“Comparative study of CrPC,1973 and BNSS, 2023 on Session Trial” Shefali Sharma Assistant Prosecution Officer An Overview on the trial before the court of Session There are four kinds of trials in CrPC - 1.Session Trial 2.Warrant Trial 3.Summons Trial 4.Summary Trial Session court is a criminal court under section 6 of CrPC and BNSS. Section 26 and Schedule 1 of the CrPC help to determine by which Courts offences are triable. Session court cannot take cognizance directly except in the section199(2) CrPC which relates to defamation of high dignitaries and public servants under certain circumstances. According to section 193 CrPC, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been commited to it by a magistrate. Magistrate may take cognizance of an offence which is exclusively triable by court of Session and then commit the case to the court of Session under section 209 of CrPC.Session trial in CrPC-section 225 to 237 (chapter : 1 8 Session trial in BNSS-_ section 248 to 260 (chapter -19) Section of CrPC in which provision has been changed - Section-226 (Opening case for prosecution) Section-227 (Discharge) Section-228 (Framing of Charge) Section-231 (Evidence for Prosecution) Section-235 (Judgment of Acquittal or Conviction) Section-237 (Procedure in cases instituted under Section 199(2) OE i Section225/248-Trial to be conducted by Public Prosecutor In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. Section226/249 Opening case for prosecution When the accused appears or is brought before the Court, in pursuance of a commitment of the case under section 209/232 or under any other law for the time being in force, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.Raj Kishore Prasad V. State of Bihar(1996)SCC 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. Section227/250-Discharge (1) The accused may prefer an application for discharge within a Daava of sixty days from the date of committal under section 09/ 232N 2) If, upon consideration of the record of the case and the locuments 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 procee: lng against the accused, he shall discharge the accused and record his reasons for so doing Union Of India V/s Prafulla Kumar Samal, 1979 Scr(2)229 The word not sufficient ground for proceeding against the accused Clearly show that ie eae is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine _ whether a case for trial has been made out by the prosecution.Section228/251-Framing of charge (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the fist class and direct the accused to appear before the Chief Judicial Magistrate, or the Judicial Magistrate of the first class, on such date as he deems ft, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused within a period of sixty days from the date of fist hearing on charge. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused present either physically or through electronic means and the accused shall be Anliad uthathar ha nlaada auiltty af tha affanan nharnad ar alaimn ta ha In Ratilal Bhaji v. State of Maharashtra - AIR 1979 SC 984 Court held that in warrant and sessions trial, the trial starts with the framing of charge. GHULAM HASSAN BEIGHVs. MOHAMMAD MAQBOOL MAGREY & O RS. S.L.P. (CRIMINAL) NO. 4599 OF 2022, the trial courts enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfed that the evidence collected by the prosecution is suf fient to presume that the accused has committed an offence.+ In State of T.N. v.N. Suresh Rajan, (2014) 11 SCC 709, At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.” Section229/252-Conviction on plea of guilty If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. Section230/253-Date for prosecution evidence If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section229/ 252, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.Deaf and Dumb witness Hon‘ble Supreme Court in the case of State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789 held that —When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs. child witness In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685 it was held that a child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case.Section231/254-Evidence for prosecution 254. (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that evidence of a witness under this sub-section may be recorded by audio-video electronic means. (2) The deposition of evidence of any police officer or public servant may be taken through audio-video electronic means. (3) The Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination. Statement of accused under section 313 In Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622 and in Lallu Manjhi Vs. State of Jharkhand, 2003 (2) SCC 401 held that in all the criminal trials the proceedings subsequent to recording of prosecution evidences is similar and where there are evidences which are likely to be used against the accused he shall be afforded an opportunity to explain the evidences coming against him by examining the accused under the provision of section 313 Cr.P.C. The statement of the accused shall be recorded as per the procedure mentioned under section 281 Cr.P.C. The age assessed by the court in the statement under section 313 may differ from the age disclosed by the accused and the same is mentioned in the cause title of the judgment, therefore, it should be recorded carefully. While section 313(1)(a) is optional 313 (1)(b) is mandatory. Any incriminating circumstance which has not been put to the SP ale nen are. ees Oe avai nem nee eaeSection232/255-Acquittal If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal Section233/256-Entering upon defence 1) Where the accused is not acquitted under section232/ 255, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.Section234/257-Arguments When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his advocate 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. Section235/258-Judgment of acquittal or conviction (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case, as soon as possible, within a period of thirty days from the date of completion of arguments, which may be extended to a period of forty -five days for reasons to be recorded in writing. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section360/ 401, hear the accused on the questions of sentence, and then pass sentence on him according to law.Som Mittal v. Govt. of Karnataka, (2008) 3 SCC 574 The main functions of a reasoned judgment are: (1) to inform the parties (litigants) the reasons for the decision; (2) to demonstrate fairness and correctness of the decision; (8) to exclude arbitrariness and bias; and (4) to ensure that justice is not only done, but also seen to be done. Section236/259-Previous conviction In a case where a previous conviction is charged under the provisions of sub-section (7) of section 211/234, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused under section 229/252 or section235/ 258, take evidence in respect of the alleged previous conviction, and shall record a finding thereon: * Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section229/ 252 or section235/ 258Section237/260-Procedure in cases instituted under subsection (2) of Section199/ 222 (1)A Court of Session taking cognizance of an offence under sub-section (2) of section 199/ 222N shall try the case in accordance with the procedure for the trial of warrant-cases instituted otherwise than on a police report before a Court of Magistrate: Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution. (2) Every trial under this section shall be held in camera if either party thereto so desires or if the Court thinks fit so to do. Section237/260 (3) If, in any such case, the Court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice-President or the Governor of a State or the Administrator of a Union territory) to show cause why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.Section237/260 (4) The Court shall record and consider any cause which may be shown by the person so directed, and if it is satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make an order that compensation to such amount not exceeding five thousand Wipers 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. Section237/260 (6) No person who has been directed to pay compensation under sub-section (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section: Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter. 7) The person who has been ordered under sub-section 4) to pay compensation may appeal from the order, in so far as it relates to the payment of compensation, to the High Court.Section237/260 (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. 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