CHAPTER 9: TRIAL IN COURT

The Code of Criminal Procedure 1973 (in short Cr.P.C.) is a procedural

law providing the mechanism in which manner the criminal trial is to be

conducted on the basis of substantive criminal law i.e. I.P.C. and other criminal

statute. The primary object of the criminal justice system is to ensure that the

trial must be fair. The Presiding Officer is supposed to treat the accused

innocent till charge is proved against him but at the same time the guilty person

should not be escaped from the punishment.

The word trial is not defined anywhere in the Criminal Procedure Code,

however, it means commonly understood the stage of trial began after framing

the charge and end with the conviction or acquittal. The criminal procedure for

judicial adjudications is divided in 37 chapter and classified in two schedules

(i) the offences classified under I.P.C. and (ii) the offences classified other than

I.P.C. The nature of trial are divided on the basis of seriousness of offences, its

gravity and jurisdiction and on the basis of the gravity, seriousness of the

offences the substantive law i.e. I.P.C. is divided into 37 parts by granting

separate nomenclature particularly the nature of offences like the offence

against State, human body, property, public tranquillity, documents, marriage

etc.

9.1 SESSIONS TRIAL

9.1.1 Police case-225 to 237 Cr.P.C.

Chapter XVIII of Cr.P.C. starting with Sec.225 and ending with section

237 deals with provisions governing the trial before a Court of Session. Sec.225
Cr.P.C. enjoins that in every trial before a Court of Session the prosecution shall

be conducted by a Public Prosecutor.

When the accused appears or is brought before court pursuant to the

commitment of the case, the Public Prosecutor should open the case by

describing the charge brought against the accused and stating by what evidence

he proposes to prove the guilt of the accused.

After considering the record of the case and the documents submitted

along with such record and after hearing the submissions of the accused and the

prosecution, if the judge considers that there are no sufficient grounds for

proceeding against the accused, he shall discharge the accused giving reasons

for doing so.

If, however, the judge is of the opinion that there is ground for

presuming that the accused has committed the offence he may frame the charge

against the accused in writing. At this stage the Sessions Judge is entitled to

consider only the documents produced by the prosecution along with the charge

sheet. The accused is not entitled to produce or cause production of any

document at this stage for the consideration of the Sessions Judge. After framing

the charge same shall be read over and explained to accused in vernacular

manner. And then he shall be asked as to whether he pleads guilty of the offence

charged or whether he claims to be tried for the charge.

If the judge is of opinion that the offence that is actually made out is not

one exclusively triable by a court of Sessions then he shall frame a charge

against the accused and transfer the case for trial to the Chief Judicial Magistrate

who shall try the case as if it were a warrant case instituted on a police report.
 Section 229 of Cr.P.C. provides that if the accused pleads guilty the

Judge shall record the plea and may, in his discretion, convict him thereon.

Even though Sec.229 Cr.P.C. gives discretion to the judge to convict the

accused, in case he pleads guilty, the charge in a sessions case being for grave

offences, it is desirable that the accused is not straightaway convicted. The

proper course would be to call upon the prosecution to prove its case by

adducing evidence.

Where the accused does not plead guilty the court shall call upon the

prosecution to adduce evidence in support of its case. After the conclusion of

the prosecution evidence, the accused is to be examined under Sec.313 (1) (b)

Cr.P.C. with regard to the incriminating circumstances appearing against him in

the evidence for the prosecution. After the examination of the accused the court

has to post the case for hearing under Sec.232 Cr.P.C. if after hearing the

prosecution and the defence the judge considers that there is no evidence to

indicate that the accused committed the offence with which he is charged the

judge can record an order of acquittal under Sec.232 Cr.P.C.

After hearing under Sec.232 if the accused is not acquitted thereunder,

the accused shall be called upon to enter on his defence and to adduce any

evidence which he might have in support thereof. After the conclusion of the

defence evidence, if any, the case has to be taken up for arguments.

After hearing the arguments, the court has to pass the judgment in

accordance with Secs.235 Cr.P.C. If the judgment is one of conviction and the

judge does not proceed to invoke the beneficial provision of the Probation of

Offenders Act, 1958, he shall hear the accused on the question of sentence and

then pass a sentence in accordance with law.

9.1.2 Complaint case: S.190 to 210 of Cr.P.C.

Ch. XIV of Cr.P.C. lays down provisions containing conditions required

for initiation of proceedings and especially regarding cognizance of complaint

case. Sec. 190 to 204 deals with 'cognizance' of cases and Sec. 190(1) lays

that, Magistrate can take cognizance of offence

a) upon complaint;

b) upon police report; or

c) upon his own knowledge,

d) or upon information received from any other person, other than a police

officer.

Sec.193 Cr.P.C. provides that except as otherwise expressly provided by

the Cr.P.C. or any other law, no Court of Session shall take cognizance of any

offence as a court of original jurisdiction unless the case has been committed to

it by a Magistrate under the Cr.P.C. except in special enactments.

Ch. XV of Cr.P.C. lays down the procedure which a Magistrate has to

follow when a complaint is made to him. The very object of law is to give a

person an access to justice other than upon police report. After above referred

examination, question of issuance of summons comes in. Magistrate

can either issue the summons or order inquiry under Sec. 202.

If evidence collected above is found insufficient to take decision,

Magistrate may either inquire himself or direct investigation by police officer

under Sec. 202(1) of Code. Such investigation is only for helping the Magistrate

to decide whether or not there is sufficient ground to proceed further.

After receiving the report of investigation under Sec.202, the Court will

consider whether there is sufficient ground to proceed. If there is no sufficient

ground to proceed, the Court shall dismiss the complaint under Sec. 203. If

there is sufficient ground to proceed, then the Magistrate will issue summons or

warrant, as the case may be.

Options which are available to the Magistrate after receipt of complaint

could be summarized thus. Following five options are available to the Judicial

Magistrate who is competent to take cognizance of the case.

a. Rejection of the complaint,

b. Order of investigation under Sec. 156(3),

c. Taking cognizance of the offence,

The provisions regarding committal of case are prescribed in Sec. 209

of Cr.P.C. and Para 9 to 12 of Chapter 3 of Criminal Manual. In all cases

instituted on Police Reports or otherwise, whenever the accused appears or is

brought before the Magistrate, and it appears to the Magistrate that the offence

is triable exclusively by the Court of Sessions, he shall commit the case to the

Court of Sessions, send to that Court the record of the case and the documents

and articles, if any, which are to be produced in evidence and notify to the Public

Prosecutor of the commitment of the case to the Court of Sessions under Section

209 of the Code of Criminal Procedure, 1973.

Sec. 210 of Cr.P.C. provide the procedure to be followed when there is

complaint case and police investigation in respect of the same offence

and if Magistrate is satisfied that same are in respect of same offence he shall

clubbed together both proceeding.

9.2 WARRANTS TRIAL

There are two types of cases provided in Cr.P.C. i.e. Summons cases

and Warrant case. Warrant case case means a case relating to an offence
punishable with death, or imprisonment for life, or imprisonment for a term

exceeding two years while summons cases means a case relating to an offence,

and not being a warrant case. Thus, the trials are normally divided into warrant

trial and a summons trial. For trial of warrants cases by Magistrate two

procedures are prescribed. One is adopted by Magistrate in cases instituted on

police reports (Sections 238 to 243 Cr.P.C. and 248 to 250 of Cr.P.C.) and other

is for cases instituted otherwise than police reports. (Sections 244 to 247 of

Cr.P.C. and 248 to 250, 275 Cr.P.C.)

9.2.1 Police case

Under Section 238 Cr.P.C. when in a warrant case, instituted on a

police report, the accused appear or is brought before the Magistrate, the

Magistrate has to satisfy himself that he has been supplied the all necessary

documents submitted with charge sheet.

Section 239 Cr.P.C. provides that if the Magistrate after considering the

charge sheet filed u/s. 173 Cr.P.C. and hearing, considers the charge to be

groundless, he would discharge the accused and record his reason for so doing.

If, on examination of aforementioned documents, he comes to the prima facie

conclusion that there is a ground for proceeding with the trail, he proceeds to

frame the charge.

After framing a charge under Section 240 Cr.P.C., the Magistrate has to

proceed under Section 242 Cr.P.C. and under subsection (3) of that Section the

Magistrate is bound to proceed to take all such evidence as may be produced in

support of the prosecution. This provision and the provisions in sub-section (1)

and (2) of the Section 243, Cr.P.C. are mandatory.

 The provisions of s. 243 apply equally to cases instituted on police

report or on private complaint. After the examination and cross examination of

all prosecution witnesses, i.e. after the completion of the prosecution case the

accused shall be called upon to enter upon his defence and any written statement

put in shall be filed with the record.

9.2.2 Private case

Section 244 to 250 of Code of Criminal Procedure are pertaining to

cases instituted otherwise then on police report. Under section 244 of Cr. P. C

when in any warrant case instituted otherwise than on a police report, the

accused appears or is brought before the Magistrate, the Magistrate shall

proceed to hear the prosecution and shall take all such evidence as may be

produced in support of the prosecution.

After taking all evidence under section 244(1) of Cr. P.C. the Magistrate

reached at the conclusion that no case against accused has been made out, the

Magistrate shall discharge accused for the reasons recorded. If there is a strong

suspicion about the commission of the offence and the involvement of accused

the court shall proceed to frame charge instead of discharging the accused.

If the accused is not discharged under section 245 of Cr.P.C the

Magistrate shall proceed to frame charge under section 246 of Cr. P. C. against

the accused. Charge shall then be read and explained to the accused and then he

has to be asked whether he pleads guilty or has any defence to make. If the

accused refuses to plead or does not plead or claims to be tried he shall be

required to state whether he wanted to cross examine any witnesses for the

prosecution whose evidence has been taken. If the accused is ready to cross

examine the witnesses, they shall be recalled for cross examination and re-
examination if any. The witnesses shall be discharged after cross-examination

or re-examination. Under section 247 of Cr. P. C. the accused shall be called

upon to enter upon his defence and to produce his defence if any.

Section 248: Acquittal or Conviction- The section means that in a warrant

case both instituted on police report and private complaint the only order that

can be passed after charges is either (a) acquittal or (b) conviction.

9.3 SUMMON TRIAL

A summons case means a case relating to an offence not being a

warrant case, implying all cases relating to offences punishable with

imprisonment not exceeding two years. In respect of summons cases, there is

no need to frame a charge. The court gives substance of the accusation, which

is called notice, to the accused when the person appears in pursuance to the

summons.

In view of Section 251 of Cr.P.C. the Magistrate is required to explain

the particulars of the offence of which the accused is prosecuted. As per section

252 if the accused pleads guilty, the Magistrate shall record his plea as nearly

as possible in the words used by the accused and may in his discretion, convict

him thereon. Section 253 of Cr.P.C. is an exception to general rule which

provides a simple procedure for disposing of petty cases without the presence

of accused in court by post and messenger also. By this provision discretion is

given to the Magistrate to convict the accused. It also enables the pleader

authorised by the accused to plead guilty on behalf of his client when offence is

punishable only with fine. However, as per Section 254 of Cr.P.C. if the accused

is not convicted under Section 252 or 253 the court shall hear prosecution and

take evidence lead by the prosecution and also hear the accused and take all
such evidence as he produces in his defence. Section 255 of Cr.P.C. deals with

the acquittal or conviction. Section 256 of Cr.P.C. deals with the circumstances

of non-appearance or death of the complainant. Section 257 of Cr.P.C. deals

with the withdrawal of complaint subject to the satisfaction of the Magistrate.

Apparently this section applies to summons cases. Section 258 of Cr.P.C. deals

with the powers to stop proceeding in certain cases. Section 259 of Cr.P.C.

empowers the Magistrate to convert a summons case into warrant case (1) if the

offence is punishable with imprisonment for more than six months, & (2) if he

is of the opinion that it would be in the interest of justice try such case in

accordance with the procedure for the trial of warrant cases.

Section 274 of Cr.P.C. deals with the record in summons cases and

inquires. The Magistrate shall, as the examination of each witness proceeds,

make a memorandum of the substance of his evidence in the language of the

Court. However, if the magistrate is unable to make such memorandum himself,

he shall, after recording the reason of his inability, cause such memorandum to

be made in writing or from his dictation in open Court.

9.4 SUMMARY TRIAL

The object of summary trial is to disposal of cases speedily. Procedure

prescribed for trial of summons cases should be followed (S.262). There is no

appeal in such a trial if a sentence of fine only not exceeding two hundred rupees

has been awarded. There can be an application for revision to the High Court.

The provisions of section 262 are imperative and a breach thereof

amounts to an illegality and not an irregularity.

Section 264 lays down that in every case tried summarily the Magistrate

must record the substance of the evidence and the judgment that is delivered
must also contain a brief statement of the reason for coming in a particular

finding.

Section 265 emphasizes that every such record i.e. the particulars

mentioned in s. 263 and the substance of evidence and judgment must be

recorded in the language of the Court.

The provision of Section 326 (3), Cr.P.C. bars the use of pre-recorded

evidence by successor Judge only when the trial has to be conducted according

to the provisions of Sections 262 and 265, Cr.P.C. (i.e. summary trial). When

in a summary trial, the evidence has been recorded partly be one Magistrate who

has taken notes of evidence and made them part of the record of the case and

that Magistrate is succeeded by another Magistrate, the successor can decide the

case on the evidence partly recorded by his predecessor and partly recorded by

himself. It is not required that in every case where the case is sent to another

Magistrate, the evidence must be re-heard. It depends upon the particular case

and the manner in which the evidence has been recorded.

In Shivaji Sampat Jagtap v. Rajan Hiralal Arora220, the Hon'ble

Bombay High Court observed that, The succeeding Magistrate, however, in a

case, where the procedure contemplated under section 263 and 264 of the Code

and the

view is upheld in J.V.Baharuni v. State of Gujrat221.

9.5 PROCEDURE FOR TRIAL OF THE OFFENCES UNDER

PREVENTION OF CHILD FROM SEXUAL OFFENCES ACT
It deals the procedure followed for session trial. A special court may

take cognizance of any offence without the accused being committed to it for

220 Shivaji Sampat Jagtap v Rajan Hiralal Arora 122.

221 JVBaharuni v State of Gujrat (2015) Cri 357.
the trial upon receiving of the complaint of the facts which constitutes such

offence or upon the police report.

Special public prosecutor is appointed and defence counsel while

recording the evidence, examination in chief, cross examination and re-

examination is to be followed but the public prosecution cannot directly ask the

question to the child witness but he has to form the question and communicate

the same to presiding Officer i.e. special Court which shall in turn put up

questions to the child.

Similar procedure is followed in respect of the defence counsel with

further direction not to ask the question in aggravated form which disturb the

child.

Special court may permit frequent break to the child witness during the

course of trial.

The special court shall create child friendly atmosphere by allowing

parents, guardian on whom child has trust at the time of recording of his

evidence.

The special court shall ensure that child shall not called repeatedly to

testify and his evidence shall be completed within 30 days and case should be

disposed of within one year.

The aggravated question which affect the character of the child and his

dignity should not be allowed.

The identity of the child is not disclosed during the case of investigation

or trial subject to the satisfaction of the court.

In appropriate cases, special court may direct the compensation to the

child which suffering physical mental trauma because of sexual assault and
immediate rehabilitation of the child. The special court take precaution that

child is not exposed in any way to the accused at the time of recording of

evidence but at the same time, accused must be entitled to hear the statement of

child and also to communicate his advocate. The special court may also record

the statement of child through video conferencing or by utilizing the single

visibility result or curtain or any other devices.

The trial of child shall be conducted in camera and in the presence of

parents or any other person in the child trust or confidence and if the child is

not comfortable in court then his evidence shall be recorded any other place

including chamber of the presiding officer.

If child is not in a position to understand the language then he can simply

help or assistance with interpreter for recording evidence and also seek the help

of expert.

Unique feature is that provision of sec. 3 to 13 of the POSCO Act not

applicable in case of medical examination or treatment when child examination

or treatment is undertaken with consent of his guardian or parents or trustworthy

person. The provisions of this Act that having overriding effects.

The JJB is bestowed with the powers of the Magistrate under Cr.P.C.

Sec.4 (2) .The metropolitan Magistrate or JMFC is designated as a Principal

Magistrate of JJB. All criminal cases of a Juvenile in conflict with law who has

not completed 18 years of age are to be dealt with by JJB and not the regular

courts.

As soon as the juvenile is arrested, the officer in charge of police station

or the Special Juvenile Police Unit has to informed about the arrest to his parent

or guardian and to the Probation officer of such arrest to enable him to obtained
information regarding the antecedent and the family back ground of the juvenile

etc. A child may be produced before an individual member of the board, when

the board is not sitting (Sec.5 of J.J. Act 2000). The juvenile is to be produced

before JJB within 24 hrs of his arrest. The juvenile should not be lodged in

police lock-up or jail.

When JICL produce before JJB, the board either release him on bail in

bailable or non-bailable offence (sec-12) or may send him to observation home

pending inquiry (sec-33). The inquiry before the board shall be completed

within a period of four months from the date of its commencement. The period

can be extended for special reason. If the juvenile is not released on bail the JJB

should give short dates and in no case should the next date extend beyond 15

days of the previous date.

On the first production of the juvenile, if the board found ill-treatment

to the child, JJB can sent the child for medical investigation and provide

treatment. If the JGB board found ill-treatment, physical or sexual abused, than

save the communicated to the District & Sessions Judge for further proceeding

and the child be sent for trauma counselling.

On the charge sheet being filed, the JGB has to seek the report of

probation officer or a social investigation report. The JJB is required to consider

this report prior to passing any order with regard to rehabilitation of juvenile as

per section 15(2) of J.J. Act.

While recording the plea of Juvenile, the juvenile is asked whether he

has committed or not the offence, the sum and substances of accusation must be

read over to him. If the juvenile admits to having committed the offence, the

JJB has to pass appropriate order as prescribed u/s.15 of J.J. Act 2000. Even if
the juvenile pleads guilty, the JJB will continue the inquiry after passing a

reason order as to why chose not to accept the juvenile plea.

When the juvenile pleads not guilty or his plea of guilt is not accepted

by the JJB, the JJB has to record the evidence by examining witnesses. While

conducting an inquiry, JJB should follow the procedure laid down in Cr.P.C.

pertaining trial of summons cases.

On the basis of evidence and arguments advanced, the JJB has to pass

order u/s.15 of J.J. Act, 2000. The atmosphere during the inquiry should be child

friendly and that too in presence of parents if any or any other person who is in

near relations with the juvenile.

When any Magistrate not empowered to exercised powers of board, is

of the opinion that a person brought before him is juvenile or child he shall

without any delay record such opinion and shall forward him along with the

record of proceeding to the competent authority having jurisdiction over the

proceeding.

As per section 7 & 7A of J.J. Act, 2000, whenever, a claim of juvenile

is raised before any court, is of the opinion that an accused person was a juvenile

on the date of commission of an offence, the court shall make an inquiry, take

such evidence as may be necessary to determine the age of such person and shall

record findings to that effect. If the court finds a person to be juvenile on the

date of commission of the offence, it shall forward the juvenile to the board for

passing appropriate order.

The J.J. Board required to pass order u/s.15 of the said Act instead of

sentencing him. In no case J.J. Board can pass sentence. There is no

disqualification attached to conviction passed under section 15 of said Act

(sec-19).

A reading of section 138 in conjunction with s-177 Cr.P.C leaves no

doubt that the return of the cheque by the drawee bank alone constitutes the

commission of the offence and indicate the place where the offence is

committed. Therefore the place, sits or venue of judicial inquiry and trial of the

offence must logically be restricted to where the drawee bank, is located.

In Dashrath Rathod vs state of Maharashtra222, it held that place of

issuance or delivery of statuary notice or where complainant presents cheque

for encashment was relevant for the purpose of territorial jurisdiction.

By virtue of Section 143 of N.I. Act which was inserted vide amendment

Act, 2002 which empowered J.M.F.C. or M.M. to try cases summarily in

accordance with the provisions of sections 262, 265 of Cr.P.C. But if the nature

of offence of the case appears that a sentence of imprisonment for a term

exceeding one year may have to be passed or that it is for any other reasons

undesirable to try the case summarily, the Magistrate after hearing a parties and

record an order to that effect shall proceed to examine, rehear the case in the

manner provided by the said Code by invoking provisions of Section 262 to 265

of Cr.P.C.

The trial of case required to be concluded within Six months from the

date of filing of complaint. On filing of complaint the matter must be kept for

hearing and issuance of process. After issue process if the accused appeared bail

should be granted to him and thereafter plea of accused should be recorded,

when the accused plead not guilty, evidence on affidavit shall be taken by

222 Dashrath Rathod vs state of Maharashtra (2014) SC 3519.

invoking of Section 145 of N.I. Act. After completion of evidence statement of

accused u/s.313 came to be recorded, thereafter defence witness if any be

examined on oath. Thereafter arguments and judgment.

In Indian Bank Association vs. Union of India223, Hon'ble Supreme

Court issued following directions for speedy and expeditious disposal of cases

under 138 of N.I Act.

M.M/J.M. on the day when the complaint is presented, shall scrutinize

the complaint and if the complaint is accompanied by the affidavit and the

documents and are found to be in order take cognizance and direct issuance of

summons.

M.M./J.M. should adopt a pragmatic and realistic approach while

issuing summons. Summons must be properly addressed and sent by post as

well as by e-mail address got from the complainant. Court, in appropriate cases,

may take the assistance of the police or the nearby Court to serve notice to the

accused. For notice of appearance, a short date be fixed. If the summons is

received back un-served, immediate following action be taken.

Court may indicate in the summon that if the accused makes an

application for compounding of offences at the first hearing of the case and, if

such an application is made. Court may pass appropriate orders at the earliest.

Court should direct the accused, when he appears to furnish a bail bond,

to ensure his appearance during trial and ask him to take notice under Section

251 of Cr.P.C. to enable him to enter his plea of defence and fix the case for

defence evidence, unless an application is made by the accused under Section

145(2) for re-calling a witness for cross examination.

223 Indian Bank Association vs Union of India 3119.

 The Court concerned must ensure that examination-in-chief, cross-

examination and re-examination of the complainant must be conducted within

three months of assigning the case. The Court has option of accepting affidavits

of the witnesses, instead of examining them in Court. The complainant and

accused must be available for cross-examination as and when there is direction

to this effect by the Court.

Chapter 26 of Cr. P. C deals with the procedures relating to the offences

affecting the administration of justice. These provisions specifically deal with

offences of giving false evidence in the judicial proceedings as well as the

proceedings before the court. The term court under section 195(4) of Cr. P.C.

may be civil, criminal, revenue or Tribunal having empowered to record

evidence. Sec 340 provides the procedure for offence enumerated in Sec.

195(1)(b).

The court can act on application made to it or suo motu. It may be moved

by a person who is not party to the proceeding in relation to which the offence

is committed.

The appeal against the order of Magistrate or Court of Session is

provided under sec.341.

Sec. 344 provide the summary procedure to deal with the offences for

giving or fabricating false evidence. Summary trial is provided in respect of

commission of offences under section 193 to 196, 199,200, 205 to 211 and sec

228 of Indian Penal Code.

The very object of framing of charge is to accused person must know in

preciously and concisely as possible of the matter with which he is charged. The

charge contain particulars as to the time, place, of the alleged offences, the
person against whom or the thing in respect of which and in which manner

offence was committed.

Section 215 of Cr.P.C., says that no error in stating either the offence or

the particulars shall be regarded at any stage of the case as material , unless, the

accused was in fact misled by such error or omission and it has occasioned a

failure of justice.

As per section 216 of Cr.P.C. any court may alter or add to any charge

at any time before judgment is pronounced. However, if court is of the opinion

that because of addition or alteration of charge accused will be prejudice, Court

may direct the new trial or adjourn the trial for such period as may be necessary.

If after addition or alteration of charge, charge is one for the prosecution of

which previous sanction is necessary, the case shall not be proceeded with until

such sanction is obtained224.

Section 218 to 224 deals with joinder of charges. Section 218 (1) of

Cr.P.C. says that for every distinct offence of which any person is accused there

shall be a separate charge, and every such charge shell be tried separately.

However, on the application of the accused and if court is of the opinion that

such person is not likely to be prejudiced, magistrate may try together all or any

number of charges framed against such person.

Section 219 and 221 are the exception to section 218. Cardinal principle

of section 218 is that for every distinct offence there must be separate charge

and such charge must be tried separately.

Section 227, 239 and 245 Cr.P.C. are dealt with discharge of accused.

The Code contemplates discharge of the accused by the Court of Session under

224 Jasvinder Saini and others v State (2014) SC 841.

section 227 in a case triable by it; cases instituted upon a police report are

covered by section 239 and cases instituted otherwise than on police report are

dealt with in section 245.

From a reading of the aforesaid sections it is evident that they contain

somewhat different provisions with regard to discharge of an accused. Under

section 227 of the Code, the trial court is required to discharge the accused if it

power to discharge is exercisab the magistrate

considers, for reasons to be recorded that no case against the accused has been

Section 227

and 239 provide for discharge before the recording of evidence on the basis of

the police report, the documents sent along with it and examination of the

accused after giving an opportunity to the parties to be heard. However, the

stage of discharge under section 245, on the other hand, is reached only after

the evidence referred in section 244 has been taken. Thus, there is difference in

the language employed in these differences, and whichever provision may be

applicable, the court is required at this stage to see that there is a prima facie

case for proceeding against the accused.

The word discharged is distinguishable from acquittal. The accused

may be discharged if sufficient evidence is not there to proceed against him.

Magistrate has to apply his judicial mind to the facts of the case in order to

determine whether a case for trial has been made out by the prosecution. The

court is required to state reason for discharging the accused.

 It is a settled proposition of law that even when there are materials

raising strong suspicion against an accused, the court will be justified in

rejecting a prayer for discharge and in granting an opportunity to the prosecution

to bring on record the entire evidence in accordance with law so that case of
225
both the sides may be considered appropriately on conclusion of trial.

225
Sonu Gupta v Deepak Gupta (2015) SC 127.