CHAPTER 7

TRAIL OF SESSION COURT - PRACTICE AND PROCEDURE

The Criminal Procedure Code, 1973 has classified trial into two groups
namely Sessions Trial and Magisterial Trial depending on the gravity of the
offences and the punishment prescribed therefore. The first Schedule of the
Code of Criminal Procedure 1973 is divided into two parts. The first part of
the schedule through its Column No. 6 gives out list of the offences
punishable under the Indian Panel Code and shows which of them are triable
by the Court of Sessions or Court of Magistrate. The second part of this
schedule deals with the offences against other laws.

On the basis of Section 4(2) it is now well settled that if there is any
specific provision relating to taking of cognizance and trial in a particular
local or special Act then the specific provision contained in that Act shall
apply to determine whether a particular offence is triable by the Court of
Session or Court of Magistrate. But if there is no such specific provision then
the second part of the schedule shall operate to ascertain the classification of
offences as triable by the Court of Sessions or otherwise.

It has been laid down in the second part of the first schedule of the
above code (classification of offence against other laws) that if an offence of
special or local Act is punishable with imprisonment for life, or imprisonment
for more than seven years. It shall be triable by the Court of Sessions, but, if a
particular offence is punishable with imprisonment for less than seven years
then it has to be tried by the Court of Magistrate. It may be mentioned here
that a Chief Judicial Magistrate may pass any sentence of imprisonment which
does not exceed seven years.

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 In State of U.P. v. Sabir Ali,] their Lordships of the Supreme Court
observed that Schedule I, Part II makes provisions of Court competent to try
the offences against other laws. Therefore, if there is no provision as to the
trial by a particular Court in other law, the offences under other law shall be
tried by the courts mentioned in the First Schedule Part II. A similar view was
'j

taken by the Allahabad High Court in Mohd. Waseen v. State of U.P.~ Where a
person is accused of having committed offence under Sections 25 and 27 of
the Arms Act and Section 6(3) of the Explosives Act which are triable
exclusively by a Magistrate and also for offences under Sections 395 and 402
of the Penal Code, which are triable exclusively by a Magistrate and also for,
offences under Sections 395 and 402 of the Penal Code, which are triable
exclusively by a Court of Sessions, the Magistrate is competent to commit the
entire case to the Court of Sessions and on committal, the Court of Sessions
can take cognizance of all offences. In such a case the Magistrate cannot split
up the case and commit a part of the same to the Court of Sessions. 3 But a
juvenile offender cannot be tried alongwith other adult accused in the Court of
Sessions. Such accused has to be tried separately by the Juvenile Court.4
Where a juvenile delinquent is arrested, he/she has to be produced before a
juvenile Court and if no juvenile Court is established for the area amongst
others, the Court of Sessions will have power of juvenile Court.

The Court of Sessions has to follow the procedure laid down in Chapter
XVIII, which deals with the procedure of trials before the High Court and
Court of Sessions, so far as that is applicable by it. This is clear not only from
the heading of the chapter but also from the provisions of Section 225 (Old
Section 270) which require the public prosecutor to conduct the prosecution in
every trial before a Court of Sessions. Of Course, special procedure laid down
for particular type of cases and proceedings will be followed in those cases as

AIR 1964 SC 1073.

1970 All CC 80 .
State v. Shyamal Kumar Dey, 1983 CrLJ 40 (Cal.) (DB).
Robin Bapar v. the State, 1986 CrLJ 381 (Cal.): Bejov Singh v. State, 1986 CrLJ
2016.

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special provisions override general provisions of Chapter XVIII. Such special
provisions are to be found in Sections 199 and 345 of the Code.

The trial before the Court of Sessions must proceed and be dealt with
continuously from its inception to its finish. It will be in the interest of both
the prosecution and the defendant that the trial proceeds from day to day
sessions cases must not be tried piecemeal. Before commencing the trial, a
Sessions Judge must satisfy himself that all necessary evidence is available. If
it is not, he may postpone the case, but only on the strongest possible ground
and for shortest possible period. Once the trial commences he should except
for a very pressing reason which makes an adjournment inevitable, proceeded
die in Diem until the trial is concluded.56

1. Relevant Provisions as to Sessions Trial

The relevant provisions relating to Sessions trial can be found in the

form of Sections 2 (Definition of various terms), Section 4 (trial of offences
under the Indian Penal Code and other laws), Section 6 (classification of
criminal courts including Court of Sessions) Section 7 (Territorial divisions of
a Sessions Division), Section 9 ( Establishment of a Court of Sessions to be
presided by a Sessions Judge or Additional Sessions Judge or Assistant
Sessions Judge), SectionlO ( Subordination of Assistant Sessions Judge),
Section 24 (Appointment of public prosecutors for conducting cases in Court
of Sessions), Section 26(a)(ii)(c) (Courts by which offences are triable)
Section 27 (Jurisdiction in the case of Juveniles), Section 28( Sentence which
Sessions Judges, Additional & Assistant Sessions Judge may pass), Section 31
(Sentence in cases of Conviction of several oftences at one (trial), Section
35(Powers of Judges exercisable by their Successor in office), Section 50
(Persons arrested to be informed of grounds of the arrest and of rights of bail),
Sections 154 to 176 (Information to the police and their powers to investigate
with special study of F.I.R statements of witnesses recorded during

5 Malike Begum v. Mohd. Abdul Khader, 1985 CrLJ 926.

6 Lt. Col. S.J. Chaudhary v. State (Delhi Admn.), 1984 CrLJ 340.

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 investigation by investigating Officer. Confessional statement of an accused
and a witness search by police officer, provision of remand, submission of
police report or final report and use of case diary). Sections 177 to 189
(Jurisdiction of the Criminal Courts in inquires and trials), Section 193
(Cognizance of diffences by the Courts of Sessions), Section 194 (the
Additional and Assistant Sessions Judges to try cases made over to them by
the Sessions Judges), Section 197 (Prosecution of Judges and public servants),
Section 199 (Prosecution of offences of defamation committed against the
President of India, etc.) Proviso second of Section 202(2) (Examination of all
witnesses by complainant in Magistrate’s Court when the complaint case is
exclusively tribe by the Court of Sessions). Section 203 (Dismissal of
complaint), Section 204 (issue of process), Section 207 (Supply to the accused
of copy of police report and other documents in police ehallan sessions cases),
Section 208 (supply of copies of statements and documents to the accused in
other cases triable by the Court of Sessions), Section 209 (Commitment of
case to Court of Sessions when offence is triable exclusively by it), Sections
- 211 to 223.

(Framing and contents of charges. Effect of errors in charge.

Amendment in Charge and provisions of separate, joint charge and withdrawal
of remaining charges on conviction on one of several charges), Sections 225
to 237 (Detailed procedure of trial before a Court of sessions), Section 272
(Language of Courts) Section 273 (Evidence to be taken in presence of the
accused), Section 273 (Record in trial before the Court of Sessions), Section
277 (Languages of record of evidence), Section 278 ( Procedure in regard to
such evidence when completed), Section 279 (interpretation of evidence to the
accused or his pleader), Section 280 (Remarks respecting demanour of
witness), Section 281(2) (Record of examination of accused), Section 284
(when attendance of Witness may be dispensed with and commission issued),
Section 284 (when attendance of witness may be dispensed with and
commission issued) Section 291 (Deposition of Medical witness), Section 292
(Evidence of officers of the Mini), Section 293 (Report of certain Government

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Scientific experts), Section 294 (No formal proof of certain documents)
Section 295 (affidavit in proof of conduct of public servants), Section 296
(Evidence of formal character on affidavit), Section298 (Previous conviction
or acquittal how proved), Section 299 (Record of evidence in absence of the
accused who is declared as an absconded offender), Section 300 (Person once
convicted or acquitted not to be tried for same offence), Section 301
(Appearance of public prosecutor and locus standoff private pleader), Section
302 ( permission to conduct prosecution), Section 303 ( right of person against
whom proceedings are instituted to be defended), Section 304 (Legal aid to
the accused at the State expense in certain cases), Sections 306 & 307 (tender
of pardon to accomplice and commitment of accused for trial to the Court of
Sessions), Section 308 (Trial of person not complying with conditions of
pardon), Section 309 (Power to postpone or adjourn proceedings), Section 310
(Local Inspection by a trial judge), Section 311 (Power to summon material
witness or examine person present), Section 312 (Expenses of complainants
and witnesses ), Section 313 ( Power to examine the accused), Section 314
(Oral arguments and memorandum of arguments), Section 315 (Accused
person to be competent witness), Section 316 ( No influence to be used to
induce disclosure), Section 317 (Provision for inquires and trial being held in
the absence of accused in certain cases), Section 318 (Procedure where
accused does not understand proceedings), Section 319 ( Power to proceed
against other persons appearing to be guilty), Section 321 (Withdrawal from
prosecution), Section 323 (Procedure when, after commencement of inquiry of
trial. Magistrate finds case should be committed), Section 324 (Trial of
persons previously convicted or offence against coinage, stamp law or
property), Section 326 (Conviction or commitment on evidence partly
recorded by one judge and partly by another Judge), Section 327 (Court to be
open), Sections 328 to 339 (Provisions as to accused persons of unsound
mind), Sections 340 to 346 (Provisions as to offences affecting the
administration of justice), Section 349 (imprisonment or committal of person
refusing to answer or to producer document), Section 350 (Summary
procedure for punishment for non-attendance by a witness in obedience to

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summons), Section 352 (Certain judges not to try certain offences when
committed before themselves), Section 353 (Judgement), Section 354
(Language and contents of Judgment), Section 356 (Order for notifying
address of previously convicted offender), Section 357 (Order to pay
congensation), Section 359(2) (Order to pay costs in non-cognizable cases),
Sections 360 and 361 (Order to release on probation of good conduct or after
probation of good conduct or after admonition) Section362 (Court not to alter
(Judgment), Section 363 (Copies of judgment to be given to the accused and
other persons), Section 364 (Judgment when to be translated), Section 365
(Court of Sessions to send copy of finding and sentence to the District
Magistrate), Section 366 (Sentence of death to be submitted by the Court of
Sessions for confirmation), Section 367 (Power to direct further inquiry to be
made or additional evidence to be taken in the High Court or Court of
Sessions), Sections 408 and 412 (Powers of Sessions Judge), Section418
(Execution of sentence of imprisonment), Sections 421 and 422 (Warrant for
levy of fine), Section 425 (who may issue warrant), Section 427 (Sentence on
an offender already sentenced for another offence), Sections 436 to 449
(Provisions as to bail and bonds) Section 451 (order for custody and disposal
of property pending trial in certain cases), Section 452 (Order for disposal of
property at conclusion of trial), Section 456 (Power to restore possession of
immovable property), Section 462 (Proceedings in wrong place), Section 463
(Non compliance with provision of Section 164 or Section 261), Section 464
(Effect of omission to frame, or absence of, or error in charge), 465 (Finding
of sentence when reversible by reason of error, omission or irregularity), and
Section 475 (Delivery to commanding officers, or persons liable to be tried by
the Court martial).

2. Commencement of Sessions Trial

The trial before a Court of Sessions or High Court begins with the
framing of the charge. The trial before a Court of Session begins with the
assignment of the accused, that is to say, when the charge is read out to the

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 1
accused and he is scalled upon to plead to it. When the accused is brought for
‘trial’ upto the stage of charge it is inquiry. The ‘trial’ of the accused person
commences when he is called upon to plead to charge. An ‘inquiry’ stops
when a trial begins.8 If on application of a person under Section 340 CrPC for
taking action in accordance with law. Court files a complaint after preliminary
inquiry, such person becomes Functus officio - It is for Magistrate to deal
with case on basis of complaint so filed Neither such person citied as witness
in complaint, nor his counsel has locus-stand (to inter-middle with the
proceedings arising out of the order passed by trial Court in criminal case
pursuant to complaint filed y the learned Sessions Judge.9

In warrant cases after the chare is framed and so also under the present
Act in a sessions case when the charge is framed proceeding becomes a ‘trial’
and prior to that it is only an ‘inquiry’.I0In Rati Lai Bhanji Mahani v. State of
Maharastra,u their Lordships of the Supreme Court held that ‘trial’ in a
warrant case starts with the framing of charge, prior to it, the proceedings are
only ‘inquiry’. Trial in its technical sense commences when the chare is
framed. ‘ In a case exclusively triable by the Govt, of Sessions, the trial
begins only after the commitment and the charge is framed and the accused
appears at the sessions. 13

Similar view was taken in the case of Iqbal v. State of U.P.,'4 by the
Allahabbad High Court. There it has been observed that the sessions trial
starts only when the accused is committed to the Court of Sessions and not
before that. To furnish better clarity to the subject it may further be indicated
here that in summons cases, trial begins when the accused is brought before

Emperor v. John M. Clyer, 37 CrLJ 1936 at 1637 (Mad.) (FB).

Nageshwar Singh v. State of Assam, 1974 CrLJ 193.
Vikram Sharma v. State ofH.P., 1965 (1) Crimes 126 (HP).
Ganesh v. State, 1963 (2) CrLJ 109.
AIR 1979 SC 94 .
Fakruddin v. State Police, 1962(2) CrLJ 14(2).
Hema Singh v. Emperor, AIR 1929 Pat. 644.
1987 All CrC 358 at 357.

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the Magistrate, the particulars of the offence are stated to him and the
Magistrate to hear the complaint and the prosecution evidence.15

2.1 Compliance With Section 207

When in any warrant case instituted on a Police report, the accused

appears or is brought before a Magistrate at the commencement of the trial,
the Magistrate shall satisfy himself that he has complied with the provisions
of Section 207.16 No doubt in a quite number of Sections in the Code the
words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage
after inquiry. That meaning attaches to the words in those Sections having
regard to the context in which they are used. There is no reason why where
these words are used in other context in the Code, they should necessarily be
limited in their connotation and significance. They are words which must be
considered with regard to the particular context in which they are used and
with regard to the scheme and purpose of the provision under consideration.
The words ‘at the commencement of trial’ in this Section have to be
understood with respect to the context in which it is used and in this Section it
means beginning of the proceeding.17

In a case initiated on police report a trial of a warrant case begins

straightaway when the accused appears or is brought before the Court.18 But in
a case initiated otherwise than on police report the trial begins when charge is
framed.19

2.2 Amalgamation of a Case on Police Report and of a Case on

Complaint

There was no provision for amalgamation of cases started on police

report and on a complaint. Consequently, it was held in some cases that if a
Magistrate has taken cognizance of a case on a complaint and also on a police

15 (1909) 9 CrLJ 192 (196).

16 Section 238, Criminal Procedure Code, 1973.
17 State of Bihar v. Ram Naresh, AIR 1957 SC 389.
18 V. C. Shukla v. State, AIR 1980 SC 962.
19 State v. Ghani Banda, AIR 1960 J & K 71.

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report he could not amalgamate those cases but he might proceed either with
the complaint case according to the procedure, for a complaint case or with
the case of which the cognizance was taken on police report according to
procedure, and allow the other case to lie over.20 In some cases it was held that
if the Magistrate amalgamated a complaint case with the case initiated on a
police report there was no illegality and the procedure under Section 251-A
(Sections 238 to 243 new) was to be followed21. It was held in some cases that
if the cognizance of a case had been taken first on complaint and the police
submitted a charge-sheet afterwards, it must be treated a complaint case and
procedure prescribed for a complaint case was to be followed.22

The question whether special leave petition under Article 136 of

Constitution against refusal of bail or anticipatory bail should be listed
immediately or not is a question within the administrative jurisdiction of the
Chief Justice of the High Court and the Supreme Court in its writ jurisdiction
under Article 32 cannot give any direction in that behalf. Therefore, Supreme
Court should not ordinarily, save in exceptional cases, interfere with orders
granting or refusing bail or anticipatory bail, because these are matters in
which the High Court should normally be the final arbiter.23

Plea of accused that copies were not legible, several documents were
missing and many documents were in English language with which accused
was not conversant. Hence, entire proceedings should be quashed. Accused
had raised same points before the Magistrate. But the Magistrate had clearly
stated in his order that copies were verified and found legible before
supplying to accused. Accused had already appointed counsel. Held, that
interest of accused was not prejudiced merely because some documents were

State v. Salu, AIR 1963 Raj 98.

Harbansh Singh v. Daroga Singh, AIR 1962 Pat 27.
Bhutka Gope v. Anup Lai, AIR 1968 Pat 62.
Bihar Legal Support Society, New Delhi v. Chief Justice of India, AIR 1987 SC
38.

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in English. Moreover, the very petition filed by accused was also in English.
As such, proceedings could not be quashed.24

2.3 Trial of a Warrant Case as a Summon Case

Where a trial is a conducted in a manner different from the one

prescribed by the Code, the trial is bad, there being no question of curing an
irregularity, but if the trial is conducted substantially in the manner prescribed
by the Code and a mere irregularity occurs in the course of the conduct of that
procedure, the irregularity is curable.25 On the same principle it has been held
that if a warrant case is tried as a summons case the trial vitiates.26

2.4 Distinction Between Sections 209 And 323

Section 209, Criminal Procedure Code, 1973 lays down that when in a
case instated on a police report of 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 Sessions he shall commit the case the Court
of Sessions. Section 323 Criminal Procedure Code on the other hand, lays
down that if, in any inquiry into an offence or a trial before a Magistrate. It
appears to him at any stage of the proceedings before signing the judgment
that case is one which ought to be tried by the Court of Sessions, he shall
commit it to that Court.

Thus, Sections 209 and 323 operate in different fields. Sections 209 and
323 operate in different fields. Section 209 relates to commitment of only
those cases to the Court of Sessions which are exclusively triable by the
Court. Section which to start with are triable by the Magistrate concerned but
during the inquiry or trial thereof the Magistrate comes to the conclusion that
on account of the peculiar features and circumstances of the case, the same

Leela Shankar v. State, 2004 CrLJ 701 (Mad).

P. Kotavva v. Emperor, AIR 1974 PC 67: 48 CrLJ 533; Pyarey Lai v. State of
Punjab/A IR 1962 SC 690.
State of Himachal Pradesh v. Shri Rama Mai, 1970 CrLJ 1303.

599 -
ought to be tried by the Court of sessions though the offences to which the
• • • 'll

said case relates were not exclusively triable by the Court of Sessions."

Section 209 provides for commitment to a Court of Sessions only when

the offence is triable exclusively by it but this Section must be read along with
Sections 322 and 323. Section 323 is supplementary to Section 209. Under
Section 323 a Magistrate is given. In addition to his power under Section 209,
98
a power to commit a case which ought to be tried by the Court of Sessions."

To invoke the provisions of Sections 323 it should appear to the

Magistrate in any inquiry into an offence or a trial before him that the case is
one which ought to be tried by the Court of Sessions. The case need not be
one exclusively triable by the Court of Sessions. If the material in the case
discloses an offence triable exclusively by a Court of Sessions, the Magistrate
has then no option but to commit the case to the Court of Sessions on the other
hand, if the material discloses only an offence which is triable by the
Magistrate himself, then he has a discretion either to try it himself or commit.
What is essential for the commitment of the case to the Court of Sessions is
*

merely the opinion of the Magistrate and not the satisfaction of the Magistrate.
The said opinion may be on the basis of the nature and gravity of the offence,
7Q
the punishment to be met and such other matters of aggravation.

Section 209 and 323 cover up two different situations. Whereas under
Section 209 case disclosing an offence exclusively triable by a Court of
Sessions is to be committed to that Court, under Section 323 if the inquiry
being conducted or the trial being held by a Magistrate discloses an offence
not exclusively triable by a Court of Sessions but which otherwise in his
opinion ought to be tried by that Court for reasons recorded by him, he can
7n
commit the case to that Court.

Achehey Lai v. State ofU.P., 1983 All CC 104.

State v. Semasekhara Karup, 1982 CrLJ 307.
V.V. Ragghavaloo v. State, 1978 CrLJ 209.
Nahar Chand v. Ishwar Singh, 1981 CrLJ 1906.

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 The provisions of Section 323 are in addition to the provision of
Section 209. Under Section 209 when the offence is triable exclusively by
sessions Court the Magistrate has to commit the case to the Court but under
Section 323 if the Magistrate is of the opinion that the case ought to be tried
by the Session Court he can commit it to that Court even though the case is
not triable exclusively by the Session Court. Thus the order of commitment
under Section 209 is a routine mechanical order passed in conformity with the
provisions of Schedule I, Code of Criminal Procedure, whereas the order of
commitment under Section 323 is an exclusive order requiring close
consideration of the offence.31

Further in commitment of case to the Court Sessions under Section 209.

Code of Criminal Procedure, 1973 procedure prescribed by Sections 208, 209
and 228. Criminal Procedure Code, 1973 applies but such procedure does not
apply when a case is committed order Section 323 of the Code of Criminal
Procedure, 1973. " But a contrary view has been taken in Ranjeet Chaterjee v.
State of W.B.33 that where the Magistrate decided to commit the case to the
4

Court of Sessions under Section 209 on the ground that the case is triable
exclusively by the Sessions Court or under Section 323 on the ground that on
account of the gravity of the offence the case ought to be tried by the Sessions
Court the Magistrate must follow rigidly the provisions of Sections 202 and
208 before the commitment. Failure to do so would cause prejudice to the
accused and render the committal and trial by the Court of Sessions illegal.

Chapter XVII, code of Criminal Procedure, 1973 containing Sections

225 to 237 deals with the procedure as to sessions trail. In C.P. Gulati v.
Lajya Ram,34 their Lordships of the Supreme Court observed:

Ranjeet Chatterjee v. State of W.B., 1986 CrLJ 1847.

Achchev Lai v. State ofU.P., (Supra).
1986 CrLJ 1847.
AIR 1966 SC 595 (Approved in Malika Begum v. Mohd. Abdul Khadeer, 1985
CrLJ 926).

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 The Court of sessions has to follow the procedure
laid down in Chapter XVIII so far as that is
applicable to the cases to be tried by it. This is clear
not only from the heading of the chapter but also
from the provisions of Section 225 (old Section
270) which require the Public Prosecutor to conduct
the prosecution in every trial before a Court of
Sessions. Of course, special procedure laid down
for particular type of cases and proceedings will be
followed in those cases as special provisions
override general provisions of Chapter XVII. Such
special provisions are to be found in Sections 237.

It is very clear that Section 225 specially provides that the prosecution
shall be conducted by public-prosecutor in every trial before a Court of
Session. Even the use of the expression ‘sliall’ also makes it mandatory and
absolute one without there being any exception. Further, the same is reiterated
under Section 301(1) Criminal Procedure Code which allows the appearance
of the public prosecutor to plead without any written authority before any
Court. However, under sub-Section (2) thereof, it only contemplates that any
private person can instruct a pleader who can act on the direction of the public
prosecutor and also submit written arguments with the permission of the
Court.

Therefore, it is amply clear that the role of a public prosecutor in such a

case where a private pleader steps in is not Totally obliterated. No such person
who has been permitted can virtually take over the reins of the public
prosecutor. Ultimately, it is the public prosecutor alone who has to conduct
the entire prosecution and the other pleader can only assist the public
prosecutor. Having regard to the fact that the public prosecutor represents the
State, which is the prosecuting authority for all the criminal trials, it is the
exclusive prerogative of the State of concuct such prosecution through its
agent viz., the public prosecutor and therefore, no other person much less any

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other advocate has any locus or any right to plead on behalf of this
prosecution and conduct the case.33

Considering the role of a public prosecutor and his powers, the Apex
Court in Shiv Kumar v. Hukam Chand,36 dealing with the provisions of
Sections 301(2) and 225 of the Code of Criminal Procedure has held that it is
only the public prosecutor who can conduct the case. A private lawyer can
only submit written arguments with the permission of the Court after the
evidence is closed and he cannot conduct the prosecution. Further, it went on
to add: “It is not merely an overall supervision which the Public Prosecutor is
expected to perform in such cases when a privately engaged counsel is
permitted to act on his behalf. The role, which private counsel in such a
situation can play is, perhaps, comparable with that of a junior advocate
conducting the case of his senior in a Court. The private counsel is to act on
behalf of the Public Prosecutor albeit the fact has engaged in the case by a
private party. If the role of the Public Prosecutor is allowed to shrink to a
mere supervisory role the trial would become a combat between the private
party and the accused which would render the legislative mandate in Section
225 of the Code a dead letter”.

In M. Rama Kistiah v. State of Andhra Pradesh, a Division Bench of

this Court while considering the provisions under Sections 493 and 270 of
Criminal Procedure Code, 1898 held that if the entire conducting of the case is
left the hands of the counsel for private party, the trial is irregular and a retrial
was ordered. Further it adds: “The word ‘conduct’ in this Section conveys the
idea of leading and guiding; and the person who conducts the prosecution
determines all important questions of policy involved in the course of the trial
and the attitude to be adopted by the prosecution towards material objections
raised or demands made by the accused with respect to the evidence. So long,
therefore, as the Public Prosecutor leads and guides in the above sense the

B. Janakiramnath Chettv v. K. Parthasarathy, 2002 CrLJ 4062 (AP).

36 (1999) 2 Andh L(Cri) 62 (SC).
37 1959 CrLJ 1404.

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pleader for the private party, no objection to such a procedure could be
entertained. But if in particular case it happens that the very conduct of the
prosecution is completely left in the hands of such a pleader, and then the
provisions of the code must be held to have been violated.

Unless the control of the Public Prosecutor is there, the prosecution by

a pleader for a private party may degenerate into a legalized means for
wreaking private vengeance. The prosecution instead of being a fair and
dispassionate presentation of the facts of the case for the determination of the
Court would be transformed into a battle between two parties, in which one
was trying to get better of the other, by whatever means available.

3. It is the Exclusive Privilege of the Public Prosecutor to Open The

Trial and None Else

It is now a settled law that in every trial before a Court of Sessions, the
prosecution shall be conducted by a Public Prosecutor. It is Immaterial
whether the trial pending in the Court of Sessions was instituted on police
report or complaint. Prosecution in a Sessions Court cannot be conducted by
anyone other than the public prosecutor. The expected attitude of the public
prosecutor while conducting prosecution must be couched in fairness not only
to the Court and to the investigating agencies. The private counsel is to act on
behalf of the public prosecutor.

It is for the public prosecutor or some person permitted under Section

502 to conduct the prosecution, and not for the judge to open the case. It is
illegal to commence the trial in the absence of the public, prosecutor. The
public prosecutor is an officer of the Court and essentially he has to assist the
Court in dispensing justice.40 The word ‘public prosecutor’ defined under

Section 225, Criminal Procedure Code, 1973, Adan Haji Jama v. King, AIR
1948 PC 63.
Adan Haji Jama v. King, AIR 1948 PC 63.
The State of Maharashtra v. The Editor Nagpur Times, 1991(1) Crimes 337
(Bom.).

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Section 2(4) Code of Criminal Procedure 1973 includes term “Special Public
Prosecutor”.41

3.1 Object and Importance of Opening Address of the Public

Prosecutor

Assurance of a fair trial is the first imperative of the dispensation of

justice. A fair trial has two objects in view it must be fair to the accused and
must also be fair to the prosecution. The opening address of the public
prosecutor must be addressed with this pious object. The object and
importance of opening the case has different value for the public prosecution,
accused and the Court. For the Public Prosecutor it is his statutory duty to
describe the specific charge brought against the accused. Whereas for the
accused opening address is his right to know the detailed particulars of the
prosecution case which he has to answer to claim the verdict of non-guilty.
For Court it is the proposed material which he has to appreciate for deciding
the guilt or otherwise of the accused.

The public prosecutor as well as the Court should not take this
important provision of opening address as a mere formality or routine duty.
They must use it to its core. It is desirable that the public prosecutor before he
decides to open his case must carefully study the written or oral report of the
commission of the crime, the police report, the First Information Report
recorded under Section 154, Code of Criminal Procedure, the statements
recorded under sub-Section (3) of Section 16.1 of all persons whom the
Investigating Officer has examined, the confessions and statements, if any,
recorded under the Code of 1973, the site plan Including maps and plans of
other places connected with the crime, concerned copies of general diary,
expert reports and any other document or relevant extract thereof forwarded to
the Magistrate under sub-Section (G) of Section 173 of the Code of Criminal
Procedure. He must frame his line of action which he proposes to take while
conducting the trial of accused. If he finds it necessary to introduce any new

41 P. V. Antony v. State of Kerala, 1989 CrLJ 2482.

- 605 -
 witness or document keeping in view the material on record, he must mention
it in his opening address to convince the Court that the prosecution case has
been consistent throughout and has not taken the accused by surprise. It would
further be desirable for the public prosecutor to prepare a brief chart of his
case. The public prosecutor should also indicate the details of link evidence of
the case. The public prosecutor should not think that he is giving out the
secrets of his case to the accused through his opening address but must realise
that by narrating his case he is making his case more probable and consistent,
further, it would also be desirable, though not statutory incumbent upon him
to consult the private counsel engaged by the complainant and get the benefit
of his experience. Such consultation shall also enable him to win the
confidence of complainant. The provision contained in Section 226, Code of
Criminal Procedure is very important and the Session Judge has no power to
A ^
bypass this provision.

3.2 Scope and Ambit of the Expression Opening Case for Prosecution

In opening the case the public prosecutor has to state by what evidence
11

he expects to prove the guilt of the accused. Under Section 226 of the Code
of Criminal Procedure in opening his case for the prosecution public
prosecutor is required to describe the charge brought against the accused and
to state by what evidence he proposes to prove the guilt of accused. In other
words, the public prosecutor should have a brief summary of the evidence and
the particulars of witnesses by which he proposes to prove the case against the
accused person. It is not necessary for a public prosecutor in opening the case
for the prosecution to give full details regarding the evidence including the
documents by which he intends to prove his case.44

The prosecution is entitled under Section 231, Criminal Procedure

Code, 1973 to produce witness in support of the prosecution case and the
Sessions Judge shall take all such evidence as may be produced in support of
* 4 ^

Pramod Vaikunth Isloor v. Stale of Karnataka, 1980 MLJ(Cri) 503.

4‘' Mt. Niamat v. Emperor, AIR 1936 Lah. 533 (FB).
44 R.W. Harcos v. State o/W.B., 1975 CrLJ 1256 at 1257 (DB).

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the prosecution. The public prosecutor is at liberty to examine witness whom
it has not produced in the Court of committing Magistrate in a complaint case
exclusively triable by the Court of Sessions as provided in proviso to Sub-
Section (2) of Section 202. However in fairness to the accused the prosecutor
should state in his opening address the names of the witnesses whom he
proposes to call and purpose for which each is to be produced.45

In opening of the case the public prosecutor has to place before the
Court the whole case. He is not entitled to change the case in the course of
giving evidence. He has to give the list of the witnesses to be examined. If he
wants to examine the witnesses other than those mentioned in the calendar, he
has to make mention of their names in h is opening address.46

The opening address of the prosecution must always be confined to

matters which are necessary to follow the evidence. The prosecution will have
to state all that it is proposed to prove in the case. It would be wholly
improper for him to open any matter in respect whereof no evidence is
intended to be read or decided.47 The Court shall see the prosecution puts
forward a real case from the beginning and sticks to it upto the end.48

4. Court May Alter Charge

Any Court may alter or add to any charge at any time before judgment
is pronounced. Every such alteration or addition shall be read and explained to
the accused. If the alteration or addition to a charge is such that proceeding
immediately with the trial is not likely, in the opinion of the Court, to
prejudice the accused in his defence or the prosecutor in the conduct of the
case, the Court may, in its discretion, after such alteration or addition has been
made, proceed with the trial as if the altered or added charge had been the
original charge. If the alteration or addition is such that proceeding
immediately with the trial is likely in the opinion of the Court to prejudice the

45 Rahid Ahmad v. Mohd. Jalil Ashraf 1918 CrLJ 814 (All.) (DB).
46 State of Bombay v. Mohd. Khan, 1960 CrLJ 465.
47 Padam v. Emperor, 30 CrLJ 993.
48 Bhandeb v. Emperor, AIR 1928 All 696.

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accused or the prosecutor as aforesaid, the Court may either direct a new trial
or adjourn the trial for such period as may be necessary. If the offence stated
in the altered or added charge is one for the prosecution of which previous
sanction is necessary, the case shall not be proceeded with until such sanction
is obtained, unless sanction has been already obtained for a prosecution on the
same facts as those on which the altered or added charge is founded.49

Where sample of food was found adulterated by the public analyst.

There was institution of prosecution on that basis after obtaining the sanction.
Held, that if the prosecution had been validly instituted, neither any new data
nor any added reasons contained in the certificate issued by the Director of the
Central Food Laboratory would be sufficient to annul the sanction already
obtained with which the prosecution was already instituted. The trial had to
proceed with the certificate on record which superseded the report of the
ra

public analyst.

4.1 Extent of Permissibility of Alteration of Charge

So far as the illegality in framing charge under Section 506(ii), IPC was
concerned, on perusal of the impugned order it was clear that charge was
framed for commission of offences under Sections 294, 323, 506 and 379 of
the IPC. In the impugned order the Magistrate though had taken note of the
same, at the same time had also observed that the offence alleged and charge
framed was one under Section 506(ii) of the Penal Code. If observation of the
Magistrate to that extent was a mistake, the same could be rectified, but if the
same had not been done deliberately, an illegality had been committed by the
Magistrate by altering the charge. There was scope for the Court at that stage
to alter the charge.M

Section 216, Criminal Procedure Code, 1973.

Food Inspector, Ernakulam v. P.S. Sreenivasa Shenoy, AIR 2000 SC 2577.
T. Narasingh Murthy v. G.N. Gajcipati, 2003 CrLJ 3950 (Ori).

- 608 -
4.2 Order of Alteration of Charge is Proper Whereas No Prejudice is
Caused to Accused

The object of Section 216, Criminal Procedure Code is to ensure a fair

trial and the Court is to see as to whether alteration or addition to any charge
at any time before the judgment is pronounced is called for or not and if it is
called for, such alteration or addition to any charge, must be on the basis of
some evidence on record. It is made clear that the words “add to” means
addition of a new charge and not addition of a few words or corrections and
that an erroneous or improper charge may be corrected by refraining it
properly or by adding to it or altering it for an offence provable by the
evidence taken by the trial Court. In the instant case, a prima facie case had
been made out by the prosecution for altering or adding the said charges and
the basic ingredients were present in the prosecution case and as such, the
accused petitioners were not prejudiced or handicapped in their defence52.

4.3 Permissibility of Addition of Charge Even At Appellate Stage

Before Pronouncement of Judgment in Appeal

Where material facts constituting commission of offence under Section

409, Indian Penal Code had been set out in charges framed earlier for offences
under Sections 420, 468 and 472 read with Section 120-B, Indian Penal Code.
Held, that non-mentioning of Section 420, Indian Penal Code as penal
provision was apparently a mistake which could be rectified by trial Court.
Therefore, addition of charge of offence under Section 420, Indian Penal Code
c *>

when trial was at final stage and ease was fixed for final hearing was proper.

Where complaint was filed for offence punishable under Section 138 of
Negotiable Instruments Act. After commencement of trial and complainant
examined. Application was field to alter charge under Section 420, Indian
Penal Code. High Court observed that as material on record had shown no
prima facie case against respondent so as to frame charge against him for

52 Rocky Banedick v. State of Sikkim, 2003 CrLJ 3309 (Sikkim).

Surinder Kumar v. State of H.P., 2003 CrLJ 2900 (HP).

- 609 -
commission of offence punishable under Section 420, Indian Penal Code,
hence refusal to charge was proper.54

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 doing55.

4.4 Application for Discharge Liable to be Dismissed

Where application for discharge of 15 accused out of 26 accused

persons was filed. Accused persons were alleged to have brutally killed
deceased. The fact was that accused persons were detained by the officer-in­
charge in the Police Station showed that accused persons were present at the
time of commission of trial. Held that application for discharge filed by
accused persons on ground that charge-sheet was submitted as against 11
accused persons and they were not sent for trial was liable to be dismissed.56

4.5 Charges Could Be Framed Even If Materials Indicate Strong

Suspicion

Court was to find out from the facts at face value whether they contain
ingredients of offence. If there was sufficient material to frame the charge,
strict standard of proof and test of scrutiny of evidence should not be applied
by the Courts at this stage. It was further observed that prosecution case could
not be taken as gospel truth there were evidence on record and case diaries
revealed operation of bank accounts, preparation of demand drafts, trading
with respect to purchase and sale of shares on line and demand draft issued in
names of persons connected with accused. Held, that existence of such facts in
case diaries were suggestive that no case for discharge of accused was made

T.J. Edward v. C.A. Victor Immanuel, 2002 CrLJ 1670 (Ker).

Section 227, Criminal Procedure Code, 1973.
Shyam Kumar Das v. State of Jharkhand, 2005 CrLJ 3 (Jhar).
Gopalsinh Bhimsinh Rathod v. State of Gujarat, 2004 (15) AIC 202 (Guj).

- 610 -
out, hence order of trial Court discharging accused was improper and liable to
be set aside.38

5. Discharge

The order of discharge of accused on the ground that complaint was

filed by General Power of Attorney Holder of payee not proper59. Where Chief
Minister and his private secretary were discharged by revisional Court and
appeal was filed by CBI. Supreme Court expressed consequences of
entertaining petition for discharge and pointed out danger involved for either
side if any finding on contentious issue was reached. Accused persons sought
withdrawal of revision petitions filed for their discharge. Order of withdrawal
was passed and discharge order was thereby stood erased. Trial Court was
ordered to frame charge against accused persons so that trial could proceed
against them along with other accused.60

Where offence of illegal transportation of contraband under Abkari Act

was committed but there was no allegation that petitioner was either directly
or indirectly involved in transport of contraband liquor. Held, that implication
of petitioner in his capacity as owner of vehicle used in the crime and on
being brother of one of the accused was not proper in the absence of specific
provision in Abkari Act casting liability on owner of vehicle used for
commission of crime.61 Discharge of accused by Sessions Judge on the ground
that second dying declaration was not reliable not proper. ~

When charge is framed in warrant case instituted either on complaint or

police report, and then Magistrate has no power to pass order of discharge of
accused. Non-consideration of supplementary charge-sheet along with
statement of witnesses makes the order discharging accused without recording

Indian Bank v. Stale, 2002 CrLJ 3300 (Jhar).

M. Ramaiah v. Ramanika Silks (P) Ltd., 2001 CrLJ 2694 (Kant).
State v. R. Sun Babu, 2001 CrLJ 132 (SC).
K.R. Sooraj v. Excise Inspector, Eranakulam, 2002 CrLJ 4744 (Ker).
In re : Bed Kumar Rai, 2001 CrLJ 2683 (Sikkim).
Nand Kishore Rampal Lohiya v. State of Maharashtra, 2001 CrLJ 2742 (Bom).

- 611 -
any reasons unsustainable.64 When there was sufficient ground on the basis of
evidence available on record, to proceed against accused then discharging
accused by trial Court improper.65

5.1 Discharge of Accused Did Not Amount to Acquittal of Accused

As far as the order of discharge of the learned CJM is concerned in

Court’s view having regard to the provision of Section 227 of the Criminal
Procedure Code the order of discharge does not tantamount to acquittal of an
accused.66 Before framing of charges accused besides making oral submission
could also produce other material (documentary evidence) in support of his
case. Trial Judge has to consider said documents at stage of framing of
charges. Therefore, refusal of summoning of case diary, ballistic expert report
and chemical examination report as sought by accused and which were
directly related to commission of offence was improper.67

6. Framing of Charge

The law governing the trial of criminal offences provides for alteration
of charges at any stage of the proceedings depending upon the evidence
adduced in the case. If the trial is being held before a Court of Magistrate it is
open to that Court at any stage of trial if it comes to the conclusion that the
material on record indicates the commission of an offence which requires to
be tried by a superior Court, it can always do so by committing such case for
further trial to a superior Court as a contemplated in the Code of Criminal
Procedure (the Code). On the contrary, if the trial is being conducted in a
superior Court like the Sessions Court and if that Court comes to the
conclusion that the evidence produced in the said trial makes out a lesser
offence than the one with which the accused is charged, it is always open to
that Court based on evidence to convict such accused for a lesser offence.
Thus, arguments regarding framing of a proper charge are best left to be

64 Kartick C. Pradhan v. State ofW.B., 2001 CrLJ 3825 (Cal).

6:> Dr. Bipin Shantilal Panchal v. Pruthviraj, 1999 CrLJ 214 (Guj).
66 P. Visivanathan v. Dr. A.K. Burman, 2003 CrLJ 949 at 959 (Cal).
67 Vijitendra Kumar Gupta v. State ofU.P., 2003 CrLJ 4101 (All).

- 612 -
decided by the trial Court at an appropriate stage of the trial. Otherwise as has
happened in this case proceedings get protracted by the intervention of the
68
superior courts.

Where prima facie incriminating material was available against the

accused. Held, that Court could not go into the veracity of material at the
/A

stage of framing of charges, hence charges framed could not be quashed. In

nutshell an order of discharge under Section 227 of the Code would be
warranted only in those cases where the Court is satisfied that there are no
chances of conviction of an accused and the trial would be an exercise in
futility. In all other cases an order for charge under Section 228 of the Code
has to be passed so as to give the prosecution an opportunity to lead evidence
and establish the allegations.70

Sample of sugar boiled confectionary was taken by Food Inspector from

shop of main accused. Letter was written by main accused informing food
inspector that other two persons were alleging to be his partners in business.
Food inspector included names of said two persons in array of accused and
complaint was filed. Except letter no documentary evidence with regard to
registration of firm or partnership business or registration extract was
produced. Held, that the said two persons could not be said to be partners of
firm hence could not be prosecuted.71

For inflicting injury on the body which causes death of deceased,

accused was charged under Section 302, Indian Penal Code. Prosecution not to
be deprived to prove that accused was guilty merely on the post-mortem report
at the initial stage. Discharging accused on the basis of observation and

State of Maharashtra v. Salman Salim Khan, 2004 (1) Crimes 172 at 174-175
(SC).
Jijo v. State, 2003 CrLJ 256 (Kant).
Sushil Ansal v. State, 2002 CrLJ 1369 (Del).
Chilka Srinivas v. State of A.P., 2003 CrLJ 4036 (AP).

- 613 -
opinion incorporated in post-mortem report was illegal and liable to be set
aside.72

Where the husband has suspected the character of his wife by abusing
her saying “Bloody whore, why don’t you die”. Held, that act of husband
could be a serious provocation for wife to commit suicide. As such a wilful
conduct on part of husband also amounted to cruelty. Therefore, framing of
charge against husband for abetment of suicide and cruelty was proper.

There was accidental death of worker in fire at the place of working. No

fire extinguisher had been provided at the place where explosives were stored.
Court observed that there was illegal omission in not providing safety
measures and providing illegal wires. There was insufficiency of place where
unit concerned was installed. Held, that act of accused amounted not only to
rashness and negligence but also illegal omission within the meaning of
Section 32, Indian Penal Code, as prima facie material was available on record
to frame charge under Section 304 read with Sections 285 and 286 of Indian
Penal Code, no interference was required.74

When prima facie material showing involvement of petitioner, driver of

main accused charged under Sections 302/114, Indian Penal Code for abetting
offence then order framing charge cannot be quashed.75 Quashment of charge
at stage of framing of charge by trial Court unjustified.76 Where allegation
were made against the accused that the co-accused persons used to sell stolen
property to him. But there was absence of evidence in support of the said
allegations. No recovery of property were made from the accused. Grounds
that accused persons might have confessed their guilt and accused would
become approver were only grounds based on conjecture. Held, that as no

Om Wati v. State, through Delhi Admin., 2001 CrLJ 1723 (SC).

Mohan Chand Kholia v. State, 2003 CrLJ 710 (Del).
Narendra v. State of Rajasthan, 2003 CrLJ 1995 (Raj).
Fatiur AH v. CB1, 2000 CrLJ 2182 (Gau).
State of M.P. v. S.B. Johari, AIR 2000 SC 665.

614 -
charge could be framed on such grounds as such order for rejection of
application for discharge of the accused was not proper.77

The trial Court, in the instant case, rightly held that merely on account
of the observations and the opinion incorporated in the post-mortem report,
the prosecution could not be deprived of its right to prove that accused were
guilty of the offence for which the final report had been filed against them.
There was no ground for the High Court to interfere with the well reasoned
order of the trial Court by passing a cryptic and telegraphic order which is
impugned in this appeal. It is not safe, at this stage, to deprive the prosecution
in proving its case on the basis of the direct evidence, the statement of the
deceased claimed to be admissible under Section 32 of the Evidence Act and
the other documents including the inquest report allegedly disclosing the
infliction of the injuries on the person of the deceased which resulted in his
death. The acceptance of the opinion of the doctors, as incorporated in the
post-mortem report for the cause of death of the deceased being ‘hepatic
failure following viral hepatites’ cannot be accepted on its face value at this
. • • i 78
initial stage.

Under Section 228 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 Sessions, 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 police
report,

(b) Is exclusively triable by the Court, he shall frame in writing a

charge against the accused.

77 Manish Jain v. State of Jharkhand, 2002 CrLJ 3980 (Jhar).

78 Om Wati v. State, AIR 2001 SC 1507 at 1512.

- 615 -
 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 claim to be tried. The
purpose of Sections 227 and 228 of the code of Criminal Procedure, 1973 is to
ensure that the Court should be satisfied that the accusation made against the
accused person is not previous and that there is some material for proceedings
against him.79

In Satti Kant Guha v. State of W.B.,S0 it was observed by Division

Bench of Calcutta High Court. “Section 227 read with Section 228 of the Code
of Criminal Procedure, 1973 is a precious safeguard so to express, a pre-battle
protection conferred by Parliament in its wisdom upon accused persons
charge-sheeted by the Police for trial in a Court of Sessions without collecting
and collating materials sufficient to warrant a full fledged trial. This provision
in law is calculated to eliminate further harassment to the accused persons
when the evidentiary materials gathered after a prolonged and thorough
investigation of the occurrence fall short of minimum requirement, therefore,
the provision of law cannot be reduced into a dead letter and accused made to
understand the rigour of a futile trial, where such a trial on materials available
is paipably not warranted against them. Section 227 of the Code of Criminal
Procedure, 1973 has made a beneficent provision to save the accused from
prolonged harassment which is a necessary concomitant of a protected trial.81

7. Discharge of Accused

The High Court cannot seek independent corroboration at the stage of

QO

framing of charge and quash charge and discharge the accused. While
dealing with the scope of enquiry for the purpose of discharging an accused
the ‘ground’ in the context is not a ground for conviction, but ground for
putting the accused on trial. All that the Court has to consider is whether the

79 Richard Winn. Harems v. State ofW.B., 1975 CrLJ 1256 (DB).

80 1977 CrLJ 1844 at 1852: Pritam Singh v. State, 1981 CrLJ 554.
81 Kewal Krishan v. Suraj Bhan, AIR 1980 SC 1753.
82 State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041.

- 616 -
evidentiary material on record if generally accepted would reasonably connect
the accused with the crime.83 The charges are framed under Section 228 of the
Criminal Procedure Code and once a Sessions Judge frames charges against an
accused under Section 228 of the Code of Criminal Procedure, he has either to
acquit or convict the accused. After framing of the charges, the Sessions Judge
has no power to drop the proceedings.

There can be no order of discharge after framing the charge against the
oc

accused. When there is no material showing accused directly or indirectly

involved in alleged offence of forgery and cheating alongiwth others, then
order of discharge would be proper.86 In view of Section 227, Criminal
Procedure Code, the Court before passing an order of discharge of accused
must consider the records and documents in the case. If at this stage, judicial
mind is not applied objectively, the person who is charged, has to face the
agony of trial and therefore, the Court framing charge has to follow the
provisions of Section 227 Criminal Procedure Code may be that the Court is
not expected to give detailed reasoning at this stage but the order by itself
must inspire confidence that the record of the case and the documents have
been duly considered by the trial Court because this consideration may either
lead to discharge at the stage of framing of the charge. Therefore,
consideration of the relevant record of the case and the documents is a sine
qua non for the purpose of framing of the charge.87

In the view case of Stree Atyachar Virodhi Parishad v. Dilip Nathumal

Chordia,%% it was observed by the Supreme Court that in fact Section 227 itself
contains enough guidelines as to the scope of enquiry for the purpose of
discharging an accused. It provides that “the Judge shall discharge when he
considers that there is no sufficient ground for proceeding against the

J Stree Atyacher Virodhi Parishad v. Dal ip Nathumal, (Supra).

84 Kishan Seva Sehakari Samiti Ltd. v. Bachan Singh, 1993 CrLJ 2540 at 2541
(All).
8:> Dev Rattan v. State of Haryana, 1989 CrLJ 1044.
86 State by the Inspector of Police v. S.P. Java Gopal, 1994 CrLJ 146.
87 Ramdev v. State of Rajasthan, 1994 CrLJ (NOC) 173 (Raj.).
88 JT 1989 (1) SC 247.

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accused”. The ‘ground’ in the context is not a ground for a conviction. But a
ground for putting the accused on trial. It is in the trial, the guilt or the
innocence of the accused will be determined and not at the time of framing of
charge. The Court, therefore need not undertake an elaborate enquiry in sifting
and weighing the material. Nor it is necessary to delve deep into various
aspects. All that the Court has to consider is whether the evidenclary material
on record, if generally accepted, would reasonably connect the accused with
the crime. No more need be enquired into.

From the provisions of Sections 227 to 237 Code of Criminal

Procedure, 1973 it will appear that the law provides that on considering the
relevant materials the Court considers that there is no sufficient ground for
proceeding against the accused then the accused has to be discharged, but if
the Court is of opinion on such consideration that there is ground for
presuming that the accused has committed an offence which is exclusively
tribal by the Court of Session then charge has to be framed against the
accused. It is needless to mention that the question whether charge should be
framed against the accused or he should be discharged has to be considered
simultaneously and if on such consideration the Court thinks that the accused
should not be discharged and rather charge should be framed against him in
that case the charge has to be framed against the accused.

It is evident from the scheme of the Provisions of the Chapter XVIII of

the Criminal Procedure Code as well as from the logic of the sequence that
once the Court decides to frame charge under Section 228 CrPC there is no
question of discharging him at a later stage by exercising the power under
Section 227 Criminal Procedure Code Once charge has been framed under
Section 228 the trial has to proceed according to the procedure provided in the
Sections following the Sections 228 and 227 Criminal Procedure Code where
a charge has been framed by the Court of Session under Section 228, the said
Court thereafter cannot discharge the accused under Section 227 Criminal
Procedure Code Even if an accused against whom a charge has been framed
under Section 228 Criminal Procedure Code feels aggrieved by the framing of

- 618 -
charge he has either to face the trial or he may approach the High Court in its
revisional Jurisdiction. If the Court of Session remains free to discharge an
accused on reconsideration under Section 227 even after a charge has been
framed under Section 228, In that case it would be open to the accused
persons against whom charge has already been framed to move the same Court
one after another for reconsideration and discharge on repeated occasions
thereby making it practically impossible to proceed with the trial of the case
expeditiously or at all, even if such moves lack merits. To sum up where a
charge has been framed by the Court of Session under Section 228 code of
Criminal Procedure, then the Court thereafter cannot discharge the accused.
Provisions of Sections 216 and 362 Criminal Procedure Code would not be
application in the case.89

The provisions of Sections 227 and 228, Criminal Procedure Code have
been considered by the Hon’ble Supreme Court from time to time. In State of
Bihar v. Ramesh Singh,90 it has been laid down as follows:

Reading Sections 227 and 228 together in

juxtaposition, as they have got to be. It would be
clear that at the beginning and the initial stage of
the trial the truth veracity and effect of the evidence
which the Prosecutor proposes to adduce are not to
be meticulously judged. Nor is any weight to be
attached to the probable defence of the accused. It
is not obligatory for the judge at that stage of the
trial to consider in any detail and weigh in a
sensitive balance whether the facts. If proved,
would be incompatible with the innocence of the
accused or not. The standard or test and judgment
which is to be finally applied before recording a

Tepiti Beg v. Petitpaban Ghosh, 1993 (2) Crimes 1134 (Cal.).

1977 CrLJ 1606: AIR 1977 SC 2018.

- 619 -
 finding regarding the guilt or otherwise of the
accused is not exactly to be applied at his stage of
deciding the matter under Section 227 or Section
228 of the Code. At that stage the Court is not to
see whether there is sufficient ground for conviction
of the accused or whether the trial is sure to end in
his conviction.

Strong suspicion against the accused, if the matter remains in the region
of suspicion cannot take the place of proof of his guilt at the conclusion of the
trial. But at the initial stage if there is a strong suspicion which leads the
Court to think that there is ground for presuming that the accused has
committed an offence then it not open to the Court to say that there is no
sufficient ground for proceeding against the accused.

If the evidence which the prosecutor proposes to adduce to prove the

guilt of the accused even if fully accepted before it is challenged in cross
examination or rebutted by the defence evidence, if any, cannot show that the
t

accused committed the offence, then there will be no sufficient ground for
proceeding with the trial. If the scales of pan as to the guilt or innocence of
the accused are something like even at the conclusion of the trial, then on the
theory of benefit of doubt the case Is to end in his acquittal. But if on the
other hand, it is so at the initial stage of making an order under Section 227 or
Section 228, then in such a situation ordinarily and generally the order which
will have to be made will be one under Section 228 and not under Section 227.

These provisions were also interpreted in Supdt. And Remembrancer of

Legal Affairs West Bengal v. Anil Kumar Bhunja and others f and the relevant
findings of the Hon’ble Supreme Court are as follows:

At the stage of framing of the charges, the

prosecution evidence does not commence. The

AIR 1980 SC 52.

- 620 -
 magistrate has therefore, to consider the question as
to framing of charge on general consideration of the
materials placed before him by the investigating
police officer. The standard test, proof and
judgment which is to be applied finally before
finding the accused guilty or otherwise is not
exactly to be applied at the stage of Section 227 or
228. At this stage even a very strong suspicion
founded upon materials before the Magistrate,
which leads him to form a presumptive opinion as
to the existence of the factual ingredients
constituting the offence alleged, may justify the
framing of charges against the accused in respect of
the commission of that offence.

The order framing charge should show application of mind and detailed
order was not required to be written. Requirement of Sections 227 and 228 is
that there should be a finding that prima facie case was made out and
sufficiency of evidence resulting into conviction is not be seen because that
will be seen by the trial Court when it will enter into the provisions of
Sections 232, 234 and 235, Criminal Procedure Code.92

It is settled law that at the stage of framing the charge, the Court has to
prima facie consider whether there is sufficient ground for proceeding against
the accused. The Court is not required to appreciate the evidence and arrive at
the conclusion that the materials produced are sufficient or rot for convicting
the accused if the Court is satisfied that a prima facie case is made cut for
proceeding further then a charge has to be framed. The charge can be quashed
If the evidence which the prosecutor proposes to adduce to prove the guilt of
the accused, even if fully accepted before it is challenged by cross-
examination or rebutted by defence evidence, if any, cannot show that accused

92 Sanran Singh v. State of Haryana, 2000(1) Crimes 155 (P&H).

- 621 -
committed the particular offence. In such case, there would be no sufficient
ground for proceeding with the trial.93

At the stage of framing of charge only prima facie believable case is

required and seeking of independent corroboration is not justified.94 Though in
a given case defective charge does not vitiate trial in terms of Section 464
Criminal Procedure Code, where the omissions is vital and even the substance
of accusations is totally different from what is sought to be established by the
prosecution, that is a factor tor acquittal of an accused.95 Where on the
evaluation of a case the Supreme Court reaches the conclusion that no
conviction of any accused is possible as the prosecution has failed to establish
its case again3t the appellants, the benefit of doubt must be extended to the
co-accused similarly situated though he has not challenged the order of
conviction by way of an appeal.96

It is well settled principle in law that though the first appellate Court
like the High Court sits as a Court of appea' on facts also while considering an
appeal from the judgment of the trial Court and in that process it can
reappreciate the evidence on record to arrive at a Just conclusion. However,
while so re-appreciating the evidence, the appellate Court should first analyse
the findings of the trial Court and then for valid reasons to be recorded the
appellate Court can reverse such finding of the trial Court.

That if on the basis of materials on record a Court could come to the

conclusion that commission of the offence is a probable consequence a case
for framing of charge exists. To put it differently, if the Court were to think
that the accused might have committed the offence it can frame the charge,
though for conviction the “conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage of framing of charge,

State ofM.P. v. S.B. Johari, 2000 CrLJ 944.

lndumaidi Tripathi v. State of Bihar, 2000(1) Crimes 480.
Sou Vijaya alias Baby v. State of Maharashtra, 2003(2) SCC(Cri) 1998.
Suresh Chaudhary v. State of Bihar, (2003) 4 SCC 128.

- 622 -
probative value of the materials on record cannot be gone Into; the materials
brought on record by the prosecution has to be accepted as true at that stage.97

At stage of application for discharge of accused the exercise should be

confined to considering the police report and the documents to decide whether
the allegations against the accused are “groundless” or whether “there is
ground for presuming that the accused has committed the offences”.
Presumption therein is always rebuttable by the accused for which there must
be opportunity of participation is the trial.98 It is settled law that at the time of
framing of charge, there is no legal requirement that the trial Court should
discuss every material placed before it by the police along with the charge-
sheet. Not only this, at the stage of framing of charge, the Court is not
expected to go deep into the probative value of the material on record. Section
227 provides that at the stage of passing the order in terms of Section 227 of
the Code, the Court has merely to peruse the evidence in order to find out
whether or not there is a sufficient ground for proceeding against the accused,
if upon consideration, the Court is satisfied that a prima facie ease is made out
*

against the accused, the Court must proceed to frame charge in terms of
Section 228 of the Code.99

In Umar Abdul Sakoor Sorathia v. Intelligence officer, Narcotte

Control Bureau.100 The Hon’ble Supreme Court held that at the stage of
framing charge the Court is not expected to go deep into the probative value
on the manuals or record. If on the basis of materials on record the Court
could come to the conclusion that the accused would have committed the
offence, the Court is obliged to frame the charge and proceed to the trial. The
law on the subject is now well settled, as pointed out in Nirarjan Singh Karam
Singh Punjabi v. Jitendro. Bhimraj Bijju,m that at Sections 227 and 22 CJ
stage the Court is required to evaluate the material and documents on record

97 State of Maharashtra etc. v. Som Nath Thapa, AIR 1996 SC 1744.

98 State Tamil Nadu v. J. Java Lalitha, 2000(2) Crimes 232 (SC).
99 2002 CrLJ 4243 (SC).
100 1999 CrLJ 3972 (SC).
101 (1990) 4 SCC 76.

- 623 -
with a view to finding out if the facts emerging there from taken at their face
value disclose the existence of all the ingredients constituting the alleged
offence. The Court may, for this limited purpose, sift the evidence.

It is well settled that at the stage of framing charge the Court is not
expected to go deep in to the probative value of the materials on record. If on
the basis of materials on record the Court could come to the conclusion that
the accused would have committed the offence the Court is obliged to frame
the charge and proceed to the trial. It seems well settled that at Sections
227-22S stage the Court is required to evaluate material and documents on
record with a view to finding out if the facts emerging there from taken at
their face value disclose the existence of all the ingredients constituting the
alleged offence. The Court may for the limited purpose sift the evidence as it
cannot be expected even at that initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common sense or the broad
probabilities of the case.104 Subsequent events which directly hit the
prosecution case can be taken into consideration for purpose of discharging
accused also.105

The law on the subject is now well settled that at Sections 227 and 228
stages, the Court is required to evaluate material and documents on record
with a view to finding out if the facts emerging there from taken at their face
value disclose the existence of all the ingredients constituting alleged offence.
The Court may for this limited purpose sift the evidence as it cannot be even
at that initial stage to accept all that the prosecution states as gospel truth even
if it is opposed to common sense or the broad probabilities of the case.
Therefore, at the stage of framing of the charge the Court has to consider the
material with a view to find out if there is ground for presuming that the

10_ State of Maharashtra v. Priya Sharen Maharaj, AIR 1997 SC 2041.

103
Umar Abdul Sakoor Sarothia v. Intelligence Officer Narcotic Control Bureau,
1992(2) Supreme (Cr.) 176.
104 Niranjan Singh Karan Singh Punjabi v. Jintendra Bhimraj Bijjawa, 1990, CrLJ
1869 at 1875 (SC).
Hb Krishna Nand Singh v. State of Bihar, 2002(1) Crimes 805 (Patna).

- 624 -
accused has committed the offence or that there is sufficient ground for
proceeding against him and not for the purpose of arriving at the conclusion
that it is not likely to lead a conviction.106

In a case instituted upon a police report the Court is required at the time
of framing of the charges, to confine its attention to documents referred to
under Section 173 of the Code of Criminal Procedure only. In that context the
Court was not justified in referring to much less relying upon the letters
purported to be written by the accused when their authencity and veracity are
yet to be gone into.107

Even at the stage of framing charge, Court has to consider whether

there is sufficient material to go into trial is whether evidence collected by
i nc
prosecution. If unrebutted warrant any conviction . At the stage of framing
charges meticulous consideration of evidence and materials by Court is not
required.109 In Union of India v. Profulla Kumar Samal,uo the Supreme Court
laid down the following principles which must be taken into consideration
while examining the question of framing the charges:

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 weight 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 trail:

State of Maharashtra v. Pviya Sharan Maharaj, 1997 CrLR 2249 at 2250.

State of Jammu and Kashmir v. Sudarshan Chekkar, 1995 CrLJ 3606 (SC).
The State of Assam v. Ac it Ranjan Dey, 1989 CrLJ 1117.
Redhey Shyam v. Kunj Behari, AIR 1990 SC 123.
AIR 1979 SC 366.

- 625 -
 3. The test to determine a prima facie case would naturally depend
upon the facts of each case and its 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 examining his jurisdiction under Section 227 of the Code

the judge which under the present code is a senior and
experienced Court claim to act merely as a Post Office or 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 inquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a
trial.111

Thus, the trial Court while considering the question of framing the
charges has not to act as the mouth piece of the prosecution and has to
consider the broad probabilities of the case and the total effect of the material
collected by the prosecution. The Judge has 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. Therefore, the Court
is not to act mechanically in framing the charge. It must apply its mind to the
material on record and the arguments of the parties. Short reasons must be
given by the Court so that on the reading of the order one can perceive clearly
as to how and on what basis the trial Court come to the conclusion that a
prima facie case was made out against the accused. The matter of framing of
the charge is surely within the purview and power of the trial Court but the

1,1 Approved and affirmed in Pradeep Kumar v. State, 1994(1) Crimes 552.

- 626 -
Court while exercising its jurisdiction-react is guided by the aforesaid well
settled principles of law.

The legal position which emerges on the matter of the framing of a

charge and/or of discharging an accused under Sections 227 and 226 is that
the test to determine as to whether the accused in a given case is to be charged
or discharged rests on the fact that a prima facie case or a grave and a strong
suspicion backed by a judicial mind and which has not been properly
explained can be said to have been made on the basis of the evidence available
on record. For that purpose the Courts must have the power to go through the
evidence in it’s totally and consider the overall effect as well as the large
probabilities of the case without of course going into the details of that
evidence as if they were to assess it at the time of the conclusion of the trial.
If the material made available by the investigation agencies broadly reveal the
commission of a particular offence by an accused or even the likelihood of his
having committed such offence the charge is then to be framed against him.
For this purpose even a grave suspicion should be sufficient to make such a
charge irrespective of the fact that the ultimate result of the trial may lead to
the conviction or acquittal of the accused.

For the framing of the charge the ultimate result is not to be taken into
consideration at all. The eye should not be in the final aftermath of the charge
resulting into a conviction or acquittal but to see to it as to whether the
accused should or should not be called to face a trial. In order to hold that a
prima facie case is to be deemed as disclosed against an accused the Court
should be allowed to trace his involvement !n the offence either from his
active participation or otherwise. Being so and when there is no ground for
presuming that the accused has committed an offence and the charge must be
construed as groundless which Is the same thing as saying that there Is no
ground to frame the charge only In that case an order of discharge should be
made by the trial Courts. This necessarily depends on the facts and
circumstances of the case and the Courts are certainly entitled and indeed have
a duty to consider for that purpose the entire material on record in order to

- 627 -
apply to it its judicial mind so as to reach at a reasonable conclusion on the
point of the accused requirement to face a trial.

The reference to the words ‘no grounds for presuming’ in Section 228
of the Criminal Procedure Code cannot be held as being the same as ‘no
evidence to establish the existence of an offence’ but instead of a total
absence of any material to even suggest a prima facie case with regard to the
commission of an offence by an accused. On the other hand, it is to be borne
in mind that each case depends upon its particular facts an a circumstances
and sometimes even a remote link between the activities of an accused and the
facts of the case may justify a reasonable inference warranting a judicial
finding that there is ground for presuming that an accused has committed the
offence or at least to presume that the question of his being directly or
indirectly involved in the commission of such offence is not to be ruled out. It
is all a matter of gradation or nuance and in this context it is only proper and
reasonable to hold that a fair, broad and judicious discretion is to be allowed
to the trial courts into the task of ascertaining as to whether the evidence as
available justifies the conclusion that there exists a prima facie case to frame a
charge against an accused.

Thus the question of any interference on the part of this Court in the
exercise of its powers under Section 482 should arise only when the findings
of the Courts below appear to be vitiated by errors of law and or when the
conclusions arrived at by them are so patently opposed to the well established
principles of judicial approach that they can be characterized as wholly
unjustified and perverse (AIR 1957 SC 637). In other words we must be
satisfied that the discretion exercised by the Courts appears to have been used
with irregularity or perversity, that is to say, on the basis of no evidence at all
or by exceeding its jurisdiction and or in the Improper exercise of the
jurisdiction vested on them under Sections 227 and 228.

It follows therefore that for the purpose of discharging an accused there

should be some ground to presume the accused not guilty or that the
prosecution for the offences charged must be considered totally groundless, in

- 628 -
short, there should be no ground for presuming the accused to be guilty of the
criminal offence charged against him. To sum up the lest to determine as to
whether the accused in a given case is to be charged or discharged rests on the
fact that a prima facie case or a grave and a strong suspicion backed by a
judicial mind can be bald to have been made on the basis of the evidence
available on record.112

It is well settled that a judge exercising his power under Sections 227
and 228 while framing a charge or no charge, he is required to evaluate the
entire material and documents made available on record with the object of
finding out if the facts emerging there from’ taken at their face value disclose
the existence1 of all the ingredients constituting the alleged offence and for
this limited purpose, the Judge may sift the evidence as he cannot be expected
even at the initial stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the bread probabilities to find out the
existence of any material available against the accused towards the projection
of the alleged offence” were or were not in existence is the parameter and
consideration to be mandatory adopted by the judge while framing the charge
and that was the reason why the provision has been so aptly worded under
Section 227 that if the judge considers that there is no sufficient ground for
proceeding against the accused, he shall discharge the accused and record his
reasons for so eking. But what is ‘not sufficient ground’ is a matter to be
considered by the judge who is sitting of Section 228 with the guidelines
clearly laid down by the Apex Court. To sum up at the initial stage of the
framing of a charge, the Court is not required to analyse the case records as if
11^
he is probing the same after the fullficdged trial.

Under the provisions relating to trials before a Court of Sessions the

Court can discharge the accused prior to the framing of the charge if there is
insufficient material or if on any ground of law the Court finds that it is not

112 Rudolf Fernandes v. The State of Goa, 1993(2) Crimes 1059.

j ]^
Ganpatl Kimdaiika Dabal v. Sharmua Krisharta Kadatn, 1993(2) Crimes 673
(Bom.)

- 629 -
permissible to frame a charge. Alter the stage of fraiming of the charge, the
Code of Criminal Procedure prescribes that there can be only one of the two
conclusions to the this, either the accused is convicted or he is acquitted, if for
any reason, the trial has proceeded beyond the stage of framing of the charge
and the plea has been taken, an order of discharge will not be permissible.114

In Nirarjan Singh Karam Singh Punjabi v. Jitendro. Bhimraj Bijju,115

the Apex Court has dealt with the matter so elaborately by following the
earlier case laws and the legal ratios laid down by the Supreme Court which
are extracted as hereunder:

“Section 227, introduced for the first time in the New Code, confers a
special power on the judge to discharge an accused at the threshold if upon
consideration of the record and documents he considers ‘that there is not
sufficient ground for proceeding against the accused. If he comes to the
conclusion that there is sufficient ground to proceed, he will frame a charge
under Section 228, if not he will discharge the accused. It must be
remembered that this Section was introduced in the Cede to avoid waste of i

public time over cases which did not disclose a prima facie case and to save
the accused from avoidable harassment and expenditure.

7.1 Procedure Where Accused is Not Discharged

1. If, when such evidence has been taken, or at any previous stage
of the case, the Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence friable
under this Chapter, which such Magistrate is competent to try
and which, in his opinion, could be adequately punished by him,
he shall frame in writing a charge against the accused.

1,4 Stale of Maharashtra v. Dr. B.K. Subharao, 1833 CrLJ 2984 (Bom.).
115 AIR 1990 SC 1962

- 630 -
 2. The charge shall then be read and explained to the accused, and
he shall be asked whether he pleads guilty or has any defence to
make.

3. If the accused pleads guilty, the Magistrate shall record the plea,
and may, in his discretion, convict him thereon.

4. If the accused refuses to plead, or does not plead or claims to be

tried or if the accused is not convicted under sub-Section (3), he
shall be required to state, at the commencement of the next
hearing of the case, or, if the Magistrate for reasons to be
recorded in writing so thinks fit, forthwith, whether he wishes to
cross-examine any, and, if so, which, of the witnesses for the
prosecution whose evidence has been taken.

5. If he says he does so wish, the witnesses named by him shall be

recalled and, after cross-examination and re- examination (if
any), they shall be discharged.

6. The evidence of any remaining witnesses for the prosecution

shall next be taken, and after cross-examination and re­
examination (if any), they shall also be discharged.116

7.2 Accused to be Questioned at the Commencement of the Next

Hearing

Section 246 of Criminal Procedure Code makes it incumbent on the

Magistrate to enquire of the accused as to whether he wants to cross-examine,
and if so, which of the witnesses on the next date and not on the date when the
charge is framed and the accused is required to plead to the charge. It is meant
to give the accused time to consider over the matter and to decide as to which
witnesses will be cross-examined by him. A Magistrate may for reasons to be
recorded require the accused to state for the cross-examination on the same
date on which the charge is framed, and if the accused is required to give the

116 Section 246, Criminal Procedure Code, 1973.

- 631 -
name of the witnesses to be cross-examined on the very date when he is asked
1 17
to plead, without recording reasons, the trial vitiates . When the grounds
have not come in the order but are apparent from the record, it is only an
irregularity and does not vitiate the trial.118

If by asking the accused for cross-examination on the very date when he

is asked to plead does not cause prejudice to the accused, the trial does not
vitiate and it is curable.119 The accused has a right to cross-examine the
witnesses under this Section. An omission to give him such opportunity
vitiates the trial.120 The evidence of a witness examined before charge is
framed is not taken into consideration if he could not be produced for cross-
17 1

examination. After the cross- examination and re-examination of the

witnesses already examined the prosecution has a right to examine the
remaining witnesses. There is a controversy as to the meaning of the term
‘remaining witnesses’. According to one view, the prosecution may examine
any witness whether his name has been given in the list or not. The
prosecution may examine quite a new witness whose name has not been
1 77
previously mentioned in the proceeding. ~ According to' the other view, the
term ‘remaining witnesses’ means the witnesses whose names have already
been given either in the complaint or in the list and according to this view the
prosecution cannot examine any witness other than those whose names are
17^
mentioned in the complaint or in the list ‘A

7.3 Framing of Charge At Any Previous Stage

A Magistrate can frame a charge after he has taken all the evidence of
the prosecution. But there is no bar for a Magistrate to frame a charge prior to
that stage. When only some evidence given by the prosecution makes a prima

Prasant Kumar v. State, AIR 1952 Cal 91.

Narain Karan v. Bai Shanta, AIR 1956 Sau 80.
Budhu Mian v. Emperor, AIR 1947 Pat 416.
N. R. Murthy v. P. D. Narayana, AIR 1957 Mys 18.
Santan Daw v. Dasrathi Tah, AIR 1959 Cal 677.
Rewa Chand v. State, AIR 1955 Raj 113.
Dal ip Singh v. R.P. Biswas, AIR 1967 Punj 95.

- 632 -
facie case the Magistrate is not only authorised rather it becomes his duty to
« ^ i

frame a charge. " The Magistrate cannot discharge the accused before
1 "if

recording any evidence, whatsoever, under Section 244 of the present Code.

The order in which the witnesses are to be cross-examined may be

ordered by the Court, but it is right and proper to leave it to the discretion of
the accused and he should be allowed to cross- examine the witnesses in the
order he likes. “ The right given to the accused under Section 246 (6) to
cross-examine the additional witnesses is similar to the right envisaged to the
accused under Section 246 (5) and hence Section 246 (6) requires the
Magistrate not to discharge the additional witness unless and until witness is
cross-examined and re-examined. If the Magistrate dismissed the application
for re- calling the additional witnesses for cross-examination, it virtually
amounted to the denial of the right given under Section 246 (6) to the accused
to cross-examine the additional witnes and such a denial would undoubtedly
lead to miscarriage of justice.127

After the charge has been explained to the accused and on the refusal to
plead or on his not pleading guilty the Court is bound to put a question to the
accused as to whether he wants to cross-examine the witnesses of the
prosecution, and if he so desires, whether he wants to cross-examine all or
only some of the prosecution witnesses. The record of the case should show
t 'S o

that the accused was so required otherwise the proceeding becomes illegal. “

The term 'recalled’ means ‘summoned’. It is the duty of the Court to

summon the witness for cross-examination by the accused. It cannot be left to
the complainant to produce them and the accused cannot be acquitted for
absence of the witnesses129. It is of significance that law provides for some
time to intervene between the date on which the charge is framed and the date

124 Heman Ram v. Emperor, AIR 1945 Lah 201.

,2!) P. Ugender Rao v. Sampoorna, 1990 CrLJ 762 at 764 (AP).
126 Moosa Haji v. Emperor, AIR 1933 Cal 189: 34 CrLJ 347.
127 Traddi Rama Rao v. Kondi Aseervadam, 1977 CrLJ (NOC) 259.
128 Khaija Waipheiv v. N. Gulthang Chief AIR 1963 Mani 15.
129 Amulya Ranjan v. Manoranjan, AIR 1956 Trip 2.

- 633 -
on which the accused is required to state as to whether he wishes to cross-
examine any or all of the witnesses examined by the prosecution before the
framing of the chargel30.Not only that accused should be given an opportunity
to cross- examine but he should be given time enough to engage a lawyer for
cross-examination.131

7.4 Trial of Summon Case

If the case is tried as a summons case, instituted otherwise than on a

police charge. Therefore, the arguments advanced by the senior counsel for
the petitioner, relying upon the decision of two Judge Bench of the Supreme
Court, while considering the commencement of trial under general provisions
of the Criminal Procedure Code, has no application to the commencement of
trial of a case for the purpose of the special provision in Section 20-A of the
Prevention of Food Adulteration Act, 1954. Held, impleading him as accused
before commencement of the trial in this case is not sustainable, is of no
force.132

7.5 Charge Against the Accused

A charge forms the foundation of session’s trial and is a most important

step in it. A very strong suspicion founded upon materials before magistrate
which leads to existence of factual ingredients constituting offence may
justify framing of charge.134 Non-framing of charge would not vitiate the
conviction if no prejudice is caused thereby to the accused. The accused
cannot have a say as to who should investigate the offence, he is charged with.
The decision to investigate or decision or agency which should investigate
1 ^
does not attract principles of natural justice.

State of Karnataka v. S. Dhandapani Mudaliar, 1992 CrLJ 24 at 25, 26

(Kant)(DB).
M. D. Suleman v. State, AIR 1955 Hyd 159.
Omprakash v. K.L Kuriakose, 1999 CrLJ 3836 at 3838 (Ker).
William Staney v. State of M.P., AIR 1956 SC 1 16: 1956 CrLJ 291.
Dantel v. State, 1999(3) Crines 21.
Kammani Brahmaiah v. Public Prosecultor, High Court of A.P., 1999(1) SCC
(Cri) 281.

- 634 -
 Section 228(2) specifically provides that where the judge frames any
charge under clause (b) of sub-Section (1) of Section 228. The charge shall be
read over and explained to the accused and the accused shall be asked whether
he pleads guilty of the offence charged or claims to be tried.136 Before
recording the plea of the accused, the Court should be careful to explain the
charge in a manner sufficiently explicit to enable the accused to understand
t

thoroughly the nature of the charge to which he is called upon to plead. A

mere reading out of the charge is not enough; it should be explained to the
accused. The record should show that the charge has been read out and
explained to the accused. It cannot be established by evidence taken after the
1 o

trial that the charge was read out and explained to the accused.

Hence where a deaf and dumb person was convicted of an offence upon
a trial without an attempt to communicate with him respecting the charge
against him, the conviction was set aside. If the charge is not explained to the
accused the plea of guilt if any is invalid.139 The Supreme Court has, however,
observed in Banxvari Lai v. State of U.P.J40 that the omission of the sessions
Judge to read over and explain the charges does not vitiate the trial without
proof of prejudice the accused. Every subsequent amendment or change in the
framed charge against the accused should be read over and explained to the
accused.141 A conviction cannot be supported where the accused has not been
i

asked whether he pleads guilty or claims to be tried. ‘

8. Cases When the Sessions Judge is Justified to Send Back the Case to
the Chief Judicial Magistrate Under Section 228(1)

Though it is physically possible to lay down an exhaustive list of cases

or circumstances wherein the sessions judge conducting the trial may be

136 Central Bureau of Investigation v. Rajesh Gandhi, AIR 1997 SC 93.

137 Empress v. Vaimbifee, ILR 5 Cal. 826: King Emperor V. Tramabaka, 3 Bom LR
489.
138 William Salaney v. State ofM.P., AIR 1956 SC 116.
139 K.P. Hanuneappa v. State of Mysore, 1972 CrLJ 699.
140 AIR 1962 SC 1 198: 1962(2) CrLJ 278.
141 Section 216(2), Criminal Procedure Code. 1973; Jugdev, 21 CrLJ 410.
142 (1905) 9 CWN (xxvi) xxvii).

- 635 -
justified in exercising his power to send back the case to the chief judicial
magistrate under Section 228(1), code of Criminal procedure for trial in
accordance with the procedure for the trial of warrant cases instituted on
police report, however an illustrative list may be given here for the
convenience of defence counsels and presiding officers of the Court of
sessions.

1. When the evidence shows that the intention was not to kill,
Section 207, Indian Penal Code will not be attracted then. It will
be a case covered by Section 324, Indian Penal Code.143

2. In case the accused in ignorant of deceased’s spleen and death is

caused as a result of simple injuries, conviction can only be for
causing simple hurt under Section 223, Indian Penal Code and
not under Section 302, Indian Penal Code.144

3. When injuries on the vital parts of body were not shown to be

dangerous to life and none of the blood vessels was cut and no X-
ray report was furnished to indicate what internal damage done
by the injuries caused is found involved only in a case under
Section 324 Indian Penal Code.145

4. When in instant case, it does not appear that accused ‘A’ had an
intention to commit the murder of ‘B’ and 6C’ and further when
he did not cause any grievous or dangerous injury to any of them,
then as the pistol used was country made and the cartridges used
were not fatal, it cannot be said that the accused ‘A’ did an act
with such knowledge and under such circumstances that he would
have caused death. The position, therefore, that follows is that
the ingredients of Section 307, Indian Penal Code are not made
out in the present case. Its necessary consequence it that ‘A’

143 Nepal Singh v. State ofU.P., 1987 All CrR 576 at 579.
144 Bhajan Das v. Emperor, AIR 1924 Lah 218.
145 Luckmar v. State ofU.P1986 All CrR 141.

- 636 -
 accused has only committed as offence under Section 324, Indian
Penal Code and not under Section 307, Indian Penal Code.146

5. When the intention to kill was absent then no offence under

Section 307, Indian Penal Code could be committed. It was a
\ A "I

simple case of Section 324, Indian Penal Code.

6. The evidence on record shows that there was no premeditation on

the part of the accused to murder the complainant by opening
pistol fire at him. The entre incident happened all of a sudden
during the heat of moment. No doubt, the weapon used is a
country made pistol but the other factors to be taken into account
for arriving at a decision about the offence committed are the
heat of injury and the nature of the injury caused. Thighs are not
vital parts of the body. Thus the accused did not choose a vital
part of the body of the complainant to shoot at. The injuries
caused were simple in nature. Only one shot was fired. No
attempt was made to fire the second shot. There was no enmity
existing between the two under the circumstances, taken all
together the necessary intention required under Section 307,
Indian Penal Code cannot be imputed to the complainants.
Similarly, the necessary knowledge required under Section 307,
Indian Penal Code also cannot be attributed to him. For these
reasons. The accused cannot be held guilty of the offence
punishable under Section 307, Indian Penal Code. At best since
he had caused simple hurts by a firm arm, the only offence for
which he can be held responsible falls under Section 324 Indian
Penal Code.148

7. When the gun shot injuries caused by the accused were on non-
vital parts i.e. at arms etc. and such shots were fired with9out any

Chandra Ram v. State, 1990 All CC 84-85 (Sum.).

Nazir Hussain v. State ofU.P., 1985 All CC 424.
Mandoo Singh v. State ofU.P., 1984 All CC 342.

- 637 -
 intention to cause. Death or murder, then offence of accused falls
under Section 324, Indian Penal Code and not under Section
307.149

8. Section 307, Indian Penal Code requires that the act must be
done with such intention or knowledge or under such
circumstances that if death be caused by that act the offence of
murder will among. When the accused persons caused as much as
seventeen injuries with diverse weapons such as Farsa, spear and
lathi and when these injuries consisted of incised and punctuated
wounds and bruises. But none of the injuries however was
grievous and medical evidence did not disclose that any of the
injuries cumulatively the offence committed was under Section
324, Indian Penal Code and not under Section 307, Indian Penal
Code.150

9. When five injuries were found on the person of the victim and it
was revealed that one was a punctuated wound at the left side of
the chest and was dangerous in nature and remaining injuries
were found to be simple and when injuries were caused by
accused on exhortation of another person and he was prompted to
do so on account of his young age and none of the injuries was
not such which would have necessarily caused death then
accused should only be convicted under Section 326, Indian
Penal Code and not under Section 307, Indian Penal Code.151

10. When the intention was not to cause death and injury caused by
fire arm was simple in nature, then the offence committed was

Taqdiru v. State ofU.P., 1985 All CC 414.

T. Prashanta Kumar Patra v. State of Orissa, 1984(2) Crimes 431.
Bedi v. State ofU.P1980 All CrR 309.

- 638 -
 under Section 324, Indian Penal Code and not under Section 307,
Indian Penal Code.152

11. Simply because an injury is found on head, though simple in

nature, it cannot be assumed that the accused had the intention or
knowledge to cause such an injury that had the death been
caused. They would have been guilty of murder. It was held in
this case that the offence committed was under Section 323, and
not under Section 308, Indian Penal Code.153

12. Merely because one or two persons had received that injuries on
the vital parts of their bodies it cannot necessarily be inferred
that the intention of accused was to cause their death. There is no
evidence to show that the injuries received by these persons were
dangerous to their lives. Section 307 requires that the act must be
done with such intention or knowledge or under such
circumstances that if death be caused by that act, the offence of
murder will emerge. Ion this case accused was convicted for
committing an offence under Section 324, Indian Penal Code
instead of Section 307 Indian Penal Code.154

13. When the was no common intention to commit culpable homicide

and death of victim was due to asphyxia and the accused who
pressed neck of deceased was acquitted and there was no
evidence to show as to who caused fatal blow, then none of
accused was liable to conviction under Section 304, Part II,
Indian Penal Code, conviction was altered to one under Section
323, Indian Penal Code.155

14. In the instant case there is no evidence to indicate that the object
behind the kidnapping was to marry the girl against her will or

Dalbir v. State ofU.P., 1981 All CrR 52.

Jangir Singh v. State of Punjab, 1987(2) Crimes 417.
Shiv Ram Singh v. State, 1980 All CrR 169.
Netrapal v. State ofU.P., 1983 All CC 111.

- 639 -
 against the will of her guardian or to subject her to sexual
intercourse contrary to law and true, that in large number of
cases of this nature, the object behind kidnapping is what is
mentioned in Section 366, Indian Penal Code but merely on that
presumption, without their being anything positive to support
that presumption either in form of circumstances of past conduct
or evidence, it would be hazardous to infer that an office under
Section 366, Indian Penal Code has been made out, then it was
held that the accused should be convicted under Section 363.156

15. When there was no intention to kill and the F.I.R. and medical
evidence in question showed that the complainant received
grievous injuries then offence under 325, Indian Penal Code and
1 ^7
not 307, Indian Penal Code is made out.

16. In the instant case the injury in the 7th Rib region of the chest
caused b knife was simple. No doubt the doctor has stated that if
knife entered further the injury might have proved dangerous. It
does not show of the matter, the injured person was dangerous. In
this view of the matter, the injury inflicted makes out a case of
simple hurt by knife under Section 324 and not the case of an
attempt to murder.138

17. When the injury was caused by spear and there was no specific
and definite opinion of doctor about the nature of injury, then no
case under Section 302, Indian Penal Code was held committed.
It was held that the offence committed was only under Section
326, Indian Penal Code.159

18. When it is difficult to correlate the blow of accused with the

internal injury which according to medical evidence led to death

Shabial v. State, 1983 All CrR 304.

La khan Singh v. State, 1977 All CC 69.
Sheo Chandw. State, 1977 All CC 178.
Chilamakur Nagireddy v. State, 1985 SCC(Cri.) 188: 1985 Col LR (SC) 488.

- 640 -
 then the accused should have been convicted under Section 325,
Indian Penal Code and not under Section 304 or 302, Indian
Penal Code.160

8.1 Is Order of Framing Charge Revisable

Order of framing charge is not an interlocutory order within the

meaning of Section 397(2), hence revision is maintainable.161 However, a
contrary view has been expressed in other decisions. “ An order to refuse to
frame a particular charge is an interlocutory order.163 Order of framing charge
is an interlocutory order. Such order is neither revisable nor can be quashed
by the High Court under its inherent powers.164 For contrary view please refer
to Kuldeep Singh v. State of M.P.165

8.2 Quashing of Charge

Charge can be quashed on the ground that there is no material to frame

it.166 Sections 211 (contents of charge); 212 (Particulars as to time, place and
person); 213 (when manner of committing offence must be stated); 214 (word
in charge to be taken in sense of law under which offence is punishable): 215
(effect of errors) 216 (Court may alter charge) and 217 (recall of witnesses
when charges altered) deal with the forms of charge whereas Section 218
(separate charge for distinct offences); 219 (three offences of same kind
within year may be charged together); 220 (trial for more than one offence,
221 (framing of charge where it is doubtful what offence has been
committed); 222 (when proved included in offence charged); 223 (what
persons may be charged jointly) and 224 (withdrawing of remaining charges
on conviction on one of several charges) envisage provisions for joinder of

Mohinder Singh v. State, 1985 SCC(Cri) 488: CrLR (SC) 488.

Hari Shankar Gaur v. Stte, 1981 CrLJ (NOC) 137; Kamal Jeet Singh v. State of
Orissa, 1985 CrLJ (NOC) 84.
V.C. Shukla v. State, 1980 CrLJ 690.
1982 ALJ 895.
Ashok Kumar v. State, 1989 CrLJ 2547.
1989 CrLJ (NOC) 153 (MP).
Pritam Singh v. State, 1981 CrLJ 554.

- 641 -
charges, further as stated earlier Sections 226. 227 and 228 enact provisions as
to discharge and framing of charge lastly effect of omission to frame, or
absence of, of errors in charge, can be found in form of Section 484, code of
Criminal procedure, 1973.

The legal position is well settled that at the stage of framing of charge
the Trial Court is not be examines and assess in detail the material placed on
record by the prosecution nor is it for the Court to consider the sufficiency of
the materials to establish the offence alleged against the accused persons. At
the stage of charge the Court is to examine the materials only with a view to
be satisfied that a prima facie case of commission of offence alleged has been
made out against the accused under Section 482 CrPC seeking for the
quashing of charge framed against them the Court should not interfere with
the order unless there are strong reasons to hold that in the interest of justice
and to avoid abuse of the process of the Court a charge framed against the
accused needs to be quashed. Such an order can be passed only in exceptional
cases and on rare occasions. It is to be kept in mind that once the Trial Court
has framed a charge against an accused the trial must proceed without
unnecessary interference by a superior Court and the entire evidence from the
prosecution side should be placed on record. Any attempt by an accused for
quashing of a charge before the entire prosecution evidence has come on
record should not be entertained sans exceptional cases.167

High Court cannot interfere with order of framing of charge under its
power of revision by sifting and weighing the evidence recorded during the
investigation.168 The principles governing the quashing of charge are settled.
The Court, at the stage of framing charge is not required to appreciate the
evidence and arrive at a conclusion that the materials produced are sufficient
for convicting the accused. If the Court is satisfied that a prima facies case is
made out for proceeding further, then a charge has to be framed. Strong

State of M.P. v. J.B. Singh, 2000 CrLJ 4591.

Munna Devi v. State of Rajasthan, 2002(1) Crimes 145 (SC).

- 642 -
suspicion against the accused. If the matter remains in the region of suspicion
cannot take the place of proof of his guilt at the conclusion of the trial. But at
the initial stage, if there is a strong suspicion which leads the Court to think
that there is ground for presuming that the accused has committed an offence,
then it is not open to the Court to say that there is no sufficient ground for
proceeding against the accused. It is only for the purpose of deciding prima
facis whether the Court should proceed with the trial or not that the relevant
pleadings should be considered. If the evidence which the prosecutor purposes
to adduce to prove the guilt of the accused, even if fully accepted before it is
challenged in cross-examination or rebutted by the detence evidence if any,
cannot show that the accused committed the offence, then there will be no
sufficient ground for proceeding with the trial. The gist of circumstances to
indicate as to what lead to a conclusion for framing charge cannot be laid
down everything will have to depend upon the facts and circumstances of the
case and the averments made.169

9. Conviction of Plea of Guilty

Section 229 envisages provision of conviction on plea of guilty. Section

229 runs as under: If the accused pleads guilty, the judge small record the plea
and May in his discretion convict him thereon. If the statement of the accused
read as a whole done not make out an offence then mere words I have
committed an offence will not empower the Court to convict.170 Whereas the
very existence of the offence has not been established the plea of guilty of the
• i *7 i

accused persons has no meaning.

An admission of guilt must be clear, unambiguous and unequivocal and

must cover ingredients of offence. It must be unqualified, unconditional and
direct.172 When the accused while pleading guilty also set forth circumstances
leading to exonerate him and his statement is not an unqualified admission of

169 Jayaram v. Jivjayamma, 2002 (1) Crimes 28 at 80 (Ker.).

170 State of M.P. v. Batra Kunjona, 1980 CrLJ 965.
171 Gbulam Mobd. Dar v. State, 1960 CrLJ 1083.
172 Longeshri v. State, 1955 A11LJ 138 (All.).

- 643 -
guilt, th i ti uu hh tt tt t i ill g 1 173 The plea of guilt should
not be the result of bargaining by the Court under the promise or inducement
of light punishment.174

The first duty of Court before accepting a plea of guilty is to satisfy

itself with respect to the voluntary nature of the plea. It is not desirable that
the courts do not show undue haste in accepting a plea of guilty. They must
allow reasonable time to the accused to ponder and deliberate after the charge
is framed and explained to him. Even if the accused makes a formal plea of
guilty, prudence requires that the Court must adjourn the case especially when
the accused is produced in custody and the offence involved is a serious one
and more so in case of murder after the Court is satisfied that the accused is
free from all external influence. It should explain the charge to the accused in
simple and clear language and must ensure that the accused appreciates the
nature of the offence which he is required to plead guilty. A plea of guilty put
forward to a charge of murder shall not be accepted unless the meaning of this
technical term as defined in Sector 300 of the Indian Penal Code is explained
to the accused and understood by him. It cannot be again said that a mere
causing of death of another person would not necessarily amount to murder. It
will so amount only if it is caused with a particular intention or knowledge as
mentioned in Section 300 of the Indian Penal Code. Such intention or
knowledge must therefore specifically find mention in the plea of the accused
before the same is accepted concerning a charge of murder. An accused may
legitimately harbor under the impression he pleads guilty to a charge of
murder it would be no plea in the eyes of law on which a conviction under
Section 302, Indian Penal Code can be maintained.175

The rule of practice adopted by the various High Court in not acting
upon a plea of guilty in cases of serious offences of murder is rule of a caution
and prudence. An offence of murder involves not only the physical act of

The State ofH.P. v. Shri Ram Mai, 1970 CrLJ 1303.

Ganeshimal Jash Raj v. Government of Gujarat, AIR 1980 SC 284.
Karan Singh v. State ofH.P., 1932 CrLJ (NOC) 215.

- 644 -
violence but also the mental element of intention or knowledge. A lay accused
when he pleads guilty is likely to be more concerned with physical act and
may not advert to the various ingredients constituting the offence. Whether act
of the accused constitutes murder is a mixed question of law and fact. The
Court while holding an accused guilty of murder should also enter a finding
that he did the act with the requisite intention or knowledge. For such a
finding to be entered and to decide whether the offence is murder or a lesser
offence the Court should have before it the details of the occurrence, the
circumstances under which the offences was done and the motive, if any for
this purpose it is desirable that the entire evidence is placed before the
Court.176

There is nothing in the law that bars a conviction on basis of a plea of

guilt, however serious is the offence committed and however grave is the
1 77
sentence provided in law. Section 229 mandates a trial judge to record the
plea of guilty if the accused pleads so but it is left to his sole discretion to
convict him or not on such plea. The intention of the legislature is crystal
clear from the use of the work shall before the phrase record the plea and word
may before the expression ‘in his discretion convict him thereon. The Court is
not bound to convict the accused on his plea of guilty. The Court has
1 7&
discretion to accept or not to accept the plea.

Making the legal position clear, it was observed in Karam Singh, v.

Slate of H.P.,179 that Section 229 confers a discretionary jurisdiction on the
Court to accept a plea of guilty and to act upon it. This discretion has to be
exercised with care and circumspection and on sound Judicial principles,
bearing always in mind that the ultimate objective which is to do justice to the
accused. The more, gravious the- nature of the charge to which the accused is

Ranlesh v. State of Kerala, 1981 CrLJ 451.

Tyron Nazareth v. State, 1988(1) Crimes 590.
Achar Sanghar v. Emperor, AIR 1934 Sind 204.
1982 CrLJ (NOC) 215 .

- 645 -
required to plead guilty, the more care and circumspection is expected to be
exercised by the Court in accepting and acting upon the plea of guilty.

The trial Judge should advert to the fact, while under the old Code of
Criminal Procedure, 1896 discretion in the matter of examination of witnesses
had to be Inferred from the use of the word ‘may’ there Is specific conferment
of such discretion on the Court In Section 229 of the present case. When the
offence involved being a grave crime like murder, the Judge should avail the
discretion so conferred and proceed to dispose of the case, after recording
evidence.180

10. Procedure for Recording Plea of Guilty

The plea of guilty is the accused should be recorded as nearly as

I O 1

possible in the words used by him. If the accused pleads guilty on his guilt,
ICO
he should plead it in person and not through his counsel. “ It shall be
desirable to record the plea of guilt in form of short questions and detailed
replies thereon. Where there are more than one accused the plea of each of the
accused should be separately recorded “as nearly as possible in the words used
by them”. There cannot be a joint recording of plea of guilty. The taking of
the plea of the accused is obviously the most crucial part of the proceedings
against him, and if the accused are entitled to the assistance of a counsel at
Government expense (Section 304, Code of Criminal Procedure, 1973) it
before the plea is taken.184

10.1 Procedure When Accused Not Plead Guilty

Section 230, Criminal Procedure Code lays down the procedure which
the trial Judge has to adopt when the accused refuses to plead or does not
plead, or claims to be tried or is not convicted under Section 230 Criminal
Procedure Code. Section 230 runs as under:

180 Rome Sen v. State of Kerala, (1981) CrLJ 451 (DB).

181
Mahant Kaushalya Dass v. The State of Madras, 1966 CrLJ 66.
182 Kanchan Bal v. State, 1959 CrLJ 602.
183 Akil Pasha v. State of Mysore, 1937 CrLJ 1422.
184 Emperor v. Mohd. Ismail, 6 Bom LR 671.

646 -
 If the accused refuses to plead or does not plead of 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 application of prosecution, issue any
process for compelling the attendance of any witness or the production of any
document or other thing. Where the accused plead guilty but the trial Judge
decides not to convict him on such plea then the trial of such accused ought to
proceed in the usual may under Section 230 Code of Criminal Procedure.

Thus, the law is now well settled that where the plea of guilty is not
accepted by the trial Judge, the accused may be treated as if had pleaded to
guilty and the trial may be proceeded within the ordinary way.185 When the
Court has once decided not to act upon a plea of guilty of accused. It ought
not to allow the prosecution to prove that the accused had pleaded guilty by
examining a person who was present in the Court when the plea was made.186

11. Object and Scope of Section 232

The object of Section 232, Code of Criminal Procedure, 1973 is to

expedite the conclusion of the Session’s trial’ and at the same time to avoid
unnecessary harassment to the accused by calling upon him to adduce
evidence or to avoid the waste of public time when there is no evidence at all
against the accused. The accused will have to be acquitted under Section 232
if there is no evidence at all. If there 13 some evidence, no order of acquittal
can he recorded. The Court is not to embark upon the question at that stage
whether the evidence is sufficient or is reliable if, however, the Court finds
that there is no evidence at all, the order of acquittal would be ordinarily
subject to appeal.

However, if there is no acquittal, ordinarily small order on the order

sheet or somewhere in the proceeding indicating that, that was not a case of
“no evidence at all”, and that the accused has not been acquitted and that is
called upon to enter on his defence would be sufficient. An unnecessary long

1X5 AIR 1956 Mad 305.

1X6 Adbul Kadir v. Emperor, 48 CrLJ 1947.

- 647 -
order would cause an apprehension in the mind of the accused. It is clear from
the wording of Section 232 that the question whether the accused wants to
lead evidence in defence would not arise, when the trial is at the stage of
Section 232. That question is to be put up to the accused when the trial enters
the stage of Section 233, Code of Criminal Procedure, 1973.187

At the stage of Section 232, the judge has to make up his mind, whether
the evidence produced is of such a nature as not at all linking the accused with
the offence and not to find out whether it is trustworthy in the ultimate
analysis. The moment there is some evidence, some good evidence, no order
of acquittal can be passed. In such a case an elaborate order showing how the
evidence clinches the accused is not necessary. In other words, appreciation of
positive evidence differs in degrees and the moment a conclusion is reached
that there is some evidence, the case is cut of Section 232.188

Under Section 232, a Sessions Judge has to decide whether there is

evidence to show commission of offence but at that stage he should not
consider what value should be attached to such evidence, if he finds that there
,i

is no evidence then he has power to acquit the accused. It is necessary for the
Sessions Judge to look into the prosecution evidence adduced before him and
the material brought out in the examination of the accused and then decide
whether there is any evidence or not.189

It is clear from a plain reading of Section 232 that it is only applicable

in cases where the Judge considers that there is no evidence that the accused
committed the offence, which means that there is absence of sufficient
evidence which is distinct from the reliability. At the stage of Section 232 the
question of reliability of evidence must not be taken into consideration as the
appreciation of evidence is not required to be done at two stages but only at
the stage of pronouncing judgment under Section 235. Even If it is held that
the trial Court erred in considering the question of reliability of evidence
18 7
Hanif Bonomiya v. The State of Maharashtra, 1931 CrLJ 1622 at 1623.
1X8 Aran v. State of Maharashtra, 1978 CrLJ 1168.
189
Kamal v. State of Karnataka, 1976 CrLJ 925 at 927.

- 648 -
under Section 232 no prejudice has been caused to the prosecution as the-
learned judge has given good reasons for not placing reliance on the
prosecution evidence. The acquittal of the accused was thus justified.190

Section 232 enables the judge to record an order of acquittal even

before the accused has adduced any oral evidence provided he is of opinion
that there is no evidence that the accused committed the offence charged. Such
opinion is however, based on the prosecution evidence, examination of the
accused and the arguments of both the prosecution and the defence. It is only
after the stage of Section 232 the trial Judge can also call in the accused to
enter on his defence.191

If the trial Court is of the view that it is not a case of ‘no evidence’
within the meaning of Section 232, it is not necessary on its part to record a
very lengthy and reasoned order. At the same time, however, dimply because
the trial Court proceeds to record an unnecessary lengthy and reasoned order,
the same cannot be said to suffer from any illegality so as to call for
interference. This Section obviously comes into play only after the
prosecution has closed its evidence and examination of accused under Section
313 is over. At this stage, it enjoins upon the Court to take an overall
assessment of the record, after hearing the prosecution and defence with the
view to forming its opinion on the point whether there is no evidence on the
record to suggest that the accused has committed an offence.

Once the Court forms such an opinion. It must terminate the trial then
and there and record an order of acquittal in favour of the accused without
calling upon him to enter his defence. This Section is under the caption
‘Acquittal’ and is to be invoked evidence. Such an order being the final order
with respect to the merits of the trial, has to be reasoned one like any other
judgment of acquittal or conviction recorded at the conclusion of a criminal
trial. In case, however, the Court is of the opinion that it cannot be said to be

190 Surendra Kumar v. Sukhdev, 1983 All CrR 103.

191 (1975) 77 PLR 313 at 315.

- 649 -
case of no evidence within the meaning of Section 232. It must proceed under
the subsequent Section, namely, Section 233. In such a case, no formal or
reasoned order needs to be passed under Section 232. In as much as the only
order within the contemplations of those provisions is one of the acquittal to
1 QO

be recorded only when it is a case of no evidence. '

An accused will have to be acquitted under Section 232, Code of

Criminal Procedure if there is no evidence at all against him but if there is
some evidence no order of acquittal can be recorded. The Court is not to
1 Q'l

embark on the question of sufficiency of reliability of evidence at that stage.

The law embodied in Section 232 confers an important statutory right upon
the accused persons to take his chance of acquittal upon this stage i.e. the
stage of Section 232. Till then he is not bound or obliged to disclose the
names of his witnesses. If the judge did not acquit him under Section 232 he
has to call upon him (the accused) to enter on his defence. At that stage the
accused must apply for Issue of process for summoning his witnesses. It is not
legal to pass a blanket order calling upon both the prosecution and defence to
produce evidence immediately after framing a charge against the accused. Any
denial of this right to lead evidence In support of the defence would vitiate the
whole trial.194

Accused will have to be acquitted under Section 232, if there is no

evidence at all but if there is some evidence, no order of acquittal can be
recorded and that the Court is not to embark upon the question at that stage
whether evidence is sufficient or is reliable.195 What Section 232 requires is
that if the trial Judge comes in the conclusion that there is evidence to show
that the accused had committed the offence, then the accused should be called
upon to enter upon his defence.196

Madan Mohan Jagga v. State, 1984 CrLJ 681 (HP).

Hanif Bononiya Shikalkarv. State of Maharashtra, 1981 CrLJ 1622.
Prem v. State of Haryana, 1975 CrLJ 1420.
(1985) CLR(Cri.) 29 (Delhi).
Pati Ram v. State ofU.P., 1970 SCD 52.

- 650 -
 Sections 232/233 Criminal Procedure Code lay down the procedure to
be followed by the Sessions Court in the process of trial of an accused person.
It is one thing to say that the said procedure should he complied with.
However, it is quite another thing to say that failure on the part of the
Sessions Court to comply with the said procedure would ipso facto vitiate the
conviction. In my opinion, the failure on the part of the judge to call upon the
accused person to enter on his defence in terms or Section 233 Criminal
Procedure Code would not in all cases vitiate the conviction, if there are
materials to indicate that no prejudice what-so ever has been caused to the
accused.

There is no specific question to the effect that as to whether the accused

would like to lead defence evidence. However, the answer elicited hi the way
and manner as shown with reference to question No. 50 clearly goes to show
that the Sessions Judge did ask a question in that behalf to which the reply as
above, is shown to have been given by the accused. It is seen that no
grievance appears to have been made as regards the procedure adopted by the
i

learned Sessions Judge in the course of the proceeding before him. I have
carefully perused the grounds of appeal and the same also do not disclose any
such grievance in that behalf. It is also not the case of the accused that he
would have led some evidence had the procedure been followed in the manner
as prescribed under Section 233 Criminal Procedure Code. Under these
circumstances, I do not find any prejudice having been caused to the accused.
Accordingly, ‘hold that the contention of the accused that the conviction is
liable to be set aside on the ground that the provision of Section 233 Criminal
Procedure Code were not strictly followed is not tenable.197

Failure on the part of the judge to cell upon the accused person to enter
on his defence in terms of Section 233 Criminal Procedure Code, would not in

Majid Khan v. State of Karnataka, 1993 (2) Crimes 1036.

- 651 -
all cases vitiate the conviction, if there are materials to indicate that no
prejudice what-so-ever has been caused to the accused.198

“Under Section 233, Criminal Procedure Code for each distinct offence
of which any person is accused, there should be a separate charge and the
exceptions are contained in the subsequent Sections. There is no provision in
the said Sections dealing with joinder of charges authorising two or more
complainants to file c single complaint, if the authors of the Code of Criminal
Procedure contemplated such tiling of joint complaints, they would have
clearly made provision for them corresponding to Order 1, CPC providing for
joinder of plaintiffs in civil suits. On the other hand provisions like Section
247, Criminal Procedure Code. In summons case and Section 250 Criminal
Procedure Code in warrant case as to the powers of the Court to dismiss a
complaint hi the absence of the complainant clearly Indicate that a complaint
could be filed by only one person. It has been rightly pointed out by the
learned advocate for the petitioners that there would be difficulty even in the
matter of compounding of the offences by the accused with every one of the
complainants in the case of Joint complaints. It should be noted that the
petition has been filed at the earliest stage before the evidence was taken.
There can be no difficulty for the respondents to file separate complaints”.199

However the appellate Court while sitting as a Court of appeal should

not substitute the finding of the trial Court merely because another view is
possible to be taken on the same set of facts.200 The words ‘no evidence’ in
Section 232 cannot be construed or interpreted to mean absence of sufficient
evidence for conviction or absence of satisfactory or trustworthy or conclusive
evidence in support of the charge. The judge has to see whether any evidence
has been let in on behalf of the prosecution in support of its case that the
accused committed the offence alleged, and whether its evidence is legal and
relevant. It is not the quality or the quantity of the evidence that has to be

198
Ibid.
199
Santokh Singh v. Gurpal Singh, 1996 (1) Crimes 53 (P&H).
200
Rajendra Prasad v. State of Bihar, 1977(2) SCC 205.
considered at this stage. If there is any evidence to show that the accused has
committed the offence then the judge has to pass on the next stage. It is not
open to him to evaluate or consider the reliability of the evidence at this stage.

The term ‘no evidence’ appearing in Section 232, neither means total
absence of evidence nor does it mean absence of cogent, convincing reliable
and trustworthy evidence. All that it means is that there is no inculpatory
evidence adduced is accepted at its face value, it would not amount to legal
proof of the offence charged against the accused. In such a case, the Court is
required to marshal the evidence with the view to find out whether it would be
safe to act upon it or not. Where the evidence falls for such appreciation
before coming to the conclusion whether the accused is guilty or not, it would
not be a case of no evidence within the meaning of Section 232 Code of
Criminal Procedure. In such a case, the Court must proceed with the trial in
accordance with the provisions which follow Section 232 of the Code of
Criminal Procedure. It is only for the Sessions Judge to decide whether
there is evidence or not. If due to the absence of prosecutor no evidence for
the prosecution could be recorded. It would be absence of evidence. The
evidence referred to is the evidence let in on behalf of the prosecution. So
where the only evidence is the confession of a co-accused or the evidence of
witnesses of a co-accused it is a case of ‘no evidence’ within the meaning of
this Section.204

The word ‘no evidence’ mean merely that there is not on record any
evidence which, even if true would amount to legal proof of the offence
charged against the accused ; they cannot be extended to mean no satisfactory
trustworthy or conclusive evidence.203 If at the particular stage of the trial, the
judge is satisfied that there is not on record any evidence which even if it were
perfectly true, would amount to perfectly legal proof of the offence charged,

201 Madan Mohan Jagga v. State, 1983 CrLJ 457.

202 Kuluar v. State of Karnataka, 1976 CrLJ 925.
203 State v. Ulfatia, 1972 CrLJ 994 at 996 (All).
204 (1909) 9 CrLJ 404 at 405 (Mad.).
205 Queen Empress v. Munna Lai, LLR 10 All. 414.

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the Court has the power to and must record a finding of not guilty." But the
Section will not apply when the Court considers that the charge is in itself
207
improper.

The evidence referred to is the evidence that is led on behalf of the

prosecution. Such evidence is both direct and circumstantial evidence.208 The
accused will have to be acquitted under Section 232, if there is no evidence at
all, if there is some evidence, no order of acquittal can be recorded. If,
however, the courts finds that there is no evidence at all the order of acquittal
has to follow. Such an order would be subject to appeal. The Judge passing
such an order may have to give some reasons as to why he came to the
conclusion that there was no evidence at all as his order of acquittal would be
ordinarily subject to appeal. However, if there is no acquittal, ordinarily a
small order on the order sheet or somewhere in the proceedings indicating that
the accused has not been acquitted and that he is called upon to enter on his
defence would be sufficient. An unnecessarily long order would cause an
apprehension in the mind of the accused that the judge has already made up
his mind as to guilt of the accused.209

11.1 Examination of The Accused

Section 232 enjoins the trial judge to examine the accused before
recording the verdict of acquittal when he considers that there is no evidence
against the accused. This examination is in nature of examination of accused
contemplated, under Section 313, Code of Criminal Procedure. But unlike
under Section 313 the trial judge while examination the accused under Section
^ 1 A

232 cannot call upon the accused to enter upon his defence.

206
In Re Ghitravelu Thevar, AIR 1914 Mad 763.
207
Dwarkci Lai v. Mahadev Rai, ILR 12 All. 551 at 552.
20X
AIR 1987 Patna 263: 1937 CrLJ 675.
209
210
Hanif Bonomiya v. State of Maharashtra, 1981 CrLJ 1822.
Ibid.

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11.2 Summoning of Defence Witnesses

Whenever the accused moved application to summon his defence

witnesses, it is the duty of the Court to pass a specific order on it. It is not
sufficient merely to direct it to be filed.211 Sub-Section 3 of Section 233, Code
of Criminal Procedure authorities the defence to make an application for the,
summoning of its defence witnesses and imposes a duty upon the Court to
summon such witnesses except in rare cases.212

The right of the accused to require summoning of witnesses and

compelling the production of documents or things is mandatory and the Court
cannot refuse his prayer unless the application is vexatious and for that reason
is to be recorded.213 Under the main part of Section 233, an accused lies a right
to ask the Court to compel the attendance of witnesses either for examination
as defence witnesses or for cross examination, provided the does not in the
guise of examining a prosecution witness as a defence witness, intend to or
actually cross examine such prosecution witness as was offered for cross-
examination to him and whom the fails to cross examine. The Court cannot
>

refuse to summon any person as a defence witness unless it. Records a finding
^ I i

that the application for defeating the ends of justice. ~

In Habeeb Mohd. v. State of Hyderabadtheir Lordships of the

Supreme Court observed: “If the Court refuses to summon witness, a
document or a thing required by the accused without any reason when the
summoning is not vexations or for the propose of defeating the ends of justice
or delay, the conviction cannot stand”. This view has also been taken in some
other decisions.216

Shomar Mnnabi v. Digumbar Dass, 6 CWN 543.

State v. Ram Lai, 1961 CrLJ 331 at 332 (All).
AIR 1954 SC 455: 1954 CrLJ 1161.
Maimi v. State, 1975 CrLJ 161 (All).
AIR 1934 SC 51.
Balwant Singh v. State of Punjab, 1972 CrLJ 703.

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 It is a mandatory provision to record reasons for refusal to summon a
917
defence witness" A Court has the power to refuse to summon any person as a
witness on any of the three different grounds: (1) if any witness is cited for
the purpose of vexation; (2) If any witness is cited for causing delay; (3) If
any witness is cited for defeating the ends of justice. In fact Section 243(2) of
the Code Incorporates such powers of the Court.

The position of an accused who is involved in a trial under the P.C. Act
is more cumbered than an accused in other cases due to legislative curbs. One
of them is envisaged in Section 22 of the P.C. Act. The Court is not obliged to
direct an accused involved under the P.C. Act to enter upon his defence until
the Special Court has the occasion to see the list of his witnesses and also the
list of his documents to be adduced in evidence on the defence side. An
accused in other cases has to be called upon to enter on his defence
irrespective of whether he would propose to adduce defence evidence because
it is a choice to be exercised by him only after he is called upon to enter on his
defence. But the accused under P.C. Act need be called upon to enter on his
defence only after the trial judge has occasion to peruse the names of the
witnesses as well as the purpose of examination of each one of them, and also
the nature of the documents which he proposed to adduce as his evidence.

Where the accused submitted a list of 267 witnesses for the defence and
the trial judge pruned down the list to the minimum necessary witnesses and
the High Court allowed few more witnesses but the accused appealed against
the order, the Supreme Court held that it was unnecessary to interfere with the
impugned orders as the pruning exercise undertaken by the trial Court and the
High Court was within the limits permitted by law. After the appellant
completes his evidence in accordance with the permission now granted as per
the impugned orders. It is open to the appellant to convince the trial Court that
some more persons need be examined in the interest of justice. If the appellant
then thinks that such a course is necessary, the trial Court will then decide

11 -j
In re. Matter of the petition of the Raja of Kantit, LLR 8 All. 668.

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whether it is essential for a just decision of the case to examine more
witnesses on the defenses. If the Court is so satisfied, the Special Judge can
permit the appellant to examine such additional witnesses the examination of
whom he considers for a just decision of the case or he can exercise the
powers envisaged in Section 311 of the Code in respect of such witnesses.

While refusing to summon the defence witness, the Sessions Judge has
to exercise his discretion judicially and not improperly. Where the
application for summoning the defence witnesses is made well within time and
their evidence is material to the defence, summoning defence witness should
not be declined.220 But it is open to the trial Court to decline to summon a
witness after recording its reason for the refusal.~~ But the accused should be
given adequate opportunity to prove his defence. Hence when in murder trial
prosecution took two years and ten months to lead evidence and the accused,
who took the plea of alibi wanted to lead evidence and took two opportunities
as to produce evidence, the refusal of the Sessions Judge to summon the
' witnesses on the ground that the application was titled to delay the
proceedings. It was held that accused was not given adequate opportunity to
prove his defence.222

11.3 Expenses of Defence Witness

Section 233 does not make any provision for compelling the accused to
bear the expenses of the witnesses the witnesses have to be summoned on
government expenses. The Court cannot order the accused to deposit the
expenses of the witnesses. If the legislature intended that the expenses of
defence witnesses are to be borne by the accused it would have made a
provision to that effect like Section 243(3). Even according to that Section a

2,8 Arivaznagan v. State, AIR 2000 SC 1198.

219 Raja Ram Kesho Pd. v. State of M.P., 1962 (2) CrLJ 688.
220 Balwant Singh v. State of Punjab, 1972 CrLJ 703 at 704.
221 Kishan v. State of Maharashtra, 1970 SCC(Cri) 335.
222 1 982 UP (Cri) C 107.

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Magistrate is to make the accused to bear the expenses. If has been held that
even if it is discretionary the essential witnesses should be summoned on the
expenses of the State.223

Normally the State should meet the expenses of the defence witnesses
even under Section 243(3) Code of Criminal Procedure, 1973.224 Even the
capacity of an accused to pay the expenses of his witnesses is not a valid
ground for refusing to summon defence witnesses.225 Expenses for summoning
defence witnesses should ordinarily be at the State expense unless the Court
gives reasons for making departure from this rule.226

In any prosecution instituted and carried on by a public office, payment

of expenses of defence witnesses also would be I the furtherance of the
interests of public justice so as to enable the accused to prove that he has not
committed the offence which is concerned in the case and as such the Court
should pay the expenses under rule 384 of the criminal rules of practice.

12. Arguments

Section 234, Code of Criminal Procedure envisaged provision for

arguments. Section 234, Code of Criminal Procedure runs as under. “When the
examination of the witnesses (if any) for 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. Section 314, Code of Criminal Procedure
further provides and accused a right to put up a written memorandum of
arguments. Section 314. Code of Criminal Procedure reads as under.

1. Any party to a proceeding may, as soon as may be, after the close
of his evidence address concise oral arguments and may, before

223 Ambika v. State, 1980 All LJ 781.

224 Surindera Kumar v. State, 1982 CrLJ 540 (HP).
225 Jit Singh Rattan Singh v. The State, AIR 1924 Patna 142.
226 1974 RLW 225.
227 G. Thirupalah v.State, AIR 1966 AP 223.

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 he concludes the oral arguments, if any, submit a memorandum
to the Court setting forth concisely under any distinct headings,
the arguments in support of his case and every such
memorandum shall form part of the record.

2. A copy of every such memorandum shall be simultaneously

furnished to the opposite party.

3. No adjournments of the proceedings shall be granted or the

purpose of fitting the written arguments unless the Court for
reason to be recorded in writing, considers it necessary to grant
such adjournments.
99£
In Rajendra Pd. v. State ~ the Apex Court of India has mandated that
trial judge should, after the close of prosecution and defence evidence bear the
arguments of counsel for the accused and Public Prosecutor.

13. Judgment of Acquittal or Conviction

Sub-Section (i) of Section 235 provides that after hearing arguments

and points of law, the judge shall give a judgment in the case. Sub- Section 2
of the Section 235 envisages a new provision of hearing the accused on the
question of sentence. Section 235, Code of Criminal Procedure reads as under:

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.

When a Court acquits an accused detained in Jail, then he should

specifically mention in the operative portion of the judgment that accused

1979 CrLJ 792: AIR 1979 SC 916: 1979 SCC(Cri) 749.

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should be set at liberty unless he is wanted in some other case. Omission to
pass or mention said direction would be an illegality.229

14. Provision of Hearing on Question of Sentence

Section 236 lays down the law as to previous conviction. The essence
of this Section is that the trial judge may after he has convicted the accused
facing trial under Section 229 or Section 235, Code of Criminal Procedure,
take evidence in respect of the alleged previous conviction, and shall record a
finding thereon. But no such a 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, Code
of Criminal Procedure.

Section 236 does not apply to a case where there is no charge under
Section 75 of the Indian Penal Code by reason of the prosecution not applying
for enhanced punishment. Non compliance of mandatory provisions of Section
235(2) of Criminal Procedure Code by trial Court on question of sentence
vitiates the whole trial of case. Provision cannot be understood as
compelling the attendance of any prosecution witness examined, cross
examined and discharged to the juxtaposed as DWs. To call upon the
accused to be heard on the question of sentence would only result in further
delay in disposal of the appeal. In such circumstances, although Court is of the
view that Section 235(2), Criminal Procedure Code is to be complied with
even by the appellate Court in case of appeal against acquittal.

For a proper and effective implementation of the provision contained in

Section 235(4) it is not necessary to remand the matter to the Court which has
recorded the conviction. Remand is an exception not the rule, and ought to be
therefore to be avoided as far as possible in the interest of expedious through
229 Mohd. Daud Quaresh v. State ofU.P., 1993 ACC 220.
23H Sunil v. State ofU.P., 2002 CrLJ 2694.
231 Badri Narain Yadav v. State of Bihar, 2006 CrLJ (NOC) 477.
232 State v. Mussa and Another, 1991 CrLJ 2168 at 2171 (Ori.).

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 T ->

fair disposal of cases." 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 charged, 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 the judge nor shall the
accused be asked to plead thereto nor shall the previous conviction be referred
be asked to by the prosecution or in any evidence adduced by it, unless and
until the accused has been convicted under Section 229 or Section 235.234

14.1 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 direct, is 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 causes
for making the accusation against them or any of them, it may by
its order of discharges 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

233 Shri Kishore Chand v. State of Punjab, 1994 CrLJ 1464 (P&H).
2j4 Section 236, Criminal Procedure Code, 1973.

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 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 under 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 a
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. High Court should not seek independent corroboration
at that stage and to discharge accused in absence there of.236

Section 237, Criminal Procedure Code, 1973.

State of Maharashtra v. Priya Sharan Maharaj, 1997(1) Crimes 275 (SC).

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