Trial before a Court of Session

As a general rule Court of Session does not directly take cognizance of the offence [See Section 213]. A case is committed for trial to the Court of Session after taking cognizance by a competent Magistrate under Section 232. Also in circumstances mentioned in Section 361 to 363 Magistrate may commit a case for trial to the Court of Session. Procedure for trial in Court of Sessions has been enumerated from Section 248 to 260. By virtue of Section 520 the procedure for trial in Court of Sessions is applicable for trial of the offences in High Court.

Section 248 provides that in every trial before a Court of Session, prosecution shall be conducted by a Public Prosecutor. Section 249 provides that when the accused appears or is brought before the Court, in pursuance of a commitment of the case under Section 232, or under any other law for the time being in force the prosecution shall open the case by describing the charge against the accused and stating by what evidence he proposes to prove the guilt to the accused. Public Prosecutor gives the brief summary of evidence and the particulars of the witness. However, it is not necessary to give the full details of the evidence.

Discharge Application 

Section 250(1) provides that the accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under Section 232. Section 250(2) provides that if there is no sufficient ground on record for proceeding against the accused, after considering the record of the case and the documents submitted therewith, the judge shall discharge the accused and record reasons. Supreme Court in Union of India v. Prafulla Kumar, 1979 CrLJ 154 (SC) held that while considering the question of framing of charges the court has the power to shift and weigh the evidence for limited purpose for finding out whether or not prima facie case against the accused has been made out. Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be justified in framing a charge and proceeding with the trial. If two views are equally possible and the judge is satisfied the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within the right to discharge the accused.

In P. Vijayan v. State of Kerala (2010) 2 CrLJ 1427 (SC) Supreme Court held that the expression 'not sufficient ground for proceeding against the accused' clearly indicate that the judge is not a mere post office to frame the charge at the behest of prosecution. The judge has to exercise his judicial mind to the facts of the case.

Supreme Court in M.E. Shivalingamurthy v. CBI, (2020) 2 SCC 768 held that while deciding a discharge application only materials brought on record by the prosecution have to be considered. The court must without making a roving inquiry into the pros and cons, consider the broad probabilities and the total effect of the materials before it.

Framing of charge

Section 251(1) provides that if the judge is of opinion that, there is ground for presuming that the accused has committed an offence:

(a) He may frame a charge and transfer the case for trial to the Chief Judicial Magistrate or any other judicial Magistrate of first class (if the offence is not exclusively triable by the Court of Session);

(b) If the case is exclusively triable by the Court of Session - he shall frame the charge in writing within a period of sixty days from the date of first hearing on charge.

The charge shall be read and explained to the accused shall be asked whether he pleads guilty or claims to be tried. It is not obligatory on the part of the court to give reasons for framing of charges.

Supreme Court in Rakmini Narvekar v. Vijaya, (2009) 1 CrLJ 822 (SC) held that accused is not entitled to produce any evidence in support of the submissions made at the time of framing of charge. Only materials indicated under Section 227 (Now 250 of BNSS) can be considered by the court at the time of framing of charge.

Plea of guilt: Section 251(2) provides that the charge shall be read and explained to the accused, present either physically or through audio-video electronic means, and the accused shall be asked whether he pleads guilty or claims to be tried.

There is a change in this provision. In CrPC, no time limit was given for framing of charge in case if the Judge is of opinion that the offence is exclusively triable by Court of Session but Section 251(1)(b) of BNSS, 2023 provides that if offence is exclusively triable by the Court of Session, the judge frame the charge in writing within a period of sixty days from the date of first hearing on charge.

Section 251(2) of BNSS, 2023 provides that charge sheet shall be read and explained to accused when accused is present before court either physically or through audio-video electronic means. There was no such specific mode prescribed in CrPC.

Conviction on plea of guilt

Section 252 provides that if accused pleads guilty, judge shall record the plea and may convict him. However, it is not mandatory to pass an order of conviction even if the accused pleads guilty. If the accused is convicted on plea of guilty then the judge shall, unless he proceeds under Section 401 of the Sanhita, hear the accused on question of sentence and then pass sentence in accordance with law.

Fixing date and evidence for prosecution

Section 253 provides that if the accused does not plead guilty the judge shall fix a date for:-

a) Examination of witnesses; and may

b) Issue process for compelling the attendance of witnesses and production of things or documents.

Section 254 provides that on the date fixed under Section 253 the judge shall proceed to take all evidence produced in the support of the prosecution. Proviso to Section 254(1) provides that evidence of a witness under this sub-section may be recorded by audio-video electronic means. Section 254(2) provides that the deposition of evidence of any public servant may be taken through audio-video electronic means. Section 254(3) provides that judge may defer the cross-examination of a witness or may recall a witness for cross-examination.

The evidence of each witness shall, as his examination proceeds, be taken down in writing either by the judge himself or by his dictation in open court or, under his direction and superintendence, by an office of the court appointed by him in this behalf (See Section 311).

There is a new introduction in this provision. A new Proviso has been added to Section 254( 1) which provides that evidence of a witness under this sub-section may be recorded by audio-video electronic means. There was no such provision in CrPC. A new sub-section has also been added to Section 254 of BNSS, 2023. Section 254 provides that the deposition of evidence of any public servant may be taken through audio-video  electronic means. There was no such provision in CrPC.

Statement under Section 351 of BNSS 

After the evidence of the prosecution have been examined Section 351(1)(b) requires the court to question the accused person generally on the case for the purpose of enabling the accused to personally explain any circumstances appearing in evidence against him.

Acquittal

Section 255 provides that after taking evidences and arguments of prosecution and examination of witness, the judge considers:-

a. There is no evidence that accused has committed the offence,

b. The judge shall record the order of acquittal.

The term 'no evidence' means such evidence, which even if it were perfectly true, would not amount to legal proof of the offence charged against the accused.

Defence evidence and Arguments

Section 256 provides that if the accused is not acquitted under Section 255 he shall be called upon to enter on his defence and adduce evidence he may have in support of defence. The accused himself is a competent witness and can give evidence on oath in disproof of the charges made against him. (Secc Section 353).

Section 257 provides that when the examination of witness for the defence is complete the prosecutor shall sum up his case and his accused or his pleader is entitled to reply.

Conviction or Acquittal and Hearing on question of sentence

Section 258(1) provides that after hearing arguments and points of law (if any), the judge shall give a judgement in the case, as soon as possible, within a period of thirty days from the date of completion of arguments, which may be extended to a period of forty-five days for reasons to be recorded in writing. Section 258(2) provides that if the accused is convicted, the judge shall hear the accused on the question of sentence & then pass a sentence.

There is change in this provision. In CrPC , no time limit was given for the judgement to be passed by court of Session but Section 258(1) provides that the judge shall give a judgement in the case, as soon as possible, within a period of thirty days from the date of completion of arguments, which may be extended to a period of forty-five days for reasons to be recorded in writing.

In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 Supreme Court held that requirement on hearing the accused on the question of sentence is intended to satisfy the rule of natural justice. This is also important because the courts are required to make a wide ranging choice on the question of sentence.

In Malkiat Singh v. State of Punjab, (1991) 4 SCC 341 Supreme Court held that hearing on sentence is not confined to oral hearing only. It is intended to afford an opportunity to the prosecution as well as the accused to place before the court facts and materials relating to various factors on the question of sentence to show aggravating and mitigating circumstances. Sufficient time should be given to the accused to hear on the question of sentence.

In B.A. Umesh v. High Court of Karnataka, (2017) 4 SCC 124 Supreme Court held that the convict has a right to be heard on the question of sentence but there is no mandate to fix a separate date for hearing on sentence. It depends on facts and circumstances of the case whether a separate date is required for hearing on sentence or not.

In Dattatraya v. State of Maharashtra, (2020) 14 SCC 290 Supreme Court held that if the Court intends to inflict death sentence then such suggestion should be made to the accused at the stage of Section 235(2) (Now 258(2) of BNSS) so as to enable the accused to make effective representation against death sentence by placing mitigating circumstances before the court.

Failure of court to give opportunity to hear in question of sentence: In Shatrughan Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596 Supreme Court held that it cannot be laid down that the failure on the part of the court to hear him on the question of sentence must necessarily entail a remand to that court in order to afford the accused an opportunity to be heard on the question of sentence. If, for some reasons, the court omits to hear the accused on the question of sentence and the accused makes a grievance of it in the higher court, it would be open to that court to remedy the breach by giving a hearing to that question of sentence.

Previous Conviction

Section 259 provides that after convicting the accused under Section 252 or 258 the judge may take evidence of previous conviction. Before conviction under Section 252 or 258 on charge of previous conviction shall be read out by the judge, neither shall the accused be asked to plead thereto, nor shall it be referred by the prosecution.

Procedure in cases instituted under Section 222(2) [Section 260]

Section 260(1) provides that a court of Session taking cognizance under Section 222(2) shall try the case in accordance with the procedure for the trial of warrant case instituted otherwise that on police report. Every trial under this section shall be held in camera if either party so desires or if the court thinks fit to do so. If the court discharge or acquits all or any of the accused it may order compensation not exceeding Rs. 5000 to be paid to the accused. Such compensation is recoverable as a fine, imposed by a Magistrate. Compensation order cannot be made against the President, Vice-President, the Governor or the Administrator of a Union territory. Compensation order is appealable in the High Court.

There is a change in this provision. The quantum of punishment in Section 237(4) of CrPC was Rs. 1000 which has been increased to Rs. 5000 in Section 260(4) of BNSS, 2023