CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA-823001

SCHOOL OF LAW & GOVERNANCE

PROJECT WORK
on
Trial Meaning and Objective, Procedure of Trials Before Court of Session
Under the Supervision of – Mr. Deep Nrayan

Submitted By-
Rahul Raj
B.A. L.L.B (Hons)- 4th Semester
Enrollment No. – CUSB1713125034
PREFACE

Man may be a little lower than the angels, he has not shed off the brute and the brute within is
apt to break loose on occasions. Such aberrations in human behaviour result in crime. Crime,
however, has acquired today wide dimensions, both in its enormity and variety. Mens rea was
at one time considered to be an essential ingredient of every offence. The position has
somewhat changed and there are various offences of which mens rea is not an ingredient.

To deal with the perpetrators of crime, we need law courts. We also need a code prescribing
the procedure to be followed in the law courts. Not all people who are sent up for trial are guilty
of the offences with which they are charged. Duty therefore has been cast upon the courts of
deciding as to whether the person charged with an offence has actually been proved guilty. The
procedure which governs the court proceedings before it arrives at that conclusion has to be
such as is fair, inspires confidence and at the same time is not such as provides a wide escape
route for the guilty.

Criminal law occupies a predominant place among the agencies of social control and is
regarded as a formidable weapon that society has forged to protect itself against anti-social
behaviour. Criminal procedure is an indispensable part of the penal law and the effectiveness
of the latter depends much upon the proper implementation of the former. The Criminal
Procedure Code, as observed in Iqbal Ismail Sodawala v. State of Maharashtra [(1975) 3 SCC
140] is essentially a code of procedure and like all procedural law, is designed to further the
ends of justice and not to frustrate them by the introduction of endless technicalities. At the
same it has to be borne in mind that it is procedure that spells much of the difference between
rule of law and rule by whim and caprice. The object of the Code is to ensure for the accused
a full and fair trial in accordance with the principles of natural justice.

This projects is an approach to define the meaning and objectives of the trial. This project
would also focus on the procedure of trial before the Court of Session. Doctrinal method of
research is applied to prepare this project. Every relevant aspect is tried to be elaborated and
thus I believe that this project would prove itself to be useful to all those interested in criminal
procedure.

-Rahul Raj
TRIAL MEANING AND OBJECTIVE:

INTRODUCTION

CONCEPT OF FAIR TRIAL

It is universally accepted as a human value that a person accused of any offence should not be
punished unless he has been given a fair trial and his guilt has been proved in such trial. The
notion of fair trial cannot be explained in an absolute term. Fairness is a relative concept and
therefore it could only be measured in in relation to the accusation, the time and resources, the
prevailing societal value, etc.

The major attributes of fair criminal trial are enshrined in the Article 10 and 11 of the Universal
Declaration of Human Rights.

The primary concept of the criminal procedure is to ensure a fair trial to every person accused
of any crime.

ADVERSARY SYSTEM

We have adopted adversary system of criminal trial based on accusatorial method. According
to this system, criminal courts shall be resolving any dispute as to the criminal responsibility
of a person after giving a fair trial and adequate opportunity to the disputants to place before
the court and their respective cases. The court has to decide the case without taking the sides
or showing any favour or disfavour to any of the parties of the case. The court has to decide as
to which party has succeeded in proving its case according to the law. Therefore it can be said
that the adversary system of trial enables an impartial, unbiased and competent court to conduct
a fair trial and to have a proper perspective of the case.

In our system of criminal trials, there are two parties, vis-à-vis, the prosecutor, who
representing the State accusing the other side, i.e., the defendant (accused person) of the
commission of the alleged crime. The law requires him to prove his case beyond reasonable
doubt. The adversary system recognises equal rights and opportunities to both the parties, i.e.,
the State and the accused person, to present their cases before the learned court.

PRESUMPTION OF INNOCENCE
It was held in the case of the Babu Singh v. State of Punjab1and K.M. Nanavati v. State of
Maharashtra2, it was held that the accused person is presumed to be innocent unless his guilt
is proved beyond reasonable doubt, is of cardinal importance in the administration of criminal
justice. The burden of proof is on the prosecution and unless it reveals itself of that burden, the
courts cannot record a finding of the guilt of the accused.3 The necessity of having the principle
of “presumption of innocence was observed in the same case as, “it is no doubt true that
wrongful acquittals are undesirable and shake the confidence of the people in the judicial
system, much worse, however, is the wrongful conviction of an innocent person. The
consequences of the conviction of an innocent person are far more serious and its
reverberations cannot but be felt in a civilised society.

Therefore the principle of “presumption of innocence” is undoubtedly an essential attribute of

fair trial.

INDEPENDENT, IMPARTIAL AND COMPETENT JUDGES

The most vital condition for a fair trial is to have an independent, impartial and competent
judge to conduct the trial. In this respect, the code has made the respective provisions:

(1) Separation of judiciary from the executive –

To ensure independent functioning of the judiciary in criminal matters, the Code has
brought about the separation of the judiciary from the executive. Because of the separation
no judge or Judicial Magistrate would be connected with the prosecution, nor would he be
in direct administration subordination to anyone connected with the prosecution. In a
criminal trial, as the State is prosecuting party, it is of special significance and importance
that the judiciary is freed of all suspicion of executive influence or control, either directly
or indirectly.

(2) Courts to be open-

In the case of Kehar Singh v. State (Delhi Admn.)4 and Mohd. Shahbuddin v. State of
Bihar5, it was held that public trial in an open court acts as a check against judicial caprice
or vagaries and serves as a powerful instrument for creating confidence of public in

1
(1964) 1 Cri LJ 566, 572.
2
AIR 1962 SC 605.
3
Kali Ram v. State of H.P., (1973) 2 SCC 808.
4
(1988) 1 SCC 609.
5
(2004) 13 SCC 565.
fairness, objectivity and impartiality of the administration of criminal justice. The Code
provides the place in which the court is held shall be an open court to which the public
generally may have access. This may be subjected to such reasonable restrictions as the
court may consider necessary.

(3) Judge or Magistrate not to be personally interested in the case.-

‘Nemo debet esse judex in propria causa’ is a legal maxim which means that no man ought
to be a judge in his own cause. This is the primary principle of our law that no man shall
be judge in his own case. This principle has been incorporated in Section 479 of the Code.
According to this section

(a) No judge or Magistrate shall, except with the permission of the higher appellate court,
try or commit for trial any case to or in which he is a party, or personally interested;
and
(b) No judge or Magistrate shall hear an appeal from any judgement or order passed or
made by himself.

The essence of this section is that justice should be so administered as to satisfy a reasonable
person that the court was impartial and unbiased in administrating the justice. An analysis
of this section would show that the Magistrate or judge is disqualified to act as such if:

(i) He is a party to or in the case before him; or

(ii) He is personally interested in the case.

The disqualification can be removed by obtaining the permission of the appellate court.
The judge or Magistrate cannot hear an appeal from any judgement or order passed by him;
and this disqualification cannot be removed by obtaining permission from higher appellate
court. The expression “personal interest” does not mean only private interest; it may well
include official interest also. Also that it is not every interest that would disqualify under
Section 479. In order to disqualify, the interest must be active and not passive. A formal
grant of sanction which is necessary only for the fulfilling a technical statutory requirement
may not amount to “personal interest” within the meaning of Section 479.

(4) Transfer of cases to secure impartial trial-

According to Section 190(1)(c). a Magistrate empowered to take cognizance of an offence

may do so upon his own knowledge about the commission of any such offence. However
 in such a case the accused must be told before any evidence is taken that he is entitled to
have the case tried by another Magistrate.

Secondly, whenever it is made to appear to the High Court that a fair and impartial enquiry
of trial cannot be held in any criminal court subordinate to it, it may, subject to the
conditions laid down in Section 407, order that

a) Any offence be inquired into or tried by any other competent court, or

b) That any particular case or class of cases be transferred from one criminal subordinate
court to any other criminal court of equal or superior jurisdiction.

Power to transfer cases is given to Supreme Court, and the Session Court by the virtue of
Section 406 and 408 can be exercised to secure a fair and impartial trial.

In the case of Zahira Habibullah H. Sheikh v. State of Gujarat6, both the State and a
material witness approached the Supreme Court seeking retrial stating that the trial was not
conducted properly due to witnesses’ turning hostile and the non-cooperation of the public
prosecutor. The Supreme Court ordered for the retrial and also ordered for the transfer of
the case to the State of Maharashtra, although none of the parties plead for the transfer. In
the name of justice the Court transferred the case and it asserted that the transfer can be
ordered on the basis of relief specified as incidental or ancillary to main relief. There was
no need of formal application seeking transfer.

VENUE OF THE TRIAL

Section 177-189 contains the provisions regarding venue, i.e., the place of the enquiry or
trial. If the place of the trial is highly inconvenient to the accused person and causes various
impediments in the preparation of hid defence, the trial at such place would not be
considered as a fair trial.

RIGHTS OF ACCUSED PERSONS AT THE TRIAL

Certain rights have been recognised by the Code with a view to make the trial fair to the
accused person as a fair trial implies that it should be fair, both to the prosecution and the
accused person. Those rights are:

1) Right to know of the accusation-

6
(2004) 4 SCC 158.
In order to enable the accused to make preparation for his defence, the accused is informed
about the accusation against him. The Code provides an unambiguous terms that when an
accused person is brought before the court for trial, the court states him the particular
offences for which he is charged for. In case of serious offences the court is required to
frame in writing a formal charge and then to read and explain the charge to the accused
person.

2) Right of accused to be tried in his presence-

The personal presence of the accused throughout his trial would enable him to understand
properly the case. The requirement of the presence of the accused during his trial can be
implied from the provisions which allow the court to dispense with the personal attendance
of the accused under certain circumstances.

However, Section 317 makes an exception to the above rule and empowers the court to
dispense with the personal attendance of the accused person at his trial under certain
circumstances. If the court is satisfied that the personal attendance of the accused before it
is not necessary in the interest of justice.

3) Evidence to be taken in presence of accused.

Except as otherwise expressly provided (by any such sections like Section 205, 293, 299,
317), all evidences taken in the course of the trial or other proceeding shall be taken in the
presence of the accused, or, when his personal attendance is dispensed with, in the presence
of his pleader.

An accused person if not of sound mind and thus unable to understand the proceeding. In
such case, special provisions have been made in Sections 328-339 to deal with such
situations.

An accused person though not of unsound mind, may be deaf and dumb; may be a foreigner
not knowing the language of the court and no interpreter is available; and if uch accused is
unable to understand or cannot be made to understand the proceedings, there may be a real
difficulty and in such situations it has been provided that the court may proceed with
enquiry or trial; and in case of a court other than a High Court, if such proceedings results
in a conviction, the proceedings shall be forwarded to the High Court with the report of the
circumstances of the case, and the High Court shall pass thereon such order as it thinks fit.
 4) Right to cross-examine prosecution witnesses-

In the case of Sukanraj v, State of Rajasthan7, it was held that a criminal trial which denies
the accused person the right to cross-examine prosecution witnesses is based on weak
foundation, and cannot be considered as a fair trial. So this right becomes a very important
right which cannot be ignored for the administration of justice.

5) Right to produce evidence in defence-

The burden of proof is entirely on the prosecution and though the law does not require the
accused to lead evidence to prove his innocence, yet a criminal trial in which the accused
is not permitted to give evidence to disprove the prosecution case cannot be considered as
just and fair.

6) Right to have reasoned decisions-

In Mukhtiyar Singh v. State of Punjab8, it was decided that “on the plainest requirement
of justice and fair trial the least that is expected of the trial court is to notice, consider and
discuss, however briefly, the evidence of various witnesses as well as arguments addressed
at the bar. The requirement is also applicable to the decisions of the appellate courts.9

7) Doctrine of “autrefois acquit” and “autrefois convict”-

According to this doctrine, a person cannot be tried again if he has been tried and acquitted
or convicted of the same offence or on the same facts for any other offence. This right is
also incorporated in the Article 20(2) of the Constitution of India and is also embodied in
Section 300 of the Code.

ALL PERVASIVE CONCEPT OF FAIR TRIAL

The concept of fair trial has been permeated every corners of the CrPC, 1973. The major
objective of the Code being to provide for fair trial in the administration of criminal justice,
it is but natural that all provisions of the Code are attuned to this goal.

Procedure of trial before the court of session

7
AIR 1967 Raj 267.
8
(1995) 1 SCC 760.
9
Ishvarbhai Fuljibhai Patni v. State of Gujarat, (1995) 1 SCC 178.
This topic only deals with the procedure to be followed by the Court of Session in the cases
coming before it for trial.

A Court of Session cannot directly take cognizance of any offence though it is exclusively
triable by such court. A competent Magistrate may the cognizance of such an offence and
commit the case to the Court of Session for trial. Even in respect of other offences a
Magistrate may commit a case to the Court of Session under the circumstances mentioned
in Sections 322 to 324. All such cases would be tried according to the procedure laid down
in Sections 226 to 236.

In respect of a trial before a Court of Session certain requirements are important. And they
are:

(1) As per Section 225, “in every trial before a Court of Session, the prosecution shall be
conducted by a Public Prosecutor”. Public Prosecutor is a person appointed under
Section 24.
(2) Section 303 confers an important right is given to the accused person to be defended by
a counsel of his choice; and where the accused is not represented by a pleader and where
it appears to the court that the accused has not sufficient means to engage a pleader, the
court shall assign a pleader for his defence at the expense of the State.
(3) Section 207 and 208 require the Magistrate taking cognizance of the offence to aupply
to the accused copies of certain documents like police report, FIR, statements recorded
by police or Magistrate during investigation, etc.

INITIAL STEPS IN TRIAL

(1) Opening case for prosecution-

According to Section 226, when the accuse appear before the court or is brought before the
court in pursuance of commitment of the case under Section 209, the prosecutor shall open
his case by describing the accusation against the accused and stating by what evidence he
proposes to prove the guilt of the accused.

In other words, the public prosecutor should give a brief summary of the evidence and the
particulars of the witnesses by which he proposes to prove the case against the accused
 person. The court cannot acquit the accused on the ground that the prosecution failed to
bring the accused.10

(2) Discharge-

Section 227 state that after considering the record of the case, and after hearing the
submissions of the parties, if the court considers that there is no sufficient ground for the
proceeding against the accused, it shall discharge the accused and record its reasons for so
doing.11

(3) Framing of Charges-

As per Section 228, after considering the record of the case and after hearing the parties, if
the court onsiders that there is ground for presuming that the accused has committed an
offence which

(a) Is not exclusively triable by the Sessions Court, the court may frame a charge against
the accused, and transfer the case for trial to the Chief Judicial Magistrate (CJM) or any
other Judicial Magistrate of the first class and direct the accused to appear before the
CJM or, as the case may be, he Judicial Magistrate of the first class, on such date as he
deems fit and thereupon such Magistrate shall try the offence in accordance with the
procedure for the trial of warrant cases instituted on a police report.
(b) Is exclusively triable by the Sessions Court, that court shall frame in writing a charge
against the accused.

(4) Explaining the charge to the accused-

According to Section 228(2), where the charge has been framed against the accused as
mentioned above, it shall be read and explained to him’ he shall then be asked whether he
pleads guilty of the offence or claims to be tried.

(5) Conviction on plea of guilty-

As per Section 229, if the accused pleads guilty, the court shall record the plea and may, in
its discretion, convict him thereon.

(6) Date for Prosecution evidence-

10
State of Gujarat v. Nareshbhai Haribhai Tandel, 1997 Cri LJ 2783 (Guj).
11
R. S. Nayak v. A. R. Antulay, (1986) 2 SCC 716.
 As per section 230, if the accused refuses to plead or does not plead, or claims to be tried,
or is not convicted under Sectio 229 above, the court shall fix a date for the examination of
witnesses, and may, on the application of the prosecution, issue any process for compelling
the attendance of any witness or the prosecution of any document or other thing.

(7) Evidence for the prosecution-

The following are the steps to be observed while examining witnesses:

(a) Examination of witnesses-

As per Section 231(1) on the date fixed as mentioned above, the court shall proceed to take
all such evidence as may be produced in support of the prosecution.

According to Section 231(2) the court may permit the cross-examination of any witness to
be deferred until any other witness has been examined or recall any witness for further
cross-examination.

It is surely the duty of the prosecution to examine all material witnesses essential for
unfolding the prosecution story, whether in the result the effect of that testimony is for or
against the case for the prosecution.12 However, where there are several persons are present
at the time of occurrence, the prosecution is not bound to call and examine each and every
one of these persons. Likewise, if a witness is won over by the accused and as such is not
likely to state the truth, the prosecution would be justified in not examining such a witness
in court.13

(b) Record of evidence-

The following points are ensured while recording evidence:

(i) As per Section 276(1), the examination of a witness proceeds, his evidence shall be
taken down in writing by the judge himself or by his dictation in open court, or
under his direction and superintendence, by an officer of the court.
(ii) Section 276(2) provides that such evidence shall ordinarily be taken down in the
form of a narrative; however, any part of such evidence may, in the discretion of
the judge, be taken down in the form of question and answer.

12
Habeeb Mohammed v. State of Hyderabad, AIR 1954 SC 51
13
Jodha Koda Rabari v. State of Gujarat, 1992 Cri LJ 3298.
(iii) According to section 277, if the witness gives evidence in the language of the court,
it shall be taken down in that language; if he gives evidence in any other language,
it may, if practicable be taken down in that language, and if it is not practicable to
do so, a true translation of the evidence in the language of the court shall be prepared
as the examination of the witness proceeds.
(iv) As the evidence of each witness is completed, it shall be read over to him in the
presence of the accused, and shall if necessary, be corrected. If the witness denies
the correctness of any part of the evidence, the judge may, instead of correcting the
evidence, make a memorandum thereon of the objection made to it by the witness
and shall add such remarks as he thinks necessary.
(v) If the record of evidence is in a language different from that in which it has been
given and the witness does not understand that language, the record shall be
interpreted to him. – Section 278(2).
(vi) The evidence so taken shall be signed by the judge and shall form part of the record.
Section 276(3).
(vii) When a judge has recorded the evidence of a witness, he shall also record such
remarks (if any) respecting the demeanour of such witness whilst under
examination.
(8) Acquittal of accused after hearing the parties-

As per Section 232, after taking the evidence for the prosecution and examining the
accused, the curt shall hear the parties and then if it considers that there is no evidence that
the accused committed the offence, it shall record an order acquitting the accused person.

(9) Evidence for the defence-

The following points are taken into consideration while examining and recording evidence
for the defence:

(a) Examination of witnesses for the defence-

If the accused is not acquitted, he shall be called upon to enter upon his defence ad adduce
any evidence in support of his defence.

(b) Written statement of the accused –

As per Section 233(2), the accused person may put in a written statement in his defence.
(c) Record of evidence-

The examination of witness and the recording of their evidence shall be done in the same
manner as has been mentioned in case of prosecution witnesses in (7) above.

(10) Arguments-

As per Section 234, after the recording of the defence – evidence, the prosecutor shall sum
up his case and the accused (or his pleader) shall be entitled to reply. Further any law point
is raised by the defence, the prosecution may be allowed to make its submission with regard
to such point of law.

(11) Judgement-

After hearing the arguments, the court shall give a judgement in the case. Provisions
regarding the delivery and the pronouncement of the judgement, its language and content,
various directions regarding the sentence and other post-conviction orders, etc. are all
contained in Sectioned 353-365.

(12) Procedure to follow the order of the conviction-

If the court convicts the accused person, it may release the offender after admonition or on
probation of good conduct in accordance with Section 360 or the provisions of the
Probation of Offenders Act, 1958. If the offender is not so released, the court shall hear
him on the question of sentence and then pass sentence on him according to law.

(13) Procedure in case of previous conviction-

In a case where a previous conviction is charged under Section 211(7) and the accused does
not admit such previous conviction, the curt may, after it has convicted the accused under
Section 229 or Section 235, take evidence in respect of the alleged previous conviction and
shall record a finding thereon. This provision is meant for determining liability of the
accused to enhanced punishment as a consequence of previous conviction.