CHAPTER XIX: TRIAL BEFORE A COURT OF SESSION
This chapter begins the step-by-step procedure for a trial in the Sessions Court (for serious crimes like murder, rape, etc., that have been “committed” under Section 232).
Section 248: Trial to be conducted by Public Prosecutor
- Simple English: This is the first rule. In every trial before a Court of Session, the prosecution’s case must be conducted by a Public Prosecutor (the official government lawyer).
- Real-World Example: In a murder trial, the victim’s family cannot hire their own lawyer to run the case. The case is “State vs. Accused” and is always argued by the Public Prosecutor. (The family’s lawyer can only assist the PP, as per other sections).
Section 249: Opening case for prosecution
- Simple English: This is the first step of the trial. When the accused is brought to the Sessions Court (after being “committed” by the Magistrate), the Public Prosecutor (PP) must formally “open his case.”
- What this means: The PP will stand up and make an opening statement to the Judge, which involves:
- Describing the charge against the accused (e.g., “The accused is charged with the murder of his wife…”).
- Stating what evidence the prosecution plans to present to prove the accused’s guilt (e.g., “We will show you the murder weapon, a confession, and call three eyewitnesses…”).
- Real-World Example: In a dacoity trial, the PP stands and says, “Your Honour, this case concerns the armed robbery of the Main Street Bank on Jan 1st. We will prove the accused’s guilt by showing the bank’s CCTV footage, the testimony of the bank teller, and the recovery of the stolen money from the accused’s house.”
Section 250: Discharge
This is the first major hearing in a Sessions trial, where the accused can be let go before the trial even begins.
- Sub-section (1):
- Simple English: This is a new mandatory timeline. The accused must file their “discharge application” within 60 days from the date their case was “committed” (sent up) from the Magistrate’s court.
- Real-World Example: The Magistrate commits the case on March 1st. The defense lawyer must file the discharge application with the Sessions Judge by April 30th.
- Sub-section (2):
- Simple English: After the PP gives their opening statement (Sec 249), the Judge must do two things:
- Consider the entire record of the case (the chargesheet, all witness statements (Sec 180), and documents).
- Hear arguments from both the prosecution and the defense lawyers.
- The Test: If, after doing this, the Judge believes there is “not sufficient ground for proceeding” against the accused, the Judge shall “discharge” the accused (let them go) and must write down their reasons for doing so.
- Real-World Example: The accused is charged with murder. The defense lawyer files a discharge application. He argues, “Your Honour, the only evidence in the entire chargesheet is a statement from a witness who says he heard a rumor the accused did it. This is ‘hearsay’ and is not sufficient ground.” The Judge agrees that the prosecution’s own case is too weak, “discharges” the accused, and the case ends. (This is different from an “acquittal,” which comes after evidence is heard).
- Simple English: After the PP gives their opening statement (Sec 249), the Judge must do two things:
Section 251: Framing of charge
This is the formal start of the trial if the judge does not discharge the accused (under Section 250).
- Sub-section (1):
- Simple English: If, after considering the case records and hearing both sides, the Judge believes there is a ground for presuming the accused has committed an offence, the Judge will then determine where that offence should be tried.
- (a) If the offence isnotexclusively triable by the Court of Session: This means the Judge thinks the offence is a less serious one that a Magistrate can handle. The Judge will frame the charge (e.g., for “simple hurt”) and then transfer the case down to the Chief Judicial Magistrate (CJM) or another competent Magistrate for trial.
- Real-World Example: The police charge an accused with “Attempt to Murder” (Sessions triable). The Sessions Judge, after reviewing the file, believes the evidence only shows “Voluntarily Causing Hurt” (Magistrate triable). The Judge frames the lesser charge and sends the case file down to the CJM, who will now hold the trial.
- (b) If the offenceisexclusively triable by the Court: This means the Judge agrees the case is serious (e.g., murder, rape). The Judge shall frame a formal charge in writing.
- New Mandatory Timeline: This charge must be framed within 60 days from the date of the first hearing on the charge.
- Real-World Example: The Sessions Judge agrees with the “Attempt to Murder” charge. Within 60 days of the first hearing, the Judge formally frames the charge, and the trial will now proceed in the Sessions Court.
- Sub-section (2):
- Simple English: This is the “plea.” After the Judge frames the charge, it must be read out and explained to the accused (this can be done in person or through audio-video electronic means).
- The Big Question: The accused is then formally asked, “Do you plead guilty to this offence, or do you claim to be tried?”
- Real-World Example: The Judge says, “You are charged with the murder of Mr. X. Do you plead guilty, or not guilty?” The accused says, “Not guilty, I claim to be tried.” The trial will now begin.
Section 252: Conviction on plea of guilty
- Simple English: If the accused says “I plead guilty” (as in Section 251(2)), the Judge must record that plea. The Judge may then, in their discretion, convict the person right then and there based on their guilty plea.
- Real-World Example: The Judge asks, “How do you plead?” The accused says, “I plead guilty.” The Judge records this and can immediately move to the “sentencing” phase (Section 258(2)), often on the same day. (Note: Judges are very cautious and will usually not accept a guilty plea in very serious cases like murder).
Section 253: Date for prosecution evidence
- Simple English: This is what happens if the accused does not plead guilty. If the accused:
- Refuses to plead (stays silent),
- Does not plead (e.g., is non-responsive),
- “Claims to be tried” (says “not guilty”), or
- Is not convicted on their guilty plea (the judge decides to see the evidence anyway),
- …the Judge shall fix a date for the “examination of witnesses” (the start of the evidence). The Judge may also, on the prosecutor’s request, issue summons (orders to appear) or warrants (arrest orders) to force any witness to attend or to produce any document.
- Real-World Example: The accused pleads “not guilty.” The Judge says, “The plea of not guilty is recorded. This case is now fixed for Prosecution Evidence on [date]. The prosecution is directed to summon its first three witnesses for that date.”
Section 254: Evidence for prosecution
This is the main “prosecution evidence” phase of the trial.
- Sub-section (1):
- Simple English: On the date fixed, the Judge must proceed to take all such evidence (i.e., hear all the witnesses) that the prosecution produces in support of its case.
- Real-World Example: The prosecutor calls their first witness, the victim, to the witness box. The witness gives their testimony (examination-in-chief), is cross-examined by the defense lawyer, and then re-examined by the prosecutor. This process is repeated for every prosecution witness.
- Sub-section (1), Proviso:
- Simple English: This is a new provision. The evidence of a witness can be recorded by audio-video electronic means.
- Real-World Example: A key witness lives in another country. The court can arrange for them to give their testimony and be cross-examined live via a secure video-conferencing link.
- Sub-section (2):
- Simple English: This new provision specifically allows the testimony (deposition) of a public servant (like a police officer, a government doctor, or an official) to be taken through audio-video.
- Real-World Example: The police officer who filed the chargesheet has since been transferred to another state. Instead of traveling for two days, he can give his evidence to the court via a video link from his new office.
- Sub-section (3):
- Simple English: The Judge has discretion over the order of witnesses. The Judge may permit the cross-examination of one witness to be “deferred” (postponed) until other witnesses have been examined. The Judge can also “recall” a witness for further cross-examination.
- Real-World Example: The main eyewitness (Witness 1) testifies. The defense lawyer says, “Your Honour, I cannot properly cross-examine this witness until the doctor (Witness 5) has testified about the injuries. Please defer this cross-examination.” The Judge agrees. Witness 1 steps down, and Witnesses 2, 3, and 4 testify. Then Witness 5 (the doctor) testifies. After that, Witness 1 is “recalled” for their postponed cross-examination.
Section 255: Acquittal
This is the “mid-trial” acquittal, a crucial step after the prosecution has finished its case.
- Simple English: After the Judge has:
- Taken all of the prosecution’s evidence (all witnesses are done),
- Examined the accused (under Section 351), and
- Heard arguments from both the prosecution and the defense on this specific point,
- …if the Judge “considers that there is no evidence that the accused committed the offence,” the Judge shall record an order of acquittal (a formal “not guilty” verdict).
- Real-World Example: The prosecution calls five witnesses to a murder. In court, all five witnesses turn hostile and say, “We didn’t see anything.” The prosecution’s case completely collapses. After the prosecution closes its evidence, the Judge acquits the accused because there is zero evidence on record to prove the charge.
Section 256: Entering upon defence
This section activates if the accused is not acquitted under Section 255 (meaning the judge thinks the prosecution has presented a case).
- Sub-section (1):
- Simple English: The accused is now formally “called upon to enter on his defence.” This means it’s the accused’s turn to adduce (present) any evidence they have to prove their innocence.
- Real-World Example: The Judge says, “The prosecution has established a case to be answered. The accused is now called to lead his defense evidence. Mr. Defense Lawyer, who is your first witness?”
- Sub-section (2):
- Simple English: If the accused wants to submit a “written statement” (their version of events in writing), the Judge must accept it and place it on the official court record.
- Real-World Example: The accused, instead of testifying, gives a 5-page written statement explaining his alibi. The Judge adds this to the case file.
- Sub-section (3):
- Simple English: This is the accused’s right to get the court’s help. If the accused applies for a summons or warrant to force a defense witness to appear or to produce a document, the Judge must issue it.
- The Only Exception: The Judge can refuse this request only if they believe (and write down their reasons) that the application is being made purely for “vexation or delay” or to “defeat the ends of justice.”
- Real-World Example: The defense wants to summon a witness who will provide an alibi. The Judge must issue the summons. But if the defense asks to summon 200 witnesses who have no connection to the case, the Judge can refuse, stating in writing that this is a tactic to delay the trial.
Section 257: Arguments
This is the “closing argument” phase of the trial.
- Simple English: After the examination of all defense witnesses (if any) is complete, the closing arguments begin in a specific order:
- The Prosecutor “sums up” their case (argues why the evidence proves guilt).
- The Accused (or their advocate) is “entitled to reply” (argues why the evidence shows innocence or reasonable doubt).
- Real-World Example: The prosecutor gives a one-hour speech summarizing all the witness testimonies and evidence. Then, the defense lawyer gives a one-hour speech pointing out all the contradictions and weaknesses in the prosecution’s case.
- Proviso:
- Simple English: If the defense lawyer, in their closing argument, raises a new point of law that wasn’t discussed before, the Judge may permit the Prosecutor to make a rebuttal argument, limited only to that point of law.
- Real-World Example: The defense lawyer argues for the first time that a key piece of evidence was collected in violation of a specific Supreme Court ruling. The Judge allows the prosecutor to respond only to that legal argument.
Section 258: Judgment of acquittal or conviction
This is the final decision of the court.
- Sub-section (1):
- Simple English: After hearing all the closing arguments, the Judge shall give a final judgment in the case.
- New Mandatory Timeline: The judgment must be delivered “as soon as possible,” and no later than 30 days after the arguments are completed. This can be extended to 45 days, but the Judge must record their reasons for the delay.
- Real-World Example: Arguments finish on October 1st. The Judge sets the date for final judgment for October 25th.
- Sub-section (2):
- Simple English: This is the “Bifurcated Trial” rule. If the judgment is one of conviction (guilty), the process is not over.
- The Judge must then (unless it’s a probation case) hold a separate hearing on the “question of sentence” (i.e., how much punishment to give).
- Only after this separate hearing on sentencing can the Judge pass the final sentence (e.g., “10 years in prison”).
- Real-World Example: The Judge reads the judgment: “The accused is found guilty of culpable homicide.” The Judge then says, “The case is now posted for 3 PM today for a hearing on the question of sentence.” At 3 PM, the prosecutor argues for a life sentence, and the defense lawyer argues for the minimum sentence, pointing to the accused’s family and clean record. After hearing this, the Judge passes the final sentence.
Section 259: Previous conviction
This section explains how to handle a charge of being a repeat offender.
- Simple English: This section applies only if the original charge (from Sec 234(7)) included an allegation of a “previous conviction” (for a harsher sentence). If the accused does not admit to this previous conviction:
- The Judge first holds the main trial and convicts the accused (as in Sec 252 or 258).
- After that conviction, the Judge will then take evidence (e.g., call for old court records) to prove the “alleged previous conviction” and make a formal finding on it.
- Real-World Example: An accused is charged with theft. The charge also alleges he has two prior theft convictions. The accused pleads “not guilty” to the main theft and also denies the prior convictions. The trial proceeds. The jury finds him guilty of the current theft. Only then does the Judge tell the jury, “Now we must take evidence to see if he is the same person who was convicted in 2018 and 2020,” and the prosecutor presents the records.
- Proviso:
- Simple English: This is the most important part of the rule. It’s designed to prevent prejudice. During the main trial, the Judge cannot read out the part of the charge about the previous conviction. The accused cannot be asked about it. The prosecution cannot refer to it or lead any evidence about it.
- Why? Because it would prejudice the judge or jury. Hearing that the accused is a “habitual offender” might make them assume he is guilty of the current crime. This information is only relevant after guilt is decided, for the purpose of sentencing.
- Real-World Example: During the theft trial, the prosecutor is forbidden from saying, “And ladies and gentlemen, this isn’t his first time! He was also convicted of theft in 2018!”
Section 260: Procedure in cases instituted under sub-section (2) of section 222
This section lays out the special trial procedure for the rare case where the Public Prosecutor files a defamation case directly in the Sessions Court on behalf of a high-ranking official (like a Governor or Minister).
- Sub-section (1):
- Simple English: The Sessions Court will try this case using the procedure for a “warrant-case instituted otherwise than on a police report” (which is the procedure a Magistrate uses for private complaints, found in Chapter XX, Part B).
- Proviso: The person who was defamed (e.g., the Minister) must be called as a witness for the prosecution (unless the court records a reason not to).
- Real-World Example: The trial for the defamation of the Finance Minister begins. The Minister himself must enter the witness box and testify that the accusations were false and harmed his reputation.
- Sub-section (2):
- Simple English: The trial must be held “in camera” (in private, with the public and press excluded) if either the prosecution or the defense requests it, or if the Judge thinks it’s appropriate.
- Sub-section (3):
- Simple English: This is a safeguard against misuse. If the Judge acquits or discharges the accused (e.g., a journalist) and believes the defamation accusation was unreasonable, the Judge can order the complainant (the official who was defamed) to “show cause” (explain) why they shouldn’t have to pay compensation to the accused.
- Exception: This cannot be done if the person defamed was the President, Vice-President, or a Governor. (It can be done to a Minister).
- Real-World Example: A Minister files a defamation case against a journalist. The Judge acquits the journalist and finds the case was “unreasonable” and meant to harass the press. The Judge issues a notice to the Minister to explain why he shouldn’t pay the journalist’s legal fees.
- Sub-section (4):
- Simple English: After hearing the Minister’s explanation, if the Judge is still satisfied the case was unreasonable, the Judge can order the Minister to pay compensation (up to ₹5,000) to the journalist.
- Sub-section (5):
- Simple English: This compensation is recovered in the same way as a fine.
- Sub-section (6):
- Simple English: Just because the Minister had to pay compensation, it doesn’t stop the journalist from also filing a separate civil suit for malicious prosecution to get more damages.
- Proviso: Any amount the journalist already received (the ₹5,000) will be deducted from the amount awarded in the civil suit.
- Sub-section (7):
- Simple English: The Minister (if ordered to pay compensation) has the right to appeal that order to the High Court.
- Sub-section (8):
- Simple English: The compensation money won’t be paid to the journalist until the Minister’s time to appeal has expired, or (if he does appeal) until the High Court decides the appeal. This prevents the money from being paid out and then having to be clawed back.
