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All about Commencement of Proceedings under

Code of Criminal Procedure, 1973

By Sakshi Rewaria

I. Commencement of Proceedings before Magistrates

(Chapter 16, CrPC)

Q1. How are offences been classified in the CrPC?

Ans. The classification of offences in the Schedule was, however, not based on
any general principle, and was not the same as between a summons- case and a
warrant-case, because a warrant might have to be issued in a summons-case,
and vice-versa. A simpler procedure was, therefore, considered desirable, so
that a summons would issue in a summons- case, and a warrant in warrant-
case, unless otherwise ordered by the Magistrate.

Q2. Can summons or Warrants be issued against an accused if

witness has not been filed?
Ans. No summons or warrant can be issued against the accused under this
section, unless a list of prosecution witnesses has been filed.

Q3. What is the condition necessary for the issue of process?

Ans. The only condition necessary for the issue of process is that the
complainant’s deposition must show some sufficient ground for proceeding in
the matter. Therefore, unless there is sufficient ground for proceeding with the
complaint, or sufficient material to justify issue of a process, the Magistrate
should not issue the process.

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Q4. How does Magistrate determine whether the process is issued

or not?
Ans. In determining whether he should issue a process or not, the Magistrate
must proceed according to the provisions of the Code, and then if he is of the
opinion that a prima facie case has been made out, he ought to issue the
process.

Q5. Can a Magistrate dispense accused with personal attendance?

Ans. Whenever a Magistrate issues a summons, he may dispense with the
personal attendance of the accused, and allow him to appear through his
Pleader, if there is sufficient reason for doing so.

Q6. When can Magistrate’s power to dispense accused with

personal attendance be issued?
Ans. His power can be exercised only when a summons has been issued, but
not when a warrant is issued. However, at any stage of the proceedings, the
Magistrate may, in his discretion, direct the personal attendance of the accused,
and if necessary, enforces such attendance in the manner prescribed by the
Court.

Q7. Can a Magistrate refuse exemption of a pardanashin lady?

Ans. A Magistrate is not justified in refusing exemption to such a woman
merely on his impression that she is not a pardanashin lady, or on the ground
that other ladies of the same class, who were also pardanashin, had appeared in
Court out of their own free will.

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Q8. Can Magistrate exercise power to a compoundable offence?

Ans. Yes, enlarged by the 1978 Amendment, now the State Government may
empower a Magistrate to exercise the powers with respect to a compoundable
offence, or any offence punishable with less than three months imprisonment,
or fine, or both, if the Magistrate is of the opinion that, having regard to the
facts and circumstances of the case, the imposition of fine only would meet the
ends of justice.

Trial Before a Sessions Court

(Chapter 18, CrPC)

Introduction

When a report is been filed in a police station, the cognizance of the case is been
taken up by the competent magistrate and if it is triable then under section 209,
Cr.P.C., the case is been transferred before the “Court of Sessions.”

Q1. Who is a Public Prosecutor?

Ans. A public Prosecutor is any person appointed as such and includes any
person acting under the directions of a public servant.
The trial of every prosecution shall be conducted by the Public prosecutor
before the Sessions Court.

Q2. Who shall defend accused in the trial before the Sessions Court?
Ans. Every Accused person has a right to be defended by the counsel of his
choice and if the court is of the view that the accused has no sufficient means to
appoint a pleader, the court shall appoint a lawyer at the expense of the state to
defend the accused person.

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Q3. How is the opening of the case done before the Sessions Court done?
Ans. When the accused person is brought before the court related to
commitment of case under Section 209, the case is been opened by the
prosecutor describing the accusation/s against the person and briefly states the
evidences in his favour proving the guilt of the accused.

Q4. On what circumstances accused can be discharged?

Ans. The court after taking into consideration record of the case, submissions
of the parties, finds that there are no sufficient grounds on which proceeding
shall be conducted against the accused, it shall discharge and the reason of such
act shall be recorded.

Q5. What is the process of faming of charges in the Sessions Court?

Ans. According to Section 228(1), Cr.P.C., 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, and thereupon the Chief Judicial 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.
Q6. What are the essentials things taken into consideration while framing of
charges in the Sessions Court?
Ans. The court has power to find out whether or not a prima facie case has
been made against the accused. The test to determine a prima facie case against
the accused would naturally depend upon the facts of each case and it is
difficult to lay down universal application.

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At this stage of trial of Section 227 or 228, the standard test, proofs, judgment
are not sufficient to find whether accused is guilty or not. At such stage a very
strong suspicion founded upon materials on record which leads the court to
form a presumptive opinion as to existence of factual ingredients constituting
the offence alleged, may justify framing of charge against the accused in
respect of commission of offence, as per decided in various cases like State of
Bihar v. Ramesh singh, (1997) 4 SCC 39; Yogesh V. State of
Mahrashtra,(2008)10 SCC 394, Etc.

Q7. What happens when a person pleads guilty?

Ans. As per Section 229, If the accused pleads guilty, the Judge shall record the
plea and may, in his discretion, convict him thereon.

A person is said to be taken to have pleaded guilty when he pleads guilty to the
facts stating ingredients of the offence without adding anything external to it.

It has also been stated by Supreme Court in case of Pawan Kumar V. State of
Haryana, (1996) 4 SCC 17, that if an accused who has not been confronted
with substances of allegations against him, and pleads guilty is violation of a
provision of law, that plea is not a valid at all.

Q8. What are the steps been taken while observing the examination of
witness?

Ans. Part A- Examination of Witness

As per section 231 Cr.P.C.,
a. On the date so fixed, the Judge shall proceed to take all such evidence as
may be produced in support of the prosecution.

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b. 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.

The prosecution has a duty to examine all the witness essential for unfolding
prosecution witness. And if the court is of the view that the examination of
witness has not been done properly by the witness, the court is justified in
stating a decision adverse to the prosecution.

Part B- Record of evidence

Once examination of the witness is been done, next comes is recording of

evidences. As per Section 276-

a. 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.
b. 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.

If the witness gives evidence in language of court, or gives in any other

language, a true translation of evidence shall be prepared in the language of the
court. Once evidence has been written, it shall be read out to him, and if it is
necessary it shall be corrected.

Q9. Can an accused be acquitted after hearing parties?

Ans. If after examining the witnesses and the accused, the court is of the view
that there are no evidences that justifies that the accused has committed any
offence; the court shall record an order for acquittal of the accused person,
(Section 232).

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Q10. What is the procedure to be followed for conviction of the accused person?

Ans. If the court convicts the accused person,

The court may release him after admonition or on probation of good conduct
according to Section 360 or the provisions of the Probation of offender Act,
1958, and if the accused is not released then the court shall hear him further on
question of sentence.

Trial of Warrant Case by Magistrate

(Chapter 19, CrPC)

Introduction

When a warrant case is been instituted on a police report, all the records found while
investigation done by the police is been made available before the said court and to
the accused person as well. Records are non-existent been instituted otherwise than on
a police report in a warrant case. The provisions dealing with the trial of warrant cases
by the Magistrate can be divided into three groups:-

1. Provisions mainly applicable in respect of cases instituted on a police report

(Section 238-243);
2. Provisions exclusively applicable in respect of warrant cases instituted
otherwise than on a police report (Section 244-247); and
3. Provisions which are commonly applicable to all warrant cases whether
instituted on a police report or otherwise (Section 248-250)

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PART A- CASES INSTITUTED ON A POLICE REPORT

Q1. When are the charges been framed? And what are the things taken
into consideration while framing charges?

As per Section 240(1), When the Magistrate has considered the matter and is of
the opinion that the accused has committed an offence which should be tried,
and in his opinion could be adequately be punished , a charge shall be framed
against the accused in writing.

The court shall judicially consider the questions, and shall not frame the
charges merely on the basis that prosecution authorities find it proper to
institute the case.

Q2. When is accused been discharged of the offence?

The Magistrate after considering the record of the case shall hear the
arguments, of both the parties in support of their case. As per judgement been
made in State of Mizoram v. K. Lalruata, (1992), Cri 970 (Gau), When order is
to be discharged, the steps are to be taken into consideration as:

a. Considering the police report and the document referred to in Section 173
and which are furnished to the accused;
b. Examination , of the accused as per the necessity of the case stated by the
Magistrate;
c. Giving prosecution and accused an opportunity of being heard and then to
consider whether the charge is groundless.

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Q3. What are the steps to be followed in prosecution evidence?

Once there is completion of prosecution evidence, following steps are to be

followed:

a. As per Section 314, oral arguments and submissions of memorandum of

arguments on behalf of the prosecution; and
b. Examination of accused under section 313 (1)(b)

Q4. When is the date of examination of witness been fixed?

As per section 242;

a. If the accused refuses to plead or does not plead, or claims to be tried or the
Magistrate does not convict the accused under section 241, the Magistrate
shall fix a date for the examination of witnesses.

b. The Magistrate may, on the application of the prosecution, issue a summons

to any of its witnesses directing him to attend or to produce any document
or other thing.
c. On the date so fixed, the Magistrate shall proceed to take all such evidence
as may be produced in support of the prosecution

PART B- CASE INSTITUED OTHERWISE THAN ON A POLICE REPORT

Q5. How are charges been formed when the case is been instituted
otherwise than on a police report?

The charges is been framed according to Section 246(1) ie.

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If, when such evidence has been taken, or at any previous stage of the case, the
Magistrate is of opinion that there is ground for presuming that the accused has
committed an offence triable under this Chapter, which such Magistrate is
competent to try and which, in his opinion, could be adequately punished by
him, he shall frame in writing a charge against the accused.

Q6. What are the steps to be followed in prosecution evidence?

All the witness when produced before the Magistrate, are examined before
framing of charges, and the accused may also be recalled for further cross-
examination.

Further according to section 246(6),The evidence of any remaining witnesses

for the prosecution shall next be taken, and after cross- examination and re-
examination (if any), they shall also be discharged.
The Magistrate may grant reasonable time to the accused person, if the accused
wants time for his cross-examination.

Q7. Is there any course been adopted by the Magistrate is special or

different circumstances?

• When Magistrate has no Jurisdiction- 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,

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,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.

• When Magistrate cannot pass sentence sufficiently serve- 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, or, being a Magistrate of the second class, is of opinion
that the accused ought to be required to execute a bond under section 106, he
may record the opinion .(Section 325(1))

PART C- COMMON PROVISIONS REGARDING CONCLUSION OF TRIAL

Q1. How is acquittal or conviction of an accused person been decided?

As per Section 248 (2); When the Magistrate takes into consideration all the
material facts, evidences, hears both the parties, then only the Judgement is
been passed.
If the Magistrate is of the view that the accused person is not guilty of the said
offence, he shall pass order of acquittal of the person;
And if the Magistrate is of the view that the accused person is guilty of the
offence, he shall hear the accused on the question of sentence and then pass the
order.

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Q2. What is the procedure if there is any previous conviction?

If the accused is been previously convicted under Section 211(7), and it is not
been admitted by the accused, evidences with respect to previous conviction is
been recorded. And no such charge shall be passed by the Magistrate until and
unless the accused has been convicted under Section 248(2).

Q3. Is there any compensation given for accusation without any

reasonable cause?

If the Magistrate is of the view that there are no reasonable grounds making
any accusation against the accused, he shall be called upon for such accusation
to show why he should not pay compensation to the accused person (Section
250(1)).
After the Magistrate hears the accused, he may record the reasons; make an
order fixing the compensation to be paid by such person to the accused person.

Summon Case Before Magistrate

(Chapter 20, CrPC)

Q1. What do we mean by trial of a case?

Ans. A trial is a coming together of parties to a dispute, to present information
(in the form of evidence) in a tribunal, a formal setting with the authority to
adjudicate claims or disputes.

Q2. What do we mean by Summon case?

Ans. The term “summons cases” has been defined, in a negative sense, under
Section 2(w) of the CrPC as “a case relating to an offence, not being a warrant
case”.

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On the other hand, a “warrant case” means a case relating to an offence

punishable with death, imprisonment for life or imprisonment for a term
exceeding two years.
Summon case are relatively less serious in nature and the trial procedure in
such is not elaborate or formal as that in warrant case.

Q3. What is the procedure for trial in summon cases?

a. In a summon case, when the accused is asked to appeared before the
Magistrate, the brief about the accusation against the person shall be
informed to him and the formation of a formal charge against accused is not
necessary.

b. When an accused pleads to be guilty, his plea is to be recorded by the

Magistrate and may be convicted. And if there are more than one accused,
each and every person shall be recorded separately.

c. If the accused is not been convicted by the Magistrate on his plea of guilty,
the proceeding may move ahead to hear the prosecution by the Magistrate.

d. Next is to take into consideration the evidences produced by the prosecution

in its support and if require application to witness is beein served to direct
him appear in the proceeding or produce document before the court.

e. The prosecution is allowed to submit his arguments after conclusion of

prosecution evidence.

f. The Magistrate then “hear” the accused and takes into consideration the
evidences in his defence and allows to submit his arguments after
conclusion of his evidences.

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Q4. Is there any Special course been adopted by the Magistrate if it

does not have necessary jurisdiction of the case?
Ans. Yes. Magistrate is of such view that the case shall be tried by CJM, then
the matter is submitted before CJM or even may send it to a subordinate court
if required.

Q5. What happens when the accused is acquitted or convicted?

Ans. If after taking into consideration all facts, circumstances and evidences it
been found by the Magistrate that the accused is not guilty, he shall be
acquitted.
And if it is been found by the Magistrate that accused is guilty of the offence, a
sentence is been passed on the accused according to the laws.

Q6. Can accused be convicted of an offence not charged?

Ans. Yes. The accused may be convicted by the Magistrate of any offence
which are been proved from the facts that accused has committed it and such
act be taken by the Magistrate if satisfied that such would not amount to any
prejudice to the accused.

Q7. Does the court has any power to convert a summon case into a
warrant case?
Ans. If in the trial of the summon case the accused is been punished with
imprisonment with more than six months and it is in the interest of justice, the
offence may be tried as a warrant case.
The said case may be reheard in the manner of a warrant case and the witness
may also be recalled.

Q8. Is it permissible to try a warrant case as a summon case?

Ans. No, it is not permissible to try a warrant case as a summon case.

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Q9. Is joint of charge or joint of trial applicable in such trials?

Ans. The option of Joining of charges or Joining of trial of a person is
applicable in summon cases.

Q10. Is it necessary to frame formal charge in a summon case?

Ans. It is not necessary to frame a formal charge in a summon case.

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