Procedure of Trial before a Court of Sessions under Section 209 of the Code of Criminal Procedure

After considering the record of the case and the document submitted therewith, and after hearing the submissions of the accused as well as of the prosecution, if the Judge considers that there is no sufficient ground for proceeding against the accused, he must discharge the accused and record his reasons for doing so. The object of this provision regarding recording of reasons is to enable the Superior Court to examine the correctness of the order of the Sessions Judge discharging the accused. (L.M. Muniswamy—A.I.R. 1977 S.C. 1489)

If, on the other hand, after considering the record and documents and after hearing the submissions, as stated above, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence—

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(a) which is not exclusively triable by the Court of Session,— he may frame a charge against the accused and transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the First Class, who must then try the offence in accordance with the procedure for the trial of warrant-case instituted on a Police report;

(b) Which is exclusively triable by that Court, — the Judge must frame a charge in writing against the accused. In such a case, the charge must be read and explained to the accused, and the accused must be asked whether he pleads guilty of the offence with which he is charged, or whether he claims to be tried.

As observed by the Supreme Court, it is clear that under the above procedure, at the initial stage of the trial, the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused.

In other words, at that early stage of the trial, the Judge is not obliged to consider, in any detail, and weigh in a sensitive balance, whether the facts, if proved, would be incompatible with the innocence of the accused or not. At this stage, the Court is not to see whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in a conviction.

Therefore, if at the initial stage, there is a strong suspicion which leads to the Court to think that there is ground for presuming that the accused has committed an offence, and then it is not open to the Court to declare that there is no sufficient ground for proceeding against the accused. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable at this stage of the trial. (Ramesh Singh,—A.I.R. 1977 S.C. 2018)

S. 229 then provides that if the accused pleads guilty, the Judge must record such a plea, and in his discretion, the Judge may convict him on such plea. It is interesting to note that this section does not answer the question as to whether, in a warrant-case, the leader of the accused can be allowed to plead guilty on behalf of the accused.

The question has been considered in several cases, and the High Courts of Bombay, Calcutta and Madhya Pradesh have taken the view that if the accused is present, his plea must be recorded, even though his pleader is also present, but if the attendance of the accused has been dispensed with, the pleader may be allowed to plead guilty on behalf of the accused.

If the accused refuses to plead guilty or does not plead guilty, or claims to be tried, or is not convicted despite pleading guilty, the Judge must fix a date for examination of witnesses. On the application of the prosecution, the Judge may also issue any process for compelling the attendance of any witness or the production of any document or other thing.

On the date so fixed, the Judge must proceed to take all such evidence as may be produced in support of the prosecution. In his discretion, the Judge may also permit the cross-examination of any witnesses to be postponed until any other witness or witnesses have been examined. After taking such evidence, examining the accused, and hearing the prosecution and the defence on the point, if the Judge considers that there is no evidence that the accused committed the offence, the Judge must record an order of acquittal.

If, however, the accused is not acquitted as above, he is to be called upon to enter his defence and adduce any evidence which he may have in support thereof. If the accused submits any written statement, the Judge must file it with the record. Similarly, if the accused applies for the issue of any process for compelling the attendance of any witness, or the production of any document or other thing, the Judge must issue such process, unless he considers that such an application should be refused on the ground that it is made for the purpose of vexation or for delaying or defeating the ends of justice. In case of such refusal, the Judge must, however, record his reasons for doing so.

When the examination of the defence witnesses is complete, the Prosecutor sums up his case, and the accused or his Pleader is entitled to give a reply thereto. If any point of law is raised by the accused or his Pleader in such reply with the permission of the Judge, the prosecution can make its submissions with regard to such point of law.

S. 235 then provides that, after hearing the arguments and points of law, if any, the Judge must give a judgment in the case. Departing from the earlier Code, the present Code (i.e. the 1973 Code) provides that if the accused is convicted, the Judge must then hear the accused on the question of the sentence to be passed against him, and only thereafter, can he pass a sentence against him according to the law. This is, however, not necessary in cases where, after the conviction, the Judge orders the accused to be released on probation after admonition.

The Law Commission has observed that the requirement of hearing the accused specifically on the question of sentence before actually passing the sentence has been added in the present Code as it is a desirable provision. This requirement is introduced, because it may happen that the accused may have some grounds to urge for giving him consideration in regard to the quantum of the sentence, as for example, that he is the only bread-winner of the family, of which fact the Court may not have been aware during the entire trial.

The Supreme Court, whilst commenting on the true construction of S. 235 of the Code, has observed that the Court must, in the first instance, deliver a judgment convicting or acquitting the accused. If the accused is acquitted, no further question would arise. But if he is convicted, then the Court must hear him on the question of the sentence to be imposed on him, and it is only after hearing him on this point, that the Court can proceed to pass the sentence against him. (Santa Singh v. State of Punjab, A.I.R. 1979 S.C. 2386)

It is thus clear that this new provision serves a healthy social purpose. The right to be heard on the question of the sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can be placed before the Court. The social compulsions, the presence of poverty, the retributive instinct to seek an extra-legal remedy, the sense of being wronged, the lack of means to be educated in the difficult art of honest living, the parentage, heredity factors, etc., — all these and similar other considerations can, hopefully and legitimately, tilt the balance on the propriety of the sentence. Therefore, the provisions of S. 235 must be obeyed both in its letter and spirit.

In Santa Singh v. State of Punjab (discussed above), the Court remanded the matter to the Sessions Court on account of failure on the part of the convicting Court to hear the accused on the question of sentence. However, in a later case, Dagdu’s case (AIR. 1977 S.C. 1579), the Supreme Court observed that just because this was done in Santa Singh’s case, this does not mean that in every such case, there has to be a remand.

In other words, failure on the part of the convicting Court to hear the accused on the question of sentence does not necessarily entail a remand to the Court in order to afford such an opportunity to hear the accused once again on the quantum of the punishment. However, this is the exception, and not the rule, and therefore, ought to be avoided as far as possible, in the interest of expeditious, though fair, disposal of cases.

In such cases, it may be more appropriate for the Appellate Court to give an opportunity to the accused in terms of S. 235, instead of going through the exercise of sending the case back on the trial Court, which may lead to more expense and unnecessary delay. (Ram Lakhan Singh, – 1977 3 S.C.C. 218)

It may also be noted that this section is not applicable when the minimum sentence prescribed for any particular offence is imposed by the Court. As observed by the Supreme Court, the object of the section is to give a fresh opportunity to the convicted person to bring to the notice of the Court such circumstances as may help the Court in awarding an appropriate sentence, having regard to the personal, social and other circumstances of the case.

Therefore, when it is a case of conviction under S. 302 of the Indian Penal Code, and the minimum sentence is imposed on the accused, the question of providing an opportunity to him under S. 235 of the Criminal Procedure Code would not arise. (Tarlok Singh, — A.I.R. 1977 S.C. 1747)

It is also provided that in a case where a previous conviction is charged under S. 211(7), and the accused does not admit that he has been previously convicted, as alleged in the charge, the Judge may, after convicting the accused, take evidence in respect of the alleged previous conviction, and must thereafter record his findings thereon.