Course 3 block 3

UNIT 4 ACQUITTAL AND CONVICTION

Structure
4.1 Introduction
4.2 Objectives
4.3 Meaning of Acquittal
4.4 Conviction for Offence Charged
4.5 Conviction on Plea of Guilty
4.6 Post Conviction Orders
4.7 Judgment of acquittal or conviction
4.8 Proof of previous conviction or acquittal
4.9 General Provisions relating to Acquittal and Conviction
4.10 Summary
4.11 Terminal Question
4.12 Answers and Hints
4.13 References and Suggested Readings

4.1 Introduction
The Next stage of Criminal trial after argument is the "Judgment". After appreciating the
evidence, conclusion of arguments by the prosecutor and defence, and hearing the accused
the judge pronounces his judgment in the trial. The accused may be acquitted or convicted.
If court pronounces the judgment of acquittal, it shall state the offence of which the
accused is acquitted and direct that he be set at liberty. If the accused pleads guilty, the
judge shall record the plea and may, in his discretion, convict him thereon. The judge may
weigh the mitigating and aggravating circumstances before convicting an accused. He may
also ponder over the option of probation of good conduct instead of immediately
punishing him, or enhancing the sentence of the accused due to his previous conviction.
Present Unit explains the meaning of acquittal and conviction and provisions relating
thereto in the Code of Criminal Procedure. Unit also discusses in detail principles
governing judgments of acquittal and conviction along with relevant case laws.

1
 4.2 Objectives
After going through this Unit, you shall be able to-
• Understand meaning of acquittal and conviction
• Describe provisions relating to acquittal and conviction
• Analyse effects of acquittal and conviction on pleading guilty
• Identify general rules relating to acquittal and conviction
• Explain principles of judgment on acquittal and conviction
• Analyse effect of previous acquittal and conviction

4.3 Acquittal
a) Meaning of
The term ‘acquittal’ has been explained in negative terms by saying that the dismissal of a
complaint, or the discharge of the accused is not "acquittal" [Explanation to S. 300]. An
order of acquittal establishes innocence of the accused after full fledged trial. It is recorded
after framing of charge against an accused and recording evidence and after the judgment
on merit. An order of acquittal bars a fresh trial and it is not open to a court to prosecute
such person once again on the ground that fresh facts, further evidence or additional
materials are available against him. The verdict of acquittal pronounced by a competent
court on a lawful charge and after a lawful trial is binding and conclusive in all subsequent
proceedings between the parties to the adjudication.1
The word "acquittal" does not mean complete acquittal but acquittal of the offence with
which the accused was charged. In Tarachand v. State of Maharashtra2 the accused was
tried for an offence of murder under Section 302, IPC but was convicted by the trial court
under Section 304, Part-I, IPC. On appeal filed by the State, the High Court convicted the
accused under Section 302, IPC and sentenced him to death. He applied for certificate
under Article 134 (l) (a) of the Constitution which was refused by the High Court
upholding the contention of the State that the word "acquittal" meant complete acquittal.
And when the trial court also convicted the accused under Section 304, Part-I, IPC, it
could not be said that the High Court "has on appeal reversed an order of acquittal of an

1
Ratilal Bhanji v. State of Maharashtra, AIR 1979 SC 94; State of Bombay v. Apte, AIR 1961 SC
578
2
AIR 1962 SC 130 : (1962) 2 SCR 275 : (1962) 1 Cr.L.J. 196.

2
 accused person and sentenced him to death". The accused approached the Supreme Court
under Article 136. The Supreme Court rightly observed that the decision of the case was to
depend upon the construction of the word "acquittal".
Following the law laid down by the Privy Council3 and holding that the appellant-accused
was entitled to certificate under Article 134(l) (a), the Supreme Court observed that the
word "acquittal" does not mean that the trial must have ended in a complete acquittal of
the charge but acquittal of the offence charged and conviction for a minor offence (than
that for which the accused was tried) is included in the word "acquittal". If court
pronounces the judgment of acquittal, it shall state the offence of which the accused is
acquitted and direct that he be set at liberty.4

Self Assessment Question

1. How the term ‘Acquittal’ is defined under the Code of Criminal Procedure ?
…………………………………………………………………………
…………………………………………………………………………..

b) Provisions as to Acquittal of Accused Persons of Unsound Mind

If the judgment of acquittal is given on the ground that the accused was insane at the time
at which he is alleged to have committed the offence charged, the accused shall not be set
at liberty by the judgment of acquittal.
But when the accused appears to be of sound mind at the time of inquiry or trial, and the
magistrate is satisfied from the evidence given before him that there is reason to believe
that the accused committed an act, which, if he had been of sound mind, would have been
an offence, and that he was, at the time when the act was committed, by reason of
unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or
contrary to law, S. 333 requires the magistrate to proceed with the case, and, if the accused
ought to be tried by a court of session, to commit him for trial before the court of session.
Whenever any person is acquitted upon the ground that, at the time at which he is alleged
to have committed an offence, he was, by reason of unsoundness of mind, incapable of
knowing the nature of the act alleged as constituting the offence, or that it was wrong or

3
Kishan Singh v. Emperor, AIR 1928 PC 254 : 55 IA 390 : 29 Cr.L.J. 828; AIR 1962SC 130
4 S. 354 (1)(d) of Code of Criminal Procedure

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 contrary to law, the finding shall state specifically whether he committed the act or not (S.
334).
Section 3355 provides for the detention in safe custody of persons acquitted on such
ground.
The primary object of the detention order under S. 335 is rehabilitation of the accused
(now acquitted) and to prevent any trouble if he should relapse into insanity.6

Self Assessment Question

2. Discuss provisions relating to acquittal of accused persons of unsound mind.
……………………………………………………………………………..
…………………………………………………………………………………

4.4 Conviction for offence charged

Conviction For minor offence when major offence is charged
This principle is embodied in S. 222 of the Cr.P.C.7 Where the accused person is charged
with an offence consisting of several particulars, some of which when combined and

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S. 335 Person acquitted on such ground to be detained in safe custody— (1) Whenever the
finding states that the accused person committed the act alleged, the Magistrate or Court before whom
or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted
an offence—
(a) order such person to be detained in safe custody in such place and manner as the Magistrate or
Court thinks fit; or
(b) order such person to be delivered to any relative or friend of such person.
(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of
sub-sec. (1) otherwise than in accordance with such rules as the State Government may have made
under the Indian Lunacy Act, 1912 (4 of 1912).
(3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of
sub-sec. (1), except upon the application of such relative or friend and on his giving security to the
satisfaction of the Magistrate or Court that the person delivered shall—
(a) be properly taken care of and prevented from doing injury to himself or to any other person;
(b) be produced for the inspection of such officer, and at such times and places, as the State
Government may direct.
(4) The Magistrate or Court shall report to the State Government the action taken under sub-sec. (1).
6
See R.v. Kelker’s , Criminal Procedure, 2008, p.262
7
S. 222 When offence proved included in offence charged.— (1) When a person is charged with an
offence consisting of several particulars, a combination of some only of which constitutes a complete
minor offence, and such combination is proved, but the remaining particulars are not proved, he may
be convicted of the minor offence, though he was not charged with it.

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 proved form a complete minor offence, he may be convicted of minor offence though he
was not charged with such minor offence. That is in cases where the minor offence is a
component of the major offence. For example, a person charged under S. 326 IPC can be
punished under S. 324 IPC. There is also another situation where facts are proved which
reduces the offence charged to a minor offence. Here the offence for which punishment is
imposed need not be a component of the major offence. But the major offence must be
more or less a cognate offence. For example, in the case of an accused charged under S.
302 IPC if any of the exceptions to Section 300 is proved to exist, he could be punished
under S. 304 IPC even though there is no charge under that section.8 The proposition is
based on the principle that graver charge gives notice to the accused of all the
circumstances going to constitute the minor one of which he may be convicted.
If an accused is charged of a major offence but is not found guilty there under, he
can be convicted of minor offence, if the facts established indicate that such minor
offence has been committed. 9The Court is entitled to convict a person of an offence which
is minor in comparison to the one for which he is tried.10
The minor offence for the purposes of S. 222 is not something independent of the main
offence or which is simply punishable with lesser punishment. The major and minor
offences must be cognate offences and not such as are totally constituted by different
elements. As already discussed the minor one must be constituted by some of the elements
of the main offence.11 As such S. 306 IPC cannot be said to be a minor offence in relation

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence,
he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such
offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the
conditions requisite for the initiation of proceedings in respect of that minor offence have not been
satisfied.
8
State v. Rajappan Nair, 1987 C
9
State of Himanchal Pradesh v. Tara Dutta, AIR 2000 SC 297
10
Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214
11
Makkhan v. Emperor, AIR 1945 All 81, 85: (1945) 46 Cri LJ 750; Raman Ambalam, Re, AIR 1951
Mad 258; Mohd. Nabi v. Emperor, AIR 1934 Oudh 251, 253: (1934) 35 Cri LJ 943; Emperor v.
Abdul Wahab, AIR 1945 Bom 110; Vazhambalakkal Thomachan v. State of Kerala, 1978 Cri LJ 498,
501 (Ker HC); see also State v. Rajappan Nair, 1987 CriLJ 1257 (KerHC).

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 to an offence under S. 302 IPC within the meaning of Section 222 Cr.P.C. for the offences
are of distinct and different categories.12
According to sub-sec. (3), when a person is charged with an offence, he may be convicted
of an attempt to commit such offence although he is not separately charged. The sub-
section does not cover abetment of an offence. The conviction for abetment would not be
permissible under this section13, but that might be possible under S. 221.14
Illustrations
(a) A is charged, under S. 407 of the Indian Penal Code (45 of 1860), with criminal breach
of trust in respect of property entrusted to him as a carrier. It appears, that he did commit
criminal breach of trust under S. 406 of that Code in respect of the property, but that it was
not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the
said S. 406.
(b) A is charged, under S. 325 of the Indian Penal Code (45 of 1860), with causing grievous
hurt. He proves that he acted on grave and sudden provocation. He may be convicted
under S. 335 of that Code.

Self Assessment Question

3. If an accused is charged of a major offence but is not found guilty there under, whether he
can be convicted of minor offence?
………………………………………………………………………………….
…………………………………………………………………………………

4.5 Conviction on plea of guilty

a) In a trial by court of Session
If the accused pleads guilty, the judge shall record the plea and may, in his discretion,
convict him thereon. [S.229]. It is, however, not obligatory for the Court to convict the
accused on such plea. It is in the discretion of the Court and such discretion has to be
exercised with due care, caution and circumspection and on sound judicial principles
bearing in mind the ultimate objective to do justice to the accused. Such plea must be

12
Sangaraboina Sreenu v. State of A. P., (1997) 5 SCC 348: 1997 SCC (Cri) 690; Lokendra Singh v.
State ofM.P., 1999 SCC (Cri) 371; Ram Ballah Mandal v. State of Bihar, 1999 Cri LJ 3945 (Pat HC).
13
Emperor v. Raghya Nagya, AIR 1924 Bom 432: (1924) 25 Cri LJ 1135; Chotey v. Emperor, AIR
1948 All 168, 170: (1948) 49 Cri LJ 168, 169; Hulas Chand Baid v. Emperor, AIR 1927 Cal 63, 64:
(1927) 28 Cri LJ 2, 3.
14
Bhagat Ram v. State of Punjab, AIR 1954 SC 621: 1954 Cri LJ 1645, 1654.

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 clear, unambiguous and unequivocal. It must distinctly admit each and every fact
necessary to constitute the offence. Where a 'plea of guilty' is qualified or accompanied by
some reservations, it cannot be said to be a 'plea of guilty'. The Judge also should satisfy
himself whether or not the accused understood the charge in order to ascertain whether
such plea was voluntary. The plea of guilty must be made by the accused himself and not
by his pleader unless the pleader is permitted by the Court to appear in the place of the
accused.15 Before recording plea of guilty, the accused must be confronted with summary
of allegations.16
A plea of guilty no less than a confession must be accepted with caution. The Court before
recording conviction on the basis of such plea, ought to explain the charge to the accused
and satisfy itself that the accused fully understood the implications of such plea. Usually in
serious cases and offences punishable with death or imprisonment for life the Court would
be rather reluctant to convict the accused only on the basis of the plea of guilty. Though
there is no legal bar to recording conviction in such cases, ordinarily the Court will
proceed with the trial by recording the evidence. "The more grievous the charge, the more
care and circumspection is expected to be exercised by the Court in accepting and acting
upon the plea of guilty."17
A plea of guilty can be permitted to be withdrawn by the Court if it is satisfied that there
was mistake or misunderstanding on the part of the accused or it would be desirable that
the accused should be allowed to join issue.18
The stage of pleading guilty is immediately after framing of the charge by the Court.
Therefore, after the trial is started and some witnesses have been examined, no plea of
guilty can legally be recorded. In such cases, the court has to convict or acquit the accused
on consideration of evidence led before the court.19

15
Abdul Kadar v. Emperor, AIR 1947 Bom 345 : 48 CrLJ 329 (FB); Karam Singh v. State of H.P.,
1982 CrLJ (NOC) 215; Ramesan v. State, 1981 CrLJ 451; Anand v. State, AIR 1960 JK 139; Dan-
dopani, in re, AIR 1968 Mad 59 : 1968 CrLJ 26; Thippaswamy v. State of Karnaiaka, AIR 1983 SC
747 : (1983) 1 SCC 194 : 1983 CrLJ 1271; Kanchan Bai v. State, AIR 1959 MP 150: 1959 Cri LJ
602, 603
16
Pawan Kumar v. State ofHaryana, AIR 1996 SC 3300 : (1996) 4 SCC 17 : 1996 SCC (Cri) 583.
17
Gavisiddappa, in re, AIR 1968 Mys 145 : 1968 CrLJ 762; Ramesan v. State (Id.); Tyron v. Slate,
1989 CrLJ 123, Mohanlal v. Wagh, 1981 CrLJ 454; Hasruddin Mohammad v. Emperor, AIR 1928
Cal 775: 30 Cri LJ 508, 509; Laxmya Shiddappa v. Emperor, (1917) 18 Cri LJ 699, 700 (Bom HC);
Queen-Empress v. Bhadu, ILR (1896) 19 All 119, 120-121.
18
HALSBURY'S LAWS OF ENGLAND, (4th edn.), Vol. II, para 248; R. v. Mc Nolly, (1954) 2 All ER 372.
19
Dandopani, in re, AIR 1968 Mad 59: 1968 Cr LJ 26.

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 When there is a joint trial against more than one accused and one of the accused pleads
guilty, the court may record his plea and convict him and proceed with the trial against the
other accused.20 When the accused has been convicted on the plea of guilty and appeal is
filed for enhancement of sentence, the appellate court may set aside the sentence and order
re-trial if it is satisfied that lenient sentence was imposed on the accused by plea
bargaining.21
After hearing the arguments, the Judge will deliver judgment. If the accused is convicted,
the judge must hear him on the question of sentence and then impose sentence on him in
accordance with law. No such hearing may be necessary if the accused is released on
probation of good behaviour or after admonition under Section 360 of the Code.22
In case of allegation of previous conviction by the prosecution and denial by the accused,
the judge after recording conviction against the accused may take evidence of such
previous conviction and shall record his finding thereon. This provision is intended to
determine the liability of the accused to enhanced punishment due to previous
conviction.23

Self Assessment Question

4. Discuss provisions of S. 229 of Cr.P.C. with principles underlining therein.
……………………………………………………………………………..
……………………………………………………………………………..

b) In a trial of warrant Case by Magistrate

If the accused pleads guilty, the magistrate shall record the plea and may, in his discretion,
convict him thereon. [S. 241]
If the facts alleged against the accused do not constitute a crime, a plea of guilty under
such circumstances is only admission of facts and not an admission of guilt.24 If the
accused is convicted on his plea of guilty, the magistrate shall, unless he proceeds in

20
Mahadeo v. King, AIR 1936 PC 242: 37 Cr LJ 914, Swami, in re, AIR 1957 Mad 379.
21
Thippaswamy v. State of Karnataka, AIR 1983 SC 747 : (1983) I SCC 194:1983 CrLJ 1271
22
S. 235, see also Dagdu v. Slate of Maharashtra. AIR 1977 SC 1579 : (1977) 3 SCC 68 : 1977 Cr LJ
1206.
23
S.236 ; See also Pratap v. State of U.P. AIR 1973SC 786; 1973 Cr.L.J.565
24
Gannon Dunkerley & Co, Re, AIR 1950 Mad 837, 838: (1950) 51 Cri LJ 1567; State of M.P. v.
Mustaq Hussain, AIR 1965 MP 137, 138: (1965) 1 Cri LJ 711; Basant Singh v. Emperor, (1926) 27
Cri LJ 907, 908 (Lah HC).

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 accordance with the provisions of S. 325 or S. 36025, hear the accused on the question of
sentence and then pass sentence on him according to law.
In case where previous conviction is charged under S. 211(7) and the accused does not
admit that he has been previously convicted as alleged in the charge, the magistrate after
recording the conviction against the accused may take evidence of such previous
conviction and shall record his finding thereon.26 (Principles discussed in 4.5 a are also
relevant for this section)

c) Conviction on plea of guilty in a trial of summon Cases

S. 252 Cr. P.C. says that If the accused pleads guilty, the magistrate shall record the plea
as nearly as possible in the words used by the accused and may, in his discretion convict
him thereon. The requirements of S. 252 are mandatory in character to secure proper
administration of justice and a violation of these provisions vitiates the trial and renders
the conviction legally invalid.27
It is important that the terms of the section are strictly complied with because the right of
appeal of the accused depends upon the circumstance whether he pleaded guilty or not and
it is for this reason that the legislature requires that the exact words used by the accused in
his plea of guilty should as nearly as possible be recorded in his own language in order to
prevent any mistake or misapprehension.28 If there are a number of accused persons, the
plea of each of the accused should be separately recorded and, in his own words after the
accusation was read over to each one of them. Where there are number of accused persons
and the accusation is read over to them jointly and the magistrate records their plea of
admission jointly, such admission is bad in law.29 If the facts mentioned in the "charge" do
not constitute the offence, the mere plea of guilty cannot render the accused liable to be
convicted on such plea which does not contain any admission constituting all the
ingredients of the offence.30

25
For the text of Ss. 325 & 360 See Code of criminal procedure
26
See S.248(3) of Code of criminal procedure
27
Mahant Kaushalaya Das v. State of Madras, AIR 1966 SC 22: 1966 Cri LJ 66, 68; Chotu
Bhagirath v. State of Gujarat, 1972 Cri LJ 548, 550-551 (Guj HC).
28
Mahant Kaushalaya Das v. State of Madras, AIR 1966 SC 22: 1966 Cri LJ 66, 68; Aithappa v.
State of Mysore, 1973 Cri LJ 360 (Mys HC).
29
State of Mysore v. Shivanna, 1972 Cri LJ 1146, 1148 (Mys HC); Chhotu Bhagirath v. State of
Gujarat, 1972 Cri LJ 548, 550 (Guj HC); Hansraj v. State, AIR 1956 All 641: 1956 Cri LJ 1267,
1270. See also Anand Vithoba Lokhare v. State of Maharashtra, 1999 Cri LJ 2857 (Bom HC).
30
State ofM.P. v. Kapurchand, 1973 Cri LJ 417, 419 (MP HC).

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 The magistrate has discretion to accept or not to accept the plea of guilty. If he decides to
accept the plea of guilty he can call evidence to decide the question of proper sentence.31
Before accepting the plea of guilty it is the bounden duty of the Magistrate to satisfy
himself that the concerned accused has understood the charge or the substance of the
accusation against him and the concerned accused has after understanding the same
pleaded guilty and also after realizing the consequences that follow.32
If the magistrate accepts the plea of guilty and convicts the accused person he shall pass
sentence on him according to law unless he proceeds in accordance with the provisions of
S. 325 or S. 360. [S. 255(2)]
A magistrate may convict the accused of any offence (triable under S. 252 or S.255 of
Chapter XX of Cr.P.C.)33, which from the facts admitted he appears to have committed,
whatever may be the nature of the complaint or summons, if the magistrate is satisfied that
the accused would not be prejudiced thereby [S. 255(3)]. (Principles discussed in 4.5 a are
also relevant for this section)

Self Assessment Question

5. Explain the provisions for convicting accused on plea of guilty in a trial of warrant and
summon cases.
…………………………………………………………………………….
……………………………………………………………………………

d) Conviction on plea of guilty in absence of accused in petty cases34—S. 206 provides

that in the case of certain petty offences, an accused who is willing to plead guilty need
not appear in the court either in person or through his pleader provided he satisfies the
31
Emperor v. Janardan Kashinath Abhyankar, AIR 1931 Bom 195: (1931) 32 Cri LJ 719, 720 (FB).
32
State ofKarnataka v. Mallappa Shidlingappa Gangai, 1979 Cri LJ 1482, 1484 (Kant HC).
33
Chapter XX of Cr.P.C. deals with Trial of Summon Cases by Magistrates
34
S. 253 Conviction on plea of guilty in absence of accused in petty cases—(1) Where a summons
has been issued under Section 206 and the accused desires to plead guilty to the charge without
appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter
containing his plea and also the amount of fine specified in the summons.
(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and
sentence him to pay the fine specified in the summons, and the amount transmitted by the accused
shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads
guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words
used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as
aforesaid.

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 conditions of that section. The object obviously is to avoid unnecessary trouble to
offenders who have committed petty offences and are willing to pay the penalty. Section
253 prescribes the procedure where a person to whom a summons has been issued under
S. 206 has transmitted to the magistrate his plea of guilty without appearing before such
magistrate.
The provision is only an enabling one. The magistrate has been given the discretion to
convict and sentence the accused person on such a plea of guilty. The section allows a
lawyer appearing on behalf of the accused person to plead guilty on his behalf.

Self Assessment Question

6. Whether presence of accused is compulsory in petty cases for convicting him on the plea of
guilty?
………………………………………………………………………………
………………………………………………………………………………

4.6 Post-conviction Orders

In Ediga Anamma v. State of A.P., the Supreme Court observed that once guilt is established,
the punitive dilemma begins.35 The Code provides that in every trial, when the accused is
found guilty and convicted, the court shall proceed to pass sentence on him.36 Thus, when
the court finds an accused guilty it has got the discretion either to punish the offender or
to release him after admonition or on probation of good conduct under S. 360 or under Ss.
3 and 4 of the Probation of Offenders Act.
This mandatory rule has two exceptions : (1) In trials of warrant cases and summons cases,
whenever a magistrate is of the opinion, after hearing the evidence, that the accused is
guilty and that he ought to receive a punishment different in kind from, or more severe
than, that which such magistrate is empowered to inflict, he may record the opinion and
submit his proceedings to the Chief Judicial Magistrate. The Chief Judicial Magistrate
then shall proceed to pass such judgment, sentence or order in the case as he thinks fit.37
This provision enables the magistrate to get the post-conviction orders passed by a court of
wider competence and authority. (2) In cases where the court considers it desirable to
proceed in accordance with the provisions of S. 360 the court may, having regard to the

35
(1974) 4 SCC 443: 1974 SCC (Cri) 479, 485: 1974 Cri LJ 683, 686.
36
See Ss. 235(2), 248(2), 255(2) of the Code of Criminal Procedure
37
See S. 325 of the Code of Criminal procedure

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 age, character, antecedents or physical or mental condition of the offender and to the
circumstances in which the offence was committed, instead of sentencing the accused
person to any punishment, release him after admonition or on probation of good conduct.
The Probation of Offenders Act is much wider in its sweep with its special emphasis on
the reformation and rehabilitation of the offenders. Notwithstanding anything contained in
any other law for the time being in force, the Act enables the court to release offenders
after admonition or on probation of good conduct under certain circumstances.

4.7 Judgment of acquittal or conviction

Section 235,248 and 255 of the Cr.P.C. deal with judgment of acquittal and conviction.
Now we shall discuss each of these sections-
S. 235 of Cr.P.C. Judgment of acquittal or conviction :-
1. After hearing the 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.
(S. 235 Cr.P.C. applies to offences exclusively triable by Session's Judge)

S. 248 of Cr.P.C. Acquittal or conviction:-

1. If, in any case under this chapter in which a charge has been framed, the Magistrate finds
the accused not guilty, he shall record an order of acquittal.
2. Where, in any case under this chapter, the Magistrate finds the accused guilty, but does not
proceed in accordance with the provisions of Section 325 or Section 360, he shall, after
hearing the accused on the question of sentence, pass sentence upon him according to law.
3. Where, in any case under this chapter, 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 Magistrate may, after he has convicted
the said accused, 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 Magistrate nor shall the accused be
asked to plead thereto nor shall the previous conviction be referred to by the prosecution

12
 or in any evidence adduced by it, unless and until the accused has been convicted under
sub-section (2).
(S. 248 Cr.P.C. applies to offences triable by Magistrate) (warrant cases)

S. 255 of Cr.P.C. Acquittal or conviction:-

1. If the Magistrate, upon taken the evidence referred to in Section 254 and such further
evidence, if any, as he may, of his own motion, cause to be produced, finds the; accused
not guilty, he shall record an order of acquittal.
2. Where the Magistrate does not proceed in accordance with the provisions of Section 325 or
360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
3. A Magistrate may, under Section 252 or Section 255, convict the accused of offence triable
under this chapter, which from the facts admitted or proved he appears to have committed,
what ever may be the nature of the complaint or summons, if the Magistrate is satisfied
that the accused would not be prejudiced thereby.
(Section 255 Cr.P.C. deals with summons cases triable by Magistrate and from the
very nature, these are not grave offences. Hence the Magistrate need not give an
opportunity to the accused to be heard on the quantum of punishment after finding him
guilty unlike in the other two sections.)

Principles of Judgment of Acquittal or Conviction

Certain principles have been evolved by the Court with regard to judgments on acquittal
and conviction-
a) Right to be Heard
It has been observed that Section 235(2) is a salutary provision which enjoins upon the
Court a duty to hear the accused. This should not be relegated to an empty formality. The
imperative language leaves no room for doubt that the provision is mandatory and
obligatory and non-compliance thereof goes to the root of the matter. Failure to afford
such opportunity to the accused will vitiate the sentence. The conviction will, however,
stand and the accused cannot claim de novo trial.38
In Santa Singh v. State of Punjab39 Supreme Court rightly observed that "…having regard
to the object and the setting in which the new provision of Section 235(2) was inserted in

38
Nirpal Singh v. State of Haryana. AIR 1977 SC 1066 : 1977 Cr.L.J. 642; Tarlok Singh v. Slate of
Punjab, MR 1977 SC 1747 : (1977) 3 SCC 218
39
AIR 1976 SC 2386

13
 the 1973 Code, there can be no doubt that it is one of the most fundamental parts of the
criminal procedure and non-compliance thereof will ex facie vitiate the order. Even if it be
regarded as an irregularity, the prejudice caused to the accused would be inherent and
implicit because of the infraction of the rules of natural justice which have been
incorporated in this statutory provision, because the accused has been completely
deprived of an opportunity to represent to the Court regarding the proposed sentence and
which manifestly results in a serious failure of justice."40
In Dagdu v. State of Maharashtra41, The Supreme Court observed that-"…the court on
convicting an accused must unquestionably hear him on the question of sentence. But if
for any reason it omits to do so and the accused makes a grievance of it in the Higher
Court, it would be open to that court to remedy the breach by giving a hearing to the
accused on the question of sentence.
The opportunity has to be real and effective, which means that the accused must be
permitted to adduce before the court all the data which he desires to adduce on the
question of sentence. For a proper and effective implementation of the provision contained
in Section 235 (2) of Cr.P.C. it is not always necessary to remand the matter to the court
which has recorded the conviction. Remand is an exception not the rule, and ought
therefore to be avoided as far as possible in the interest of expeditious though fair, disposal
of cases."
S. 235 of Cr.P.C. involves of grave offence and the court is duty bound to hear the accused
regarding sentence to be inflicted upon him. Before passing the grave sentence, the court
has to even take into consideration the socio-economic conditions of the accused.42
b) Conviction and sentence cannot be passed on the same day
After convicting the accused the court should adjourn the matter to a future date to hear
the accused on sentence. In Allauddin Mian v. State of Bihar,43the Supreme Court
opined that after convicting the accused, the matter should be adjourned to enable the
convict to prepare his arguments on the sentence, meaning that sentence should not be

40
AIR 1976 SC 2386 : 1976 CrLJ 1875.
41
A.I.R. 1977 SC 1579: (1977 Cr.L.J. 1206); See also Shri Kishore Chand v. State of Punjab, 1994
Cr.LJ. 1464 (Delhi)
42
Dadu v. State of Maharashtra, (2000) 8 SCC 437 : 2000 CrLJ 4619.
43
A.I.R. 1989 SC 1456:1989 Cr.L.J. 1466; see also Bishnu v. State, 1996 Cr.L.J. 3572 (Delhi)

14
 passed on the same day. Hence conviction and sentence cannot be passed on the same day
and doing so would be against the mandates of law.
c) Trial is vitiated if conviction and sentence is pronounced on the same day
Relying upon Section 235 (2), Cr.P.C. and the construction placed there on by Supreme
Court, in Allaudin Mian v. State of Bihar,44 again in the case of Matloob v. State (Delhi),45
it was held that the trial is vitiated if conviction and sentence is pronounced on the same
day.

Self Assessment Question

7. Discuss principles evolved by the judiciary for giving judgments on acquittal and
conviction.
…………………………………………………………………………………..
…………………………………………………………………………………

4.8 Proof of previous conviction or acquittal

Section 298 provides how a previous conviction or acquittal can be proved-
In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal
may be proved, in addition to any other mode provided by any law for the time being in
force,—
(a) by an extract certified under the hand of the officer having the custody of the records of
the court in which such conviction or acquittal was held, to be a copy of the sentence or
order, or
(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail
in which the punishment or any part thereof was undergone, or by production of the
warrant of commitment under which the punishment was suffered
together with, in each of such cases, evidence as to the identity of the accused person with
the person so convicted or acquitted.
Proof of previous conviction may become necessary when the question of awarding
enhanced punishment arises, as for instance in cases where S.75 of the IPC becomes
applicable. The modes of proof provided by S. 298 above are in addition to other modes
provided in any other law.

44
A.I.R.1989 SC 145
45
1997 (3) crimes 98 (Delhi)

15
 Self Assessment Question
8. What is the relevance of previous conviction in awarding punishment?
………………………………………………………………………………
………………………………………………………………………………

4.9 General Provisions relating to Acquittal and Conviction

Article 20(2) of the Constitution recognizes the principle of “protection against Double
Jeopardy” as a fundamental right. It says, "no person shall be prosecuted and punished for
the same offence more than once". While Article 20(2) does not in terms maintain a
previous acquittal, S. 300 of the Criminal procedure Code fully incorporates the principle
and explains in detail the implications of the expression "same offence"46
The Pleas of autrefois acquit and autrefois convict are taken as a bar to criminal trial on
the ground that the accused person had been once already charged and tried for the same
alleged offence and was either acquitted or convicted. These rules or pleas are based on
the principle that "a man may not be put twice in jeopardy for the same offence". Six
illustrations accompany this section explaining in concrete terms the different situations
which the courts may have to deal with.47
An analysis of S. 300 brings out the following points-
1) The basic rule is that ‘a person who has once been tried by a court of competent
jurisdiction for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again for the same
offence’. (s.300 (1))
For the purpose of the above basic rule and also for the purposes of the other parts of S.
300, the term ‘acquittal’ has been explained in negative terms by saying that the dismissal
of a complaint, or the discharge of the accused is not "acquittal" [Explanation to S. 300].
The reason is the dismissal of a complaint or the discharge of the accused is not
considered as the final decisions regarding the innocence of the accused person. It may
however be noted that when a court applies a wrong provision of law erroneously, it
would be deemed that the order in effect, was one under the provision of law applicable to
the facts of the case. Where in a summons case, the magistrate passed an order of

46
See discussions in Natarajan v. State, 1991 Cri LJ 2329 (Mad HC).
47
See R.V. Kelkar’s Criminal Procedure, (2008) p.478-484

16
 "discharge" under S. 245(2) owing to the absence of the complaint the order of
"discharge" under S. 245(2) must be read as an order of acquittal passed under S.25648.
The word "tried" in S. 300(1) does not necessarily mean tried on the merits. The
composition of an offence under S. 320, or a withdrawal from the prosecution by the
Public Prosecutor under S. 321, would result in an acquittal of the accused even though the
accused is not tried on merits. Such an acquittal would bar the trial of the accused on the
same facts on a subsequent complaint49.
In order to get the benefit of the basic rule contained in S. 300(1) it is necessary for an
accused person to establish that he had been tried by a "court of competent jurisdiction"
for an offence. Further, in order to apply the principle of autrefois acquit, it is not enough
that the court which acquitted the accused in the first trial had in fact the jurisdiction and
competence to try the case. It is also necessary that the court believed that it had such
jurisdiction and competence. An order of acquittal passed by a court which believes
(though erroneously) that it has no jurisdiction to take cognizance of the offence or to try
the case, is a nullity and the subsequent trial for the same offence is not barred by the
principle of autrefois acquit50.
Another requirement for attracting the basic rule of S. 300 is, that the offences are the
same, i.e., they should be identical. It is therefore necessary to analyse and compare not
the allegations in the two complaints but the ingredients of the two offences and see
whether their identity is made out.51 Section 300 bars the trial for the same offence and not
for different offences which may result from the commission or omission of the same set
of acts.52 Where the Legislature provides that on the same facts proceedings could be
taken under two different sections and the penalties provided in those sections are also
different, it is obviously intended to treat the two sections as distinct. In such a case S. 300
cannot apply.53

48
Rabindra Dhal v. Jairam Sethi, 1982 Cri LJ 2144, 2146 (Ori HC); see also Rajkumar Manisana
Singh v Nameirakpam Angon Singh, 1969 Cri LJ 844 (Mani HC); Public Prosecutor v. Hindustan
Motors Ltd., 1970 Cri LJ 659 (AP HC).
49
Shankar Dettatraya Vaze v. Dattatray Sadashiv Tendulkar, AIR 1929 Bom 408, 409: (1930) 31 Cri
LJ 1000; Kashigar Ratangar v. State of Gujarat, 1975 Cri LJ 963, 964-65 (Guj HC).
50
Mohammad Safi v. State of W.B., (1966) 1 Cri LJ 75: AIR 1966 SC 69.
51
State of Bombay v. S.L. Apte, AIR 1961 SC 578: (1961) 1 Cri LJ 725.
52
Maidhan Gupta v. State of U.P., 1976 Cri LJ 868, 869 (All HC); Hari Nath Poddar v. State, 1978
Cri LJ 1018 (Cal HC); see Vijayalakshmi v. Vasudevan, (1994) 4 SCC 656: 1994 SCC (Cri) 1317.
53
See the observations of the Supreme Court in Corpn. of Calcutta v. Mulchand Agarwalla, AIR 1956
SC 110; V.K. Agarwal v. Vasantral Bhagwanji Bhatia, (1988) 3 SCC 467: 1988 Cri LJ 1106; State of
Bihar v. Murad Ali Khan, 1989 SCC (Cri) 27: 1989 Cri LJ 1005.

17
 (2) Even though the offence in the second trial is not "the same offence", still the second
trial will be barred if it is based on the same facts for any other offence for which a
different charge from the one made against him [such accused person] might have been
made under S. 221(1), or for which he might have been convicted under S. 221(2). [S.
300(1)]
It may be noted that the words ' 'for which a different charge from the one made against
him might have been made" are not intended to exclude a case in which a charge in the
alternative has actually been made under S. 221.54
Illustrations:
(i) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while
the acquittal remains in force, be charged with theft as a servant, or, upon the same fact,
with theft simply, or with criminal breach of trust. [Illustration (a) to S. 300]
(ii) A is charged before the court of session and convicted of the culpable homicide of B. A
may not afterwards be tried on the same facts for the murder of B. [Illustration (c) to S. 300]
(3) A person acquitted or convicted of any offence may be afterwards tried with the
consent of the State Government, for any distinct offence for which a separate charge
might have been made against him in the former trial under S. 220(1). [S. 300(2)]
Where a person has been acquitted or convicted of any offence and a separate charge for
another offence could have been made but was not made against him in the former trial, he
should not be liable to be again prosecuted for the other offence as a matter of course
because this might lend itself to abuse.55 To provide a check against such abuse S. 300(2)
makes it obligatory to obtain the consent of the State Government before a new
prosecution is launched against any person for any distinct offence for which a separate
charge might have been made against him at the former trial under S. 220(1).
The provision envisages a wholesome protection to the accused person. Consent of the
State Government is expected to be given only after due consideration of all the facts and
circumstances of the case and with the main intendment of the law, viz., promotion of
justice.56
(4) A person convicted of any offence constituted by any act causing consequences
which together with such act, constituted a different offence from that of which he was

54
Emperor v. Bashir Bundekhan, AIR 1947 Bom 366: (1947) 48 Cri LJ 436, 440.
55
See Supra Note 46
56
Inguva Mallikarjuna Sharma v. State of A.P., 1978 Cri LJ 392 (AP HC).

18
 convicted, may be afterwards tried for such last-mentioned offence, if the consequences
had not happened, or were not known to the Court to have happened, at the time when
he was convicted. [S. 300(3)]
Illustrations
(i) A is tried for causing grievous hurt and convicted. The person injured afterwards dies.
A may be tried again for culpable homicide. [Illustration (b) to S. 300]
(ii) A is charged by a magistrate of the first class with, and convicted by him of,
voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing
grievous hurt to B on the same facts unless the case comes within S. 300(3) above.
[Illustration (d) to S. 300]
It may be noted that S. 300(3) above is applicable in cases where there is "a person
convicted of any offence" and not where "a person convicted or acquitted of any
offence.....".If the previous decision is one of acquittal the rule in S. 300(3) is not
applicable at all.
(5) A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and tried
for, any other offence constituted by the same acts which he may have committed if the
court by which he was first tried was not competent to try the offence with which he is
subsequently charged. [S. 300(4)]
Illustrations:
(i) A is charged by a magistrate of the second class with, and convicted by him of, theft of
property from the person of B. A may subsequently be charged with, and tried for, robbery
on the same facts. [Illustration (e) to S. 300]
(ii) A, B and C are charged by a magistrate of the first class with, and convicted by him of,
robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same
facts. [Illustration (f)to S. 300].
These illustrations indicate that the former court in each illustration being incompetent,
subsequent trial for an offence on the same facts is not barred by S. 300(4).57
(6) A person discharged under S. 258 shall not be tried again for the same offence
except with the consent of the court by which he was discharged or of any other court to
which the first mentioned court is subordinate. [S. 300(5)]

57
Sambasivan v. Inspector, Railway Protection Force, 1976 Cri LJ 36 (Mad HC).

19
 In a summons-case instituted otherwise than upon a complaint the court has got power
under S. 258 to stop the proceedings at any stage without pronouncing judgment. If the
stoppage of proceedings is made before the recording of the evidence of principal
witnesses, it shall have the effect of discharge of the accused person. However, according
to S. 300(5) such accused person cannot be tried again for the same offence without the
consent of the concerned court. It is believed that this provision will be helpful as a
safeguard against the abuse of power of fresh prosecution in such cases.
As seen earlier the principle of autrefois acquit is not applicable where the previous trial
had ended in an order of discharge and not of acquittal. To this-
S. 300(5) is an exception with certain limitations. However the protection of autrefois
acquit is sometimes extended by courts to cases of discharge in order to stop the
harassment of the accused or to prevent the abuse of the process of the law.58
(7) Nothing contained in S. 300 [as mentioned in the above points (1) to (6)] shall affect
the provisions of S. 26 of the General Clauses Act, 1897 (10 of 1897), or of S. 188 of the
Code. [S. 300(6)]
Section 26 of the General Clauses Act referred to above says:
Where an act or omission constitutes an offence under two or more enactments, then the
offender shall be liable to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the same offence.
Although S. 26 refers to "the act or omission constituting an offence under two or more
enactments", the emphasis is not on the facts alleged in the two complaints, but rather on
ingredients which constitute the two offences with which a person is charged. This is
obvious from the concluding portion of the section which refers to "shall not be liable to
be punished twice for the same offence". If the offences are not the same but are distinct,
the ban imposed by S. 26 cannot be invoked.59

Self Assessment Question

9. Explain the plea of autrefois acquit and autrefois convict?
…………………………………………………………………………
………………………………………………………………………….

58
Rangamoyee Choudhury v. Sudhir Kumar Bhowmik, (1965) 2 Cri LJ 412, 415 (Tri HC); see also
Kunnu v. Budhu Sahu, AIR 1966 Ori 71: 1966 Cri LJ 430, 432.
59
State of Bombay v. S.L. Apte, AIR 1961 SC 578: (1961) 1 Cri LJ 725, 730.

20
 4.10 Summary
• After appreciating the evidence, conclusion of arguments by the prosecutor and defence,
and hearing the accused the judge pronounces his judgment in the trial. The accused may
be acquitted or convicted.
• An order of acquittal establishes innocence of the accused after full fledged trial. If the
Magistrate does not find the accused guilty, he shall record an order of acquittal.
• If court pronounces the judgment of acquittal, it shall state the offence of which the accused
is acquitted and direct that he be set at liberty. [ S.354(1)(d)]
• But if the accused pleads guilty, the judge shall record the plea and may, in his discretion,
convict him thereon. (Ss. 229,241,252) S. 206 provides for the conviction on plea of guilty
even in absence of accused in petty cases.
• When the court finds an accused guilty it has got the discretion either to punish the offender
or to release him after admonition or on probation of good conduct under S. 360 or under
Ss. 3 and 4 of the Probation of Offenders Act.
• If on the other hand, the magistrate finds the accused guilty, and does not forward him to the
chief judicial magistrate under section 325 or does not release him on probation of good
behavior or after admonition under section 360 the magistrate will impose appropriate
sentence on the accused after hearing him. (S.248(1),(2) Cr.P.C.)
• After convicting the accused, the court should adjourn the matter to future date to hear the
accused on sentence. The court is duty bound to hear the accused regarding sentence to be
inflicted upon him. (S. 235 of Cr.P.C.)
• Section 235, 248 and 255 of the Cr.P.C. deal with judgment of acquittal and conviction. S.
235 Cr.P.C. applies to offences exclusively triable by Session's Judge. S. 248 Cr.P.C.
applies to offences triable by Magistrate (warrant cases) Section 255 Cr.P.C. deals with
summons cases triable by Magistrate, which are not of grave nature.
• Conviction and sentence cannot be passed on the same day. After convicting the accused the
court should adjourn the matter to a future date to hear the accused on sentence. Order of
conviction and sentence passed on same day is held to be illegal. If an accused is charged
of a major offence but is not found guilty there under, he can be convicted of minor
offence. (S.222)

21
• A person who has once been tried by a court of competent jurisdiction for an offence and
convicted or acquitted of such offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence.(S.300 (1))
• Even though the offence in the second trial is not "the same offence", still the second trial
will be barred if it is based on the same facts for any other offence for which a different
charge from the one made against him [such accused person] might have been made under
S. 221(1), or for which he might have been convicted under S. 221(2). [S. 300(1)]
• A person acquitted or convicted of any offence may be afterwards tried with the consent of
the State Government, for any distinct offence for which a separate charge might have
been made against him in the former trial under S. 220(1). [S. 300(2)]
• A person convicted of any offence constituted by any act causing consequences which
together with such act, constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned offence, if the consequences
had not happened, or were not known to the Court to have happened, at the time when he
was convicted. [S. 300(3)]
• A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and tried for,
any other offence constituted by the same acts which he may have committed if the court
by which he was first tried was not competent to try the offence with which he is
subsequently charged. [S. 300(4)]
• A person discharged under S. 258 shall not be tried again for the same offence except with
the consent of the court by which he was discharged or of any other court to which the
first mentioned court is subordinate. [S. 300(5)]

4.11 Terminal Questions

1. Explain in detail provisions relating to conviction on plea of guilty in a trial by court of
Session and also discuss the principles evolved by court in this context.
2. Discuss provisions relating to judgments of acquittal and conviction with relevant case laws.
3. Examine in detail general provisions as given in S. 300 of Cr.P.C. relating to acquittal and
conviction.

4.12 Answers and Hints

22
 Self Assessment Questions
1. An order of acquittal establishes innocence of the accused after full fledged trial. It is
recorded after framing of charge against an accused and recording of evidence and after
the judgment on merit. Refer to section 4.3 of the material
2. Refer to Sections 334 and 335 of the Cr.P.C. along with section 4.3 of the reading material.
3. An accused can be convicted for a minor offence when major offence is charged. The
principle is embodied in S. 222 of the Cr.P.C. Refer to section 4.4 along with illustrations
given.
4. Refer to section 4.5 a
5. Refer to sections 241,252 and 255 of Cr.P.C. and to section 4.5 b & c of the reading
material
6. Refer to Section 206 of Cr.P.C.
7. Refer to section 4.7 of the reading material with cases given therein.
8. Refer to Section 298 of Cr.P.C.
9. Refer to section 4.9 of the material.
Terminal Questions
1. Under section 229 of the Cr.P. C. if the accused pleads guilty, the judge shall record the plea
and may convict him thereon. It is not obligatory for the Court to convict the accused on
such plea. It is in the discretion of the Court and such discretion has to be exercised with
due care and caution. The judgment of court should be based on sound judicial principles
with an objective to do justice to the accused. Refer to case laws given in section 4.5 a
2. Section 235, 248 and 255 of the Cr.P.C. deal with judgment of acquittal and conviction.
Refer to cases of Santa Singh v. State of Punjab (1976), Dagdu v. State of Maharashtra
(1977) and other cases given in section 4.7 of the material.
3. Refer to Section 4.9 of the reading material.

4.13 References and Suggested Readings

- Bare Act of Criminal Procedure Code,1973 with Latest Amendments

- Pillai. K.N.C. (rev.) (2008) “R. V. Kelkar's Criminal Procedure”, Eastern Book
Company Lucknow
- Sakhrani, Monika (2009), “Citizen’s Guide to Criminal Law”, Universal Law
Publishing Co. Pvt. Ltd., New Delhi
- Joy, P.P. and Taneja, Sangeeta (2009), “How to Get an Acquittal in Criminal Cases’,
Karnataka Law House, Bangalore

23
- Takwani,C.K.(2009),‘Criminal Procedure”, LexisNexis, Butterworths wadhwa,
Nagpur

24
25
26