Module 9

MODULE 9

TRIAL AND JUDGEMENT

4.1. ELEMENTS OF FAIR TRIAL:

As should be clear by now, it may appear on the face of the Code that the
CrPC is merely a procedural code, but underlying the procedures, in many
instances, are the upholding of the substantive rights of the accused, and the
institutions taking part in the criminal process. What follows is a discussion
of those principles.

4.1.1. Malimath Committee (MC): Adversarial System:

The system followed in India for dispensation of criminal justice is the
adversarial system of common law inherited from the British Colonial Rulers.
In the adversarial system, truth is supposed to emerge from the respective
versions of the facts presented by the prosecution and the defence before a
neutral judge. The judge acts like an umpire to see whether the prosecution
has been able to prove the case beyond reasonable doubt and gives the benefit
of doubt to the accused. It is the parties that determine the scope of dispute
and decide largely, autonomously and in a selective manner on the evidence
that they decide to present to the court. The trial is oral, continuous and
confrontational.

4.1.2. Mohanlal v. Union of India:

In such a situation, a question that arises for consideration- whether the
presiding officer of a Court should simply sit as a mere umpire at a contest
between two parties and declare at the end of the combat who has won and

who has lost or is there not any legal duty of his own, independent of the
parties to take an active role in the proceedings in finding the truth and
administering justice? It is a well accepted and settled principle that a Court
must discharge its statutory functions whether discretionary or obligatory –
according to law in dispensing justice because it is the duty of a Court not
only to do justice, but also to ensure that justice is being done.

4.1.3. Malimath Committee: Flaws in the Adversarial System:

The judge, in his anxiety to maintain his position of neutrality, never takes
any initiative to discover truth. He does not correct the aberrations in the
investigation or in the matter of production of evidence before court. As the
adversarial system does not impose a positive duty on the judge to discover
truth, he plays a passive role. The system is heavily loaded in favour of the
accused and is insensitive to the victims’ plight and rights. Over the years,
taking advantage of several lacunae in the adversarial system, large number
of criminals are escaping convictions. This has seriously eroded the
confidence of the people in the efficacy of the System. Therefore, it is
necessary to examine how to plug the escape routes and to block the possible
new ones.

4.1.4. Adversarial vs. Inquisitorial:

One school of thought is that the Inquisitorial system followed in France,
Germany, Italy and other Continental countries is more efficient and
therefore, a better alternative to the adversarial system. In the inquisitorial
system, power to investigate offences rests primarily with the judicial police
officers (Police/ Judiciary). They investigate and draw the documents on the

basis of their investigation. The Judicial police officer has to notify in writing
of every offence which he has taken notice of and submit the dossier prepared
after investigation, to the concerned prosecutor. If the prosecutor finds that no
case is made out, he can close the case. If, however he feels that further
investigation is called for, he can instruct the judicial police to undertake
further investigation.

4.1.7. Section 327: Court to be Open:

(1) The place in which any Criminal Court is held for the purpose of
inquiring into or trying any offence shall be deemed to be an open Court, to
which the public generally may have access, so far as the same can
conveniently contain them: Provided that the presiding Judge or Magistrate
may, if he thinks fit, order at any stage of any inquiry into, or trial of, any
particular case, that the public generally, or any particular person, shall not
have access to, or be or remain in, the room or building used by the Court.

(2) Notwithstanding anything contained in sub- section (1), he inquiry into
and trial of rape or an offence under section 376, section 376A, section 376B,
section 376C or section 376D of the Indian Penal Code shall be conducted in
camera: Provided that the presiding judge may, if he thinks fit, or on an
application made by either of the parties, allow any particular person to have
access to, or be or remain in, the room or building used by the court.

(3) Where any proceedings are held under sub- section (2), it shall not be
lawful for any person to print or publish any matter in relation to any such
proceedings, except with' the previous permission of the court.

4.1.8. Section 479: Judge or Magistrate Not to be Personally Interested in the
Case:

No Judge or Magistrate shall, except with the permission of the court to
which an appeal lies from his court, try or commit for trial any case to or in
which he is a party, or personally interested, and no Judge or Magistrate shall
hear an appeal from any judgment or order passed or made by himself.

Explanation. A Judge or Magistrate shall not be deemed to be a party to, or
personally interested in, any case by reason only that he is concerned therein
in a public capacity, or by reason only that he has viewed the place in which
an offence is alleged to have been committed or any other place in which any
other transaction material to the case is alleged to have occurred and made an
inquiry in connection with the case.

4.1.10. Right to Legal Aid for Indigent Persons:

“Article 39A emphasises that free legal service is an inalienable element of
'reasonable, fair and just’ procedure, for without it, a person suffering from
economic or other disabilities would be deprived of the opportunity for
securing justice. The right to free legal service is therefore, clearly an
essential ingredient of 'reasonable, fair and just’ procedure for a person
accused of an offence and it must be held implicit in the guarantee of Art. 21.
This is a constitutional right of every accused person who is unable to engage
a lawyer and secure legal services, on account of reasons such as poverty,
indigence or incommunicado situation and the State is under a mandate to
provide a lawyer to an accused person if the circumstances of the case and

the needs of justice so require, provided of course the accused person does
not object to the provision of such lawyer.”

- Hussainara Khatoon (1980) 1
SCC 98.

4.1.12. Burden of Proof:

The courts believe that it is better that ten guilty persons escape rather than
one innocent person suffer. It is from such concern of the courts to safeguard
personal liberty of the citizens that flows the standard of ‘proof beyond
reasonable doubt’.Proof beyond reasonable doubt clearly imposes an onerous
task on the prosecution to anticipate every possible defence of the accused
and to establish that each such defence could not be made out. In (1994) 1
S.C.C. 73, State of West Bengal vs.Orilal Jaiswal, the Supreme Court said
“… ..there is no absolute standard of proof in a criminal trial and the
question… … must depend upon the facts and circumstances of the case…
… The doubt must be of reasonable man and the standard adopted must be a
standard adopted by a reasonable and just man…“Proof beyond reasonable
doubt” is understood by different Judges differently. How this principle
actually operates in the minds of the decision maker is not easy to gather.”

4.1.14. Constitutional Rights of the Accused:

1. Accused has a right against double jeopardy. [Art 20 (2)].

2. Accused has a right not to be compelled to be a witness against himself.
[Art 20 (3)].

3. No accused shall be deprived of his life or personal liberty except in
accordance with procedure established law which is just, fair and reasonable.
[Art 21].

4. Accused has a right to fair and speedy trial. [Art 21].

5. Accused has a right to assistance of a Counsel. [Art 22 (1)].

6. Right to be produced before the Magistrate within 24 hours of arrest
excluding the time for travel. [Art 22 (2)].

7. Right not to be detained in custody beyond 24 hours after arrest excluding
the time for travel without the order of the Magistrate. [Art 22 (2)]

4.1.15. Right to a Speedy Trial:

“The State cannot avoid its constitutional obligation to provide speedy trial to
the accused by pleading financial or administrative inability. The State is
under a constitutional mandate to ensure speedy trial and whatever is
necessary for this purpose has to be done by the State. It is also the
constitutional obligation of this Court, as the guardian of the fundamental
rights of the people as a sentinel on the qui-vive, to enforce the fundamental
right of the accused to speedy trial by issuing the necessary directions to the
State which may include taking of positive action, such as augmenting and
strengthening the investigative machinery, setting up new courts, building
new court houses, appointment of additional judges and other measures
calculated to ensure speedy trial.”

- Hussainara Khatoon (1980) 1
SCC 98.

4.2. TRIALS: SOME COMMON FEATURES

Article 348 of the Constitution/ Section 272 CrPC:

348: Language to be used in the Supreme Court and in the High Courts: …(1)
(a) all proceedings in the Supreme Court and in every High Court…shall be
in the English language.

272: Language of Courts: The State Government may determine what shall
be for purposes of this code the language of each court within the State other
than the High Court.

4.2.1. Power to summon material witness, or examine person present –
Section 311:

Any court may, at any stage of any inquiry, trial or other proceeding under
this Code, summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall and re-examine any
person already examined; and the court shall summon and examine or recall
and re-examine any such person if his evidence appears to it to be essential to
the just decision of the case.

§ Vijay Kumar v. State

This was a case of bribery wherein the notion of ``Material witness'' was
considered in addition to arbitrary exercise of power. In a boundary dispute
between R and Municipality, T and S, officers of latter, demanding bribe
from appellant to settle matter - Appellant being father of R, conducting the

case as R had gone away to USA - R if ``material witness'' in bribe case
against S & T - In a bribe case, held, what is required to be proved by
prosecution is that there was a demand of bribe by accused from complainant
and that pursuant to said demand bribe amount was accepted by accused - To
prove this case, it was not necessary for court to examine R - High Court
failed to consider case of prosecution, that application by T to summon and
examine R as a court witness was only to delay trial, as he was fully aware
that R was residing in USA and it was difficult for her to appear as witness,
and that no case was made out by T as to why direction should be given to
examine R as a court witness - R was neither present when bribe was
demanded nor when trap was arranged and laid.

§ Mohanlal Shamji v. Union of India

It is cardinal rule in the law of evidence that the best available evidence
should be brought before the Court to prove a fact or the points in issue. But,
it is left either for the prosecution or for the defence to establish its respective
case by adducing the best available evidence and the Court is not empowered
under the provisions of the Code to compel either the prosecution or the
defence to examine any particular witness or witnesses on their sides.
Nonetheless, if either of the parties withholds any evidence which could be
produced and which, if produced, be unfavourable to the party withholding
such evidence, the Court can summon any person as a witness or examine
any person in attendance, though not summoned, as a witness or recall or
reexamine any person in attendance though not summoned…because if

judgments happen to be rendered on inchoate, inconclusive and speculative
presentation of facts, the ends of justice would be defeated.

4.2.1.1. The Ambit of the Power under Section 311:

The power under the Section is not meant to be exercised for the benefit of
the accused only, and it will not be an improper exercise of the powers of the
court to summon a witness merely because the evidence supports the
prosecution’s case.

The SC has approved the summoning of a witness at the instance of the
complainant even when the case has been posted for judgment.

4.2.2. Section 312: Payment of Expenses of Complainants and Witnesses:

Subject to any rules made by the State Government, any Criminal Court may,
if it thinks fit, order payment, on the part of Government, of the reasonable
expenses of any complainant or witness attending for the purposes of any
inquiry, trial or other proceeding before such court under this Code.

4.2.2.1. The General Rule:

“There are two methods of testing evidence and ensuring that truth comes out
in evidence. The first is by administration of oath and the other is by cross-
examination. The administration of oath is designed to secure truthfulness in
evidence by providing not only moral sanction but also sanction of perjury.
Cross-examination on the other hand, extracts truth and exposes falsehood
much against the will of the person examined. The exercise of the right of

cross-examination has always been regarded as one of the most efficacious
tests which the law has devised for discovery of truth. So important is this
right, that the law declares that no evidence affecting a party is admissible
against that party unless the latter has had an opportunity of testing its
truthfulness by cross-examination. These are the two most important
safeguards against false testimony and unless evidence is given on oath and is
tested by cross-examination, it is not legally admissible against the party
affected.”

- Justice Bhagwati in the case of Suleman
Usman Memon.

4.2.2.2. Exception: Commissions for the Examination of Witnesses:

(1) Whenever, in the course of any inquiry, trial or other proceeding under
this Code, it appears to a Court of Magistrate that the examination of a
witness is necessary for the ends of justice, and that the attendance of such
witness cannot be procured without an amount of delay, expense or
inconvenience which, under the circumstances of the case, would be
unreasonable, the Court or Magistrate may dispense with such attendance and
may issue a commission for the examination of the witness in accordance
with the provisions of this Chapter:

Provided that where the examination of the President or the Vice President
of India or the Governor of a State or the Administrator of a Union Territory
as a witness is necessary for the ends of justice, a commission shall be issued
for the examination of such a witness.

(2) The court may, when issuing a commission for the examination of a
witness for the prosecution direct that such amount as the court considers
reasonable to meet the expenses of the accused including the pleader’s fees,
be paid by the prosecution.

4.3. INTERROGATORIES – SECTION 287

(1) The parties to any proceeding under this Code in which a commission is
issued may respectively forward any interrogatories to the issue, and it shall
be lawful for the Magistrate, court or officer to whom the Commission is
directed, or to whom the duty of executing it is delegated, to examine the
witness upon such interrogatories.

(2) Any such party may appear before such Magistrate, court or officer by
pleader, or if not in custody, in person, and may examine, cross-examine and
reexamine (as the case may be) the said witness.

4.4. RECORD OF EVIDENCE OF ABSENCE OF THE ACCUSED:

(1) If it is proved that an accused person has absconded and that there is no
immediate prospect of arresting him, the court competent to try or commit for
trial such person for the offence complained of, may, in his absence, examine
the witnesses (if any) produced on behalf of the prosecution, and record their
depositions and any such deposition may, on the arrest of such person, be
given in evidence against him on the inquiry into, or trial for, the offence
with which he is charged, if the deponent is dead or incapable of giving
evidence or cannot be found or his presence cannot be procured without an

amount of delay, expense inconvenience which, under the circumstances of
the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for
life has been committed by some person or persons unknown, the High Court
or the Sessions Judge may direct that any Magistrate of the first class shall
hold an inquiry and examine any witnesses who can give evidence
concerning the offence and any depositions so taken may be given in
evidence against any person who is subsequently accused of the offence, if ’
the deponent is dead or incapable of giving evidence or beyond the limits of
India.

4.5. COURT’S POWER TO HAVE LOCAL INSPECTION – SECTION
310:

(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other
proceeding, after due notice to the parties, visit and inspect any place in
which an offence is alleged to have been committed, or any other place which
it is in his opinion necessary to view for the purpose of properly appreciating
the evidence given at such inquiry or trial, and shall without unnecessary
delay record a memorandum of any relevant facts observed at such
inspection.

(2) Such memorandum shall form part of the record of the case and if the
prosecutor, complainant or accused or any other party to the case, so desires,
a copy of the memorandum shall be furnished to him free of cost.

4.6. POWER TO EXAMINE THE ACCUSED – SECTION 313

(1) In every inquiry or trial, for the purpose of enabling the accused
personally to explain any circumstances appearing in the 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:
Provided that in a summons-case where the court has dispensed with the
personal, attendance of the accused, it may also dispense with his
examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under
subsection (1).

(3) The accused shall not render him self-liable to punishment by refusing to
answer such question, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry
into, or trial for, any other offence which such answers may tend to show he
had committed.

4.6.1. Object of Section 313:

“The object of examination under this Section is to give the accused an
opportunity to explain the case made against him. This statement can be
taken into consideration in judging his innocence or guilt…The word
‘generally’ in sub-section (1) (b) does not limit the nature of the questioning

to one or more questions of a general nature relating to the case, but it means
that the question should relate to the whole case generally and should also be
limited to any particular part or parts of it. The question must be framed in
such a way as to enable the accused to know what he is to explain, what are
the circumstances which are against him and for which an explanation is
needed. The whole object of the section is to afford the accused a fair and
proper opportunity of explaining circumstances which appear against him and
that the questions must be fair and must be couched in a form which an
ignorant or illiterate person will be able to appreciate and understand.

A conviction based on the accuseds failure to explain what he was never
asked to explain is bad in law. The whole object of enacting Section 313 Cr.
P.C.was that the attention of the accused should be drawn to the specific
points in the charge and in the evidence on which the prosecution claims that
the case is made out against the accused so that he may be able to give such
explanation as he desires to give. It is not sufficient compliance to string
together a long series of facts and ask the accused what he has to say about
them. He must be questioned separately about each material substance which
is intended to be used against him. The questionings must be fair and
couched in a form which an ignorant or illiterate person will be able to
appreciate and understand. Even when an accused is not illiterate, his mind is
apt to be perturbed when he is facing a serious charge. Fairness, therefore,
requires that each material circumstance should be put simply and separately
in a way that an illiterate mind, or one which is perturbed or confused, can
readily appreciate and understand.”

– Ranvir Yadav v. State of Bihar (2009)
6 SCC 595.

4.6.2. Form of Examination under Section 313:
“Section 313 of the Code casts a duty on the Court to put in an enquiry or
trial questions to the accused for the purpose of enabling him to explain any
of the circumstances appearing in the evidence against him. It follows as
necessary corollary therefrom that each material circumstance appearing in
the evidence against the accused is required to be put to him specifically,
distinctly and separately and failure to do so amounts to a serious irregularity
vitiating trial, if it is shown that the accused was prejudiced. The object of
Section 313 of the Code is to establish a direct dialogue between the Court
and the accused. If a point in the evidence is important against the accused,
and the conviction is intended to be based upon it, it is right and proper that
the accused should be questioned about the matter and be given an
opportunity of explaining it. Where no specific question has been put by the
trial Court on an inculpatory material in the prosecution evidence, it would
vitiate the trial. Of course, all these are subject to rider whether they have
caused miscarriage of justice or prejudice.”

- Asraf Ali v. State of Assam (2010) 4 SCC
(Cri) 78.

4.6.3. Use of Statements under Section 313:

“The statement of accused under Section 313 of CrPC is not a substantive
piece of evidence. It can be used for appreciating evidence led by the
prosecution to accept or reject it. It is, however, not a substitute for the
evidence of the prosecution. As held in the case of Nishi Kant (Supra) buy
this Court if the exculpatory part of his statement is found to be false and the
evidence led by the prosecution is reliable the inculpatory part of his
statement can be taken aid of to lend assurance to the evidence of the
prosecution. If the prosecution evidence does not inspire confidence to
sustain the conviction of the accused, the inculpatory part of his statement
under Section 313 of CrPC cannot be made the sole basis of his conviction.”

- Mohan Singh v. Prem Singh (2002) 10
SCC 236.

4.6.4. Effect of Error or Omission in Complying with the Form of
Examination under Section 313:

"It is trite law, nevertheless fundamental, that the prisoner's attention should
be drawn to every inculpatory material so as to enable him to explain it. This
is the basic fairness of a criminal trial and failures in this area may gravely
imperil the validity of the trial itself, if consequential miscarriage of justice
has flowed. However, where such an omission has occurred it does not ipso
facto vitiate the proceedings and prejudice occasioned by such defect must be
established by the accused. In the event of evidentiary material not being put

to the accused, the court must ordinarily eschew such material from
consideration. It is also open to the appellate court to call upon the counsel
for the accused to show what explanation the accused has as regards the
circumstances established against him but not put to him and if the accused is
unable to offer the appellate court any plausible or reasonable explanation of
such circumstances, the court may assume that no acceptable answer exists
and that even if the accused had been questioned at the proper time in the trial
court he would not have been able to furnish any good ground to get out of
the circumstances on which the trial court had relied for its conviction.“

- Shivaji Sahabrao Bobade v. State of Maharashtra (1973
(2) SCC 793).

4.6.5. Accused to be Competent Witness – Section 315:

(1) Any person accused of an offence before a Criminal Court shall be a
competent witness for the defence and may give evidence on oath in disproof
of the charges made against him or any person charged together with him at
the same trial: Provided that-

(a) He shall not be called as a witness except on his own request in writing;

(b) His failure to give evidence shall not be made the subject of any comment
by any of the parties or the court or give rise to any presumption against
himself or any person charged together with him at the same trial.

4.6.6. Evidentiary Value of Section 313 and 315 Statements:

“Statement under Section 313 of the Code of Criminal Procedure is taken
into consideration to appreciate the truthfulness or otherwise of the case of

prosecution and it is not an evidence. Statement of an accused under Section
313 of the Code of Criminal Procedure is recorded without administering
oath and, therefore, said statement cannot be treated as evidence…Appellants
have not chosen to examine any other witness to support this plea and in case
none was available they were free to examine themselves in terms of Section
315 of the Code of Criminal Procedure which, inter alia, provides that a
person accused of an offence is a competent witness of the defence and may
give evidence on oath in disproof of the charges. There is reason not to treat
the statement under Section 313 of the Code of Criminal Procedure as
evidence as the accused cannot be cross-examined, with reference to those
statements. However, when an accused appears as witness in defence to
disproof the charge, his version can be tested by his cross-examination.”

- Dehal Singh v. State of H.P. (2010) 9
SCC 85.

4.7. POWER TO PROCEED AGAINST OTHER PERSONS
APPEARING TO BE GUILTY OF OFFENCE – SECTION 319:

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears
from the evidence that any person not being the accused has committed any
offence for which Such person could be tried together with the accused, the
court may proceed against such person for the offence which he appears to
have committed.

(2) Where such person is not attending the court he may be arrested or
Summoned, as the circumstances of ’ the case may require, for the purpose
aforesaid.

(3) Any person attending the court although not trader arrest or upon a
summon, may be detained by such court for the purpose of the inquiry into,
or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under subsection (1) then-

(a) The proceedings in respect of such person shall be commenced afresh,
and witnesses re-heard.

(b) Subject to the provisions of clause (a), the case may proceed as if such
person had been an accused person when the court took cognizance of the
offence upon which the inquiry or trial was commenced.

§ The Case of Hardeep Singh v. Union of India:

“The presumption of innocence is the general law of the land as every man is
presumed to be innocent unless proven to be guilty. Alternatively, certain
statutory presumptions in relation to certain class of offences have been
raised against the accused whereby the presumption of guilt prevails till the
accused discharges his burden upon an onus being cast upon him under the
law to prove himself to be innocent. These competing theories have been kept
in mind by the legislature. The entire effort, therefore, is not to allow the real
perpetrator of an offence to get away unpunished. This is also a part of fair
trial and in our opinion, in order to achieve this very end that the legislature
thought of incorporating provisions of Section 319 CrPC.”

4.7.1. Judge to be Condemned When Guilty Acquitted:

Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens
absolvitur (Judge is condemned when guilty is acquitted) and this doctrine

must be used as a beacon light while explaining the ambit and the spirit
underlying the enactment of Section 319 CrPC. It is the duty of the Court to
do justice by punishing the real culprit. Where the investigating agency for
any reason does not array one of the real culprits as an accused, the court is
not powerless in calling the said accused to face trial. The question remains
under what circumstances and at what stage should the court exercise its
power as contemplated in Section 319 CrPC?

- Hardeep Singh’s
case.

4.7.2. Ambit of Section 319:

Section 319 CrPC allows the court to proceed against any person who is not
an accused in a case before it. Thus, the person against whom summons are
issued in exercise of such powers, has to necessarily not be an accused
already facing trial. He can either be a person named in Column 2 of the
chargesheet filed under Section 173 CrPC or a person whose name has been
disclosed in any material before the court that is to be considered for the
purpose of trying the offence, but not investigated. He has to be a person
whose complicity may be indicated and connected with the commission of
the offence.

4.7.3. Ambit of the Word “Evidence” in Section 319:

“In Dharam Pal's case, the Constitution Bench held that after committal,
cognizance of an offence can be taken against a person not named as an
accused but against whom materials are available from the papers filed by the

police after completion of investigation. Such cognizance can be taken under
Section 193 CrPC and the Sessions Judge need not wait till ‘evidence’ under
Section 319 CrPC becomes available for summoning an additional accused.
Section 319 CrPC, significantly, uses two expressions that have to be taken
note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of
charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries
under Sections 200, 201, 202 CrPC.; and under Section 398 CrPC. are
species of the inquiry contemplated by Section 319 CrPC. Materials coming
before the Court in course of such enquiries can be used for corroboration of
the evidence recorded in the court after the trial commences, for the exercise
of power under Section 319 CrPC to add an accused. In view of the above
position the word ‘evidence’ in Section 319 CrPC has to be broadly
understood and not literally as only evidence adduced during a trial.”

- Hardeep Singh
case.

4.7.4. Evidence does not have to be tested by Cross-Examination:

Does the word “evidence” used in Section 319(1) CrPC mean only evidence
tested by cross-examination or can the court exercise the power under the
said provision even on the basis of the statement made in the examination-in-
chief of the witness concerned?

Considering the fact that under Section 319 CrPC a person against whom
material is disclosed is only summoned to face trial and in such an event
under Section 319(4) CrPC, the proceeding against such person is to
commence from the stage of taking of cognizance, the Court need not wait

for the evidence against the accused proposed to be summoned to be tested
by cross-examination.

4.7.5. Exercising the Discretion under Section 319:

“Though under Section 319(4)(b) CrPC the accused subsequently impleaded
is to be treated as if he had been an accused when the Court initially took
cognizance of the offence, the degree of satisfaction that will be required for
summoning a person under Section 319 CrPC would be the same as that for
framing of ‘charge’. The difference in the degree of satisfaction for
summoning the original accused and a subsequent accused is on account of
the fact that the trial may have already commenced against the original
accused and it is in the course of such trial that materials are disclosed against
the newly summoned accused. Fresh summoning of an accused will result in
delay of the trial - therefore the degree of satisfaction for summoning the
accused (original and subsequent) has to be different.”

- Hardeep Singh Case.

4.7.6. FIR and Section 319

“Does the power under Section 319 CrPC extend to persons not named in the
FIR or named in the FIR but not charged or who have been discharged?

A person not named in the FIR or a person though named in the FIR but has
not been chargesheeted or a person who has been discharged can be
summoned under Section 319 CrPC provided it appears from the evidence
that such person can be tried along with the accused already facing trial.
However, in so far as an accused who has been discharged is concerned the

requirement of Sections 300 and 398 CrPC have to be complied with before
he can be summoned afresh.”

- Hardeep Singh’s
Case.

4.8. PRELIMINARY PLEAS TO BAR FULL TRIAL

§ Section 468: Limitation
§ Section 300(1): Autrefois Acquit and Autrefois Convict:

A person who has once been tried by a court of competent jurisdiction for an
offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again for the
same offence, nor on the same facts for any other offence for which a
different charge from the one made against him might have been made under
sub-section (1) of section 221, or for which he might have been convicted
under subsection (2) thereof.

Illustration: A is tried upon a charge of theft as a servant and acquitted. He
cannot after-wards, while the acquittal remains in force, be charged with theft
as a servant, or upon the same facts, with theft simply, or with criminal
breach of trust.

§ Tried by a “Court of Competent Jurisdiction”

It is not possible to hold that a proceeding before the Collector of Customs is
a prosecution for an offence. In order to get the benefit of Section 403,
Criminal Procedure Code or Article 20(2), it is necessary for an accused
person to establish that he had been tried by a “Court of competent

jurisdiction” for an offence and he is convicted or acquitted of that offence
and the said conviction or acquittal is in force. If that much is established, it
can be contended that he is not liable to be tried again for the same offence
nor on the same facts for any other offence for which a different charge from
the one made against him might have been made under Section 221 or for
which he might have been convicted under Section 222. It has been
repeatedly held by this Court that adjudication before a Collector of Customs
is not a “prosecution” nor the Collector of Customs a “Court”.

§ Prior Proceedings Must be Criminal in Nature:

In Maqbool Hussain v. State of Bombay (1953) 56 Bom.L.R. 13 S.C. , the
Court held that the wording of Article 20 of the Constitution and the words
used therein show that the proceedings therein contemplated are proceedings
of the nature of criminal proceedings before a Court of law or a judicial
tribunal and "prosecution" in this context would mean an initiation or starting
of proceedings of a criminal nature before a Court of law or a judicial
tribunal in accordance with the procedure prescribed in the statute which
creates the offence and regulates the procedure. This Court further held that
where a person against whom proceedings had been taken by the Sea
Customs authorities under Section 167 of the Sea Customs Act and an order
for confiscation of goods had been passed, was subsequently prosecuted
before a criminal Court for an offence under Section 23 of the Foreign
Exchange Regulation Act in respect of the same act, the proceeding before
the Sea Customs authorities was not a "prosecution" and the order for
confiscation was not a "punishment" inflicted by a Court or judicial tribunal

within the meaning of Article 20(2) of the Constitution and hence his
subsequent prosecution was not barred.

§ Section 300(2):

“Sub-section (2) of Section 300, Cr.PC reads as follows: A person acquitted
or convicted of any offence may be afterwards tried, with the consent of the
State Government, for any distinct offence for which a separate charge might
have been made against him at the former trial under Sub-section (1) of
Section 220. When a person commits three offences in the course of the same
transaction and if such person could have been tried for all the three offences
in the same trial and was, however, tried only for two offences, it is but fair
and proper that the question of again putting him on trial for the remaining
offence is seriously considered by a responsible authority. In the instant case
the offence of conspiracy, though committed in the course of the same
transaction in which the offences of murders and dacoities were committed,
was not known to the prosecution at the time the accused persons were tried
for the offences of murders and dacoities. It cannot therefore be said that the
accused might have been charged for the offence of conspiracy at the time of
the trials for the murders and dacoities. Sub-section (2) of Section 300, Cr.PC
applies only for offences for which charge might have been framed at the
previous trials.”

- Inguva Mallikarjuna Sharma vs The State Of
Andhra Pradesh.

§ Section 300(3):

A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different offence
from that of which he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not happened or were not known
to the court to have happened, at the time when he was convicted. A is tried
for causing grievous hurt and convicted. The person injured afterwards dies.
A may be tried again for culpable homicide.

§ Section 300(4)

A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction be subsequently charged with,
and tried for, any other offence constituted by the same acts which he may
have committed if the Court by which he was first tried was not competent to
try the offence with which he is subsequently charged.

Illustration: A Magistrate of the second class convicts A of theft of property
from the person of B. A Magistrate of the first class may subsequently try A
on a charge of robbery on the basis of the same facts, because the Magistrate
of the second class

§ Miscellaneous:

(5) A person discharged under section 258 shall not be tried again for the
same offence except with the consent of the court by which he was
discharged or of any other court to which the first-mentioned court is
subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the
General Clauses Act, 1897 (safeguard against double jeopardy) or of section
188 of this Code.

Explanation. The dismissal of a complaint, or the discharge of the accused, is
not an acquittal for the purposes of this section.

§ Principle of Issue-Estoppel:

Speaking of this type of estoppel, Dixon, J. said in The King v. Wilkes:
“Whilst there is not a great deal of authority upon the subject, it appears to
me that there is nothing wrong in the view that there is an issue estoppel, if it
appears by record of itself or as explained by proper evidence, that the same
point was determined in favour of a prisoner in a previous criminal trial
which is brought in issue on a second criminal trial of the same prisoner.
Such rules are not to be confused with those of res judicata, which in criminal
proceedings are expressed in the pleas of autre fois acquit and autre fois
convict. They are pleas which are concerned with the judicial determination
of an alleged criminal liability and in the case of conviction with the
substitution of a new liability. Issue-estoppel is concerned with the judicial
establishment of a proposition of law or fact between parties. It depends upon
well-known doctrines which control the relitigation of issues which are
settled by prior litigation.”

- Manipur Admin v.Thockcham Bira
Singh.

“ “The law which gives effect to issue-estoppels is not concerned with the
correctness or incorrectness of the finding which amounts to an estoppel, still
less with the process of reasoning by which the finding was reached in fact....
It is enough that an issue or issues have been distinctly raised or found. Once
that is done, then, so long as the finding stands, if there be any subsequent
litigation between the same parties, no allegations legally inconsistent with
the finding may be made by one of them against the other.“ It is, therefore,
clear that s. 300 of the Criminal Procedure Code does not preclude the
applicability of this rule of issue-estoppel. The rule being one which is in
accord with sound principle and supported by high authority and there being
a decision of this Court which has accepted it as a proper one to be adopted,
we do not see any reason for discarding it.”

- Manipur Admin v. Thockcham Bira
Singh.

§ Compounding of Offences - Section 320:

A criminal act in which a person agrees not to report the occurrence of a
crime or not to prosecute a criminal offender in exchange for money or other
consideration is compounding of offences

Some compoundable offences: Adultery, Assault or use of criminal force,
Wrongful confinement, Criminal/House Trespass, Defamation, Act caused by
making a person believe that he will be an object of divine displeasure.

Offences compoundable with permission of Court: Voluntarily causing
grievous hurt on grave and sudden provocation, Outraging the modesty of

woman, Cheating and dishonestly including delivery of property or the
making, alteration or destruction of a valuable security etc.

§ Withdrawal from Prosecution - Section 321:

The Public Prosecutor or Assistant Public Prosecutor in charge of a case may,
with the consent of the Court at any time before the judgment is pronounced,
withdraw from the prosecution of any person either generally or in respect of
any one or more of the offences for which he is tried;and upon such
withdrawal, –

(a) If it is made before a charge has been framed, the accused shall be
discharged in respect of such offence or offences;

(b) If it is made after a charge has been framed, or when under this Code no
charge is required he shall be acquitted in respect of such offence or offences:

Provided that where such offence-

(i)Was against any law relating to a matter to which the executive power of
the Union extends, or

(ii) Was investigated by the Delhi Special Police Establishment under the
Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii) Involved the misappropriation or destruction of, or damage to, any
property belonging to the Central Government, or

(iv) Was committed by a person in the service of the Central Government
while acting or purporting to act in the discharge of his official duty, And the
Prosecutor in charge of the case has not been appointed by the Central

Government he shall not, unless he has been permitted by the Central
Government to do so, move the Court for its consent to withdraw from the
prosecution and the court shall, before according consent, direct the
Prosecutor to produce before it the permission granted by the Central
Government to withdraw from the prosecution.

§ Withdrawal of Complaint – Section 257

If a complainant, at any time before a final order is passed in any case under
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 a trial of a warrant case initiated on
a private complaint, the complainant cannot be withdraw the complaint;
however, when more charges than one have been framed against the same
person and a conviction has been obtained on one of the charges, the
complainant or prosecutor may withdraw the remaining charges with the
consent of the court.

§ Non-Appearance of Complainant – Sections 249 and 256:

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

If the summons has been issued on complaint and on the day appointed for
the appearance of the accused, or any day subsequent thereto to which the
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:

Provided that where the complainant is represented by a pleader or by the
officer conducting the prosecution or where the Magistrate is of opinion that
the personal attendance of the complainant is not necessary, the Magistrate
may dispense with his attendance and proceed with the case.

§ Conditional Pardon to an Accomplice – Sections 306 and 307

§ Section 308: Trial of person not complying with conditions of pardon:

Where, in regard to a person who has accepted a tender of pardon made under
section 306 or section 307, the Public Prosecutor certifies that in his opinion
such person has, either the condition on which the tender was made, such
person may be tried for the offence in respect of which the pardon was so
tendered or for any other offence of which he appears to have been guilty in
connection with the same matter, and also for the offence of giving false
evidence:

Provided that such person shall not be tried jointly with any of the other
accused:

Provided further that such person shall not a tried for the offence of giving
false evidence except with the sanction of the High Court.
4.9. TRIAL BEFORE A SESSIONS COURT – SECTION 26
Subject to the other provisions of this Code-
(a) Any offence under the Indian Penal Code (45 of 1860) may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other court by which such offence is shown in the First Schedule to
be triable

4.9.1. Opening Case for Prosecution:
When the accused appears or is brought before the court in pursuance of a
commitment of the case under section 209, the 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.
4.9.2. Discharge of the Accused - Section 227:
If, upon consideration of the record of the case and the documents submitted
herewith, 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.

4.9.3. Sufficient Ground for Proceeding:

“…the order framing a charge affects a person's liberty substantially and
therefore it is the duty of the court to consider judicially whether the material
warrants the framing of the charge. It cannot blindly accept the decision of
the prosecution that the accused be asked to face a trial…Section227 of the
new Code contains an analogous power which is conferred on the Sessions
Court...for the purpose of determining whether there is sufficient ground for
proceeding against an accused the court possesses a comparatively wider
discretion in the exercise of which it can determine the question whether the
material on the record, if unrebutted, is such on the basis of which a
conviction can be said reasonably to be possible.”

- State of Karnataka v.
Muniswamy.

4.9.4. Section 228(1): Framing of Charge:

(1) If, after such consideration and hearing as aforesaid, the Judge is of
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, 1[ or any other Judicial Magistrate of the first class and
direct the accused to appear before the Chief Judicial Magistrate, or, as the
case may be, the Judicial Magistrate of the first class, on such date as he

deems fit, and thereupon such Magistrate] shall try the offence in accordance
with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the court, he shall frame in writing a charge
against the accused.

4.9.5. Test to determine a Prima Facie Case Against the Accused – Anil
Kumar Bhunja’s Case:

The Magistrate had to see whether the facts alleged and sought to be proved
by the prosecution prima facie disclose the delivery of the fire-arms by the
respondents. It may be remembered that the case was at the stage of framing
charges; the prosecution evidence had not yet commenced. The Magistrate
has therefore, to consider the above question on a general consideration of the
materials placed before him by the investigating police officer. At this stage,
as was pointed out by this Court in State of Bihar v. Ramesh Singh, the truth,
veracity and effect of the evidence which the prosecutor proposes to adduce
are not to be meticulously judged. The standard of test, proof and judgment
which is to be applied finally before finding the accused guilty or otherwise,
is not exactly to be applied at the stage of Section 227 or 228 of the Code of
Criminal Procedure, 1973. At this stage, even a very strong suspicion
founded upon materials before the Magistrate, which leads him to form a
presumptive opinion as the existence of the factual ingredients constituting
the offence alleged; may justify the framing of charge against the accused in
respect of the commission of the offence.

4.9.6. Explaining Charge to Accused and Enquiring About Plea:

Section 228(2): Where the Judge frames any charge under clause (b) of sub-
section (1), the charge shall be read and explained to the accused and the
accused shall be asked whether he pleads guilty of the offence charged or
claims to be tried.

4.9.7. Conviction on Plea of Guilty- Section 229:

If the accused pleads guilty; the Judge shall record the plea and may, in his
discretion, convict him thereon. A person is taken to have pleaded guilty only
if he has pleaded guilty to the facts constituting ingredients of the offence.

The SC has clarified that if an accused who has not been confronted with the
substance of the allegations against him, pleads guilty to the violation of a
provision of law, that plea is not a valid plea at all.

4.9.8. Prosecution Evidence - Sections 230 and 231:

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.

(1) On the date so fixed, the Judge shall proceed to take all such evidence as
may be produced in support of the prosecution.

(2) The Judge may, in this discretion, 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.

4.9.9. Examination of Witnesses

“…plea is regarding non-examination of certain persons who were stated to
be present. In trials before a Court of Session the prosecution "shall be
conducted by a Public Prosecutor". Section 226 of the Code of Criminal
Procedure, 1973 (for short 'the Code') enjoins on him to open up his case by
describing the charge brought against the accused. He has to state what
evidence he proposes to adduce for proving the guilt of the accused. If he
knew at that stage itself that certain persons cited by the investigating agency
as witnesses might not support the prosecution case he is at liberty to state
before the Court that fact. Alternatively, he can wait further and obtain direct
information about the version which any particular witness might speak in
court. If that version is not in support of the prosecution case it would be
unreasonable to insist on the Public Prosecutor to examine those persons as
witnesses for prosecution.”

- Banti v. State of M.P.

4.9.10. Discretion of the Prosecution:

“When, the case reaches the stage envisaged in Section 231 of the Code the
Sessions Judge is obliged "to take all such evidence as may be produced in
support of the prosecution". It is clear form the said section that the Public
Prosecutor is expected to produce evidence "in support of the prosecution''
and not in derogation of the prosecution case. At the said stage the Public
prosecutor would be in a position to take a decision as to which among the

persons cited are to be examined. If there are too many witnesses on the same
point the Public Prosecutor is at liberty to choose two or some among them
alone so that the time of the Court can be saved from repetitious depositions
on the same factual aspects. That principle applies when there are too many
witnesses cited, if they all had sustained injuries at the occurrence. The
Public Prosecutor in such cases is not obliged to examine all the injured
witnesses. If he is satisfied by examining any two or three of them, it is open
to him to inform the Court that he does not propose to examine the remaining
persons in that category. This will help not only the prosecution in relieving
itself of the strain of adducing repetitive evidence on the same point but also
help the Court considerably in lessening the workload.”

- Banti v. State of M.P.

4.9.11. Section 276: Record of Evidence

(1) In all trials before a Court of Session, the evidence of each witness shall,
as his examination proceeds, be taken down in writing either by the presiding
Judge himself or by his dictation in open court or his direction and
Superintendence, by an officer of the court appointed by him in this behalf.

(2) Such evidence shall ordinarily be taken down in the form of a 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.

(3) The evidence so taken down shall be signed by the presiding Judge and
shall form part of the record.

4.9.12. Section 278: Procedure in regard to such evidence when completed:

(1) As the evidence of each witness taken under section 275 or section 276 is
completed, it shall be read over to him in the presence of the accused, if in
attendance, or of his pleader, if he appears by pleader, and shall, if necessary,
be corrected.

(2) If the witness deities the correctness of any part of the evidence when the
same is read over to him, the Magistrate or 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 think necessary.

(3) 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.

4.9.13. Sections 279 and 280

§ 279. Interpretation of evidence to accused or his pleader:

(1) Whenever any evidence is given in a language not understood by the
accused, and he is present in court in person, it shall be interpreted to him in
open court in a language understood by him.

(2) If he appears by pleader and the evidence is given in a language other
than the language of the court and not understood by the pleader, it shall be
interpreted to such pleader in that language.

(3) When documents are put for the purpose of formal proof, it shall be in the
discretion of the court to interpret as much thereof as appears necessary.

§ 280. Remarks respecting demeanour of witness:

When a Presiding Judge or magistrate has recorded the evidence of a
witnesses, he shall also record such remarks (if any) as he thinks material
respecting the demeanour of such witness whilst under examination.

§ Examination of the Accused: Sections 311 and 313
§ Acquittal 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. The Supreme Court has held that what Section
232 requires to be done is that if the trial Judge comes to the conclusion that
there is evidence to show that the accused has committed the offence, then
the accused should be called upon to enter upon his defence and that the
value to be attached to that evidence is not to be considered at that stage.
Hence, it is clear that under Section 232, the Sessions Judge is required to
come to the conclusion that there is evidence to show that the accused has
committed the offence and at that time, he is not to decide what value is to be
attached to that evidence. If he finds that there is no evidence within the
meaning of what is narrated above, then he has power to acquit the accused.

4.9.14. Evidence for the Defence:

(1) 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.

(2) lf the accused puts in any written statement, the Judge shall file it with the
record.

(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 unless he considers, for reasons to be recorded,
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.

4.9.15. Section 234: Closing Arguments

When the examination of the witnesses (if any) for the defence is complete,
the prosecutor shall sum up his case and the accused or his pleader shall be
entitled to reply: Provided that where any point of law is raised by the
accused or his pleader, the prosecution may, with the permission of the
Judge, make his submissions with regard to such point of law.

• Trial of Warrants Case by Magistrates: See Sections 238-250.

4.10. TRIAL OF SUMMONS CASES AND SUMMARY TRIAL:

4.10.1. Sections 251 and 252

Explaining the Accusation and Conviction on Plea of Guilty: When in a
summons-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
he shall be asked whether he pleads guilty or has any defence to make, but it
shall not be necessary to frame a formal charge. If the accused pleads 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.

4.10.2. Hearing the Prosecution’s Case and Acquittal - Sections 254 and
255:

(1) If the Magistrate does not convict the accused under section 252 or
section 253, the Magistrate shall proceed to hear the prosecution and take all
such evidence as may be produced in support of the prosecution, and also to
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 summons to any witness directing him to attend or to
produce any document or other thing.

(3) A Magistrate may, before summoning any witness on such application,
require that the reasonable expenses of the witness incurred in attending for
the purposes of the trial be deposited in court.

(4) 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, cause to be
produced, finds the accused not guilt, he shall record an order of acquittal.

4.10.3. Magistrate Not Having Jurisdiction - Section 322:

(1) If, in the course of any inquiry into an offence or a trial before a
Magistrate in any district, the evidence appears to him to warrant a
presumption-

(a) That he has no jurisdiction to try the case or commit it for trial, or

(b) That the case is one which should be tried or committed for trial by some
other Magistrate in the district, or

(c) That the case should be tried by the Chief Judicial Magistrate, he shall
stay the proceedings and submit the case, with a brief report explaining its
nature to the Chief Judicial Magistrate or to Such other Magistrate, having
Jurisdiction, as the Chief Judicial Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered,
either try the case himself, or refer it to any Magistrate subordinate to him
having jurisdiction, or commit the accused for trial.

4.10.4. Commitment by Magistrate During Trial - Section 323:

If, in any inquiry into an offence or a trial before a Magistrate, it appears to
him at any stage of the proceedings before signing judgment that the case is
one which ought to be tried by the Court of Session, he shall Commit it to
that court under the provisions hereinbefore contained and thereupon the
provision of' Chapter XVIII shall apply to the commitment so made.

4.10.5. Insufficient Sentencing Powers - Section 325(1)

Whenever a Magistrate is of opinion, after hearing the evidence for the
prosecution and the accused, that the accused is guilty, and that he ought to

receive a punishment different in kind from, or more severe than, that which
such Magistrate is empowered to inflict…he may record the opinion and
submit his proceedings, forward the accused, to the Chief Judicial Magistrate
to whom he is subordinate.

4.10.6. Converting a Summons Case into a Warrants Case - Section 259

When in the course of the trial of summon-case relating to an offence it
appears to the magistrate punishable with imprisonment for a term exceeding
six months, it appears to the Magistrate that in the interests of Justice, the
offence should be tried in accordance with the procedure for the trial of
warrant- cases, such Magistrate may proceed to rehear 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.

4.10.7. Section 260(1): Magistrates Authorised to Conduct Summary Trials:

(1) Notwithstanding anything contained in this Code-

(a) Any Chief Judicial Magistrate; (b) Any Metropolitan Magistrate; (c) Any,
Magistrate of the first class specially empowered in this behalf by the High
Court, may any of he thinks fit, try in a summary way all or any of the
following offences.

Section 260(2): Specifies which offences Triable Summarily

4.10.8. Sections 262, 264 and 260(2): Procedure in Summary Trials:

(1) In trial under this Chapter, the procedure specified in this Code for the
trial of summons-case shall be followed except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding three months shall be
passed in the case of any conviction under this Chapter. 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 reasons for the finding.

(2) 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 witnesses who may have been examined and
proceed to re-hear, the case in the manner provided by this Code.