THE CHARGE

INTRODUCTION

What happens when the accused is not informed to him/her under which head he is charged against? In such a
circumstance, the accused trial will lead to delay injustice and also the accused will be delayed in preparing his
defence. So, it is essential that as soon as the accused is charged for an offence, he must be informed of his
charge. One of the basic requirements of a fair trial in criminal cases is to give precise information to the
accused as to the accusation against him. This “charge” is then to be read and explained to the accused person.

CHARGE

In simple terms, charge means informing the accused person of the grounds on which the accused is charged. A
charge is defined under Section 2(b) of the Criminal Procedure Code, 1973 which states, the charge includes
any head of the charge when the charge contains more than one head. The case of V.C Shukla v. State (1980)
explains the purpose of framing charge is to give intimation to the accused, which is drawn up according to the
specific language of the law, and giving clear and unambiguous or precise notice of the nature of the accusation
that the accused is called upon to meet in the course of a trial.

Provisions dealing with „charge‟

A charge is dealt with under Chapter 17 of the Criminal Procedure Code, 1973.

Section 211 to 214 Contents of Charge

Section 216 to 217 Powers of the court to alter the charge

Section 218 Basic rule

Section 219, 220, 221 and 223 Exceptions

Section 224 Effects of withdrawal

Section 215 and 464 Effects of errors

Section 211 of Cr.PC constitutes essentials elements of the contents of the charge:
 The charge form shall state the offence for which the accused is charged.
 The charge form shall specify the exact offence name for which the accused is charged.
 In case there is no specific name given under any law for the offence which the accused is charged with,
then the definition of the offence must be clearly stated in the charged form and informed to the accused.
 The law and provisions of the law to be mentioned in the charge form.
 The charge shall be written in the language of the court.
 The accused shall be informed about his previous allegations which would expose him to enhanced
punishments if found guilty for the offence charged.

In the case of Court in its motion v Shankroo (1982), the court held that mere mentioning of the Section under
which the accused is charged, without mentioning the substance of the charge amounts to a serious breach of
procedure.
Section 212 of Cr.PC asserts the charge form shall contain:
The offence for which the accused is charged and the particulars like the time, place and the person against
whom the offence is committed and giving to the accused the precise and clear notice of matter for which he is
charged.

The exact time need not be mentioned in the charge form when the accused is charged with criminal breach of
trust or dishonest misappropriation of money or any other movable property, it is sufficient if the gross sum is
specified and the dates on which such alleged offence have been committed.

SECTION 213 of CrPC- Manner Of Offence

Section 213 of Cr.PC asserts When the nature of the case is such that the particulars mentioned in Section 211
and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall
contain such particulars of how the alleged offence is committed as will be sufficient for that purpose.

SECTION 214 CrPC –Words In Charge Taken In Sense Of Law Under Which Offense Is
Punishable
Words used to describe an offence in a charge are presumed to have been used in the context assigned to them
by the legislation under which the crime is punished.

ALTERATION OF CHARGE AND THE PROCEDURE TO FOLLOW SUCH

ALTERATION

Section 216 of Cr.PC explains that courts shall have the power to alter or add to charge at any time before
the judgment is pronounced.

The trial court or the appellate court may either alter or add to the charge provided the only condition is:

Accused has not faced charges for a new offence.

Accused must have been given the opportunity of meeting and defending the charge against him.

After such alteration or any addition made to the charge, the charge shall be explained to the accused as to
enable him to prepare to meet the fresh challenges.

If the court concludes that the alteration or addition of the charge is likely to be prejudiced to the accused or the
prosecutor then the court may proceed with the original trial or adjourn it. The case shall not move forward
unless the sanction is obtained in respect of the facts constituting the offence.

SECTION 217 CrPC- Recalling Of Witness When Charge Is Altered

The prosecutor and the accused are allowed to recall the witness or summoned after the Court alters or adds to a
charge when the trial has already begun:

By recording the reasons in writing, unless the Court desires to recall or re-examine the witness for the purpose
of vexation or delay or defeating the ends of justice.

The Court can call any further witness whomit considers to be material.
SECTION 218 CrPC- Separate Charges For Distinct Offences
There should be a separate charge for each unique offence for which the individual is accused, and each charge
shall be tried separately.

However, if the accused person requests in writing for the trial of all the charges together and the Magistrate
believes that the accused person would not be prejudiced, the Magistrate may try all or any number of the
allegations brought against him together.

As per the sub-section 2 of the said Section, the aforementioned provisions have no bearing on the operation of
sections 219, 220, 221 and 223of CrPC.

EXCEPTIONS TO THE BASIC RULE

Exception 1

Section 219 of Cr.PC asserts when a person is accused of an offence of more than one, but not exceeding three
of the same kind, and the offence is committed within twelve months then the accused may be charged and tried
at one trial for all the offences committed. Offences are said to be of the same kind when they are punishable
with the same amount of punishment under the same Section of Indian Penal Code or any special law or local
laws. The proviso to Section 219 of Cr.PC states when the accused is punishable under Section 379 of IPC, and
it is said to be the offence of the same kind as an offence punishable under Section 380 of IPC.

In Madan Mohan Sahu v. Central Agencies (2010), cheques were issued within twelve months. The court held
that it was not necessary to file two separate complaints against their dishonour and it is enough if a single
complaint is filed.

Exception 2

Section 220(1) of Cr.PC When the accused commits several offences in the same transactions, then he may be
tried jointly and it is immaterial whether the offence is of the same kind or not, or whether the number exceeds
three or not, and whether the offence is committed within one year or not.

Mohinder Singh v. The State of Punjab (1998): In this case, it was held that the court may or may not try all the
offences together in one trial.

Exception 3

Section 220(2) of Cr.PC When the accused is charged with one or more offences of criminal breach of trust or
dishonest misappropriation of property the accused may be charged with and tried at one trial for every such
offence.

Exception 4

Section 220(3) of Cr.PC When the accused is charged with an offence which is falling under two or more
separate definitions of law, then the accused may be charged with and tried at one trial for each of such
offences.
Ramayan Bhagat v. The State (1968): In this case, it was said that a man may be prosecuted under Section 7 of
the Essential Commodities Act, 1955 for having rice above the prescribed limit and also for dacoity in respect
of the same bags of rice.

Exception 5

Section 220(4) of Cr.PC When the accused commits several acts and one of which constitutes an offence and
when it is combined constitutes a different offence, the accused person may be tried at one trial for the offence
constituted by such acts when combined and for any offence constituted by any one or more of such acts.

Exception 6

Section 221 of Cr.PC lays down a few conditions:

When a single act or series of acts is of such a nature that it is doubtful what offence the accused has committed
then the accused may be charged with having committed all or any of such offences and the charges against
may be tried at once or the accused may be charged in the alternative with having committed someone of said
offences.

When the accused is charged with one offence but it appears that in the evidence there is altogether a different
offence for which he was charged then the accused is convicted for the offence only which he committed
although he has not charged with it.

This section is applicable only in cognate offences such as theft and criminal breach of trust and it does not
include offences such as murder and theft.

Exception 7

Section 223 of Cr.PC provides certain persons can be tried jointly:

Accused who committed the same offence in the same course of the transaction.

Accused of an offence and person accused of abetment of or attempt to commit such offence.

Accused of more than one offence of the same kind and committed by them jointly within twelve months.

Accused of different offences committed in the course of the same transaction

Accused of an offence which includes theft, extortion, cheating, criminal misappropriation, concealment of
property.

Accused of offences under Section 411 and 414 of the Indian Penal Code.

Accused of offences under Chapter XII of the Indian Penal Code.

The proviso to Section 223 of Cr.PC provides that the magistrate on an application of the accused person may
direct their joint trial even if they do not fall under the categories specified if the magistrate believes that trial of
such persons would not be prejudicially affected.

Dinesh Kumar v. State (2015): In this case, the court held that where several persons are alleged to have
committed several separate offences, which are not wholly unconnected then there may be a joint trial unless
such joint trial is likely to cause either embarrassment or difficulty to the accused in defending themselves.
SECTION 222 CrPC- When Offense Proved Included In Offense Charged

 When a person is charged with an offence including many particulars, a combination of which
constitutes a full minor offence, and such combination is proven, but the other particulars are not, he
may be convicted of the minor offence, even if he was not charged with it.
 When circumstances are proven that reduce an offence to a minor offence, a person might be convicted
of the lesser offence even if he was not charged with it.
 When a person is charged with a crime, he may also be convicted of attempting to commit that crime,
even though the attempt is not prosecuted separately.
 Nothing in this section shall be construed to allow a minor offender to be convicted if the circumstances
for the start of proceedings in relation to that minor offence have not been met.

EXAMPLE- A is charged with criminal breach of trust in respect of goods entrusted to him as a carrier under
section 407 of the Indian Penal Code. He appears to have committed criminal breach of trust in relation to the
property under section 406 of that Code, although it was not entrusted to him as a carrier. He may be convicted
of criminal breach of trust under the said section 406.

SECTION 224 OF CrPC- Withdrawal Of Remaining Charges On Conviction On One Of

Several Charges
When a charge containing more than one head is framed against the same person, and one or more of them is
convicted, the complainant, or the prosecuting officer, may, with the Court's consent, withdraw the remaining
charge or charges, or the Court may, on its own motion, stay the investigation into, or trial of, such charge or
charges, and such withdrawal shall have the effect of an acquittal on such charge or charges unless the convict
is found guilty.

EFFECT OF ERRORS

Section 215 and 464 of Cr.PC deals with effect or errors.

The idea behind these sections is to prevent failure of justice where there has been an only technical breach of
rules and while not going to the roots of the case as such. Section 215 of Cr.PC states there shall be no error or
omission either in stating the offence or the particulars which are required to be stated in the charge, and they
shall be regarded as material at any stage of the trial unless the accused was mislead by such error or occasioned
as a consequence and as a consequence it has failed justice.

TRIALS BEFORE COURT OF SESSION

Scope of the topic

This topic mainly covers the procedure and the steps followed in trials where the case has come up before the
Court of Session.

Initial steps in the trial

Initially, a Magistrate takes cognizance of an offence and thereafter as per Section 209, he will commit the case
to the Court of Sessions. A Magistrate is empowered under Section 190 to take cognizance of an offence upon
receiving a complaint; upon a police report; upon information received from a person other than a police
officer; or upon his knowledge. According to Section 193, Court of Session cannot take cognizance of an
offence directly but the Court of Session is permitted to take cognizance of an offence without a case being
committed to it if the Magistrate commits the case to it or if it acts as a special Court.

Under Section 207 and Section 208 the Magistrate is required to supply copies of documents like First
Information Report, the statement recorded by the police or Magistrate, etc to the accused. Under Section 209,
if it appears to the magistrate that the offence is triable exclusively by the Court of Session, he may commit the
case to the Court of Session and send all the documents and records to it and either grant bail or remand the
accused into custody and shall also notify the Public Prosecutor. The procedure for trial before a Court of
Session is mentioned from Section 225 to Section 237. As per Section 225, every trial before a Court of Session
is conducted by a Public Prosecutor.

Opening case for prosecution

When the magistrate commits a case under Section 209 to the Court of Session and the accused appears or is
brought before the Court, the prosecutor is required under Section 226 to open his case by explaining the charge
against the accused and also states the evidence by which he will prove the guilt of the accused. At this stage,
full details of the evidence need not be stated. The opening of the prosecution case must only be to matters
which are necessary to follow the evidence. It is not necessary for a Public Prosecutor in opening the case for
the prosecution to give full details of the evidence with which he intends to prove his case.

Discharge
The Court, on considering the documents and records of the case, and hearing the prosecution and the accused
on the matter, shall discharge the accused if the Judge thinks that there is no sufficient ground to proceed
against the accused. The Judge is required to record his reasons for discharging the accused under Section 227.
It was held in State of Karnataka v. L. Muniswamy that the object of this Section is to require the Judge to give
reasons for discharging the accused is to enable the superior court to examine the correctness of the reasons for
which the Sessions Judge has held that there is or is not sufficient ground or not to proceed against the accused.

Framing of charge
Under Section 228, The Judge after considering the records of the case and the documents submitted along with
it in evidence and hearing the prosecution and the defence, he thinks that there is a ground to presume that the
accused has committed the offence and is exclusively triable by the Court of Session, he will frame a charge
against the accused.

If the case is not exclusively triable by the Court of Session then the Judge may frame a charge against the
accused and by order, transfer the case to the Chief Judicial Magistrate or any other Judicial Magistrate of First
Class. He shall direct the accused to the Judicial Magistrate to whom the case has been transferred. The
Magistrate shall then try the case in accordance with the procedure laid down for the trial of the warrant-cases
instituted upon a police report.

If two views are possible regarding the guilt of the accused, then the one which is more favourable to the
accused has to be taken.

It was held in Knati Bhadra Shah & anr v. State of West Bengal while exercising power under Section 228
CrPC, the Judge is not required to record his reasons for framing the charges against the accused.
While framing charges, only the prima facie case has to be seen. At this stage, the Judge is not required to
record a detailed order necessary to see whether the case is beyond reasonable doubt as held by the Supreme
Court in Bhawna Bai v. Ghanshyam & Ors.

In Rukmini Narvekar v. Vijaya Satardekar it was ruled by the Court that the accused cannot produce any
evidence at the stage of framing of charge and only those materials can be taken into consideration which is
specified in Section 227 at the time of framing charges.

Explaining the charge to the accused

Section 228(2) says that when a case is exclusively triable by the Court of Session and the Judge frames a
charge against the accused he has to read and explain the charge and ask the accused if he wants to plead guilty
or claims to be tried. The Judge shall ensure that the charge read and explained to the accused have been fully
understood by him before he is asked to plead guilty. In Banwari v. State of UP, the Court held that default in
reading out or explaining the charge to the accused would not vitiate the trial unless it has been shown that non-
compliance with Section 228 has resulted in prejudice to the accused.

Conviction on plea of guilty

The accused may plead guilty under Section 229 or he can refuse to plead. The Court under Section 229 has the
discretion to accept the plea of guilty. This discretion has to be applied with care and not arbitrarily. Also, the
Judge has to ensure that the plea has been made voluntarily and not under any inducement otherwise it would be
violative of the Provisions of the Constitution of India. It was held in Queen Empress v. Bhadu that the plea of
guilty must be in unambiguous terms otherwise such a plea is considered as equivalent to a plea of not guilty.
Section 229 states that if an accused pleads guilty then the Judge shall convict him as per his discretion and
shall record the same. The Court cannot convict an accused on the basis of the plea of guilty where the offence
is of a nature in which the punishment is death or imprisonment for life

230. Date for prosecution evidence.

If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 229, 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.

231. Evidence for 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.

(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any witness for further cross-examination.

232. Acquittal.
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.

Steps to follow the defence evidence

As per Section 233 when the accused is not convicted under Section 232 he shall be called upon to produce
evidence he may have in his support. If the accused desires he can give evidence in his defence in a written
form and the Judge shall file it with the record. The steps to be followed for obtaining the evidence of the
defence are discussed below.

Arguments
Under Section 234, the prosecution shall sum up his case and the accused or his pleader shall be entitled to
reply, and if any point of law is raised by the accused or his pleader, the prosecution may with due permission
of the Judge make his submission with regard to point of law. It is to be noted that Section 314 also talks about
the arguments of the parties. However, Section 234 provides that after the evidence for the defence is concluded
it is for the prosecution to sum up the case, and then the defence will be entitled to reply. Section 234 is a
special one regarding argument whereas Section 314 is a general provision and therefore Section 234 would
prevail over Section 314. The reason being it is a well-settled law that when there is any inconsistency between
a general and a special law, the special one would prevail.

Judgment
As per Section 235, a Judge will pronounce a judgement of acquittal or conviction after hearing the arguments
of both the parties i.e, the prosecution and defence and on point of law (if any). However, considering the
character of the offender, the circumstances of the case and the nature of the offence, the Judge may as per
Section 360 decide to release the offender on probation of good conduct. If the accused is acquitted, the
acquittal will be done according to the procedure laid down under Section 232 and if he is convicted he shall be
dealt according to Section 235.

In Narpal Singh v. State of Haryana it was held that, in case of non-compliance with this provision, the case
may be remanded to the Sessions Judge for retrial on the question of sentence only. It is not necessary for the
Judge to hold a new trial altogether it will be restricted to the question of sentence only.

Procedure to follow the order of conviction

After conviction, the Judge will hear the accused and then pass a sentence under Section 235. The Judge while
passing a sentence shall try to gather all information that influences or relates to the sentence of the accused.
The provisions of Section 235(2) are mandatory and should be complied with strictly as held by the Court. The
purpose of Section 235 is to offer a chance to the accused to adduce evidence of any mitigating circumstances
in his favour. The accused should be explicitly asked with respect to what he needs to state about his sentence
and whether he wants to give any proof on his side in order to mitigate his sentence.

On this point, the Apex Court 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.

In Bacchan Singh v. State of Punjab, it was ruled by the Court that this Section provides for a bifurcated trial
and specifically gives to the accused person a right of pre-sentence hearing which may not be strictly relevant to
or connected with the particular crime under inquiry but may have a bearing on the choice of the sentence.

Procedure in case of previous conviction

Section 236 talks about previous convictions. It says that if an accused is charged with a convicted previously
under Section 211(7) and he does not admit that he has been previously convicted with the alleged charge. The
Judge after convicting the accused under Section 229 or Section 235 may call for evidence of the accused of
such previous conviction and shall record findings, in case the accused is liable to enhanced punishment or
punishment of a different kind. The proviso to this Section mentions that such charge shall not be read out by
the Judge, nor shall the accused be asked to plead nor shall the prosecution refer to such previous conviction.

Section 236 provides for a special procedure for determining liability to enhanced punishment as a consequence
of previous conviction. Also, prohibiting the proof of previous conviction to be given until and unless the
accused is convicted, is to prevent the accused from being prejudiced at the trial.

236. Previous conviction.

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.

237. Procedure in cases instituted under section 199 (2).

(1) A Court of Session taking cognizance of an offence under sub-section (2) of section 199 shall try the case in
accordance with the procedure for the trial of warrant-cases instituted otherwise than on a police report before a
Court of Magistrate:

Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of
Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.

(2) Every trial under this section shall be held in camera if either party thereto so desires or if the Court thinks
fit so to do.

(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 (other than the
President, Vice-President or the Governor of a State or the Administrator of a Union Territory) 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) The Court shall record and consider any cause which may be shown by the person so directed, and if it is
satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make
an order 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) Compensation awarded under sub-section (4) shall be recovered as if it were a fine imposed by a Magistrate.
(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) The person who has been ordered under sub-section (4) to pay compensation may appeal from the order, in
so far as it relates to the payment of compensation, to the High Court.

(8) When an order for payment of compensation to an accused person is made, 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.

TRIAL OF WARRANT –CASES BY MAGISTRATES

CASES INSTITUTED ON A POLICE REPORT

This type of case is filed as an FIR in the police station and is the first step in the process of warrant cases
instituted on a police report. The case is then forwarded to the Magistrate. When any case is instituted on a
police report, and the accused is brought or appears voluntarily before the Magistrate, the Magistrate shall
satisfy himself for complying with the provisions of Section 207. And Section 238 to 243 of CrPC lays down
the procedure of trial of warrant cases instituted on a police report and the steps are mentioned below.

Supply of copies to the accused

A copy of the police report and other documents relevant to the case should be supplied to any person or
persons who appears or is brought before a magistrate at the commencement of the trial. And the Magistrate
shall satisfy himself in complying with the provisions of Section 207. This is to ensure that the accused are
aware of the charges against him and can prepare for defence under fair trial by law.

Discharge of accused if allegations against him are baseless

Once the Magistrate receives the police report and other relevant documents and provides them to the accused,
the Magistrate shall consider each report. A hearing shall be convened and a reasonable opportunity shall be
provided for both the accused prosecution to present their case. The Magistrate examines the accused if
necessary. If the charge against the accused is discovered to be baseless and lacking in substance, the accused
shall be discharged under Section 239. The prima facie of the case is also considered.

In the case of State of Himachal Pradesh V. Krishan Lal Pradhan, 1987, the Supreme Court held that there was
sufficient relevant material on record and the prima facie of the case was established by one judge. But the
succeeding judge came to the decision on the same materials that no charge could be established and therefore,
an order of discharge was passed. But it was held by the Supreme Court that no succeeding judge can pass an
order of discharge.

Framing of charge
Section 240 of CrPC authorises the Magistrate to consider the police report and even to examine the accused if
he feels the need to. If the Magistrate feels the presence of valid grounds to presume that the accused has
committed the offence and is capable of committing such an offence, and he is competent to try the offence to
adequately punish the accused in his opinion. Then the written charge is framed against the accused and the trial
is conducted after the charge is read and explained to the accused. Framing of the charge is a duty of the court
and the matter must be considered judiciously.

Explaining the charge to the accused

Clause 2 of Section 240 describes that the charge against the accused shall be read and explained to the accused.
Once the accused understands the charges against him, he shall be asked whether he pleads guilty of the offence
or wishes to challenge the charge by a fair trial under the law.

Section 241: Conviction on plea of guilty

After framing the charge if the accused pleads guilty, then the magistrate shall record the plea and convict him
according to his discretion.

The person liable to pay compensation is a person on whose complaint or information the accusation is made.
Here, a person includes a juristic person also.

Section 242: Evidence for prosecution

If the accused does not plead guilty, then the magistrate does not convict him, and the magistrate shall fix a date
for the examination of witnesses.

The proviso of this section says that the magistrate will supply in advance the statement of witnesses recorded
during the investigation by the police.

According to clause 2, the magistrate may summon to the witnesses to attend the court or to produce any
document, on the application of the prosecution.

According to clause 3, the magistrate shall proceed and may permit the cross-examination of any witness.

Section 243: Evidence for defence

Section 243 of CrPC describes the procedure with regards to collecting and presenting evidence in the defence
of the accused. After the prosecution is finished with the examination of the witness, the accused may enter his
defence in a written statement and the Magistrate shall file it with the record. Or defence can be produced
orally. After the accused has entered his defence, an application may be put to the Magistrate to perform cross-
examination of any witness presented by the prosecution. The Magistrate may then summon any witness under
Sub-section 2 to be cross-examined by the defence. The prosecution must establish the case beyond a
reasonable doubt and if the defence can prove a reasonable doubt then the evidence submitted by the
prosecution is not valid and cannot be recorded in court against the accused.

Written statement of accused

Section 243(1) declares that the accused shall be called upon to enter his defence and produce relevant
evidence. Any written statement presented by the defence shall be recorded by the Magistrate and filed. Under
Section 313(1), the accused shall have the opportunity to be heard and explain any circumstances appearing
against him or other facts and circumstances of the case that are relevant. This may be done by a written
statement or orally.
Examination of witnesses for the defence
Section 243(2) describes the process of examination of witnesses for defence of the accused. An application can
be made by the defence to the Magistrate to compel the attendance of a witness for the purpose of examination
or cross-examination, or for the production of any relevant documents or other things. The Magistrate shall
issue such directions unless he feels the application has been put for the purpose of delay or vexation or defeats
the ends of justice and refuse the application on those grounds. The grounds of refusal of the application by
defence shall be recorded by the Magistrate in writing. However, if the accused has had an opportunity to cross-
examine a witness presented by the prosecution, or has already cross-examined a witness, then the attendance of
such witness shall not be compelled under this section; unless the Magistrate feels such attendance is necessary
for justice. Sub-section 3 mentions that the reasonable expenses incurred by the witness in attending the Court
for the purpose of the trial must be deposited in Court.

Record of the evidence

CrPC declares that any evidence or witness testimonies shall be filed by the Magistrate with the record. The
evidence submitted can be in the form of a written statement or orally submission which the Court shall record.
The evidence submitted is recorded to prevent tampering by an interested party to further their agenda and
prevent justice from being served to the accused. Any written statement submitted by the accused is also filed
with the record by the Magistrate.

CASES INSTITUTED OTHERWISE THAN ON A POLICE REPORT

Section 244: Evidence for prosecution

When a warrant case is instituted otherwise than on a police report, the accused appears or is brought before a
magistrate; the magistrate shall proceed for evidence for the prosecution and summon the witnesses or
document on the application of the prosecution.

Discharge of accused
Section 245 of CrPC states that the accused shall be discharged by the Magistrate if no case has been made out
against him by the prosecution, which if unchallenged would warrant his conviction. And nothing can prevent
the Magistrate from discharging the accused at any previous stage if the accusations presented by the
prosecution is considered baseless by the Magistrate.

Section 246: Procedure where accused is not discharged

If the magistrate is satisfied, then he can frame the charge and proceed further. The charge shall be read and
explained to the accused, and he shall be asked whether he pleads guilty or not or has any defence to make.

According to clause 3, if the accused pleads guilty, the magistrate shall, according to his discretion, convict the
accused. If the accused does not plead guilty, then the magistrate will move forward.

Framing of charge
Once all the evidence is presented to the Magistrate by the prosecution and after the examination of said
evidence is conducted by him, the Magistrate is of the opinion that there is a reasonable ground for the
accusations mentioned in the complaint and the accused is capable of committing the offence; a charge is
framed and a fair trial is conducted. The accused is given an opportunity to defend himself. In the case of Ratilal
Bhanji Mithani vs The State Of Maharashtra, 1978, it was determined that there were reasonable grounds to
believe the accused had committed the offence, and the Magistrate began the trial proceedings by rejecting the
dismissal of the case under Section 246(1).

Explaining the charge to the accused

Section 246(2) states that the charge against the accused should be read and explained to him, and he shall be
asked whether he wishes to plead guilty to the charges or contest the said charges by proceeding with a trial.

Conviction on a guilty plea

Section 246(3) gives the accused an opportunity to plead guilty and present himself in mercy of the court. The
Magistrate has the authority to record the guilty plea, convict and punish the accused as he sees fit. If the
accused does not plead guilty, a subsequent hearing shall be held and the accused will be granted a fair trial.
The Magistrate may state in writing, the reasons he thinks fit for recalling any witnesses for a cross-examination
and if so, which witnesses of the prosecution, whose evidence has been recorded. The same reasons are
recorded and prosecution‟s witnesses are recalled for cross-examination by the Magistrate.

Choice of the accused to recall prosecution witnesses

Sub-section (5) and (6) under Section 246 empowers the accused to recall any witness named by the accused
and perform a cross-examination or re-examination, after which they are discharged. The evidence of remaining
witnesses provided by the prosecution is taken and they shall be discharged after cross-examination and re-
examination as seen necessary. The application of this can be observed in the case of Varisai Rowther And Anr.
V. Unknown, 1922.

Section 247: Evidence for defence

The accused will be called to enter upon his defence and to produce evidence.

JUDGEMENT AND CONNECTED MATTERS

Judgement of acquittal or conviction

Section 248 states that once the decision is made after the Magistrate examines the evidence, the judgement is
delivered. If the accused is not found guilty, an order of acquittal shall be recorded by the Magistrate under as
stated under Section 248(1). If the accused is found guilty, the Magistrate after hearing the accused shall pass
the sentence if he does not proceed in accordance with the provisions of Section 325 or Section 360. And this
order of conviction shall be recorded as under Section 248(2).

Procedure in case of previous conviction

In a case where there is a previous conviction under the provisions of Section 211(7), and the accused does not
admit that he has been convicted previously as alleged in the charge; the Magistrate may, after the conviction of
accused shall collect evidence with respect to the alleged previous conviction and record that finding. However,
no charge shall be read by the Magistrate, the accused shall not be asked to plead and the previous conviction
shall not be referred to by the prosecution or adduced by it unless the accused has been convicted under Section
248(2).
Section 249: Absence of complainant
If the complainant is absent on the day fixed for the hearing of the case, the magistrate may in his discretion
discharge the accused if-

I. The offence is compoundable.

II. The offence is non-cognizable.

III. The proceedings have been instituted on the complaint.

IV. The charge has not been framed.

All of the above elements are necessary.

Under this section, the magistrate has discretion. He may discharge the accused or may proceed with the case. It
is done by the magistrate before the charge has been framed. After the framing of charge, the magistrate cannot
discharge the accused due to default of appearance by the complainant.

Death of complainant in trial

Where in the course of the trial for different defamation the complainant dies, the magistrate need not discharge
the accused but can continue with the trial.

Note: Where a complaint is dismissed on default, there is no bar for the institution of second complaint for the
same offence.

Section 250: Compensation for accused without reasonable cause

The person liable to pay compensation is a person on whose complaint or information the accusation is made.
Here, a person includes a juristic person also.

Compensation is awarded to the person who has suffered from the accusation and not to his relatives. Before
awarding compensation, the magistrate shall not only record but also consider any objection which the
complainant or informant raised against the direction. The provisions are imperative (of vital importance) in
nature and must be complied with.

TRIAL OF SUMMONS –CASES BY MAGISTRATE

Section 251: Substance of accusation to be stated

When in summons cases, the accused appears or is brought before the Magistrate, the substance or particulars of
the offence shall be stated to him and will be asked if he pleads guilty or claims to be tried. It isn‟t necessary to
frame a formal charge.

Section 252: Conviction on plea of guilty

If the accused pleads guilty, his plea shall be taken on record, and the Magistrate upon his discretion may
convict him thereon.
Section 253: Conviction on plea of guilty in the absence of accused in petty cases
This section provides with the procedure where (summons issued under section 206 of Criminal Procedure
Code), the accused pleads guilty to the charge in his absence on a plea of guilt. The Magistrate has been given
the discretion to convict and sentence the accused. The section allows the pleader appearing on behalf of the
accused person to plead guilty on his behalf. The fine can be paid through a registered post.

Section 254: Procedure when not convicted

Suppose the accused is not convicted under section 252 or 253 of the Criminal Procedure Code. In that case, the
Magistrate shall hear and take evidence of prosecution on record and also hear and take evidence of the defence.
Summons shall be issued to witness when required. The reasonable expense shall be deposited in court incurred
for the attendance of witnesses.

Accused appear or brought before the court

Explanation of the particulars of the offence

⇓ ⇓

Conviction on the plea of guilty procedure when not convicted on a plea

⇓ ⇓ ⇓

Acquittal Conviction Prosecution hearing and record of evidence

Defence hearing and record of evidence

⇓
 Submission of argument under section 314

Acquittal/conviction

Section 255: Acquittal or conviction

After taking evidence on record, if the Magistrate finds the accused not guilty, he shall acquit the accused. If the
accused is found guilty, the Magistrate shall either proceed under section 325 or 365 of CrPC or pass the
sentence thereon.

Section 256: Non-appearance or death of the complainant

This section is applicable only in summons cases instituted on a complaint. Where the complainant is absent on
the date of hearing or date so fixed, the Magistrate may acquit the accused. Or, for some reason, he may adjourn
the case to the next date. The Magistrate may dispense with the attendance of the complainant if he is
represented through pleader or where his personal attendance is not required.

Section 257: Withdrawal of complaint

A complaint can be withdrawn with the prior permission of the Magistrate, anytime before the final order is
passed. It will have the effect of acquittal of the accused.

Section 258: Power to stop proceedings in certain cases

This section shall apply in summon case instituted otherwise than upon complaint, the Judicial Magistrate Class
I or any other magistrate with the prior permission of Chief Judicial Magistrate may stop the proceedings at any
stage without pronouncing judgement with justified reason.

Effect of stopping proceeding:

If the proceedings are stopped after taking evidence of the main witness, it will have the effect of acquittal of
the accused.

If the proceedings are stopped before taking evidence of the main witness, it will have the effect of discharge of
accused.

Section 259: Power of court to convert summon cases into warrant cases
A summons case may be converted to a warrant case when it is punishable with imprisonment exceeding six
months and it is in the interest of justice. The case will be reheard as in warrant trial, and the witness may be
recalled for examination.

Section 250: Compensation for accusation without reasonable ground

An order of compensation can be passed in favour of the person discharged or acquitted by the Magistrate who
acquitted or discharged the person. Such order is passed on the ground that there was no sufficient ground for
accusation. Before passing such an order, a show-cause notice will be issued. The amount of compensation
cannot be more than the fine that such Magistrate can impose. In default of payment, the person may undergo
simple imprisonment for a period not exceeding 30 days. The order of compensation is not absolute or final; it
is an appealable order.

SUMMARY TRIALS

Powers
The power to try a case summarily is laid down under Section 260 of the Code of Criminal Procedure, 1973.

The provision bestows power to any Chief Judicial Magistrate, Metropolitan Magistrate or Magistrate of the
first class empowered by the High Court to try the following offences summarily:

Offences which are not punishable with death, imprisonment for life or imprisonment for more than two years.

The offence of theft under Section 379, 380 or 381 of the Indian Penal Code, 1860 if the value of the stolen
property is not more than 2000 rupees.

An offence where a person has received or retained a stolen property worth not more than 2000 rupees, under
Section 411 of the Indian Penal Code, 1860

An offence where a person has assisted in concealing or disposing of stolen property, not worth more than 2000
rupees, under Section 414 of the Indian Penal Code, 1860

Offences covered under Section 454 and Section 456 of the Indian Penal Code, 1860

If a person insults with the intention of provoking a breach of peace under Section 504 of the Indian Penal
Code, 1860

In the case of criminal intimidation punishable with imprisonment up to two years or fine or both, under Section
506 of the Indian Penal Code, 1860.

The abetment of any of the above-mentioned offences

If an attempt is made to commit any of the aforementioned offences and if such an attempt is a punishable
offence

If an act is committed which constitutes an offence, for which a complaint can be filed under Section 20 of the
Cattle Trespass Act, 1871

If the Magistrate feels at any point of the process of trial, that the nature of the case is not fit to be tried
summarily then he has the power to recall any witness who may have been examined. After this, he can proceed
for rehearing of the case, according to the procedure prescribed in this Code.

Procedure
Under Section 262 of the Code of Criminal Procedure, 1973, the procedure for summary trials has been laid
down.
The procedure followed for summon cases has to be followed for summary cases as well. The exception in
summary trials is, that a sentence exceeding the duration of three months cannot be passed in case of conviction
under this Chapter.

The procedure for a summons case can be briefly stated as follows:

For a criminal procedure to begin, the first step is to file an FIR or a complaint. This is investigated upon by the
police and evidence is collected. At the end of the investigation, a charge sheet is filed by the police. This is also
called the pre-trial stage.

The accused person is then taken before the Magistrate who orally reads the particulars of the offences to the
accused. In summons and summary trials, a formal charge is not written down.

The Magistrate after stating the particulars of the offence committed asks the accused if he pleads guilty or not.
If the accused person pleads guilty, the Magistrate makes a record of the statement of the accused and then
proceeds for conviction.

If the accused does not plead guilty, the trial begins. The prosecution and the defence are given an equal
opportunity to put their case forward. The Judge may then decide the acquittal or the conviction of the
accused.In summary cases, the difference lies at this juncture. If the Judge delivers a judgment of conviction of
the accused – the maximum sentence that can be passed for imprisonment is three months.

Record in summary trials

The procedure to formulate a record in summary trials is laid down in Section 263 of the Code of Criminal
Procedure, 1973.

In all summary cases, the Magistrate has the duty to enter the following particulars, in the following format
prescribed by the State Government:

The serial number of the case;

The date when the offence was committed;

The date when the report or the complaint was filed;

The name of the complainant, if any;

The name, residence and parents‟ name of the accused person;

The offence about which the complaint has been made and any proven offence (if it exists);

The value of the property regarding which the offence has been committed, if the case comes under Section
260(1) (ii) or Section 260(1) (iii) or Section 260(1) (iv) of the Code;

The plea of the accused person and his examination, if any;

The finding of the Court;

The sentence or any other final order passed by the Court;

The date when the proceedings ended.

Judgment in cases tried summarily
Section 264 of the Code of Criminal Procedure, 1973 lays down how a judgment should be in cases which are
tried summarily.

The Magistrate has the duty to record the substance of the evidence along with a judgment containing a brief
statement of the reasons for such finding, in all summarily tried cases where the accused does not plead guilty.

Under Section 326(3) of the Code of Criminal Procedure, 1973 the use of pre-recorded evidence by a successor
judge is barred in the instance when the trial has to be conducted summarily, according to Section 262 to 265 of
the Code.

Language of record and judgment

The provision governing this heading is under Section 265 of the Code of Criminal Procedure, 1973.

All the records and judgments are to be written in the language of the concerned Court. The High Court can
bestow the power upon any Magistrate who is empowered to try offences summarily, to prepare the above-
mentioned record or judgment or both. This can be done through an officer appointed for the purpose by the
Chief Judicial Magistrate as well. Such record or judgment prepared has to be signed by the Magistrate.

PLEA BARGAINING

Meaning of Plea Bargaining

Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused agrees to
plead guilty in exchange for certain concessions by the prosecution. It is a bargain where a defendant pleads
guilty to a lesser charge and the prosecutors in return drop more serious charges. It is not available for all types
of crime e.g. a person cannot claim plea bargaining after committing heinous crimes or for the crimes which are
punishable with death or life imprisonment.

Cases Where Plea Bargaining is Allowed

 An offence where punishment is not more than 7 years.
 Offences which are not against the women and children.
 The offence which does not affect the socio-economic condition of the country.
 The central government has determined the offences which affect the socio-economic condition of
country. They are:
 Dowry Prohibition Act, 1961
 Sati Prevention Act, 1987
 Protection of Women From Domestic Violence Act, 2005
 Immoral Traffic Act, 1956
 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
 Army Act, 1950
 Air Force Act, 1950
 Navy Act, 1957
 Juvenile Justice Act, 2000
 Delhi Metro Railway Act, 2002
  The Explosive Act, 1884
 Cinematograph Act, 1952

Note: No plea bargaining is allowed in the case of a habitual offender.

Section 265-A (Application of Chapter) the plea bargaining shall be available to the accused who is charged
with any offense other than offenses punishable with death or imprisonment or for life or of an imprisonment
for a term exceeding to seven years. Section 265 A (2) of the Code gives the power to notify the offenses to the
Central Government.

The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the offenses affecting
the socio-economic condition of the country.

Section 265-B (Application for Plea Bargaining)

A person accused of an offense may file the application of plea bargaining in trails which are pending.

The application for plea bargaining is to be filed by the accused containing brief details about the case relating
to which such application is filed. It includes the offences to which the case relates and shall be accompanied by
an affidavit sworn by the accused stating therein that he has voluntarily preferred the application, the plea
bargaining the nature and extent of the punishment provided under the law for the offence, the plea bargaining
in his case that he has not previously been convicted by a court in a case in which he had been charged with the
same offence.

The court will thereafter issue the notice to the public prosecutor concerned, investigating officer of the case,
the victim of the case and the accused of the date fixed for the plea bargaining.

When the parties appear, the court shall examine the accused in-camera wherein the other parties in the case
shall not be present, with the motive to satisfy itself that the accused has filed the application voluntarily.

Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down the procedure to be followed by
the court in mutually satisfactory disposition. In a case instituted on a police report, the court shall issue the
notice to the public prosecutor concerned, investigating officer of the case, and the victim of the case and the
accused to participate in the meeting to work out a satisfactory disposition of the case. In a complaint case, the
Court shall issue a notice to the accused and the victim of the case.

Section 265-D (Report of the mutually satisfactory disposition) This provision talks about the preparation of
the report of mutually satisfactory disposition and submission of the same. Two situations may arise here
namely

If in a meeting under section 265-C, a satisfactory disposition of the case has been worked out, the report of
such disposition is to be prepared by the court. It shall be signed by the presiding officer of the Courts and all
other persons who participated in the meeting.

If no such disposition has been worked out, the Court shall record such observation and proceed further in
accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265-
B has been filed in such case.

Section 265-E (Disposal of the case) prescribes the procedure to be followed in disposing of the cases when a
satisfactory disposition of the case is worked out. After completion of proceedings under Section 265-D, by
preparing a report signed by the presiding officer of the Court and parties in the meeting, the Court has to hear
the parties on the quantum of the punishment or accused entitlement of release on probation of good conduct or
after admonition. Court can either release the accused on probation under the provisions of Section 360 of the
Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force or punish the
accused, passing the sentence. While punishing the accused, the Court, at its discretion, can pass sentence of
minimum punishment, if the law provides such minimum punishment for the offenses committed by the
accused or if such minimum punishment is not provided, can pass a sentence of one-fourth of the punishment
provided for such offense. ”

Section 265-F (Judgment of the Court) talks about the pronouncement of judgment in terms of mutually
satisfactory disposition.

Section 265-G (Finality of Judgment) says that no appeal shall be against such judgment but Special Leave
Petition (Article 136) or writ petition (under Article 226 or 227) can be filed.

Section 265-H (Power of the Court in Plea Bargaining) talks about the powers of the court in plea bargaining.
These powers include powers in respect of bail, the trial of offenses and other matters relating to the disposal of
a case in such court under Criminal Procedure Code.

Section 265-I (Period of detention undergone by the accused to be set off against the sentence of
imprisonment) says that Section 428 of CrPC is applicable for setting off the period of detention undergone by
the accused against the sentence of imprisonment imposed under this chapter.

265-J (Savings) talks about the provisions of the chapter which shall have effect notwithstanding anything
inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall
be construed to contain the meaning of any provision of chapter XXI-A

Section 265-K (Statement of the accused to be used) specifies that the statements or facts stated by the accused
in an application under section 265-B shall not be used for any other purpose except for the purpose as
mentioned in the chapter.

Section 265-L (Non-application of the chapter) makes it clear that this chapter will not be applicable in case of
any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.

In State of Uttar Pradesh vs Chandrika 2000 Cr.L.J. 384(386), the Apex Court disparaged the concept of plea
bargaining and held this practice as unconstitutional and illegal. Here the Hon‟ble Court was of the view that on
the plea bargaining Court cannot basis of disposing of criminal cases. The case has to be decided on the merit.
In furtherance of the same, court said that if the accused confesses his guilt, he must be given the appropriate
sentence as required by the law. (see here)

In the State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709, the Court acknowledged the
importance of plea bargaining and said that every “plea of guilty” which is construed to be a part of the
statutory process in the criminal trial, should not be understood as a “plea bargaining” ipso facto. It is a matter
of matter and has to be decided on a case to case basis. Considering the dynamic nature of law and society, the
court said that the very object of the law is to provide an easy, cheap and expeditious justice by resolving
disputes.
 THE JUDGEMENT

What is a Judgement?
A judgement is a decision given by a person regarding a particular issue. A judgement under the eyes of the law
is a decision given by a court of law on a suit which comes up to it. The Code of Criminal Procedure in India
does not define a judgement. Though Chapter 27 of the code deals with the matters relating to a judgement and
its delivery. A judgement can be considered to be the final order passed by a criminal court, which may either
be pronounced as a conviction of the accused if such person is found to be guilty or as an acquittal of the
accused if such person is found to be innocent.

Provisions with regard to Judgement under CrPC

The following are the provisions with regards to a judgement under the Code for Civil Procedure:

Section 353
This section helps us understand the process of procurement and pronouncement of a judgement. It says that the
pronouncement of judgement in every trial in a criminal court should be done in an open court as soon as a trial
subject to that court is terminated. Such judgement should be pronounced by a presiding officer who is in
charge of the criminal court of original jurisdiction. Such an officer passing the judgement should sign the
transcript and every page, as well as the date of the judgement, pronounced should be attached to such a
document.

If the accused related to a judgement is under custody, then such person should be brought to the court when
the judgment is being pronounced. If the accused is not in custody then his presence shall be demanded by the
court, at the time of passing the judgment. If there is more than one person then the absence of any of them will
not have any effect in delaying the judgement. A copy of the judgement should be made available to all persons
associated with the case.

The absence of a pleader during the pronouncement of a judgement shall not be deemed to be enough reason for
causing any delay in a judgement.

Section 354
This section tells us about the language which should be used while pronouncing a judgement. It basically says
that unless anything is expressly mentioned under the judgement passed under section 353, the judgement
should be made in the official language of the respective court.

This section also helps us understand the ideal contents of a judgement. It basically explains the different
instances under which the court passes judgement and the reasons which are required to be given by a court,
which shall be attached to the respective judgements.

Section 355
This section provides instructions which are required to be followed by a Metropolitan Magistrate while
pronouncing a judgement.
Section 357
This section talks about the power of the court to demand compensation from the accused with regard to the
losses incurred by the other party to the suit. Such compensation may be for the costs of the proceeding,
compensation for causing harm, injury or death, etc. There is a particular period of time provided for an appeal
against such demand of compensation by the court. Once such period expires, the accused shall be liable to pay
such compensation.

Section 358
If a person gets arrested due to another person registering a false complaint against such a person with the
police. Then the court shall order such a person who posted the complaint to pay compensation which shall not
exceed one thousand rupees, to the person so arrested. Such compensation is required to be paid for the lost
time and money of such a person so arrested.

\If there is more than one person who has been arrested under such circumstances, then compensation of rupees
hundred such be paid to each person.

Section 361
This section tells us that under the following circumstances special reasons supporting the judgement should be
recorded:

Where an accused is a person under section 360 or under the provisions of the Probation of Offenders Act,
1958.

When an offender is a person supposed to be considered under the Children Act, 1960.

Section 362
This section tells us that once a judgement is pronounced, no change shall be made by the court or the presiding
officer on such judgement. Unless the appeal is filed at a higher court.

Section 363
This section tells us that a copy of the judgment pronounced by the presiding officer of the court shall be given
out to the accused, the complainants and all such persons associated with the proceeding in reference to which
such a judgement has been passed.

Section 364
This section provides that every judgement pronounced by a court should be recorded. In an instance where
such judgement is not in the language of the court and the accused requires so, then the judgement should be
translated into the language of the court and stored accordingly.

Section 365
This section tells us that in case a judgement is pronounced by a court of session or by a Chief Judicial
Magistrate, then a copy of such a judgement should be sent to the office of the District Magistrate.
What is an Order?
An order is a command which is given by a judge, with relation to a proceeding at a court. Though the order is
not always the end of the court proceeding. Only if such an order passed is the final order of a case, it shall be
considered to be a judgement and shall be capable of ending a court case. Otherwise, orders are passed in
between court proceedings to take care of the case and the things associated with it. There are certain orders
which are given by the court under chapter 27 of the Code of Criminal Procedure, 1973. However, the term
order is not defined under CrPc and finds its meaning under the Civil Procedure Code.

Provisions with regard to Order under CrPC

The following Sections under the Code of Criminal Procedure talks about orders:

Section 356
This section tells us about an order regarding notification of the address of a previously convicted person.

Section 357
This section tells us that the court may order a person to pay compensation in case such a person‟s complaint to
the police leads to a false arrest of another person. Such compensation shall be paid to the person so arrested.
The amount of compensation ordered can be maximum of one thousand rupees. If more than one person is
arrested for such a complaint, then a compensation up to rupees hundred for each person can be ordered by the
court.

Section 359
Under this section the court shall order compensation to be paid by the accused to the complainant of the case,
considering that it is a case of a non-cognizable offence. The compensation is equivalent to the costs of the
proceeding which are incurred by the complainant. Such an order may even be passed by an Appellate Court.

Section 360
This section tells us about an order of the court through which a convict can be released on probation of good
conduct or after a firm warning.

Section 413
This section helps us understand the process for execution of an order under the Indian legal system.

As a general rule, an order of a court is founded on objective considerations and as such the judicial order must
contain a discussion of the question at issue and the reasons which prevailed with the court which led to the
passing of the order.

An order may originate from a suit by the presentation of a plaintiff or may arise from a proceeding commenced
by a petition or application. Rights of the parties with regard to all or any of the matters in controversy may or
may not be finalized in an order. Also, in the case of a suit or a proceeding, a number of orders may be passed.
Every order is not appealable, only specific orders provided for in the Code are appealable. No Second Appeal
lies in case of Appealable Orders.
 SUBMISSION OF DEATH SENTENCE FOR CONFIRMATION

Submission for conformation to High Court (Section 366)

Section 366 partially answers the question of who can pass a verdict. This section provides that if a Session
Court passes the death sentence against the accused(s) then the High Court needs to confirm it before it comes
into effect. Thereby, it is necessary to submit the proceedings before the High Court and only after confirmation
from the High Court the execution can be brought into effect, and not before that.

The death penalty is the highest level of punishment and it follows the principle of „rarest of rare‟ (uncommon
crime or that is unusual to a person of ordinary prudence, the one which shocks and causes tremors throughout
the judiciary and the society). This section works as a precautionary step to minimize the error while meeting
the ends of justice.

Power to direct further inquiry to be made or additional evidence to be taken (Section 367)
Sub-section (1) of Section 367 of the CrPC provides that when the proceeding for confirmation of the death
penalty is submitted to the High Court and it notices any point of innocence or guilt of the accused, it may either
direct the Sessions Court or itself to make further inquiry into it or take additional evidence into consideration.
It is usually done when the High Court feels that the Sessions Court has missed some points or factors.

Sub-section (2) of Section 367 provides that the convict can be directed to dispense his/her presence during
such inquiry or taking of the evidence unless the High Court otherwise directs.

Sub-section (3) of Section 367 provides that if the Sessions Court (authority other than the High Court) makes
the enquiry or takes into consideration such evidence then it shall be certified by the Sessions Court.

Power to the High Court to confirm sentence or annul conviction (Section 368)
Section 368 provides that when a case is submitted to the High Court under Section 366 of the Code of Criminal
Code, the High Court may;

confirm the sentence passed by the Sessions Court, or pass a sentence other than the one provided it is
warranted by the law, or

annul the conviction passed by the Sessions Court, and instead either convict the accused under any other
offence for which the Session‟s Court had convicted him/her or order for a trial on an amended charge or on the
same charge, or

acquit the accused of the charges made against him.

The proviso to the section states that till the time the limitation period to file an appeal against the verdict is not
expired, or the appeal is still pending or is not disposed of, the Court cannot pass an order of confirmation.

onfirmation or new sentence to be signed by two judges (Section 369)

Section 369 provides that whenever a case is submitted to the High Court under Section 366 of CrPC it shall be
heard by a divisional bench i.e. at least by two or more judges. For confirmation of:
  the sentence, or
 any new sentence, or
 any order.

Passed by the High Court shall be „made, passed and signed‟ by either two or more judges. It is an essential
condition that cannot be ignored.

Procedure in case of difference of opinion (Section 370)

A question that arises now is what happens when the judges in equal proportion have conflicting opinions?
Section 370 of CrPC provides the answer to it and states that the manner provided in Section 392 of CrPC shall
be followed in the case when sitting judges that heard the case are equally divided in opinion about the case.
The parties do not have to specify it to the court, the court takes the suo-moto and follows the procedure as per
Section 392 of CrPC.

The Section 392 of states that when a High Court bench hears a case and ends up having divided opinions, in
such case the appeal along with the diverging opinions shall be laid before a judge of the same Court. That
judge shall deliver his/her opinion only after hearing the judges, and that opinion shall be followed by the
judgment or order in question.

The proviso to the section states that if any of the sitting judge, or the judge before whom the judgment or order
in question is laid under this section, requires the appeal to be heard again or be heard by a larger bench of
judges then it shall be done accordingly.

In various cases, this section has been applied including the case of Sri D N Srinivash Reddy vs State of
Karnataka (2018). In this case, the judges while deciding the case were not able to pass a majority decision due
to difference in opinion therefore, the procedure described under Section 392 was followed. The judge who
heard the matter under Section 370 of CrPC quashed the proceedings against the accused who were arrested
during a raid.

Procedure in a case submitted to the High Court for confirmation (Section 371)
Section 371 of the Code of Criminal Procedure provides that cases of the death penalty which are submitted to
the High Court by the Sessions Court after being decided upon shall be sent to the Sessions Court. The order
passed by the High Court shall be one of the options provided in Section 368 i.e. confirmation, annulment of the
conviction, the acquittal of the accused among others. It is the duty of the concerned officer of the High Court to
send a copy of the order passed by the High Court to the Sessions Court without any delay, under the seal of the
High Court and attested with his/her official signature.

MACCHI SINGH V. STATE OF PUNJAB [AIR 1983 SCC 470] In this case, the Hon‟ble Supreme Court of
India laid down the criteria for the rare of the rarest cases. The criteria so provided are:

1. Manner of murder – If a murder is committed in such a brutal, ridiculous, diabolical, revolting, or

reprehensible manner and it arouses intense and extreme indignation in the community, like: Setting up the
victim‟s house on fire with the aim to burn him/her alive. Torturing the victim withinhuman acts so as to bring
about his/her death. Cutting down the body of the victim into pieces in a vicious manner.
2. Motive for murder– If total immorality and cruelty are the major driving forces behind a murder, for
example: A killeris hired for executing the murder for the sake of a financial reward. A cold-blooded
murder,designed in a careful manner to get control over property or for any other selfish gains.

3. Socially heinous nature of the crime – If the murder of a person from one of the backward classes is
committed, which includes the cases of burning of brides, also known as dowry deaths, it comes under this
ambit.

4. Magnitude of the crime – If the intensity of the crime is extreme, such as inthe cases of multiple murders.

5. The victim‟s personality –If the victim of the murder is an innocent child, a helpless woman or man (due to
old age or infirmity), a public figure, etc.

EXECUTION , SUSPENSION, REMISSION, AND COMMUTATION OF SENTENCE

Object and scope of the topic

The power to remit, suspend or commutate a sentence is exercised by the head of the state. The executive can
show mercy on the convict by way of remission, suspension or commutation etc. The basic purpose of the
suspension, remission, commutation and other forms of showing mercy, is to take into consideration certain
aspects of the case which do not arise during the proceedings in the court of law. Just like the other Chapters of
CrPC, this is applicable to the whole of India.

Execution of sentence of death

Execution of order passed under Section 368

Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence without the confirmation
of the High Court, till that time the convict has to be in jail custody. The High Court, under Section 368 of the
CrPC, looks into the case. The High Court can:

Confirm the sentence given by the Session Court.

Annul the conviction and convict the accused of the same charges as that of the Session Court or may order for
fresh proceedings on the same or altered charges.

May acquit the person, as the time for the appeal has not lapsed yet or the appeal has been disposed of.

Any order received by the Session Court from the High Court has to be executed by the Session Court by way
of issuance of a warrant. (Section 413 of the CrPC).

Execution of sentence of death passed by High court

Under Section 414 of the CrPC, if the High Court, passes the order of death sentence in appeal or revision, the
Session Court has to carry on the order by issuing a warrant.

Duty of the jail superintendent in certain cases

When the High Court certifies to the Sessions Judge, any information regarding the confirmation, annulment of
charges of the accused in the case that was sent by way of an appeal or revision, the Session judge will send a
warrant to the Superintendent of Jail of which the prisoner was originally committed. If the prisoner is
transferred to another jail, then, in that case, the Superintendent of Jail has to send back the warrant to the
Sessions Judges who in turn will give the warrant to the Superintendent of the Jail in which the prisoner is
transferred.

In case of alteration of the charges by the appellate courts by way of an appeal or revision, the same would be
informed to the Superintendent of Jail to which the prisoner is committed. Even in the case of immediate release
of the prisoner from the jail, the Sessions Judge by way of a warrant would inform the Superintendent of the
Jail. the superintendent after such execution will give the original warrant, duly filled to the district magistrate
in which the trial was held.

Postponement of execution of death sentence

In case of appeal to the Supreme Court

Under Section 415 of the CrPC, 1973, the High Court may order for the postponement of the execution of death
sentence, if the case has been sent to the Supreme Court for appeal (Article 134 of the Indian Constitution). The
postponement would be until the time for preferring such appeal has been lapsed or the appeal has been
disposed of, altogether.

If the death sentence has been confirmed by the High Court, the person so sentenced may ask the High Court,
by way of an application for the grant of a certificate under article 134 or 132 of the Indian Constitution. The
High Court has to postpone the execution of the death sentence until such demand is disposed of by the High
Court or such certificate of appeal has been granted before the time of considering such appeal by the Supreme
Court has not lapsed.

When the death sentence has been confirmed by the High Court, but the High Court is satisfied that the person
so sentenced intends to file a Special Leave Petition to the Supreme Court under Article 136 of the Indian
Constitution. The High Court will order the postponement of the execution of the death sentence till the time
which is reasonable for the person who is sentenced, to file such appeal in the Supreme Court.

Postponement of capital sentence on a pregnant woman

Under Section 416 of the CrPC, if the woman who is sentenced is found to be pregnant, then the High Court, in
that case, can postpone the sentence or if it deems fit, the High Court can also commute the sentence to life
imprisonment.

Place of imprisonment
The State Government unless provided has the power to direct the place of imprisonment for any person who is
convicted under CrPC.

Moreover, if the person who is convicted under the provisions of CrPC, is confined in the civil jail, then the
magistrate of the court shall order that the person so convicted, should be shifted to a criminal jail. However, if
the person who was transferred to the criminal jail from the civil jail, will be sent back to the civil jail unless-

Three years have lapsed, the person, in this case, shall be released under Section 58 of the CPC, 1908 or Section
23 of the Provincial Insolvency Code.
The which ordered the imprisonment of the person in the civil jail orders the officer in charge to release of the
convicted person under Section 58 of CPC or Section 23 of the Provincial Insolvency Code.

Execution of sentences of imprisonment

Under Section 418 of the CrPC, a person who is imprisoned for life or for terms other than those mentioned in
Section 413 of the CrPC, the court passing such sentence has to give a warrant to the place where the person has
to be confined unless such person is confined to such place. However it must be the person who is imprisoned
till the court is rising, then there is no need to forward a warrant to the jail and the person shall be confined as
per the direction of the court.

Under Section 418(2) of the CrPC, if the accused is not present in the court at the time when he is sentenced to
such imprisonment, then, in that case, the court has to order for the arrest of that person, by way of an arrest
warrant, for forwarding him to jail or any other place where he shall be confined and the sentence will start
from the time of arrest of the accused.

In the case of Ishwarbhai Hirabhai Churana vs the State of Gujrat, this Section is held to be mandatory.
Moreover, under this Section, the court also owes a duty to ensure that the sentence is executed, otherwise, the
accused may avoid it.

The warrant issued is non – bailable, as it empowers the authority to arrest the person, after the issuance of this
warrant. Such a warrant is necessary in case the sentence was pronounced in the absence of the accused.

A warrant for the execution of sentence of imprisonment

Under Section 419 of the CrPC, the warrants for the execution of the sentence of imprisonment has to be
directed to the in-charge of the jail or of any place in which the accused is to be confined. But if the person is to
be confined in the jail, then the warrant needs to be given to the jailor.

General provisions regarding the execution

Who may issue a warrant?

Under Section 425, every warrant which is issued for execution is to be given by the Magistrate or the Judge or
Magistrate who passed the sentence or by their successor in-charge.

The sentence on an escaped convict

If a sentence of death, life imprisonment or fine is passed under the provisions of this code, on an escaped
convict, then the execution of such sentence should take effect immediately.

When the sentence is passed on the escaped convict then:

When this sentence is more severe than the previous sentence from which the convict escaped, then the sentence
shall take place immediately.

If the present sentence is less severe than the sentence from which the convict escape then the accused has to
serve the term which is remaining of the sentence he escaped from.

The sentence of rigorous imprisonment will be more severe than the imprisonment of the simple nature.
The sentence on offender already sentenced for another offence
If a person has been previously convicted for a sentence and then is subsequently convicted for another, then the
person has to serve his former punishment first and then will serve the punishment sentenced later. Or if the
court orders that both the punishment are to be served concurrently. The punishment could be imprisonment or
imprisonment for life. It is also to be noted that where a person who has been sentenced to imprisonment by an
order under Section 122 in default of furnishing security is while undergoing such sentence, sentenced to
imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence
immediately.

However, if a person is already sentenced to life imprisonment and then subsequently is punished for a term or
for life imprisonment, then the former sentence would run concurrent to the latest imprisonment.

Period of detention undergone by the accused against the sentence of imprisonment

Where an accused is serving a sentence, other than the one on the default of payment of fine, and the term of
detention undergone by him during the investigation and trial of the same case shall be set off against the term
imposed on him from such conviction. The person shall be liable only for the term of imprisonment left if in
case the sentence of imprisonment is given to him.

In case of a sentence given under Section 433A, such period of detention shall be set off against fourteen years
referred to in that Section.

But nothing in Section 426 and Section 427 shall be the reason to excuse any person from the term he is
sentenced to in his former or subsequent conviction.

When an award of imprisonment in default of payment of a fine is added to a substantive sentence of

imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive
sentence or substantive sentences of imprisonment. In this case, the sentence accruing to the default of payment
of fine should be served by the person only after he has undergone the subsequent sentences.

Return of warrant on execution of sentence

When the sentence has been executed fully, the officer executing such a sentence will have to return the warrant
to the court which has issued it. The warrant that is returned has to be undersigned by the respective officer. The
method of execution of the sentence must also be specified by the officer in charge.

TRANSFER OF CASES

Transfer of cases and appeals by the High Court – Section 407 CrPC
The power to transfer the cases to the High Court is given under section 407 of the Criminal Procedure Code.
The High Court can exercise this power under three conditions, when it is satisfied that:

1. A fair and impartial trial cannot be held in any criminal court that is subordinate to it.

2. Certain questions of law of unusual difficulty might arise.

3. An order is required by any provision of the Code or for the general convenience of the parties or the witness
involved or for the ends of the justice.
The High Court can exercise this power on the report of the lower court or on the application of a party
interested. This power can also be exercised on its own initiative by the High Court. However, the application
for the transfer of a case from one criminal court to another criminal court in the same Session Division can be
laid down before a High Court only if it has been previously made to the Sessions Judge and was rejected by
him.

Transfer of cases and appeals by the Sessions Judge – Section 408 CrPC
Section 408 of the Criminal Procedure Code provides the power to the Sessions Judge to transfer a case from
one criminal court to another criminal court in his sessions division. Whenever it seems reasonable for the ends
of the justice, the Sessions Judge can act as provided under this section.

The Sessions Judge can exercise this power either on the instance of the report of the lower court or on the
application of the party interested or on its own.

Withdrawal of cases and appeals by Sessions Judges – Section 409 CrPC

The Sessions Judge also has the power to withdraw a case or appeal which he has transferred to any Assistant
Sessions Judge or Chief Magistrate subordinate to him. The provision related to this is given under section 409
of the Criminal Procedure Code.

However, a Sessions Judge can act accordingly only before the trial of the case or hearing of the appeal has
begun. There can be no withdrawal of a case once the trial or hearing has started in the transferee court.

Note: Section 409 of CrPC does not relate to the cases which are originally filed in the court of Chief Judicial
Magistrate or Sub-Divisional Judicial Magistrate.

Withdrawal of cases by Chief Judicial Magistrate – Section 410 CrPC

Provisions related to the withdrawal of cases by Chief Judicial Magistrate is contained under section 410 of the
Criminal Procedure Code. This section grants the power to the Chief Judicial Magistrate to withdraw any case
from any Magistrate subordinate to him and recall any case he had previously transferred to any Magistrate
subordinate to him.

The Chief Judicial Magistrate also has the power to inquire or try such a case himself. Along with this, he can
also refer such a case to any other Magistrate who is competent to inquire into and try the case.

Withdrawal of case by Executive Magistrates – Section 411 CrPC

The Executive Magistrates have the power to withdraw or recall any case under section 411 of the Criminal
Procedure Code. The Executive Magistrate under this section can withdraw any case which has been
commenced before the court to any Magistrate that is subordinate to him for the disposal of the case. He is also
authorized under this section to withdraw or recall any case he had previously transferred to any Magistrate
subordinate to him as well as to dispose of such a case himself or refer it for disposal to any other Magistrate.

Section 412 – Reasons to be recorded

Section 412 of the Criminal Procedure Code stipulates that if any transfer order is made under Section 408,
Section 409, Section 410, or Section 411, the reasons for such transfer must be recorded in writing. This
requirement ensures that transfer orders are not arbitrarily issued based on fair, just, and compelling reasons.
 APPEALS
Meaning of Appeal

Appeal is a complaint to a superior court of an injustice done or error committed by an inferior court, whose
judgement or decision the Court calls upon to correct or reverse.

Appeal is statutory right and no one has an inherent right to appeal.

If the statute does not provide for an appeal then no appeal would lie in such case.

CASES WHERE NO APPEAL LIES

No appeal unless provided by law – S.372

Appeal is not a matter of right.

An aggrieved person can only appeal if the same provided by the law under some statutory provision.

No appeal in petty cases – S.376

The following types of cases are considered as petty cases:

 High Court – Sentence – 6 months Imprisonment or Fine upto Rs. 1,000/-

 Court of Sessions – Sentence – 3 months Imprisonment or Fine upto Rs. 200/-
 Magistrate of 1st Class – Sentence – Fine upto Rs. 100/-
 An appeal can be brought against the abovementioned sentences if they are combined with other
sentences which are appealable For the purpose of appeal aggregate of consecutive sentence has to be
seen.

No Appeal in case of conviction on plea of guilt – S.375

 The person who deliberately pleads guilty cannot be aggrieved by being convicted.
 It means that such person does not have a grouse against the conviction.
 Therefore, the question of appeal against such order of conviction does not arise at all.
 However, the way in which the Court obtained the plea of guilt has to be scrutinized.
 If the accused was threatened or induced into pleading his guilt then such order of conviction would be
bad in law.

APPEAL FROM CONVICTION

Appeal to Supreme Court

An appeal to the Supreme Court can be filed in the following instances and under the following provisions:

S.374(1) – Trial by the High Court.

In case of a conviction upon the trial by a High Court, the aggrieved party can appeal against such order of
conviction before the Supreme Court.

Although such trials are very rarely held.

S.379 – Reversal of order of Acquittal and sentenced to Death or Life Imprisonment by High
Court.
If the High Court reveres the order of Acquittal and sentence the accused to Death or imprisonment for life.

In such scenario, the aggrieved person is entitled to appeal against such conviction before the Supreme Court.

Article 132 – Appeal if the case involves substantial question of law.

If the High Court certifies that a case involves a substantial question of law, then upon obtaining such certificate
the appeal can be filed before the Supreme Court.

Even if the High Court refuses to grant the certificate the Supreme Court can grant leave to appeal.

Article 134 – Certificate of Appeal by the High Court

 An appeal under article 134 lies to the Supreme Court in two cases:
 When the High Court has withdrawn for trial a case from lower court before itself or
 When the High Court certifies that a case is fit for appeal.

Article 136 – Special Leave Petition

The Supreme Court may grant special leave to appeal from any judgment, order or sentence passed by the High
Court or a Tribunal.

Appeal to the High Court – S.374(2)

An appeal to the High Court would lie from the order, sentence or judgment of the following courts:

 Sessions Judge; or
 Additional Sessions Judge; or
 Any Other Court – passing sentence of imprisonment for more than seven years.

Appeal to the Court of Sessions – S.374(3)

An appeal to the Court of sessions lies in case of conviction by the following Courts:

 Metropolitan Magistrate; or
 Assistant Sessions Judge; or
 Magistrate of 1st Class; or
 Magistrate of 2nd Class

Special Right of Appeal in case where more than one person is convicted – S.380

Section 380 contemplates the following conditions to be fulfilled before an appeal can be filed in a case where
more than one person is convicted:

 Conviction of more than one person; and

 Appealable order or judgment passed in respect of any of them; and
 All or any one may file an appeal.
APPEAL AGAINST ACQUITTAL (S.378)
Scope & Object

 Appeal against an order of acquittal is an extraordinary remedy.

 Appealing against an order of acquittal means that the interests of the accused are once again in serious
jeopardy.
 Section 378 therefore tends to safeguard the interests of the accused who has been acquitted by the trial
court.
 The decision of the Government to prefer an appeal or not is an administrative decision.
 The Government has the same right of appeal as a convict has against his conviction.

General Provisions u/s. 378

Who May prefer an Appeal u/s. 378

The following persons may file an appeal under section 378:

 Government; or
 Complainant. (in case of a case constituted upon complaint)
 The right to file an appeal can only be exercised after obtaining the leave of the High Court.
 Appeals lies before – The appeal against acquittal shall lie before the High Court regardless of the fact
whether the order/judgment has been passed by the Session Judge or the Magistrate.
 In a case instituted upon private complaint the appeal can only be filed once the High Court grants leave
to appeal.
 The application for seeking leave to appeal shall be filed within the prescribed period of limitation.

Factors to be considered before interfering with the order of acquittal

 Application of law;
 Grounds taken by the trial judge while acquitting the accused;
 Any substantial omission while considering the evidence;
 Appreciation of evidence.

Rules to be followed by the High Court

 Presumption of innocence is strengthened by order of acquittal.

 The trial judge had the opportunity to observe the demeanor of the witnesses.
 If two views are possible, the one favorable to the accused shall be taken.
 The accused is entitled to a reasonable benefit of doubt.
 The High Court shall arrive at its own conclusion after pursuing the evidence on record.

Duty of the High Court

 The High Court has to examine the case from its own independent view point;
 It has to see if the order of the trial judge was palpably wrong, manifestly erroneous or demonstrably
unsustainable.
 It has to examine if there are any infirmities so blatant that the order has to be reversed.
  The Court must exercise its discretion judicially and scrutinize the evidence in minute detail.

Role of the Public Prosecutor

 The State shall engage the Public Prosecutor to file an appeal against the order of acquittal.
 The object is to ensure that the State takes the legal opinion of the PP before filing the appeal.
 If the State does not file the appeal through the public prosecutor then the appeal will be invalid.
 However, the above-mentioned requirement can be waived off in case the appeal has to be filed in
urgency and the Public Prosecutor is not available.
 The Public Prosecutor can only file an appeal upon the directions of the State Government and he has no
suo moto powers to do the same.

Application for grant of Leave to file appeal & Limitation

 The general rule provides that the application for leave to appeal shall be filed within 60 days of passing
of the orders.
 An appeal from an order of acquittal in a case instituted upon a complaint must be presented within 30
days.
 However, in cases of complaints by public servants the limitation can be extended to six months on
account of administrative exigencies.
 Upon proving a sufficient cause for delay the Court may condone the delay in filing the appeal.
 In such case the accused has a right to oppose the delay and the application.

SUMMARY DISPOSAL & HEARING OF APPEALS NOT DISMISSED SUMMARILY (SEC. 384 – 385)

Summary Disposal of Appeal – S.384

 Dismissing the appeal in a summary manner means dismissing it in an informal manner without delay of
formal proceedings after perusal of the petition and the judgment.
 When the case is prime facie arguable in such case the appeal shall not dismissed summarily.

Examination of Petition of Appeal & Judgment

 If the appellate court upon examination of the appeal petition and the judgment is of the opinion that
there is no ground to interfere with order/judgment it may dismiss it summarily.
 However, the accused must be given an opportunity of being heard.
 If substantial and arguable points are raised then the appeal shall not be dismissed summarily.
 The grounds for dismissal shall be recorded as well.

Calling for the Case Record

It is not mandatory for the appellate court to call for the case record before exercising powers u/s. 384.

Reasonable opportunity of being heard

 reasonable opportunity of being heard shall be given to the accused.

 What amounts reasonable opportunity depends on the facts and circumstances of the case.

Procedure regarding Jail Appeals

  The accused shall be brought before the Court in case he has filed the appeal while he is in jail. (S.383 –
Jail Appeal)
 However, if the Court deems fit that the appeal is completely false and frivolous then in such case it may
dismiss it without calling the accused before the Court.

Recording of Reasons

The Supreme Court has laid stress on the need to pass a reasoned order, as the dismissed order is open for
review of the higher courts, therefore if it is reasoned order, then the court reviewing the same would be able to
decipher the reasoning for the same.

No Dismissal for Non-Appearance of the Appellant

 It is to be noted that an appeal cannot be merely dismissed because of the non-appearance of the
appellant.
 The Court has to peruse the petition and the relevant case record and render it decision on the basis of
the same.
 The following guidelines have been passed by the Supreme Court in this regard:
 The Court cannot dismiss the appeal without examining the merits of the case.
 The court is not bound to adjourn the matter in absence of both the counsels.
 In case the appellant is in jail, then it is advisable to adjourn the matter as he cannot come to the Court
on his own.

No Withdrawal of the Appeal

 Once an appeal has been filed then the Court cannot allow the same to be withdrawn at the instance of
the party.
 It is the duty of the Court to decide the matter regardless of the fact whether the appellant wants to
follow it up or not.

Procedure when the appeal is not dismissed summarily – S.385

 Notice of Motion.
 Furnish a copy of grounds of appeal.
 Call for the record of case – Mandatory.
 No additional grounds after filing of the appeal.
 Production of the accused.

Powers of the Appellant Court in disposing of Appeals (S.386)

Two Essential Conditions/Duties

Once the appellant Court receives the appeal it is bound to carry out the following two duties:

 Peruse the Record of the Case – In order to enable the Court to adjudicate upon the correctness or
otherwise of the order or judgment appealed against not only with reference to the judgment but with
reference to the records which will be basis on which the judgment is founded.
  Hearing of Parties – The appellant, public prosecutor, shall be given an opportunity of being heard. A
notice to the parties shall be given specifying the date of hearing.

No interference needed – Summarily dismissed

In case the appeal is dismissed after fulfilling the above mentioned conditions the Appellant Court will not
interfere with the decision of the Court.

Appeal from Order of Acquittal

 The Court Appellant Court can uphold the order or reverse the acquittal into that of conviction.
 However before doing so the following principle shall be followed:
 The entire evidence shall be considered;
 The views of the trial judge shall be considered;
 The statements of witnesses shall be considered;
 The accused shall be given benefit of doubt;
 The appellant court must pass reasoned order.
 The appellant court may order further enquiry.

Appeal from order of conviction

 The general provisions regarding appeal from an order of acquittal shall apply to the appeal from an
order of conviction.
 The Appellant has the following powers:
 Acquit the accused;
 Uphold the order of conviction;
 Alter the sentence.
 A retrial can be ordered in exceptional circumstances only.
 The accused can be convicted for different offence which arises of the same facts and circumstances.
For e.g., 302 converted to 304.

Appeal for enhancement of Sentence

 In case of appeal for enhancement of sentence, the Court cannot inflict a greater sentence than what has
been ordered by the trial judge.
 There can be two scenarios in an appeal for enhancement of sentence:
 Sufficient punishment has been imposed;
 Inadequate punishment has been imposed.
 Powers of the Court:
 Reverse the finding and acquit the accused;
 Alter the findings;
 Alter the nature of sentence;
 Order retrial.

Power to pass consequential or incidental orders

  To ensure adequate punishment for all offences the appellant court along with the main order may pass
additional order.
 For example, along with conviction for S.304-A, the Court convict the accused for S.279 as well.
 Such order has to be consequential or incidental to the primary order.

No Dismissal in default

 Once the case is admitted, the Court has to pass a reasoned order before disposing it.
 It cannot dismiss the appeal in default.

ANCILLARY/MISCELLANEOUS PROVISIONS

Petition in appeal – s.382

The appeal shall be accompanied by a written petition and the judgment of the Court.

The several accused can file a joint appeal under one petition.

The petition shall mention the grounds of appeal.

The appeal presented to jail authorities is a jail appeal by the accused in jail custody.

Power to obtain further evidence – S.391

The appellant has no right to tender additional evidence at the appellant stage.

However, the court may order to obtain further evidence in case of an exigency.

Such obtaining of further evidence shall not cause prejudice to the accused.

Opinion of Third Judge, when the Bench is equally divided – S.392

The appeal is to be heard by the division bench of the High Court.

In case the division bench is equally divided, then the matter is to be heard by a third judge.

The opinion of the third judge shall be final.

Order of the High Court to be certified to the Trial Court – S.388

The High Court shall cause the order of the appeal to be certified to the trial court against whose order/judgment
the Court.

This provision helps in informing the trial court about the decision of the case in appeal.

Finality of Judgments & Orders of Appeal – S.393

The appellant court including the High Court cannot review its own judgment passed in an appeal.

The law does not provide for any appeal against the decision of the appellant court except an appeal against the
order of sentence u/s. 377 or u/s. 378.
S.394 – Abatement of Appeals.
An appeal u/s. 377 or 378 shall abate on the death of the accused.

However, an appeal against a conviction shall not abate if the appellant dies during the pendency of the appeal.

The nexus behind the same is that the family of the accused would be discharged from the stain of conviction on
their family member.

REFERENCE AND REVISION

Meaning of Reference under Criminal Procedure Code: – The reference is simply an application made by the
trial court to the High Court for the interpretation (explanation) of a matter relating to an Act, Legislation, and
Regulation. Reference can be defined as the terms to consult a various information from the trial Court which is
to make an application for the explanation of the Legislation, Act or regulation pertaining to the case. Reference
power is vested with the Court.

High Court empowers the reference power where the cases are transferred by the Subordinate Courts. Reference
can be done to the High Court as per the Section 395, for which the case is pending and it has involved in any
question pertaining to any of the Act or Regulation or Ordinance or any Provision, which is necessary to
determine to dispose a case.

Section 395 of Criminal Procedure Code

A reference arises when a case is before a trial court and such a case includes a question relating to the validity
of any regulation, ordinance or act or any provision of the act, which is necessary for the determination of a
criminal case. Such an act, regulation or ordinance may be inoperative or invalid but the Higher Court like
Supreme Court or High Court has not declared it.

As such, the lower court or trial court shall refer to the High Court for its cause or opinion. Such opinions or
reasons may form the basis of the court‟s decision. In such cases, the accused may be sent to the jail or released
on the bail, as there is pending of revert of opinion from the higher court.

Section 396 of Criminal Procedure Code: – Disposal of case according to the decision of the
High Court
When the question has been so referred, the High court shall pass such an order that it thinks fit and also can
send a copy of such an order to the lower court which shall dispose off the case comfortably to the said order.
The high court may also direct the cost of such reference which has to be paid.

What is revision under criminal procedure code?

Meaning of Revision under Criminal Procedure Code: – A revision or modification is a rule that is to correct or
change a decision already made. Both revision and appeal are under the review procedures of Criminal
Procedure Code. Superior Courts have the power to suspend or execute the sentence. That is, a Court‟s decision
can be modified by Sessions court or higher or Supreme Court. The main objective of both sides is to modify,
change, correct the decision already made by the trial court. The Revision power can be exercised by Superior
Court.
Usually the High Court has power to re-examine the case which has been dealt by the lower courts; this power
is not like appeal; High Court can determine whether to examine a case or not. The purpose of a revision is to
re-assure the legal procedures which were exercised by the lower court is without any errors while delivering
the verdict. Revision in Higher Court falls under Revisional Jurisdiction.

Section 362 of the Criminal Procedure Code

Provides that no court has the authority to review or change its final judgment or order or decision, which is
signed. The only exception is to correct clerical, arithmetic or grammatical errors. Therefore, the power to
review may vest in the superior court but the power to revise rests with the lower court. The power of review,
reference and revision cannot be exercised in the case in which the appeal is pending in the High Court.

Revision is defined under Chapter XXX, Sections (397–402) of the Criminal Procedure Code

Section 397: – The court has the power to call for the record of the proceedings of its court or any inferior
courts.

Section 398: – Upon examining the record of proceedings, the judge has the right to order an inquiry into the
decision of a case.

Sections (399 – 400): – The Sessions Judge has the power to revise any decision and may call additional
Sessions Judges to revise the decision.

Section 401: – The High Court has the power to modify cases before it or before the lower or inferior courts.

Section 402: – The High Court is also empowered to transfer or withdraw the revision cases.