Unit III

Principal features of fair trial

The Supreme Court has observed that there can be no analytical, all comprehensive or
exhaustive definition of the concept of a fair trial, and it may have to be determined in
seemingly infinite variety of actual situations with the ultimate object in mind viz. whether
something that was done or said either before or at the trial deprived the quality of fairness to
a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only
the accused who must be fairly dealt with….Denial of a fair trial is as much injustice to the
accused as is to the victim and the society. Fair trial obviously would mean a trial before an
impartial judge, a fair prosecutor and an atmosphere of judicial calm.

Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374 – A criminal trial is a
judicial examination of the issues in the case and its purpose is to arrive at a judgment on an
issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain
proof of such facts at which the prosecution and the accused have arrived by their pleadings;
the controlling question being the guilt or innocence of the accused. Since the object is to mete
out justice and to convict the guilty and protect the innocent, the trial should be a search for
the truth and not about over technicalities, and must be conducted under such rules as will
protect the innocent, and punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and
circumstantial, and not by an isolated scrutiny.

There are some following important component of fair Trial:-

1. Equality before law of all parties.

2. Hearing by competent, independent and impartial court established by law.
3. Public hearing (Open Court hearing).
4. Presumption of innocence
5. Privilege against self-incrimination
6. Equality of Opportunity
7. Assistance of legal counsel
8. Speedy trial
9. Right to be heard
10. Prohibition against cruel, inhuman or degrading punishment
11. Participation of Victim and Witnesses
12. Protection against Double Jeopardy
Equality before law of all parties:

All persons shall be equal before the courts and tribunals. Everyone must have access to courts
and tribunals. The term everyone would include all conceivable parties to the administration of
criminal justice.

Fair trial, according to the Supreme Court, means a trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which is being tried is eliminated.

Hearing by competent, independent and impartial court established by law.

There is a right to a hearing by a competent, independent and impartial Court established by

law. Depending on the domestic system, jury trial may also be treated as the fair mode of
adjudication. The individual judicial officers must be competent to make a binding decision.
The judges and the juries, wherever part of adjudicatory process, must be independent and
impartial.

Public hearing (Open Court hearing).

Fair Trial require public hearing in an open court. Section 327 of Criminal Procedure code
makes provision for open court generally accessible to the members of the public.

Presumption of innocence

A person has a right to be presumed innocent. The burden of proof is on the State and standard
of proof required is proving the case beyond all reasonable doubts. As a facet of this, it has
been held that the accused is entitled to fairness and true investigation and fair trial. The
prosecution is expected to play balanced role in the trial of a crime. The investigation should
be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law.
It is not only the responsibility of the investigating agency but as well as that of the courts to
ensure that investigation is fair and does not in any way hamper the freedom of an individual
except in accordance with law.

Privilege against self-incrimination

There is privilege against self-incrimination. This may extend to accused’s testimony in court,
compulsion on the accused to produce, or allow collection of, material evidence, legal
compulsion to answer questions, adverse inference drawn from silence, psychological coercion
to answer questions, for confession of guilt or compulsion by use of torture or other forms of
inhuman or degrading treatment. As described by the Supreme Court, in the context of criminal
cases, the reliability of scientific evidence bears a causal link with several dimensions of the
right to a fair trial such as the requisite standard of proving guilt beyond reasonable doubt and
the right of the accused to present a defence.
Equality of Opportunity

In a trial for determination on any criminal charge against a person, every such person shall be
entitled to minimum guarantees of being informed promptly, in detail and in a language that
he understands, of the nature and cause of the charge against him.

Fair trial also includes procedural equality, equality in opportunity of presenting his case, the
adversarial nature of proceedings, instruction concerning rights during trial, to have adequate
time and facilities for the preparation of defence and to communicate with counsel of own
choosing. The right to counsel is the right to the effective assistance of counsel.

Assistance of legal counsel

In India, it has been emphasised that importance of a fair trial and a meaningful assistance of
legal counsel being given to an accused person are of paramount importance to uphold the rule
of law. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent and an
accused is presumed to be innocent until proved to be otherwise in a trial conducted in a fair
manner. This right would include that a competent counsel defends him. The provision of
amicus curiae for an accused, in case the accused is unable to engage an Advocate to conduct
his defence, is to ensure the goal of a fair trial, which is a guarantee provided in the
Constitution.

Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581, In this case honourable Court
observed that the courts should adopt a sensitive approach to see that the accused felt confident
that the counsel chosen for him by the court has had adequate time and material to defend him
properly

Speedy trial

Timely hearing without undue delay is a facet of fair trial. It has been held that fair, just and
reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to
be tried speedily. Right to speedy trial is the right of the accused. Speedy trial is also in public
or societal interest. This right to speedy trial flowing from Article 21, it is elaborated,
encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision
and retrial. The right to bail pending the disposal of criminal proceedings is also a mode to
ensure speedy trial.

Right to be heard

There is a right to be heard. This includes the right to be present at criminal hearings. This right
is closely related to the right to defend oneself through self-representation and the right to be
informed of one’s entitlement to legal assistance, the right to be defended by a counsel of one’s
choice and the right to independent, competent and effective legal representation. The Supreme
Court is of the view that every person has a right to a fair trial by a competent court in the spirit
of the right to life and personal liberty. The object and purpose of providing competent legal
aid to undefended and unrepresented accused persons are to see that the accused gets free and
fair, just and reasonable trial of charge in a criminal case.
The defendant must have a right to call and examine witnesses including expert witnesses. It
would not be a fair trial if the witnesses get threatened or are forced to give false evidence. The
failure to hear material witnesses is also denial of fair trial. There is a right to cross-examine
witnesses.

Prohibition against cruel, inhuman or degrading punishment

In Sunil Batra v. Delhi Administration and Ors. (1978) 4 SCC 494, it has been held that the
guarantee against cruel and harsh punishment given in the Eighth Amendment of the U.S.
Constitution is also part of our constitutional guarantee. Once the concept of 'due process of
law' and the guarantee against harsh and cruel punishment (Eighth Amendment of the U.S.
Constitution) are woven in our Constitutional guarantee, it is the duty of the Court to uphold
the same whenever any statute even prima-facie seeks to invade the same.

Participation of Victim and Witnesses

One of the facets of fair trial requires effective participation and protection of victims and
witnesses. Protecting witnesses from intimidation, giving victims access to justice, assistance
and fair treatment, including remedy of restitution or compensation claims, also come within
the concept of fair trial.

Protection against Double Jeopardy

No one shall be liable to be tried and/or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and procedure of each country.
Nor should a heavier penalty be imposed than the one that was prescribed at the time when the
criminal offence was committed. If, however, subsequent to the commission of the offence, the
law makes provision for the imposition of the lighter penalty, the offender should be extended
the benefit.
 Nature and Kinds of Trial

Trial is the judicial adjudication of a person’s guilt or innocence. Under the Code, criminal
trials have been categorized into four divisions having different procedures, called warrant,
summons and summary trials.

There are four types of trial in CrPC:

1. Session Trial (Sections 225-237 cover the trial of warrant cases by a Court of Session)
2. Warrant Trial (Sections 238-250 govern the trial of warrant cases by magistrates)
3. Summons Trial (Sections 251-259 for trial of summons cases by magistrates)
4. Summary Trial (Sections 260-265 provide provisions for summary trials)
 Session Trial

If the offense committed is punishable with more than seven years of imprisonment or Life
imprisonment or Death, the trial is to be conducted in a Sessions court after being committed
or forwarded to the court by a magistrate.

SECTION 225. Trial to be conducted by public prosecutor

The trial before the Court of Session shall be conducted by the Public Prosecutor, appointed
under section 24 of the Code. The provision of section 225 is directing in nature and in case
the prosecution is in the hands of the Public Prosecutor, it does not matter that a lawyer
privately engaged had acted for persecution or not.

For the purpose of section 225, the Magistrate informs the Public Prosecutor about the
committal order under section 209 of the Code. In such a case, a Public Prosecutor is appointed
because crime is not an offence against a particular person in fact it is an offence against the
society represented by the State. Therefore, the State undertakes to punish the accused and is
represented by a Public Prosecutor in the Court of Session.

SECTION 226. Opening case for prosecution

When the case is exclusively triable by the Court of Session, the Magistrate after complying
with the provisions of sections 207 and 208 of the Code will commit the case to the Court of
Session under section 209 of the Code. Upon committal, the accused appears or is brought
before the Court of Session, where the Public Prosecutor opens the case by stating:-

1. The charge and allegations about the commission of an alleged offence by the accused; and

2. The evidence and particular of the witnesses by which he proposes to prove the case against
the accused person.

SECTION 227. Discharge

If after going through the record and documents submitted by the prosecution, and after
thoroughly going through arguments of the Public Prosecutor, and after hearing the submission
of the accused, the Court of Session is of the opinion that there is no sufficient ground for
proceeding against the accused, then the accused will be discharged. The Sessions Judge is
required to record the reasons for discharging the accused.

SECTION 228. Framing of charge

Sections 227 and 228 are interrelated and should be read together because if the accused person
is not discharged under section 227 then this section will apply. If in a case the, Judge is of the
opinion that the case is not exclusively triable by him, he may frame the charge and transfer
the case to the Chief Judicial Magistrate. However, if in his opinion the case is exclusively
triable by the Court of Session, then he shall frame a charge against the accused, which should
be read and explained to him.
It is the duty of the Court to ensure that the charge framed against the accused should not only
be read out but should also be explained to the accused in clear and unambiguous terms. A
default in reading out or explaining the charge to the accused would not vitiate the trial unless
it can be shown that the non-compliance with the provisions of sub-section (2) has resulted in
causing prejudice to the accused.

SECTION 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.

The plea of guilt must be in unambiguous terms, otherwise such a plea is considered as
equivalent to a plea of not guilt. If the accused pleads guilty; the Judge must record the plea of
guilt of the accused.

The Court has got discretion to accept the plea of guilt and to convict the accused thereon.
However, this discretion is to be used with care of circumspection and on sound judicial
principles bearing in mind the ultimate objective to do justice to the accused.

It has been observed that in the cases of offences punishable with death or imprisonment for
life, the Court would be rather reluctant to convict the accused on the basis of plea of guilt
because the conviction in such a case would substantially curtail his right of appeal by
implication of Section 375 of the Code.

SECTION 230. Date for prosecution evidence

This section aids prosecution for compelling the attendance of witness and production of any
document or other thing by appealing to the Court or issue of process against any witness or
any other person who is in possession of any document or other thing required for the propose
of delivering Justice.

It is the duty of the Court to take all necessary steps to compel the attendance of witnesses. The
accused cannot be acquitted on the ground of failure of the witnesses to appear before the Court
or absence of the prosecutor.

SECTION 231. Evidence for prosecution

The Judge shall proceed to take evidence produced by the prosecution on the date fixed by the
Court. It is the duty of the prosecution to examine all material witnesses essential for proving
the case of the prosecution.

It is the duty of the prosecutor to ensure that full and material facts are brought on the record
so that there may be no miscarriage of justice. The duty of the prosecutor cannot be discharged
merely because of the consideration that some of the facts, if brought on record would be
favourable to accused.

Therefore, the Court can summon a prosecution witness who might give evidence in favour of
the accused and it is the duty of the prosecution to call out the information from him by way of
cross examination. In case the prosecution had not examined witness for reasons not tenable or
proper, the Court would be justified in drawing an inference adverse to the prosecution.

SECTION 232. Acquittal

The Court under this section is empowered to acquit the accused, if there is no evidence that
he committed the offence. Acquittal can be done before calling upon to adduce evidence in his
support. This section is aimed to expedite the conclusion of the Sessions trial and to avoid the
harassment of the accused by calling upon him to adduce evidence or to avoid the wastage of
Court’s timing when there is no evidence at all. If a person is not acquitted then he has to call
on his witnesses by applying his Court for the issue of process for summoning to said witnesses
so that he can take his defence.

This section requires that there should be prima facie evidence to show that the accused has
committed the offence but at this stage, the Court is not required to consider as to what value
should be attached to such evidence and if the Court finds that there is no evidence as stated
above, then it has power to acquit the accused. The order of acquittal has to be reasoned as to
why the Court ordered for acquittal of the accused.

SECTION 233. Entering upon defence

This section casts a duty on the trial Court to call upon the accused person to enter on his
defence and adduce evidence which he may have in support of it. The provision of sub-section
(1) is mandatory in nature. Therefore, any denial of this right to the accused to lead evidence
in support of his defence would vitiate the whole trial and any omission to do so by the Judge
results in failure of justice which is not curable under Section 464 of the Code. In case the
accused person puts any written statement in respect of his defence, the same shall be filed with
the record.

If an accused under sub-section (3) applies for the issue of any process for compelling the
attendance of any witness or production of any document or thing, the Judge shall issue such
process. If the Judge is of the opinion that the application is made with the ulterior purpose of
vexation or delaying the trial, he shall reject the application and record the reasons for the same
in writing.

SECTION 234. Arguments

After the closure of the defence, evidence the prosecutor shall sum up his case and the accused
or his pleader shall be entitled to reply. But if any point of law is raised by the accused or his
pleader, the prosecution may make submission with regard to such point of law with prior
permission of the Judge.

It is the discretion of the judge to permit or not to permit the prosecution to make its submission.
Normally the permission is not refused unless the point of law raised by the accused is so
insignificant that it does not prejudice the case of the prosecution in any way.
SECTION 235. Judgment of acquittal or conviction

This section casts a duty on the Judge that the judgement in a case shall be given after hearing
the arguments and the points of law of the prosecution and the defence.

The Court must in the first instance, deliver a judgment convicting or acquitting the accused.
If the accused in acquitted no further question will arise. But if he is convicted, then the Court
must hear him on the question of sentence to be imposed on him and it is only after hearing
him on this point, that the Court can proceed to pass the order of sentence against him. The
Court remanded the matter to Sessions Court on account of failure on the part of convicting
Court to hear the accused on the question of sentence. (Santa Singh v. State of Punjab, 1976
SC)

SECTION 236. Previous conviction

Where a previous conviction is charged and the accused does not admit that he has been
previously convicted, the Judge may after he has convicted the accused, take evidence in
respect of the alleged previous conviction and shall record a finding thereon.

According to the proviso, the proof of previous conviction should not be put in until the accused
is convicted by the Court. This rule helps in preventing any prejudice being caused to the
accused during his trial. It is sufficient to prove a previous conviction of the accused and it is
not required that the earlier sentence should be in force at time of trial.
 Trial of warrant-cases by Magistrates (U/S- 238-250)

A- Cases instituted on a police report (238-243)

B- Cases instituted otherwise than on police report (244-247)
C- Conclusion of trial (248-250)

Cases instituted on a police report (238-243)

SECTION 238. Compliance with section 207

When an accused person appears or is brought before the Magistrate at the commencement of
the trial in a warrant case, instituted on a police report under section 190 (1) (b) of the Code,
the Magistrate has to satisfy himself that he has complied with the provisions of Section 207
of the code. The prima facie object of this provision is to enable the accused to have all-round
picture of the case against him at the commencement of the enquiry and the trial. The section
appears to be directory and not mandatory in nature. In case there is an entire omission to
supply copies of the relevant documents in the beginning of the trial to the accused, it will not
be fatal so as to vitiate the trials as it will be an irregularity curable under section 465 of the
Code.

SECTION 239. When accused shall be discharged

An accused person can be discharged by the Magistrate, if he considers the charge against him
is groundless. The Magistrate can arrive at such a conclusion only after going thought following
documents:

1. The police report under section 173(2) of the Code.

2. The documents referred to in Section 173 of the Code.

3. Examining the accused.

4. Hearing the prosecution.

The provision of this section empowers the Magistrate to discontinue the groundless
prosecution halfway and discharge the accused to avoid unwarranted trial process which will
ultimately result in acquittal.

After delivering the necessary documents to the accused as mentioned under section 173, he
must be given a reasonable opportunity of being heard and engaging a counsel before framing
the charge.

SECTION 240. Framing of charge

The stage of determining whether to discharge or to frame a charge against the accused is of
utmost importance for both the prosecution and the defence. Therefore, the order of the
Magistrate should be based upon:
1) The police report and all the documents furnished by the police along with such report.

2) The hearing arguments from both sides along with the examination of the accused.

3) The materials placed him independently and un-influenced by the police report.

In determining all the above stated things, the Magistrate is required to apply his judicial mind
to the facts of each case, keeping in view the essential ingredients of the offence for which the
accused in sought to be charged. It is a well settled law that if a person has been charged-
sheeted, then there is no question of dropping the charge against him. He either has to be
acquitted or convicted.

The consideration of documents referred to in section 173 consist of records of investigation

which are not admissible in evidence at the trial stage but can be made use of for limited
purpose as stated in section 162 of the Code. The object of examining the accused in reference
to the documents referred to in section 173 is to offered an opportunity to him to explain any
circumstance appearing against him. However, the examination of the accused is not
imperative.

The examination of the accused becomes necessary in case where there are facts and
circumstances in the documents which go against the accused and need explanation before
framing of the charge.

Another requirement under this section is the section also requires that the charge should not
be read out but should also be explained to the accused in a manner which ensures that the
accused has understood it properly.

SECTION 241. Conviction on plea of guilty

The Magistrate is bound to record the peal of guilt, if the accused pleads guilty. The Magistrate
may convict the accused on his plea of guilt but at the same time he is not bound to convict the
accused plea of guilt, on his and he may proceed with the trial. In case the facts alleged against
the accused do not constitute a crime, a plea of guilt under such circumstances is only admission
of facts and not an admission of guilt.

SECTION 242. Evidence for prosecution

The Magistrate shall fix date for examination of witnesses, if:

1. The accused refuses to plead guilty, or

2. The accused does not plead guilty.

3. The accused claims to be tried for the offence alleged against him.

If the Magistrate does not convict the accused under section 241 of the Code.

The Magistrate under this section is empowered to issue summons to any of the prosecution
witness, upon an application made by prosecution directing them to attend or to produce any
document or other things required for the disposal of the said case. The word ‘may’ in section
242(2) suggests that the Magistrate has discretion in the matter of issuing summons to a
prosecution witness and on the other hand it is also the duty of the court to secure the presence
of the witnesses by exercising all the powers given to under the Code.

Under subsection (3), the Magistrate shall take evidence which may be produced by the
prosecution for supporting their case. The proviso permits the cross-examination of any witness
to be deferred until any other witness(s) have been examined is based on a sound principle. In
practice, this provision might lead to delay, expense and inconvenience to the witnesses.

Therefore, in order to minimise the risk of abuse or misuse of the provision, permission of the
court has been made imperative.

SECTION 243. Evidence for defence

After the completion of the prosecution evidence the submission of the prosecution arguments,
and the examination of the accused person under section 313 (1) (b), of the Code, accused shall
be called upon to entre is defence and produce his evidence and if the accused puts in any
written statement, it is the duty of the Magistrate, to file it with the recorded.

Under this section the Magistrate is required to summons the witnesses for the purpose of
examination or cross examination at the instance of the accused. The Magistrate can summon
a witness if he is satisfied that it is necessary for purpose of justice.

The court cannot refuse to issue process to compel the attendance of any witness cited by the
accused after he has entered upon his defence, unless it records a finding that the application
for summoning the witness had been made merely for the purpose of vexation or delay or for
defecting the ends of justice. If the intention of the accused malafide and he wants to make use
of the main part of section for the purpose of achieving something which is prohibited by the
proviso, the proviso will apply and the court will be justified in refusing to accede to the request
of the accused to summon such witness.

The court cannot refuse to issue process to compel the attendance of any witness cited by the
accused after he has entered upon his defence, unless it records a finding that the application
for summoning the witness had been made merely for the purpose of vexation or delay or for
defecting the ends of justice. If the intention of the accused malafide and he wants to make use
of the main part of section for the purpose of achieving something which is prohibited by the
proviso, the proviso will apply and the court will be justified in refusing to accede to the request
of the accused to summon such witness.

The court can summon a prosecution witness who had been tendered for cross-examination by
the accused and whom he had either cross-examined or had failed to cross-examine. The
witnesses may be still be summoned by the court, if it is satisfied that it is necessary for the
purpose of justice but not otherwise.

The Magistrate may, before summoning any witness requires that reasonable expenses incurred
by the witness in attending the court be deposited in the court. The court under section 312 of
the Code is empowered to order payment of the part of Government of reasonable expenses of
witnesses attending the court proceeding for the purpose of trial. In case of calling a witness
upon an application made by the accused, the court has discretion and power to exonerate the
accused from paying the reasonable expenses to be incurred by the witnesses in attending the
court for the purpose of trial, if the court is satisfied that accused has no means or capacity to
pay such expenses. Therefore, it enables to secure, the ends of justice.

B- Cases instituted otherwise than on police report

SECTION 244. Evidence for prosecution

In a case instituted otherwise than on a police report under section 190(1) (a) or 190(1) (c) of
the code and the accused is brought or appears before the Magistrate he is required to hear the
prosecution and to take such evidence as may be produced in favour of the prosecution.

Under this section the court gives an opportunity to the prosecution for stating the nature and
character of the evidence that it wants to produce. It is at the liberty of the prosecution to
determine as to which evidence or witnesses they want to produce. This section also empowers
court to accept supplemental or additional list of witnesses given by the complainant and to
issue summons to them and reward their evidence. (Sayeeda Farhan Shamim V. State of
Bihar, 2008 SC.)

SECTION 245. When accused shall be discharged

The Magistrate can discharge the accused person, if upon taking all the evidences referred to
in section 224, of the code he finds that no case against the accused has been made out which,
if unrebutted, would warrant his conviction. The primary requirement of this section is that all
the evidences that may be produced are taken and not that all the evidences that the complaint
intend to produce in the case have been taken. If after going through the and evidences and
produced by the complainant on order of the court, the Magistrate is of the opinion that there
is not even a slightest chance of conviction, the Magistrate shall discharge the accused without
affording a further opportunity to the complainant to summon witnesses he is yet to produce.

The order of discharge in a case instituted otherwise than on police report should always be a
written order. This section requires the Magistrate to record the reasons in respect of order of
discharge. The question as to whether a chance is groundless or not entirely depends upon the
circumstances of each case as there cannot be any general rule or direction for the Magistrate
in deciding the question. But what is required is that the Magistrate should reach his decision
of discharge judiciously and not capriciously. The intention behind deciding whether a
complaint is groundless or not is to prevent undue harassment of the accused person. It is open
to the Magistrate to discharge the accused without taking any evidence, if he is otherwise
satisfied on materials that the charge is groundless one.
SECTION 246. Procedure where accused is not discharged

This section empowers the Magistrate to frame a charge against the accused. If Magistrate is
of the opinion that the accused has committed an offence, the Magistrate frames a charge
against him, but before framing of the charge, following conditions must be satisfied:

1. The offence is triable as a warrant case under sections 224 to 247 of the Code;

2. The Magistrate is competent to try such offence; and

3. The Magistrate is competent punish the accused adequately.

The Magistrate may to frame a charge before the evidence is produced by the prosecution, if
he is satisfied that the accused has committed an offence. The Magistrate frames the charge on
the basis of evidence taken by him and produced by the complainant. Thus, he may frame a
charge against the accused even after examination of only one witness, if he forms an opinion
that a prima facie case is made out against the accused. Thereafter, the charge should be read
and explained to the accused and he shall be asked whether he pleads guilty or has any defence
to make. If he pleads guilty, the Magistrate shall record the plea of guilt and may convict him.

SECTION 247. Evidence for defence

This section provides that after the prosecution evidences is over as laid down in the preceding
section, the accused shall be called upon to and upon enter defence. The accused is examined
under section 313 of the Code. If he puts in any written statement, the Magistrate shall file it
with the record.

If the accused applies to the Magistrate to issue process for calling any witness for examination
or cross examination or for production of any document or thing, the Magistrate shall issue
such summons. The Magistrate may also reject the request of accused of issuing process for
compelling attendance or for were production of thing, if he considers that the request is made
with the purpose of vexation or delay or for defeating the ends of justice. The attendance of
any witness should be compelled only when it is necessary for the interest of justice.

There is no provision for the cross-examination of any witness of the prosecution although the
magistrate, on the request of the accused, may call any witness for cross examination once
again. But before calling such witness, the Magistrate may require that reasonable expenses
incurred by the witness in attending the Court should be deposited by the accused.
 Conclusion of trial

SECTION 248. Acquittal or conviction

According to sub-section (1), if the Magistrate finds that the accused is not guilty of the offence
with which he is charged, he shall record an order of acquittal and if the charge is not framed,
the Magistrate may discharge the accused. But if in case, the Magistrate finds the accused
guilty, he shall pass the sentence according to law.

According to sub-section (2), the Magistrate does not pass sentence on the accused,
notwithstanding finding him guilty of the offence in following cases:

1. If the Magistrate is of the opinion that the accused is guilty of an offence but he has no power
to punish him as severely as he deserves, he may record his opinion and submit the proceedings
and forward the accused to Chief Judicial Magistrate whom is his subordinate under section
325 of the Code.

2. The Magistrate may release first offenders on probation of good conduct under section 360
of the Code.

According to sub-section (3), the following conditions, before taking evidence on the point of
previous conviction must be fulfilled:

1. A charge of previous conviction under section 211 (7) of the Code must be framed.

2. The accused does not admit that he has been previously convicted as alleged in the charge.

Unless and until the accused has been convicted under sub-section (2):

1. No charge of previous conviction under section 211 (7) shall be read out by the Judge.

2. The accused shall not be asked to plead on the charge of previous conviction.

3. The prosecution shall not refer to the previous conviction.

4. No evidence shall be used by the prosecution to prove previous conviction.

No sentence under this section can be passed on the accused without giving him an opportunity
of hearing.

SECTION 249. Absence of complainant

The proceedings have been instituted upon complaint is a prerequisite for applying this section.
A Magistrate discharges an accused person, under this section on account of the absence of the
complainant. He does not apply his mind to the evidence of the case. The order is passed, not
considering the merits of the case, but merely because the complainant was absent at the time
for the hearing of the case. Such an order of discharge is not a judgement within the meaning
of section 362 of code, the consequently the Magistrate is not debarred from reviewing such
an order. Therefore, the magistrate may at any time before the charge is framed, discharge the
accused, if the following conditions are fulfilled:
1. The proceedings were instituted upon complaint under section 190 (1) (a) or 190 (1) (c) of
the Code.

2. On any day fixed for the hearing of the case, the complainant is absent; and

3. The offence is lawfully compoundable, or

4. The offence is not a cognizable offence.

SECTION 250. Compensation for accusation without reasonable cause.

This section aims at curbing frivolous accusations which have been filed before the Court
Company and at the same time compensating the accused person against whom the complaint
of accusation was made without any reasonable ground. The object of this section is not to
punish the complainant, but, by a summary order, to award compensation to the person against
whom, without any reasonable ground, the accusation is made. The Magistrate can order for
payment of compensation to the alleged accused by the complainant who filled false complaint
against him. Before making an order of compensation under this section, the Magistrate should
afford an opportunity to the complainant to show cause and he shall be heard in reply. If the
Magistrate is not satisfied with the cause shown, he may order to pay compensation to the
accused for false accusation.

If the complainant or informant fails to pay the fine under this section, in such a case, the
Magistrate may pass an order against the complainant or informant for a simple imprisonment
up to thirty days. The imprisonment which is imposed in default of payment of fine shall
terminate whenever the fine is either paid or waived of by process of law. According to
subsection (5), the person ordered to pay compensation is not exempted from any civil liability
but the amount ordered to be paid is taken into consideration in the subsequent civil suit.
 Trial of summons-cases by magistrates

Section: 251 substance of accusation to be stated

When the accused appears or is brought before the Magistrate in a summons case, the
particulars of the offence with which he is charged is stated to him. The Court at this stage is
not bound or is not required to frame a formal charge rather the accused is asked as to whether
he pleads guilty or has any cause to show. The purpose of questioning the accused as to whether
he pleads guilty or not is to apprise him of the charge against him. The accused should have a
clear statement made to him that he is about to put on the trial regarding the charge of an
offence or facts constituting the commission of an offence with which he is charged.

Section: 252 conviction on plea of guilty

If in a summons case the accused pleads guilty, the admission of the accused should be recorded
in his own words. The requirements of this section are mandatory in character and a violation
of these provisions would vitiate the trial and renders the conviction legally invalid.

The requirements under this section is not a mere empty formality but is a matter of substance
intended to secure proper administration of justice. The terms of this section should be strictly
complied with because the right of appeal of the accused depends upon the circumstance as to
whether he pleaded guilty or not. Therefore, the exact words used by the accused in his peal of
guilt should be as nearly as possible be recorded in his own language in order to prevent any
mistake or misapprehension.

In case there are more than one accused persons pleading guilty, the plea of each of the accused
person should be separately recorded in his own words after the acquisition was read over to
each one of them. It is discretionary power of the Magistrate to accept or not to accept the plea
of guilt. But if he decides to accept the plea of guilt, he can call evidence to decide the question
of proper sentence.

Section: 253 conviction on plea of guilty in absence of accused in petty cases

If the Magistrate has issued summons in case of a pity offence, i.e. under section 206 of the
Code, the accused may plead guilty and send the specified amount of fine imposed on him in
lieu of such pity offence by post. The accused can also plead guilty through his pleader. The
Magistrate is empowered to convict the accused person and sentence him on such a plea of
guilt and adjust the amount sent by him as fine in the case.

Section: 254 procedure when not convicted

If an accused person is not convicted by the Magistrate under section 252 or section 253 of the
Code or he does not plead guilt for the offence alleged against him, the Magistrate shall proceed
to hear the case of the prosecution and take evidence in support of the prosecution. Thereafter,
the Magistrate shall also hear the accused and take evidence in support of has defence as well.
The Magistrate may, if he thinks fit, on an application moved either by the accused or by the
prosecution, issue a summon to any witness directing him to attend or produce any document
or other thing. The expenses incurred by the witness for attending the proceedings shall be
deposited:

1. By the accused person, if the witness is summoned on his request.

2. By the order of the Court for payment on the part of the government as stated under
section 312 of the Code, if the witness is summoned on prosecution’s request.

SECTION: 255 ACQUITTAL OR CONVICTION

The Magistrate can acquit the accused if after taking evidence under section 254 of the Code
and upon taking such further evidence on his own motion finds that the accused is not guilty
of the offence alleged against him. But if the Magistrate finds him guilty, he shall pass sentence.
The Magistrate must pass sentence in consonance with the law for the time being in force.
However, instead of passing sentence the Magistrate may release the accused person on
probation under section 360 of the Code, taking notice of the following things:

1. the character of the offender

2. the nature of the offence
3. the circumstances of the case

In case the Magistrate is not competent to pass adequate sentence, he shall submit the case to
the Chief Judicial Magistrate under section 325 of the Code. A person charged with one offence
may be convicted of another offence for which he might have been charged but was not charged
under section 221 (3) of the Code. Similar provision has been made under this section as no
formal charge is framed under this section, the Magistrate may convict the accused “of any
offence triable under this chapter which from the facts admitted or proved he appears to have
committed whatever may be the nature of the complaint or summons.” This Section has a wide
coverage, but a person accused of an offence triable as a summons case cannot be convicted of
a totally different and unconnected offence about which he may never have been questioned or
against which he never defended himself. Therefore, sub-section (3) also aims at safeguarding
the interest of the accused person.

SECTION: 256 NON-APPEARANCE OR DEATH OF COMPLAINANT

In case the complainant fails to appear in the Court after the summons has been issued on him
and on the day appointed for the appearance of the accused or any other day subsequent thereto
to which the hearing may be adjourned, the Magistrate shall acquit the accused unless there are
some reasons which he thinks proper to adjourn the hearing of the case to some other day. The
personal appearance of the complainant can be dispensed with, if he is represented by a pleader
or by the officer conducting the prosecution or where the Magistrate has formed an opinion
that the personal attendance of the complainant is not necessary. The provisions of this section
shall be applicable to the cases where the non-appearance of the complainant is due to his death.
SECTION: 257 WITHDRAWAL OF COMPLAINT

A complainant may, at any time before the final order is passed, withdraw the complaint:

1. against the single accused, or

2. any one or more accused persons.

The complainant can withdraw the complaint against the accused person or persons only upon
satisfying the Court that there are sufficient grounds for permitting him to withdraw the
complaint. The Magistrate, if satisfied with the grounds stated by the complainant for the
withdrawal of the complaint, acquit the accused thereon.

SECTION: 258 POWER TO STOP PROCEEDINGS IN CERTAIN CASES

The Magistrate under this section can stop the proceedings of any summons case instituted on
a police report under section 190(1) (b) of the Code. The proceedings can be stooped by:

1. The Judicial Magistrate First Class, or

2. Any other Magistrate with the previous sanction of the Chief Judicial Magistrate.

The proceedings in a summons case can be stopped under this section only after recording the
reasons for doing so. In case where the proceedings are stopped after recording, the testimonies
for the principle witnesses, the accused shall be acquitted and if the proceedings are stopped
before recordings such testimonies, the accused shall be discharged.

SECTION: 259 POWER OF COURT TO CONVERT SUMMON

If an offence is punishable with imprisonment above six months and the Magistrate is of the
opinion that the procedure of warrant cases trial should be adopted instead of summons cases
trial, he may do so for achieving the ends of justice. He is also empowered to recall any witness
already examined for the purpose of this section.
 Summary trials (260-265)

SECTION: 260 POWER TO TRY SUMMARILY

The ultimate aim of prescribing procedure for summary trial in case of same offences is speedy
disposal of those cases.

Which Courts can try cases in a summary way?

Ans. As per Section 260 (1) Cr.P.C. the Courts which can try cases in a summary way are –

a) Chief Judicial Magistrate

b) Metropolitan Magistrate

c) Magistrate of the first class specially empowered in this behalf by the High Court.

d) Over and above the above Courts, the High Court can under Section 261 Cr.P.C. confer on
any Magistrate of the second class the power to try summarily any offence which is punishable
only with fine or with imprisonment for a term not exceeding 6 months with or without fine,
and any abetment of or attempt to commit any such offence.

(Here also, after conviction in summary trial the Magistrate of the second class cannot impose
a sentence of imprisonment exceeding 3 months, in view of the Bar under Section 262 (2)
Cr.P.C.)

Features of Summary Trial

 Simplified Procedure: The procedure is less formal compared to regular trials. The court
has the discretion to dispense with certain formalities and adopt a summary procedure.

 Speedy Disposal: This trial is intended to facilitate quick disposal of cases. The court
is mandated to complete the trial within a period of six months from the date of the first
appearance of the accused.

 Single Judge: They are presided over by a magistrate who acts as a single judge. The
magistrate has the authority to decide on the guilt or innocence of the accused and pass
a sentence.

 Limited Punishment: The maximum punishment that can be imposed herein is three
months of imprisonment.

 Waiver of Appeal: The accused herein has the option to waive the right to appeal against
the conviction and sentence. If the accused waives the right to appeal, the judgment
becomes final and cannot be challenged in a higher court.

 Summary Powers: The magistrate conducting the trial has the power to convict the
accused based on the evidence presented during the trial. However, the magistrate must
record reasons for the conviction in writing
  Procedure: The procedure to be followed is the procedure specified in the Cr.P.C. for
the trial of summons-case.

What are the types of cases which can be tried in a summary way?

Section 260 (1) Cr.P.C. enumerates 9 categories of cases which can be tried summarily. They
are –

i. offences not punishable with death, imprisonment for life or imprisonment for a term
exceeding two years (i.e. offences punishable with imprisonment for 2 years and
below);
ii. theft, under Section 379, Section 380 or Section 381 of the Indian Penal Code (45 of
1860), where the value of the property stolen does not exceed two thousand rupees;
iii. receiving or retaining stolen property, under Section 411 of the Indian Penal Code (45
of 1860), where the value of the property does not exceed two thousand rupees;
iv. assisting in the concealment or disposal of stolen property, under Section 414 of the
Indian Penal Code (45 of 1860) where the value of such property does not exceed two
thousand rupees;
v. offences (of lurking house-trespass and house-breaking) under Sections 454 and 456 of
the Indian Penal Code (45 of 1860);
vi. insult with intent to provoke a breach of the peace, under Section 504 and criminal
intimidation punishable with imprisonment for a term which may extend to two years,
or with fine, or with both, under Section 506 of the Indian Penal Code (45 of 1860);
vii. abetment of any of the foregoing offences;
viii. an attempt to commit any of the foregoing offences, when such attempt is an offence;
ix. any offence constituted by an act in respect of which a complaint may be made under
Section 20 of the Cattle Trespass Act, 1871 (1 of 1871).
x. “Petty offences” as defined under Section 206 (2) Cr.P.C. punishable only with fine not
exceeding Rs.1, 000/- can be disposed of summarily under Section 206 (1) Cr.P.C.

The Magistrate can issue a “special summons” under Section 206 (1) Cr.P.C. giving the
accused the option –

 to appear in person or through counsel, or

 to plead guilty to the accusation without appearing before the Magistrate, by
transmitting through post or by messenger the said plea of guilty in writing and the
amount of fine specified in the summons, or
 to authorise in writing his counsel to plead guilty on his behalf and pay the fine through
such counsel. (Vide Section 253 Cr.P.C).

The fine specified in the special summons shall not exceed Rs. 1,000/-. (Vide proviso to Section
206 (1) Cr.P.C).
What is the procedure to be followed for “summary trial”?

Ans. In view of Section 262 Cr.P.C, the same procedure for trial of “summons cases” shall be
followed for “summary trial” under Chapter XXI Cr.P.C but subject to the provisions under
Chapter XXI Cr.P.C.

Procedure

Section 251 read with Section 262 (1) Cr.P.C. – As and when the accused appears or is brought
before the Magistrate, the substance of accusation (particulars of the offence) shall be stated to
him and he shall be asked whether he pleads guilty or whether he has any defence to make. But
it shall not be necessary to frame a formal charge.