In India, the adversarial system is being followed. It says that there will be a judge who will be acting as a neutral party and in front of him will be the two parties one is prosecution and another is defence. The judge will hear both sides on the point of law and accordingly will give any judgment. Every individual has the right to a fair trial and hearing by an independent and unbiased tribunal which is mentioned under the Criminal Procedure Code, 1973.

Section 303 confers a right upon the accused to be defended by a lawyer of his choice. Under Section 304 where an accused person is unable to represent his case by a pleader, the Court shall appoint a pleader for him at the state’s expense. The accused is to be presumed innocent until proven guilty in court. Accuse also has the right to cross-examine the witnesses of the prosecution.

All the offences that come under the Indian Penal Code, 1860 are to be inquired, investigated and tried according to the provisions provided in the Criminal Procedure Code, 1973. In the code, all the procedure is described for the trial of the criminal cases. In India uniform judicial system is present with Supreme Court at the apex position; High Court has the power of superintendence over all the courts and tribunals within the state.

Crpc has divided criminal trial into session trial and magistrate trial in the first schedule of code it is mentioned that whether the case is to be tried by session court or magistrate court. When a District Court exercises its jurisdiction over criminal matters it is referred to as a Court of Session. A Court of Session is considered as a court of the first instance which deals with offences that are of a serious nature at a district level. The state government is empowered to establish the court of every session divided and every Court of Session presides with a judge who is appointed by the High Court.

Initial steps in a trial

  • A magistrate takes the cognizance of the offence that is committed and later under the section 209; he will take the case further to court of sessions.
  • Magistrate is given power under the section 190 to take the cognizance of the offence once the complaint is registered; a police report; information received by a person other than police officer; or upon the knowledge of the magistrate.
  • According to section 193 a court of sessions cannot take cognizance of a case itself.
  • Under Section 207 and Section 208 the Magistrate is required to supply copies of documents like First Information Report, the statement recorded by the police or Magistrate, etc. to the accused.
  • The procedure of trial of a case before the court of sessions is mentioned under the sections 225 to 237. As per section 225 every trial is conducted by the public prosecutor before the court of sessions.

The opening case for the prosecution

When the prosecutor is brought before the court of sessions then under section 226 the prosecutor is required to open the case by explaining the charge against the accused and presenting the evidence before the court through which the accused is to be proven as guilty. It is not necessary for the public prosecutor to give full details of evidence at this stage. The opening of the prosecution case must only be to matters which are necessary to follow the evidence.


After presenting all the documents and records of the case before the court of sessions and hearing both sides; it is upon the judge if he wants to discharge the accused or not after hearing the case and if there is no sufficient ground to prove the guilt of accused then he can be discharged by the court of sessions. The Judge is required to record his reasons for discharging the accused under Section 227. It was held in State of Karnataka v. L. Muniswamythat there should be a reason required for the accused to get discharged.

Framing of the charges

Under section 228, after considering all the documents and records of the case and also hearing both sides, the judge thinks that there is ground to presume that the offence is committed by the accused and is triable by the court of sessions then he will frame the charge against the accused.

If the case is not triable before the court of sessions then the judge may frame the charges against the accused and by order transfer the case to a chief judicial magistrate or any other magistrate of first class. Then magistrate shall try the case according to the procedure laid down for the trial of the warrant cases.

It was held in Knati Bhadra Shah & Anr v. State of West Bengal while exercising power under Section 228 CrPC, the Judge is not required to record his reasons for framing the charges against the accused.

At this stage the judge is not required to note any detailed order, there it is necessary to see whether the case is beyond a reasonable doubt. Only a prima facie case has to be taken while framing charges.

Explaining charge to the accused

Section 228(2) explains that if the case is triable by the court of sessions and the judge frames the charges he has to read and explain it to the accused and ask him if he wants to plead guilty or claims to be tried. The Judge shall ensure that the charge read and explained to the accused have been fully understood by him before he is asked to plead guilty.

Conviction on plea of guilty

Under section 229 the accused may plead guilty or can refuse to plead. The Court under Section 229 has the choice to accept the plea of guilty. This choice has to be applied with care and not arbitrarily. The judge has to ensure about the plea, has to be made voluntarily not under any inducement which is violative of the provisions under the Constitution of India.

It was held in Queen Empress v. Bhadu that the plea of guilty must be in unambiguous terms otherwise such a plea is considered equivalent to a plea of not guilty. Section 229 states that if an accused pleads guilty then the Judge shall convict him as per his discretion and shall record the same.

Under section 230, the judge will fix a date for the examination of the witnesses if the accused refuse to plead guilty or if claims to be tried.

As per section 273, the evidence has to be taken when the accused is present or the presence of his pleader when the accused is not there during the trial of the case.

Examination of witnesses

In examining the witnesses the judge will take all the evidence that is given by the prosecution under section 231. The Judge has the discretion to permit cross-examination of any witness to be deferred until the other witness or witnesses have been examined or recall any witness for further cross-examination.

The examination in chief and cross-examination should be connected to relevant facts. There will be re-examination which will be related to the matters that are explained in cross-examination. The defence may examine witnesses if any new matter arises during the re-examination. The objective behind re-examination is to offer the witness a chance to clarify any issues raised during the cross-examination and is therefore constrained only to those issues that were raised during the cross-examination.

The Court observed in State of Kerala v. Rasheed that a balance should be there between the rights of the accused and the privilege of the prosecution to lead the evidence while deciding an application under Section 231(2). The following factors must be considered:

  • the possibility of undue influence,
  • threats,
  • that non-deferral would enable subsequent witnesses giving evidence on similar fact to tailor their testimony to circumvent the defence strategy,
  • Of loss of memory of the witness whose examination-in-chief has been completed.

Record of evidence

The evidence of each and every witness in the trial shall be written down by the presiding judge or under his direction and superintendence by the officer of the Court appointed by the Judge in this behalf. It can also be written in question-answer form by the presiding officer. Evidence must be signed by the judge and included in the record.

Steps to follow prosecution evidence

These are the following steps for procuring prosecution evidence:

  • Oral arguments and memorandum of arguments on behalf of prosecution-

Before any other step, the prosecutor has to submit his oral arguments which are mentioned under section 312. A memorandum has to be submitted and the arguments in favour to be written in brief. A copy of the memorandum is also required to be given to the opposite party. At this stage the prosecution argument helps in the conduct of an examination of the opposite party and the opposite party can give an explanation on issues raised by the prosecution.

  • Explanation of the accused-

The accused may be examined according to section 313 after the evidence is taken. There is an opportunity for the accused to give an explanation on the point that seems against him under this section. Section 313(1)(b) allows the court to question the accused personally and listen to the circumstance on his behalf.

It was ruled by the Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra, it is basic that the prisoner’s attention should be attracted to each inculpatory material in order to allow him to clarify.

  • Hearing the parties-

Section 232 provides the right for both parties to address the court. The comments that are to be given by the parties should be related to the evidence provided by the prosecution.

  • Order of the acquittal-

The accused can be acquitted if there is no evidence against him that he is the one who has committed the crime. According to section 232, the judge will write the order of acquittal if the judge thinks that there is nothing in the evidence that proves that no offence is committed by the accused.

Steps to follow the defence evidence

Spectators shall usually be first examined-in-chief by the party calling him, then cross inspected by the adverse party and re-examined by the party calling him. The justice has enough decision to defer cross-examination of any observer until any other eyewitness is examined, under Section 231(2) CrPC

Court witnesses, if any

In the criminal procedure of code under sec 232 and 233. The suspects may call upon to existing his defence, if not guiltless as per sec 232 He also needs to produce indication in sustenance.

  • The Justice may file any written declaration produced by the suspects as best.
  • If the suspects apply for convincing the incidence of any observer or the production of any document or thing, the Judge shall issue such process. Unless he deliberates that such application should refused as made for the purpose of annoyance or postponement or for overcoming the purpose of impartiality


  1. After the inspection of an observer is accomplished, Prosecuting attorney shall sum up his case and suspect or counsel is allowed to account.
  2. The minute any point of law is elevated by suspects or his counsel the trial may with authorization of Judge make his suggestions with esteem to such point of decree.

Judgement and connected matters

After having wiles and points of law Judge shall give judgment. As per section 235(1) after hearing the arguments and the points of law (if any), the judge shall decide the matter

1. Verdict

2. Exoneration

3. Opinion

If sentenced suspects will be caught on the inquiry of verdict and then pass a decision on him giving to law.

In Narpal Singh v. State of Haryana it was held that, in case of non-compliance with this provision, the case may be remanded to the Sessions Judge for retrial on the question of sentence only. It is not necessary for the Judge to hold a new trial altogether it will be restricted to the question of sentence only.   

Procedure to follow the order of conviction

According to section 236, if the suspect/ criminal is a charge with the previous principle and the suspect does not acknowledge that he has been formally sentenced as supposed in the custody, the judge may take indication in respect of the suspected previous belief and record a conclusion thereon under section 236. No indication shall be taken U/S. 236 unless and until the suspect has been sentenced U/S. 229 or 235.

Case law on this point, the Apex Court in Santa Singh v. State of Punjab held that the Judge should first pass a sentence of conviction or acquittal. If the accused is convicted, he shall be heard on the question of sentence and only then the Court shall proceed to pass a sentence against him.

In Bacchan Singh v. State of Punjab, it was ruled by the Court that this Section provides for a bifurcated trial and specifically gives to the accused person a right of pre-sentence hearing which may not be strictly relevant to or connected with the particular crime under inquiry but may have a bearing on the choice of the sentence.

Procedure in case of a previous conviction

As per Section 236, the respondent rejects his earlier opinion then it is accountable if the judge comes at the concluding deduction and make records consequently. The trial if gives sufficient indication in the provision of the suspects’ preceding opinion then such sentenced person is accountable for an improved penalty Moreover, it has been providing that in such case of earlier principle the judge is not sure or it is not needed for him to read out the custody to the suspect. Neither the suspect shall be asked to begged remorseful for any of the crime nor is he required to offer any further indication in the provision of his fault in preceding belief This is a special facility for decisive the obligation to improved penalty as a result of a prior conviction.

Procedure in cases of defamation on high dignitaries and public servants

Under section 237 of the code provides that process for trial of such materials which have been introduced under section 199(2) provides for trial of insult matters. If any substances of any offence are suspected to have been dedicated against The President of India, Vice-President, Governor of State, Administrator of U.T., Ministers of Union or States or any other public servant. If during trial court finds the scope of exoneration, he may authorization such command. Every trial under this Unit is held in camera if the party so requirements.

The object of making such an omission is to maintain sureness in the cleanliness of the government when high VIPs and public servants are incorrectly slandered. This provision has been designed for public curiosity. The procedure trailed in the experimental is the same as that of other court-martials by the Court of Assemblies, the change only being that in its place of collation a sentence to the suspect. Here they are compulsory to pay recompense for an amount not exceptional one thousand rupees. The petition can be made to the High Court like any additional circumstance.


The above article states all the procedures of the trial in the Court of Session. The code of criminal procedure provides a fair trial and an opportunity to the accused. It also makes an effort to not delay the investigation or the trial. There is always a fair opportunity provided to the accused of defending the case by the judge. This code also provides an accused with the help of legal aid if needed for a fair trial and give the opportunity to the accused of defending himself.

Written By- Roopica Sharma, Namisha Kapoor


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