CHAPTER XVIII

TRIAL BEFORE A COURT OF SESSION

225. Trial to be conducted by Public Prosecutor.- In every trial before a court of

session, the prosecution shall be conducted by a Public Prosecutor.

COMMENT

It has been universally accepted in the present day of civilisation that as a human
value no person accused of any offence should be punished unless he has been given a
fair trial and his guilt has been proved in such trial. The notion of fair trial can not be
explained in absolute terms. Fairness is a relative concept and therefore fairness in
criminal trial could be measured only in relation to the available time and resources
and the prevailing human values in the society.
The major attribute of fair criminal trial are
enshrined in Article 10 and 11 of the universal declaration of human rights.1 These
Articles provide:
Article 10.- Every one is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of his rights
and obligations of any criminal charge against him.
Article 11.- Every one charged with penal offence has the right to be
presumed innocent until proved guilty according to law in public trial at which he has
had all the guarantees necessary for his defence.
The apex court of has alsa recognised in Talab Hazi Hussain v.
Madhukar Purushottam Mondakar ,2 that the primary object of criminal procedure is
to ensure a fair trial of accused person, and the Law Commission of India has
accepted the view that the requirements of a fair trial relate to the character of the

1
. Adopted and proclaimed by the General Assembly on December 10, 1948.
2
. AIR 1958 SC 376.
court, the venue, the mode of conducting the trial, right of the accused in relation to
defence and other rights.3
While following the path of furthering the case and concept of fair trial, this
code has adopted four distinct modes of trial. They are: (1) Trial before a Court of
Session; (2) Trial of warrant cases: (3) Trial of summons cases, and (4)Summary
trials. For the purpose of determining the mode of trial, all criminal cases, in the first
stance, are divided into two categories. Those relating to offences punishable with
death, imprisonment for life or imprisonment for a term exceeding two years from one
category, and are called “warrant cases”. The first two modes of trial are adopted in
such cases. The other criminal cases, i.e. cases other than warrant cases, are relatively
of less serious nature from the second category and are termed as “summons cases”.
The last two modes of trial mentioned above have been made applicable to such
cases. Each of these two categories of cases have been further sub-divided into two
classes on the basis of the seriousness of the offences. The more serious amongst the
warrant cases are tried according to the first mode of trial by a Court of Session, and
on the other side, less serious amongst the summons cases are tried summarily
according to the fourth mode of trial.
The logic in having different type of trial is simple. In cases
relating to very serious offences it is just an appropriate to have elaborate trial
procedure which would ensure and also appear to ensure, a high degree of fairness to
the accused and also a high degree of high degree of possession in reaching correct
conclusions. On the other hand, in case of numerous offences of less serious nature it
would be expedient to adopt simple and less elaborate procedure, and in the vast
number of petty cases it becomes necessary even to have summary procedures.4
A Court of Sessions connot directly take cognizance of any
offence exclusively triable by such Court. According to the First Schedule of the
Code. A competent Magistrate may take cognizance of such offence and commit the
case to the Court of Session for trial. Even in respect of the other offences a
Magistrate may commit a case to the court of Session under the circumstances
mentioned in Sections 322-324. All such cases shall be tried by the Court of Session.
According to procedure laid down in sections 226-236.

3
. 37th Report, p.2 para 8.
4
. R. V. Kelkar, pp.280-281.
 According to Section 26, the High Court has got the power
to try any offence. But in practice, the High Court does not conduct any trial, nor does
the First Schedule indicate any offence as being triable by a High Court. However,
spread ramification of a case, may decide to try the case itself either at the instance of
the government or on its own initiative. The procedure to be observed by the High
Court in such a trial shall, according to Section 474, be the same as would be followed
by a Court of Session trying such a case.
Generally speaking a Court of Sessions is not to take direct
cognizance of an offence. However, in respect of an offence of defamation of a high
dignitary or a public official, a Court of Session can take such an offence under
Section 199 (2). After taking cognizance of such an offence, the Court of Session
shall try it according to the special procedure prescribed by the Section 237.
Conducting of prosecution before the Court of Session.- According to Section 225,
in every trial before a Court of Session, the prosecution shall be conducted by a Public
Prosecutor. The words “Public Prosecutors”means any person appointed under section
24 and includes any person acting under the directions of a Public Prosecutors.5
SECTION 225 is essentially directory in nature, and if the prosecution is in the hands
of the Public Prosecutor, it does not matter that a lawyer privately engaged has acted
for the prosecution.6

5
. Section 2(a) of the Code.
6
. Ramakistiah v. State of A.P., AIR 1959 AP 650.
 2. Opening case for Prosecution.

Section 226.- When the accused appears or is brought before the court in
pursuance of a commitment of the case under Section 209, the Prosecutor shall open
his case by describing the charge brought against the accused and stating by what
evidence he proposes to prove the guilt of the accused.

COMMENT

The object of this section is to provide for the opening of case for prosecution.
The case for prosecution is opened when the accused appears or is brought before the
Court of Session in pursuance of a commitment under section 209 and it is the duty of
prosecution to describe the charge brought against the accused while opening the case
and also to state by what evidence he proposes to prove the guilt of the accused. In
other words, it is the duty of the Public Prosecutor(PP) to give a brief summary of the
evidence and the particulars of the witnesses by which he proposes to prove the case
against the accused person. It is necessary for the Public Prosecutor in opening the
case for the prosecution to give full details regarding the evidence including the
documents by which he inteds to prove his case.7
Section 226 enjoins on PP to open up his case by describing the charge
brought against the accused. He has to state what evidence he proposes to adduce for
proving the guilt of the accused. He is not bound to examine the witnesses including
even those who, according to his information, would not support the prosecution case.
He has to take decision in that regard in a fair manner. He can interview the witnesses
before hand to know in advance the stand to be taken by the witnesses.8
PP can either state before the court that certain witnesses were not likely to
support prosecution case or he may obtain direct information about what they might
speak in Court and if their version is not in favour of the prosecution, PP can not be
compelled to examine them for the prosecution.9
PP is to produce evidence which is in support of the prosecution, and not
against it. If there are many witnesses on the same point or many witnesses who had

7
. R.W.Harcos v. State of W.B.,(1975) Cri LJ 1256 (Cal).
8
. Hukum Singh v. State of Rajasthen, (2000) 7 SCC490.
9
. Banti v. State of M.P., (2004) 1 SCC 414.
suffered injuries in the same occurrence, PP may choose only some of them and
inform the court that he would not examine the remaining persons, where prosecution
cited several witnesses some related and some not related to the victim, PP should
produce witnesses of the latter category, subject it to his discretion to limit only one or
two of them. But PP may not produce a witness, who according to his information,
would not support the prosecution case. Defence can cite him and examine him as
defence witness. PP has to take decision in the matter in a fair manner.10

3. DISCHARGE
10
. Banti v. State of M.P., (2004) 1 SCC 414.
 Section227.- If, upon consideration of the record of the case and and the
documents submitted therewith, and after hearing the submissions of the accused and
the prosecution in this behalf, the Judge considers that there is no sufficient ground
for proceeding against the accused, he shall discharge the accused and record his
reasons for so doing.
The object of this section is to empower the Court to discharge the accused and
record his reasons for so doing if , upon consideration of the record of the case and the
document submitted therewith, and after hearing the submissions of the accused and
the prosecution in this behalf, the Judge considers that there is no sufficient ground
for proceeding against the accused.
While working under Sections 227 and 228, the Court has to shift evidence on
record and other documents only for the limited purpose of ascertaining whether
prima facie case is made out against the accused, if so, it should frame charges under
sections 228 , and if not discharge the accused under section 227.11 After committal
of a case to a Sessions Court,it is for the court to decide what action is to be taken and
High Court con not direct it to frame charge.12

11
.Niranjan Singh Karam Singh Punjabi v. Jitendra Bhim Raj Bijayya, (1990) 4 SCC 76
12
.Gangula Ashok v. State of A.P.,(2000) 6 SCC 504.