INTRODUCTION
With respect to trial of any case by Court of Sessions, a Session’s Court cannot directly take cognizance of any offence exclusively triable by such court, according to the First Schedule. A competent Magistrate may take cognizance of such an offence and commit the case to the Court of Sessions for trial.
Then, once the case has been committed to the Session’s Court, the trial thereto proceeds as follows:-
PRE-REQUISITES FOR PROCEEDINGS
[Sec.225] Trial to be conducted by a Public Prosecutor.
In every trial, before the Court of Sessions, the prosecution shall be conducted by a Public Prosecutor.
[Sec.24]– defines a Public Prosecutor and lays down it’s eligibility criteria and also the procedure for it’s appointment.
INITIAL STEPS IN THE TRIAL
[Sec.226] Opening case for Prosecution
When accused appears, prosecutor shall open his case by
- describing the charge brought against the accused,
- and stating by what evidence he proposes to prove the guilt of the accused.
[Sec.227] Discharge
If, upon consideration of
- record of the case and
- documents submitted AND
After hearing submission of accused and prosecution,
Judge considers that – there is no sufficient ground for proceedings against the accused,
He SHALL DISCHARGE the accused and record the reasons for doing so.
The Hon’ble Supreme Court on this said that, if sufficient grounds are there, charge must be framed. BUT if the material on record is insufficient, then DISCHARGE o the accused is an essential procedure.1
[Sec.228] Framing of Charge
If, after such consideration and hearing (as aforesaid), Judge is of the opinion that – there is a ground for presuming that the accused has committed the offence, which is
- not exclusively triable by Court of Sessions. He MAY – Frame the charge and Transfer the case.
- Exclusively triable by Court of Sessions he SHALL
– Frame a charge (in writing)
– Charges shall be READ and EXPLAINED to the accused
– Accused shall be asked if he PLEADS GUILTY or not.
[Sec.229] Conviction on Plea of Guilty
If the accused pleads, guilty, Judge SHALL record the plea and MAY convict him thereon.
There was a case whereby the accused was charged with committing the murder of his wife, he did not plead guilty at the time of framing charges under section 228, but subsequently confessed his crime in Open Court. It was held that the Accused can plead guilty at any stage of the trial.
EXAMINATION FOR PROSECUTION
[Sec.230] Date for Prosecution Evidence
If accused pleads not guilty or is not convicted u/s 229, Judge shall – fix date for examination of witnesses for prosecution.
[Sec.231] Evidence for prosecution
On the date so fixed, Judge shall proceed to take all evidence, in support of prosecution, Judge may permit cross examination of any such witness.
[Sec.232] Acquittal
If after prosecution’s evidence, Judge considers – no evidence that, accused committed the offence, Then – shall record an ORDER OF ACQUITTAL
EVIDENCE FOR DEFENCE
[Sec.233]Entering upon Defence.
Where accused not acquitted under section 232, he shall be called upon to enter on his defence.
If the accused applies for, Judge shall issue process to any witness.
[Sec.234] Arguments.
When examination of witnesses is complete
- Prosecution shall sum up his case, and
- Accused shall be entitled to reply.
JUDGEMENT AND CONNECTED MATTERS
[Sec.235] Judgement of Acquittal or Conviction
After hearing arguments, Judge SHALL give a judgement of acquittal or conviction.
Hereby the very important question arise in the mind of a keen law learner that what is the difference between an acquittal under section 235 and a discharge under section 227.
Therefore, the DIFFERENCE BETWEEN an ACQUITTAL and a CONVICTION is as follows…
ACQUITTAL
- An acquittal can be said to be one where a person who is accused of an offence is properly tried of the offence after being charged under it, and pursuant to all the enquiry, investigation, examination, adjudication, arguments, production and discovery of all the facts related thereto, the Judge comes to the conclusion that the person who has been accused of the offence and has been tried thereof is not guilty of the offences.
- In case of an Acquittal, the person acquitted of the offence cannot be re-arrested for any matter related to the same for which he has already been tried.
- An acquittal of the accused person can also come into effect because of many reasons other than that at the time of conclusion of proceedings the Judge acquitted him, but also because of
- the absence of the complainant, for a long time other than on the dates he has already been excused for by the Judge himself,
- the withdrawal of the complaint by the complaint for any reason other than under any undue influence, or force, etc.
- the offence has been compounded legally.
- Acquittal always takes place at the last stage of the proceeding of the case and after all the process of making of charges, examination of witnesses, etc.
DISCHARGE
- A Discharge takes place at the very initial stage of the proceeding. It happens when prior to the framing of charges, after considering the record of the case, the facts in detail, the documents submitted, hearing submissions of prosecution and defence, and in some cases the preliminary evidence, the judge is of the opinion that the prosecution has failed to establish any sufficient ground based upon which the accused should be tried and made to be suffered with the pains of being prosecuted. And therefore, the Judge Discharges the accused.
- In case of a Discharge, the person discharged of the offence can be re-arrested in case further investigation is to be done.
- A discharge cannot take place because any reason other than that the Judge is of the opinion, prior to framing of charges, that there is no sufficient grounds for proceeding against the accused.
- A Discharge of the accused always takes place at the very beginning stages and compulsorily prior to the framing of the charges. A discharge after the framing of charge is irregular, unprecedented and supposedly irrational.
1 1977 SCR (3) 113
2 WRIT – A No. – 14570 of 2009
Author: Shivam Srivastava,
School of Law, IIMT - 4th year
