Stages of Trial

Learning objective

Your work in court will largely relate to the filing of various kinds of complaints and
applications, and conducting trials. What does a trial comprise of? Read on to find out
the stages in the trial process and the role of each participant plays in a trial. While
reading about trials, try to think out how you can best perform your role of safeguarding
your client’s interest at each stage. Answers and hints will be provided in the following
modules, but keep looking for them now onward.

● Cognizance: ​A magistrate can take cognizance of offences. Cognizance signifies

that the Court is prima facie satisfied that an offence may have been committed.
The Court is at liberty to disagree with the conclusions reached by the
Investigating Agency and can refuse to accept closure reports or charge-sheets
wherein some persons are not named as accused or certain offences are not
included. If a complaint (as opposed to information/police report) is submitted to
a Magistrate who does not have the jurisdiction to take cognizance, he shall
forward it to a competent Magistrate.

o Ordinarily, no Sessions Court can take cognizance of offences. However,

some special enactments such as the Prevention of Corruption Act etc.
designated courts which are Sessions Courts are empowered to take
cognizance of offences.
o It is also pertinent to note that often public servants cannot be criminally
prosecuted without sanction from the appropriate government, i.e. the
Central Government or the State Government as the case may be.
Therefore, cognizance taken without such sanction for prosecution would
also be bad in law. Some other offences such as defamation, offences
relating to marriage or allegations against judges etc. also have specific
requirements before cognizance can be taken.

● Issuance of Court Process: ​On ​cognizance being taken by the Court, the
presence of the accused persons before it is mandatory. It can secure the
presence of the Accused persons in various ways:-

o In summons cases, i.e. cases where the punishment is below 2 years,

summons would be issued to the Accused Persons.
o In warrant cases, i.e. cases where the punishment is more than 2 years,
the Court can issue either a warrant or summons. Warrants are of two
types, bailable and non-bailable warrants. In bailable warrants, the
Accused Person can appear by himself failing which he would have to pay
a fine. In non-bailable warrants, the Accused person will be brought before
the Court in police custody. If warrants are not complied with, the Accused
person is proclaimed to be an offender and absconding from justice.
Thereafter, proceedings are initiated for attachment of property of the
absconder.
o Court process can be issued not only to Accused Persons but also to
witnesses or other persons whose presence the court requires to be

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 present before it for a proper adjudication of the case. Usually, for
witnesses, a summons would be issued failing which a bailable warrant
would be issued to secure presence if the summons is not answered.
o It is pertinent to note that in cases of Complaints (i.e. cases which are not
based upon a police report), the Magistrate before taking cognizance may
enquire or direct a police officer to investigate whether there is a ground
for proceeding. In cases where the offence is alleged to have been
committed by persons who are outside the jurisdiction of the Magistrate, it
is mandatory that an enquiry be conducted before taking cognizance. This
enquiry usually consists of pre-summoning evidence taken on oath. On the
conclusion of this evidence, the Magistrate will determine whether or not
cognizance can be taken and thereafter process issued to the Accused.

o What to do when you cannot comply with court process: As an Accused or

as a witness, it is important to ensure that you do not fail to comply with
the Court’s order. Willfully disobeying the order of a Court can have penal
consequences. However, Courts also function in the real world and
therefore it is not always possible for the Accused or witness to appear on
dates which often, the Court may unilaterally decide. For both witnesses
and Accused, it is necessary that the reasons given are, as far as possible,
backed up by documentation. (Eg.- If ill-health is the reason you are
unable to go, then a medical certificate, or if you have a personal
engagement such as a wedding then the wedding invitation card.)

■ As a witness, you can in response to a Summons, simply write a

letter to the Court stating your inability to appear on the date
mentioned in the Summons along with the reason for doing so as
well as propose a date which is convenient to you. It does not
however, mean that the Court would fix that date, but it would
probably ensure that no adverse orders are passed against you as
the witness. You should send this letter by hand if possible or else
by registered post if there is sufficient time between the date you
receive summons and the date you are to appear before the Court.
For example, in response to summons, a witness can probably
write:

I am in receipt of summons dated [date] issued by

[Designation of Court, Place] requiring me to attend as a
witness on [date]. However, I would be unable to attend the
aforesaid court on the said date as I would be travelling
abroad for work from [date] to [date]. I would therefore
request that I may be permitted to appear on any date after
[date].

However, you should only do this in cases of genuine difficulty and

not in cases where it is possible for you to attend the Court.

■ As a principle of criminal trial, the proceedings are to be conducted

in the presence of the Accused Person. There is however, some
confusion in the interpretation of law on the point of whether, if the
Accused chooses to not be personally present, then whether the

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 Court can liberally allow the Accused to be represented by a lawyer
only. As an Accused who is on bail, one has to file an application
seeking exemption from the Court stating the reasons. This should
ideally be moved well in advance if it is for an extended period of
time, but usually, can be moved on the same day in most cases.
However, this is viewed as a favour the Court does to the Accused
and therefore the Accused should as far as possible remain present
and seek exemption only when absolutely unavoidable. The reasons
and supporting documents for exemption are generally more
closely examined. In special cases, the Court may also grant
permanent exemption to the Accused person. For example, if the
Accused is old or chronically ill or disturbs proceedings persistently,
then the Court can permanently exempt the Accused from
appearing provided he is represented through his counsel. See
section 317 CrPC.

An interesting judgment on the point would be the Delhi High Court decision in
Chandramouli Prasad’s case.

● Supply of Documents and Deficiencies: As a part of ensuring fairness of the

trial, it is important that the Accused is supplied all the material that is being
relied upon by the Prosecution free of cost. The Court is required to furnish a copy
of the Chargesheet, statements under s. 161, 164 and other documents relied
upon. The Accused would have to scrutinize documents and point out deficiencies,
if any, in the documents such as them being incomplete, illegible etc. Often
documents which may be relevant (but perhaps inconvenient to the Prosecution)
may not be relied upon in the Chargesheet but may have been seized during
investigation. In some cases where the documentation is voluminious, the
Accused may be able to get atleast a few weeks to scrutinize documents. An
application under section 207 CrPC would require to be filed. See Module III

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 where applications under section 207 are explained in more detail. It is important
to distinguish between an application under s. 91 CrPC and s. 207 as s. 91 only
applies to documents which have not been seized by the Investigating Agency.
Where the Court is not required to provide a copy to a party, the party to a
litigation can apply for inspection of the court record and also apply for certified
copies of the relevant material on nominal payment.

● Arguments on Charge​: This is an important phase of the trial wherein the Court
considers the question as to whether or not charges are to be framed. The
Prosecution argues as to why charges are to be framed whereas the Defence gets
a chance to argue why not even a prima facie case can be made out from the
material on record. At this stage the Defence is not permitted to introduce
material other than what is relied upon in the Chargesheet. The Accused can
consider filing an application for discharge. It is pertinent to distinguish a
“discharge” from an “acquittal”. An acquittal takes place if a finding of not guilty
is made at the end of the entire trial after charges are framed, evidence recorded
and arguments addressed. A discharge takes place before charges are framed.

● Framing of Charge & Recording of Plea​: If after arguments on charge, the

Court comes to the conclusion that no case for discharge has been made out,
then it shall proceed to frame charges. The Court is not bound by the charges
mentioned in the Chargesheet or the FIR and is free to frame charges that it has
the jurisdiction to try which it thinks are made out from the facts of the case. The
charges are to be read out and explained language understandable to the
Accused. The Accused then is to state whether he pleads guilty or not guilty to
the charges. If the Accused pleads guilty, then the Judge is required to explain
the consequences of doing so and thereafter impose the punishment or fine
provided for. If the Accused pleads not guilty, then he is deemed to claim trial.
The Court will then proceed to summon prosecution witnesses.

● Examination of Prosecution Witnesses: ​The prosecution witnesses first take

the stand wherein the prosecution seeks to prove its case. For each witness, the
steps are as follows:

o Examination in Chief- In this, the Prosecution is to lead evidence and mark

documents which would be helpful in proving the prosecution case as
Exhibits. In Examination in chief, no leading questions (i.e. questions
which themselves suggest an answer) are permissible.

o Cross-examination: The Defence here gets a chance to test the

prosecution case and find gaps or improvements in the story of the
prosecution. Here the questions which may be asked are much broader
than what is permitted in examination in chief. This is probably one of the
most crucial aspects of witness examination.

o Re-examination: ​Often certain inconsistencies are found or additional

aspects arise during cross examination which the prosecution may seek
clarifications on. After re-examination, the Defence counsel again has a
chance to cross-examine the witness on the issues raised by the
Prosecution in re-examination. [More details can be found in the Module
on Conducting Criminal Trials]

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 o The Supreme Court had issued directions for taking testimony of certain
categories of persons. These guidelines related to conduct of in-camera
proceedings or the presence of a screen separating the victim/ witness and
the accused while conducting the trial. Therefore, when testimony of a
child victim or other kinds of vulnerable witnesses (e.g. prosecutrix /
victim of a sexual offence is taken), the prosecution/ counsel for the victim
may have to make a request for special measures to protect the victim so
that he or she is able to depose safely. Taking cue from this, different
guidelines have been passed across the country to implement the
Supreme Court guidelines. For example, in Delhi, the Delhi High Court has
released the ​vulnerable witness guidelines​, t​ o be followed by all criminal
courts in Delhi, while taking evidence from any child who is under 18 years
of age (defined as a vulnerable witness under the guidelines). These
guidelines provide for in-camera proceedings (where the court may ask
the press and other audience to vacate the room), presence of a screen
between the accused and the witness, use of voice-altering devices or live
video transmission of testimony from another room. The court may also
grant police protection or impose ‘no-contact’ bail conditions against the
accused.

● Statement of the Accused: ​After the conclusion of prosecution evidence, the

Court puts to the Accused all the evidence which is presented against him and
seeks his explanation. However, during this stage, no oath is administered and
the Accused is in the position of a “privileged liar” as he has the right to be
protected against self incrimination. The Supreme Court has however held that in
cases which are based entirely upon circumstantial evidence, silence or
misleading answers given by the Accused can be used to complete the chain of
circumstances. No questions are asked by any person except the court. ​(Refer to
Section 313, Criminal Procedure Code)

The accused also has the option of choosing to appear as a defense witness. In
such a case he or she will have to give evidence on oath and he or she is
susceptible to examination-in-chief and cross-examination. If the accused refuses
to appear as a witness no adverse inference will be drawn. This is usually not a
common practice. This is a high risk strategy for any accused - if the judge finds
the testimony of the accused to be reliable, there may be good chances of his or
her acquittal. On the other hand, it also makes him or her more vulnerable to
cross-examination by the prosecution. (​Refer to Section 315, Criminal Procedure
Code​)

● Defence Evidence: ​This is upto the discretion of the Accused as to whether or

not he wants to lead defence evidence and will follow a pattern similar to
prosecution evidence. Usually however, the Court will be reluctant to allow too
many defence witnesses as the Accused may otherwise use this as a step to
protract the legal proceeding.
● Arguments: ​This is the final stage of the criminal trial wherein the evidence is to
be gone into in detail and each side will try and use the evidence and documents
which support its case.

● Judgment: The Court writes the judgment after hearing all the evidence and

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 arguments to determine whether or not the Accused is guilty of the offences he
has been charged with. The judgment must address all the issues raised and
needs to be a reasoned order.

● Order on Sentence: If the Accused is found guilty, then a separate hearing is

required to be held on the issue of quantum of the punishment to be awarded. At
this stage, the Accused can seek suspension of sentence or probation if permitted
under law. The time spent in custody is also generally set off against the sentence
actually awarded to the Accused.

● Probation ​– As a counsel for the defendant, ensure that you see if your client is
eligible to probation and pray for it. For probation, see the following provisions:

o Section 360 of the Criminal Procedure Code

o Sections 3, 4 and 6 of the Probation of Offenders Act, 1958.

● Appeal – After the judgment and the order on sentence, you may take a decision
on filing an appeal. On the prosecution side, the victim or the Directorate of
Prosecution can file an appeal. On the side of defense, the accused may decide to
file an appeal (along with an application for suspension of sentence). The right of
appeal is provided in the Criminal Procedure Code. See the chapter on appeals for
more details on this. In criminal cases, Supreme Court has special powers to hear
appeals (contrary to civil cases, where it is mandatory to file a Special Leave
Petition or obtain a certificate from the High Court to appeal). As per the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (see
here​), one can appeal to the Supreme Court (from a High Court’s judgment) if:

o The High Court has reversed an acquittal and sentenced the accused to
imprisonment exceeding 10 years.

o The High Court has taken up a case proceeding in the trial courts upon
itself and sentenced the accused to imprisonment exceeding 10 years.

● Special leave petition (SLP) – A special leave petition is possible to the

Supreme Court from any order or decision of any lower court, and is usually
preferred where there is no statutory right of appeal. It is discretionary upon the
Supreme Court to admit and hear the petition. See the discussion on SLPs for
more on this.

The above discussion explained the investigation and trial process – which is broadly
discussed in the CrPC. Now that you are conversant with these, it is time to move on to
criminal drafting and trials. In later modules, you will also learn about more technical
aspects (not discussed in CrPC) such as case management, listing, cause lists, etc.

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