DR.

ABSARUL HASAN KIDWAI

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE - 1
B.A.LL.B. (HONS) VIIIth SEMESTER

UNIT-V:

CRIMINAL TRIALS

A. Framing of Charge (SS. 211-224)

One basic requirement of a fair trial in criminal jurisprudence is to give precise

information to the accused as to the accusation against him. This is vitally important to
the accused in the preparation of his defence. In all trials under the Criminal Procedure
Code the accused is informed of the accusation in the beginning itself. In case of serious
offences the Code requires that the accusations are to be formulated and reduced to
writing with great precision & clarity. This "charge" is then to be read and explained
to the accused person1.
Charge serves the purpose of notice or intimation to the accused, drawn up according
to specific language of law, giving clear and unambiguous or precise notice of the
nature of accusation that the accused is called upon to meet in the course of trial.

Relevant Legal Provisions of Criminal Procedure Code (CrPC)

 Section 211 & Section 212 specifies about Contents of Charge and mentioning of
particulars as to time and place of the alleged offence in the charge.
This rule is to an extent relaxed in a case of criminal breach of trust or of dishonest
misappropriation. When the accused is charged with criminal breach of trust or
dishonest misappropriation of money or other movable property, it shall be sufficient
to specify the gross sum or, as the case may be, describe the movable property in respect
of which the offence is alleged to have been committed, and the dates between which
the offence is alleged to have been committed, without specifying particular items or
exact dates. It is obvious that the relaxation given by the above rule is applicable only
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in case of criminal breach of trust or dishonest misappropriation and not in case of any
other offence like theft, falsification of accounts under Section 477-A of the IPC,
cheating etc.
This rule is intended to cover cases of persons who showed a deficiency in the accounts
with which they were entrusted but who could not be shown to have misappropriated
this or that specific sum.
 Section 213 talks about; when manner of committing offence must be stated
When the nature of the case is such that the particulars mentioned in sections 211 and
212 do not give the accused sufficient notice of the matter with which he is charged,
the charge shall also contain such particulars of the manner is which the alleged offence
was committed as will be sufficient for that purpose.
 Section 214 gives a rule for interpreting the words used in the charge
It provides that in every charge words used in describing an offence shall be deemed to
have been used in the sense attached to them respectively by the law under which such
offence is punishable.

Basic Procedure regarding charge & its trial

The initial requirement of a fair trial in criminal cases is a precise statement of the
accusation. The code seeks to secure this requirement, first, by laying down in Sections
211 to 214 of CrPC as to what a charge should contain; next, stipulating in Section 218 of
CrPC that for every distinct offence there should be a separate charge; and lastly, by laying
down in the same section that each charge should be tried separately, so that what is sought
to be achieved by the first two rules is not nullified by a joinder of numerous & unconnected
charges.

Section 218 reads as Separate charges for distinct offences

The object of section 218 is to save the accused from being embarrassed in his defence if
distinct offences are lumped together in one charge or in separate charges & are tried
together. Another reason is that the mind of the court might be prejudiced against the
prisoner if he were tried in one trial upon different charges resting on different evidence. It
might be difficult for the court trying him on one of the charges not to be influenced by the
evidence against him on the other charges. The strict observance of Section 218(1) may
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lead to multiplicity of trials, therefore exceptions, in suitable cases, have been provided by
Section 218(2) in Sections 219, 220, 221 & 223. The effects of non-compliance with
provisions regarding charge would be considered later. It would however be useful to
allude to the decision of the Supreme Court in context of non-compliance with Section 218.
In every case, in which a departure from the requirements of Section 218 has occurred, the
question before the courts is, whether the omission to frame the required charge has or has
not in fact occasioned a failure of justice by prejudicing the accused in his defence, &
whether he has thus been deprived of a fair trial.

Power of Court to order separate trial in cases where joinder of charges or of

offenders is permissible

The basic rule regarding charge is that for every distinct offence there shall be a separate
charge & for every such charge there shall be separate trial. The only exceptions recognized
are contained in Sections 219, 220, 221 & 223 of CrPC. Therefore, separate trial is the rule
and the joint trial is an exception. The sections containing the exceptions are only enabling
provisions. A court has got the discretion to order a separate trial even though the case is
covered by one of the exceptions enabling a joint trial7. A joint trial of a very large number
of charges is very much to be deprecated even though it is not prohibited by law. A separate
trial is always desirable whenever there is risk of prejudice to the accused in a joint trial.
The Supreme Court has taken the view that it is the option of the court whether to resort to
Section 219, 220 & 223 of the Code or whether to act as laid down in Section 218 and that
the accused has no right to claim joinder of charges or of offenders.

Applicability of provisions relating to joinder of charges to cases where no charge is

framed

As will be seen later, in all summons cases though it is necessary to state to the accused
the particulars of the offence of which he is charged, it is not necessary to frame a formal
charge. In such cases a question may arise whether the provisions relating to joinder of
charges & of offenders are applicable to such proceedings. The Code does not make any
express provision in this regard. However, the courts have taken the view that these
provisions are equally applicable in summons cases also.
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Amendment/Alteration of charge

According to Section 216 (1) of CrPC, any court may alter or add to any charge at any time
before judgment is pronounced. The section invests a comprehensive power to remedy the
defects in the framing or non-framing of a charge, whether discovered at the initial stage
of the trial or at any subsequent stage prior to the judgment.

The code gives ample power to the courts to alter or amend a charge whether by the trial
court or by the Appellate Court provided that the accused has not to face a charge for a new
offence or is not prejudiced either by keeping him in the dark about that charge or in not
giving a full opportunity of meeting it & putting forward any defence open to him, on the
charge finally preferred against him. The court has a very wide power to alter the charge;
however, the court is to act judiciously and to exercise the discretion wisely. It should not
alter the charge to the prejudice of the accused person.

Withdrawal of remaining charges on conviction on one of several charges

Section 224 of CrPC states that when a charge containing more heads than one is framed
against the same person, and when a conviction has been had on one or more of them, the
complainant, or the officer conducting the prosecution, may, with the consent, of the Court,
withdraw the remaining charge or charges, or the Court of its own accord may stay the
inquiry 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 conviction be set aside, in which case
the said Court (subject to the order of the Court setting aside the conviction) may proceed
with the inquiry into, or trial of, the charge or charges so withdrawn. The section is
applicable where the accused in convicted of one of several distinct charges before the
other charges are tried. It is necessary that the several charges made must be in respect of
distinct offences and the section will not apply where the several charges are made under
Sections 220(3), 220(4), or Section 221.
DR. ABSARUL HASAN KIDWAI

Effects of omission to frame, or absence of, or error in charge

Under Section 215 & 464 of CrPC object is to prevent failure of justice where there has
been only technical breach of rules not going to the root of the case as such. The two
sections read together lay down that whatever the irregularity in framing of a charge, it is
not fatal unless there is prejudiced caused to the accused. The object of the section is to
prevent failure of justice where there is some breach of the rules in the formulation of the
charge. However, the section also makes it clear that insignificant irregularities in stating
the particulars of the offence will not affect the trial or its outcome. In order to decide
whether the error or omission has resulted in a failure of justice the court should have the
regards to the manner in which the accused conducted his defence & to the nature of the
objection.

The object of the charge is to give an accused notice of the matter he is charged with. If the
necessary information is conveyed to him and no prejudice is caused to him because of the
charges, the accused cannot succeed by merely showing that the charges framed were
defective. Nor could a conviction recorded on charged under wrong provisions be reversed
if the accused was informed of the details of the offences committed and thus no prejudice
was caused to him. The mere omission to frame a charge or a mere defect in the charge is
no ground for setting aside a conviction. Procedural laws are designed to subserve the ends
of justice & not to frustrate them by mere technicalities.

Conclusion

In a criminal trial the charge is the foundation of the accusation & every care must be taken
to see that it is not only properly framed but evidence is only tampered with respect to
matters put in the charge & not the other matters.

In framing a charge during a criminal trial, instituted upon a police report, the court is
required to confine its attention to documents referred to under Section 173.
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The judge needs to be only convinced that there is a prime facie case, where there is no
necessity to adduce reasons for framing charges. However, the magistrate is required to
write an order showing reasons if he decides to discharge the accused.

The sections dealing with charge do not mention who is to frame the charge. The provisions
dealing with different types of trials however provide that it is always for the court to frame
the charge. The court may alter/ add to any charge at any time before the judgment is
pronounced.

But if a person has been charged, the court cannot drop it. He has either to be convicted or
acquitted. All this has an important bearing on the administration of justice.
DR. ABSARUL HASAN KIDWAI

B. Types of Criminal Trials

(a) Summon Trial (SS. 250-259)

Explanation of the particulars of the offence

Section 251 provides that it is not mandatory to frame charges but the section does
not dispense with the explanation of the particulars of the offence when accused is
brought or appear before the Court. This is done to make the accused cognizant for
the allegations made against him. If in case unable to convey the particulars than
this will not vitiate the trial and it will not lead to the prejudice with the accused as
this irregularity is remediable under section 465 of the code. Under section 251
courts shall ask the accused whether the accused pleads guilty, and section 252 and
253 needs to comply for conviction on such plea of guilty.

Conviction on plea of guilty

Section 252 and 253 provides conviction on the plea of guilty. Section 252 provides
plea of guilty in general and section 253 provides plea of guilty in case of the petty
cases. In case accused plead guilty, the answer is affirmative than in accordance
with law court will record the plea in the exact words of the accused on the basis of
which accused can be convicted on the Court’s discretion. If not affirmative than
the court needs to proceed further with Section 254. If the accused plead guilty,
and the charges against him do not constitute any offence than mere plea will not
amount to the conviction of the accused. As the magistrate has the discretion to
convict on the plea or not, if on plea the accused is convicted than the magistrate
shall proceed according to section 360 otherwise hear the accused on the question
of sentence and sentence him according to law. If the plea of guilty is not accepted
than magistrate shall proceed according to section 254.

Procedure if the accused not convicted on plea

Section 254 provides about both prosecution and defence case if the accused not
convicted on plea under section 252 and 253.
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Prosecution case

The magistrate will hear the accused and take all the evidence. In the hearing, the
prosecution will be given chance to open its case by putting facts and circumstances
which constitute the case and by revealing the evidence which he relied upon to
prove the case. The magistrate on the application of the prosecution, serve summon
to any witness to attend and to produce any document or thing. The magistrate will
prepare the memorandum of the evidence according to section 274. Same as other
trials in summon cases also the magistrate will comply with section 279 i.e.,
interpretation of evidence to the accused and 280 i.e., recording of the demeanor of
the witnesses.

Hearing of the defence: – (Defence Case)

After the prosecution evidence under 254 and examination of defence under section
313, in the continuance of this, the court will proceed with the defence hearing
under section 254(1). In the hearing of the defence means accused will be asked for
accused say against the prosecution evidence. Failure of hearing of the accused in
any case will amount to the fundamental error in the criminal trial and it cannot be
cured under section 465. Evidence produced by the accused will be recorded in the
same manner as in case of prosecution under section 274, 279, 280. After the
submission of the evidence of the defence, he will be allowed to submit his
arguments under section 314.

Acquittal or conviction

After recording the evidence under 254 the magistrate will acquit the accused if he
finds the accused not guilty. If the accused is guilty than Magistrate shall proceed
according to Section 360 or 325 otherwise, sentence him according to the law.

Non-appearance or the death of the complainant

According to section 256 on the date fixed for the appearance of the accused
nonexistence of the complainant will empower the court to acquit the accused
unless the court has the reason to adjourn the case to some other day. Section 256(1)
DR. ABSARUL HASAN KIDWAI

is also applicable in case of the death of the complainant↓. In case the representative
of the dead complainant does not appear for 15 days where the defendant appeared,
the defendant can be acquitted held by the Supreme Court.

Discharge in case of Summon cases

In summon cases instituted otherwise than the complaint Section 258 authorize the
first class Magistrate, with the prior sanction of the Chief Judicial Magistrate, to
stop the proceeding at any stage. Therefore if he stops the proceeding ‘after record
of the evidence’ than it is the pronouncement of a judgment of acquittal, and in case
stops ‘before the record of the evidence’ it is released which has the effect of
discharge.

It is controversial that in summon case instituted on complaint Magistrate do not

have any power of dropping of the case even if he has no sufficient ground to
proceed against the accused. This is because if the Magistrate does so then he will
recall his own order. Supreme Court said that the issue of process is interim order
of the Magistrate, not the judgment so it can be recalled. No provision is required
to empower the magistrate to drop the case in such circumstances. In summon cases
on complaint Magistrate cannot discharge, review and recall the order of the issue
of the process. There is no dropping of the case, the trial court has to conclude the
trial. In summon cases the Magistrate of the trial court has no power to drop the
proceeding in the absence of such provision in the law. A person can approach the
High Court under section 482 of Cr.P.C in such circumstances. There is no
provision of discharge in summon cases instituted on complaint accused will be
either convicted or acquitted.

Conclusion

The trial of the summon cases is less formal than other trial procedure just for the
speedy remedy. Therefore, the Section 258 which does not empower the Magistrate
to drop the case, even in the absence of sufficient ground is somehow prejudice to
the accused. Court’s opinion in the K.M. Matthew case was that the Magistrate has
the implied power to drop the case if the allegation against accused does not prove
DR. ABSARUL HASAN KIDWAI

the commission of any crime. In various judicial pronouncements, it has dissented.

In Arvind Kejriwal case Supreme Court held law does not specifically empower
Magistrate in regard to dropping of the case under 258 and passed the case to the
high court to deal with it under section 482. But the point needs to be considered
that the High court also again need to look into the case to find out whether there is
any sufficient ground to proceed against the accused, all this will impede the main
objective of the summon case i.e. speedy trial. Though this matter was addressed
before the apex court in various cases, it must be scrutinized again to keep the fair
trial and the right of the accused out of jeopardy in such circumstances.

(b) Summary Trial (SS. 260-265)

Summary trial is the name given to trials where cases are disposed of speedily and
the procedure are simplified and the recording of such trials are done summarily.
In a summary trial only, small offences are tried and complicated cases are reserved
for summons or warrant trials. The main purpose of summary trials is to
expeditiously dispose of cases as the caseload on the judiciary is immense and
continues to grow.

Summary trials also seek to uphold the legal maxim, “Justice delayed is justice
denied.” Summary trials allow for the people to procure justice even for small
offences that may otherwise have taken years to complete legal proceedings.

Legal provisions for Summary trials are provided for under Sections 260-265 of the
Code of Criminal Procedure.

Types of offences that can be tried in a Summary Trial

Sections 261 and 262 provide the type of cases that can be heard by first class and
second class Magistrates respectively. In case of any Chief Magistrate or
Metropolitan Magistrate or any first class Magistrate the following cases may be
tried:
DR. ABSARUL HASAN KIDWAI

1. Offences which cannot be punished with the death penalty, life imprisonment or
imprisonment exceeding 2 years.

2. Theft provided in sections 37, 380 and 381 of the IPC as long as the value of
item stolen does not exceed 200 rupees.

3. Receiving or retaining any stolen property under 200 rupees given in Section 411
of the Indian Penal Code.

4. Assisting in the concealment of any stolen property under 200 rupees given in
Section 414 of IPC.

5. Lurking, trespass breaking in of houses under Section 454 of IPC.

6. Criminal intimidation and insult with intent to provoke under Sections 506 and
504 respectively.

7. Abetment of any of the above offences will also be tried in a summary trial.

In case of Magistrates of Second class the following offence can be tried if the High
Court empowers him to do so;

1. Offences which can be punished with imprisonment of less than 6 months with
or without a fine.

2. Any offences that can be punished with a fine.

3. Abetment or attempt to commit the above offences.

What procedure is followed in a Summary Trial?

Section 262 of Code of Criminal Procedure provides that a summary trial will
follow the same procedure as a summons trial which is much less formal. The
procedure for a summary trial can thus be given as;

Registration of FIR and investigation

In the first step of any criminal procedure, an FIR is filed after which the claims
made in the FIR are investigated upon and evidence collected. At the end of the
investigation, a police report is filed.
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Before the Magistrate

The accused is brought or appears before a Magistrate and the particulars of the
offences must be clearly conveyed to the accused. In case of summary and
summons trials, charges are not framed by writing the charges down.

Plea

The accused may either plead guilty or not guilty.

Conviction in case of guilty plea

The Magistrate records the statement of the accused and the accused may be
convicted at the discretion of the Magistrate.

When the accused does not appear before the Magistrate to plead guilty, then he is
to send 1000 rupees along with a letter containing his guilty plea.

In the case of Purushottam Sabra v. State of Orissa, 1992 Cri LJ 1417 (Ori) the
court held that the accused cannot simply be convicted by the Magistrate if the
accused pleads guilty if the report given by the prosecution does not provide any
offences allegedly made by the accused under any statute.

Plea of not guilty

In this scenario, the proceedings continue with the trial. The Magistrate hears both
the prosecution and the accused. He also examines all witnesses to the case.

Judgement

The accused may either be acquitted or he may be convicted. If he is acquitted, the

Magistrate will record an order of acquittal. Conversely, the accused may be
convicted and sentenced. In the case of D.M. Seth v. Ganeshnarayan R. Podar,
1993 Cri LJ 1899(Bom) the court held that if there seems to be no reasonable
grounds for making an accusation, the Magistrate may order the accused to be
compensated by the accuser after the Magistrates calls upon the accuser to show
cause for such an accusation.
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Sentence in case of Summary Trials

In summary trials, a convict cannot be sentenced to imprisonment for a period of

time longer than 3 months.

Judgement

The judgement of the Magistrate in cases where the accused pleads not guilty will
only include the following according to Section 264 of CrPC:

1. The substance of the evidences provided.

2. Briefly statement of the reasons why such a finding has been reached by the
Magistrate.

What is to be recorded in Summary Trials?

In every summary the following particulars should be recorded according to Section

263 of CrPC:

1. Serial number of case

2. The date on which the offence was committed.

3. The date on which the complaint was made.

4. The name of parents.

5. The name and address of the accused.

6. The offence and the value of the property that was stolen.

7. The plea of the accused and if he has been examined then such examination as

well.

8. The findings of the Magistrate.

9. The sentence or the final order of the Magistrate.

10. The date on which the legal proceedings come to an end.

DR. ABSARUL HASAN KIDWAI

Difference between Summary Trials and other trials

A summary trial deals with cases where the offences are of minor and simple nature
whereas more completed and serious cases are tried in summons or warrant trials.

In a summary trial, the statement of the witnesses are briefly and generally
compiled and only the substance of their depositions are recorded but in other trials,
the depositions of each of the witnesses are carefully recorded in its entirety.

In a summary trial the Magistrate does not have to frame formal charges against the
accused but in other trials, a formal charge sheet has to be drawn up.

The entirety of the evidence need not be recorded in case of summary trials and
only a brief outline is necessary but in case of other trials, it is necessary to record
all of the evidence completely.

(c) Session Trial (SS. 225-238)

This is the stage where mainly trials coupled with evidence, arguments, the cross-
examination (basically all the fun part of being an advocate) takes place. Chapter-
XVIII, Sec.225-238 of the Code of Criminal Procedure, 1973 substantially deals
with the procedure for trial before a Sessions Court.

INITIAL STAGE OF TRIAL

All the process can be explained simply by an example. Imagine a courtroom with
prosecution [being a public prosecutor (Sec. 225)] on one and defense (represented
by one the accused chooses or the court appoints) on the other side. It is the duty of
the court to provide accused with all the necessary copies of documents for their
perusal.

Since prosecution is the one accusing, (when the case in pursuance to Sec. 209 is
brought), he is the one who will be initiating the case proceeding with the pieces of
evidence to prove the guilt of accused while describing the charges against him
(Sec. 226). This is mere to determine whether the trial is to be affected or not. One
DR. ABSARUL HASAN KIDWAI

thing to note here is that prosecution is not under any duty to make the accused be
present and hence his absence will not lead to his acquittal. It is the duty of the court
to secure it.

If after this, the judge considers that there is no case against the accused by
prosecution, he will discharge the accused vide Sec. 227 of CrPC (this clause
merely ensures that a person is not harassed with a prolonged, unnecessary trial)
giving reasons (to aid the superior court in case of appeal in determining the
correctness and sufficiency of reasons for acquittal). The Hon`ble Supreme Court
in the case of Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 699], has
enumerated 4 principles to be kept in mind when the accused is to be discharged
u/s 227, the gist of which is a prima facie case should be made against the accused
the test of which will vary from case to case

But if the presumption of the commission of offense arises then there are 2
scenarios vide Sec. 228:

1. If that Court of Session can exclusively try the matter at hand, charges in writing
by the court shall be framed [228(1)(b)]

2. If the Court of Session cannot exclusively hold the trial, meaning thereby
another court has the jurisdiction to try this case at hand, then session court shall
transfer the case to the appropriate CJM or JM of First Class [228(1)(a)]

U/s 228, another important point to note is that if charges are framed as above given,
they are to be explained to the accused in the language and manner he will
understand (though a violation of it will not vitiate the further proceedings.) Then,
the accused will be asked if he pleads guilty to the offenses he is charged with or
not [(228(2))].

The Stage at Sec.227 and 228 plus the presumption so as to lead to framing of
charge(s) as mentioned above can be the result of even a strong suspicion since
court possesses a very wide discretion to determine sufficiency of grounds available
i.e. whether they are so as to require the framing of charge(s).
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Sec.228 (1) and Sec.227 ensure that no frivolous accusation is made or that no trial
takes place without any material. Sec.227 and 228 are inter-related since the
principles that are to be followed u/s 227 to discharge an accused can also be made
applicable to the framing of charges. In case of the framing of charges, reasons for
doing so need not be given. They are to be explained though, still if not, this won`t
necessarily vitiate the trial.

THE SECOND STAGE OF TRIAL

U/s 229, an accused can plead guilty of an offense either himself or if allowed to
appear by a pleader, then through him, in unambiguous terms. He can be convicted
based on it except in cases where the offense in question is punishable by death or
life imprisonment where there is a form of reluctance to convict based on such plea.
If a conviction is done, then any right of appeal against such conviction stands
curtailed. For conviction on the basis of such plea, it is held by the Hon`ble Supreme
Court to be essential that the accused be confronted with the substance of
allegations against him.

If no such pleading or conviction u/s 229 is made/done, the court vide Sec.230 shall
fix a date for examination of witnesses or may compel the attendance of any witness
or production of any documents the prosecution may need.

U/s 231, the court is to take all evidence produced and allow any cross-examination
as mentioned in its clause (2).

THIRD STAGE OF TRIAL

U/s 232, the court may acquit the accused if no evidence/legal proof indicating his
involvement in the said offense appears/presented.

If no acquittal, then u/s 233, accused presents his case, may in writing or otherwise,
can produce evidence, witness just like the prosecution. However, this can be
denied if it appears that they are being presented only to cause inordinate delay etc.
Hence, non-compliance with this section does not necessarily vitiate the
proceeding. Sec. 315 considers an accused to be a competent witness as well.
DR. ABSARUL HASAN KIDWAI

Sec. 234 and 314 both deal with who shall give the closing arguments. Being a
specific provision, 234 prevails if any conflict arises hence if Sec. 314 applies,
defense gives the closing argument but if 234 does, the prosecution sums up,
defense replies after him.

After conviction, u/s 235, the accused shall be heard with regard to the sentence
etc.(as given from Sec. 353-365) and then will be sentenced unless Sec. 360 of
CrPC applies. This gives the accused a right of pre-sentence hearing which will at
the most have a bearing on the choice of sentence but has to be followed in letter
and spirit otherwise it is a violation of natural justice.

U/s 236, in case of a previous convict, the court may call for evidence on that matter
and record finding. This helps in case the accused is liable to enhanced punishment.

Lastly, Sec. 237 deals with procedure in cases of defamation of high dignitaries and
public servants to prevent vindication of the conduct of such officials. However,
provision for compensation to the accused to prevent false accusation is made as
well.

CONCLUSION

In this way, we went through almost all forms of complexities that are involved in
case of a trial before a Sessions Court. In the beginning, it is decided whether there
is any cause for trial or not. Next, it is seen, if there are sufficient grounds to convict
through cross-examination, pieces of evidence etc. and lastly the accused is
acquitted or sentenced as the case may be.

(d) Warrant Trial on Police Report or Otherwise (SS. 239-249)

Warrant case means a case relating to an offence punishable with death

imprisonment for life or imprisonment for a term exceeding two years.
Trial of warrant case begins either by the filing of FIR in a police station by filing
a complaint before a Magistrate. The division of warrant case and summon case in
only for the purpose of a procedure for trial.
DR. ABSARUL HASAN KIDWAI

Trail of warrant case is also divided into two types:

1. Cases instituted on a police report
2. Cases instituted otherwise than on police report
Compliance with Section 207
When a warrant case instituted on a police report and after that the accused appears
or is brought before a Magistrate at the commencement of the trial, the Magistrate
shall satisfy himself that he has complied with the provisions of section 207.
When Accused shall be Discharged
After the compliance with the sec 238, the next step is the discharging to the
accused. After considering the police report and the documents sent with it under
Section 173 and making such examination of the accused, and after giving the
prosecution and the accused an opportunity of being heard, the Magistrate considers
the charge against the accused to be groundless, he shall discharge the accused, and
record his reasons for so doing.
This section should be read with the framing of charge.
Framing of Charge
Framing of the charge is the duty of the court, that's why the court must consider
over the matter judiciously. After considering our matter, examination, hearing, if
any, the magistrate of opinion that there is a ground for presuming that accused has
committed an offence triable under this chapter, which such magistrate is
competent to try and which, in the opinion of, could be adequately punished by
him, he shall frame in writing a charge against the accused. and after that, the charge
shall then be read and explained to the accused and he shall be asked whether he
pleads guilty of the offence charged or claims to be tried.
Trial court under which section frames charge after generally giving a brief survey
of the evidence which is sought to be adduced against the accused. This section also
authorises the magistrate to examine the accused if he thinks it necessary.
After the framing of charge, if the accused pleads guilty, the magistrate shall record
the plea and may, in his discretion, convict him thereon.
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Prosecution for Evidence under Section 242

After the framing of charge if accused refused to plead or not plead, or claims to be
tried or Magistrate does not Convict the accused the Magistrate shall fix a date for
the examination of witnesses.
In a criminal trial, the state presents its case first. The burden of proving the accused
guilty, including all the elements of the alleged offence beyond all reasonable
doubt, is on the prosecution. The prosecution can call witnesses and other evidence
in order to prove the offence. The process of proving guilty by 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.
Statement of Accused
Under section 313 of the Criminal Procedure Code accused has an opportunity to
be heard and explain the fact and circumstances of the case.
Defence Evidence
When the prosecution closes his case after the examine the witnesses the next stage
start that is evidence for defence. In this stage accused has an opportunity of cross
examination of witnesses who are examined by the prosecution in examination in
chief. Defence can produce both oral and documentary evidence. Here it is the duty
of the prosecution and to establish the case beyond all reasonable doubt.
Argument
After the closing of the evidence any party to a proceeding may produce a concise
oral argument, and may before he concludes the oral arguments, submit a
memorandum to the court setting forth concisely and under the distinct heading.
A copy of every such the memorandum shall be simultaneously furnished to the
opposite party. The court has also the power to interfere if the oral arguments are
not to the point, concise and relevant.
This section gives power to the parties to submit a memorandum of argument. The
memorandum must be submitted before the close of oral evidence.
DR. ABSARUL HASAN KIDWAI

Judgement
The trial ends either in conviction or acquittal of the accused. The conviction and
acquittal of the accused decided by the court with reasons is known as the judgment.
In case of the acquittal of the accused the prosecution is given time to appeal against
the order of the court, and in case of conviction both sides are invited to give
arguments on punishment which is to be awarded. This is usually done when the
decision is in conviction adverse punishment is life imprisonment or capital
punishment.
DR. ABSARUL HASAN KIDWAI

C) Security Proceedings (SS. 106-122)

Security, for the purpose of Chapter VIII, means collateral in the form of a bond to pay a specific
amount on breach of the condition of the bond. Chapter VIII of the Code of Criminal Procedure,
1973 deals with security proceedings conducted by the courts. It is not only the duty of the criminal
law to bring the offender to justice but to ensure that such offences are not repeated.
Keeping this in consideration, the lawmakers have inserted Sections 106 to 122 to empower the
courts to conduct security proceedings under the Code to prevent convicted offenders and habitual
offenders from reiterating such acts.
Security Proceedings
The code empowers the courts to conduct security proceedings for two purposes. For the ease of
understanding, the article is divided into two parts each dealing with one of the purposes for
exercising the power to foist security upon such persons.
Part I: Security for Peacekeeping
Security proceeding for keeping the peace “may be taken against a person under the following
circumstances”:
 On Conviction of an offence likely to cause a breach of the peace – This provision and
provisions hereinafter are to ensure the maintenance of public peace and tranquillity. The
Code bestows carte blanche powers to the Executive Magistrate for this purpose. Under
this provision, if a person is convicted of any offence, the nature of which is such that it
will disrupt public order and peace, the Magistrate may convict the person of such offence
and at the time of conviction, require the person to execute a bond prohibiting any
recidivism of the same offence within three years of his release from prison. For instance,
a person who has been a part of an unlawful assembly preparing to cause a riot in the
society is believed to be committing an offence that will disturb public order.
The important ingredients of the provision are:
Firstly, it applies to “offences under Chapter VIII of the Indian Penal Code including the offence
of assault, criminal force ad criminal intimidation”.
Secondly, the bond can be executed “with or without sureties” to take the guarantee in case there
is a violation of the conditions of the bond and the person escapes from justice.
Thirdly, the person must be “convicted by a court of competent jurisdiction” after a fair trial.
DR. ABSARUL HASAN KIDWAI

Fourthly, if the “conviction is set aside in an appeal or review or otherwise, the bond executed
shall be void”.
 In any other cases – Section 107 of Cr.P.C provides similar powers to require an offender
to execute a bond for maintenance of public serenity in any other cases where public order
disruption is likely and probable. The joint committee report on criminal law provided that
“in order to be effective, proceedings under the above section have to be taken
urgently” and since these procedures relate to “maintenance of peace and order in the
society, the powers have been vested upon the executive Magistrates”.
The objective of the provision is preventive in nature and not punitive. The section is designed “to
enable the Magistrate to take measures with a view to preventing the commission of offences
involving breach of peace or disturbance of public tranquillity”. In Rajendra Singh Pathania v.
State [(2011) 13 SCC 329]. The court observed that the object of the provisions is “to invoke it in
an emergent situation when prompt action is necessitated to deal with threatening apprehension of
breach of peace”.
The courts have been “very vigilant in dealing with the action of the execution in relation to these
provisions”. This was made categorical by the judgment of the Madhya Pradesh High Court
in Medha Patkar v. the State of M.P [2008 Cri. L.J 47 (MP)]., wherein the “court awarded
compensation to the accused as the government sent them to prison for failure of furnishing bond
in a case where no evidence had been brought on record to prove that there was an anticipation
of breach of peace”.
The Executive Magistrate is the head of the police force in a district who is accountable for
maintaining peace and tranquillity. Thus, “he has absolute and unqualified discretion to decide
whether or not it is imperative, for maintenance of peace, to institute proceedings under Section
107”. However, this discretion must be guided by reason and not a whim. To ensure the reasonable
exercise of power under this provision the sine qua non have been obtruded by the courts:
Firstly, the Magistrate should be of “the opinion that there is sufficient ground for proceeding
against the person informed against”.
Secondly, the Magistrate is “bound to record the reasons for forming such opinion before issuing
notice under Section 111”.
DR. ABSARUL HASAN KIDWAI

Part II: Security for Good Behaviour

Sections 108, 109 and 110 of the Code provide for taking security for good behaviour from
persons involved in any kind of act constituting an offence under the Indian Penal Code. The
provisions of these sections affect the liberty of a person and hence, is violative of Article 21 of
the Indian Constitution.
Therefore, the lawmakers considered it vital to vest the power upon Judicial Magistrate “to be
exercised in accordance with the procedure established by law”. However, the provision was
“amended by the Criminal Procedure (Amendment) Act, 1980 to transfer the power from the
Judicial Magistrate to the Executive Magistrates”.
Maintenance of law and order in the community is of prime importance under the Cr.P.C.
Therefore, to attain this objective, the code empowers the functionaries to obtain security from
different classes of persons. These are:
 Proceedings against persons disseminating seditious matters – Section 108 of the Code
empowers an Executive Magistrate to “order a person to execute a bond if such person is
known to be disseminating seditious matters or matters amounting to intimidation or
defamation of a judge”. The jurisdiction under this provision is “preventive and not
punitive”. The test under this section is “whether the person proceeded against has been
disseminating seditious matters or any other matter as mentioned above and whether the
court fears a possibility of recidivism”.
The second clause of the provision provides for “taking security for the dissemination of obscene
material”. In the first part, it is essential that the dissemination was done intentionally whereas, for
the second part, the intention is not a consideration. Any person who “makes, produces, publishes
or keeps for sale, imports, export conveys, sells, lets to hire, distributes, publicly exhibits or in any
other manner puts into circulation any obscene matter” shall be included under this section.
Moreover, the section does not only apply on the commission of offence but also on attempt and
abetment of the same offences.
 Proceedings against Suspected Persons – Section 109 of the Cr.P.C provides a
procedure to “check and control the persons who are likely to commit offences and it
cannot be denied that this cannot be done unless they are prevented from doing so by
resorting to provisions such as Section 109”. The provisions of Section 109 are so stringent
that it may be “made an engine of oppression unless care is taken by the Magistrates to
DR. ABSARUL HASAN KIDWAI

prevent its abuse. The object of the section is to enable the Magistrate to take action against
suspicious strangers lurking within their jurisdiction”.
While explaining the scope of the terms “conceal presence” under Section 109, the court in Abdul
Ghafoor v. Emperor [(1944) 45 Cri. L.J 219] held that “these words are sufficiently wide to cover
not only the concealment of bodily presence in a house or grove, etc. but also the concealment of
appearance by wearing a mask or covering the face or disguising in any other way”.
Now, in order to apply the provisions of Section 109, the courts have laid down two essential
conditions:
i. “The person must be taking precautions to conceal his presence, and
ii. The concealment must be with a view to committing a cognizable offence”.
 Security Proceedings against habitual offenders – Persons who “habitually commit
offences of anti-social traits” like food adulteration or customs or corruption, not only
deserve to be punished but certain action is required to be taken against such persons to
prevent recidivism on their part. The provision deals with offences which are anti-social in
nature, i.e. those directly affect the society at large. For instance, theft may be an offence
against the society but, however, it directly affects the one whose materials have been
stolen. On the other hand, food adulteration affects everyone in general.
In Emperor v. Vijaidatta Jha [AIR 1948 Nag 28] the court averred that “the object of the section
is to protect the public against hardened and habitual offenders”. The information received by the
police officer under this section “should not be vague and must indicate that person against whom
the information is given is by habit an offender”.
Therefore, in all these situations, the code entails that an Executive Magistrate is obliged to issue
a show-cause notice urging the person to state his reasons and explain why the Magistrate must
not require him to execute a bond to ensure peace and serenity in the society and if such person
fails to show cause or the Magistrate is not satisfied with his cause, he may order such person to
execute a bond with the condition of not repeating the offence.
DR. ABSARUL HASAN KIDWAI