The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-IV]

COMMENCEMENT OF PROCEEDINGS – Chapter XVI

Sections 204 to 210 Cr.P.C.

Q.19 When can it be said that “proceedings” have been commenced before a Magistrate?

Ans. “Proceedings”, can be said to have commenced before a Magistrate when the Magistrate, after taking cognizance of the offence, issues process to the accused under Section 204 Cr.P.C. Even in a case where the Magistrate has taken cognizance of the offence, he can issue process to the accused only if there is “sufficient ground for proceeding” and a list of the prosecution witnesses has been filed. In a case instituted on a complaint where the Magistrate issues process, such process shall be accompanied by a copy of such complaint.

“Commencement of proceedings” should not be misunderstood as commencement of “trial”. The provisions in Chapter XVI Cr.P.C. are only pre-trial steps. The trial will actually start only when the accused “pleads not guilty” to the “substance of accusation” or to the “charge” framed against him.

Q.20 When can it be said that “proceedings” have been commenced before a Court of Session?

Ans. In the case of a Court of Session also after taking cognizance of the offence upon a committal, the Court of Session will have to consider whether process has to be issued to the accused. One distinction in the case of a Court of Session is that the said Court can not only take cognizance of an offence against the accused covered by the committal order, but can also take cognizance of an offence as against a person whose name was in the FIR but does not figure in the “charge-sheet” or in the “committal order” and whose complicity is revealed by the prosecution records. The Court of Session can then issue process to such person also. (Vide para 26 of Dharam Pal v. State of Haryana AIR 2013 SC 3018 = (2014) 3 SCC 306 – 5 Judges – Altamas Kabir – CJI.)

Section 205 enables the Magistrate to dispense with the personal attendance of the accused and permit him to appear by his counsel. (This Section has to be read along with Section 317 Cr.P.C.)

Section 206 provides for special summons in cases of “petty offence”.

Section 207 obliges the Magistrate to furnish to the accused copies of the records enumerated in the Section in a case instituted on a “police report”.

Section 208 obliges the Magistrate to furnish to the accused copies of the records enumerated in the Section in a case instituted on a “complaint”.

Section 209 obliges the Magistrate to commit the case to a Court of Session in cases where the offence is punishable exclusively by a Court of Session.

Section 210 lays down the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence.

STATE ESPOUSES THE GRIEVANCE OF THE VICTIM

Q.21 Is it correct to say that the State is espousing the cause of the victim of a crime ?

Ans. Yes. The case of the victim of a crime is espoused by the State represented by the Assistant Public Prosecutor (appointed under Section 25 Cr.P.C.) before a Magistrate. If it is the Court of Session, the case of the victim will be conducted by the District Public Prosecutor (appointed under Section 24 (4) Cr.P.C.) This is because offences are treated as crimes committed against the society at large.

Q.22 Is there any difference in the “degree” or “standard of proof” on the “prosecution” and on the “accused”?

Ans. Yes. The burden of proof on the prosecution is ordinarily heavier than that on the accused. The prosecution will have to prove its case beyond reasonable doubt. But, the accused need only prove his case by preponderance of probabilities which is the yardstick in a civil case. (Vide Balwan Singh v. State of Haryana (2005) 11 SCC 245 – B.P. Singh, Arun Kumar – JJ.)

Accused is presumed to be innocent till the charges against him are proved beyond reasonable doubt. Mere suspicion, however strong it may be, cannot take the place of legal proof. (Vide Asbish Batham v. State of M. P. AIR 2002 SC 3206 = (2002) 7 SCC 317 – Doraiswamy Raju, Shivraj V. Patil – JJ.)

Q.23 What is the “presumption of innocence” and “benefit of doubt” in a criminal trial?

Ans. In our system of criminal jurisprudence, the accused person is presumed to be innocent until found guilty by a Court of competent jurisdiction. Apart from being insulated by the “presumption of innocence”, the accused is also entitled to the “benefit of doubt” which means that if the evidence adduced in support of the allegations by the prosecution, gives rise to a reasonable doubt as to whether the allegations leveled against the accused are true or not, the benefit of such doubt should naturally go to the accused. If two views are possible from the evidence, one in favour of the prosecution and the other in favour of the accused, the Courts are bound to accept that view which is favourable to the accused. (Vide para 5 of Ram Das v. State of Maharashtra AIR 1977 SC 1164 – P. N. Bhagwati, S. Murtaza Fazl Ali – JJ; Para 163 of Sharad Birdhichand Sardar v. State of Maharashtra AIR 1984 SC 1622 = (1984) 4 SCC 116 – 3 Judges – Fazal Ali, Varadarajan, Sabyasachi Mukharji – JJ.)

But the doubt should be that of a reasonable man. (Vide Gurcachan Singh v. Satpal Singh AIR 1990 SC 209 = (1990) 1 SCC 445 – Sabyasachi Mukharji, B. C. Ray – JJ.)

Part 1: The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-I]

Part 2: The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-II]

Part 3: The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-III]