This article is authored by Miran Ahmed who is a student of BBA.LLB(H) at Amity Law School, Kolkata.
Criminal cases can be divided into two types: Summons Case and Warrant Case. A summons case relates to an offence not being in a warrant case. Warrant cases are those that include offences punishable with death penalty, imprisonment for life or imprisonment exceeding more than two years. The criteria that differ a summons case from a warrant case is determined by the duration of punishment in any offence. The case of Public Prosecutor V. Hindustan Motors, Andhra Pradesh,1970, is a summons case as the convicted is sentenced to pay a fine of Rs. 50. The issue of summons or warrant, in any case, does not change the nature of the case, for instance, a warrant issued in a summons case does not make it a warrant case as observed in the case of Padam Nath V. Ahmad Dobi, 1969. A trial in a warrant case begins by either filing a First Information Report or FIR in a Police Station or filing it directly before the Magistrate.
Section 238 to 250 of the Criminal Procedure Code, 1973 (CrPC) deals with the trial of warrant cases by magistrates. Trial of warrant cases are of two types:
- By a police report- Section 173 of CrPC mentions a police report as a report forwarded by a police officer to the Magistrate. In this case, the accused appears or is brought before a magistrate at the commencement of trial. Section 173(2)(i) mentions that as soon as the police investigation is completed, the police station must forward it to the Magistrate empowered to take cognizance of the offence.
- By other than a police report- The complaint is filed directly with the Magistrate in this case.
The procedure of trial in warrant cases by magistrates in the following way:
- Compliance with Section 207;
- When accused shall be discharged;
- Framing of charge;
- Conviction on a plea of guilty;
- Evidence for Prosecution;
- Evidence for Defence Side;
- Evidence for Prosecution;
- When accused shall be discharged;
- Again Evidence for Defence;
- Acquittal or conviction;
- Absence of Complaint;
- Compensation for accusation without a reasonable cause.
The Magistrates’ Court forms the bedrock of the legal system in India and the process of trial of warrant cases conducted by magistrates. This is explained in the Criminal Procedure Code, 1973, which classifies warrant cases as those that involve offences punishable with death penalty, imprisonment for life and imprisonment exceeding more than two years. Warrant case proceedings can begin by filing an FIR in the police station. In this case, the police conduct an investigation and forward the report to the Magistrate. The Magistrate then furthers the proceedings under the procedure established by law and the offender is brought before the Magistrate or appears voluntarily. Or the complaint can be filed directly with the Magistrate to initiate the proceedings against an offender.
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.
Initial steps in the trial
The initial steps involve the filing of an FIR. Once the FIR is filed in the police station, an investigation is conducted to discover the facts and relevant details of the case. Once the investigation is completed, a charge-sheet is filed and the documents are forwarded by the police station to the Magistrate. The steps in warrant cases instituted on police report are:
- Supply of copy of police report to accused in compliance with Section 207. (Section 238)
- Discharge of accused on baseless charges. (Section 239)
- Framing of charges. (Section 240)
- Conviction on a guilty plea. (Section 241)
- Evidence for the prosecution. (Section 242)
- Evidence for defence. (Section 243)
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 vs Sitaram Dayaram Kachhi, 1957, the accused, Sitaram was acquitted under Section 239.
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.
In the case of Lt. Col. S.K. Kashyap V. The State Of Rajasthan, 1971, the accused files an appeal challenging the authority of the special judge appointed to hear the case. The appeal is failed and dismissed and the case proceedings are continued.
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.
Conviction on a guilty plea
The accused can plead guilty to cut short the procedure of law and reduce the punishment for his offence. The Magistrate records the guilty plea and convicts the accused on his discretion. (Section 241)
Evidence for prosecution
Section 242 of CrPC defines the procedure with regards to the gathering of evidence against the offender and recording the evidence after examination and cross-examination to acquit or convict an accused individual. In a criminal trial, the case of the state is presented first. The burden of proving the accused guilty is on the prosecution and the evidence must be beyond a reasonable doubt. The prosecution can summon witnesses and present other evidence in order to prove the offence and link it to the offender. This process of proving an accused individual guilty by examining witnesses is called examination in chief. The Magistrate has the power to summon any person as a witness and order him to produce any document. State vs Suwa, 1961 is a case where the orders of the Magistrate to acquit the accused were set aside and a retrial was ordered by sending the case to a District-Magistrate who sent them for a trial to a Magistrate other than the one that tried the case originally.
Steps in evidence presentation of prosecution
Fixing date for the examination of witnesses
Section 242(1) declares that once the charge is framed and read to the accused and he does not plead guilty and wishes to proceed with the trial, the Magistrate shall fix a date for the examination of witnesses.
Examination of witnesses
According to Section 242(2), the Magistrate, on the application of the prosecution, has the authority to issue summons to any witnesses and direct them to attend or produce any document or thing relevant to the case. The cross-examination by the defence is allowed by the Magistrate before some other witness has been examined. This is done to ensure that no perjury is committed and the prosecuting witness does not vilify the accused and gets him convicted on false information. And that the relevant information can be refuted by the defence or further explained in a defensive manner.
Presentation of evidence
The testimonies of witnesses once they are cross-examined by the defence are considered evidence. And other documents or relevant things are brought to the Magistrate to link the accused to the offence. The defence is informed of the evidence presented and may challenge the evidence as may be deemed necessary.
Record of the evidence
Section 242(3) declares that on the date fixed, the Magistrate shall proceed to take all pieces of evidence produced in support of the prosecution and record them based on their relevance to the case. The testimonies of witnesses and any evidence provided to prove the accused had committed the offence by the prosecution is recorded by the Magistrate. The Magistrate may 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 by the defence.
Evidence for the 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.
Steps in evidence presentation of defence
The defence shall have an opportunity to present witnesses to defend the accused. This may include an alibi or individuals that can point out that the accused was present elsewhere from where the offence was committed. The witnesses presented by the defence can be cross-examined by the prosecution and their testimonies challenged. The purpose of defence witness is to create a reasonable doubt to point out that the accused may not have been the exact individual that committed the offence. However, the prosecution can challenge the testimony of said witnesses and isolate the accused to prove beyond a reasonable doubt that the offence was committed by him.
Arguments submitted on behalf of defence
After the closing of evidence, the defence may produce an oral argument and submit a memorandum to the Court. A copy of this memorandum should be supplied to the prosecution. The court possesses the power to interfere if the oral arguments are not to the point and irrelevant to the case and made to waste the time of the court and delay the delivery of justice. The memorandum of argument must be submitted before the closing of oral delivery. Section 313(3) is a rule against self-incrimination and declares that the accused shall not render himself liable to punishment if he refuses to answer any question when examined by the prosecution, or gives false answers.
The Magistrate holds the authority to judge the evidence provided by the defence and its relevance. If any evidence or testimony is in his opinion irrelevant or lacks substance, it may be thrown out and not filed with the record and shall no longer be considered in the case. The relevance of the evidence and testimony can be challenged by the opposing party but only the Magistrate has the authority to decide whether it shall be filed with the record or thrown out of the case.
Cases instituted otherwise than on a police report
A warrant case instituted otherwise than on a police report begins when a complaint is filed directly with a magistrate. The accused is brought or appears before a magistrate. The Magistrate begins the proceedings of the case by initiating the hearing process and files all the evidence received with the record. Sections 244, 245, 246 and 247 of CrPC sets the procedure of a warrant case instituted otherwise than on a police report and brought directly to a magistrate by filing a complaint.
Initial steps in the trial
The initial steps involve filing a complaint with a magistrate. Once the complaint is filed in the Magistrate, the accused is brought before the Magistrate or appears voluntarily. A hearing is conducted to determine the facts of the case. The prosecution begins the steps to prove that the accused has committed the offence beyond a reasonable doubt. And the defence can take the necessary steps to challenge the accusations and prove that the accused did not commit the offence. The steps in warrant cases instituted otherwise than on a police report are:
- The preliminary hearing of the prosecution’s case.
- Discharge of accused if the accusation is baseless. (Section 245)
- Framing of charge. (Section 246)
- Explaining charge to the accused. (Section 246(2))
- Conviction on a guilty plea. (Section 246(3))
- Choice of the accused to recall prosecution’s witness. (Section 246(5))
- Evidence for Prosecution. (Section 244)
- Evidence for Defence. (Section 247)
The preliminary hearing of the prosecution case
This is the first step in the proceedings of the case after the accused is brought or appears before a magistrate. The Magistrate considers the accusations and determines if the accusations have any base and a case can be made out against the accused. If the Magistrate determines that no case has been made out as the accusations lack substance and are groundless than the case will be dismissed and the accused shall be discharged.
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.
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.
Evidence for prosecution
Section 244 states that in warrant cases instituted otherwise than a police report and filed directly with the Magistrate, the accused is presented before the Magistrate who begins the hearing process by summoning the witnesses named by the prosecution and taking all the pieces of evidence produced as such. All evidence must be taken into consideration as under Section 138 of the Indian Evidence Act and filed with the record by the Magistrate.
Steps in evidence presentation of prosecution.
The accused cannot be charged by the Magistrate until the prosecution names witnesses or presents evidence in relation to the case. All the important evidence is collected after the witnesses are examined and the Magistrate determines if there is enough substance to frame a charge against the accused. The case cannot proceed further until the prosecution names witnesses and evidence is collected, examined and recorded as can be seen in Gopala Krishnan V. State Of Kerala. The magistrate is not obligated to file summons for the presence of a witness, but it is the responsibility of the prosecuting party to file an application with the Magistrate to request the summons of witnesses who shall present themselves before the court on a specified date and time as seen in Parveen Dalpatrai Desai V. Gangavishindas Rijharam Bajaj.
The application is made to the Magistrate by the prosecution to summon any witnesses and the Magistrate issues the order to summon any witnesses or produce any document or thing in relation to the case as seen in Jethalal V. Khimji.
In the case of P.N. Bhattacharjee V. Shri Kamal Bhattacharjee, 1994, the Gauhati High Court observed that the complainant was making extra efforts to order a summons to the witnesses and it was the duty of the Magistrate to order a summon to all witnesses before giving the order of dismissal just because the witnesses do not turn up.
The Magistrate can also deny to examine witnesses whose names were not mentioned under the list provided by the prosecution initially by rejecting the application. However, a second application can be made to summon more witnesses other than the ones mentioned in the list and the Court is bound to issue summons to them as seen in Jamuna Rani vs S. Krishna Kumar, 1992.
Absence of complainant
Section 249 states that when the proceedings have been instituted upon complaint directly with the Magistrate, and the complainant is absent on the date and time of the proceedings set by the Magistrate; and the offence may be compoundable and non-cognizable, the Magistrate may at any time before the charges are framed against the accused, discharge him. It is the discretion of the Magistrate to discharge the accused or proceed with the case. But such a discharge is not considered judgement as observed in the case of Banta Singh V. Gurbux Singh, 1966. The accused cannot be discharged after the charges against him are framed despite the default of appearance by the complainant.
In course of trial, if the complainant dies, the Magistrate need not discharge the accused but rather continue the trial.
Examination of witnesses
The Magistrates examines the witnesses after summoning them to the Court. The law provides the accused to re-examine or cross-examine any witnesses produced by the prosecution after the charges against him are framed. However, this is not the same as an opportunity given for examination before the charges are framed. The witnesses are examined and the Magistrate collects testimonies and pieces of evidence and files them with the record based on their relevance to the case. The Magistrate may throw aside any baseless or irrelevant testimonies and pieces of evidence as he sees fit and orders the re-examination of any witness as seen necessary for the service of justice.
Record of evidence
All evidence brought before the court that holds relevance to the case and can link the accused to the offence committed beyond a reasonable doubt or any evidence which can get him acquitted is filed with the record by the Magistrate. Recorded evidence is secured away from parties that may be interested in tampering with them to gain the upper hand and prevent the application of justice.
Evidence for defence
The defence has the opportunity to present his side of the case and defend himself against the accusations of the prosecution, as mentioned under Section 247. A written statement may be put forwarded and the Magistrate shall record it. The accused can issue an application requesting the Magistrate to summon witnesses or the production of any document or thing with relevance to the case. And the Magistrate must issue such summons unless he feels they are baseless, irrelevant and done for the purpose of vexation and delay of the delivery of justice. The reasons for rejection of application must be recorded in writing by the Magistrate. Any witness that has already been cross-examined by the accused or had the opportunity to be cross-examined by the accused cannot be summoned again unless the Magistrate deems it necessary for the delivery of justice.
Conclusion of the trial
The trial can only end in either a conviction or acquittal of the accused. The decision of the Court with regards to the conviction or acquittal of an accused is known as judgement. If the accused is acquitted of the offence, the prosecution is given time and an opportunity to appeal the Court against the order of acquittal. If the accused is convicted after observing the evidence and judged to be guilty of committing the offence, both sides are given an opportunity to give arguments on punishment to be served. This can be often observed in conviction cases of life imprisonment or death penalty.
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).
Compensation for accusation without a reasonable cause
Section 250 discusses the procedure related to cases where a case is instituted on complaint to a magistrate or police officer and the Magistrate finds that there is no ground against the accused person. The accused shall be discharged immediately. The complainant shall be summoned to justify his complaint and explain why he should not pay compensation to the person against whom the complaint was made. The Magistrate shall then order to pay a particular amount of compensation not exceeding the amount of fine to the accused if he is satisfied that the reasons for filing the complaint are baseless and lacks ground.
If there is more than one accused person, the Magistrate shall order the complainant to pay compensation to all the accused. This can be observed in the case of Valli Mitha V. Unknown, 1919.
In the case of Abdur Rahim V. Syed Abu Mahomed Barkat Ali Shah, 1927, it was declared by the Court that the amount of compensation will only be paid to the accused and not his relatives or any other person.
Failure in payment of compensation amount by the complainant will result in simple imprisonment not exceeding 30 days. If the person is already in imprisonment then Section 68 and 69 of the Indian Penal Code will be applied. And a person who has been directed to pay compensation amount will be exempted from any criminal or civil liability in respect of the complaint.
Section 250(6) states that a complainant or informant ordered by a Magistrate of second class to pay compensation exceeding one hundred rupees under Sub-section (2) can be appealed as seen in the case of A.M. Pereira vs D.P. Demello, 1924.
The compensation amount shall not be paid before the period of appeal lapses or after the decision of the appeal is given by the Court. And in cases where there is no relation to appeal, the amount will be paid after one month from the date the order was passed.
The Court decides if there is ground against the accusations of the complainant and the proceedings are initiated under the Magistrate’s discretion. Furthermore, we discussed that the evidence and witnesses presented by both the prosecution and defence are essential in determining the facts of the case and declare judgement. The judgement is taken by the Magistrate after both sides have presented their arguments. And if the accused is acquitted of the charges, the case is dismissed but the prosecution can file an appeal to challenge the decision of the court. But if the accused is convicted, both sides are allowed to present their arguments as to the extent of punishment which shall be inflicted on the convict. But the final decision as to the punishment lies with the Magistrate.
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