Procedure for Trial before a Court of Session

The article is written by Ankita Saria, a 4^th year BA LLB student at Heritage Law College, Kolkata and content creater on Youtube channel Law Kanya. She is currently interning with LatestLaws.com.

As the title itself indicates, the article is about the procedure to be followed while a trial is being conducted in a Court of Session. Chapter VIII running from Section 225 to 237 of the Code of Criminal Procedure, 1973 (hereinafter referred as Code) deals with the detailed provisions in regard to trials before the Sessions Court.

1. What is meant by ‘Trial’?

The word 'trial' is not defined in Code of Criminal Procedure. Though it was defined in the Code of 1872, it had not been defined in subsequent Codes of 1882, 1898, and 1973.  The word trial, according to Stroud's Judicial Dictionary means the conclusions by a competent Tribunal of questions in issue in legal proceedings whether civil or criminal.[1] According to Wharton's Law Lexicon, trial means the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the law of the land.[2] The word 'trial' has no universal meaning. In many sections of the Code, the word trial has been used in the sense as a stage after inquiry. But this word has to give meaning in the particular context in which it is used demands. The principal object of Criminal law is to protect society by punishing the offenders. However, justice and fair play require that no one should be punished without a fair trial.[3] 

2. Which Court is termed as the Court of Session?

To answer the question, we know that each State has its High Court and each District within a State has its District Court. When these District Court hears any criminal matter, it is referred to as Court of Session. Thus, Court of Sessions is a District Court hearing a criminal matter before it. It is to be established for every Sessions Division which shall be presided over by a Judge appointed by the respective High Court.

As a general rule, a Sessions Court cannot directly take cognizance of an offence rather a competent Court is to take cognizance for the offence and commit the case to the Court of Sessions for its trial, except for the purpose as given in Section 237.

Chapter VIII provides for the trial procedure and gives steps to be followed in a trial before the Court of Sessions.

3. Who shall conduct prosecution in a trial before a Court of Sessions?

Section 225 of the Code specifically empowers Public Prosecutor to conduct prosecution in every trial before Sessions Court. In every case there are two parties, one is victim and the other one is accused. The Public prosecutor is the Advocate who is appointed by the Government to fight for the victim whereas the accused will have his own defense counsel. In any case if he does not have sufficient means to have his own defense counsel, he can request the government for such counsel free of cost. A Public Prosecutor is a person appearing on behalf of the State in a criminal case. As a criminal wrong is not only against the victim but also against society at large. Any crime committed against an individual who in collective capacity represented by the State, therefore, State participates in a criminal trial as party. Here, State is represented by the person appointed as the Public Prosecutor. The State Government has the power under Cr.P.C. to appoint Public Prosecutors at the High Court level and at district level in consultation with the High Court and the Sessions Court. The District Magistrate prepares a panel of names who are fit to be appointed as Public Prosecutors. The minimum qualification is at least seven years practice as an Advocate. A Public Prosecutor is a public servant.

4. How does the prosecution open his case?

 Such Public Prosecutor will open the case with his open statement as per Section 226 of the Code. In every trial, the prosecution is to start by putting forward the charge and the evidence against the accused in order to prove his guilt. The word ‘charge’ here refers to the particulars of offence committed and the relevant law under which the offence committed has been made punishable. It should also contain brief summary dealing with the particulars of the manner in which the offence was committed and details of the victim and time and place of the alleged offence. As per Section 226, in the first hearing or during the opening of the case itself, the Public Prosecutor should supply the court with the list of evidence and the particulars of the witness which is being relied upon by him in order to prove his case against the accused. This should be held by the open court the attendance of the accused is to made compulsory.

5. What happens when the Judge considers no sufficient ground for proceeding against the accused?

In such a situation where the prosecution is unable to make out a reasonable case against the accused, the Judge, if there exists no sufficient ground to proceed with the case against the accused, can discharge the accused after giving reasons. The object of Section 227 was made out by the Supreme Court in the case of Kewal Krishan v. Suraj Bhan[4] that it was to save the accused from prolonged harassment which is necessary cancomait of a protracted trial.

6. What rules are to be kept in mind by Judge when discharging the accused?

As seen above, Section 227 provides for discharge of an accused in case that judge finds ‘no sufficient ground for proceeding against the accused’. This implies that the Judge is not a mere post office to frame the charge at the request of the prosecution. The Supreme Court in the case of Union of India v. Prafulla Kumar Samal[5] laid down the following principals that Judges need to keep in mind while exercising the power of discharge:

• The Judge while considering the question of discharging the accused has undoubted power to weigh and scale the evidence for the purpose of finding whether the prima facie case against the accused has been made out or not.
• If a material in case shows grave suspicion against the accused which has not been properly explained, the court will be justified in framing charge and proceeding with the trial.
• The test to determine a prima facie case depends on case to case and a universal rule cannot be applied. In such cases the Judge has discretion to try the case.
• Court can in no circumstance act merely as post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and documents produced before it.  The Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence in conducting the trial.[6]

7. What happens when the case so alleged has been committed by the accused is not triable by a Court of Sessions?

Section 228(1) clarifies upon the particular points regarding the procedure to be followed in case the offence alleged to have been committed by the accused in not triable by a Court of Sessions and the Judge presumes the accused to be guilty, in such a case, the Judge is to frame charge. And after framing of the charge, the case is to be transferred for trial to appropriate authority. The case so transferred is to proceed as a trial of a warrant case instituted upon Police Report. It was held by the Supreme Court that once the case is committed to the Court of Sessions, it becomes clothed with the jurisdiction to try it and mere fact that the offence disclosed was not one exclusively triable it does not divest it of that jurisdiction.[7] This simply means, once the case is made to be tried at the Court of Sessions, it has full right to frame charge against the accused irrespective of the fact that it has jurisdiction or not.[8] While considering the question of framing charge against the accused. The court has wide power to shift and weigh the materials for limited purpose in order to find out whether or not a prima facie evidence against the accused has been made out.[9] Here the court only needs to have a presumptive suspicion on the accused regarding the commission of the alleged offence.

8. Describe the step of framing charges.

When the Court of Sessions has grounds for presuming that the accused has committed the alleged offence and that such offence is exclusively triable by it, the Judge presiding over the Court of Sessions shall frame charge against the person alleged to have committed the offence. One of the basic requirements of a fair trial in criminal cases is to give precise information to the accused as to the prosecution against him. This is done when the accusations are formulated and made into writing. Charge serves the purpose of notice or intimation to the accuse, drawn up according to specific language of law, giving clear and unambiguous or precise notice of the nature of the accusation that the accused is called upon to meet in the course of the trial.[10]

Moreover, such charge has to be read and explained to the accused and the accused shall be asked whether he pleads guilty or claims to be tried. An accused to be aware of the accusations for which he is brought to trial. In addition, he should also be given a chance to present his statement whether he pleads guilty or not. As held in the case of Kesho Singh v. Emperor[11] that, if necessary, the judge may ever interrogate the accused in order to ascertain whether he fully understands the responsibility which he assumes by making a plea of guilty.

9. What happens when the accused admits the accusations made against him?

When an accused under Section 228(2) pleads guilty, the Judge is to record his plea and may make direction for his conviction. In the landmark case of Queen Empress v. Bhadu[12], it was held that the plea of guilty must be in unambiguous terms, otherwise such a plea is considered equivalent to a plea of not guilty. Such plea of guilt must be presented before the court by the accused personally and not through his pleader. However, the court always has a discretion whether to accept the plea or not. This discretion has to be used looking into circumstance of the case. Where the statements purported to be the plea of guilt were not recorded by the Magistrate, the conviction based on the plea of guilt was set aside and the case went for retrial.[13]

If the accused is convicted on his plea of guilt, the judge shall proceed to hear him on the question of sentence and then pass sentence as per the law. Simultaneously the right of accused to appeal is curtailed.

10. On what circumstances the court fixes date and for what purposes under Section 230?

The Judge is empowered to examine witness and even issue process to compel the attendance of any person or for the production of any document. The court fixes date for the above purposes if the accused refuses to plead or does not plead or claims to be tried or is not convicted under Section 229.

11. What are the steps involved in the evidence of prosecution?

The word ‘evidence’ is defined in the Indian Evident Act. 1872 as to include:

• all statements, which the court permits or requires to be made before it, in relation to matters of fact under inquiry;
• all documents produced for inspection of the court

Section 231(1) given the prosecution a first-hand opportunity in bringing forth the relevant evidence off sorts to prove its case. The judge is to take note of all the evidence that has been produced in support of the prosecution on the date so fixed above. Such evidence of prosecution is given a significant value in terms of its relevance with the accused committing the alleged offence. Whatever the prosecution relies to prove his case shall be presented at first before the court and after due examination by the prosecution, the defense counsel is given a chance to cross-examine such witnesses as per Sec 231(2). The court must observe a balance between the rights of accused and the prosecution to lead evidence while deciding the application.[14]  The purpose of cross-examination is to give a fair chance to the other arty in bringing out any matter that would have otherwise remained unknown to the court. And if the party discharges or waives off such right either expressed or implied shall be given the same effect of cross-examination.

Moreover, it is the discretion of the Judge to permit such cross-examination to postpone to such further date until any other witness have been examined or to recall any witness for further cross-examination. This brings to us two points. Firstly, the Court if it deems fit may on application of the party grant deferral of cross. The pre-condition is that the party seeking deferral must give sufficient reasons for doing so to invoke exercise of discretion by the Judge. Deferral of cross-examination cannot be asserted as a matter of right.[15] Secondly, any witness which has already been cross-examined can be recalled and be subject to further cross.

12. What if after taking the prosecution evidence, Judge considers that no evidence makes accused guilty?

In order to expedite the conclusion of Sessions trial, the Code under Section 232 provides for the acquittal of the accused. When the judge after going through the evidence brought by the prosecution against the accused and after examining the accused, considers that the person accused has not committed the alleged offence, order for his acquittal. The judge must here take all reasonable steps to look into the evidence against accused and to order such only when he is fully satisfied that there is no evidence beyond reasonable doubt.[16] Also there have to be given reasons as to why the order for acquittal is given. This provision prevents unnecessary harassment to the accused by calling upon him for further steps of trial.[17]

The word ‘no evidence’ as held in the case of Queen Empress v. Munna Lall[18], should not include ‘no satisfactory, trustworthy or conclusive evidence’. In other words, the evidence so adduced by the prosecution, even if true would not amount to legal proof of the offence charged against the accused.[19] The accused has been given a legal umbrella that does not require to provide its defence until this stage. The accused is under no duty to disclose the names of his defence witnesses and move for further steps of trial.

13. When does the accused needs to provide for his defence?

Only when the accused has not been acquitted under above provision, he is required to enter his defence and adduce any evidence in support of this defence as per Section 233(1). This Section provides upon the accused an equal opportunity to present before the court his response to the allegations made against him. The provision is mandatory in nature and castes duty upon trial courts to take appropriate step for taking defence of the accused.[20]

Sub-section 2 aids above provision and provides that if the accused so desires, he can put his statement of defence in writing. Such written statement is to be filled by the Judge with the record of the case.

If the accused applies for issuance of any process or compels attendance of any witness or even for the production of document as a part of his defence, the court is to grant for the same unless the Judge is of the view that such attendance or issue of process is made vexatiously or for delaying the ends of justice. The witness of accused shall be examined and cross-examined in the same manner as that of prosecution evidence. The same rules will apply to it. Even the accused himself is a competent witness and can give evidence on oath in regard to allegations made against himself.

14. How are the arguments to take place in a trial before Court of Sessions?

Section 234 provides as to how arguments are to be carried out by both the parties.  When the examination of the witness for the defence is complete, the prosecution shall sum up his case and the accused or his pleader shall be the one to reply. This means that the arguments are to take place after the defence has submitted its evidence and only in case the prosecution objects to it. It is the role of the prosecution to sum up the case and after which if needed, defence is to submit its reply. There is a proviso, according to which, prosecution may with the permission of the court make its submission on any point of law raised by the defence or his pleader. Once the Judge has heard both the parties, he can proceed to give judgment as per Section 235(1). This aspect of trial is totally procedural and no special reference is needed.

15. What are steps needed to be followed when the judge orders conviction of the accused?

On hearing both the parties, the judge, if thinks fit, order for the conviction of the accused. As per Section 235(2) after ordering such conviction, the judge is to hear accused on the matter of sentence and then pass sentence according to the law. This part of section calls for a bifurcated trial and provides the accused person right of pre-sentence hearing.[21] The aim of the provision is to acquaint the court with the social and personal data of the offender and thus enabling the court to decide as to the appropriate sentence for the accused.[22]

As a rule, the court is to adjourn the matter to a future date after ordering conviction and thereafter call both the parties to submit their points regarding the matter of sentence and thereafter pronounce sentence to be served by the offender. The word ‘hearing’ has been held to not merely confining to oral submissions, but also intended to give an opportunity to the prosecution and the accused to place before the court facts and materials relating to various factors regarding the question of sentence and then to produce evidence for the same. It is then the duty of the court to see that the hearing in the question of sentence is not abused.[23] This clause is an essential requirement of the rule of natural justice[24] though its non-compliance has been made a mere irregularity in the course of trial and curable under Section 465. It is a much serious and would vitiate the order of sentence.

16. What is the procedure in case the accused has been previously convicted of the same offence?

In case the accused has been convicted earlier of an offence and for which he has been convicted again and the accused denies such earlier conviction, then the judge takes evidence of such finding and record the same. As per Section 236, the accused denies his earlier conviction, then it is the responsibility if the judge to come at the final conclusion and make records accordingly. The prosecution if gives enough evidence in support of the accused’s prior conviction then such convicted person is liable for an enhanced punishment. Moreover, it has been provided that in such case of earlier conviction, the judge is not bound or it is not necessary for him to read out the charge to the accused. Neither the accused shall be asked to plead guilty for any of the offence nor is he required to adduce any further evidence in support of his guilt in previous conviction. This is a special provision for determining the liability to enhanced punishment as a result of previous conviction.[25]

17. When can the Court of Sessions take cognizance of an offence itself?

Section 237 is an except to the general rule that the Court of Sessions cannot on its own take cognizance of an offence unless it has been committed to it by other appropriate court. The defamation case of high dignitaries and public servants are to be directly taken up by the Court of Sessions. Every trial under this Section is held in camera, if the party so desires. The object of making such an exception is to maintain confidence in the purity of the administration when high dignitaries and public servants are wrongly defamed.[26] This provision has been designed in the public interest. The procedure followed in the trial is same as that pf other trials by the Court of Sessions, the difference only being that instead of ordering a sentence to the accused, here they are required to pay compensation for an amount not exceeding one thousand rupees. The appeal can be made to the High Court like any other case.