The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-VI]

STARTING OF TRIAL IN A “SUMMONS CASE” BEFORE A MAGISTRATEQ.26 When does the trial start in a “summons case” before a Magistrate ? Ans. When the accused appears in response to the process issued against him, the Magistrate shall comply with Section 207 Cr.P.C. (If it is a Police Report) or Section 208 Cr.P.C. (if it is a complaint case) by furnishing the accused with copies of all the prosecution records. If it is a case instituted on a “Police Report” or on a “complaint”, “the substance of accusation” shall be stated to the accused under Section 251 Cr.P.C. The preponderance of Judicial opinion is to the effect that the trial starts when the substance of accusation is to read over to the accused. (Vide para 3 of Radhamany Amma v. Kunju Pillai 1980 KLT 393 = 1981 Cri.L.J. 247 = 1980 KHC 100 – S. K. Kader – J; Para 9 of S. V. Enterprises v. Rajasekharan Nair 2006 (3) KLT 930 – M. Sasidharan Nambiar – JJ.) If the accused “pleads guilty” and Magistrate is satisfied that the plea of guilt has been “voluntarily made” without any extraneous pressure or influence, the Magistrate may straightaway convict him under Section 252 Cr.P.C. and may pass an appropriate sentence on him. Here there is no trial. But if the accused “pleads not guilty”, then the Magistrate shall post the case for prosecution evidence under Section 254 Cr.P.C. So, the trial really starts when the accused “pleads not guilty” to the substance of accusation. (Vide paras 11 and 16 of Subramanian Sethuraman v. State of Maharashtra AIR 2004 SC 4711 = (2004) 13 SCC 324 – 3 Judges – N. Santhosh Hegde, S. B. Sinha, Tarun Chatterjee – JJ.) The observations in Subramanian Sethuraman (Supra) will show that in a “summons case” once the plea of “not guilty” made by the accused is recorded, the accused has to face the trial. There is no framing of charge in a summons trial and hence there is no discharge. DISCHARGING THE ACCUSED IN A “WARRANT CASE” BEFORE A MAGISTRATE – Ss. 239, 245Q.27 When is the accused discharged by a Magistrate in a “warrant case” ? Ans. After complying with Section 207 or Section 208, as the case may be, the Magistrate may discharge the accused as below :-DISCHARGING THE ACCUSED IN A “SESSIONS CASE”– Ss. 227Q.28 When is an accused discharged by a Court of Session ? Ans. If upon considering the prosecution records 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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. (Vide Section 227.) The following CHART depicts the process of discharge both by a Magistrate as well as by a Court of Session:- Q.29 Why is it that Section 227 Cr.P.C. obliges the Sessions Judge to record his reasons while discharging an accused ? Ans. This is because, by discharging the accused the Sessions Judge is prematurely terminating the proceedings without a trial. Hence, he has to give reasons why he is discharging the accused. Q.30 While discharging an accused under Section 239 Cr.P.C. by a Magistrate in a warrant case and under Section 227 Cr.P.C. by a Court of Session in a Sessions case, it is provided that both the prosecution as well as the accused should be given an opportunity of hearing. Is not the accused at this stage avail of the said opportunity by producing or causing production of documents and other evidence to prove his contention that the case of the prosecution is false ? Ans. No. Both the above provisions enable the Court to consider only the Police Report and the documents submitted along with it. The scope of the hearing to be given to the accused is only to show that the prosecution records, even if taken on their face value, do not make out the offence alleged. The right of hearing given to the prosecution as well as the accused is confined only to the prosecution records. Under the guise of such hearing, the accused cannot “create records” to show that the prosecution records should not be acted upon. The accused cannot also invoke Section 91 Cr.P.C. for causing production of any document at this stage. (Vide State or Orissa v. Debendranath Pathi AIR 2005 SC 359 = (2005) 1 SCC 568 – 3 Judges – Y. K. Sabharwal, D. M. Dharmathikari, Tarun Chaterjee – JJ.) The proper stage for the accused to adduce the evidence is when he is called upon to enter upon his defence under Section 243 Cr.P.C. in a case instituted on a Police Report and under Section 247 Cr.P.C. in a case instituted otherwise than on a Police Report. Likewise, in a sessions trial also, the stage for the accused to adduce defence evidence is under Section 233 Cr.P.C. when he is called upon to enter upon his defence.Part 1: The Basics ...

The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-VI]

Justice V Ramkumar

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