Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXV

Q.121 When does trial start in a “warrant case” and a “sessions case”?Ans.· The following are the provisions in the Cr.P.C. pertaining to the framing of charge in warrant and sessions trial:-Warrant - Sec. 240 (police charge case)- Sec. 246 (complaint case)Sessions - Sec. 228· In paragraph 28 of Ratilal Bhanji Mithani v. State of Maharashtra – (1979) 2 SCC 179 = AIR 1979 SC 94 – 3 Judges – Sarkaria, Chinnappa Reddy & A.P. Sen, it was observed as follows:-“The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry”.Subsequently, in paragraph 39 of the 4 Judges Bench of the Supreme Court of India in V. C. Shukla v. State through CBI 1980 Supp. SCC 92 = AIR 1980 SC 962 – 4 Judges – S. Murtaza Fazl Ali, P. N. Shingal, D. A. Desai, A. P. Sen - JJ, without reference to Ratilal Bhanji Mithani observed as follows:-“The proceedings starting with Section 238 of the Code including any discharge or framing of charge under Sections 239 or 240 amounts to a trial”.· In Hardeep Singh v. State of Punjab (2014) 3 SCC 92 = AIR 2014 SC 1400 - 5 Judges – P. Sathasivam, Dr. B. S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S. A. Bobde – JJ, after referring to –1. Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495 = AIR 1996 SC 1931 – Madan Mohan Punchhi, K. T. Thomas - JJ;2. Ratilal Bhanji Mithani v. State of Maharashtra – (1979) 2 SCC 179 = AIR 1979 SC 94 – 3 Judges - Sarkaria, Chinnappa Reddy & A.P. Sen – JJ;3. V.C.Shukla v. Union of India 1980 Supp. SCC 92 = AIR 1980 SC 962 - 4 Judges – S. Murtaza Fazl Ali, P. N. Shingal, D. A. Desai, A. P. Sen - JJ;4. Union of India v. Madan Lal Yadav (1996) 4 SCC 127 – 3 Judges – K. Ramaswami, S. Saghir Ahmad, G. B. Pattanaik - JJ;5. Common Cause, a Regd. Society v. Union of India (1996) 6 SCC 775 = AIR 1997 SC 1539 – B. P. Jeevan Reddy, S. B. Majumdar – JJ, etc.concluded in paragraphs 35 and 43 (paras 38 and 47 of SCC) that trial commences with the framing of charge.· After Ratilal Bhanji Mithani (AIR 1979 SC 94) - 3 Judges – Sarkaria, Chinnappa Reddy & A.P. Sen – JJ and V. C. Shukla (AIR 1980 SC 962) –4 Judges – S. Murtaza Fazl Ali, P. N. Shingal, D. A. Desai, A. P. Sen - JJ, and other verdicts referred to, the general understating among the legal fraternity is that the trial in a warrant or sessions case starts with the framing of charge. But this is really a mistaken impression since the subsequent part of the relevant passage in Ratilal Bhanji’s case has not been imbibed by many of the judicial verdicts. The entire passage reads as follows:-“The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry. After the framing of charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Section 254 to 258 to a logical end”.· This is fortified by the words “claims to be tried” occurring in –Sec. 242 (1) Cr.P.C – Warrant case on “police report” Sec. 246 (4) Cr.P.C – Warrant case otherwise than on “police report”, and Sec. 230 Cr.P.C – “Sessions trial” · If trial starts with the framing of charge, then how can we explain the following situations –1. The accused voluntarily pleads guilty to the charge framed against him and the Magistrate convicts him and passes a sentence against him. Is there a “trial” ? No.2. During the preliminary hearing under Section 227 Cr.P.C. the Sessions Judge finds that the offence is not exclusively triable by a Court of Session. He, therefore, proceeds under Section 228 (1) (a) Cr.P.C. by framing the charge and transferring the case for trial to the Magistrate concerned. Has the trial started before the Sessions Judge with the framing of charge ? No.(Of course, the word used here in Section 228 (1) (a) is “he may frame a charge”. It is not mandatory. Moreover, the Section does not say that after framing a charge the Sessions Judge should take the plea. The Magistrate also cannot take the plea of he accused on the charge framed by the Sessions Judge. Hence the Magistrate will have to frame charge afresh under Section 240 or 246, as the case may be. That apart, the wording of Section 228 (1) (a) is also that “frame a charge…….and transfer the case for trial”).To sum up, a proper understanding of Ratilal Bhanji Mithani and the above provisions (Ss. 240, 246, 228) would indicate that after framing charge, it is only when the accused pleads not guilty and claims to be tried, that the trial can legitimately start.In paragraph 28 of Ratilal Bhaji v. State of Maharashtra – (1979) 2 SCC 179 = AIR 1979 SC 94 – 3 Judges – R. S. Sarkaria, O. Chinnappa Reddy, A. P. Sen - JJ, it was observed as follows:-“The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry. After the framing of charge if the accused pleased not guilty, the...

Questions & Answers By Justice V. Ramkumar- Investigation By Police- PART XXV

Justice V. Ramkumar

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