Report No. 41
Trials Before High Courts and Courts of Session
23.1. Chapter to be shortened after omitting references to High Court and jury trials.-
In this Chapter, which is the longest in the Code consisting of 70 sections, the procedure for trials before High Courts and Courts of Session is laid down in detail. A large portion of the Chapter is devoted to various details connected with trial by jury, like preparing and maintaining lists of jurors, issuing summonses to them, choosing of jury etc. The Law Commission has, in a previous Report,1 recommended that the jury system should be abolished. Even now it is followed by Courts of Session in very few places.
We propose that all references to jury trials should be removed from the Code. Secondly, we have, in an earlier Chapter,2 recommended that the Calcutta High Court, which at present is the only High Court exercising ordinary original criminal jurisdiction in a very small category of cases, should cease to exercise that jurisdiction. In view of these two proposals this Chapter will be very much shortened and will lay down the procedure for trials by Courts of Session only, without the help of jurors or assessors.
1. 14th Report, Vol. 2.
2. Para. 3.5. above.
23.2. Provisions revised.-
The abolition of commitment proceedings has been recommended in an earlier Chapter.1 Formally, however, cases, whether instituted on a police report or on a complaint, will ordinarily2 be committed to the Court of Session for trial by a Magistrate who will have gone through certain preliminaries. We have already indicated in that Chapter in broad outline the procedure that will have to be followed by Courts of Session on such commitments. The detailed provisions to be included in this Chapter governing "Trials before Courts of Session" may be as follows.-
"270. Trial to be conducted by Public Prosecutor.- In every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor.3
271. Opening the case for prosecution.-
When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 205D, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.4
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.5
273. Framing of charge.-
(1) If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence triable by the Court, he shall frame in writing a charge against the accused.6
(2) The charge shall be read out in Court and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.7
274. Plea of guilty.-
If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.8
275. Date for prosecution evidence.-
If the accused is not convicted under section 274, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.9
276. Evidence of the prosecution.-
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.10
(2) The Judge may, in his discretion, permit the cros.-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cros.-examination.11
If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.12
278. Entering upon defence.-
(1) Where the accused is not acquitted under section 277, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.13
(2) If the accused puts in any written statement, the Judge shall file it with the record.14
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.15
When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply.11
(1) Thereafter, 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 562, hear the accused on the question of sentence and then pass sentence on him according to law.12
281. Previous conviction.-
In a case where a previous conviction is charged under the provisions of su.-section (7) of section 221 and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused under section 274 or section 280 take evidence in respect of the alleged previous conviction, and shall record a finding thereon.13
1. Chapter XVIII above.
2. Prosecution under section 198B is an exception.
3. Present section 270.
4. Cf. section 286(1). For new section
5. Cf. section 251A(2).
6. Cf. section 251A(3).
7. Cf section 271(1) and section 251A(4).
3. Cf section 271(2) and section 251A(5).
4. Cf section 272 and section 251A(6).
5. Cf. section 286(2) and section 251A(7).
6. Cf, proviso to section 251A(7).
7. Cf section 289(2) and (3).
8. Cf. section 289(4) and section 251A(8).
9. Cf section 251A(8).
10. Cf section 251A(9).
11. Cf. section 290 and section 292.
12. Cf. section 309. The requirement about hearing the accused on the question of sentence before passing sentence has been added as a desirable provision.
13. Cf. section 310 and section 251A(13).
23.3. Trial of cases instituted under section 198B.-
In our discussion of section 198B, we have recommended1 that apart from five su.-sections which deal with the conditions requisite for initiating proceedings under that section, the remaining provisions of the section should the put in this Chapter as they are special provisions governing the trial of these cases by Courts of Session. This section will be as follows.-
"282. Procedure in cases instituted under section 198B.- (1) A Court of Session taking cognizance of an offence under su.-section (1) of section 198B shall try the case under this chapter as if it had been committed to it by a Magistrate taking cognizance of the offence upon a complaint:
Provided that the person against whom the offence is alleged to have been committed shall, unless the Court, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.2
(2) Every trial under this section shall be held in camera if either party thereto so desires or if the Court so thinks fit to do.3
(3) If, in any such case, the Court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed, where such person was at the time of such commission a Minister, to show cause why he should not pay compensation to such accused or to each or any of such accused, When there are more than one.4
(4) The Court shall record and consider any cause which may be shown by the person so directed, and if it satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, direct that compensation to such amount not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.5
(5) All compensation awarded under su.-section (4) shall be recovered as if it were a fine.6
(6) No person who has been directed to pay compensation under sub-section (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section:
Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.7
(7) The person who has been ordered under su.-section (4) to pay compensation may, in so far as the order relates to the payment of compensation, appeal from the order to the High Court.8
(8) When an orde.- for payment of compensation to an accused person is made in a case which is subject to appeal under su.-section (7), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided."9
1. See para. 15.16 above.
2. Cf. section 198B(5).
3. Cf section 198B(5A).
4. cf. section 198B(6).
5. Cf section 198B(7).
6. Cf section 198B(8).
7. Cf section 198B(9).
8. Cf section 198B(10).
9. Cf section 198B(11).