In this period of CoViD-19 Pandemic, while pondering upon The Code Of
and having attended webinars of experts, the present article
is emphasized on striking the balance between Justice Delayed Is Justice
Denied V. Justice Hurried Is Justice Buried
thereupon revisiting the forgotten path of
Although the provisions in Cr.P.C. already provide ways and means for fair and
speedy trial, but the non-compliance and skipping of some important provisions
are causing delay in the trial. Sessions trial, warrant trial, Summons trial,
summary trial are the types of trial.
Basically, strict compliance of sec 309 Cr.P.C. as envisaged needs to be observed in true spirit- and the day to day
trial be conducted facilitating continued evidence recording, arguments followed
by the Judgment, all in continuity within a precise period wherein the facts are
afresh in the minds of judge necessary for fair and speedy adjudication of the
Graver the offence, More is the responsibility of conducting fair trial casted upon the Trial Court. Thus, as per Cr.P C the stages in Sessions triable
cases differs from the other trials on the following aspects which seems to have
lost sight of. Section 226 in The Code Of Criminal Procedure, 1973 226. Opening
case for prosecution.
When the accused appears or is brought before the Court in
pursuance of a commitment of the case under section 209, the prosecutor shall
open his case by describing the charge brought against the accused and stating
by what evidence he proposes to prove the guilt of the accused. In every matter,
Strict compliance of this provision by the prosecutor would certainly help the
over burdened court to get the overview /gist of the case and stating by what
evidence he proposes to prove the guilt of the accused. The court and the
accused would be in position to know by what evidence and witnesses the case of
the prosecution rests.
And this would help in proceeding with the trial in a
precise and speedy and fair manner and thus eliminating repeation of evidence
causing wastage of precious time and efforts.
Section 227 in The Code Of
Criminal Procedure, 1973 227. Discharge:
If, upon consideration of the record of
the case and the documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his reasons for so doing.
Hearing the submissions of the accused and the prosecution is very much
important and helpful for the court in framing of the charges.
Consideration of records illustrating a case of discharge,should judiciously be
looked into, thus curtailing baseless long trial.
Sec 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
Sec 233. Entering upon defence:
- Where the accused is not acquitted under section 232 he shall be called
upon to enter on his defence and adduce any evidence he may have in support
- If the accused puts in any written statement, the Judge shall file it
within the record.
- If the accused applies for the issue of any process for compelling the
attendance of any witness or the production of any document or thing, the
Judge shall issue such process unless he considers, for reasons to be
recorded, that such application should be refused on the ground that it is
made for the purpose of vexation or delay or for defeating the ends of
Sec 234. Arguments:
When the examination of the witnesses (if any) for the defence
is complete, the prosecutor shall sum up his case and the accused or his pleader
shall be entitled to reply: Provided that where any point of law is raised by
the accused or his pleader, the prosecution may, with the permission of the
Judge, make his submissions with regard to such point of law.
Though there are many authorities on the point that compliance of Sec 232 is not
an empty formality, many of the Sessions trial seem to skip this section. The
legislature in its wisdom has thoughtfully enacted sec 232 and 233 distinctly,
but due to the improper procedure followed by many of the judges by asking the
accused whether he intends to enter upon evidence (sec 233) in continuation to
examination of accused under sec 313 without hearing the prosecution and the
defense on the point and without considering the records that there is no
evidence, the judge in a routine manner proceeds with sec 233 without any
application of mind to record an order relating the acquittal, this indirectly
amounts to unfairness and putting the accused in dilemma whether it is necessary
for him to act under sec 233 thereupon causing further unnecessary delay in
conclusion of the trial.
Relevant observations made by Hon’ble Bombay High Court in Hanif Banomiya
Shikalkar vs The State Of Maharashtra
on 24 January, 1980 At para 22.
In Kumar Naik v. State of Karnataka
, (1976 Cri LJ 925), the single Judge
of the Karnataka High Court observed (see HN pt. A):
Under Section 232 a Sessions Judge has to decide whether there is evidence to
show commission of offence, but at that stage he should not consider what value
should be attached to such evidence. If he finds that there is no evidence then
he has power to acquit the accused. It is necessary for the Sessions Judge to
look into the prosecution evidence adduced before him and the material brought
out in the examination of the accused and then decide whether there is any
evidence or not.
It appears that in that case, after the evidence of the prosecution was led, the
defence contended after the examination of the accused that the accused were
entitled to be acquitted under Section 232 of the new Code. The learned
Additional Sessions Judge rejected the contention of the defence and called upon
the accused to enter on their evidence.
That order was challenged in the
Criminal Petition before the High Court. The petition was allowed and the order
of the learned Additional Sessions Judge calling upon the petitioners to enter
on their defence was set aside and the learned trial Judge was directed to
consider the contention of the defence that the accused were entitled to be
acquittal under Section 232 of the Code.
It would appear from the report that in
spite of the contention of the defence that the accused were entitled to
acquittal under Section 232 of the Code of Criminal Procedure, the learned
Additional Sessions Judge, without considering that contention called upon the
accused to enter on their defence. 23.
In Queen Empress v. Vajiram,
16 Bom 414) it was held that the words no evidencein the 2nd and 3rd clauses
of Section 289 of the Code of Criminal Procedure (Act X of 1882) must not be
read as meaning no satisfactory, trustworthy or conclusive evidence
is evidence, the trial must go on to its close, when in trials by jury, the
jury, and in other trials, the judge after considering the opinion of the
assessors have to find on the facts. It is only in the absence of any evidence
as to the commission of the offence by the accused that the Court can record an
acquittal without allowing the trial to go on, or obtaining the opinion of the
assessors, or that the Court can direct the jury, without going into the defence,
to return a verdict of not guilty.
It was thus in substance held that if there is
evidence, the trial must go on to its close; the words no evidence
must not be
read as meaning no satisfactory, trustworthy or conclusive evidence.
In Shiddappa Shidalingappa v. State of Karnataka
, (ILR (1975) Kant 1622), it
was observed that:
If the court after further consideration of the evidence on
record was of the view that it was not a case for acquittal as laid down in
Section 232, Cr.P.C. (new) it was the duty of the Court to call upon the accused
to enter on his defence as required under Section 233, Cr.P.C. (new). 30.
the object of Section 232 of the Criminal Procedure Code (new) is to expedite
the conclusion of the Sessions trial and, at the same time, to avoid unnecessary
harassment to the accused by calling upon him to adduce evidence or to avoid the
waste of public time when there is no evidence at all.
The accused will have to
be acquitted under Section 232 of the Code if there is no evidence at all. If
there is some evidence, no order of acquittal can be recorded. The court is not
toembark upon the question at that stage whether the evidence is sufficient or
is reliable. If, however, the Court finds that there is no evidence at all, the
order of acquittal had to follow.
Such an order would be subject to appeal. The
learned Judge passing such an order may have to give some reasons as to why he
came to the conclusion that there was no evidence at all as his order of
acquittal would-be ordinarily subject to appeal.
However, if there is no
acquittal, ordinarily a small order on theorder sheet or somewhere in the
proceedings indicating that that was not a case of 'no evidence atall' and that
the accused has not been acquitted and that he is called upon to enter on his
defence would be sufficient.
An unnecessarily long order, as happened to be made
in Arun's case
(1978 CriLJ 1168) (Bom) (supra) would cause an apprehension in
the mind of the accused that the learned Judge has already made up his mind as to
the guilt of the accused.
It is clear from the wording of Section 232 that the
question whether the accused wants to lead evidence in defence would not
arisewhen the trial is at the stage of Section 232 of the Criminal Procedure
Code. It would be necessary toput that question to the accused when the trial
enters the stage of section 233.
The Full Bench of Kerala High Court in K.Moidu
vs State Of Kerala
on 26 June, 2009 has also observed:
At para -14. A
comparative study of Secs.289 and 290 of the old Code on the one side and
Secs.232 to 234 of the new Code on the other clearly reveals that the statutory
purpose and object are the same. An accused should not be compelled to undergo
the trauma of a continued criminal trial if he does not deserve to stand the
same. In a case where there is no evidence whatsoever against him he should not
be obliged to enter on his defence.
He deserves to be relieved of the trauma of
the criminal prosecution at the earliest if there is no evidence against him. At
the stage of framing charge underSec.227/228, detailed consideration is, of
course, not there. At that stage evidence is not there and only the statements
made at the stage of investigation are there before court. The court can only
contemplate and anticipate the probable evidence. But after the prosecution
evidence is adduced if there is no evidence whatsoever, the accused must be
relieved forthwith of his obligation to continue to face the trial. This
evidently is the statutory objective, scheme and purpose under the provisions of
the old Code as well as the new Code. At para 16.
Under the old Code as well as
under the present Code there is an obligation on the court to direc the accused
to enter on defence. Though under the old Code there is a specific obligation on
the part of the court to ascertain whether the accused wants to adduce any
defence evidence under Sec.289(1), such an obligation to ask that question
appears to have been dispensed with under Secs.232to 234.
Both under the old
Code and under the present Code the obligation to direct the accused to enter on defence after recording a finding that it is not a case where there is no
evidence at all against the accused remains. Under the old Code even when the
accused had stated that he wants to adduce defence evidence, the court is
obliged to direct the accused again to enter on his defence.
The legislature in
its wisdom appears to have felt that it is unnecessary to ascertain from the
accused whether he has any defence evidence to be adduced before the point
(i.e., whether there is no evidence adduced by the prosecution) is considered.
The legislature appears to have further felt that after a decision in favour of
the prosecution is taken on that issue, it is sufficient to call upon the
accused to enter on his defence and adduce defence evidence.
appears to have felt that it is not necessary to specifically ask a question to
the accused whether he wants to adduce evidence as insisted under Sec.289 (1) of
the old Code. This to our mind is the only change brought about by the
rephrasing endeavour undertaken by the legislature. 24.
We find similar
contentions of inadequacy in the record and the proceedings by the Sessions
Court in many cases and we therefore feel it apposite that it must be reiterated
beyond doubt that Sessions Courts have to follow the prescribed procedures and
make record of having followed such procedure. In the order sheets maintained
from the stage of Sec.232 Cr.P.C., a Sessions Court must show the following
steps clearly to satisfy the procedure prescribed:
- That the prosecution evidence was closed under Sec.231 Cr.P.C. and
hearing was held under Sec.232 Cr.P.C.
- That the mind of the court was applied under Sec.232 Cr.P.C. and a
decision was taken on the question whether it is a case where there is no
evidence at all against the accused. If there is no evidence at all, a
detailed and considered order of acquittal must be passed. If not, the fact
that the case is not one in which there is no evidence at all must be
recorded. In that event, no detailed order need be written.
- If the court decides to proceed further, the accused must be called upon
to enter on his defence and adduce evidence with the assistance of the court wherever
necessary under Sec.233 Cr.P.C. to procure the presence of the witnesses.
- Whether the accused has adduced evidence or not must be recorded. If the
accused has not adduced evidence, it must be recorded that the accused
and/or his counsel stated that they want to adduce no defence evidence. For
this purpose, by way of abundant caution the statement of the accused can be
recorded and his signature obtained as done under Sec.289(1) of the old
- Only thereafter the court should proceed to consider the question of
acquittal/conviction under Sec.234 Cr.P.C. At para 25.
We make it clear that every Sessions Court is bound
to ensure that the above requirements are scrupulously followed and record to
that effect is made in the order sheet maintained by them. Last but not the
least, considering that amid the CoViD-19 Pandemic, the Directions for release
of undertrials/prisoners due to overcrowding of the Jails.
It is respectfully
opinion that in deserving cases section 360 Cr.P.C. and provisions of Probation
of Offenders Act must be encouraged subject to due considerations in sound
grounds/ reasoning’s mitigating and aggravating conditions,so as to strike a
balance between the habitual hardcore criminals and the accidental ( due to
circumstances)criminals having no antecedents.
Thus, the incarcerating the accused prisons for long period is contrary to the
basic principle of Law that the accused being presumed to be innocent till
proven guilty and thus avoiding unnecessary compensation claims against the
hardship faced by the accused for a long period, especially in cases wherein the
accused gets a clear cut acquittal due to their being no evidence (iota of
evidence) with prosecution against accused causing him irreparable loss for no
mistake on his part.
(The views expressed are based on Law and personal experience of more than 12
years in practice. This article in no way to be taken in the spirit so as to
hurt the notions of the experts in the justice delivering system.)
Written By: Adv.Nilesh Jayaprakash Rathi
Deputy Chief Defense Counsel,
Legal Aid,Nashik Maharashtra