Trial by Magistrate of Warrant Cases, Study Guides, Projects, Research of Criminal procedure

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Cr.P.C.

TRIAL OF WARRANT CASES BY MAGISTRATES

INSTITUTED OTHERWISE THAN ON A POLICE

REPORT

Submitted by: Gaurav Saxena, Roll no : 942, 6 th^ Semester,

NUALS, Kochi

INTRODUCTION

The Code of Criminal Procedure, 1973 (the CrPC) is the procedural law providing the machinery for punishment of offenders under the substantive criminal law, be it the Indian Penal Code, 1860 or any other penal statute. The CrPC contains elaborate details about the procedure to be followed in every investigation, inquiry and trial, for every offence under the Indian Penal Code (IPC) or under any other law. It divides the procedure to be followed for administration of criminal justice into three stages:

• Investigation
• Inquiry
• Trial

This project seeks to analyse the procedure followed at the time of the trial of warrant cases instituted otherwise than on a police report, by the Magistrates.

I. WARRANT CASES AND SUMMONS CASES

Warrant Case

A warrant case relates to offences punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The CrPC provides for two types of procedure for the trial of warrant cases by a magistrate, triable by a magistrate, viz., those instituted upon a police report and those instituted upon a complaint.

In respect of cases instituted on police report, it provides for the magistrate to discharge the accused upon the consideration of the police report and documents sent with it. In respect of the cases instituted otherwise than on a police report, the magistrate hears the prosecution and takes evidence. If there is no case then the accused is discharged. If the accuses is not discharged, the magistrate holds regular trial after framing the charge, etc. In respect of offences punishable with death, life imprisonment or imprisonment for a term exceeding seven years, the trial is conducted in a sessions court after being committed or forwarded to the court by a magistrate.

Summons Case

In cases instituted on a police report, the accused has the advantage of getting copies of the documents referred to in Section 173, and thereby he is enabled to make adequate preparations for his defence. The availability of the police report and other documents sent to the court along with such report assists the court in deciding whether a charge is to be framed against the accused person, or to discharge him if there is “no evidence”. 1 As such copies and records are not available to the court and to the accused person in cases instituted otherwise than on a police report, a sort of preliminary hearing of the prosecution case becomes desirable. It may be pertinent to note that there is a difference between material collected during the process of taking cognizance and the material collected during trial. Explain this in Sunil Mehta v. State of Gujarat^2 ,^ the Court thus observed: “There is however, a qualitative difference between the approach that the court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that record at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross examine the witnesses produced by the prosecution.” It was a case where the Magistrate despite the police report under Section 156(3) to the effect that it was essentially a civil dispute, proceeded to take cognizance and issued summons. The Magistrate went ahead with charging overturning objections on the basis of non compliance with section 244.^3 The Sessions Court remanded the case to the Magistrate but the High Court upheld the Magistrate’s order. The Supreme Court reversed the High Court order, emphasizing the views quoted above.

2. Discharge of the Accused – 1 Prithvi Nath v. R.C. Kaul 1975 CriLJ 216 2 (2013) 9 SCC 209 3 Yashodhabai v. B.M. Kan

At this stage of the proceedings, Section 245(1) requires the Magistrates to only consider the evidence prima facie with the pointed view as to whether the evidence if unrebutted would result in conviction. 4 He is not required to consider the entire pros and cons of the evidence at this stage. Under Section 245(1), the Magistrate can discharge the accused, if upon taking all the evidence referred to in Section 244, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction. For the applicability of Section 245 (1) what is required is that all the evidence that may be produced is taken and not that all the evidence that the complainant intends to produce has been taken. 5 If in case the court directs the complainant to produce all his witnesses and on the evidence he adduces, there is not even a sliver of a chance of the accused, the Magistrate has the discretion under section 245(1) to discharge the accused without affording a further opportunity to the complainant to summon witnesses he is yet to produce. Sections 245 and 246 are supplemental to each other and a harmonious construction must be placed on them. According to Section 245 (1), if the evidence produced, as it stands is not sufficient for a conviction, the Magistrate is duty bound to discharge the accused. In this context, the word “presuming” in Section 246(1) clearly envisages the framing of a charge against the accused only if the evidence before the Magistrate is sufficient to warrant a conviction.

3. Framing of charge – If, when such evidence as mentioned in Section 244 has been taken or at any previous stage of the case 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, would be adequately punished by him, he shall frame in writing a charge against the accused. [Section 246 (1)]^6

4 Hukamichand Devkisen Sarda v. Ratanlal Rupchand Heda 1977 CriLJ 1370 5 Marutha v. Rajagopal 1972 CriLJ 1210 6 Verendra Kumar v. Aashrya Makers, 1991 CriLJ 880

When the facts alleged do not themselves constitute and offence, the plea of guilty cannot be made the basis for conviction. A person can be convicted on a plea of guilty only if the ingredients of the offence are made out. 11

Section 248: Acquittal or conviction: 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. 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. In cases involving previous conviction of the accused, Section 248(3): Where, in any case under this Chapter, a previous conviction is charged under the provisions of subjection (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).

6. Choice of the accused to recall prosecution witnesses – If the accused refuses to plead guilty, or does not plead guilty or claims to be tried or if the accused is convicted under Section 246(3) above, he shall be required to state at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be 12 recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken [246(4] of he says he does wish, the witnesses named by him shall be recalled [246(5)].^13

11 AslamIkbalWali Mohammed v. State of Karnataka 1976 CriLJ 390 12 K.M. Nambbodiri v. Unni Nair 1975 CriLJ 751 13 Prabati Devi v. State of U.P & Ors. 1972CriLJ 1644

The purpose of this section is to secure the accused an opportunity to cross-examine the prosecution witnesses after he has been given notice of the specific charge which he has to answer. It is clear from the express words used in this section that the duty of recalling the witnesses when an accused wants to cross-examine them is case on the Magistrate. The fact that the accused had cross-examined the prosecution witnesses before the charge had been framed is no reason to deny the right of cross-examination of the said witnesses after the charge. The words “at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forth-with” suggest that reasonable time should be given to the accused person to state whether he wishes to cross-examine any of the prosecution witnesses after framing of he charge, and it is only in special cases that the Magistrate after recording reasons can ask him to state forthwith if he so wishes.

EVIDENCE FOR PROSECUTION

1. Examination of witnesses –

All prosecution evidence produced in support of the prosecution is already taken under section 244 before the charge is framed against the accused. But when the charge is framed the accused becomes aware of the exact nature of the charge or allegations against him.^14 Therefore in all fairness to him the accused person is asked by the Magistrate under section 246(4) as to whether he wishes to cross examine any of the witnesses for the prosecution whose evidence has already been taken under section

If the accused says that he does so wish, the witnesses named by him shall be recalled and, after the cross-examination and re-examination (if any) they shall be discharges. [246(5)]

14 Bhajja v. Emperor (1939) 40 CriLJ 549 15 Phuman Singh v. Emperor (1925) CriLJ 26

BIBLIOGRAPHY

Statutes

1. Code of Criminal Procedure, 1973

Legal Databases

1. Manupatra
2. SCC Online

Books

1. R.V. Kelkar’s Lecture’s on Criminal Procedure (5th^ Ed)
2. Ratanlal and Dhirajlal; Commentary on the Code of Criminal Procedure (18th^ Ed.)