CHAPTER XVIII -TRIAL BEFORE A COURT OF SESSION
225. Trial to be conducted by Public Prosecutor -
In
every trial before a Court of Session, the prosecution shall be conducted by a
Public
Prosecutor
226. Opening case for prosecution –
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
227. Discharge –
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
Comments
The
order of discharge should be supported by reasons; Sunil Kumar Jha alias Bittu Jha v State
of Bihar, (1997) 2 Crimes 131 (Pat)
228. Framing of charge -
(1)
If, after such consideration and hearing as aforesaid, the Judge is of opinion
that there is
ground
for presuming that the accused has committed an offence which—
(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,
and
thereupon
the Chief Judicial 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
(2)
Where the Judge frames any charge under clause (b) of sub-section (1), 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
STATE AMENDMENTS
Karnataka:
In
clause (a), of sub-section (1), for the words "to the Chief Judicial
Magistrate and hereupon the
Chief
Judicial Magistrate" the words " to the Chief Judicial Magistrate or
to any Judicial
Magistrate
competent to try the case and thereupon the Chief Judicial Magistrate or such
other
Judicial
Magistrate to whom the case may have been transferred" shall be
substituted
Vide Karnataka Act 22 of 1994, sec 2
(wef 18-5-1994)
West Bengal:
In
clause (a) of sub-section (1) of section 228, for the words "to the Chief
Judicial Magistrate"
and
thereupon the Chief Judicial Magistrate" the words "to the Chief
Judicial Magistrate or to
any
Judicial Magistrate competent to try the case, and thereupon the Chief Judicial
Magistrate or
such
other Judicial Magistrate to whom the case may have been transferred"
shall be substituted
[Vide WB Act 63 of 1978 (wef 1-6-1979)
Comments
(i)
The responsibility of framing the charge is that of the Court and it has to
judicially consider
the
question of doing so Without full adverting to the material on the record it
must not blindly
adopt
the decision of the prosecution; Sunil
Kumar Jha alias Bittu Jha v State of Bihar, (1997) 2
Crimes
131 (Pat)
(ii)
The materials, other than those produced by the prosecution, can also be looked
into and
should
be considered at the time of framing of charge, to find out whether a prima facie case
against
the accused is made out or not; Madho
Singh v State of Rajasthan, (1997) 2
Crimes 358
(Raj)
229. Conviction on plea of guilty –
If
the accused pleads guilty, the Judge shall record the plea and may, in his
discretion, convict
him
thereon.
230. Date for prosecution evidence -
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.
231. Evidence for prosecution -
(1)
On the date so fixed, the Judge shall proceed to take all such evidence as may
be produced in
support
of the prosecution.
(2)
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 crossexamination.
232. Acquittal –
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.
Comments
Once
a co-accused has been discharged or acquitted, he ceases to be a co-accused and
there is no
impediment
to summon him as a witness. He can be a witness for the prosecution as well as
for
the
defence; Sarbeswar Panda v. State of Orissa, (1997) 2 Crimes 534 (Ori).
233. Entering upon defence -
(1)
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.
(2)
If the accused puts in any written statement, the Judge shall file it with the
record.
(3)
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 such application should be refused on the
ground that
it
is made for the purpose of vexation or delay or for defeating the ends of
justice.
234. Arguments -
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 submissions with regard to such
point
of law.
235. Judgment of acquittal or conviction -
(1)
After hearing arguments and points of law (if any), the Judge shall give a
judgment in the
case.
(2)
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.
Comments
(i)
By virtue of section 235 (2) conviction and sentence cannot be passed on the
same day;
Matloob v. State (Delhi), (1997) 3 Crimes 98
(Del).
(ii)
When accused has been sentenced to undergo life imprisonment it is held to be
minimum
sentence
does not require to give opportunity of hearing; State of Gujarat v. Gandabhai S/o.
Govind Bhai, 2000 Cr LJ 92
(Guj).
236. Previous conviction -
In
a case where a previous conviction is charged under the provisions of
sub-section (7) of
section
211, 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 section
235,
take evidence in respect of the alleged previous conviction, and shall record a
finding
thereon:
Provided
that no such charge shall be read out by the Judge nor shall the accused be
asked
to plead thereto nor shall the previous conviction be referred to by the
prosecution
or in any evidence adduced by it, unless and until the accused has been
convicted
under
section 229 or section 235.
237. Procedure in cases instituted under section 199 (2) -
(1)
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.
(2)
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.
(3)
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.
(4)
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.
(5)
Compensation awarded under sub-section (4) shall be recovered as if it were a
fine imposed
by
a Magistrate.
(6)
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.
(7)
The person who has been ordered under sub-section (4) to pay compensation may
appeal
from
the order, in so far as it relates to the payment of compensation, to the High
Court.
(8)
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.
