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Published by Enhelion, 2020-01-15 02:16:22

Module 16

Module 16




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
follow is a discussion 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 is 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

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

4.1.5. MC: Advantages of the Inquisitorial System:

The accused has the right to be heard and to engage a counsel in the investigation proceedings
before the judge of instructions and to make suggestions in regard to proper investigation of the
case.It is the duty of the judge of instructions to collect evidence for and against the accused,
prepare a dossier and then forward it to the trial judge. Before the trial judge the accused and the
victim are entitled to participate in the hearing. However the role of the parties is restricted to
suggesting the questions that may be put to the witnesses. It is the Judge who puts the questions
to the witnesses and there is no cross-examination as such. The standard of proof required is the
inner satisfaction or conviction of the Judge and not proof beyond reasonable doubt as in the
Adversarial System.

4.1.6. “Shortcut” of Acquitting the Accused:

Technical or non-fulfillment of any procedural requirement or inadequacies of evidence or non-
examination of material witnesses, mistakes in investigation and similar other factors have quite

often contributed to acquittals.This amounts to failure of the courts’to search for truth to do
justice. Therefore the Committee is of the view, that in such situations, the court concerned
should not be allowed the shortcut of acquitting the accused. A statutory obligation should be
placed on the court to take such steps as may be necessary, or to issue such directions as may be
required, to remove the deficiencies. This may include examining witnesses and directing fresh
or proper investigation by any appropriate agency.

Talking Point: Time to Move to an Inquisitorial System? The Adversarial System lacks
dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty
to discover truth as in the Inquisitorial System. When the investigation is perfunctory or
ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges
do not bother if relevant evidence is not produced and plays a passive role as he has no duty to
search for truth. As the prosecution has to prove the case beyond reasonable doubt, the system
appears to be skewed in favour of the accused. It is therefore necessary to strengthen the
Adversarial System by adopting with suitable modifications some of the good and useful features
of the Inquisitorial System.

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.

4.1.9. MC: Competent and Qualified Judges:

If the Judge is not competent he will take longer time to understand the facts and the law and to
decide the case. This is one of the reasons which has contributed to enormous delay and huge
pendency of cases. Any lawyer with experience will be able to tell you which Judge is competent
and which Judge is not, which Judge is quick and which Judge is slow, which Judge’s decisions
are by and large sound and which Judges decisions are not satisfactory. Even now there are many
good Judges in the subordinate Courts but that number is declining. The quality of justice suffers
when the Judge is not competent. People come to the Court complaining about the denial of
rights by other individuals, institutions or the State itself. They expect the Judge to be
experienced, knowing, competent, upright and possessing all the attributes required to render
justice to the parties.

4.1.10. Right to Legal Aid for Indigent Persons:

“Article 39A also 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

- Hussainara Khatoon (1980) 1 SCC 98

4.1.11. Presumption of Innocence:

Throughout the web of the English criminal law, one golden thread is always to be seen that it is
the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to
the defence of insanity and subject also to any statutory exception. If, at the end of, and on the
whole of the case, there is a reasonable doubt created by the evidence given by either the
prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious
intention the prosecution has not made out the case, and the prisoner is entitled to acquittal. This
principle has been followed in India vide decision of the Supreme Court in Dahyabhai
Chhaganbhai Thakkar vs. State of Gujarat AIR 1964 SC 1563.

4.1.12. MC: 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.”

4.1.13. 1 Innocent Being Punished v. 9 Guilty Being Acquitted:

While proof on “preponderance of probabilities” followed in civil cases provides a lower
standard of proof, “proof beyond reasonable doubt” followed in criminal cases provides a higher
standard of proof bordering on certainty. The cherished object of the Criminal Justice System is
to ensure that every guilty person is punished and every innocent person is protected. Our
experience shows that operation of the standard “proof beyond reasonable doubt” has contributed
to large number of guilty persons escaping punishment. This standard followed all these years
has failed to achieve the main object of ensuring that the guilty are punished. What then is the
answer and what are the options available to remedy the mischief? Should we opt for the
standard of “proof on preponderance of probabilities”that is applied in civil cases? On a careful
examination the Committee is of the view that this standard is not adequate to lend assurance that
the innocent will be protected.

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


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 cancan 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. 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 support’s 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. 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 crossexamination. 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 crossexamination it is not legally
admissible against the party affected.”

- Justice Bhagwati in the case of Suleman Usman Memon 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 VicePresident 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. Exercising the Discretion to Issue a Commission:

“As a general rule in criminal proceedings, the important witnesses on whose testimony the case
against the accused has to be established must be examined in Court and usually the issuing of
commission should-be restricted to formal witnesses or to such witnesses who cannot be
produced without unreasonable delay or inconvenience. The evidence against the accused should
be recorded in his presence and in open Court so that the accused may have an opportunity to
effectively cross examine the witnesses and the presiding officer may have the advantage and
opportunity of hearing the witnesses and of noting their demeanour.Witnesses should not be
examined on commission except in extreme cases of delay, expense or inconvenience and in
particular the examination through interrogatories should be resorted to only in unavoidable

- Dharmanand Pant Case


(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


(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. S


(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.


(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 accused’s 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

"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


(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

(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-

(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.

“A local court in Ahmedabad on Wednesday granted 25 days time to the CBI to reply to a plea
seeking to make former Gujarat minister Amit Shah and ex-DGP KR Kaushik accused in the
2004 Ishrat Jahan fake encounter case.

The application filed under section 319 and 193 of CRPC demanded arraignment of KR Kaushik
and Amit Shah as accused and hold a trial against them for the criminal conspiracy, illegal
confinement and murder. CRPC sections 319 and 193 stand for the legal provision to make
accused if in the course of court trial substantial evidences appeared against them.

Ishrat was killed along with her friend Javed Sheikh alias Pranesh Pillai, in Gujarat and two
others, believed to be Pakistani nationals on 15 June, 2004 by state police officers. The applicant
while putting forth the grounds to make the two accused in the case, said, "IPS office Girish
Singhal, and other police officers Bharat Patel and DH Goswami in their statements have alleged
the role of Amit Shah in the encounter case.”

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-

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


§ 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)

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. , this 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.

§ Pritam Singh v. State of Punjab:


Pritam Singh Lohara was arrested on 9-6-1953 at Faridkot and was sent to the Faridkot Jail on
the same day. He was interrogated there by Shri Om Prakash on 22-6-1953 and he disclosed that
he had buried two revolvers wrapped in a bush-shirt and contained in a tin by the side of a bush
in the vicinity of village Dipsinghwala. This statement of his was reduced to writing and he then
led the police party to a field in the village area of Dipsinghwala where he pointed out a place by
the side of a bush and dug out therefrom a tin, Ex. P-57, which was found to contain the
revolvers, Ex. P-48 and P-56, wrapped up in a bush-shirt. The articles recovered were taken into
possession. A separate case under the Arms Act was registered in Faridkot against him in respect
of these recoveries. The learned Magistrate, First Class, Faridkot, convicted him under Section
19 (f), Arms Act. This conviction was, however,set aside by the learned Additional Sessions
Judge, Amritsar,and he was acquitted of the charge leveled against him.

Decision of the Sessions Judge:

Exhibit P-56 was recovered pursuant to the information given by Pritam Singh Lohara and was
alleged to have been dug out of a field in the vicinity of the village Dipsinghwala…The
witnesses to the recovery were Shri Om Prakash, the investigating officer, Bakshish Singh and
Shamsher Singh, who along with others, Joginder Singh, Gurcharan Singh and Dara Singh had
been examined in the trial of Pritam Singh Lohara for the offence under the Arms Act. Though
the Magistrate, First Class, Faridkot, convicted him in the first instance, the Additional Sessions
Judge, Faridkot, in appeal,discussed the evidence of various witnesses and, giving him the
benefit of doubt,acquitted him, remarking that the surfeit of defence evidence taken in
conjunction with all the circumstances set out in the judgment raised strong doubts in his mind as
to whether Pritam Singh Lohara was at all taken out of the police lock-up and taken to the
alleged place of recovery and that the whole case appeared to have been conceived in a shadowy
setting redolent with mystery.

Decision of the High Court:

Having regard, therefore, to the circumstances attendant upon the recovery of the revolver…and
the acquittal of the accused of the offence under Section 19(f), Arms Act, the High Court was of
the opinion that this evidence could not be taken into consideration against him. The High Court,
however, held that the evidence against Pritam Singh Lohara consisting of that of the eye-
witnesses who stated that they saw him getting into the bus and then committing the murders and
running away from the spot, of identification of footprints and of absconding, which was quite
satisfactory, was sufficient to convict him and it accordingly came to the conclusion that he also
had been rightly convicted.

Observations of the Supreme Court:

The learned Additional Sessions Judge, Faridkot…characterised the evidence …as evidence of
over-zealous officials and came to the conclusion, having regard to all the circumstances of the
case, that there was considerable doubt in his mind as regards the guilt of Pritam Singh Lohara
and acquitted him. The acquittal of Pritam Singh Lohara of that charge was tantamount to a
finding that the prosecution had failed to establish the possession of the revolver Ex. P-56 by
him. The possession of that revolver was a fact in issue which had to be established by the

prosecution before he could be convicted of the offence with which he had been charged. That
fact was found against the prosecution and having regard to the observations of Lord
MacDermott quoted above, could not be proved against Pritam Singh Lohara in any further
proceedings between the (State) and him.

Sambasivam v. Public Prosecutor, Federal of Malaya, 1950 A.C. 458:

"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and
after a lawful trial is not completely stated by saying that the person acquitted cannot be tried
again for the same offence. To that it must be added that the verdict is binding and conclusive in
all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro
veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant
having been acquitted at the first trial on the charge of having ammunition in his possession, the
prosecution was bound to accept the correctness of that verdict and was precluded from taking
any steps to challenge it at the second trial".- Per Lord McDermott

§ 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 issue estoppel rule is but a facet of the doctrine of autrefois acquit…” “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.

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… ‘
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 crossexamination of any witness to be deferred
until any other witness or witnesses have been examined or recall any witness for further cross-

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
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

(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.- Kumar Naik case Section 233:
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

4.10.1. 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 + 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
(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.
() 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

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.

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