Trial of Warrant Cases Otherwise Than on a Police Report

Sub-section (2), the earlier exit. Nothing in the section prevents the Magistrate discharging the accused at any previous stage if, for reasons to be recorded, he considers the charge to be groundless.

So there are two discharges in this Part. The main one comes after the evidence and uses the if unrebutted test. The earlier one may come at any stage and uses the groundless test, which is the same test as section 262 in Part A.

Section 269: where the accused is not discharged

This section carries the rest of the trial and it has seven sub-sections.

Sub-section (1), framing. If, when the evidence has been taken or at any previous stage, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under the Chapter, which he is competent to try and which could be adequately punished by him, he shall frame in writing a charge.

Sub-section (2). The charge is read and explained, and the accused is asked whether he pleads guilty or has any defence to make.

Notice the wording differs from Part A. There the question is "pleads guilty or claims to be tried", section 263(2). Here it is "pleads guilty or has any defence to make", section 269(2).

Sub-section (3). On a plea of guilty, the Magistrate records the plea and may, in his discretion, convict.

Sub-section (4), the choice of witnesses to recall. If he refuses to plead, does not plead, claims to be tried, or is not convicted, he shall be required to state, at the commencement of the next hearing, or forthwith if the Magistrate for reasons recorded in writing so thinks fit, whether he wishes to cross-examine any, and if so which, of the prosecution witnesses whose evidence has been taken.

Sub-section (5). The witnesses he names shall be recalled and, after cross-examination and re-examination, discharged.

Sub-section (6). The evidence of any remaining prosecution witnesses is then taken, and after cross-examination and re-examination they too are discharged.

Sub-section (7), new and practical. Where, despite giving opportunity to the prosecution and after taking all reasonable measures under the Sanhita, the attendance of a witness under sub-sections (5) or (6) cannot be secured for cross-examination, it shall be deemed that such witness has not been examined for not being available, and the Magistrate may close the prosecution evidence for reasons to be recorded in writing and proceed on the basis of the materials on record.

That sub-section answers a real problem: a complaint case stalling for years because a witness will not come back. The price is that his earlier evidence is treated as not given.

Section 270, defence. The accused is then called on to enter on his defence and produce his evidence, and section 266 applies, so the whole of the defence machinery in Part A, including the limit on recalling a witness already cross-examined and the deposit of witness expenses, operates here too.

Section 271: how the trial ends

This section is in Part C and governs both kinds of warrant case.

Sub-section (1). Where a charge has been framed and the Magistrate finds the accused not guilty, he shall record an order of acquittal.

Sub-section (2). Where he finds the accused guilty, and does not proceed under section 364 (the provision for a Magistrate who cannot pass a sufficiently severe sentence) or section 401 (release on probation or after admonition), he shall, after hearing the accused on the question of sentence, pass sentence according to law.

Sub-section (3), previous conviction. Where a previous conviction is charged under section 234(7) and the accused does not admit it, the Magistrate may, after convicting him, take evidence on the alleged previous conviction and record a finding. The proviso repeats the section 259 protection: the charge is not read out, not pleaded to, and not referred to by the prosecution, until the accused has been convicted.

Section 272: the absent complainant

Where the proceedings were instituted upon complaint, and on a day fixed for hearing the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, after giving thirty days' time to the complainant to be present, in his discretion, at any time before the charge has been framed, discharge the accused.

Four conditions and all four are examined: a complaint case; the complainant absent; the offence compoundable or non-cognizable; and before the charge is framed. The thirty days is new: the old section 249 allowed discharge without any period of grace.

Section 273: compensation for a baseless accusation

Sub-section (1). Where, in a case instituted upon complaint or upon information given to a police officer or to a Magistrate, the Magistrate discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation, he may, by his order of discharge or acquittal, call upon the complainant or informant, if present, forthwith, or by summons if absent, to show cause why he should not pay compensation.

Sub-section (2). The Magistrate shall record and consider any cause shown, and if satisfied there was no reasonable ground, may, for reasons recorded, order compensation not exceeding the amount of fine he is empowered to impose, to be paid to the accused or to each or any of them.

The remaining sub-sections provide that the compensation is recovered as if it were a fine, that non-payment may lead to simple imprisonment, that payment does not exempt the payer from civil or criminal liability but is taken into account in any later civil suit, and that a person ordered to pay by a second or third class Magistrate may appeal.

Note the ceiling: the fine the Magistrate is empowered to impose, which for a first class Magistrate is fifty thousand rupees under section 23(2) and for a second class Magistrate ten thousand.

A worked example

Rehana files a complaint before a Judicial Magistrate at Kalyan alleging an offence punishable with four years, a warrant case.

What happens first? The Magistrate hears the prosecution and takes all its evidence, section 267(1). No charge yet, no discharge yet.

The evidence is finished and it does not amount to much. The Magistrate asks the section 268(1) question: taking the evidence as it stands and assuming it is not rebutted, would it warrant a conviction? If not, he discharges the accused, recording reasons.

Rehana's evidence would, if unrebutted, warrant conviction. The Magistrate then asks whether there is ground for presuming the accused committed an offence he is competent to try and could adequately punish, and if so frames a charge in writing, reads and explains it, and asks whether the accused pleads guilty or has any defence to make, section 269(1) and (2).

The accused claims to be tried. He must state, at the next hearing or forthwith if the Magistrate records reasons, which prosecution witnesses he wishes to cross-examine, section 269(4). Those are recalled, cross-examined and discharged, section 269(5). The remaining prosecution witnesses are then examined, section 269(6).

One witness has left the country and cannot be produced despite every reasonable measure. Under section 269(7) the Magistrate may treat him as not examined, close the prosecution evidence with reasons recorded, and decide on the material on record.

Defence. Section 270 applies section 266, so the accused may call witnesses, the Magistrate must issue process unless it is for vexation or delay, and a witness already cross-examined is not compelled unless it is necessary for the ends of justice.

Change the facts. Before any charge is framed, Rehana stops attending. The offence is compoundable. The Magistrate gives her thirty days to appear and, if she does not, may discharge the accused, section 272.

The accused is acquitted and the Magistrate thinks the complaint had no reasonable ground. He may, in the order of acquittal, call on Rehana to show cause and, if not satisfied, order her to pay compensation not exceeding the fine he is empowered to impose, recoverable as a fine, section 273.

Distinctions

What this does NOT mean

Section 268(1) does not ask whether the prosecution has proved its case. It asks whether the case, if unrebutted, would warrant conviction, which is a much lower bar.

Section 269(7) does not let a Magistrate close the prosecution case for convenience. It requires that opportunity was given and all reasonable measures taken, and it requires reasons in writing.

Section 272 is not available after the charge is framed, and not where the offence is cognizable and non-compoundable.

And section 273 is not a costs order. It is compensation to the accused, recoverable as a fine, and it does not exempt the complainant from other liability.

Quick revision

• 267: hear the prosecution and take all its evidence, first.
• 268(1): discharge where no case which, if unrebutted, would warrant conviction, with reasons. 268(2): discharge at any earlier stage where the charge is groundless.
• 269(1): frame a charge on ground for presuming, plus competent to try and able to punish adequately. (2) read and explained; plead guilty or have any defence to make. (3) plea of guilty recorded, conviction discretionary. (4) and (5) the accused names the prosecution witnesses he wishes to cross-examine and they are recalled. (6) remaining prosecution witnesses examined. (7), new: a witness who cannot be secured despite all reasonable measures is deemed not examined, and the prosecution evidence may be closed for recorded reasons.
• 270: defence, and section 266 applies.
• 271: acquittal on a finding of not guilty; on conviction, hear on sentence unless proceeding under section 364 or 401; previous conviction proved only after conviction.
• 272: complainant absent, offence compoundable or non-cognizable, before charge, after thirty days' grace: the accused may be discharged.
• 273: compensation for an accusation with no reasonable ground, after show cause, not exceeding the fine the Magistrate may impose, recovered as a fine, with an appeal for orders by a second or third class Magistrate.

Test yourself

1. What is the first step in a warrant case not instituted on a police report? The Magistrate hears the prosecution and takes all such evidence as may be produced in support of it, section 267(1).

2. State the test for discharge under section 268(1). Whether a case has been made out against the accused which, if unrebutted, would warrant his conviction; if not, he shall be discharged, for reasons recorded.

3. What are the two discharge tests in this Part, and when does each apply? The "if unrebutted" test after all the prosecution evidence, section 268(1); and the "groundless" test at any previous stage, section 268(2).

4. What must the accused do after a charge is framed in such a case? State, at the commencement of the next hearing or forthwith if the Magistrate records reasons, whether and which of the prosecution witnesses already examined he wishes to cross-examine, section 269(4).

5. What happens if a prosecution witness cannot be produced for cross-examination? Where opportunity has been given and all reasonable measures taken, he is deemed not to have been examined for not being available, and the Magistrate may close the prosecution evidence for reasons recorded in writing and proceed on the materials on record, section 269(7).

6. When may a Magistrate discharge the accused for the complainant's absence? Where the case was instituted on complaint, the complainant is absent on a day fixed for hearing, the offence is compoundable or non-cognizable, and the charge has not been framed; and only after giving the complainant thirty days' time to be present, section 272.

7. What is the maximum compensation under section 273? An amount not exceeding the amount of fine the Magistrate is empowered to impose.