Trial Before a Court of Session

Three things to hold. The material is the record, not evidence, because none has been led. The standard is not sufficient ground for proceeding, which is lower than proof. And reasons must be recorded.

4. Framing of charge, section 251. If the Judge is of opinion that there is ground for presuming that the accused has committed an offence:

(a) which is not exclusively triable by the Court of Session, he may frame a charge and transfer the case to the Chief Judicial Magistrate or a Judicial Magistrate of the first class, directing the accused to appear before him, and that Magistrate then tries it as a warrant case instituted on a police report; (b) which is exclusively triable by the Court, he shall frame a charge in writing within sixty days from the date of first hearing on charge.

Sub-section (2): the charge shall be read and explained to the accused, present either physically or through audio-video electronic means, and he shall be asked whether he pleads guilty or claims to be tried.

Note the standard has moved. Discharge asks whether there is sufficient ground for proceeding; framing asks whether there is ground for presuming the accused committed the offence.

5. Plea of guilty, section 252. If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him on it. The discretion matters: a plea of guilty to a capital charge does not oblige a conviction.

6. Date for prosecution evidence, section 253. If the accused refuses to plead, does not plead, claims to be tried, or is not convicted under section 252, the Judge fixes a date for the examination of witnesses and may, on the prosecution's application, issue process to compel attendance or production.

7. Prosecution evidence, section 254. On the date fixed, the Judge takes all such evidence as may be produced in support of the prosecution.

The proviso, new: evidence of a witness may be recorded by audio-video electronic means. Sub-section (2), new: the deposition of any public servant may be taken through audio-video electronic means. Sub-section (3): the Judge may defer cross-examination of a witness until others have been examined, or recall any witness for further cross-examination.

8. Acquittal, section 255. If, after taking the prosecution evidence, 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, he shall record an order of acquittal.

Read the three preconditions: the evidence must have been taken, the accused must have been examined, and both sides must have been heard on the point. And the test is the strictest in the chapter: no evidence, not weak evidence.

9. Defence and arguments, sections 256 and 257. Where the accused is not acquitted, he is called on to enter on his defence and adduce evidence. Any written statement he puts in is filed with the record. If he applies for process to compel a witness or a document, the Judge shall issue it unless he considers, for reasons to be recorded, that the application is made for vexation or delay or for defeating the ends of justice.

When the defence evidence is complete, the prosecutor sums up and the accused or his advocate is entitled to reply, section 257. The proviso: where the accused raises a point of law, the prosecution may, with the permission of the Judge, make submissions on it.

Notice who has the last word: the defence. That is deliberate and it is a common short question.

10. Judgment, section 258.

Sub-section (1), new: the Judge shall give judgment as soon as possible, within thirty days from the date of completion of arguments, extendable to forty-five days for reasons recorded in writing.

Sub-section (2): if the accused is convicted, the Judge shall, unless he proceeds under section 401 (release on probation or after admonition), hear the accused on the question of sentence and then pass sentence according to law.

Section 259: a previous conviction charged

Where a previous conviction is charged under section 234(7) and the accused does not admit it, the Judge may, after he has convicted him under section 252 or section 258, take evidence in respect of the alleged previous conviction and record a finding.

The proviso is the important half. No such charge shall be read out by the Judge, nor shall the accused be asked to plead to it, 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.

The reason is obvious once stated: a court that knows the accused has convictions before it decides this case is not deciding this case.

Section 260: prosecutions under section 222(2)

Where a Court of Session takes cognizance of an offence of defamation under section 222(2), which is the case of a public servant and the like:

Sub-section (1). It tries the case in accordance with the procedure for warrant cases instituted otherwise than on a police report before a Magistrate. The proviso: the person against whom the offence is alleged shall be examined as a witness for the prosecution, unless the Court, for reasons recorded, directs otherwise.

Sub-section (2). Every such trial shall be in camera if either party desires it or the Court thinks fit.

Sub-sections (3) to (7), compensation for a baseless accusation. If the Court discharges or acquits and is of opinion that there was no reasonable cause for making the accusation, it may direct the complainant, other than the President, the Vice-President, the Governor of a State or the Administrator of a Union territory, to show cause why he should not pay compensation. After considering the cause shown, it may, for reasons recorded, order compensation not exceeding five thousand rupees, recoverable as if it were a fine imposed by a Magistrate. Payment does not exempt him from civil or criminal liability, but is taken into account in any later civil suit on the same matter; and he may appeal against the order.

A worked example

Farid is committed to the Sessions Court at Thane for an offence punishable with life imprisonment.

Day one. The Public Prosecutor opens the case, describing the charge and the evidence by which he proposes to prove guilt, section 249.

Farid wants to be discharged. He must apply within sixty days of the commitment, section 250(1). The Judge considers the record and the documents, hears both sides, and, if there is not sufficient ground for proceeding, discharges him with reasons.

There is ground. The Judge frames a charge in writing within sixty days from the first hearing on charge, section 251(1)(b), reads and explains it to Farid, who may be present by audio-video electronic means, and asks whether he pleads guilty or claims to be tried.

The evidence discloses an offence not exclusively triable by the Sessions Court. Then section 251(1)(a) applies instead: the Judge frames the charge and transfers the case to the Chief Judicial Magistrate or a first class Magistrate, who tries it as a warrant case on a police report.

Farid claims to be tried. The Judge fixes a date, section 253, and takes the prosecution evidence, section 254. A doctor who is a public servant deposes by audio-video electronic means, section 254(2). Cross-examination of one witness is deferred until another has been examined, section 254(3).

The prosecution closes with nothing that touches Farid. After examining him and hearing both sides on the point, the Judge, finding no evidence that he committed the offence, records an order of acquittal, section 255.

There is evidence. Farid enters on his defence, section 256, and applies for a summons to a witness. The Judge shall issue it unless he records that it is for vexation, delay or defeating the ends of justice.

Arguments. The prosecutor sums up; Farid's advocate replies, section 257. He raises a point of law, and the prosecution, with the Judge's permission, addresses it.

Judgment. Within thirty days of the completion of arguments, extendable to forty-five for recorded reasons, section 258(1). Farid is convicted, so the Judge hears him on sentence, unless proceeding under section 401.

Farid's charge alleged a previous conviction which he denies. The Judge takes evidence on it only after convicting him, and until then it is not read out, not pleaded to, and not referred to by the prosecution, section 259.

Distinctions

What this does NOT mean

A Sessions Court does not take cognizance for itself. Section 213 requires a committal, and section 249 assumes one.

Section 255 is not a general power to acquit at the close of the prosecution case on the ground that the evidence is weak. The words are "no evidence".

A plea of guilty does not compel a conviction. Section 252 says the Judge may, in his discretion, convict on it.

And section 259 does not keep a previous conviction out of the case. It keeps it out until conviction.

Quick revision

• 248: prosecution by a Public Prosecutor.
• 249: the prosecutor opens, describing the charge and the evidence proposed.
• 250: discharge application within sixty days of commitment; discharge on the record and documents if there is not sufficient ground for proceeding, with reasons recorded.
• 251: ground for presuming; if not exclusively Sessions triable, frame and transfer to a Magistrate for trial as a warrant case on a police report; if exclusively triable, frame in writing within sixty days of the first hearing on charge; charge read and explained, presence permitted by audio-video electronic means.
• 252: plea of guilty recorded; conviction is discretionary.
• 253: date fixed for prosecution evidence; process on the prosecution's application.
• 254: all prosecution evidence; a witness, and any public servant, may depose by audio-video electronic means; cross-examination may be deferred and witnesses recalled.
• 255: acquittal where, after evidence, the examination of the accused and hearing both sides, there is no evidence of the offence.
• 256: defence entered; written statement filed; process shall issue unless refused for vexation, delay or defeating the ends of justice, with reasons.
• 257: prosecutor sums up, the accused replies; the prosecution may address a point of law with permission.
• 258: judgment within thirty days of completion of arguments, extendable to forty-five for recorded reasons; on conviction, hear on sentence unless proceeding under section 401.
• 259: previous conviction proved only after conviction, and not referred to before it.
• 260: section 222(2) cases tried as warrant cases otherwise than on a police report; in camera on request; compensation up to five thousand rupees where there was no reasonable cause for the accusation, with a right of appeal.

Test yourself

1. Set out the stages of a Sessions trial. Prosecution conducted by a Public Prosecutor; the prosecutor opens the case; discharge if there is not sufficient ground; framing of charge; plea; date fixed; prosecution evidence; acquittal if there is no evidence; defence; arguments; judgment; and, on conviction, hearing on sentence.

2. Distinguish discharge from acquittal. Discharge is before the charge, on the record and documents, where there is not sufficient ground for proceeding, section 250. Acquittal is after the prosecution evidence, the examination of the accused and hearing both sides, where there is no evidence that the accused committed the offence, section 255.

3. Within what time must an application for discharge be made? Within sixty days from the date of commitment of the case under section 232, section 250(1).

4. Within what time must the charge be framed? Within sixty days from the date of first hearing on charge, where the offence is exclusively triable by the Court of Session, section 251(1)(b).

5. What happens if the offence turns out not to be exclusively triable by the Court of Session? The Judge may frame a charge and by order transfer the case to the Chief Judicial Magistrate or a Judicial Magistrate of the first class, who tries it in accordance with the procedure for warrant cases instituted on a police report, section 251(1)(a).

6. Who has the right of reply in arguments? The accused or his advocate, after the prosecutor sums up, section 257.

7. When may a previous conviction be proved? Only after the accused has been convicted under section 252 or section 258; until then it is not read out, not pleaded to and not referred to by the prosecution, section 259.

8. Within what time must judgment be delivered? As soon as possible, within thirty days from the completion of arguments, extendable to forty-five days for reasons recorded in writing, section 258(1).