Author : Zaina Asif
Q1. What is the difference between summons trial and warrant trial?What are the stages of trial in a sessions trial . Elucidate.
What is the relevance of 313 (1) (b)examination?
Ans. According to section 2(x) of the Code of Criminal Procedure, a Warrantko case refers to any case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The session court does not have the power to take cognizance, only under Section 199 of the CrPC it can take cognizance directly. Whereas, a Summons case, according to section 2(w) of the Code, means a case relating to an offence not being a warrant case. In other words, Summons case includes all cases relating to offences where the punishment is less than two years. A trial in warrant case begins either by filing an FIR in Police Station or by filing it before Magistrate.
STAGES OF TRIAL IN SESSIONS TRIAL
1. According to Section 225 of the Code, in ever trial before a Court of Sessions, the prosecution will be conducted by a Public Prosecutor.
2. According to section 226, when the accused appears or is brought before the Court after the case has been committed to the Court of Sessions by the competent Magistrate, the prosecution will describe the charges brought against the accused and states all the evidence in pursuance of the same for the Court.
3. Upon consideration of all the documents and submissions made by the prosecution and the accused, if the Judge feels that there isn’t sufficient ground to proceed against the accused, then he may discharge him after recording the reasons for the same according to section 227 of CrPC.
In ( State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568) accused applied under section 91 to produce material in his favour from the prosecution in order to seek discharge before the sessions court under 227.
Section 91 is for the courts to examine if the documents are necessary and desirable for the defense of the accused. The question of invoking section 91 shouldn't arise since at the initial stage of framing of a charge the defence of the accused is not relevant.
An exception to above general rule is carved out in (Supreme Court of India
Nitya Dharmananda @ K. Lenin vs Sri Gopal Sheelum Reddy Also Known ... on 7 December, 2017) The court reiterated that the court ordinarily has to proceed on the basis of the material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there's a material of Sterling quality, so, if the investigator or the the prosecutor withheld such type of material then the court is not debarred from summoning or relying upon the same. In such scenario, the accused can apply to the court under section 91 CrPC to summon such material which is of Sterling quality.
4) However, according to section 228, if upon consideration of the above mentioned documents and submissions, the Court is of the opinion that the there are grounds for presuming that the accused has committed an offence:
A) Which is not exclusively triable by the Sessions Court, then the Court may frame charges and transfer the case for trial to the appropriate Court.
B) Which is exclusively triable by the Sessions Court, the Court shall frame a charge in writing against the accused. (Supreme Court of India
Suresh Alias Pappu Bhudharmal ... vs The State Of Maharashtra on 2 March, 2001) held that at the stage of sections 227and 228 Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
5. If the Accused pleads guilty, then the Judge will record the plea and in his discretion convict the accused according to section 229 of the Code.
Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act.
(In Jose vs. The State of Kerala, AIR 1973 SC 944) Supreme Court had an occasion to examine the question of treating the evidence of a witness in the committal Court as substantive evidence in trial under Section 33 of the Evidence Act, Court had recorded the fact that at the time of trial, the witness had left for Coorg and was not available and it was not possible to serve summons on him and even a non-bailable warrant issued by the Court was returned with the endorsement not available and it is under those circumstances, the learned Sessions Judge brought on record the statement made by the eye witness before the committal Court as substantive evidence and marked the same as P-25. Supreme Court negative the contention of the accused and held that the said statement had rightly been treated as an evidence during trial.
6. Under section 230, if the accused :
~ refuses to plead guilty
~ does not plead or
~ claims to be tried or
~ convicted under section 299
Then the judge shall fix a date for the examination of witness(prosecution witness) and can issue the process during the trial session for the production of witness or any documents.
7. According to section 231,
- in support of prosecution, on whatever date fixed under section 230 the judge shall take all the evidence as whatever is in support of the prosecution.
- the prosecution witness is cross examined by the defence.
The evidence is to be taken in presence of the accused (section 273 crpc) and his personal attendance is dispensed with the presence of the pleader ( s205 at initial stage and s317 at trial stage). The evidence is recorded in accordance with section 276 in sessions court. (Supreme Court of India, The State Of Maharashtra vs Dr. Praful B. Desai on 1 April, 2003)
so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".
Section 313, Cr.P.C. (1) (b) casts a duty on court to give an opportunity to the accused to explain the incriminating material against him.
The words “Explain any circumstance…….in the evidence against him” under this section, it is mandatory for the trial Judge to put to the accused every such piece of evidence which appears incriminating against him and reply of the accused shall be sought thereto.
(State of U.P v. Mohd. Iqram & Anr; AIR 2011 SC 2296) Attention of the accused must specifically be drawn to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he
chooses to do so. Court is under legal obligation to put all incriminating circumstances before accused to solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused. Circumstances not put to the accused in his examination under section 313, cannot be used against him.
8. Upon hearing the evidence for prosecution, defence on point, examination of the accused and other procedures, if the Judge is of the opinion that the accused did not commit the offence, then he may record an order of acquittal according to section 232 of CrPC.
9. Under section 233, If no acquittal took place then, accused get the opportunity to present his case through writing or any other means he can produce evidence, witnesses to defend himself just like the way prosecution did it. An accused can apply for an application for compelling the attendance of a witness, all such application needs to be accepted by the court.
10. Sec. 234 and 314 both deal with who shall give the closing arguments. Being a specific provision, 234 prevails if any conflict arises hence if Sec. 314 applies, defense gives the closing argument but if 234 does, the prosecution sums up, defense replies after him.
It is to be noted that Section 314 also talks about the arguments of the parties.
11. In section 235, After hearing arguments from both the sides, the court delivers judgment of acquittal or conviction. In ( Santa Singh v. State of Punjab) held that the Judge should first pass a sentence of conviction or acquittal. If the accused is convicted he shall be heard on the question of sentence and only then the Court shall proceed to pass a sentence against him.
12. Under section 236, In a case where 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 Judge may, after he has convicted the said accused under section 229 or section 235, 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 Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 229 or section 235.
Section 353 read with section 354 crpc-Chapter XXVII of the CrPC, 1973, deals with Judgement. However there is no definition of “judgement” present in the Code, but it is to be understood as the final order of the Court. In (Ismail Amir Seikh vs. the State of Maharashtra) it was held that a judgment is the act of judging. It was pointed out that judgment should clearly mention the reason for accepting an argument and rejecting the other.
In ( Yelchuri Manohar v. State of Andra Pradesh) that print and electronic media cannot provide any guiding factors in drawing balance sheet of aggravating and mitigating circumstance in order to determine imposition of sentence.
Under Section 354, of CrPC, it is stated that every judgement should be:
1) a. In the language of the Court.
b. Shall contain the points of determination and the reason for the same.
c. The offence should be specified and the reason for the same should be given for the same. The offence so committed must be mentioned in the IPC or any other law under which the crime is committed and the punishment is given.
d. If the offender is acquitted, the offence for which he was acquitted, the reason for the same and it must be specified that a person is now a free man.
2) If the judgment is passed under the IPC and the judge is not certain as to under which Section the offence is committed or under which part of the Section, the judge should specify the same in the judgement and should pass orders in both the alternate situations.
3) The judgement shall furnish a proper reason for the conviction if it is a sentence for a term of life imprisonment and in case of death sentence the special reason has to be given.
13. Lastly, Sec. 237 deals with procedure in cases of defamation of high dignitaries and public servants to prevent vindication of the conduct of such officials. However, provision for compensation to the accused to prevent false accusation is made as well.
PURPOSE OF 313 (1) (B) EXAMINATION
Section 313 crpc applies on all forms of trial including summons, summary, warrant and sessions trial. It is to be read with section 205 and 313(b). Oath cannot be administered in 313 and consequently it is not evidence, so the accused cannot be punished for perjury and same is for the refusal to answer. Statements in 313 are not substantive evidence.
The object of examination of the accused under section 313, Cr.P.C:
A.- to establish a direct dialogue between the court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain them
B - to test the veracity of the prosecution case.
Section 313, Cr.P.C. (1) (b) casts a duty on court to give an opportunity to the accused to explain the incriminating material against him.
The words “Explain any circumstance…….in the evidence against him” under this section, it is mandatory for the trial Judge to put to the accused every such piece of evidence which appears incriminating against him and reply of the accused shall be sought thereto.
(State of U.P v. Mohd. Iqram & Anr; AIR 2011 SC 2296) Attention of the accused must specifically be drawn to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he
chooses to do so. Court is under legal obligation to put all incriminating circumstances before accused to solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused. Circumstances not put to the accused in his examination under section 313, cannot be used against him.
Q2. Can accused be punished for perjury if he lies in 313 b examination?
Ans. . The accused cannot be punished for perjury if accused does lie in statement of 313.
The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality. Section 313 Cr.P.C. prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 Cr.P.C. lies in that, it imposes a duty on the Court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.
In (Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439 (para 22) Court has held “Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.”
Section 313 (2) - No oath shall be administered to the accused when he is examined under sub-section (1).
Q3. Can accused enter as a witness in his own defence ? If yes , what is the provision? What are its ingredients?
Ans. Section 315 avers that a person who is accused of an offence can be a competent witness for the defence and maybe examined in a court of law under oath. The provision gives that a blamed individual can be a lawful and proficient witness for the defence and like some other observer he is qualified for giving proof on oath in disproof of the body of evidence brought against him by the arraignment.
In (Gajendra Singh v. State of Rajasthan) the accused, in the wake of getting his averments recorded under Section 313, got himself examined by the Magistrate and subsequently during the trial as a Defense witness.
The Supreme Court observed that under Section 315, the accused is not only entitled to be examined as a witness but has all rights to produce any document as he deems necessary to substantiate his claims as to any other witnesses.
INGREDIENTS :
1. The person must be accused
2. The accused must be tried before in a criminal court
3. The accused must be a competent witness - it connotes that the accused must be able to comprehend the questions which are put to him in the court by the counsels or the judge. The person must be able to understand the question, the nature of the question, the purpose behind asking such question and must be proficient to answer the questions with utmost ease.
4. The accused can only appear for defence
5. The accused must give written consent to be examined - the accused must make a written request to the court to allow him to be examined as a witness for the defense. If the accused is examined as Defense Witness, it gives the prosecution all rights to cross-examine the accused on whatever he has stated in the court.
6. The accused need not take oath - The section contemplates that the accused “may” be examined on oath. The word ‘may’ gives discretion to the defence to decide whether he wants to examine the accused on oath or not.
Q4. A) What is section 319? Elucidate.
What were the guidelines in Hardeep Singh v. State of Punjab?
B) Can a sessions judge rope in an accused not mentioned in the chargesheet? If yes at what stage?? 193? Or 319.
Ans. A) Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.
(Supreme Court of India
Hardeep Singh vs State Of Punjab & Ors CRIMINAL APPEAL NO. 1750 OF 2008
(2014) 3 SCC 92) . In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
B) Yes, a sessions judge can rope in an accused not mentioned in the chargesheet. In (Deepu @ Deepak vs The State Of Madhya Pradesh on 14 December, 2018) the Supreme Court said when a court is satisfied that there is existence of ample of material against the accused and he can be proceeded with at the trial be it due to filing of supplementary charge sheet, TIP, forensic science laboratory, new statement of material recorded under section 161 Crpc, etc. Then in those situations the courts are fully justified in recording to section 319 crpc to summon the persons who have been discharged earlier.
(Dharam Pal & Ors vs State Of Haryana & Anr on 18 July, 2013)
The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh’s case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.
The facts of the Dharam Pal as stated by the Constitution Bench are as under: After going through the police report, the learned Judicial Magistrate First Class summoned the Appellant Dharam Pal and three others, who were not included as accused in the charge-sheet for the purpose of facing trial along with Nafe Singh.
Q5. What is a court witness? What are the guidelines of 311 crpc?
Ans. A witness is a person who saw a crime or was a victim of a crime. A witness can be summoned(ordered to attend court). Court Witnesses are called to court to answer questions about a case. The information a witness gives in court is called testimony and is used as evidence to set out the facts of the alleged crime.
GUIDELINES FOR EXERCISE OF 311
Rajaram Prasad Yadav v. State of Bihar and another reported as (2013) 14 SCC 461, it was held as under:-
"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
1. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
2. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
3. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
4. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
5. The wide discretionary power should be exercised judiciously and not arbitrarily.
6. The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
7. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
8. Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Courtshould be magnanimous in permitting such mistakes to be rectified.
9. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
10. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
11. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
12. The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."