1

Trials of Warrant and Summon cases

Synopsis

I. Trial before Court of Session

II. Trial of Warrant Cases by Magistrates
A. Cases institute on Police Report
B. Cases instituted otherwise than the Police Report
III. Trial of Summon cases by Magistrates
IV. Summary Trials
‘Trial’ means determination of issues adjudging the guilt or the innocence of the person. The trial
commences only on charges being framed. The trial does not commence on cognizance being
taken.1

Trial of Warrant Cases

According to Section 2 (x) of the Code ‘warrant case’ means that case relating to offence
punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
Warrant cases are triable by the Court of Session and by also by the Magistrates. The Court of
Session is empowered to pass any sentence authorized by law but any sentence of death passed
by any such Judge shall be subject to confirmation by the High Court. (See, Sub Section (2) of
Section 26) While the Chief Judicial Magistrate may pass any sentence authorized by law except
a sentence of death or imprisonment for life or imprisonment for a term not exceeding seven
years, Magistrate First Class and the Second Class may pass a sentence of imprisonment for a
term not exceeding three years or one year respectively. Thus the warrant cases may be tried
either by the Court of Session or by the Magistrate depending upon the quantum of punishment
which may be imposed for the concerned offence. Further, whether the offence is triable
exclusively by the Session or by the Magistrate may be ascertained by referring to appropriate
entry in Column 6 of the Schedule I.

I. Trial before Court of Session

1
Hardeep Singh v. State of Punjab 2014 Cri LJ 1118 (SC)
 2

A Court of Session cannot take the cognizance of an offence directly except in cases of
defamation of high dignitaries and public servants under certain circumstances. By virtue of
Section 26, the High Court has also power to try any offence. Section 474 of the Code provides
that when the offence is tried by the High Court, it shall follow the same procedure as a Court of
Session would observe in trying a case.
1. Pre requites for Session Trial:
A. Committal of Case: (Section 209)
When a case is instituted on Police Report or otherwise, the accused appears or brought before
the Magistrate and it appears to the Magistrate that the case is exclusively triable by the Court of
Session, he shall –
(a) Commit, after complying with the provisions of Section 207 or Section 208, as the case
may be, the case to the Court of Session;
(b) Send to that Court (that is Session Court) the record of the case and the documents and
articles, if any, which are to be produced in evidence; and
(c) Notify the Public Prosecutor of the commitment of the case to the Court of Session.
The nature of proceeding before the Magistrate under this Section is that of inquiry. In State of
UP v. Lakshmi Brahman,2 it was held that the proceeding before the Magistrate from the
submission of the police report till the order of commitment made under Section 209 would be
an inquiry within the meaning of Section 2 (g) of the Code.
In Criminal Procedure Code of 1898 a full-fledged magisterial enquiry was postulated in the
committal proceeding and the prosecution was required to examine all its witnesses at this stage
itself. In 1955, the power of the Magistrate was curtailed by bringing Section 207A in Cr PC,
1898.
The Law Commission of India in its 41st Report recommended for the abolition of committal
proceeding. It observed that:
After a careful consideration we are of the unanimous opinion that committal proceedings
are largely a waste of time and effort and do not contribute appreciably to the efficiency
of trial before the Court of Session. While they are obviously time consuming, they do
not serve any essential purpose. There can be no doubt or dispute as to the desirability of

2
1983 Cri LJ 839 (SC); See also, Chandu Mondal v. State of WB 2010 Cri LJ 3066 (Cak.)
 3

every trial, and more particularly of trial for a grave offence, after the completion of
investigation. Committal proceedings, which only serve to delay this step, do not advance
the cause of justice. The primary object of protecting the innocent accused from the
ordeal of Session trial has not been achieved in practice; and the other main object of
apprising the accused in sufficient detail of the case he has to meet at the trial could be
achieved by other methods without going through any partial and ineffective trial
rehearsal before a Magistrate. We recommend that the committal proceeding be
abolished.
Though the committal proceeding has not been totally abolished but the role of the Magistrate
has been absolutely constricted. The limited jurisdiction conferred on the Magistrate is only to
verify the nature of the offence and thereafter the mandate is “shall commit”. There is nothing in
Section 209 to indicate that the provision is giving any protection to the accused or the
prosecution. In Rattiram v. State of MP 3 where the Special Court tried the case without its
committal, it was held that the non-compliance of committal provision and raising any objection
in that regard after conviction attracts the applicability of the principle of failure of justice and
the appellant accused becomes obliged under the law to satisfy the appellate court that he has
been prejudiced and deprived of fair trial or there has been miscarriage of justice. It would be
totally inapposite and inappropriate to hold that such non compliance vitiates the trial.

There are certain special laws like SC/ST Act, 1989 Commission for Protection of Rights of
Children Act, 2006 where the case is triable by the Special Judge. In such cases, the Magistrate
has to commit the case to Session Court by observing the provisions contained in Section 209 of
the Code. In M. Abdul Aziz v. Circle Inspector of Police, Punalur, 4 the allegation against the
accused was that he rode the motor cycle on public road in rash and negligent manner so as to
endanger human life. He hit a child about three years and the child later succumbed to those
injuries. The charge sheet was laid against the accused under Section 279 and 304A of the IPC.
The Magistrate found that the victim in this case was a child and as such the case was to be tried
by the Children’s Court created under the Commission for Protection of Child Rights Act, 2006

3
2012 Cri LJ 1769 (SC)

4
2102 Cri LJ 1832 (Ker.)
 4

and, therefore, the case was transferred to the Children’ Court. One of the issues before the Court
was whether the case involving violation of children right can be directly filed before the
Principal Session Court constituted under Section 25 of the Act. Section 25 makes it clear that
the Children’s Court shall be a Court of Session. The Act does not prescribe any special
procedure to enable the Court to take cognizance of the offence directly. Since the Children’s
Court is the Court of Session, it cannot take cognizance of the offence directly in view of
inhibition contained in Section 193 of the Code. The Court of Session takes cognizance only
when such case is committed to it. Thus a case which is to be tried by the Children’s Court
cannot be filed before the Children’s Court directly nor can the case be simply transferred by the
Magistrate. The Magistrate has to follow the procedure for committal of a Session case under
Section 207 to 209 of the Code.

The assurance of a fair trial is the first imperative of the dispensation of justice. 5 Conducting a
fair trial is for the benefit of the society as well as the accused. An unfair trial is contrary to the
concept of justice. The denial of fair trial has been regarded as crucification of human right. 6 The
right to fair trial though has not been explicitly provided in the Constitution of India but it has
been recognised as an important aspect of the right to life and personal liberty. 7 Fair trial is a sine
qua non of Article 21 of the Constitution. 8 Fair trial is the heart of criminal jurisprudence and an
important facet of democratic polity that is governed by rule of law. It consists not only in the
technical observance of the frame and form of law, but also in the recognition and just
application of its principles in substance. 9 Though the essential components of fair trial have not
been deciphered with precision but it has also been extended to fair investigation. 10

5
Mrs. Maneka Sanjay Gandhi v. Ms. Rani Jethmalani (1979) 4 SCC 167 per Krishna Iyer, J.

6
Rattiram v. State of M.P. AIR 2012 SC 1485

7
Narinder Singh Arora v. State Government of NCT AIR 2012 SC 1642; Mohd. Hussain@ Julfikar Ali v. State
(Government of NCT), Delhi AIR 2012 SC 750; Madan Lal v. State of Rajasthan 2012 Cri. L.J. 1430 (Raj.); Selvi v.
State of Karnataka AIR 2010 SC 1974; State of Punjab v. Baldev Singh (1999) 6 SCC 172; K. Anbazhagan v.
Superintendent of Police (2004) 3 SCC 767

8
Nahar Singh Yadav v. Union of India AIR 2011 SC 1549

9
Zahira Habibullah Shaikh v. State of Gujrat AIR 2006 SC 1367; Himanshu Singh Sabharwal v. State of M.P. AIR 2008
SC 1943
 5

On several occasions the issue has arisen before the superior courts that whether the trial by the
Court of Session without the case being formally committed to it by the Magistrate stands
vitiated. In other words, it has been argued that the entire trial by the Court of Session was
vitiated as it had commenced and concluded without the committal of the case to the Session’s
Court against the interdiction provided under section 193 of the Code of Criminal Procedure,
1973.11 In this paper an attempt has been made to analyse the approach of the judiciary in this
regard.

The Criminal Procedure Code, 1973 exhaustively lays down the procedure to be followed in the
administration of criminal justice. The Criminal Procedure Code lays down the procedure for
investigation, enquiry and trial. The Code is primarily based on the principle of fairness and aims
at avoiding any arbitrary action on the part of the machinery and men involved in the
dispensation of criminal justice. In A.K. Gopalan case 12, the Supreme Court had observed that
the procedure laid down by the law should be strictly followed. The expression ‘procedure
established by law’ in Article 21 of the Constitution means procedure prescribed by the law of
the State. These words are taken to refer to procedure which has a statutory origin. 13

Though under certain circumstances the Court of Session has power to take cognizance as a
court of original jurisdiction14 but the general rule is that it has no power to take the cognizance
of any offence as a court of original jurisdiction unless the case was committed to it by a
Magistrate.15 There are certain circumstances under the Criminal Procedure Code, 1973 where
the trial is to be exclusively conducted by the Court of Session and in such cases the Magistrate

10
Nirmal Singh Kahlo v. State of Punjab AIR 2009 SC 904

11
Section 193 reads: Except as otherwise expressly provided by this Code or by any other law for the timer being in
force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has
been committed to it by a Magistrate under this Code.

12
A.K. Gopalan v. State of Madras AIR 1950 SC 27

13
Id. Kania, CJ at 39, Patanjali Shastri at 72, Mukherjea, J. at 103 and Das, J. at 115

14
See, Section 199 Criminal Procedure Code, 1973

15
Section 193 of the Criminal Procedure Code, 1973
 6

is not empowered to try the case and thus he commits the case to the Court of Session under
Section 209 of the Code after complying with the requirements of section 207 or 208, as the case
may be.

With a view to prevent the commission of offences of atrocities against the members of the
Scheduled Castes and the Scheduled Tribes and Special Courts for the trial of such offences, the
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted. Section
14 of this Act makes a provision for the creation of Special Courts by the State Government in
consultation with the Chief Justice of the High Court. Further, it is also specified that a Court of
Session shall be the Special Court to try the offences committed under the Act. In several cases it
has been decided that the Special Court created under section 14 of the SC/ST (Prevention of
Atrocities) Act, 1989 is a Court of Session and it can take cognizance of the offence when the
case is committed to it by the Magistrate in accordance with the provisions of the Criminal
Procedure Code.16

Two Views of Justice Thomas:

Two views of Mr. Justice K.T. Thomas on this issue are discernable. While in Gangula Ashok v.
State of Andhra Pradesh17, he delivered the judgment with Shah, J., and in State of M.P. v.
Bhooraji with Balkrishnan, J.18 A brief discussion on both the views are desirable.

First View:

In Gangula Ashok case19, the appellant was a practicing lawyer and the second appellant was his
wife working as Matron in a Girl’s Hostel run by the Social Welfare Department. A complaint
against them was lodged with the police by a girl who was a resident of the said hostel. It was
alleged that the appellant outraged or attempted to outrage the modesty of the complainant girl.

16
Vidyadharan v. State of Kerala AIR 2004 SC 536; Moly v. State of A.P. AIR 2004 SC 1890; M.A. Kuttappa v E.
Krishna Nayanar AIR 2004 SC 2825; Bhooraji v. State of M.P. AIR 2001 SC 3372

17
AIR 2000 SC 740. The judgment was delivered on January 28, 2000.

18
AIR 2001 SC 3372; 2001 Cri LJ 3372 (SC) The judgment was delivered on August 24, 2001.

19
Supra
 7

The police, after investigation, filed a charge sheet directly before the Court of Session which
was designated as the Special Court for the trial of offences under Section 14 of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. While the first appellant was
charged under Section 3(1)(xi) of the SC/ST Act (which was later on dropped by the police in its
revised charge sheet) as well as in Section 354 of the Penal Code, the second appellant was
charged under Section 201 of the Penal Code. The Special Court framed the charges against the
appellants and at this stage the appellant moved to the High Court for quashing the charge and
charge sheet. A single judge of the High Court found that the procedure of filing the charge sheet
straightway to the Special court was not in accordance with the provisions of law. The Special
Judge had no jurisdiction to take cognizance of any offence under the SC/ST Act without the
case having been committed to it. The High Court thus setting aside the proceedings of the
Special Court directed it to return the charge sheet and other related papers to the concerned
police officer who in turn was directed to present the same before the Judicial Magistrate First
Class, who is competent to take the cognizance, for the purpose of committal to the Special
Court.

The appellant, however, aggrieved by certain directions of the High Court moved a special leave
petition before the Supreme Court. One of the issues before the Supreme Court was whether the
Special Judge could have taken the cognizance of the offence straightway without the case being
committed to him. The Court took the view that the Special Court was essentially a Court of
Session and the order of the High Court setting aside the proceedings before the Special judge
was held to be right. Thomas, J. observed that:

“…it (Special Court)20 can take cognizance of the offence when the case was committed
to it by the magistrate in accordance with the provisions of the Code. In other words, a
charge sheet cannot straightway be laid before Special Court under the Act.”21

Prior to Gangula Ashok case, various High Courts were confronted with the same issue and the
High Courts of Allahabad,22 Madhya Pradesh, 23 Patna24 and Punjab & Haryana25 had adopted the

20
Parenthesis is mine.

21
Supra note 13 at 743
 8

same view which the Supreme Court subsequently approved in Gangula Ashok case26. However,
the Kerala High Court in re Director General of Prosecution 27 took a contrary view that the
Special Court can straightway take the cognizance of the offence under the SC/ST Act and can
proceed with the trial remaining unaffected by the prohibition laid down in Section 193 of the
Criminal Procedure Code. The Full Bench of Kerala High Court in Hareendra v. Sarada, 28
reiterated the view taken in Director General of Prosecution case 29 on two grounds. First, that
Section 20 of the SC/ST Act, 1989 stipulates that the provisions of the Act shall have overriding
effect in view of the expression ‘notwithstanding anything inconsistent contained in any law for
the time being in force’. Secondly, there was nothing in the SC/ST Act to indicate that the
Special Court would get the jurisdiction only on the committal order made by the Magistrate. In
other words, the Full Bench of the Kerala High Court was of the view that there should be a
specific indication in the legislation indicating that the Special Court would get the jurisdiction to
try the case only on the committal order and in absence of such specific indication the Special
Court must have the right to take cognizance as if it were the court of original jurisdiction. On
these grounds, the Full Bench observed that ‘it was difficult to hold that the committal
proceeding was indispensable as a prelude to the case being tried by the Special Court.’

It may be submitted that the SC/ST Act was enacted with a view to prevent commission of
atrocities against the members of the Scheduled Castes and Tribes but as it does not lay down the
specific procedure of investigation, enquiry and trial of offences committed under the Act and

22
Pappu Singh v. State of U.P. 1995 Cri LJ 2803 (All)

23
Meerabai v. Bhujbal Singh 1995 Cri LJ 2376 (M.P.) However, a contrary view was taken by the Full Bench in
Anand Swaroop v. Ram Ratan 1996 MPLJ 141 that Section 193 of the Criminal Procedure Code does not apply to
the proceedings of SC/ST Act and thus committal order is not required.

24
Jhagru Mahto v. State of Bihar 1993 Cri LJ 643 (Pat)

25
Jyoti Arora v. State of Haryana 1998 Cri LJ 2662 (P. & H.)

26
Supra

27
1993 Cri LJ 760 (Ker)

28
(1995) 1 Ker LT 231

29
Supra
 9

thus the general rules of procedure is applicable unless otherwise is provided in the legislation.30
31
The Supreme Court in Gangula Ashok case rejected the view of Full Bench of Kerala High
Court and held that the interdict of section 193 of the Criminal Procedure Code cannot be
circumvented unless there were express provisions removing such interdiction. 32 Thus, Gangula
Ashok case made it clear that committal by a magistrate was an important step and due to its non
– observance the Special Court could not jurisdiction to try the case under the SC/ST Act.

Second View:

Later on Thomas, J. however, deviated from his view expressed in Gangula Ashok case 33 on the
ground of expediency and unnecessary insistence on retrial will adversely affect the persons
involved in trial. In State of M.P. v. Bhooraji, 34 the police after the investigation submitted
charge sheet indicting several persons for various offences including Section 302/149 of the
Penal Code and Section 3 (2) of the SC/ST Act. The case started before the Additional Session
Court which was specified as the Special Court under Section 14 of the SC/ST Act. The Court
framed charges against all the accused and proceeded with the trial which continued for almost
five years. All the accused were convicted and sentence including life imprisonment was
imposed. The accused preferred an appeal before the High Court and during the pendency of
appeal the Supreme Court decided Gangula Ashok case.

30
The Division Bench of the Andhra Pradesh High Court in State of A.P. v. Shekar Nair 1999 Cri LJ 4173 (A.P.) did
not approve the view of Kerala High Court on the ground that in absence of a particular procedure provided in the
SC/ST Act as regarding the mode of taking cognizance, enquiry and trial, the procedure under the Criminal
Procedure Code shall be followed in view of the judgment of the Supreme Court in Enforcement Directorate v.
Deepak Mahajan AIR 1994 SC 1775

31
Supra

32
For example, there is a provision under Section 36 – A sub – section (1) (d) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 that notwithstanding anything contained in the Criminal Procedure Code, 1973
a Special Court may, upon the perusal of police report of the fact constituting offence under this Act or upon
complaint made by the officer of the Central Government or a State Government authorised in this behalf, take
cognizance of that offence without the accused being committed to it for trial. Similar provision exists under
Section 5(1) of the Prevention of Corruption Act, 1988.

33
Supra

34
AIR 2001 SC 3372
 10

It is relevant to mention that when the appeal was preferred the law applicable in such situation
in the State of Madhya Pradesh decided by the Division Bench in Meerbai v. Bhujbal Singh 35
was applicable and subsequently the Full Bench of Madhya Pradesh High Court in Anand
Swaroop v. Ram Ratan36 took a contrary view but the Supreme Court’s judgment in Gangula
Ashok eclipsed the effect of Anand Swaroop case and revived the opinion of Meerabai v.
Bhujbal Singh37. The convicted persons with a view to take the advantage of the pronouncement
made in Gangula Ashok case filed an appeal before the High Court for quashing the trial
proceedings on the ground that the said trial was without jurisdiction. It was contended that the
specified Special Court did not acquire jurisdiction to take cognizance in absence of its being
committed by a magistrate. The High Court accepted the contention of the appellants and
ordered the Special Court to return the charge sheet and connected papers to the prosecution for
the re-submission to the magistrate for further proceeding in accordance with law. In this
backdrop, the State of Madhya Pradesh filed the appeal by Special leave in Bhooraji case. The
issue before the Supreme Court was whether the High Court should have necessarily quashed the
trial proceeding and to repeat the trial process in view of the non - observance of trial procedure.
In this case, Thomas J. opined that ‘a de novo trial should be the last resort and that too only
when such a course becomes necessarily indispensable. It should be limited only to extreme
exigency to avert failure of justice. 38

In Bhooraji case39, the Court compared the role of the magistrate under the Criminal Procedure
Code, 1973 with that of the 1898 Code. The Court pointed out there was difference between the
old Code and the new one. The committal court under 1898 Code could examine, in the police
charge sheeted cases, material witnesses and such records which were required to be sent the
Court of Session along with the committal order but under 1973 Code the committal court, in

35
Supra

36
Id.

37
Id.

38
Supra note 14 at 3375
39
Supra
 11

police charge sheeted cases, cannot examine any witness at all. The magistrate in such case is to
commit the case involving offences exclusively triable by the Court of Session.

The Supreme Court also pointed out that in case where the magistrate has not committed the case
and the Court has concluded or started the trial of the case, there was nothing in the Code to
affect the competence of the court in view of Section 465 of the Criminal Procedure Code, 1973.
Thomas, J. observed:

…such a court will not be denuded of its competence to try the case on account of any
procedural lapse and the competence would remaining unaffected by non - compliance of
procedural requirement. The inability to take cognizance of an offence without a
committal order does not mean that a duly constituted court becomes an incompetent
court for all purposes. 40

Justice Thomas tried to distinguish Bhooraji41 case with that of Gangula Ashok42 merely on the
ground that the objection on the issue of committal should have been raised at the earliest
occasion43 and not after the conclusion of trial unless it occasioned failure of justice. It may be
submitted that despite the observation of the Law Commission of India in its 41 st Report
regarding the futility of committal provision in the Code, the provision of committal has been
retained and so long as this provision exists it is the procedure of law and it should be complied
with strictly. It is the rule of interpretation that the criminal statutes – substantive and processual
both must be interpreted strictly. The statutes dealing with the procedure if it relates to infliction
of penalties are to be strictly construed. The compliance with the procedural provisions will be
stringently exacted from those proceeding against the person liable to be penalized and if there is
any ambiguity or doubt it will be resolved in his favour. This is so even if it may enable him to
escape due to technicality. 44 The pre- trial procedure thus cannot be brushed aside on the sheer

40
Supra note 14 at 3378
41
Supra
42
Supra
43
Section 465 (2) of the Criminal Procedure Code, 1973
44
See, Maxwell on Interpretation of Statutes (1976, 12th Ed.) at 245
 12

ground of expediency. The doctrine of factum valet is alien to the criminal justice system. The
committal procedure is one of the aspects of fair trial, which has been regarded as a right under
Article 21 of the Constitution, and when this necessary procedure has not been observed it may
affect the outcome of the trial. The non - observance of trial procedure goes against the tenets of
fair trial. Moreover, it is for the court to ensure that the trial is being conducted in a fair
manner.45

On three subsequent occasions, namely, in Vidyadharan v. State of Kerala 46, Moly v. State of
Kerala47, and M.A. Kutappan48 the Supreme Court got the opportunity to decide the same issue
whether the non - committal of case to the Special Court vitiated the trial. The judgment in these
cases was delivered by Mr. Justice Arjit Pasayat and Mr. Justice Doraiswamy. In Vidyadharan
case49, the appellant faced trial for offences under the Indian Penal Code and the SC/ST Act. He
was convicted and sentenced. An appeal before the High Court could not bring him any relief
and ultimately the matter reached to the Supreme Court. The vital issue was again whether the
Special Judge could take the cognizance straightway without the case being committed to him. If
the Special Court is the Court of Session, the interdict contained in Section 193 would stand in
the way. Pasayat, J. referring to Gangula Ashok case held that the Special Court under the SC/ST
Act is essentially a Court of Session and it can take the cognizance of the offence when the case
is committed to it by the magistrate in accordance with the provisions of law. The Charge sheet
or complaint cannot be laid down straightway to the Special Court. In the case in hand, the court
pointed out, acted as one of the original jurisdiction and the requirements of Section 193
Criminal Procedure Code were not met. Pasayat, J. observed:

Neither the Code nor in the Act is there any provision whatsoever, not even by
implication, that the specified court of session (Special Court) can take cognizance of the

45
Himanshu Singh Sabharwal v. State of M.P. AIR 2008 SC 1943

46
AIR 2004 SC 536 Pasayat and Doraiswamy Raju, JJ.

47
AIR 2004 SC 1890 Pasayat and Doraiswamy Raju, JJ.

48
AIR 2004 SC 2825 Pasayat and Doraiswamy, JJ.

49
Supra
 13

offence under the Act as a court of original jurisdiction without the case being committed
to it by a magistrate. If that be so, there is no reason to think that the charge sheet or a
complaint can straightway be filed before such Special Court for offences under the
Act.50

The court observed further,

It can be discerned from the hierarchical setting of the criminal courts that the Court of
Session is given a superior and special status. Hence we think that the legislature would
have thoughtfully relieved the Court of Session from the work of performing all the
preliminary formalities which magistrate have to do until the case is committed to the
Court of Session. 51

Similarly, in Moly case52, a suo moto complaint was entertained and registered by the trial court
against the appellants. They faced trial for commission of offences punishable under various
provisions of the Indian Penal Code and under Section 3(1)(iii), 3(1)(iv) and 3(1)(x) of the
SC/ST Act. The trial court found them guilty and imposed sentence. Appeal was filed before the
High Court but it was dismissed. Thereupon, the matter went before the Supreme Court on the
ground that the trial court could not have suo moto entertained and registered the complaint as a
court of session. The Supreme Court reiterated the view taken in Gangula Ashok 53 and observed
that ‘the court of session in the case in hand undisputedly has acted as the court of original
jurisdiction and the requirement of Section 193 of the Criminal Procedure were not met.’ 54

On this issue again the matter reached to the Supreme Court in Rattiram v. State of M.P. through
Inspector of Police.55 The Supreme Court approved the view taken in Bhoorji case 56 and

50
Supra note 42 at 540

51
Ibid

52
Supra note 43

53
Supra

54
Supra note 43 at 1893

55
AIR 2012 SC 1485 with Satyanarayan v. State of M.P. The Bench comprised Bhandari, Thakur and Misra, JJ.
 14

Vidyadharan57 and Moly58 cases were held to be per incurium.59 The Supreme Court insisted that
unless the non - observance of procedural requirement resulted into failure of justice, the
proceeding in those cases where the Special Court took cognizance without the case being
committed to it by the magistrate should not be resorted to and it observed:

While emphasising the principle of ‘fair trial’ and the practice of the same in the course
of trial, it is obligatory on the part of the Courts to see whether in an individual case or
category of cases, because of non-compliance of a certain provision, reversion of
judgment of conviction is inevitable or it is dependent on arriving at an indubitable
conclusion that substantial injustice has in fact occurred. The seminal issue is whether
protection given to the accused under the law has been jeopardised as a consequence of
which there has been failure of justice or causation of any prejudice. 60

The Supreme Court in this case also emphasised upon the restricted role of the magistrate at the
stage of commitment under the present Criminal Procedure Code which is distinct from that of
the old Code of 1898. The non-compliance of committal procedure and raising of any objection
in that regard after conviction attracts the application of the principle of ‘failure of justice’ and
the convict must establish before the appellate court that he was prejudiced and deprived of fair
trial. The Supreme Court observed:

“The concept of fair trial and the conception of miscarriage of justice are not in the realm of
abstraction. They do not operate in a vacuum. They are to be concretely established on the
bedrock of the facts and not to be deduced from procedural lapse or an interdict like commitment
as enshrined under section 193 of the Code for taking cognizance under the Act. It should be a

56
Supra

57
Supra

58
Supra

59
Jus ignotantium, that is, carelessness.

60
Supra note 51 at 1495
 15

manifestation of reflectible and visible reality but not a routine matter which has roots in
appearance sans any reality.”61

On the aforesaid ground, the Supreme Court arrived at the conclusion that in the case in hand it
was impossible to conceive of any failure of justice, causation of prejudice or miscarriage of
justice consequent upon the non - observance of committal procedure. It may be submitted that
fairness in the administration of justice includes both the form and substance and the emphasis
on substance, ignoring the form may affect the confidence of society in the judicial system and
thus there is a need to synchronize form and substance both.

The Criminal Procedure Code seeks to administer criminal justice with fairness. Despite of the
limited role to be played by the magistrate and also the dis-satisfaction of the Law Commission
as to the requirement of committal procedure in cases exclusively triable by the Court of Session,
the legislature retained this provision in the Code. The substantive rights may be brought to
naught by ignoring the procedural laws. As the fair trial includes the application of both the
substance and the form of law, the procedural law as well should be construed strictly. Such an
approach will also make the society to feel that the courts strictly comply with the procedural
laws. The right to life and personal liberty cannot be assured without following the procedure of
committal.

Committal proceeding is neither inquiry nor trial. Committal is only a pre trial stage intended to
put the process into motion. This stage cannot be said to be a judicial step in the true sense for it
requires only application of mind rather than a judicial application of mind. 62

B. Supply to the Accused of Copy of Police Report and other Documents:

Section 207 provides for supply of copy of Police Report and other documents to the accused so
that he may know about the allegation leveled against him. In any case where the proceeding has
been institute on a Police Report, the Magistrate shall without delay furnish to the accused, free
of cost, a copy of the following –
(i) The Police Report
61
AIR 2012 SC 1485 at 1500

62
Hardeep Singh v. State of Punjab 2014 Cri LJ 1118 (SC)
 16

(ii) The First Information Report recorded under Section 154;

(iii)The Statement recorded under sub Section (3) of Section 161 of all persons whom the
prosecution proposes to examine as its witnesses;
(iv) The confession and statements, if any, recorded under Section 164
(v) Any other document or relevant extract thereof forwarded to the Magistrate with the
Police Report under Sub Section 5 of Section 173. But where the Magistrate is
satisfied that any document is voluminous, he shall, instead of providing the copy,
direct that the accused will be allowed to inspect it either personally or though pleader
in the Court.
In Pramod Kumar Sharma v. State of UP,63 it was held that before framing the charge or charges
against the accused compliance of Section 207 Cr PC is mandatory and its non-compliance may
result in causing prejudice to the accused. The purpose behind furnishing the documents and
statements of witnesses to the accused at the commencement of trial is to provide an opportunity
to the accused to know the evidence and the material being relied in support of the charges and to
meet those evidence and statements and set up a proper defence. In case of non-compliance of
Section 207 of the Code, the accused may not be able to defend the charge ors or to contend that
no charge is made out against him. The provision is mandatory in nature. However, there may be
a departure in a case where the statements of the witnesses or documents submitted in support of
the charge sheet are voluminous and preparation of copies thereof is not possible. In that
situation the accused may be permitted to inspect the record. Therefore, framing of the charge
against the accused without the compliance of Section 207 of the Code would be improper.
The supply of documents and statements prepared at the investigating stage as mandated
under Section 207 of the Code cannot be treated as mere superfluity or empty formality. This
provision has been enacted by the Legislature with a definite object. In the matter of Gopal
Pramanik,64 where the Magistrate rejected the prayer of the revisionist to supply of copies of
documents covered by the seizure list and the order of the Magistrate was challenged on the
ground that unless copies of those documents are provided, he would not be in a position to

63
2011 Cri LJ 1088 (All.)

64
2010 Cri KJ 4470 (Cal.)
 17

cross examine the prosecution witnesses effectively and the interest would be seriously
prejudices and non supply of document is in breach of Section 2017 of the Code. The High
Court held that:
(i) The accused could not be refused supply of some of the documents, if relied upon by the
prosecution, even at the stage of trial for the simple reason that it would be
tantamount to denial of a valuable statutory right of the accused in a criminal trial;
(ii) The whole purpose of Section 207 is to give adequate notice to the accused of the
material to be used against him during trial and the Magistrate should exercise
abundant care and utmost caution to avoid unpalatable situation of causing prejudice
to the accused;
(iii)An omission to comply with the mandatory provisions of law as enshrined in Section 207
bound to cause serious prejudice to the accused and such a situation may even vitiate
the criminal trial.
It is the duty of the Magistrate that in cases in which the offence is exclusively triable by the
Court of Sessions, without delay furnish to the accused free of cost, a copy of all statements
recorded under Section 161 Cr PC.65
2. Parties:
Section 301 of the Code provides for the appearance of Public Prosecutors. It says that the Public
Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any
written authority before any Court in which that case is under inquiry, trial or appeal. Section
225 of the Code says that in every trial before the Court of Session shall be conducted by the
Public Prosecutor.
On the other hand, Section 303 makes the provision for the right of person against whom
proceedings are initiated to defend. It says that any person accused of an offence before a
Criminal Court, or against whom proceedings are instituted under this Code, may of right be
defended by a pleader of his choice. This gives the right to the accused to be defended by a
pleader of his choice. However, there may be a situation where the accused may not afford to
take the services of a pleader; under such a situation Section 304 makes provision for legal aid at
State expense. It is provided that where in a trial before the Court of Session the accused is not

65
Ramprasad v. State of MP 2012 Cri LJ 360 (MP)
 18

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.
The Rowlatt Act, 1919 prohibited counsels to appear for the accused. On the introduction of
Rowlat Bill in the Imperial Legislative Council, Sirinivasa Sastri spoke:
When Government undertakes a repressive policy, the innocent are not safe. Men like me
would not be considered innocent. The innocent then is he who forswears politics, who takes
no part in the public movements of the times, who retires into his house, mumbles his
prayers, pays his taxes, and salaams all the government officials all round. The man who
interferes in politics, the man who goes about collecting money for any public purpose, the
man who addresses a public meeting, then becomes a suspect. I am always on the borderland
and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession,
in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It
will hurt good as well as the bad and there will be such a lowering of public spirit, there will
be such a lowering of political tone in the country, that all your talk of responsible
government will be mere mockery… Much better that a few rascals should walk abroad than
that the honest man should be obliged for fear of the law of the land to remain shut up in his
house, to refrain from the activities which it is in his nature to indulge in, to abstain from all
political and public work merely because there is a dreadful law in the land.
Mr. Justice Hugo Black of the US Supreme Court in Gideon v. Wainwright (1963) while
delivering the unanimous judgment of the Court had observed that the “Lawyers in criminal
courts are necessities, not luxuries.” Similarly, Mr. Justice Stewart in Brewer v. William (1977)
observed:
The pressures on State executive and judicial officers charged with the administration of
criminal law are great. But it is precisely the predictability of those pressures that makes
imperative a resolute loyalty to the guarantees that the Constitution extends to us all.
Article 22 (1) says that no person shall be denied the right to consult, and to be defended by, a
legal practitioner of his choice. Seervai, an eminent jurist of India, in his book “Constitutional
Law of India” has observed:
 19

The right of a person accused of an offence, or against whom any criminal proceedings were
taken under the Criminal Procedure Code is a valuable right which was recognized by
Section 340 (old Cr PC) Article 22 (1) on its language makes that right a constitutional right,
and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial
construction…. It is submitted that Article 22 (1) makes the statutory right a Constitutional
right in respect of criminal or quasi criminal proceedings.
A criminal case should not be decided against the accused in absence of a counsel. The US
Supreme Court in Powell v. Alabama (1932) observed:
What, then, does a hearing include? Historically and in practice, in our own country at
least, it has always included the right to the aid of counsel when desired and provided to
the party asserting the right. The right to be heard in many cases is, of little avail if it did
not comprehend the right to be heard by counsel. Even the intelligent and educated
layman has small and sometimes no skill in the science of law. If charge with crime, he is
incapable, generally, of determining for himself whether the indictment is good or bad.
He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put
on trial without a proper charge, and convicted upon the incompetent evidence, or
evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defence, even though he has a perfect one. He
acquires the guiding hands of the counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not
know how to establish his innocence. If that be true of man of intelligence, how much
more true is it of ignorant and illiterate, or those of feeble intellect. If in any case, civil or
criminal, a State or a Federal Court were arbitrarily to refuse to hear a party by counsel,
employed by and appearing for him, it reasonably may not be doubted that such a refusal
would be denial of a hearing, and, therefore, of the due process in the constitutional
sense.
In Mr. Sukur Ali v. State of Assam, 66 the Gauhati c High Court had upheld the conviction of the
accused in the absence of the counsel for the appellant accused. The appellant had earlier

66
2011 Cri LJ 1690 (SC); See also, AS Mohammad Rafi v. State of Tamilnadu AIR 2011 SC 308, Man Singh v. State of
MP AIR 2008 (Supp) 593, Bapu Limbaji Kamble v State of Maharashtra (2005) 11 SCC 413
 20

engaged Mr Choudhary as his counsel but subsequently changed and appointed Mr. Sinha as his
counsel in 2007. The cause list, unfortunately, did not show the name of Mr. Sinha while that of
Mr. Choudhary was shown in the cause list. Under such circumstances, Mr. Sinha could not
appear and the appeal was decided against the accused. The question before the Supreme Court
was whether in a criminal case if the counsel for accused does not appear, for whatever reason,
the case should be decided in the absence of the counsel against the accused. The Supreme Court
allowing the appeal, observed:
That even assuming that the counsel for the accused does not appear because of the counsel’s
negligence or deliberately, even then the Court should not decide a criminal case against the
accuse in the absence of the counsel since an accused in criminal case should not suffer for
the default of his counsel and in such a situation the Court should appoint another counsel as
amicus curiae to defend the accused. This is because liberty of a person is the most important
feature of our Constitution. Article 21 which guarantees protection of life and personal
liberty is the most important fundamental right of the fundamental rights guaranteed by the
Constitution. Article 21 can be said to be ‘heart and soul’ of the fundamental rights.67
Further,
It is not fair or just that a criminal case should be decided against an accused in absence of a
counsel. It is only a lawyer who is conversant with law who can properly defend an accused
in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or
appeal/revision) is decided against the accused in the absence of a counsel, there will be
violation of Article 21 of the Constitution. 68
3. Opening Case: (S. 226)
The Public Prosecutor shall open the case for prosecution. Section 226 of the Code provides that
when the accused is brought or produced before the Court in pursuance of the commitment of the
case, the Prosecutor shall open his case by describing the charge brought against the accused and
stating by what evidence he (PP) proposes to prove the guilt of the accused.

67
Id. at 1691

68
Id at 1692
 21

4. Discharge of Accused: (Section 227)

Section 227 provides that if, upon consideration of records of the case 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 reason for so doing.

The determination of the issue whether the trial court at the time of framing the charge has the
power to receive the material filed by the accused has recently drawn the attention and attempt
has been made to evaluate the effect of providing the opportunity to the accused to adduce
material at this stage of trial.

The Supreme Court of India was consistent in its view that at the time of framing charge the trial
court can consider only such materials that were placed before it by the investigating agency and
at this stage the defence (accused) could only be heard but has no opportunity to produce
evidence for consideration of the court.69 But it was the case of Satish Mehra v. Delhi
Administration70 where the Supreme Court observed that if the accused were able to produce any
reliable material at the stage of taking cognizance or framing of charge which might fatally affect
the very sustainability of the case, it is unjust to suggest that no such material should be looked
into by the court at that stage. The trial court would be well within its power to consider even
material which the accused may produce at the stage contemplated in Section 227 of the
Criminal Procedure Code, 1973. In this back drop, an attempt has been made here to analyze the
approach of the Supreme Court.

There are two provisions under the Criminal Procedure Code, 1973 which deal with discharge of
accused. While Section 227 provides for discharge of accused in trial before the Sessions Court,
Section 239 deals with discharge in trial of warrant cases by Magistrate. 71 The provisions of

69
State of Bihar v. Ramesh Kumar Singh AIR 1977 SC 2018; Superintendent & Legal Remembrancer of Legal Affairs,
West Bengal v. Anil Kumar Bhunja AIR 1980 SC 52; State of Maharastra v. Priya Sharan Maharaj AIR 1997 SC 2041;
State of M.P. v. S.B. Johari AIR 2000 SC 665; State of Delhi v. Gyan Devi AIR 2001 SC 40

70
(1996) 9 SCC 766

71
226. Discharge – If, upon consideration of the record of the case 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
 22

Sections 227 and 239 of the Criminal Procedure Code, 1973 are beneficent in nature so as to
save the accused from prolonged harassment which is a necessary concomitant of a protracted
trial. 72

The Supreme Court in Minakshi Bala v. Sudhir Kumar73explained the scope and ambit of
Section 239 and 240 of the Criminal Procedure Code, 1973. The court observed:

The Magistrate is first required to consider the police report and the documents sent with it under
Section 173 Cr PC and examine the accused, if he thinks necessary, and give an opportunity to
the prosecution and the accused of being heard. If on such consideration, examination and
hearing, the Magistrate finds the charge groundless he has to discharge the accused in terms of
Section 239 Cr PC; conversely, if he finds there is ground for presuming that the accused has
committed an offence triable by him he has to frame the charge in terms of Section 240 Cr PC. 74
In Satish Mehra case,75 the relation between the appellant husband and the respondent wife were
not cordial and the wife with a view to put pressure upon the appellant so that he could not claim
over bank account fastened him for the offences under section 354, 376/511 and 498-A of the
Indian Penal Code by lodging an FIR. It was contended by the respondent wife that her husband,
inter alia, had sexually assaulted his own daughter. The appellant wanted to adduce certain
material at the stage of discharge but the same was denied and the High Court did not give him
any relief on this issue. Then the appellant filed an appeal by special leave. On the issue whether
or not the accused could adduce material at the time of discharge, the Supreme Court observed:

not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for
so doing.

239. When accused shall be discharged – If, upon considering the police report and the documents sent with it
under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and
after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused, and record the reason for doing so.

72
See, Kewal Krishna v. Suraj Bhan 1980 Cri LJ 1271 (SC)

73
(1994) 4 SCC 142

74
Id at 144

75
Satish Mehra v. Delhi Administration (1996) 9 SCC 766 Supra note 3
 23

If the accused succeeds in producing any reliable material at that stage which might
fatally affect even the very sustainability of the case, it is unjust to suggest that no such
material shall be looked into by the court at that stage. Here the “ground” may be any
valid ground including insufficiency of evidence to prove charge. 76
Thomas, J. explaining the object of the provision of section 227 of the Criminal Procedure Code,
1973 observed:

The object of providing such an opportunity as is envisaged in section 227 of the Code is
to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the
case ends there it gains a lot of time of the Court and saves such human efforts and cost.
If the material produced by the accused even at that early stage would clinch the issue,
why the Court should shut it out saying that such documents need to be produced only
after wasting a lot more time in the name of trial proceedings. 77
Further,

When the judge is fairly certain that there is no prospect of the case ending in conviction
the valuable time of the Court should not be wasted by holding a trial only for the
purpose of formally completing the procedure to pronounce the conclusion on a future
date . . . If the Sessions Judge is almost certain that the trial would only be an exercise in
futility or a sheer waste of time it is advisable to truncate to snip the proceedings at the
stage of Section 227 of the Code itself. 78
In State Anti Corruption Bureau v. P. Suryaprakasan 79, a case under Section 5 (2) of the
Prevention of Corruption Act, 1947 was registered against the respondent and on completion of
investigation the charge sheet was submitted after obtaining sanction from the government. The
Special Judge took the cognizance and issued process. The respondent filed an application
seeking discharge under Section 239 of the Criminal Procedure Code, 1973 on the ground, inter
alia, that government did not consider the explanation and the said application was rejected by
the Special Judge. The respondent thereupon moved a revision petition before the High Court
and allowing the revision, the High Court quashed the proceeding against the respondent. The
High Court observed that while framing charges, the court should apply its mind and consider

76
Id at 771 per K. T. Thomas and M. M. Punchhi, JJ.

77
Ibid.

78
Ibid.

79
(1999) SCC (Cri) 373
 24

the entire materials not only produced by the prosecution but also the explanation and materials
produced by the accused. But in this case, the lower court has utterly failed to do so, the High
Court pointed out.

The appellant thereupon filed a special leave petition against the order of the High Court.
Reversing the order of the High Court, the Supreme Court held that at the time of framing the
charge, the trial court is required to and can only consider the police report referred to in section
173 of the Code and the documents sent with it. The court emphasised that only right which the
accused has at this stage is only the right of being heard and nothing beyond that. In other words,
at the stage of framing of charge hearing the submissions of the accused has to be confined to the
material produced by the police.80

The matter came up again before a bench comprising three judges in State of Orissa v. Debendra
Nath Padhi81 where it was held that at the time of framing of charge or taking cognizance the
accused has no right to produce any material and the Satish Mehta case holding that the trial
court has power to consider even materials which the accused may produce at the stage of
Section 227 of the Code was not correctly decided. In this case, on behalf of the State it was
argued that the observation made in Satish Mehta case run counter to the view expressed by the
Supreme Court in large number of decisions given over a period of time and it amounted to
unsettling well settled legal proposition and would, ultimately, result in conducting a mini trial at
the stage of framing of charge or taking cognizance. It was contended that the view taken in
Satish Mehta case would not only be contrary to the object and scheme of the Code but would
result in total wastage of the court time because of conducting two trials; first at the stage of
framing charge and the other after the charge is framed. Thus, the true construction of Section
227 according to the State was that only the material sent by the prosecution along with the
records of the case and the documents sent with it may be considered by the trial court at the
time of framing of the charge and consequently the accused has no right to place any material
before the trial court at this stage.

80
Id at 375 per M. K. Mukherjee and S. P. Kurdukar, JJ.

81
AIR 2005 SC 359 Bench comprised Sabharwal, Dharmadhikari and Tarun Chatterjee, JJ
 25

On behalf of the accused, on other hand, it was argued that the procedure which deprives the
accused to seek discharge at the initial stage by filing unimpeachable and unassailable material
of sterling quality would be illegal and violative of Article 21 of the Constitution because that
would result in the accused having to face the trial for long number of years despite the fact that
he is liable to be discharged if granted an opportunity to produce the material. The construction
that the accused has no right to produce material at the stage of framing the charge may be
declared ultra vires of Articles 14 and 21 of the Constitution and that construction should be
preferred which saves the provision from being declared unconstitutional. It was contended on
behalf of the accused that to save the provision of Section 227 of the Code from being declared
ultra vires, the accused should be given a right, of course only a limited right, to produce
unimpeachable and unassailable materials in order to show his innocence even at the time of
framing of charge.

The contention on behalf of the accused was rejected on the ground that the expression “hearing
the submission of the accused” in Section 227 of the Code cannot mean opportunity to file the
material by the accused. Thus, at the stage of framing of charge hearing the submission of the
accused has to be confined to the material produced by the police. The Supreme Court observed:

It is well settled that at the stage of framing of charge the defence of the accused cannot
be put forth. The acceptance of the contention of . . . the accused would mean permitting
the accused to adduce his defence at the stage of framing of charge and for examination
thereof at that stage which is against the criminal jurisprudence. 82

In Palvinder Singh v. Balvinder Singh83, the trial judge dismissed the discharge application of the
respondent-accused in exercise of its jurisdiction under section 227 of the Criminal Procedure
Code, 1973. It was contended by the respondent accused that as the dying declaration of the
deceased victim was not properly recorded and there were contradictions in two dying
declarations given by the victim. Both of the grounds were rejected by the trial court. Then the
respondent – accused filed a criminal revision before the High Court and it allowed the discharge
application of the accused. Thereupon the appellant, the husband of the deceased victim,

82
Id. at 365

83
AIR 2009 SC 887
 26

challenged the correctness of the discharge of the respondent – accused. The Supreme Court
setting aside the impugned judgment of the High Court observed that:

“the High Court committed a serious error in passing the impugned judgment in so far as
it entered into the realm of appreciation of evidence at the stage of framing of charge
itself. The jurisdiction of the learned Sessions Judge while exercising power under
section 227 of the Criminal Procedure Code is limited. Charges can be framed also on the
basis of strong suspicion. Marshalling and appreciation of evidence is not the domain of
the court at that point of time.” 84

Again, in Rukmini Narvekar v. Vijaya Satardekar85 two judges took different views on this issue.
While accepting the submission that at the time of framing of the charges only the material
produced by the prosecution side can be looked into by the court and the material produced by
the defence cannot be looked into Altmas Kabir, J. observed that:

“there is no scope for the accused to produce any evidence in support of the submissions
made on his behalf at the stage of framing of charge and only such material as are
indicated in section 227 Cr. P.C. can be taken into consideration by the learned
magistrate at that stage . . . .”86

Justice Katju took a different view on the issue and opined that in exceptional and very rare
circumstances such material may be produced by the defence and he observed that:

while it is true that ordinarily defence material cannot be looked into by the court while
framing of charges . . . there may be some very rare and exceptional cases where some
defence material when shown to the trial court would convincingly demonstrate that the
prosecution version is totally absurd or preposterous, and in such very rare cases the
defence material can be looked into by the court at the time of framing of the charge or
taking cognizance. 87

Katju, J. further observed:

84
Id. At 889 per S. B. Sinha and Cyriac Joseph, JJ.

85
AIR 2009 SC 1013

86
Id. At 1015

87
Id. at 1018
 27

It cannot be said as an absolute proposition that under no circumstances can the court
look into the material produced by the defence at the time of framing of charges, though
it should be done in very rare cases, i.e., where the defence produces some material
which convincingly demonstrates that the whole prosecution case is totally absurd or
totally concocted . . . in some very rare cases the court is justified in looking into the
material produced by the defence at the time of framing of the charges, if such material
convincingly establishes that the whole prosecution is totally absurd, preposterous or
concocted.88

The judge is not a mere post office to frame the charges at the behest of the prosecution but has
to exercise the judicial mind to the facts of the case in order to determine whether a case for trial
has been made out by the prosecution. 89 At the stage of Section 227 of Cr.P.C. the judge has
merely to sift the evidence in order to find out whether or not there is sufficient ground for
proceeding against the accused. The accused if afforded an opportunity to adduce material which
is of unassailable nature there should not be any bar to defer such evidence for another
appropriate stage of trial.

The criminals are generally considered lower on the social scale than a non - criminal. The
maintenance of a non - criminal image thus is important to most of the people. The self - identity
of a person may be threatened by use of criminal process. Criminal trial may be visualised as a
ritualistic status degradation ceremony in which public identity of the person is lowered on the
social scale. 90 Crime is not the criminal act of the accused which causes harm rather it is a label
which the criminal justice system pastes on the person. The labeling theory of criminology
believes that the criminal justice system is dangerous in the sense that it casts the net of social
control too widely. The State intervention is inherently criminogenic in its ultimate effect. The
criminal trial is, in fact, ‘dramatization of evil’ 91. The process of tagging, defining, identifying,
segregating and describing any individual for special treatment becomes a way of stimulating,

88
Ibid.

89
See, P. Vijayan v. State of Kerala AIR 2010 SC 663

90
See, Vold, George B. Theoretical Criminology, Second Edition, Oxford University Press (1979) pp. 263-264;
Williams, Katherine S., A Text Book on Criminology, Third Edition, Universal Law Publishing Co. Pvt. Ltd. (2001) pp.
411-434

91
Tannenbaum, Frank, Crime and the Community, Colombia University Press (1938)
 28

suggesting and evoking the very trait complained of. The trial makes the person a ‘thing’ but
describes him as a ‘being’. The label of “criminal” confers master status to the person and this
master status controls the way the person is identified in public. After acquiring such master
status other status, e.g. son, parent, or worker, are not considered in public. 92 Since the criminal
justice system puts label on the criminal thus the trial should be conducted only when there is
sufficient ground to proceed with otherwise trial may be a futile exercise and may cause undue
harassment to the accused beside wastage of time and human efforts.

The concept of social justice has generally been viewed the proper distribution of benefits and
burdens among the members of the society. 93 This understanding of social justice ignores the
relation between the criminal justice system and the criminal. In human relations the existence of
domination and oppression should be regarded as anti thesis of justice. It is quite possible that
there exist certain institutions and procedures which fail to take care of the criminal. The social
justice, in this context, can be better understood if its meaning is extended to the elimination of
institutionalized domination and oppression. 94 The interpretation and understanding or the
provisions of law which may provide an opportunity of domination and exploitation may be
suitably modified in order to attain justice.

The view taken by the court that at the time of framing the charge, the trial court cannot take the
material of the defence does not treat the accused and the prosecution with equality. The
prosecution has a better right as it gives a right to submit the records of the case and relevant
documents along with the right of being heard on their submission. The accused, on the other
hand, is given only the right of being heard and not to produce even any unimpeachable and
unassailable material before the judges at this stage. Such a situation may be regarded as
violation of equality. It may also affect the fairness of the trial in the sense that the prosecution is
at higher pedestal in comparison to the defence while fair trial presumes equal opportunity to all
the parties – prosecution, accused, victim and the society.

92
Id.

93
Rawls, John, A Theory of Justice, Oxford University Press (1971)

94
Young, Iris Marion, Justice and the Politics of Difference, Princeton University Press (1990)
 29

The interpretation of Section 227 Criminal Procedure Code, 1973 in Debenedra Nath Padhi case
is contrary to the concept of justice as it suggests a procedure which unnecessarily puts the
prosecution, at the stage of discharge, in dominant position and it oppresses the accused by not
permitting him to adduce unassailable and unimpeachable material in his favour. The opinion of
Justice Thomas and Justice Katju is better as the justice can be done to the accused when the
opinion in Satish Mehra and the opinion in Rukmini Narvekar are preferred over Debendra Nath
Padhi case. In case the defence is given, in exceptional case, an opportunity to adduce
unimpeachable and unassailable material at the time of framing the charge such an interpretation
would not only save the time of the court but it would also save the accused from being harassed
unnecessarily and also will be saved from protracted trial and the label of criminal status
attached to him. Moreover, the trial court will exercise, to some extent, its discretion and it may
generate confidence among the judicial officers involved in dispensation of criminal justice at
this level and they will be more responsive to the needs of the society. The society may get an
impression of speedy justice. The number of pending trials and piling of criminal trials would be
reduced considerably. The lifting of such a barrier allegedly created by Section 227 and 239 of
the Criminal Procedure Code, 1973 will, resultantly, pave the path for speedy justice.

5. Framing of Charge: (Section 228)

The charge shall be written in the language of the Court (See sub section (6) of Section 211). The
language of the Court is to be determined by the State Government. The provisions relating to
language of the Court has been made in Section 272 of the Code which provides that the State
Government shall determine what shall be, for the purpose of this Code, the language of each
Court within the State other than the High Court.
Sub Section (1) of Section 228 provides that if after consideration and hearing the submission of
the accused and the prosecution, the Judge is of the opinion that there is ground for presuming
that the accused has committed an offence which –
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the
accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any
other Judicial Magistrate of First Class and direct the accused to appear before the Chief
Judicial Magistrate, or, as the case may be, the Judicial Magistrate First Class, on such
 30

date as he deems fit, and thereupon such Magistrate shall try the offence in accordance
with the procedure for the trial of warrant case instituted ob Police Report;
(b) is exclusively triable by the Court, he shall frame the charge against the accused.
6. Explaining the Charge to the Accused and enquiring about Plea:
Where the Judge frames the charge against the accused under Clause (b) of Sub Section (2) of
Section 228, the charge shall be read and explained to the accused. Further, after framing the
charge and explaining the charge to the accused, the Court shall ask the accused whether he
pleads guilty of the offence charged or claims to be tried.
In RS Mishra v. State of Orissa, 95 the police submitted the charge sheet inter alia under Section
302 IPC. The trial Court while framing the charge without stating any reason for so doing
dropped or diluted the charge despite there being sufficient material to proceed with the charge
of murder. It was held that the Judge must give his reason at least in a nutshell, if he is dropping
or diluting any charge.
7. Conviction on Plea of Guilt: (Section 229)
Section 229 provides for conviction on plea of guilt. If an accused pleads guilty, the Judge shall
record the plea and may, in his discretion, convict him thereon.
8. Date for Prosecution Evidence: (Section 230)
If the accused refuses to plead, or does not plead or claims to be tried or is not convicted under
Section 229, the Judge 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 production of any document or other thing.
9. Evidence for Prosecution: (Section 231)
All evidence is to be taken in the presence of the accused or where the Court has dispensed
with the personal attendance of the accused then the evidence shall be taken in the presence
of the pleader of the accused. (See, Section 273)
Section 309 of the Code makes provision for the expeditious trial. It provides that in every
trial, the proceeding shall be held as expeditiously as possible, and in particular, when the
examination of the witnesses has once begun, the same shall be continued from day to day

95
2011 Cri LJ 1654 (SC)
 31

until all the witnesses in attendance have been examined unless the court finds reason
necessary for adjournment of the same beyond the following day.
(a) Examination of Witnesses:
On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in
support of the prosecution.
Sub Section (2) of Section 231 provides that the Judge may, in his discretion, permit the
cross examination of the witness to be deferred until any other witness or witnesses have
been examined or recall any witness for further cross-examination.
(b)Record of Evidence:
Section 276 (1) of the Code provides that in all trials before the Court of Session, the
evidence of each witnesses shall, as his examination proceeds, be taken down in writing
either by the presiding judge himself or by his dictation in open Court or, under his direction
and superintendence, by an officer of the Court appointed by him in that behalf.
Section 276 (2) provides that evidence shall ordinarily be taken down in the form of
narrative, but the Presiding Judge may, in his discretion, take down or cause to be taken
down any part of such evidence in the form of question and answer. The evidence taken
down shall be signed by the Presiding Judge and shall form the part of record.
The provision for the language of record of evidence is made in Section 277 of the Code. In
every case where the evidence is taken down by the Presiding Judge under Section 276 –
(a) If the witness gives evidence in the language of the Court, it shall be taken down in that
language;
(b) If he gives evidence in 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,
signed by the Presiding Judge, and shall form part of the record; however, when under
this clause evidence is taken down in English and a translation thereof in the language of
the Court is not required by any of the parties, the court may dispense with such
translation.
 32

(c) Where under clause (b) evidence is taken down in a language other than the language of
the Court, a true translation thereof in the language of the Court shall be prepared as soon
as practicable, it shall be signed by the Presiding Judge and shall form part of the record.
Section 278 deals with the procedure to be followed after the completion of evidence of each
witness. When the evidence of each witness is completed, it shall be read over to him
(witness) in the presence of the accused, if in attendance, or of his pleader, if he (accused)
appears by pleader, and shall, if necessary, be corrected. (Sub Section (1) of Section 278) If
the witness denies the correctness of any part of the evidence when the same is read over to
him, the Presiding 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. (Sub Section (2) of Section 278) If the record of the 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 in the language in which it was given or in a
language which he understands (Sub Section (3) of Section 278). The person whose services
are required by the Criminal Court to interpret any evidence or the statement, he is bound to
state the true interpretation of such evidence or statement (Section 282).
Demeanour of the witness is also an import thing to be marked by the Presiding Judge. When
the Presiding Judge has recorded the evidence of a witness, he shall also record such
remarks, if any, as he thinks material respecting the demeanour of such witness whilst under
examination. (Section 280)
10. Argument on behalf of Prosecution:
Any party to a proceeding may after the close of his evidence, address concise oral arguments. If
the Court considers that such argument is not concise or relevant, it may regulate them. (Sub
Section (1) and (4) of Section314)
A party before concluding the oral arguments, if any, may submit a memorandum to the Court
setting forth concisely and under the distinct headings, the arguments in support of his case.
Every such memorandum shall form the part of the record and a copy of the memorandum shall
be furnished to the opposite party (Sub Section (1) and (2) of Section 314. However, no
adjournment of the proceeding shall be granted for the purpose of filing the written arguments
 33

unless the Court for the reasons to be recorded in writing, considers it necessary to grant such
adjournment (Sub Section (3) of Section 314)
11. Examination of Accused:
The Court has power to examine the accused. This power has been conferred under Section 313
of the Court. Section 313 (1) provides that in trial for the purpose of enabling the accused
personally to explain any circumstances appearing in evidence against him, the Court-
(a) May at any stage, without previously warning the accused, put such questions to him as
the Court considers necessary;
(b) Shall, after the witnesses for the prosecution have been examined and before he is called
on for his defence, question him generally on the case.
No oath is to be administered to the accused when he is examined under Section 313 (1) and the
accused shall not render himself liable to punishment by refusing to answer such questions or by
giving false answer to them, (See, Sub Section (2) and ( 3) of 313 ). The answer given by the
accused may be taken into consideration in such trial and put in evidence for or against him in
any other trial for any other offence which such answer may tend to show he has committed. The
Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which
are to be put to the accused and the Court may permit filing of written statement of the accused
as sufficient compliance of this Section (Sub Section (5) of 313 )
Section 281(1) of the Code provides that whenever the accused is examined by the Court of
Session, the whole of such examination, including every question put to him and every answer
given by him, shall be recorded in full by the Presiding Judge himself or where he is unable to do
so owing to physical or other incapacity, under his guidance and superintendence by the officer
of the Court appointed by him in this regard.
The record shall be in the language in which the accused is examined or, if it is not practicable,
in the language of the Court (Sub Section (2) of Section 281) The record shall be shown or read
to the accused, or, if he does not understand the language in which it is written, shall be
interpreted to him in a language which he understands, and shall be at liberty to explain or add to
his answer (Sub Section (3) of Section 281) It shall thereafter be signed by the accused and the
Presiding Judge, who shall certify under his own hand that the examination was taken in his
 34

presence and hearing, and that the record contains a full and true account of the statement made
by the accused.
96
In Parashu Ram Pandey v. State of Bihar, it was held that the duty has been cast on the Court
cannot be taken lightly because it is imperative upon the Court to record the statement of the
accused so as to give opportunity to accused to explain any incriminating circumstances proved
by the prosecution.
12. Acquittal of Accused after Hearing the Parties: (Section 232)
If, after taking the evidence for the prosecution, 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; the Judge shall record an order of acquittal.
13. Entering upon Defence: (Section 233)
Where the accused is not acquitted under Section 232, he shall be called upon to enter on his
defence and adduce any evidence he may have in support thereof.
If the accused puts in any written statement, the Judge shall file it with the record.
If the accused applies for the issue of any process for compelling the attendance of any witness
or the production of any document or thing, the Judge shall issue such process unless he
considers that it is made for the purpose of vexation or delay or for defeating the ends of justice.
14. Court Witnesses:
Apart from the witnesses provided by the prosecution or the defence, The Court has power under
Section 311 to summon and examine any person at any stage as witness. It may also examine any
person in attendance though not summoned as a witness.
15. Arguments: (Section 234)
When the examination of the witnesses for the defence is complete, the prosecutor shall sum up
his case and the accused or his pleader shall be entitled to reply. Where any point of law is raised
by the accused or his pleader, the prosecution may, with the permission of Judge, make his
submissions with regard to such point of law.
16. Judgment: (Section 235(1) and Sections 353 &354)
The Judge shall pronounce the judgment of conviction or acquittal after hearing arguments and
points of law, if any.

96
AIR 2004 SC 5068
 35

Chapter XXVII (Sections 353 to 365) of the Code is on judgment. For the purpose of discussion
in hand two points deserve mention; first, how judgment is pronounced and second, the language
and the contents of the judgment.
Section 353 provides that the judgment in every trial in any Criminal Court of original
jurisdiction shall be pronounced by the Presiding officer immediately after the termination of the
trial or at some subsequent time of which notice shall be given to the parties or their pleaders.
The judgment may be:
(a) By delivering the whole of the judgment; or
(b) By reading out whole of the judgment; or
(c) By reading out the operative part of the judgment and explaining the substance of the
judgment in a language which is understood by the accused or his pleader.
Where the judgment is delivered under clause (a), the presiding officer shall cause it to be taken
down in short hand, sign the transcript and every page thereof as soon as it is ready and write on
it the date of delivery of judgment in open Court (Sub Section 2 of Section 353) Where the
judgment or operative part thereof. Is read out under clause (b) or (c), it shall be dated and signed
by the presiding officer in open court and if it is not written with his own hand, every page of the
judgment shall be signed by him (Sub Section 3 of Section 353). Where the judgment is
pronounced in the manner specified in clause (c), the whole judgment or copy thereof shall be
immediately made available for the perusal of the parties or their pleaders free of cost (Sub
Section (4) of Section 353).
If the accused is in custody, he shall be brought up to hear the judgment pronounced (Sub
Section (5) of Section 353). If the accused is not in custody, he shall be required by the Court to
attend to hear the judgment pronounced and where there are more accused than one, and one or
more of them do not attend the Court on the date on which the judgment is to be pronounced, the
presiding officer may pronounce the judgment in order to avoid undue delay in disposal of the
case even in their absence (Sub Section (6) of Section 353). However, no judgment delivered by
any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or
his pleader on the day (Sub Section (7) of Section 353).
Language & Contents of Judgment:
Section 354 (1) provides that every judgment delivered and pronounced:
 36

(a) Shall be written in the language of the Court;

(b) shall contain point or points for determination, the decision thereon and the reason for the
decision;
(c) shall specify the offence, if any, of which and the Section of the Indian Penal Code or other law
under which, the accused is convicted and the punishment to which he is sentences;
(d) If it is judgment of acquittal, shall state the offence of which the accused is acquitted and direct
that he be set at liberty.
When the conviction is under the Indian Penal Code and it is doubtful under which of the two
sections, or under which of the two parts of the same section, of that Code the offence falls, the
Court shall distinctly express the same, and pass judgment in the alternative (Sub Section (2) of
Section 354).
17. Procedure after Conviction: (Section 235(2)
If the accused is convicted under Sub Section (1) of Section 235, the Judge shall , unless he
proceeds in accordance with the provisions of Section 360, hear the accused on the question of
sentence and then pass sentence on him according to law.
When the conviction is for the offence punishable with death or, in alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the reason for
the sentence awarded, and, in case of sentence of death, the special reason for such sentence is to
be given (Sub Section (3) of Section 353). When the conviction is for an offence punishable with
imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment
for a term of less than three months, it shall record its reason for awarding such sentence unless
the sentence is one of imprisonment till the rising of the Court (Sub Section (4) of Section 353).
Where any person is sentenced to death, the sentence shall direct that he be hanged by the neck
till he is dead (Sub Section (5) of Section 353).
Where in any case the Court should have dealt with an accused under Section 360 of the Code or
under the provisions of the Probation of Offenders Act, 1958 or a youthful offender under the
Children Act, 1960 or any other law for the time being in force for the treatment, training or
rehabilitation of the youthful offenders but has not done so, it shall record in its judgment the
special reason for not having done so (Section 361)
 37

Section 362 provides that no Court when it has signed its judgment or final order disposing of a
case shall alter or review the same except to correct a clerical or arithmetical error.
18. Procedure in case of Previous Conviction: (Section 236)
Section 236 provides that in a case where a previous conviction is charged under the provisions
of Sub Section (7) of Section 211, and the accused does not admit that he has been previously
convicted as alleged in the charge, the Judge may, after he 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. The issue regarding the previous conviction shall not be raised till the
accused is convicted. The charge of previous conviction shall not be read out by the Judge nor
shall the accused be asked to plead thereto nor shall the previous conviction shall be referred to
by the prosecution or in any evidence adduced by it, unless and until the accused has been
convicted under Section 229 or Section 235.

II. Trial of Warrant Trial by Magistrates

Chapter XIX of the Criminal Procedure Code deals with trial of warrant case by Magistrate.
Warrant cases as defined in Section 2 (x) of the Code are cases relating to offence punishable
with death, imprisonment for life or imprisonment for a term exceeding two years. Warrant cases
are thus also triable by the Magistrates. The trial of warrant cases may be based on:
A. Police Report
B. Otherwise than the Police Report that is Complaint.
The following steps are involved in trial of warrant case by the Magistrate where the case has
been instituted on Police Report:
A. On Police Report
1. Section 207: Compliance with Section 207- When, in any case instituted on Police
Report, the accused appears or is brought before a Magistrate at the commencement of
trial, the Magistrate shall satisfy himself that he has complied with the provisions of
Section 207.
Section 207 provides for supply of copy of Police Report and other documents to the accused so
that he may know about the allegation leveled against him. In any case where the proceeding has
 38

been institute on a Police Report, the Magistrate shall without delay furnish to the accused, free
of cost, a copy of the following –
(vi) The Police Report
(vii) The First Information Report recorded under Section 154;
(viii) The Statement recorded under sub Section (3) of Section 161 of all persons whom the
prosecution proposes to examine as its witnesses;
(ix) The confession and statements, if any, recorded under Section 164
(x) Any other document or relevant extract thereof forwarded to the Magistrate with the
Police Report under Sub Section 5 of Section 173. But where the Magistrate is
satisfied that any document is voluminous, he shall, instead of providing the copy,
direct that the accused will be allowed to inspect it either personally or though pleader
in the Court.
In Pramod Kumar Sharma v. State of UP,97 it was held that before framing the charge or charges
against the accused compliance of Section 207 Cr PC is mandatory and its non-compliance may
result in causing prejudice to the accused. The purpose behind furnishing the documents and
statements of witnesses to the accused at the commencement of trial is to provide an opportunity
to the accused to know the evidence and the material being relied in support of the charges and to
meet those evidence and statements and set up a proper defence. In case of non-compliance of
Section 207 of the Code, the accused may not be able to defend the charge ors or to contend that
no charge is made out against him. The provision is mandatory in nature. However, there may be
a departure in a case where the statements of the witnesses or documents submitted in support of
the charge sheet are voluminous and preparation of copies thereof is not possible. In that
situation the accused may be permitted to inspect the record. Therefore, framing of the charge
against the accused without the compliance of Section 207 of the Code would be improper.
The supply of documents and statements prepared at the investigating stage as mandated
under Section 207 of the Code cannot be treated as mere superfluity or empty formality. This
provision has been enacted by the Legislature with a definite object. In the matter of Gopal
Pramanik,98 where the Magistrate rejected the prayer of the revisionist to supply of copies of

97
2011 Cri LJ 1088 (All.)

98
2010 Cri KJ 4470 (Cal.)
 39

documents covered by the seizure list and the order of the Magistrate was challenged on the
ground that unless copies of those documents are provided, he would not be in a position to
cross examine the prosecution witnesses effectively and the interest would be seriously
prejudices and non supply of document is in breach of Section 2017 of the Code. The High
Court held that:
(iv) The accused could not be refused supply of some of the documents, if relied upon by the
prosecution, even at the stage of trial for the simple reason that it would be
tantamount to denial of a valuable statutory right of the accused in a criminal trial;
(v) The whole purpose of Section 207 is to give adequate notice to the accused of the
material to be used against him during trial and the Magistrate should exercise
abundant care and utmost caution to avoid unpalatable situation of causing prejudice
to the accused;
(vi) An omission to comply with the mandatory provisions of law as enshrined in Section 207
bound to cause serious prejudice to the accused and such a situation may even vitiate
the criminal trial.
It is the duty of the Magistrate that in cases in which the offence is exclusively triable by the
Court of Sessions, without delay furnish to the accused free of cost, a copy of all statements
recorded under Section 161 Cr PC.99

2. Section 239: When accused shall be discharged – If, upon considering the police report
and the documents sent with it under Section 173 and making such examination, if any,
of the accused as the Magistrate thinks necessary and after giving the prosecution and the
accused an opportunity of being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused and, and record his reasons for
so doing.

3. The Supreme Court of India was consistent in its view that at the time of framing charge
the trial court can consider only such materials that were placed before it by the
investigating agency and at this stage the defence (accused) could only be heard but has

99
Ramprasad v. State of MP 2012 Cri LJ 360 (MP)
 40

no opportunity to produce evidence for consideration of the court.100 But it was the case
of Satish Mehra v. Delhi Administration101 where the Supreme Court observed that if the
accused were able to produce any reliable material at the stage of taking cognizance or
framing of charge which might fatally affect the very sustainability of the case, it is
unjust to suggest that no such material should be looked into by the court at that stage.
The trial court would be well within its power to consider even material which the
accused may produce at the stage contemplated in Section 227 of the Criminal Procedure
Code, 1973. In this back drop, an attempt has been made here to analyse the approach of
the Supreme Court.

4. There are two provisions under the Criminal Procedure Code, 1973 which deal with
discharge of accused. While Section 227 provides for discharge of accused in trial before
the Sessions Court, Section 239 deals with discharge in trial of warrant cases by
Magistrate.102 The provisions of Sections 227 and 239 of the Criminal Procedure Code,
1973 are beneficent in nature so as to save the accused from prolonged harassment which
is a necessary concomitant of a protracted trial. 103

100
State of Bihar v. Ramesh Kumar Singh AIR 1977 SC 2018; Superintendent & Legal Remembrancer of Legal
Affairs, West Bengal v. Anil Kumar Bhunja AIR 1980 SC 52; State of Maharastra v. Priya Sharan Maharaj AIR 1997 SC
2041; State of M.P. v. S.B. Johari AIR 2000 SC 665; State of Delhi v. Gyan Devi AIR 2001 SC 40

101
(1996) 9 SCC 766

102
226. Discharge – If, upon consideration of the record of the case 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
not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for
so doing.

239. When accused shall be discharged – If, upon considering the police report and the documents sent with it
under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and
after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused, and record the reason for doing so.

103
See, Kewal Krishna v. Suraj Bhan 1980 Cri LJ 1271 (SC)
 41

5. The Supreme Court in Minakshi Bala v. Sudhir Kumar104explained the scope and ambit
of Section 239 and 240 of the Criminal Procedure Code, 1973. The court observed:

6. The Magistrate is first required to consider the police report and the documents sent with
it under Section 173 CrPC and examine the accused, if he thinks necessary, and give an
opportunity to the prosecution and the accused of being heard. If on such consideration,
examination and hearing, the Magistrate finds the charge groundless he has to discharge
the accused in terms of Section 239 CrPC; conversely, if he finds there is ground for
presuming that the accused has committed an offence triable by him he has to frame the
charge in terms of Section 240 CrPC.105
7. In Satish Mehra case,106 the relation between the appellant husband and the respondent
wife were not cordial and the wife with a view to put pressure upon the appellant so that
he could not claim over bank account fastened him for the offences under section 354,
376/511 and 498-A of the Indian Penal Code by lodging an FIR. It was contended by the
respondent wife that her husband, inter alia, had sexually assaulted his own daughter. The
appellant wanted to adduce certain material at the stage of discharge but the same was
denied and the High Court did not give him any relief on this issue. Then the appellant
filed an appeal by special leave. On the issue whether or not the accused could adduce
material at the time of discharge, the Supreme Court observed:

8. If the accused succeeds in producing any reliable material at that stage which might
fatally affect even the very sustainability of the case, it is unjust to suggest that no such
material shall be looked into by the court at that stage. Here the “ground” may be any
valid ground including insufficiency of evidence to prove charge. 107
9. Thomas, J. explaining the object of the provision of section 227 of the Criminal
Procedure Code, 1973 observed:

10. The object of providing such an opportunity as is envisaged in section 227 of the Code is
to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the
case ends there it gains a lot of time of the Court and saves such human efforts and cost.

104
(1994) 4 SCC 142

105
Id at 144

106
Satish Mehra v. Delhi Administration (1996) 9 SCC 766 Supra note 3

107
Id at 771 per K. T. Thomas and M. M. Punchhi, JJ.
 42

If the material produced by the accused even at that early stage would clinch the issue,
why should the Court shut it out saying that such documents need to be produced only
after wasting a lot more time in the name of trial proceedings. 108
11. Further,
12. When the judge is fairly certain that there is no prospect of the case ending in conviction
the valuable time of the Court should not be wasted by holding a trial only for the
purpose of formally completing the procedure to pronounce the conclusion on a future
date . . . If the Sessions Judge is almost certain that the trial would only be an exercise in
futility or a sheer waste of time it is advisable to truncate to snip the proceedings at the
stage of Section 227 of the Code itself. 109
13. In State Anti Corruption Bureau v. P. Suryaprakasan110, a case under Section 5 (2) of the
Prevention of Corruption Act, 1947 was registered against the respondent and on
completion of investigation the charge sheet was submitted after obtaining sanction from
the government. The Special Judge took the cognizance and issued process. The
respondent filed an application seeking discharge under Section 239 of the Criminal
Procedure Code, 1973 on the ground, inter alia, that government did not consider the
explanation and the said application was rejected by the Special Judge. The respondent
thereupon moved a revision petition before the High Court and allowing the revision, the
High Court quashed the proceeding against the respondent. The High Court observed that
while framing charges, the court should apply its mind and consider the entire materials
not only produced by the prosecution but also the explanation and materials produced by
the accused. But in this case, the lower court has utterly failed to do so, the High Court
pointed out.

14. The appellant thereupon filed a special leave petition against the order of the High Court.
Reversing the order of the High Court, the Supreme Court held that at the time of framing
the charge, the trial court is required to and can only consider the police report referred to
in section 173 of the Code and the documents sent with it. The court emphasised that
only right which the accused has at this stage is only the right of being heard and nothing

108
Ibid.

109
Ibid.

110
(1999) SCC (Cri) 373
 43

beyond that. In other words, at the stage of framing of charge hearing the submissions of
the accused has to be confined to the material produced by the police. 111

15. The matter came up again before a bench comprising three judges in State of Orissa v.
Debendra Nath Padhi112 where it was held that at the time of framing of charge or taking
cognizance the accused has no right to produce any material and the Satish Mehta case
holding that the trial court has power to consider even materials which the accused may
produce at the stage of Section 227 of the Code was not correctly decided. In this case, on
behalf of the State it was argued that the observation made in Satish Mehta case run
counter to the view expressed by the Supreme Court in large number of decisions given
over a period of time and it amounted to unsettling well settled legal proposition and
would, ultimately, result in conducting a mini trial at the stage of framing of charge or
taking cognizance. It was contended that the view taken in Satish Mehta case would not
only be contrary to the object and scheme of the Code but would result in total wastage of
the court time because of conducting two trials; first at the stage of framing charge and
the other after the charge is framed. Thus, the true construction of Section 227 according
to the State was that only the material sent by the prosecution along with the records of
the case and the documents sent with it may be considered by the trial court at the time of
framing of the charge and consequently the accused has no right to place any material
before the trial court at this stage.

16. On behalf of the accused, on other hand, it was argued that the procedure which deprives
the accused to seek discharge at the initial stage by filing unimpeachable and unassailable
material of sterling quality would be illegal and violative of Article 21 of the Constitution
because that would result in the accused having to face the trial for long number of years
despite the fact that he is liable to be discharged if granted an opportunity to produce the
material. The construction that the accused has no right to produce material at the stage of
framing the charge may be declared ultra vires of Articles 14 and 21 of the Constitution

111
Id at 375 per M. K. Mukherjee and S. P. Kurdukar, JJ.

112
AIR 2005 SC 359 Bench comprised Sabharwal, Dharmadhikari and Tarun Chatterjee, JJ
 44

and that construction should be preferred which saves the provision from being declared
unconstitutional. It was contended on behalf of the accused that to save the provision of
Section 227 of the Code from being declared ultra vires, the accused should be given a
right, of course only a limited right, to produce unimpeachable and unassailable materials
in order to show his innocence even at the time of framing of charge.

17. The contention on behalf of the accused was rejected on the ground that the expression
“hearing the submission of the accused” in Section 227 of the Code cannot mean
opportunity to file the material by the accused. Thus, at the stage of framing of charge
hearing the submission of the accused has to be confined to the material produced by the
police. The Supreme Court observed:

It is well settled that at the stage of framing of charge the defence of the accused cannot
be put forth. The acceptance of the contention of . . . the accused would mean permitting
the accused to adduce his defence at the stage of framing of charge and for examination
thereof at that stage which is against the criminal jurisprudence. 113

In Palvinder Singh v. Balvinder Singh114, the trial judge dismissed the discharge application
of the respondent-accused in exercise of its jurisdiction under section 227 of the Criminal
Procedure Code, 1973. It was contended by the respondent accused that as the dying
declaration of the deceased victim was not properly recorded and there were contradictions in
two dying declarations given by the victim. Both of the grounds were rejected by the trial
court. Then the respondent – accused filed a criminal revision before the High Court and it
allowed the discharge application of the accused. Thereupon the appellant, the husband of the
deceased victim, challenged the correctness of the discharge of the respondent – accused.
The Supreme Court setting aside the impugned judgment of the High Court observed that:

“the High Court committed a serious error in passing the impugned judgment in so far as it
entered into the realm of appreciation of evidence at the stage of framing of charge itself. The
jurisdiction of the learned Sessions Judge while exercising power under section 227 of the
Criminal Procedure Code is limited. Charges can be framed also on the basis of strong

113
Id. at 365

114
AIR 2009 SC 887
 45

suspicion. Marshalling and appreciation of evidence is not the domain of the court at that
point of time.”115

Again, in Rukmini Narvekar v. Vijaya Satardekar116 two judges took different views on
this issue. While accepting the submission that at the time of framing of the charges only
the material produced by the prosecution side can be looked into by the court and the
material produced by the defence cannot be looked into Altmas Kabir, J. observed that:

“there is no scope for the accused to produce any evidence in support of the submissions
made on his behalf at the stage of framing of charge and only such material as are indicated
in section 227 Cr. P.C. can be taken into consideration by the learned magistrate at that stage
. . . .”117

Justice Katju took a different view on the issue and opined that in exceptional and very rare
circumstances such material may be produced by the defence and he observed that:

while it is true that ordinarily defence material cannot be looked into by the court while
framing of charges . . . there may be some very rare and exceptional cases where some
defence material when shown to the trial court would convincingly demonstrate that the
prosecution version is totally absurd or preposterous, and in such very rare cases the defence
material can be looked into by the court at the time of framing of the charge or taking
cognizance.118

Katju, J. further observed:

It cannot be said as an absolute proposition that under no circumstances can the court look
into the material produced by the defence at the time of framing of charges, though it should
be done in very rare cases, i.e., where the defence produces some material which
convincingly demonstrates that the whole prosecution case is totally absurd or totally
concocted . . . in some very rare cases the court is justified in looking into the material

115
Id. At 889 per S. B. Sinha and Cyriac Joseph, JJ.

116
AIR 2009 SC 1013

117
Id. At 1015

118
Id. at 1018
 46

produced by the defence at the time of framing of the charges, if such material convincingly
establishes that the whole prosecution is totally absurd, preposterous or concocted. 119

The judge is not a mere post office to frame the charges at the behest of the prosecution but has
to exercise the judicial mind to the facts of the case in order to determine whether a case for trial
has been made out by the prosecution. 120 At the stage of Section 227 of Cr. P. C. the judge has
merely to sift the evidence in order to find out whether or not there is sufficient ground for
proceeding against the accused. The accused if afforded an opportunity to adduce material which
is of unassailable nature there should not be any bar to defer such evidence for another
appropriate stage of trial.

The criminals are generally considered lower on the social scale than a non - criminal. The
maintenance of a non - criminal image thus is important to most of the people. The self - identity
of a person may be threatened by use of criminal process. Criminal trial may be visualised as a
ritualistic status degradation ceremony in which public identity of the person is lowered on the
social scale. 121 Crime is not the criminal act of the accused which causes harm rather it is a label
which the criminal justice system pastes on the person. The labeling theory of criminology
believes that the criminal justice system is dangerous in the sense that it casts the net of social
control too widely. The State intervention is inherently criminogenic in its ultimate effect. The
criminal trial is, in fact, ‘dramatization of evil’ 122. The process of tagging, defining, identifying,
segregating and describing any individual for special treatment becomes a way of stimulating,
suggesting and evoking the very trait complained of. The trial makes the person a ‘thing’ but
describes him as a ‘being’. The label of “criminal” confers master status to the person and this
master status controls the way the person is identified in public. After acquiring such master

119
Ibid.

120
See, P. Vijayan v. State of Kerala AIR 2010 SC 663

121
See, Vold, George B. Theoretical Criminology, Second Edition, Oxford University Press (1979) pp. 263-264;
Williams, Katherine S., A Text Book on Criminology, Third Edition, Universal Law Publishing Co. Pvt. Ltd. (2001) pp.
411-434

122
Tannenbaum, Frank, Crime and the Community, Colombia University Press (1938)
 47

status other status, e.g. son, parent, or worker, are not considered in public. 123 Since the criminal
justice system puts label on the criminal thus the trial should be conducted only when there is
sufficient ground to proceed with otherwise trial may be a futile exercise and may cause undue
harassment to the accused beside wastage of time and human efforts.

18. The concept of social justice has generally been viewed the proper distribution of benefits
and burdens among the members of the society. 124 This understanding of social justice
ignores the relation between the criminal justice system and the criminal. In human
relations the existence of domination and oppression should be regarded as anti thesis of
justice. It is quite possible that there exist certain institutions and procedures which fail to
take care of the criminal. The social justice, in this context, can be better understood if its
meaning is extended to the elimination of institutionalized domination and oppression. 125
The interpretation and understanding or the provisions of law which may provide an
opportunity of domination and exploitation may be suitably modified in order to attain
justice.

The view taken by the court that at the time of framing the charge, the trial court cannot take
the material of the defence does not treat the accused and the prosecution with equality. The
prosecution has a better right as it gives a right to submit the records of the case and relevant
documents along with the right of being heard on their submission. The accused, on the other
hand, is given only the right of being heard and not to produce even any unimpeachable and
unassailable material before the judges at this stage. Such a situation may be regarded as
violation of equality. It may also affect the fairness of the trial in the sense that the
prosecution is at higher pedestal in comparison to the defence while fair trial presumes equal
opportunity to all the parties – prosecution, accused, victim and the society.

The interpretation of Section 227 Criminal Procedure Code, 1973 in Debenedra Nath Padhi case
is contrary to the concept of justice as it suggests a procedure which unnecessarily puts the

123
Id.

124
Rawls, John, A Theory of Justice, Oxford University Press (1971)

125
Young, Iris Marion, Justice and the Politics of Difference, Princeton University Press (1990)
 48

prosecution, at the stage of discharge, in dominant position and it oppresses the accused by not
permitting him to adduce unassailable and unimpeachable material in his favour. The opinion of
Justice Thomas and Justice Katju is better as the justice can be done to the accused when the
opinion in Satish Mehra and the opinion in Rukmini Narvekar are preferred over Debendra Nath
Padhi case. In case the defence is given, in exceptional case, an opportunity to adduce
unimpeachable and unassailable material at the time of framing the charge such an interpretation
would not only save the time of the court but it would also save the accused from being harassed
unnecessarily and also will be saved from protracted trial and the label of criminal status
attached to him. Moreover, the trial court will exercise, to some extent, its discretion and it may
generate confidence among the judicial officers involved in dispensation of criminal justice at
this level and they will be more responsive to the needs of the society. The society may get an
impression of speedy justice. The number of pending trials and piling of criminal trials would be
reduced considerably. The lifting of such a barrier allegedly created by Section 227 and 239 of
the Criminal Procedure Code, 1973 will, resultantly, pave the path for speedy justice.

19. Section 240: Framing of Charge – (1) if, upon such consideration, examination, if any,
and hearing, the Magistrate is of the opinion that there is a ground for presuming that the
accused has committed an offence triable by under this chapter, which such Magistrate is
competent to try and which, in his opinion, could be adequately punished by him, he shall
frame in writing a charge against the accused.
(2) The charge shall be read and explained to the accused, and he shall be asked whether he
pleads guilty of the offence or claims to be tried.
4. Section 241: Conviction on Plea of Guilty – If the accused pleads guilty, the magistrate
shall record the plea and may, in his discretion, convict him thereon.
5. Section 242: Evidence for Prosecution- (1) If the accused refuses to plead or does not plead,
or claims to be tried or the Magistrate does not convict the accused under Section 241, the
Magistrate shall fix a date for the examination f witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summon to any of the
witnesses directing him to attend or to produce any document or other thing.
 49

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be
produced in support of the prosecution. The Magistrate may permit the cross examination of any
witness to be deferred until any other witness or witnesses have been examined or recall any
witness for further cross examination.
5. Section 243: Evidence for Defence- (1) The accused shall then be called upon to enter upon
his defence and produce his evidence; if the accused puts in any written statement, the Magistrate
shall file it with the record.
(2) If the accused after he has entered upon his defence, applies to the Magistrate to issue any
process for compelling the attendance of any witness for the purpose of examination or cross
examination, or the production of any document or other thing, the Magistrate shall issue such
process unless he considers that such application should be refused on the ground that it is made
for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be
recorded by him in writing.
When the accused has cross examined or had the opportunity of cross examining any witness
before entering on his defence, the attendance of such witness shall not be compelled under this
section unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under Sub Section (2)
requires that the reasonable expenses incurred by the witness in attending for the purpose of the
trial be deposited in the Court.
6. Section 248: Acquittal or Conviction - (1) If, in any case, under this Chapter in which a
charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of
acquittal.
(2) Where, in any case under this Chapter, the Magistrate finds that the accused guilty, but does
not proceed in accordance with the provisions of Section 325 or Section 360, he shall after
hearing the accused on the question of sentence, pass sentence upon him according to law.
(3) Where, in any case under this Chapter, a previous conviction is charged under the provisions
of Sub Section (7) of Section 211and the accused does not admit that he has been previously
convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused,
take evidence in respect of the alleged previous conviction, and shall record a finding thereon.
 50

No such charge of previous conviction shall be read out by the Magistrate nor shall the accused
be asked to plead thereon 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 under Sub Section
(2).
B. Otherwise than Police Report
Section 244 Evidence for Prosecution-
(1) When, in any case instituted otherwise than on a police report, the accused appears or id
brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take
all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue summon to any of its
witnesses directing him to attend or produce any document or other thing.
Section 245: When accused shall be discharged-
(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for
reasons to be recorded, that no case against the accused has been made out which, if
unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the
accused at any previous stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless.
In Rakesh Kumar Jain v. State,126 it was held that mere expiry of limitation period would not
entitle the accused to be discharged as the complainant has a right to seek extension of time
under Section 473 of the Code by explaining the cause of delay.
Section 246: Procedure where accused is not discharged-
(1) If, when such evidence is taken, or at any previous stage of the case, the Magistrate is of
the opinion that there is a ground for presuming that the accused has committed an
offence triable under this chapter, which such Magistrate is competent to try and which,
in his opinion, could be adequately punished by him, he shall frame in writing a charge
against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether
he pleads guilty or has any defence to make.

126
AIR 2000 SC 2754
 51

(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his
discretion, convict him thereon.
(4) If the accused refuses to plead or does not plead or claims to be tried or if the accused is
not convicted under Sub Section (3), he shall be required to state, at the commencement
of next hearing of the case, or, if the Magistrate for the reasons to be recorded in writing
so thinks fit, forthwith, whether he wishes to cross examine any, and if so, which of the
witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witness named by him shall be recalled and, after cross
examination and re examination, if any, they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and
after cross examination and re examination, if any, they shall also be discharged.
Section 247: Evidence for Defence-
The accused shall then be called upon to enter upon his defence and produce his evidence and
provisions of Section 243 shall apply to the case.
If the accused puts in any written statement, the Magistrate shall file it with the record. If the
accused after he has entered upon his defence, applies to the Magistrate to issue any process for
compelling the attendance of any witness for the purpose of examination or cross examination,
or the production of any document or other thing, the Magistrate shall issue such process unless
he considers that such application should be refused on the ground that it is made for the purpose
of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him
in writing.
When the accused has cross examined or had the opportunity of cross examining any witness
before entering on his defence, the attendance of such witness shall not be compelled under this
section unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under Sub Section (2)
requires that the reasonable expenses incurred by the witness in attending for the purpose of the
trial be deposited in the Court.

Section 248: Acquittal or Conviction-

 52

(1) If, in any case, under this Chapter in which a charge has been framed, the Magistrate finds
the accused not guilty, he shall record an order of acquittal.
(2) Where, in any case under this Chapter, the Magistrate finds that the accused guilty, but does
not proceed in accordance with the provisions of Section 325 or Section 360, he shall after
hearing the accused on the question of sentence, pass sentence upon him according to law.
(3) Where, in any case under this Chapter, a previous conviction is charged under the provisions
of Sub Section (7) of Section 211and the accused does not admit that he has been previously
convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused,
take evidence in respect of the alleged previous conviction, and shall record a finding thereon.
No such charge of previous conviction shall be read out by the Magistrate nor shall the accused
be asked to plead thereon 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 under Sub Section
(2).

Section 249: Absence of Complainant-

When the proceedings have been instituted upon complaint, and on any day fixed for the hearing
of the case, the complainant is absent, and the offence may be lawfully compounded or it is not a
cognizable offence, the Magistrate may, in his discretion, notwithstanding hereinbefore
contained, at any time before the charge has been framed, discharge the accused.

III. Trial of Summon cases by Magistrates

Chapter XX of the Criminal Procedure Code deals with trial of Summon cases by the Magistrate.
This Chapter runs from Section 251 to Section 259.
Section 251: Substance of accusation to be stated- When in a summon case the accused
appears or is brought before the Magistrate, the particulars of the offence of which he is accused
shall be stated to him, and shall be asked whether he pleads guilty or has any defence to make,
but it shall not be necessary to frame a formal charge.
 53

In Krishna Kumar Variar v. Share Shoppe,127 a complaint against the accused for committing
offences under Section 415/420 IPC was instituted. The accused challenged the summoning
order before the Supreme Court on the ground that the Metropolitan Magistrate lacked the
territorial jurisdiction. The petition was rejected by the High Court against which SLP was filed.
It was held that in such cases instead of rushing to the High Court, the accused should file an
application before the trial court. The Supreme Court observed:
In our opinion, in such cases where the accused or any other person raises the objection
that the trial court has no jurisdiction in the matter, the said person should file an
application before the trial court making this averment and giving relevant facts. Whether
a court has jurisdiction to try/entertain a case will, at least in part, depends upon the facts
of the case. Hence instead of rushing to the higher court against the summoning order, the
person concerned should approach the trial court with a suitable application for this
purpose and the trial court should after hearing both the sides and recording evidence, if
necessary, decide the question of jurisdiction before proceeding with the issue.
In Raujeev Taneja v. NCT of Delhi, 128 the petitioner challenged the summoning order under
Section 138 of the NI Act issued by the Metropolitan Magistrate, Saket New Delhi, on the
ground that he was not a signatory of the cheque issued. The High Court directed the accused to
urge the plea before the trial court at the stage of framing the notice. Similarly, in Urrshila
Kerkar v. Make My Trip (India) Pvt. Ltd,129 the accused challenged the summoning order in a
complaint of defamation. The High Court directed the accused to raise all pleas before the
Metropolitan Magistrate at the stage of notice under Section 251 Cr PC. The Delhi High Court
observed:
…the appropriate stage at which these aspects are required to be considered is the stage
of framing of Notice under Section 251 Cr PC. Such a view is taken as the trial court is
not expected to mechanically frame Notice under Section 251 Cr PC and has to apply its
mind to find out as to whether a prima facie case is made out or not, and in the event of

127
(2010) 12 SCC 485

128
Crl.MC 384/2016

129
Crl MC 2598/2012 & Crl MA 13279/2012
 54

finding that no case is made out for proceeding against a particular accused, the trial court
will be well within its right to drop the proceedings against such accused.
In Bhushan Kumar v. State (NCT, Delhi), 130 it was held that it is the bounden duty of the Trial
Court in Section 251 to satisfy whether the offence against the accused is made out or not and to
discharge the accused if no charge is made out against him. The Supreme Court observed:
It is inherent in Section 251 of the Code that when accused person appears before the trial
court pursuant to summon issued under Section 204 of the Code in a summons trial case,
it is the bounden duty of the trial court to carefully go through the allegations made in the
charge sheet or the complaint and consider the evidence to come to the conclusion
whether or not, commission of any offence is disclosed and if the answer is in the
affirmative, the Magistrate shall explain the substance of the accusation to the accused
and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as
per Section 239 of the Code. (Para 20)
In Arvind Kejariwal v. Amit Sibal, 131 the respondent instituted a complaint of defamation against
the petitioner under Section 500 and 501 read with Section 34 and 120B of the IPC. The
Metropolitan Magistrate issued summons to the petitioners. The petitioners challenged the
summoning order inter alia on the ground that that the respondent is not the aggrieved party
within the meaning of Section 199 (1) Cr PC. The Delhi High Court observed:
The trial Court has to frame the notice under Section 251 Cr PC where no prima facie
case is made out against the petitioners, the hearing at the stage of notice under Section
151 Cr PC would be a mere farce and would result in failure of justice. In warrant cases
whether arising out of police report or complaint, the learned magistrate is empowered to
discharge the accused if no prima facie case is made out against him under Section 239
Cr PC, where as in summons cases, such power is given to the Magistrate only in the
cases other than complaint cases meaning thereby that the Magistrate has to frame the
notice and proceed with the matter even if no prima facie case has been made out against

130
AIR 2012 SC 1747

131
2015 Cri LJ 215 (Del.)
 55

the accused. As such, the denial of the remedy of discharge to the accused in summon
cases at the stage of notice under Section 251 Cr PC is clearly discriminatory. 132

Section 252: Conviction on plea of guilty- If the accused [leads guilty, the Magistrate shall
record the plea as nearly as possible in the words used by the accused and may, in his discretion,
convict him thereon.
Section 253: Conviction on Plea of guilty in absence of accused in petty cases – (1) Where a
summon has been issued under Section 206 and the accused desires to plead guilty to the charge
without appearing before the Magistrate, he shall transmit to the Magistrate, by post or
messenger, a letter containing his plea and also the amount of fine specified in the summons.
(2)The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty
and sentence him to pay the fine specified in the summons, and the amount transmitted by the
accused shall be adjusted towards that fine, or where a pleader authorized by the accused in this
behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as
possible in the words used by the pleader and may, in his discretion, convict the accused the
accused on such plea and sentence him as aforesaid.
Section 254: Procedure when not convicted - (1) If the Magistrate does not convict the
accused under Section 252 or Section 253, the Magistrate shall proceed to hear prosecution and
take all such evidence as may be produced in support of the prosecution, and also hear the
accused and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused,
issue a summon to any witness directing him to attend or to produce any document or other
thing.
(3)The Magistrate may, before summoning any witness on such application, require that the
reasonable expenses of the witness incurred in attending for the purpose of the trial be deposited
in Court.
Section 255: Acquittal or Conviction – (1) If the Magistrate, upon taking the evidence referred
to in Section 254 and such further evidence, if any, as he may, of his own motion, caused to be
produced, finds the accused not guilty, he shall record an order of acquittal.

132
Id at 224
 56

(2) Where the Magistrate does not proceed in accordance with the provisions of Section 325 or
Section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
(3)A Magistrate may, under Section 252 or Section 255, convict the accused of any offence
triable under this Chapter, which forms the facts admitted or proved he appears to have
committed, whatever be the nature of the complaint or summons, if the Magistrate is satisfied
that the accused would not be prejudiced thereby.
Section 256: Non – appearance or death of Complainant – (1) if the summon has been issued
on complaint, and on the day appointed for the appearance of the accused, or any day subsequent
thereto which hearing may be adjourned, the complainant does not appear, the Magistrate shall,
notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he
thinks it proper to adjourn the hearing of the case to some other day. This may apply also where
the non appearance of the complainant is due to his death.
Where the complainant is represented by a pleader or by the officer conducting the prosecution
or where the Magistrate is of the opinion that the personal attendance of the complainant is not
necessary, the Magistrate may dispense with his attendance and proceed with the case.
In Martin v. Khileshwar Prasad,133 after the appearance of the accused in a summon trial case,
the Judicial Magistrate dismissed the complaint for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881in the absence of the complainant/applicant as envisaged in
Section 256 of the Code. The order of dismissal was sought to be quashed under Section 482 of
the Code. It was argued on behalf of the applicant that the Court below ought not to have
dismissed the complaint instead of adjourning the same; the trial Court has thus committed
illegality. It was held that the remedy against dismissal is to file appeal under Section 378 (4) of
the Code and under such a situation it cannot be said that the applicant is remediless. The
petition under 482 for quashing the dismissal order or restoration of complaint is, therefore, not
maintainable.
The Karnataka High Court however in Smt. R. Rajeshwari v. H.N. Jagdish,134 held that the
complaint dismissed in want of prosecution may be restored in exercise of inherent jurisdiction
under Section 482 of the Criminal Procedure Code.

133
2014 Cri LJ 1414 (Chh.)

134
2002(2) BC 89 as referred in Martin v. Khileshwar Prasad 2014 Cri LJ 1414 (Chh.)
 57

The effect of dismissal of any summon trial in terms of Section 256 of Cr. PC would be acquittal.
The Supreme Court in Maj. Gen. A.S. Gouraya v. SN Thakur,135 while dealing with the question
of restoration of dismissed complaint and acquittal of the accused on the ground of non
appearance of the complainant has held that the Magistrate has no jurisdiction to restore or
revive the dismissed complaint on a subsequent application of the complainant. The Code does
not permit a Magistrate to exercise an inherent jurisdiction which he otherwise does not have.
In Smt. Kavita Devi v. State of Jharkhand, 136 while the original complainant died and his
grandson made an application to make pairavi in the case on behalf of the deceased, the
petitioner opposed it on the ground that due to death of the complainant, the case was fit to be
dismissed. The Trial Court allowed the applicant to conduct pairavi on behalf of the deceased.
The petitioner argued Section 256 (2) and the opposite party took the argument of Section 302 of
137
the Cr PC. The Jharkhand High Court rejecting the application of Section 302 in this case,
observed that:
Both these provisions clearly show that Section 302 of the Cr PC is a general provision,
whereas Section 256 (2) of the Cr PC deals with specific case of non appearance of the
complainant due to his death. Section 256 (2) clearly provides that in case of non
appearance of the complainant due to his death, the provisions of Section 256 (1) shall, so
far as may be, apply. Section 256 (1) clearly states that for non appearance of the
complainant, the accused is to be acquitted. However, there is a proviso to sub Section
(1) of Section 256 but the said proviso is not applicable in the case death of the
complainant.

135
AIR 1986 SC 1440
136
2016 Cri LJ 2077 (Jhark.)
137
Section 302: Permission to conduct Prosecution- (1) Any Magistrate inquiring into or trying a case may permit
the prosecution to be conducted by any person other than a police officer below the rank of Inspector, but no person,
other than the Advocate General or Public Prosecutor or assistant Public Prosecutor, shall be entitled to do so
without such permission.

(2) Any person conducting the prosecution may do so personally or by a pleader.

 58

The Apex Court in S Ramakrishna v. Rami Reddy, 138laid down the law in case of death of the
complainant, the proviso appended to Sub Section (1) of Section 256 of Cr PC is not
applicable. 139The Supreme Court observed:
Section 256 of the Code of Criminal Procedure empowers a Magistrate to pass an order
of acquittal on non appearance or death of the complainant. The complaint petition was
filed in 2001 and the complainant Rami Reddi died in 2001. .. It is not a case where the
proviso appended to sub Section (1) of Section 256 of the Code was applicable.
The Delhi High Court in Om Saran v. Mrs. Satya Dhawan, 140the Karnataka High Court in
Subbanna Hegde v. Dyavappa Gowda,141 and the Rajasthan High Court in Ratan Singh v. Chain
Singh142 it was held that in case of the death of the complainant, the Magistrate would have no
discretion but to acquit the accused in view of Section 256 (2) of the Cr PC.

Section 257: Withdrawal of Complaint – If a complainant, at any time before a final order is
passed in any case in this Chapter, satisfies the Magistrate that there are sufficient grounds for
permitting him to withdraw his complaint against the accused, or if there be more than one
accused, against all or any of them, the Magistrate may permit him to withdraw the same, and
shall thereupon acquit the accused against whom the complaint is so withdrawn.
In Dr. CA Rajan v. State of Kerala 143 it was held that merely because complainant has not been
able to furnish correct address of accused, which even police could not properly verify, it cannot
be a situation of withdrawal of complaint. For withdrawal of complaint, there should be
conscious motion made by complainant that he intends to withdraw the complaint and he should
be able to satisfy Magistrate that there are sufficient grounds for permitting to withdraw his

138
AIR 2008 SCW 2824
139
A contrary view was taken in Balasaheb Thackreray v. Venkat @ Babru (2006) 5 SCC 530 and Rashida
Kamaluddin Syed v. Shaikh Sahebal Mardan 2007 Cri LJ 2306 (SC) where the Supreme Court permitted the legal
heir to continue prosecution after the death of the complainant.
140
1990 Cri LJ 1619 (Del.)
141
1980 Cri LJ 1405 (Karn.)
142
2000 Cri LJ 2736 (Raj.)
143
2017 Cri LJ 2017 4836 (Ker.)
 59

complaint against accused and only thereafter that Magistrate can permit complaint to withdraw
same, in which case, Magistrate should also acquit accused.
Section 258: Power to stop proceeding in certain cases- If in any summon case instituted
otherwise than upon complaint, a Magistrate of first class or, with the previous sanction of the
Chief Judicial Magistrate, any other Judicial Magistrate, may, for the reason to be recorded by
him, stop the proceeding at any stage without pronouncing any judgment and where such
stoppage of proceedings is made after the evidence of the principal witness has been recorded,
pronounce a judgment of acquittal, and in any other case, release the accused, and such release
shall have the effect of discharge.
In Deevi Srinivasa Sai Radha Lakshmi v. State of AP, 144 the petitioners and two others were
facing criminal trials for the offences punishable under Section 323, 427, 452, 506, 509 read with
Section 34 IPC. It was a private summon case. The matter was in the mid way of the defence
evidence. At this stage, the petitioners filed an application under Section 258 Cr PC to stop the
proceeding against them mainly on the ground that during the evidence the complainant changed
the time of offence and stated as if it took place at 11.30 pm while earlier it was stated to have
taken place at 11.00 pm. The Magistrate dismissed the application u/s 258 on the ground that
benefit under Section 258 can be extended only to the cases instituted on police reports but not
the private complaints and hence a petition under Section 482 for quashing the order of the
Magistrate. Rejecting the petition, the Hyderabad High Court held:
…it is clear that stoppage of proceeding at different stages as contemplated under Section
258 Cr PC can take place only in those cases instituted otherwise than upon a complaint
…since the case on hand is one instituted upon private complaint, the benefit of Section
258 Cr PC cannot be extended to it.145
The Apex Court in John Thomas v. K. Jagdeeshan,146 held that ‘one of the normal rules of the
summons cases is that once trial started, it should reach its normal culmination. Bur Section 258
is included in Chapter XX of the Code in the form of an exception to the aforesaid normal

144
2015 Cri LJ 2900 (Hyd.)
145
Id. at 2901
146
AIR 2001 SC 2651
 60

progress chart of the normal trial in summons cases. But by Section 258 powers of the Court to
discharge an accused in midway stage is restricted to those cases instituted otherwise than on
complaints wherein no material witness was examined at all’. 147
Similarly, in Manjunath C. Kummar v. A. Kantjhilak & Co. 148 the Karnataka High Court
observed as under:
In these matters the proceedings are initiated on the basis of complaints under Section
200 Cr PC. Under such circumstances, the learned Magistrate does not get jurisdiction to
proceed under Section 258 Cr PC and the same can be exercised only if the proceedings
are instituted otherwise than upon a complaint. In other words, the language of Section
258 is clear that his Section applies only to cases bases on police report. As the present
cases are based on private complaints, Section 258 Cr PC will not apply to these cases.
In Aliyar v. Food Inspector, Mallapuram Circle, 149it was held that since the present case is a case
instituted upon complaint, the court below was perfectly correct in holding that since the case
was being tried following the procedure for summons case, the court below had no jurisdiction to
discharge the revision petitioner after his appearance before the court in response to the summon
issued from the court.
Section 259: Power of Court to Convert Summon Cases into Warrant Cases -
When in the course of the trial of a summon case relating to an offence punishable with
imprisonment for a term exceeding six months, it appears to the Magistrate that in the interest of
justice, the offence should be tried in accordance with the procedure for the trial of warrant
cases, such Magistrate may proceed to re hear the case in the manner provided by this Code for
the trial of warrant cases and may recall any witness who may have been examined.

147
Id. at

148
2003 Cri LJ 2944 (Karn.)

149
2016 Cri LJ 4255 (Ker.)
 61

IV. Summary Trials

Chapter XXI of the Criminal Procedure Code, 1973 deals with Summary Trials. The provisions
relating to it are from Section 260 to Section 265.
Section 260: Power to try summarily:
According to Section 260 the following may try cases in summary way:
1. Any Chief Judicial Magistrate;
2. Any Metropolitan Magistrate’
3. Any Magistrate of first class specially empowered by the High Court.
However, Section 261 provides that the High Court may confer on any Magistrate invested with
the power of a Magistrate of the second class power to try summarily any offence which is
punishable only with fine or with imprisonment for a term not exceeding six months with or
without fine, and any abetment of or attempt to commit any such offence.
The above mentioned may try cases in summary way in respect of following offences:
(i) Offences not punishable with death, imprisonment for life or imprisonment for a term
exceeding two years;
(ii) Theft, under Section 379, Section 380 of the Indian Penal Code where the value of the
property stolen does not exceed two thousand rupees;
(iii)Receiving or retaining stolen property, under Section 411of the Indian Penal Code where
the value of the property stolen does not exceed two thousand rupees;
(iv) Assisting in the concealment or disposal of stolen property under Section 414 of the
Indian Penal Code where the value of the property stolen does not exceed two
thousand rupees;
(v) Offences under Sections 454 and 456 of the Indian Penal Code;
(vi) Insult with intent to provoke a breach of the peace, under Section 504 and criminal
intimidation punishable with imprisonment for a term which may extend to two years,
or with fine, or with both, under Section 506 of the Indian Penal Code;
(vii) Abetment of any of the foregoing offences;
(viii) An attempt to commit any of the foregoing offences when such attempt is an offence;
(ix) Any offence constituted by an act in respect of which a complaint may be made under
Section 20 of the Cattle Trespass Act, 1871.
 62

Section 260 (2) provides that when, in the course of a summary trial it appears to the Magistrate
that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall
recall any of the witnesses who have been examined and proceed to rehear the case in the
manner provided in the Code.
150
In Abdul Khabeer v. Mohd. Osmanuddin, the case was filed for offence punishable under
Section 138 of the Negotiable Instruments Act, 1881. The accused was convicted and sentenced
to suffer imprisonment for a period of two months. He was also directed to pay compensation of
Rs. 3 Lakh and fine of Rs. two thousand. The Sessions judge modified the sentence of
imprisonment to till the rising of the Court and compensation was increased to Rs. 3.5 Lakh and
fine order was set aside. It was argued that the case was tried as summons case but in summary
manner. It was also submitted on behalf of the petitioner that in view of the provisions of Section
143 of the NI Act151 it needs to be presumed that the case was tried in summary manner. The
Bombay High Court observed as:
If the provisions of Section 260 of the Criminal Procedure Code is compared with the
second proviso of Section 143 (1) of the NI Act, it can be said that under Section 260 of
the Code, the Magistrate is expected to first ascertain that a particular summons case can
be tried in summary manner and then he may go for the summary trial of that case. The
law does not require the Magistrate to pass any order in that regard and from the record, it
can be ascertained as to whether the case was tried in summary manner. However, under
Section 143 of the NI Act, the JMFC is ordinarily expected to try the case filed under
Section 138 of the Act in summary manner. At any time, after the beginning of the trial,
if the JMFC forma an opinion that for imposing more sentence (exceeding the period of
one year imprisonment) or any other reason, it is undesirable to try the case summarily,
the JMFC is expected to give hearing to the parties and the JMFC is expected to record
the order to that effect. From the wording of the Section, it can be said that such order can
be made at any stage after the commencement of the trial, but it needs to be presumed

150
2015 Cri LJ 1281 (Bom.)
151
Sewction 143 of the Negotiable Instruments Act, 1881 reads as: Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 all offences under this Chapter shall be tried by a Judicial Magistrate of the first class
or by a Metropolitan magistrate and the provisions of Section 262 to Section 265 of the said Code shall, as far as
may be, apply to such trials
 63

that the Magistrate is expected to try the case filed under Section 138 of the NI Act,
ordinarily in summary manner….there is discretion under Section 260 of the Code with
the JMFC (who is invested with the power) to try any case falling in the categories
mentioned in Section 260 in summary manner, though the discretion needs to be used
judiciously and the JMFC has discretion to try the cases filed under Section 138 of the NI
Act as regular summon case and not in summary manner, but for that the JMFC is
expected to pass an order.

Section 262. Procedure for summary trials:

The Magistrate trying any case summarily shall follow the procedure specified in the Code for
the trial of summons case. However, according to Section 262 (2) no sentence exceeding three
months shall be passed in case of any conviction under this chapter.
In Valalpana @ Pana @ Pino v. State of Mizoram, 152 the petitioner accused was convicted by the
Magistrate under Section 454/380/75 of the IPC. The revision was filed contending that the trial
magistrate failed to offer him any legal assistance to represent his case while the prosecution was
represented by the Assistant Public Prosecutor. The accused also contended that the copy of
charge sheet was not furnished to him before conducting the trial and, as such, he was not aware
about the charges leveled against him; it was also argued that without affording an opportunity of
hearing and without having power to try the case summarily, the Judicial Magistrate convicted
him. Quashing the conviction, the High Court observed:
Chapter XXI of the Criminal Procedure Code consisting Section 260 to 265 provides for
Summary Trial and the Chief judicial Magistrate may try the offences under Section 414,
380 and 454 IPC in a summary way as provided under Section 260 but as per the
provisions of Section 262 Cr PC the procedure specified in the said Code for the trial of
summons case has to be followed in a summary trial> In the present case, the accused
petitioner has been convicted under Section 380 and 454 IPC but from the perusal of the
record, it is seen that while convicting the accused petitioner the Trial Court neither
followed the procedure of summary trial nor the procedure of summon trial or the
procedure of warrant case in its proper manner… without compliance of the provisions of

152
2016 Cri LJ 2650 (Gau.)
 64

law and procedure laid down by the Code and in arbitrary exercise of his judicial
discretion. 153
Section 263. Record in summary trials: In every case tried summarily, the Magistrate shall
enter, in such form as the State Government may direct, the following particulars namely:
(a) the serial number of the case;
(b) the date of the commission of the offence;
(c) the date of report or complaint;
(d) the name of the complainant, if any;
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence, if any, proved, and in cases coming under
clause (ii), clause (iii) or clause (iv) of Sub Section (1) of Section 260, the value of the
property in respect of which the offence has been committed;
(g) the plea of the accused and his examination, if any;
(h) the finding;
(i) the sentence or other fine order;
(j) the date on which proceedings terminated.
Section 264 Judgment in cases tried summarily: In every case tried summarily in which the
accused does not plead guilty, the Magistrate shall record the substance of the evidence and a
judgment containing a brief statement of the reason for the finding.
Section 265. Language of record and Judgment:
(1) Every such record and judgment shall be in the language of the Court.
(2) The High Court may authorize any magistrate empowered to try summarily to prepare the
aforesaid record or judgment or both by means of an officer appointed in this behalf by
the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by
the Magistrate,

153
Id at 2653