Trial Process

By: Hifajatali Sayyed

 Introduction
• A trial primarily aimed at ascertaining truth, which has to be
fair to all concerned, which includes the accused, the victims
and society at large.

• Denial of a fair trial is as much injustice to the accused as it is to the

victim and society.

• The right to get a fair trial is a basic fundamental right as

guaranteed under Article 21 of the Indian Constitution.

• Trial basically means the examination before a judge of the

facts put in issue in a cause, often including issues of law
as well as those of fact.
 Trial by Court of Session

• Trial before a Court of Session is to be conducted as per sec 225 to

sec 236 of CrPC.

• Sec 225 states that in every trial before a Court of Session, the
prosecution shall be conducted by a Public Prosecutor.

• Public Prosecutor means any person appointed u/s 24 of

CrPC and includes any person acting under the directions of public
servant.
 Trial by Court of Session
 Opening case for Prosecution: (Sec 226)
• It states that when the accused appears or is brought before the
Court in pursuance of a commitment of the case under section 209,
the prosecutor shall open his case by describing the charge
brought against the accused and stating by what evidence
he proposes to prove the guilt of the accused.
• Here the public prosecutor shall give brief summary of the
evidence and the particulars of the witnesses by which he proposes
to prove the case.
• It is not necessary for prosecution to give full details
regarding the evidence.
 Trial by Court of Session
 Discharge: (Sec 227)

• Sec 227 states that 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.

• Here the Judge has to exercise his judicial mind to the facts
of the case in order to determine whether a case for trial has
been made out by the prosecution.
 Trial by Court of Session
 Discharge: (Sec 227)

• Union of India vs Prafulla Kumar Samal (1979) 3 SCC 4

• In this case, the Supreme Court has given guidelines for exercising
the power of discharge u/s 227 of CrPC:

o That the Judge while considering the question of framing the

charges under section 227of 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.
 Trial by Court of Session
 Discharge: (Sec 227)
• Union of India vs Prafulla Kumar Samal Cont……
o 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.
o 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.
 Trial by Court of Session
 Discharge: (Sec 227)

• Union of India vs Prafulla Kumar Samal Cont……

o That in exercising his jurisdiction under section 227 of the Code the
Judge cannot act merely as a mouth-piece 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.
 Trial by Court of Session
 Framing of Charge: (Sec 228)

• Sec 228 states that if, after such consideration and hearing as given
in previous sections, the Judge is of opinion that there is
ground for presuming that the accused has committed an
offence, the Judge may frame a charge against the accused.

• The charge shall be read and explained to the accused and the
accused shall be asked whether he pleads guilty of the
offence charged or claims to be tried.
 Trial by Court of Session
 Conviction on Plea of Guilty: (Sec 229)

• If at this stage of trial, the accused pleads guilty of committing

the offence and agrees to the charges framed, he may be
directly convicted for those charges u/s 229 of CrPC.

• If the accused pleads not guilty, then the judge will direct to
proceed with the Trial and the accused will have to face the Trial.

• The plea of guilty must be in unambiguous terms, otherwise

such a plea is not a valid plea at all.
 Trial by Court of Session
 Conviction on Plea of Guilty: (Sec 229)

• Karam Singh vs State of Himachal Pradesh (1982 CrLJ

(NOC) 215)

• In this case, the Court held that the court has got discretion to
accept the plea of guilty and to convict the accused thereon.

• However this discretion has to be used with care and

circumspection and on sound judicial principles bearing in
mind the ultimate objective to do justice to the parties.
 Trial by Court of Session
 Conviction on Plea of Guilty: (Sec 229)

• If the accused is convicted on the basis of his plea of guilty, his

right of appeal is substantially curtailed by section 375 of
CrPC.

• Sec 375 states that where an accused person has pleaded

guilty and has been convicted on such plea, there shall be
no appeal if the conviction is by a Court of Session, Metropolitan
Magistrate or Magistrate of the first or second class, except as to the
extent or legality of the sentence.
 Trial by Court of Session
 Conviction on Plea of Guilty: (Sec 229)

• The section is based on the principle that a plea of guilty by

an accused person operates as a waiver of right to question
the legality or his conviction on such a plea.

• But before applying the bar provided in this section against a

convicted person, it must be ascertained that the plea of his
guilt has not been obtained by threat or influence, and that it is a
genuine plea.
 Trial by Court of Session
 Date for Prosecution Evidence: (Sec 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.
 Trial by Court of Session
 Evidence for Prosecution: (Sec 231)

• On the date so fixed, the Judge shall proceed to take all such
evidence as may be produced in support of the
prosecution.

• Sec 3 of Evidence Act defines evidence as

o all statements which the Court permits or requires to be

made before it by witnesses, in relation to matters of fact
under inquiry.

o all documents including electronic records produced

for the inspection of the Court.
 Trial by Court of Session
 Evidence for Prosecution: (Sec 231)

• Witnesses shall be first examined-in-chief, then (if the

adverse party so desires) cross-examined, then (if the party
calling him so desires) re-examined.

• The prosecution should lay before the Court all material evidence
available to it for unfolding its case. However it would not be
proper to lay down a general rule that every witness must
be examined though his evidence may not be very material.
 Trial by Court of Session
 Evidence for Prosecution: (Sec 231)

• Soma Bhai vs State of Gujarat (AIR 1975 SC 1453)

• In this case, the Court stated that if the prosecution gives up

one of the material eye-witness on the ground of close
relationship with, and being won over by, the accused, his non-
examination cannot be said to destroy the fabric of the
prosecution case which is proved by the evidence of other eye-
witnesses and corroborated by other evidence.
 Trial by Court of Session
 Record of Evidence:
• Sec 276 of CrPC states that in all trials before a Court of Session, the
evidence of each witness shall, as his examination proceeds, be
taken down in writing either by the presiding Judge himself
or by his dictation in open Court, or under his direction and
superintendence, by an officer of the Court appointed by him in this
behalf.
• Such evidence shall ordinarily be taken down in the form of a
narrative, but the presiding Judge may, in his discretion, take down,
such evidence in the form of question and answer.
• The evidence so taken down shall be signed by the presiding Judge
and shall form part of the record.
 Trial by Court of Session
 Examination of Accused u/s 313:

• With a view to give an opportunity to the accused person to

explain the circumstances appearing in evidence against
him, sec 313 provides for the examination of the accused by the
court.

• Here the attention of the accused must be specifically

invited to inculpatory pieces of evidence or circumstances laid
on record with a view to giving him an opportunity to offer
an explanation if he chooses to do so.
 Trial by Court of Session
 Examination of Accused u/s 313:

• State of Maharashtra vs. Sukhdeo Singh (AIR 1992 SC 2100)

• In this case, the Court stated that the purpose of the

examination of the accused under Sec 313 is to give the
accused an opportunity to explain the incriminating
material which has surfaced on record.

• It seeks to establish a direct dialogue between the court and

the accused for the purpose of enabling the accused to give his
explanation.
 Trial by Court of Session
 Examination of Accused u/s 313:

• Sanatan Naskar v. State of West Bengal, (AIR 2010 SC 3570)

• In this case, the Court stated that sec 313 also permits him to put
forward his own version or reasons, if he so chooses, in
relation to his involvement or otherwise in the crime.

• It is a mandatory obligation upon the Court and, besides

ensuring the compliance thereof, the Court has to keep in
mind that the accused gets a fair chance to explain his
conduct.
 Trial by Court of Session
 Examination of Accused u/s 313:

• Sec 313 states in every inquiry or trial, for the purpose of

enabling the accused personally to explain any
circumstances appearing in the evidence against him, the
Court—

a) may at any stage, without previously warning the accused put

such questions to him as the Court considers necessary;

b) shall, after the witnesses for the prosecution have been

examined and before he is called on for his defence,
question him generally on the case.
 Trial by Court of Session
 Examination of Accused u/s 313:

• The words `shall question him' clearly bring out the mandatory
character of the clause and cast an imperative duty on the Court
and confer a corresponding right on the accused to an
opportunity to offer his explanation for such incriminating
material appearing against him.

• No oath shall be administered to the accused when he is examined.

• The accused is not bound to answer the questions, and

according to sec 313 (3) he is not liable to punishment for refusing to
answer the questions or by giving false answers to them.
 Trial by Court of Session
 Examination of Accused u/s 313:

• The answers given by the accused may be taken into

consideration in such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial for, any other
offence which such answers may tend to show he has committed.

• For instance: If in a trial for murder the accused says he did not kill
the victim but has concealed the dead body, his statement can be
used as evidence against him in subsequent trial for an offence u/s
201 (causing disappearance of evidence) of IPC.
 Trial by Court of Session
 Acquittal: (Sec 232)
• If, after taking the evidence for the prosecution, examining the
accused 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.
 Hanif Shikalkar vs State of Maharashtra (1981 CrLJ 1622 Bom)
• Here the Court stated that the object of sec 232 is to accelerate
the conclusion of the session trial, at the same time to avoid
unnecessary harassment to the accused by calling him upon
to adduce evidence or to avoid the waste of time when there is
no evidence at all.
 Trial by Court of Session
 Evidence for the Defence: (Sec 233)

• Where the accused is not acquitted under section 232, he shall be

called upon to enter on his defence and adduce any
evidence he may have in support thereof.

• This provision is mandatory in nature and is intended to

protect the interests of the accused person. It imposes a duty
on the court to call upon the accused person to enter on his
defence and adduce evidence, he may have in support thereof.

• If the accused applies for compelling the attendance of witness, the

Judge shall issue process thereof.
 Trial by Court of Session
 Argument: (Sec 234)

• When the examination of the witnesses 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 submissions with regard to such point of
law.
 Trial by Court of Session
 Judgment of Acquittal or Conviction: (Sec 235)
• After hearing arguments and points of law, the Judge shall give a
judgment in the case.
• After the accused is found guilty and an order of conviction is
recorded by the court, a separate and specific stage of trial has been
provided by sec 235 (2) of CrPC. Here the court is required to hear
the accused on the question of sentence. The provision provides for
pre-sentence hearing.
• The object of this provision is to acquaint the court with social
and personal data of the offender and thereby to enable the
court to decide as to the proper sentence in respect to the conviction.
 Summons Cases
 Introduction
• The term “summons cases” has been defined, in a negative sense, under
Section 2(w) of the CrPC as “a case relating to an offence, not being a
warrant case”. On the other hand, a “warrant case” means a case
relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years.
• The two definitions, thus, lead to the conclusion that the basis of
classification between summons case and warrant cases is the
seriousness of the offence. This classification becomes applicable
while determining the type of trial procedure to be adopted in a case.
The trial procedure provided for summons cases is devoid of
much formality and technicality as in warrant cases since the
former is relatively less serious in nature.
 Summons Trial
 Substance of accusation to be stated to the accused.

• When in a summons cases the accused appears or is brought before

the Magistrate, the particulars of the offence of which he is
accused shall be stated to him, and he shall be asked whether
he pleads guilty or has any defence to make, but it shall not be
necessary to frame a formal charge.

• It is necessary that the accused should have a clear statement made

to him as to the particulars of the offence of which he is charged.
 Summons Trial
 Conviction on plea of guilty.

• If the accused pleads guilty, the Magistrate shall record the plea
as nearly as possible in the words used by the accused and
may, in his discretion convict him thereon.

• If the accused admits some or all of the charges alleged by the

prosecution but pleads “not guilty”, the court is bound to proceed
according to law by examining the witnesses of prosecution and
defence.
 Summons Trial
 Conviction on plea of guilty in absence of accused in petty
cases.

• Section 253 of CrPC provides an even simpler procedure for

disposing of petty cases without the presence of accused in
the court.

• Eg: Where the accused wants to plead guilty without appearing in

the court, the accused is supposed to send Rs.1000/- by post or
through a messenger (pleader) to the Magistrate. The Magistrate can
on his discretion convict the accused.
 Summons Trial
 Procedure when not convicted by the Magistrate.

• If the Magistrate does not convict the accused under Section 252 or
Section 253, the Magistrate shall proceed to hear the
prosecution and take all evidence as may be produced in
support of the prosecution, and also to hear the accused and
take all such evidence as he produces in his defence.

• Sec 313 (examination of accused) of CrPC provides that in a

summons-case, where the Court has dispensed with the personal
attendance of the accused, it may also dispense with his
examination under this section.
 Summons Trial
 Acquittal or Conviction.

• If the Magistrate finds the accused not guilty, he shall record an

order of acquittal.

• Where the Magistrate finds the accused guilty, he may pass sentence
upon him according to law.
 Summons Trial
 Power of Court to convert summons-cases into warrant-
cases.

• Sec 259 states that when in the course of the trial of a summons-case
relating to an offence punishable with imprisonment for a term
exceeding six months, it appears to the Magistrate that in
the interests of justice, the offence should be tried in
accordance with the procedure for the trial of warrant-
cases, such Magistrate may proceed to re-hear the case in the
manner provided by this Code for the trial of warrant-cases and may
re-call any witness who may have been examined.
 Summary Trial
 Introduction:

• In respect of certain petty cases, the Magistrate concerned has

been given discretion to try these cases in a summary way.

• The Law Commission in its report has commented about summary

trial in the following manner:

• “Summary trial is an abridged form of the regular trial an is

resorted to in order to save time in trying petty cases. Short-
cuts in procedure are not without risks. But in view of the
safeguards provided as to the judicial officer who may exercise
this power, the nature of offence and the punishment that may be
inflicted, summary jurisdiction is justifiable.”
 Summary Trial
 Judicial officers empowered to try summarily:

• Summary trial is abridged form of regular trial and is a short-cut in

procedure.

• Considering the risk involved in short-cuts, it was considered

necessary that only senior and experienced judicial officers should
be empowered to try certain petty cases summarily.

• The following Magistrate may try summarily the cases:

a. any Chief Judicial Magistrate.

b. any Metropolitan Magistrate.

 Summary Trial
 Judicial officers empowered to try summarily:

c. any Magistrate of the First Class specially empowered in this

behalf by the High Court.

d. The High Court may confer on any Magistrate of the Second

Class power to try summarily any offence which is punishable only
with fine or with imprisonment for a term not exceeding six
months with or without fine, and any abetment of or attempt to
commit any such offence.
 Summary Trial
 Judicial officers empowered to try summarily:

• It is important to note that if any Magistrate not being

empowered by law in this behalf tries an offender summarily, then
according to sec 461 of CrPC his proceedings shall be void.

• Simply because a case is triable summarily does not mean

that the judicial officer must try it summarily. Here the
Magistrate has the discretion to decide depending upon the
facts and circumstances of the case.
 Summary Trial
 Offences triable in Summary Trail:

• All offences cannot be tried summarily because it is a procedure

adopted for mostly for petty cases with a view to save time.

• The Following offences can be tries summarily:

i. offences not punishable with death, imprisonment for life or

imprisonment for a term exceeding two years;

ii. theft, u/s 379, 380 or 381 of IPC, where the value of the property
stolen does not exceed two thousand rupees;

iii. Receiving stolen property u/s 411 IPC where the value of the
property does not exceed two thousand rupees;
 Summary Trial
 Offences triable in Summary Trail:

iv. assisting in the concealment or disposal of stolen property, u/s 414

of IPC, where the value of such property does not exceed two
thousand rupees;

v. offences under sections 454 and 456 of IPC. (House trespass/

House breaking)

vi. insult with intent to provoke a breach of the peace, u/s 504, and
criminal intimidation punishable with imprisonment for a term
which may extend to two years, or with fine, or with both, u/s 506
of the IPC.
 Summary Trial
 Offences triable in Summary Trail:

vii. abetment of any of the foregoing offences;

viii. an attempt to commit any of the foregoing offences, when such

attempt is an offence;

ix. any offence constituted by an act in respect of which a complaint

may be made under section 20 of the Cattle-trespass Act, 1871.

• However, if in the course of summary trial, it appears to the

Magistrate that it is undesirable to try it summarily, the
Magistrate shall recall any witnesses who may have been examined
and proceed to re-hear the case in regular manner.
 Summary Trial
 Punishment awardable in Summary Trail:

• Sec 262 states that no sentence of imprisonment for a term

exceeding three months shall be passed in the case of any
conviction under summary trial.
 Summary Trial
 Record in Summary Trail:

• Sec 263 states that in every case tried summarily, the Magistrate
shall enter, in such form as the State Government may direct, the
following particulars, namely:

• the serial number of the case;

• the date of the commission of the offence;

• the date of the report or complaint;

• the name of the complainant;

• the name, parentage and residence of the accused;

 Summary Trial
 Record in Summary Trail:

• the offence complained of and the offence proved, and in cases

coming under clause (ii), clause (iii) or clause (iv) of sub-section (1)
of section 260, the value of the property in respect of which the
offence has been committed;

• the plea of the accused and his examination;

• the finding;

• the sentence or other final order;

• the date on which proceedings terminated.

 Summary Trial
 Judgment in Summary Trail:

• Sec 264 states that in every case tried summarily in which the
accused does not plead guilty, the Magistrate shall record the
substance of the evidence and a judgment containing a
brief statement of the reasons for the finding.