try any offence. But in practice,
the High Court does not conduct any trial, nor does the First Schedule indicate any offence as
being triable by a High Court. However, on rare occasions the High Court, after considering
the importance and widespread ramifications of a case, may decide to try the case itself either
at the instance of the government or on its own initiative.

The procedure to be observed by the High Court in such a trial shall, according to Section 474,2
be the same as would be followed by a Court of Session trying such a case. Thus, the trial
procedure given in this regard shall also applicable to trials before the High court.

Generally speaking, a Court of Session is not to take direct cognizance of any offence.
However, in respect of an offence of defamation of a high dignitary or a public official, a Court
of Session can take cognizance of such an offence under the circumstances mentioned in
Section 199(2)3After taking cognizance of such case, the Court of Session shall try it according
to the special procedure prescribed by Section 237.

1
S.209.Commitment of case to Court of Session when offence is triable exclusively by it.—When in 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 exclusively by the Court of Session, he shall— 1 [(a)
commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the
Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody
until such commitment has been made;] (b) subject to the provisions of this Code relating to bail, remand the
accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case
and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor
of the commitment of the case to the Court of Session
2
S.474. Trials before High Courts.—When an offence is tried by the High Court otherwise than under section
407, it shall, in the trial of the offence, observe the same procedure as a Court of Sessions would observe if it
were trying the case
3
S.199 (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the
Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such
commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of
In respect of a trial before a Court of Session certain requirements are noteworthy:

(1) As has been provided by Section 225, "in every trial before a Court of Session, the
prosecution shall be conducted by a Public Prosecutor.” Public Prosecutor means any person
appointed under Section 24 and includes any person acting under the directions of a public
Servant. Section 225 is essentially directory in nature; and if the prosecution is in the hands of
the Public Prosecutor, it does not matter that a lawyer privately engaged had acted for the
prosecution. 4

(2) Section 303 confers an important right on the accused person to be defended by a counsel
of his choice; and in a trial before a Court of Session, where the accused is not represented by
a pleader, and where it appears to the court that the accused has not sufficient means to engage.
a pleader, Section 304 requires that the court shall assign a pleader for his defence at the
expense of the State. Moreover, it has been recognised as the fundamental constitutional right
of every indigent accused person to get free-legal aid for his defence.5 Therefore, if legal aid is
to be given to the indigent accused in compliance with the constitutional requirement, and also
as required by Section 304, the court must, before the commencement of the trial, make timely
arrangements for selecting and assigning a competent lawyer for the defence, and give him
adequate time and facilities for the preparation of the defence.

(3) Sections 207 and 208 require the Magistrate taking cognizance of the offence to supply to
the accused copies of certain documents like police report, FIR, statements recorded by police
or Magistrate during investigation, etc., A question whether the accused should be given the
gist of interrogation if they are treated as statements under Section 161(3) Criminal Procedure
Code came to be clarified by the Supreme Court in State (NCT of Delhi) v. Ravi Kant Sharma6
to the effect that statements under Section 161 need to be separated from observations or
summary of interrogations which are recorded under S. 172 in order to make available the
statement under Section 161 (3) to the accused. In other words, the Court reiterated its views
expressed in Shamshul Kanwar v. State of U.P.7 that the accused is not to be given the

a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant
employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of
his public functions a Court of Session may take cognizance of such offence, without the case being committed
to it, upon a complaint in writing made by the Public Prosecutor.
4
Medichetty Ramakistiah v, State of A.P., 1959 Cri LJ 1404: AIR 1959 AP 659.
5
Hussainara Khatoon (4) v, State of Bihar, (1980) SCC 98: 1980 SCC (Cri) 40,47: 1979 Cri LJ 1045.
6
(2007) 2 SCC 764. (2007) SCC (Cri) 640: 2007 Cri LJ 1674.
7
(1995) 4 SCC 430: 1995 SCC (Cri) 753.
observations of investigating officers.8 In a trial in a warrant case, Section 238 requires the
Magistrate conducting the trial to satisfy himself at the commencement of the trial that he has
complied with the provisions regarding supply of copies to the accused person. Though a trial
before a Court of Session relates to an offence which is relatively more serious, a provision
similar to Section 238 has not been made applicable to such a trial. However, it is submitted
that the Court of Session would and should, at the commencement of trial, satisfy itself that
copies of documents have been furnished to the accused as required by Sections 207 and 208.
In this connection it is pertinent to mention that it has been ruled by the Delhi High Court that
an accused person would have the right, albeit a non-statutory right, to complete disclosure of
material at the threshold of a trial, even in cases instituted otherwise than on a police report if
the proceedings were preceded by police investigation.9 The Supreme Court in V.K. Sasikala
v. State10 reiterated the view that if the accused has perceived certain difficulties in answering
or explaining some part of the evidence brought by the prosecution on the basis of specific
documents and seeks to ascertain if the allegedly incriminating documents can be better
explained by reference to some other documents which are in the court's custody, an
opportunity must be given to the accused to satisfy himself/herself in this regard. In case the
copies were not supplied to the accused, the court would make expeditious arrangements for
the supply of the copies so that the accused gets adequate and fair opportunity to prepare for
his defence which is part of his right under Article 21 of the Constitution.11

8
State (NCT of Delhi) v. Ravi Kant Sharma, (2007) 2 SCC 764: (2007) 1 SCC (Cri) 640.
9
Viniyoga International v. State, 1985 Cri LJ 761 (Del).
10
(2012) 9 SCC 771: (2013) 1 SCC (Cri) 1010: 2013 Cri LJ 177.
11
Ibid.
PROCEDURE FOR TRIAL BEFORE A COURT OF SESSIONS

Chapter XVIII of Cr.P.C. starting with Sec.225 and ending with section 237 deals with
provisions governing the trial before a Court of Session. Sec.225 Cr.P.C. enjoins that in every
trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor.
Sec.193 Cr.P.C. provides that except as otherwise expressly provided by the Cr.P.C. or any
other law, no Court of Session shall take cognizance of any offence as a court of original
jurisdiction unless the case has been committed to it by a Magistrate under the Cr.P.C. There
are statutes like the N.D.P.S.Act, 1985, wherein it is provided that the special court manned by
a Sessions Judge shall take cognizance of an offence under the Act without the case being
committed to it. In such cases it may be permissible for the Sessions Court to take cognizance
of the offence without a committal of the case by the Magistrate concerned. But there are other
enactments such as the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act,
1989 which are silent regarding commitment. Trial under those statutes is also to be conducted
by a Court of Session. In Gangula Ashok v. State of A.P.12 the Supreme Court of India held
that the mandate under Sec. 193 Cr.P.C. is applicable to the special courts manned by Sessions
Judges trying offences under the SC/ST (Prevention of atrocities) Act, 1989 and that those
courts cannot take cognizance of the offences underthe said Act without the case being
committed to them by the Magistrates concerned.

When the accused appears or is brought before court pursuant to the commitment of the case,
the Public Prosecutor should open the case by describing the charge brought against the
accused and stating by what evidence he proposes to prove the guilt of the accused. After
considering the record of the case and the documents submitted along with such record and
after hearing the submissions of the accused and the prosecution, if the judge considers that
there are no sufficient grounds for proceeding against the accused, he shall discharge the
accused giving reasons for doing so. If, however, the judge is of the opinion that there is ground
for presuming that the accused has committed the offence he may frame the charge against the
accused in writing. At this stage the Sessions Judge is entitled to consider only the documents
produced by the prosecution along with the charge sheet. The accused is not entitled to produce
or cause production of any document at this stage for the consideration of the Sessions Judge.

12
2000(1) KLT 609.
The charges shall be read over to the accused and explained to him and he shall be asked as to
whether he pleads guilty of the offence charged or whether he claims to be tried for the charge.
If the judge is of opinion that notwithstanding the conclusions of the police, the offence that is
actually made out is not one exclusively triable by a court of Sessions then he shall frame a
charge against the accused and transfer the case for trial to the Chief Judicial Magistrate who
shall try the case as if it were a warrant case instituted on a police report. Even though Sec.229
Cr.P.C. gives discretion to the judge to convict the accused, in case he pleads guilty, the charge
in a sessions case being for grave offences, it is desirable that the accused is not straightaway
convicted. The proper course would be to call upon the prosecution to prove its case by
adducing evidence. Where the accused does not plead guilty the court shall call upon the
prosecution to adduce evidence in support of its case. Evidence for the prosecution shall be
taken on a day-to-day basis. After the conclusion of the prosecution evidence, the accused is to
be examined under Sec.313 (1) (b) Cr.P.C. with regard to the incriminating circumstances
appearing against him in the evidence for the prosecution. After the examination of the accused
the court has to post the case for hearing under Sec.232 Cr.P.C. If after hearing the prosecution
and the defence the judge considers that there is no evidence to indicate that the accused
committed the offence with which he is charged the judge can record an order of acquittal under
Sec.232 Cr.P.C. This is a very vital stage of the sessions trial and observance of Sec.232
Cr.P.C. and Sec. 233 Cr.P.C. at the appropriate stage is mandatory.13

After hearing under Sec.232 if the accused is not acquitted thereunder, the accused shall be
called upon to enter on his defence and to adduce any evidence which he might have in support
thereof. After the conclusion of the defence evidence, if any, the case has to be taken up for
arguments. After hearing the arguments, the court has to pass the judgment in accordance with
Secs.353 and 354 Cr.P.C. If the judgment is one of conviction and the judge does not proceed
to invoke the benevolent provision of the Probation of Offenders Act, 1958, he shall hear the
accused on the question of sentence and then pass a sentence in accordance with law. This in
short is the procedure to be followed in the ordinary murder trials before a Court of Session.

13
Sivamani v. State of Kerala 1992(2)KLT 227.