Procedure for trial in criminal cases

Procedure for trial in Criminal Cases

Procedure for trial in Criminal Cases are governed by the Code of Criminal Procedure 1973 and the Evidence Act 1872. These two laws safeguard the procedure of collection of evidence, examination of witnesses, interrogation of accused, arrests, bail, the process of a criminal trial, method of conviction, and the rights of the accused for a fair trial in a criminal proceeding by police and courts. Indian Penal Code along with other statutory laws is applicable to all offenses while the Indian Evidence Act is tendered in trial for the production of the evidence in trial and deals with the judicial presumption of expert and scientific evidence.   

It is also important to note in a criminal proceeding the onus of proof is upon the Prosecutrix (State) to prove the case against the accused, and until and unless the allegation against the accused is proved beyond a reasonable doubt, the accused is presumed to be innocent. However, in exceptional cases of terrorism and crime against women, the onus of proof has been put on the accused person, who claims to be not guilty.  The nature of the trial depends upon the gravity and seriousness of the offence.

Types of Criminal Trials

• Warrant Trial where the punishment is 7 years or more
• Summon Trial where the punishment is for a maximum period of 2 years
• Summary Trial where the punishment is for a maximum period of 6 months

Procedure to be followed in Warrant Trial: 

Two procedures are prescribed for a trial of warrant cases by a magistrate. 

• Police Case: Where a case is instituted on a police report under sections 238- 243 CrPC.
• Private Case: Where after examining the complaint and the report a case is instituted under sections 244- 247 CrPC and 248 – 250 and 275 CrPC

Procedure followed in Police Case:

1. A complaint is registered as FIR by the police
2. Arrest of the accused person
3. Accused is produced before the Magistrate within 24 hours of arrest
4. Accused Lawyer moves bail application under section 436 CrPC if the offence is bailable or under section 437 CrPC if the offence is non-bailable
5. The magistrate determines the bail application. The accused is either released on bail or sent to PC or JC 
6. Police investigate and submit the Chargesheet. If the offence is triable by Session Court then the magistrate will commit the case to Session Court

Procedure followed in Sessions Trial  (Police Case under sections 225 – 237 CrPC)

1. The Session Court will hear the matter before Framing of Charges. If the Court considers that there are no sufficient grounds for proceeding against the accused, he shall discharge the accused.
2. If the Court is of the opinion that there is ground for the presumption that the accused has committed the offence, the Court will frame the charges against the accused. At this stage, the Court will consider only the documents produced by the prosecution along with the Chargesheet.
3. After framing the Charge, the same shall be read over and explained to the accused. The accused shall be asked as to whether he pleads guilty of the offence charged or whether he claims to be tried for the charge. 
4. If the Session Court is of the opinion that the offence is not triable by the Court of Session then he shall frame a charge against the accused and transfer the case for trial to the Chief Judicial Magistrate who shall try the case as if it were a warrant case instituted by a police report.
5. If the accused pleads guilty the Court shall record the plea and at its discretion convict the accused
6. If the accused pleads not guilty, the trial begins and the Court shall call upon the prosecution to adduce evidence in support of its case.
7. Trial – Court will issue summons to the witnesses of the prosecution for trial
8. Examination-in-Chief – examination of witnesses by Addl Public Prosecutor
9. Cross-Examination – examination by the counsel of the accused
10. After the conclusion of the prosecution evidence, the accused is examined under section 313 (1) (b) CrPC with regard to the incriminating circumstances appearing against him in the evidence for the prosecution
11. After examination of the accused the Court will post the case for hearing under section 232 CrPC. If after hearing the prosecution and the defence counsel, the Court considers that there is no evidence to indicate that the accused committed the offence, the Court will record an order of acquittal under section 232 CrPC
12. After hearing under section 232 CrPC if the accused is not acquitted, then the accused shall be called upon to enter his defence and adduce any evidence upon which he relies to prove his innocence
13. Trial – Court will issue summons to the witnesses of the accused for trial
14. Examination-in-Chief – examination of witnesses by the counsel of the accused
15. Cross-Examination – examination by the Addl Public Prosecutor
16. After the conclusion of the defence evidence, the case has to be taken for arguments
17. After hearing the arguments, the Court will pass the judgement in accordance with section 235 CrPC and shall pass a sentence in accordance with the law.

Procedure followed when the case is instituted by the private complaint: Sections 190 – 210 CrPC

1. After filing the complaint case under section 190, 200 CrPC, the Magistrate will examine the complainant and its witnesses on the same day or any other day to ascertain whether any offence is made out against the accused person
2. After examination of the complainant, the Magistrate will direct the police personnel to investigate under section 202 CrPC and submit its report on whether or not there are sufficient grounds to proceed further
3. After receiving the report from the investigating officer, the Magistrate may come to a conclusion about whether the complaint is genuine or whether the prosecution has sufficient evidence against the accused named. If the court does not find any sufficient material through which he can convict the accused then the Magistrate will dismiss the complaint under section 203 CrPC and record its reason for doing so. If the court thinks that the prosecution has a genuine case and there is sufficient material and evidence with the prosecution to charge the accused then the Magistrate may issue a warrant or a summon depending on the facts and circumstances.
   • Session Trial: Police Case under sections 225 – 237 CrPC
   • Warrant Cases: 
   • Summon Cases 

Procedure followed in Summon Trial: Sections 251 -259 CrPC

• Pre-trial process such as filing of an FIR and investigation is the same, as stated above
• The accused person is informed about the charges orally. No need for framing of charges in writing.
• Plea of guilty: if the accused does not plead guilty then the process of the trial starts.
• Prosecution and defence evidence: The prosecution and defence are asked to present evidence in support of their cases. The accused gets only one opportunity to cross-examine the prosecution witnesses. The magistrate records the statement of the accused.
• After the conclusion of the evidence of the prosecution and defence, the case has to be taken for arguments
• If the Magistrate after considering the evidence, finds the accused not guilty, he shall record an order of acquittal. 
• If the Magistrate after considering the evidence, finds the accused guilty, he shall pass an order of sentence in accordance with the law.

A summon case can be converted into a warrant case under section 259 CrPC.

Procedure followed in Summary Trial: Sections 260- 265 and 326 CrPC

• The procedure followed in a summary trial is similar to summon case
• Imprisonment of up to 3 months can be passed
• In the judgement of a summary trial, the judge should record the substance of the evidence and a brief statement of the finding of the court with reasons.

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Case Law:

Petro David v. State of Kerala:CRL.MC NO.3884 OF 2023 – Kerala High Court – Magistrate Exceeded Jurisdiction By Vacating Order For Cross-Examination Merely Because Accused’s Counsel Couldn’t Appear

Pravinsinh Nrupatsinh Chauhan v. State Of Gujarat: SLP (Crl.) No. 4693 of 2023 – SC reiterated that Magistrate Can Direct Collection Of Voice Samples Of Accused

Captain Manjit Singh Virdi (Retd.) v. Hussain Mohammed Shattaf & Ors.: Criminal Appeal No. 1399 of 2023 – SC – Accused Can Be Discharged Only If No Case Is Made Out Even After Presuming Entire Prosecution Evidence To Be True