Trial Before Court of Session

Seema Kanwar
11 Jun, 2022
Criminal Law, Family Law, Women Protection

Table of Contents

Introduction

As the title indicates, the article is about the procedure to be followed while a trial is being conducted in a court of session. Chapter VIII, sections 225 to 237 of the Code of Criminal Procedure,1973 deals with the detailed provisions regarding trials before the Session Court.

Meaning of ‘Trial’

the word trial is not defined in the Code of Criminal Procedure,1973. It also had not been defined in subsequent codes of 1882,1898 and 1973. The word trial has no universal meaning but it is used in the sense of a stage of after inquiry. In simple words,

the trial is the adjudication of a person’s guilt or innocence.

Court of session

Section 6 of the Code of Criminal Procedure, 1973 provides the classification of criminal courts and section 26 provides courts by which offences are triable, session court takes place as a trial court in it. As we know according to section 7, every state shall be a session division or shall consist of session divisions and the state govt. shall establish a session court for every session division (section 9). Every state has its high court and each district within a state has its district court. When this district court hears any criminal matter, it is referred to as the court of session. Thus, the court of session is a district court hearing a criminal matter before it.

According to section 193, no session court shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under section 209 of this code, except for the purpose as given in section 237.

Court of session: Power

According to section 28(2), a session judge may pass any sentence authorized by law, but the sentence of death passed by any such judge shall be subject to confirmation by the High court.

The procedure of trial before the Session Court

In the Code of Criminal Procedure,1973 procedure which is trialled before session court is mentioned in Chapter VIII, sections 225 to 237. procedure is following

Who shall conduct prosecution in a trial before the court of sessions? (Section 225)

Section 225 of the Code specifically empowers Public Prosecutor to conduct prosecution in every trial before Sessions Court. In every case there are two parties, one is a victim and the other is the accused. The public prosecutor is appointed by govt. on the behalf of the victim to fight the case because the crime is not only against the victim but also against the society at large, whereas the accused will have his own defence counsel. If the accused does have not sufficient means to have his own defence counsel, on the request of the accused govt. provides a pleader or counsel free of cost.

The opening case for the prosecution (Section 226)

The public Prosecutor will open the case with his opening statement as per section 226 of the code. When the accused appears or is brought before the court in pursuance of the commitment of the case under section 209, In every trial, the prosecution is to start by putting forward the charge and the evidence against the accused in order to prove his guilt. The charge includes particulars of offence and manner in which offence was committed, a summary of when or what happened with the victim and the law in which the offence was made punishable. At this stage, full details of the evidence need not be stated. The opening of the prosecution case must only be to matters which are necessary to follow the evidence. It is not necessary for a Public Prosecutor in opening the case for the prosecution to give full details of the evidence with which he intends to prove his case.

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When no sufficient ground for proceeding against the accused: Discharge (Section 227)

The Court, on considering the documents and records submitted of the case, and hearing the submission of prosecution and the accused on the matter, shall discharge the accused if the Judge thinks that there is no sufficient ground to proceed against the accused. The Judge is required to record his reasons for discharging the accused under section 227. The object of Section 227 was made out by the Supreme Court in the case of Kewal Krishan v. Suraj Bhan that it was to save the accused from prolonged harassment which is necessary cancomait a protracted trial.

The following principles that Judges need to keep in mind while exercising the power of discharge:

The Judge while considering the question of discharging the accused has undoubted power to weigh and scale the evidence to find whether the prima facie case against the accused has been made out or not.
If the material in the case shows grave suspicion against the accused which has not been properly explained, the court will be justified in framing the charge and proceeding with the trial.
The test to determine a prima facie case depends from case to case and a universal rule cannot be applied. In such cases, the Judge has the discretion to try the case.
The court can in no circumstance act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, and the total effect of the evidence and documents produced before it. The Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence in conducting the trial.

Framing of Charge: matter exclusively triable by session court or triable by other courts (Section 228)

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According to section 228, When the Sessions Court has grounds for presuming that the accused has committed the alleged offence and that such offence is exclusively triable by the session court, the Judge presiding over the session court shall frame the charge against the person alleged to have committed the offence. Then charge shall be read and explained to the accused. The accused shall then be asked if he pleads guilty or claims to be tried. An accused to be aware of the accusations for which he is brought to trial. In addition, he should also be given a chance to present his statement whether he pleads guilty or not. As held in the case of Kesho Singh v. Emperor, if necessary, the judge may ever interrogate the accused in order to ascertain whether he fully understands the responsibility that he assumes by making a plea of guilty.

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If the case is not exclusively triable by the session court then the Judge may frame a charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class. He shall direct the accused to the Judicial Magistrate to whom the case has been transferred. The Magistrate shall then try the case in accordance with the procedure laid down for the trial of the warrant-cases instituted upon a police report.

Conviction on plea of guilty (Section 229)

The accused may plead guilty under section 229 or he can refuse to plead. It’s the discretionary power of the court to accept the plea of guilty and convict or not. If the accused pleads guilty and the court accepts the plea then the judge records the plea and convicts him but if the Judge is not sure that the plea has been made voluntarily and not under any inducement, the court refuses the plea and proceeds further.

In the landmark case of Queen-Empress v. Bhadu, it was held that the plea of guilty must be in unambiguous terms, otherwise, such a plea is considered equivalent to a plea of not guilty. Such a plea of guilt must be presented before the court by the accused personally and not through his pleader.

When the accused does not plead guilty, the Date fixes for prosecution evidence (Section 230)

If the accused refused to plea guilty or claims to be tried or is not convicted under section 229 then for the further proceeding court or judge shall fix a date for the examination of witnesses. If the prosecution files an application to issue a notice to compel a witness for attendance or production of any document or other things if the court thinks fit may issue a notice to any witness. On the date so fixed for evidence, the judge shall take evidence in support of the prosecution.

Evidence for prosecution (Section 231)

Under section 231(1) On the date so fixed, the judge shall proceed to take all such evidence in support of the prosecution. Such evidence of the prosecution is given a significant value in terms of its relevance to the accused committing the alleged offence. After the examination-in-chief, in the interest of justice Court has discretionary power to 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 under section 231(2).

When no sufficient evidence is found against the accused: Acquittal (Section 232)

As per section 232, after taking the evidence, examination of accused and hear both prosecution and defence, the court finds that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal. Judge has to be given reasons as to why the order for acquittal is given. This provision prevents unnecessary harassment of the accused by calling upon him for further steps of trial.

When does the accused need to provide for his defence: entering upon Defence (Section 233)

According to section 233 (1) of the code, 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.

Under sub section (2) If the accused puts in any written statement, the Judge shall file it with the record.

As per sub-section (3), 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 for reasons to be recorded. That such application should not be refused unless he considers that it is made for the purpose of vexation or delay or for defeating the ends of justice.

The argument before the court of session (Section 234)

Section 234 provides as to how arguments are to be carried out by both the parties. When the examination of the witness for the defence is complete, the prosecution shall sum up his case and the accused or his pleader shall be the one to reply. This means that the arguments are to take place after the defence has submitted its evidence and only in case the prosecution objects to it. It is the role of the prosecution, to sum up, the case and after which if needed, the defence is to submit its reply. There is a proviso, according to which, the prosecution may with the permission of the court make its submission on any point of law raised by the defence or his pleader. Once the Judge has heard both the parties, he can proceed to give judgment as per Section 235(1). This aspect of the trial is totally procedural and no special reference is needed.

Judgement: Acquittal or Conviction (Section 235)

As per section 235, a Judge will pronounce a judgement of acquittal or conviction after hearing the arguments of both the parties i.e, the prosecution and defence and on point of law (if any). However, considering the character of the offender, the circumstances of the case and the nature of the offence, the Judge may as per section 360 decide to release the offender on probation of good conduct. If the accused is acquitted, the acquittal will be done according to the procedure laid down under Section 232 and if he is convicted he shall be dealt according to Section 235. In Narpal singh v. state of Haryana, it was held that, in case of non-compliance with this provision, the case may be remanded to the Sessions Judge for retrial on the question of sentence only. It is not necessary for the Judge to hold a new trial altogether it will be restricted to the question of sentence only.

Procedure in case of previous conviction (236)

Section 236 talks about previous convictions. It says that if an accused is charged with a convicted previously under section 211(7) and he does not admit that he has been previously convicted with the alleged charge. The Judge after convicting the accused under Section 229 or Section 235 may call for evidence of the accused of such previous conviction and shall record findings, in case the accused is liable to enhanced punishment or punishment of a different kind. The proviso to this Section mentions that such charge shall not be read out by the Judge, nor shall the accused be asked to plead nor shall the prosecution refer to such previous conviction. Section 236 provides for a special procedure for determining liability to enhanced punishment as a consequence of a previous conviction. Also, prohibiting the proof of previous conviction to be given until and unless the accused is convicted, is to prevent the accused from being prejudiced at the trial.

Conclusion:

In this article all the procedures relating to the sessions trial. The Code of Criminal Procedure provides an opportunity for the accused for a fair trial and makes an effort to avoid any delay in investigation or trial. The Judge in every case ensures that the accused is given a fair opportunity of hearing and defending his case. The Code also provides for legal aid to an indigent accused who is unable to engage a lawyer in compliance with the constitutional requirements and also as required by Section 304 so that any person accused of committing an offence is not wrongly convicted and justice is served.

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