SESSION TRIAL

Depending on the gravity of the offences and the punishment prescribed therefor,
criminal trial under the Code of Criminal Procedure, 1973 (Cr.P.C for short) has
been
classified into two viz., Magisterial trial and Sessions trial. The first schedule to
the
Cr.P.C. is divided into two parts namely, Part I and Part II. Column I of the first
part of
the first schedule enumerates the list of offences punishable under the Indian Penal
Code
and Column 6 thereof indicates the court by which those offences are triable.
Those
courts are either the Magistrates courts or the courts of Session. The second part
of the
first schedule deals with offences punishable under other laws. In the absence of
any
specific provision under such other laws regarding investigation, inquiry or trial,
the
procedure prescribed under the Cr.P.C. for the same shall be applicable by virtue
of Sec.4
(2) of Cr.P.C. If under the special law the offence is punishable with imprisonment
for
life or imprisonment for more than 7 years, then by virtue of the second part of the
I
schedule to Cr.P.C. the offence shall be triable by a Court of Session.
THE OBJECT OF CRIMINAL TRIAL
2. Criminal trial is meant for doing justice not only to the victim but also to the

accused and the Society at large. (Ambika Pd. V. State (Delhi Administration)2000 SCC
Crl.522). Every criminal trial is a voyage of discovery in which truth is the quest.
The
primary object of criminal trial is to ensure fair trial which is guaranteed under
Art.21 of
the Constitution of India. A fair trial has, therefore, two objects in view. It must be
fair to
the accused and must also be fair to the prosecution. The trial must be judged
from this
dual point of view. (Vide T.H.Hussain V. M.P.Modkakar-AIR 1958 SC 376). It is,
therefore, necessary to remember that a judge does not preside over a criminal trial
merely to see that no innocent man is punished. A judge also presides to see that a
guilty
man does not escape. One is as important as the other. Both are public duties
which the
judge has to perform. The object of criminal trial is thus to render public justice
by
punishing the criminal. It is also important to remember that the trial should be
concluded expeditiously before the memory of the witnesses fades out. The recent
trend
1
is to delay the trial and threaten the witnesses or to win over the witnesses by
promise or
inducement. These malpractices need to be curbed and public justice can be
ensured to
the satisfaction of all concerned only when trial is conducted expeditiously. (Vide

Krishnan V. Krishnaveni-1997 SCC Crl.544 = AIR 1997 SC 987). The public

interest
demands that criminal justice is swift and sure, that the guilty is punished while
events
are still fresh in the public mind and that the innocent is absolved as early as is
consistant
with a fair and impartial trial. (M.S.Sherif v. State of Madras- 1954 Crl.L.J.1019).
If
unmerited acquittals become the general rule, they tend to lead to a cynical
disregard of
the law. A miscarriage of justice may arise from the acquittal of the guilty no less
than
from the conviction of the innocent. Vide Gangadhar Behera V. State of Orissa2000
(3) Crl.L.J.41 SC and Shivaji Sahebrao Bobade v. State of Maharashtra- AIR 1988
SC 1998.
3. In getting the true fruits of the real object of criminal trial, it must always be
kept in view that a criminal trial is not like a fairy tale wherein one is free to give
flight to
ones imagination and fantasy. It concerns itself with the question as to whether
the
accused arraigned at the trial is guilty of the crime with which he is charged.
Crime is an
event in real life and is the product of interplay of different human emotions. In
arriving
at the conclusion about the guilt of the accused charged with the commission of a
crime,

the court has to judge the evidence by the yardstick of probabilities, its intrinsic
worth
and the animus of the witnesses. Every case in the final analysis would have to
depend
upon its own facts. (Vide State of Punjab v. Jagir Singh AIR 1973 SC 2407).
4. The Apex court had taken judicial notice of certain distressing and unethical
tendencies in Swaran Singh v. State of Punjab- AIR 2000 SC 2017 wherein it has
been
observed as follows:
It is the game of unscrupulous lawyers to get adjournments for one
excuse or the other till a witness is won over or is tired. Not only that a
witness is threatened; he is abducted; he is maimed; he is done away with;
or even bribed. There is no protection for him. In adjourning the matter
without any valid cause a court unwittingly becomes party to miscarriage
of justice. A witness is then not treated with respect in the Court. He is
pushed out from the crowded courtroom by the peon. He waits for the
2
whole day and then he finds that the matter is adjourned. He has no place
to sit and no place even to have a glass of water. And when he does
appear in Court, he is subjected to unchecked and prolonged examination
and cross-examination and finds himself in a hapless situation. For all
these reasons and others a person abhors becoming a witness. It is the
administration of justice that suffers. The appropriate diet money for a
witness is a far cry. Here again the process of harassment starts and he

decides not to get the diet money at all. High Courts have to be vigilant in
these matters. Proper diet money must be paid immediately to the witness
(not only when he is examined but for every adjourned hearing) and even
sent to him and he should not be left to be harassed by the subordinate
staff. If the criminal justice system is to be put on a proper pedestal, the
system cannot be left in the hands of unscrupulous lawyers and the
sluggish State machinery. Each trial should be properly monitored. Time
has come that all the courts, district courts, subordinate courts are linked to
the High Court with a computer and a proper check is made on the
adjournments and recordings.
5. The sole aim of the law is approximation of justice. A Judge is looked upon as
an embodiment of justice. Assurance of fair trial is the first imperative in the
dispensation of justice. It cannot be denied that one of the most valuable rights of
our
citizens is to get a fair trial free from an atmosphere of prejudice. This right flows
necessarily from Art.21 of the Constitution of India which makes it obligatory
upon the
State not to deprive any person of his life or personal liberty except according to
the
procedure established by law. (Vide Smt.Menaka Sanjay Gandhi v. Miss.Rani
Jethmalani- 1979 S.C.468)
6. One of the components of fair procedure in the administration of criminal
justice is that the accused has the opportunity of making his defence by a legal
practitioner of his choice. This is his constitutional right guaranteed under Art.22

of the
Constitution. In order to give effect to this constitutional right it has been
embodied in
the directive principles of State policy as provided under Art.39 A of the
Constitution of
India that the State shall secure equal justice and free legal aid by a suitable
legislation or
3
scheme or any other way to ensure that the opportunities for securing justice are
not
denied to any citizen by reason of economic or other disabilities. That right has
also been
statutorily accepted and incorporated in Sec. 303 Cr.P.C. which provides that any
person
accused of an offence before a criminal court or against whom proceedings are
initiated
under the Cr.P.C. may of right be defended by a pleader of his choice. The
directive under
Article 39 A of the Constitution has been translated into reality by the enactment
of the
Legal Services Authorities Act, 1987.
THE PRESUMPTION OF INNOCENCE
7. One of the cardinal principles which should always be kept in our system of
administration of justice in criminal cases is that a person arraigned as an accused
is
presumed to be innocent unless and until proved otherwise. Another golden thread
which

runs through the web of administration of justice in criminal cases is that if two
views are
possible on the evidence adduced in the case- one pointing to the guilt of the
accused and
the other to his innocence, the view which is favourable to the accused is to be
accepted.
(Vide Kaliram v. The State of H.P.-AIR 1973 SC 2773, Sheo Nandan Paswan v.
State of Bihar- AIR 1983 SC 194- Nishar Ali v. State of U.P.- AIR 1957 SC 366).
Even in an appeal against acquittal, the presumption of innocence in favour of the
accused is not weakened and in considering an appeal against acquittal, the High
Court
has to keep this presumption in mind. (S.A.A.Biyabani v. State of Madras- AIR
1954
SC-645, Ram Jog v. State of U.P.-AIR 1974 SC 606; Rajendra Rai v. State of
Bihar
AIR 1974 SC 2145, Autar Singh v. State of Punjab- AIR 1979 SC 1188, State of
A.P.
v. Anjaneulau AIR 1982 SC 1598, Babu v. State of U.P.- AIR 1983 SC 308,
Ramji
Surjiya v. State of Maharashtra-AIR 1983 SC 810 and Chandra Kanta Deb v. State
of Tripura- AIR 1986 SC 606). In paragraph 40 of the Constitution Bench
decision of
the Apex Court in B.R.Kapur v. State of T.N. 2001 (7) SCC 231 it has been
observed
that when a lower court convicts an accused and sentences him, the presumption
that he is
innocent comes to an end.

BENEFIT OF DOUBT
8. The criminal jurisprudence, no doubt, requires a high standard of proof for
4
imposing punishment to an accused. But it is equally important that on
hypothetical
grounds and surmises prosecution evidence of a sterling nature should not be
brushed
aside and disbelieved to give undue benefit of doubt to the accused. (Vide State of
U.P.
v.Ram Sevak and others-2003 (1) Crimes 461 (SC). The law should not be
stretched
morbidly to embrace every hunch hesitancy and degree of doubt. Our
jurisprudential
enthusiasm for presumed innocence must be moderated by the pragmatic need to
make
criminal justice potent and realistic (Vide Shivaji v. State of Maharashtra AIR
1973 SC 2622). Doubts must be actual and substantial as to the guilt of the
accused
person arising from the evidence or from the lack of it, as opposed to mere vague
apprehensions. A reasonable doubt in not an imaginary trivial or a merely possible
doubt;
but a fair doubt based upon reasons and common sense. Uninformed legitimization
of
trivialities would make a mockery of administration of criminal justice. AIR 1988
SC
2154 State of U.P. v. Krishna Gopal.
9. The criminal law has a purpose to serve. Its object is to suppress criminal

enterprise and punish the guilty. In this process it must however be ensured that
reasonable doubts alone are given to the accused. (Vide State of Kerala v.
Narayanan
Bhaskaran 1991 Crl.L.J.238 = 1991 (2) KLT 217).
RELEVANT PROVISIONS AS TO SESSIONS TRIAL
10. Chapter XVIII of Cr.P.C. starting with Sec.225 and ending with section 237
deals with provisions governing the trial before a Court of Session. Sec.225
Cr.P.C.
enjoins that in every trial before a Court of Session the prosecution shall be
conducted by
a Public Prosecutor. Sec.193 Cr.P.C. provides that except as otherwise expressly
provided by the Cr.P.C. or any other law, no Court of Session shall take
cognizance of
any offence as a court of original jurisdiction unless the case has been committed
to it by
a Magistrate under the Cr.P.C. There are statutes like the N.D.P.S.Act, 1985,
wherein it
is provided that the special court manned by a Sessions Judge shall take
cognizance of an
offence under the Act without the case being committed to it. In such cases it may
be
permissible for the Sessions Court to take cognizance of the offence without a
committal
5
of the case by the Magistrate concerned. But there are other enactments such as
the
Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 which

are
silent regarding commitment. Trial under those statutes is also to be conducted by
a
Court of Session. In Gangula Ashok v. State of A.P. 2000(1) KLT 609 the
Supreme
Court of India held that the mandate under Sec. 193 Cr.P.C. is applicable to the
special
courts manned by Sessions Judges trying offences under the SC/ST (Prevention of
atrocities) Act, 1989 and that those courts cannot take cognizance of the offences
under
the said Act without the case being committed to them by the Magistrates
concerned.
11. When the accused appears or is brought before court pursuant to the
commitment of the case, the Public Prosecutor should open the case by describing
the
charge brought against the accused and stating by what evidence he proposes to
prove the
guilt of the accused. After considering the record of the case and the documents
submitted along with such record and after hearing the submissions of the accused
and
the prosecution, if the judge considers that there are no sufficient grounds for
proceeding
against the accused, he shall discharge the accused giving reasons for doing so. If,
however, the judge is of the opinion that there is ground for presuming that the
accused
has committed the offence he may frame the charge against the accused in writing.
At this

stage the Sessions Judge is entitled to consider only the documents produced by
the
prosecution along with the charge sheet. The accused is not entitled to produce or
cause
production of any document at this stage for the consideration of the Sessions
Judge. The
charges shall be read over to the accused and explained to him and he shall be
asked as to
whether he pleads guilty of the offence charged or whether he claims to be tried
for the
charge. If the judge is of opinion that notwithstanding the conclusions of the
police, the
offence that is actually made out is not one exclusively triable by a court of
Sessions then
he shall frame a charge against the accused and transfer the case for trial to the
Chief
Judicial Magistrate who shall try the case as if it were a warrant case instituted on
a police
report. Even though Sec.229 Cr.P.C. gives discretion to the judge to convict the
accused,
in case he pleads guilty, the charge in a sessions case being for grave offences, it is
desirable that the accused is not straightaway convicted. The proper course would
be to
call upon the prosecution to prove its case by adducing evidence. Where the
accused
does not plead guilty the court shall call upon the prosecution to adduce evidence
in
6

support of its case. Evidence for the prosecution shall be taken on a day-to-day
basis.
After the conclusion of the prosecution evidence, the accused is to be examined
under
Sec.313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing
against
him in the evidence for the prosecution. After the examination of the accused the
court
has to post the case for hearing under Sec.232 Cr.P.C. If after hearing the
prosecution
and the defence the judge considers that there is no evidence to indicate that the
accused
committed the offence with which he is charged the judge can record an order of
acquittal
under Sec.232 Cr.P.C. This is a very vital stage of the sessions trial and
observance of
Sec.232 Cr.P.C. and Sec. 233 Cr.P.C. at the appropriate stage is mandatory. (See
1992(2)
KLT 227 Sivamani v. State of Kerala).
12. After hearing under Sec.232 if the accused is not acquitted thereunder, the
accused shall be called upon to enter on his defence and to adduce any evidence
which he
might have in support thereof. After the conclusion of the defence evidence, if
any, the
case has to be taken up for arguments. After hearing the arguments, the court has
to pass
the judgment in accordance with Secs.353 and 354 Cr.P.C. If the judgment is one
of

conviction and the judge does not proceed to invoke the benevolent provision of
the
Probation of Offenders Act, 1958, he shall hear the accused on the question of
sentence
and then pass a sentence in accordance with law. This in short is the procedure to
be
followed in the ordinary murder trials before a Court of Session.
BARE PROVISIONS
225. Trial to be conducted by Public Prosecutor. - In every trial before a Court
of Session, the prosecution shall be conducted by a Public Prosecutor.

226. 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.

227. Discharge. - If, upon consideration of the record of the case and the
documents submitted therewith, 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.

228. 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, [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.(2) Where the Judge frames any charge under clause (b) of sub-section
(1), the charge shall be read and explained to accused, and the accused shall be
asked whether he pleads guilty of the offence charged or claims to be tried.
229. Conviction on plea of guilty. - If the accused pleads guilty, the Judge shall
record the plea and may, in his discretion, convict him thereon.

230. Date for prosecution evidence. - 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.

231. Evidence for prosecution. - (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 his 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.

232. Acquittal. - 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.

233. Entering upon 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) If 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.

234. 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.
235. Judgment of acquittal or conviction. - (1) After hearing arguments and
points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance
with the provisions of Section 360, hear the accused on the question of sentence,
and then pass sentence on him according to law.

236. Previous conviction. - In a case where a previous conviction is charged

under the provisions of sub-section (7) of Section 211, and the accused does not
admit that he has been previously convicted as alleged in the charge, the Judge
may, after he has convicted the said accused under Section 229 or Section 235,
take evidence in respect of the alleged previous conviction, and shall record a
finding thereon :
Provided that no such charge shall be read out by the Judge nor shall the accused
be asked to plead thereto nor shall the previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless and until the accused has
been convicted under Section 229 or Section 235.
237. Procedure in cases instituted under Section 199(2). - (1) A Court of
Session taking cognizance of an offence under sub-section (2) of Section 199 shall
try the case in accordance with the procedure for the trial of warrant- cases
instituted otherwise than on a police report before a Court of Magistrate :
Provided that the person against whom the offence is alleged to have been
committed shall, unless the Court of Session, for reasons to be recorded, otherwise
directs, be examined as a witness for the prosecution.(2) Every trial under this
section shall be held in camera if either party thereto so desires or if the Court
thinks fit so to do.
(3) If, in any such case, the Court discharges or acquits all or any of the accused
and is of opinion that there was no reasonable cause for making the accusation
against them or any of them, it may, by its order of discharge or acquittal, direct
the person against whom the offence was alleged to have been committed (other
than the President, Vice-President or Governor of a State or the Administrator of a
Union territory) to show cause why he should not pay compensation to such
accused or to each or any of such accused, when there are more than one.
(4) The Court shall record and consider any cause which may be shown by the
person so directed, and if it is satisfied that there was no reasonable cause for
making the accusation, it may, for reasons to be recorded, make an order that
compensation to such amount not exceeding one thousand rupees, as it may

determine, be paid by such person to the accused or to each or any of them.

(5) Compensation awarded under sub-section (4) shall be recovered as if it were a
fine imposed by a Magistrate.
(6) No person who has been directed to pay compensation under sub-section (4)
shall, by reason of such order, be exempted from any civil or criminal liability in
respect of the complaint made under this section :
Provided that any amount paid to an accused person under this section shall be
taken into account in awarding compensation to such person in any subsequent
civil suit relating to the same matter.(7) The person who has been ordered under
sub-section (4) to pay compensation, may appeal from the order, in so far as it
relates to the payment of compensation, to the High Court.
(8) When an order for payment of compensation to an accused person is made, the
compensation shall not be paid to him before the period allowed for the
presentation of the appeal has elapsed, or, if an appeal is presented, before the
appeal has been decided.