Trial Of Warrant Cases Explained By Justice V Ramkumar [Part-1]

TRIAL OF WARRANT CASES BY MAGISTRATES INSTITUTED ON A POLICE REPORT

S.238: Compliance with Section 207 - When in any warrant-case instituted on a police report, 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.

S.239: When accused shall be discharged - If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary 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.

S.240: Framing of charge (1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) 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.

S.241: Conviction on plea of guilty - If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.

S.242: Evidence for prosecution - (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241 the Magistrate shall fix a date for the examination of witnesses:

Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution:

Provided that 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.

S.313: Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case:

Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

S.243: Evidence for defence - (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers 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 justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.

S.248: Acquittal or conviction - (1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.

(3) Where, in any case under this Chapter, a previous conviction is charged under the provisions of sub-section (7) of Section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon:

Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under sub-section (2).

S. 250: Compensation for accusation without reasonable cause –

(1) If, in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one or, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid.

(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may, for reasons to be recorded, make an order that compensation to such amount not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

(3) The Magistrate may, by the order directing payment of the compensation under sub-section (2) further order that, in default of payment, the person ordered to pay such compensation shall under go simple imprisonment for a period not exceeding thirty days.

(4) When any person is imprisoned under sub-section (3), the provisions of Sections 68 and 69 of the Indian Penal Code (45 of 1860) shall, so far as may be, apply.

(5) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:

Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.

(6) A complainant or informant who has been ordered under sub-section (2) by a Magistrate of the second class to pay compensation exceeding one hundred rupees, may appeal from the order as if such complainant or informant had been convicted on a trial held by such Magistrate.

(7) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under sub-section (6), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided; and where such order is made in a case which is not so subject to appeal the compensation shall not be paid before the expiration of one month from the date of the order.

(8) The provisions of this section apply to summons-cases as well as to warrant cases.

• As and when the accused appears or is produced, the Magistrate shall without any delay furnish the accused, free of cost, a copy of the following –

(i) The police report.

(ii) The FIR recorded under Section 154 Cr.P.C.

(iii) The statements recorded under Section 161 (3) Cr.P.C. of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the Police officer under Section 173 (6) Cr.P.C. (any part of a statement which is not relevant or disclosure to the accused is not essential in the interests of justice and is inexpedient in public interest.)

(iv) The “confessions” and “statements”, if any, recorded under Section 164 Cr.P.C.

(v) Any other document or relevant extract thereof forwarded to the Magistrate under Section 173 (5) Cr.P.C.

• Proceedings under Sections 238 to 240 Cr.P.C. are in the nature of pre-trial proceedings. An order framing charge is a purely “interlocutory order” and it does not terminate the proceedings and the trial goes on until it culminates in acquittal or conviction. (Vide paras 35, 96 & 111 of V. C. Shukla v. State through CBI AIR 1980 SC 962 : 1980 CriLJ 690 – 4 Judges – S. Murtaza Fazl Ali, P. N. Shinghal, D. A. Desai, A. P. Sen - JJ.

But an order discharging the accused is a “final order”.)

• Unlike in the case of trial of a “warrant-case” instituted on a “complaint”, in the case of trial of a warrant case instituted on a “Police Report”, the prosecution gets opportunity to lead evidence only after the charge is framed. In a “complaint case” the complainant gets two opportunities to lead evidence, first u/s 244 before charge framed and second u/s 246 (6) after charge is framed. (Vide Ajoy Kumar Ghose v. State of Jharkhand AIR 2009 SC 2282 = (2009) 14 SCC 115 – Tarun Chatterjee, V. S. Sirpurkar – JJ.)
• If two charges arise out of the same transaction, one of a summons case and another of a warrant case , warrant procedure is to be followed. (Vide para 2 of State of Kerala v. E. Bhaskaran Kunhikelu 1970 KLT 650 = 1971 Cri.L.J. 955 = AIR 1971 Ker. 188 – P. Naryana Pillai – J.)
• If in the same transaction offence committed by one of the accused is triable as a warrant case and the offence committed by the others is triable as a summons case, warrant procedure is to be followed. (Vide Mappillaisami Thevar v. Muthuswami Iyyer AIR 1949 Mad. 76 = (1948) 49 Cri.L.J. 587 - Govinda Menon – J.)
• Where after cognizance is taken on a “complaint”, the police files a “police report” for the same offence and against the same accused and the Magistrate takes cognizance of the offence, he shall try both the cases together as if the cases were instituted on a “police report”. (Vide Section 210 Cr.P.C.)
• S.239 Cr.P.C.: Discharge
  

• The criterion for discharging the accused, (after considering the “Police Report” and the documents sent along with it and making such examination of the accused and after giving the prosecution and the accused an opportunity of being heard), is that the Magistrate considers the charge against the accused to be groundless. (Vide Section 239 Cr.P.C.)
• While giving the prosecution and the accused an opportunity of being heard under Sections 239/240 Cr.P.C., the material which the Magistrate should consider is only the “Police Report” and the “documents” sent along with the Police Report. It is open to the Police Officer to move the Court for summoning and production of documents. But, it is not open to the accused to produce or cause production of any document at this stage to disprove or falsify the prosecution records. The accused can either produce documents or invoke Section 91 Cr.P.C. for causing production of documents only at the stage of his defence. The scope of hearing given to the accused is to enable him to make his submissions only with regard to the materials produced by the prosecution and nothing else. (Vide para 25 of State of Orissa v. Debendra Nath Padhi AIR 2005 SC 359 = (2005) 1 SCC 568 – 3 Judges – Y. K. Sabharwal, D. M. Dharmathikari, Tarun Chatterjee – JJ – Sathish Mehra v. Delhi Admn. (1996) 9 SCC 766 – M. M. Punchhi, K. T. Thomas – JJ, overruled.)

Bharat Parikh v. CBI (2008) 10 SCC 109 - Altamas Kabir, Dr. Mukundakam Sharma – JJ – Reiterated that Satish Mehra (Supra) was overruled in Debendra Nath Padhi (Supra).

See also para 16 of Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406 = AIR 2013 SC 633 - Dr. B. S. Chauhan, F. M. Ibrahim Kalifulla – JJ.)

(The phrase “hearing the submissions of the accused” occurring in Section 227 Cr.P.C. means hearing the accused on the “record of the case” as filed by the prosecution and the documents submitted therewith and nothing more; Para 15 of Shivalingamurthy M.E. v. CBI, Bengaluru (2020) 2 SCC 768 = AIR 2020 SC 331 - Sanjay Kishan Kaul, K. M. Joseph - JJ.)

The defense of the accused is not to be looked into at that stage when the accused seeks a discharge. (Vide State of J&K v. Sudershan Chakkar AIR 1995 SC 1954 = (1995) 4 SCC 181 - Dr. A. S. Anand, M. K. Mukherjee – JJ; Shivalingamurthy M.E. v. CBI, Bengaluru (2020) 2 SCC 768 = AIR 2020 SC 331 - Sanjay Kishan Kaul, K. M. Joseph - JJ.)

• However, a two-Judges Bench in Nitya Dharmananda @ K. Lenin v. Gopal Sheelam Reddy Aka Nithya Bhaktananda (2018) 2 SCC 93 = AIR 2017 SC 5846 - A. K. Goel, Uday U. Lalit – JJ, has held that even though the accused cannot ordinarily invoke Section 91 Cr.P.C., that does not debar the Court from exercising the power under Section 91 Cr.P.C. in the interests of justice.

NOTES BY THE AUTHOR: First of all, the power under Section 91 Cr.P.C. is a suo motu power of the Court. When a party applies under Section 91 Cr.P.C., it is this suo motu power which is exercised by the Court. Secondly, it is respectfully submitted that this two – Judges Bench decision is doing violence to the interpretation given to Section 227 Cr.P.C. by a three-Judge Bench which held that “record of the case” means only the prosecution records. If the accused cannot invoke Section 91 Cr.P.C. and summon a document which will not constitute “record of the case”, how can the Court create a record of the case by exercising its power under Section 91 Cr.P.C. ?

• At the stage of framing of charge the trial Court is not to examine and evaluate in detail the materials placed on record by the prosecution nor is it open to the Court to consider the sufficiency of the materials to establish the offence alleged against the accused. At this stage, the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of the offence alleged has been made out against the accused. (Vide para 7 of State of Delhi v. Gyan Devi AIR 2001 SC 40 = (2000) 8 SCC 239 – D. P. Mohapatra, Ruma Pal – JJ.)
• But the embargo against the accused producing evidence at the stage of framing charge before the trial Court will not be applicable to the High Court in a proceeding under Section 482 Cr.P.C. taken from the order of the trial Court and the High Court is free to consider the material which may be produced on behalf of the accused to arrive at a decision whether the charge framed against the accused is maintainable or not. (Vide Rukmini Narvekar v. Vijaya Satardekar (2008) 14 SCC 1 - Altamas Kabir, Markandey Katju - JJ.)
• Upon considering the “police report” and the documents sent with it under Section 173 Cr.P.C., the Magistrate must give the prosecution and the accused an opportunity of being heard. The Magistrate has a duty to consider the entire material referred to in Section 239 Cr.P.C. (Vide Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra AIR 1972 SC 545 = (1972) 3 SCC 282 – 3 Judges - J. M. Shelat, I. D. Dua, S. C. Roy - JJ.)
• Reading Section 239 along with Section 240 Cr.P.C., if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charge. (Vide para 15 of (Vide Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra AIR 1972 SC 545 = (1972) 3 SCC 282 – 3 Judges - J. M. Shelat, I. D. Dua, S. C. Roy - JJ.)
• Where a Magistrate takes cognizance of an offence without taking note of the bar of limitation under Section 468 Cr.P.C., the most appropriate stage for the accused to plead his discharge is at the stage of framing charge. He need not wait till the completion of trial. (Vide para 9 of Arun Vyas v. Anita Vyas AIR 1999 SC 2071 = (1999) 4 SCC 690 - K. Venkataswami, S. S. M. Quadri - JJ.)

NOTES BY THE AUTHOR: Here, by discharging the accused, even though the Magistrate is actually finding fault with a pre-cognizance illegality at the post-cognizance stage, since the accused had no opportunity to point out the bar of limitation before the Magistrate took cognizance of the offence before the appearance of the accused, he was held entitled to plead for a discharge.

• Where the dispute between the accused (employee) and the complainant (employer company) regarding the claim of possession of the residential flat in the occupation of the employee, was of a civil nature, the Magistrate was right in passing an order of discharge and the High Court went wrong in interfering with the order of the Magistrate. (Vide Jagdish Chandra Nijhawan v. S. K. Saraf AIR 1999 SC 217 = (1999) 1 SCC 119 - G. T. Nanavati, S. P. Kurdukar - JJ.)
• If a “police-report” contains offences some of which are triable as “warrant cases” under Chapter XIX Cr.P.C., and some others are triable as “summons cases” under Chapter XX Cr.P.C., the Magistrate taking cognizance under Section 190 (1) (b) Cr.P.C., takes cognizance of all the offences covered by the “police-report”. Subsequently if the Magistrate discharges the accused under Section 239 Cr.P.C. for the offences triable as a “warrant-case” he can still proceed to try the accused for the offences disclosed by the police-report and triable as a summons-case, without any fresh complaint in respect of such offence. (Vide para 3 of Pramada Nath Mukherjee v. State of W. B. AIR 1960 SC 810 = 1960 Cri.L.J. 1165 – K. C. Das Gupta, J. C. Shah – JJ.) (This verdict was rendered under the corresponding Sections of the 1898 Code. The offences involved were Section 323 IPC (summons-trial) and Section 332 IPC (warrant-trial). The accused was discharged with respect to Section 332 IPC. Held that he could be tried for the offence under Section 323 IPC without any further complaint.)
• Where an order of discharge by the trial court is illegal, the High Court should exercise its revisional powers even suo motu not to perpetuate the illegality and miscarriage of justice, notwithstanding that the revision is barred by limitation. (Vide Municipal Corporation of Delhi v. Girdharilal Sapuru AIR 1981 SC 1169 = (1981) 2 SCC 758 – D. A. Desai, A. P. Sen - JJ.)
• S.240 Cr.P.C.: Framing of charge

• The criterion for framing charge against the accused, after considering the “Police Report” and the documents sent along with it and making such examination of the accused and after giving the prosecution and the accused an opportunity of being heard, is the opinion of the Magistrate about the existence of the ground for presuming that the accused has committed an offence triable under Chapter XIX. (Vide Section 240 Cr.P.C.)
• The rules for framing charge by the Court are contained in Chapter XVII Cr.P.C. comprising of Sections 211 to 224. Part A of Chapter XVII consisting of Sections 211 to 217 deals with the “Form of Charges”. Part B of Chapter XVII Cr.P.C. consisting of Section 218 to 224, deals with the joinder of charges. The main rule under Section 218 (1) Cr.P.C. is that for every distinct offence there should be a separate charge and every such charge shall be tried separately. Sections 219, 220, 221 and 223 are exceptions to the aforesaid rule under Section 218 (1) Cr.P.C., enabling the Court to join two or more charges together and try them in a single trial upon the existence of the circumstances referred to in those 4 Sections.
• Once a charge is framed in a warrant case instituted either on a complaint or on a police-report, the Magistrate has no power under the Code to go back to the pre-charge stage and discharge the accused. Thereafter the Magistrate can either acquit or convict the accused unless he decides to proceed under Section 325 or Section 360 Cr.P.C. (Vide Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 = (1979) 2 SCC 179 – 3 Judges – R. S. Sarkaria, O. Chinnappa Reddy, A. P. Sen – JJ – This verdict was rendered under the corresponding Sections of the 1898 Code.)
• Even where the Police Report is to the effect that investigation has not made out any offence against the accused, it is not mandatory for the Magistrate to always accept the police report. In an appropriate case, after independent examination and application of mind the Magistrate can take cognizance of the offence revealed by the prosecution records and frame charge against the accused. (Vide State of Orissa v. Habibullah Khan (2003) 12 SCC 129 – Y. K. Sabharwal, B. N. Agrawal – JJ.)
• Framing of charge in the absence of the accused who had obtained anticipatory bail, was held illegal and would defeat the very purpose of Section 240 (2) Cr.P.C. (Vide para 21 of HDFC Bank Ltd. v. J. J. Mannan (2010) 1 SCC 679 – Altamas Kabir, Deepak Verma – JJ.)
• S.241 Cr.P.C.: Conviction on plea of guilt

without a trial.

• The plea of guilt must be recorded in the words of the accused himself. Conviction without recording his plea is liable to be set aside. (Vide State v. Banshi Singh AIR 1960 M.P. 105 = 1960 Cri.L.J. 482 - Shiv Dayal Shrivastava – J – Here to the charge that the accused had by rash and negligent driving, caused the death of a person, his answer was “I have committed a sin. This was my first offence. Kindly pardon me”. This was held to be not in accordance with Section 251 A (5) of the 1898 Code corresponding to Section 241 Cr.P.C. The case was accordingly sent back to the trial Court for fresh trial.)
• Where the personal attendance of the accused was dispensed with under Section 205 Cr.P.C. the plea of guilt or not guilty can be made by the counsel on behalf of the accused if specifically authorised.(Vide Noorjahan v. Moideen 2000 (2) KLT 756 = 2000 Cri.L.J. 4264 (Kerala) – R. Rajendra Babu – J.)
• S.242 Cr.P.C.: Evidence for the Prosecution.

• The fixing of a date for prosecution evidence is if the accused –
• refuses to plead guilty, or
• does not plead guilty, or
• claims to be tried or
• was not convicted u/s 241 even after his pleading guilty.
• It is not necessary for the prosecution to produce all the witnesses who had joined in chasing the accused after he had attacked the victim. (Vide Shyam Behari v. State of U. P. AIR 1976 SC 400 = (1976) 2 SCC 206 – P. N. Bhagwati, R. S. Sarkaria – JJ.)
• It is not necessary for the prosecution to examine all the witnesses who were injured in the occurrence. Hence non-examination of a witness who was also injured in the occurrence would not be fatal if the evidence of other eye-witnesses is credible enough to found the prosecution case. (Vide State of U. P. v. Hakim Singh AIR 1980 SC 184 = (1980) 3 SCC 55 – S. Murtaza Fazal Ali, A. P. Sen – JJ.)
• It is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth -- Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to S.114 of the Evidence Act, but the circumstance of his being withheld from the court also casts a serious reflection on the fairness of the trial. (Vide para 11 of Habeeb Mohd. V. State of Hyderabad AIR 1954 SC 51 = 1954 Cri.L.J. 338 – 3 Judges - Mehr Chand Mahajan, B. K. Mukherjea, B. Jagannadhadas – JJ.)
• S.313 Cr.P.C.: Examination of the accused

• The purpose of 313 examination is to enable the accused to explain any incriminating circumstance against him in the evidence for the prosecution. This is an extension of the “audi alteram partem” which means that no person shall be condemned unheard. Hence, Courts are very strict in ensuring that each and every incriminating circumstance is put to the accused and his explanation elicited. Courts have even gone to the extent of holding that if any incriminating circumstance against the accused has not been put to the accused and his explanation has not been elicited, it is not open to the trial Court to rely on that circumstance for convicting the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 = (1984) 4 SCC 116 – 3 Judges – S. Murtaza Fazal Ali, A. Varadarajan, Sabyasachi Mukharji – JJ).
• It is not permissible for the Court to put complicated and involved questions in the form of a compound sentence in which several incriminating circumstances have been rolled into one. (Vide para 14 of Abu v. State of Kerala 2010 Cri.L.J. 2324 – V. Ramkumar – J.)
• No oath shall be administered to the accused when he is examined under Section 313 Cr.P.C. (Vide Section 313 (2) Cr.P.C.)
• The accused cannot be punished for refusing to answer or for giving false answers. (Vide Section 313 (3) Cr.P.C.)
• The answers given by the accused may be taken into consideration, for or against him. (Vide Section 313 (4) Cr.P.C.)
• Even though the unsworn statement of the accused under Section 313 Cr.P.C. can be taken into consideration in an inquiry or trial, it is not strictly evidence in the case. The accused can give evidence in the case on his own behalf under Section 315 Cr.P.C. (Vide para 5 of State of Maharashtra v. Dr. R.B. Chowdhari AIR 1968 SC 110 = 1968 Cri.L.J. 95 - M. Hidayatullah, C. A. Vaidialingam - JJ.)
• S.243 (1) Cr.P.C.: Defence evidence.

• Unlike in the trial of a summons case, in a warrant trial, the accused has a right to be called upon to enter on his defence and produce his evidence. In case the accused puts in any written statement the Magistrate shall incorporate the same with the record.
• Adducing evidence in support of the defence is a valuable right of the accused. Denial of that right means denial of fair trial. “Fair trial” within the contours of Article 21 of the Constitution of India includes fair and proper opportunities allowed by law to prove the innocence of the accused. (Vide para 12 of Kalyani Baskar v. M. S. Sampoornam (2007) 2 SCC 258 = (2007) 1 SCC (Cri.) 577 – G. P. Mathur, L. S. Panta – JJ.)
• The right of the accused to defend himself is a part of human right as well as fundamental right as enshrined under Article 21 of the Constitution of India. (Vide para 8 of T. Nagappa v. Y. R. Muralidhar AIR 2008 SC 2010 = (2008) 5 SCC 633 – S. B. Sinha, Lokeshwar Singh Panta - JJ.)
• Under Section 243 (1) Cr.P.C. as modified by Section 22 of the Prevention of Corruption Act, 1988, the accused has no right to examine any number of witnesses. The object is to ensure speedy trial of cases. If the Court after perusing the list of witnesses submitted by the accused, considers that the list is intended to delay the proceedings, the Court can reject even the entire list of witnesses. The Special Judge, if so satisfied can permit the accused to examine additional witnesses by exercising the powers under Section 311 Cr.P.C. Here a list of 267 persons was submitted by the accused as his witnesses. (Vide Arivazhagan v. State AIR 2000 SC 1198 = (2000) 3 SCC 328 – K. T. Thomas, M. B. Shah – JJ.)

S.243 (2) Cr.P.C.: When the accused applies for steps to adduce defence evidence.

• While exercising the discretionary jurisdiction of the trial Judge by refusing to summon the defence witnesses on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice, the trial Judge is required to record the reasons in writing. Then only the High Court while exercising its revisional jurisdiction under Section 397 read with Section 401 Cr.P.C. will be able to evaluate the reasons given by the trial Judge and state its own reasons for disagreeing with the trial Court. (Vide CBI v. Tuncay Alankus (2013) 9 SCC 611 – S. B. Sinha, Markantey Katju – JJ.)
• The expression “any witness” in Section 243 (2) Cr.P.C. does not include the complainant. Hence the Magistrate cannot give direction to issue summons to the complainant to be examined as a defence witness. (Vide C. K. Kamruddin Shaukathali 2001 (3) KLT 476 = 2002 Cri.L.J. 1289 – N. Krishnan Nair - J; Thomas v. Vijayakumari 2002 Cri.L.J. 3108 – G. Sasidharan - J.)
• Conviction without giving opportunity to the defence to lead whatever relevant evidence it wanted to produce, cannot be sustained. (Vide para 10 of Ronald Wood Mathams v. State of W. B. AIR 1954 SC 455 = 1954 Cri.L.J. 1161 – 5 Judges – M. C. Mahajan – CJI, S. R. Das, N. H. Bhagwati, B. Jagannadhadas, T. L. Venkatarama Ayyar – JJ.)
• S.248 (1) Cr.P.C.: Acquittal on merits

• Charge framed under S.246(1) Cr.P.C. against the accused for offences under S.494, S.495 of Penal Code -- Accused was acquitted merely on the ground that complainant and her witnesses were not available for cross examination -- Held, when the Magistrate found that the appellant as well as witnesses were absent, it was the duty of the learned Magistrate to have procured the complainant as well as witnesses, if need be, by coercive process, make them available to the respondents for cross examination and thereafter proceed according to law -- It was not open to him to acquit the accused merely on the ground that the witnesses already examined by the prosecution were not made available for cross examination -- The order of acquittal, being illegal, set aside and retrial ordered. (Vide Vasanthi v. Ramaswami 1992 Cri.L.J. 2442 = 1992 KHC 1555 (Madras) – Padmini Jesudurai – J.)
• After the charge has been framed, the only order that can be passed is either conviction or acquittal and not an order of discharge. The Magistrate does not have any sort of inherent power to set aside the order of framing charge. The remedy of the State was to file an appeal against the impugned order, though styled as a discharge. Still the High Court exercising the revisional power set aside the order which was glaringly illegal. (Vide State of Kerala v. Sebastion 1982 KLT 724 = 1983 Cri.L.J. 416 – S. K. Kader – J.)
• An order of discharge after the framing of charge, is illegal. (Vide para 27 of Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 = (1979) 2 SCC 179 – 3 Judges – R. S. Sarkari, O. Chinnappa Reddy, A. P. Sen – JJ.)
• Once a charge has been framed and the accused is found not guilty of the offence on merits, an acquittal should follow under Section 248 (1) Cr.P.C. (Vide Harihar Chakravarty v. State of W. B. AIR 1954 SC 266 = 1954 Cri.L.J. 724 – 3 Judges - B. K. Mukherjea, Vivian Bose, N. H. Bhagwati – JJ – Case decided under the corresponding Section 258 of the 1898 Code.)
• An order of acquittal passed by the Magistrate without ascertaining the presence of the witnesses and without any genuine effort made to secure their presence, was without jurisdiction and set aside. (Vide para 4 of M. Narayanan v. Kunhambu 1987 (2) KLT 94 = 1988 Cri.L.J. 1375 – C. Sankaran Nair – J.)

S.248 (2) Cr.P.C.: Finding the accused

guilty on merits and passing a sentence on him unless Sections 325 or 360 Cr.P.C. are invoked.

• Where the Magistrate finds the accused guilty on merits, he shall after hearing the accused on the question of sentence, pass a sentence upon him according to law, unless the Magistrate proceeds under Section 325 or Section 360 Cr.P.C.

Section 325 Cr.P.C. refers to the procedure when the Magistrate finds that he cannot inflict sufficiently severe punishment in the case and accordingly submits the case to the CJM for recording a conviction and passing a condign sentence.

Section 360 Cr.P.C. and Probation of Offenders Act, 1958 deal with first offenders who are liable to be released on probation or let off after admonition.

• Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping,

misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.

The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". (Vide paras 9 and 10 of State of M. P. v. Saleem @ Chamaru AIR 2005 SC 3996 = (2005) 5 SCC 554 – Arijit Pasayat, S. H. Kapadia – JJ.)

S.248 (3) Cr.P.C.: How to frame charge

for “previous conviction” and“adduce evidence”.

• The charge under Section 211(7) Cr.P.C. for “previous conviction” can be clubbed along with the charge for the main offence to be tried. (Vide Part III of the Model Form No: 32 in the Second Schedule to Cr.P.C.) But, until the accused is found guilty of the main offence to be tried, the charge for “previous conviction” framed under Section 211 (7) shall not be read over to the accused nor his plea taken. Similarly, the previous conviction shall not be referred to by the prosecution or in any evidence adduced by it unless and until the accused is convicted of the main offence. (Vide Section 248 (3) and its proviso.)
• S. 250 Cr.P.C.:Compensation for accusation without reasonable cause.

• The condition for application of this Section are –

1. The case must be instituted upon a “complaint” u/s 2 (d) Cr.P.C. or upon information given to a police officer or to a Magistrate.
2. The case must be triable by a Magistrate.
3. The Magistrate must be satisfied that there was no reasonable ground for making the accusation.
4. Action must be taken simultaneously with the “discharge” or “acquittal” of the accused by calling upon the complainant forthwith to show cause why compensation should not be avoided. It cannot be taken at a later period.
5. Before compensation is granted –
6. Sufficient time should be allowed to show cause, and
7. The acquittal or discharge order must show on the face of it that there was no reasonable ground for making the accusation against all or any of the accused.

• The Magistrates should not be slow to make use of this Section in appropriate cases to stop not only the abuse of their own processes but also the harassment of innocent people. (Vide Emperor v. Jehangir M. Jassawalla AIR 1948 Bom. 6 = (1947) 48 Cr.L.J.929 - Leonard Stone, Kt. - C.J.)
• The Section which applies to both summons and warrant cases is to be applied in a summary manner.
• The complainant cannot be asked to compensate the accused in a case where the police, by mistake, prosecuted a wrong person. (Vide Om Prakash v. State of Rajasthan 1975 Cr.L.J. 196 – B.P. Beri – C.J.)
• This Section applies in the case of an offence punishable under the Indian Penal Code or any other law and triable by a Magistrate as shown in Column 6 of the First Schedule to Cr.P.C. read with Section 26 (a) (iii) Cr.P.C. (Vide Narain Hazam v. Ramdhari Singh AIR 1954 Pat. 145 = 1954 Cr.L.J. 221 – Das – J – This verdict is under the corresponding Sections of the 1898 Code.)
• The same Magistrate who discharged of acquitted the accused alone can initiate action and pass final orders under this Section. The succeeding Magistrate cannot continue the proceedings initiated by his predecessor-in-office. (Vide Nandkumar Krishanrao Navgire v. Gananath Laxman Kushalkar v. Maharashtra (1998) 2 SCC 355 – M. M. Punchhi, K. Venkataswami – JJ.)
• “Reasonable and probable cause” means an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of the state of circumstances, which assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. (Vide Hicks v. Faulkner 1881, 8 QBD 167 – Hawkins – J, which was approved in Herminan v. Smith 1938 All. ER. 1 (HL) 5 Judges – Lord Atkin, Lord Russell of Killowen, Lord Macmillan, Lord Maugham, Lord Roche.)
• The order of acquittal or discharge must show on the face of it that the prosecution of the accused was without reasonable cause. (Vide Bijoy Krishna Chandra v. The State AIR 1958 Cal. 121 = 1958 Cr.L.J. 364 – Debabreta Mookerjee – J.)