 have missed the questions. So they were all fully geared up to first have the questions so that it can be taken up. As usual, the first question would be taken by Mr. Prem today and then Mr. Shyam and then third would be taken by me. And today's formal introduction would be by Mr. K. V. J. Rao, an aviation expert. And then we will request Mr. Rampu to take things forward. What do you say? Thank you. Good evening everybody. It gives me a pleasure welcoming you all to hear this. Sir volume, volume at your end. Full, sir. My volume is full, sir. Okay. You can hear me? Yeah. Yeah, okay. It really gives us a pleasure to interact and hear just as Ram Kumar. I mean, he's a doyen. He has vast treasure trove of knowledge. And I mean, to put words to introduce himself is very difficult to find those words. However, it is always a pleasure learning from him. And the good thing about him is he's willing to debate and discuss and address issues. And that is the most important thing. And I once again hand over the platform now to just as Ram Kumar and let us hear it out, sir. Thank you, Mr. K. V. J. Rao. Good evening, friends. Many of you may be wondering as to why such an elementary topic has been slated for discussion today. I know that even Mr. Vigas Jentrath must have entertained the feeling that a topic of this nature was unnecessary. Although he might have been reluctant to put it straight to me. But I'm sure that... Sir, I'm just reminded that back to roots. But I am sure that after this session, at least some of you will be convinced that this lecture was fully justified. I begin my lecture with the usual prefatory statement that I may not be treated as an expert in this branch of law. I'm only a facilitator interested in sharing his knowledge and experience with you in the hope of only to rekindle your dormant thought process so that I can also learn many things from you. As every teacher, whenever he teaches, he also learns the law, learns the subject. As I always used to say, any law is better understood when actually applied to concrete fact situations. That explains these questions. Friends, the expressions trial and criminal trial continue to be baffling conundrums, which at times puzzle the bench and the bar alike beside the academic intelligentsia. Anyway, let us try to see whether we can understand more of the subject. Shall we go to the questionnaire? Yes, sir. First question. Yes, as Ramkumar said, this is just dealing with a particular word, trial, what is trial. And all of us would think it is very, very, very simple. But in fact, it is not. Because this particular word, that is having meanings, I mean, different texts in different contexts. And that is why it has not been purposefully defined in the interpretation clause also. It is not there. And we have seen the decisions right from the state of Bihar was a rambuneration in 1957, Preacher's Pins, up to the latest, Gidubai Haribai Malabi of 2019, another Preacher's Pins by Justice Nariman saying what exactly is a trial and from which particular juncture trial commences. Anyway, to begin with the subject, I would ask the first question, just Ramkumar sir. The first question is, what is trial in the context of the criminal case? As rightly mentioned by Mr. Prem, the Code of Criminal Procedure 1973, which is our present CRPZ, does not define the expression trial. The Code of Criminal Procedure 1898, which immediately preceded our present CRPZ, also did not define the expression trial. But the Code of Criminal Procedure 1872, that is Central Act 10 of 1872, did define the word trial as follows. Trial means the proceedings taken in court after a charge has been drawn up and includes the punishment of the offender. It includes the proceedings under chapters 16 and 18 from the time when the accused appears in court. This was the definition attempted in 1872 Code. But this definition was to be strictly applied to this definition, then every proceeding after the appearance of the accused and the framing of charge leading to the acquittal or conviction and punishment of the accused would be trial. Then such a definition driven to its logical conclusion would even include a conviction, recorded and punishment imposed on the accused, consequent on his voluntarily pleading guilty. But does it involve a trial in a case where he voluntarily pleaded guilty? The court straight away convicts him and passes an appropriate sentence on him? I don't think so. No wonder the 1898 Code as well as the present Code of 1973 did not choose to repeat the earlier definition of the word trial. But instead of attempting a proper definition of the word trial, these two Codes in fact dropped the definition altogether. Then we may have to go to some other statutes to find out what exactly is a trial. Section 27 of the Banger's Book Evidence Act 1891 defined the word trial as follows. Trial means any hearing before the court at which evidence is taken. This is also not very helpful. But then it only indicates that trial takes place before a court and before which evidence is adduced. Even though the CRPC does not define the expression trial, there has been an attempt to judicially define the said expression. In Union of India versus Major General Madanlal Yadav, 1996, 4 SCC 127, a three-judge bench of the Supreme Court, observed as follows. It would therefore be clear that trial means an act of proving or judicially examination or determination of the issues, including its own jurisdiction or authority in accordance with law or judicially adjudging the guilt or innocence of the accused, including all steps necessary there too. This definition was approved in paragraph 30 of the Constitution Bench decision in Hardeep Singh's case, Hardeep Singh versus state of Punjab, 2014, volume 3 SCC 92 corresponding to AIR 2014 Supreme Court 1400, five-judge's Constitution Bench, rendered by Dr. Justice B.S. Chauhan. But Madanlal Yadav, the three-judge bench had gone one step further to say that trial commences the moment cognizance of this thing. And process is issued. This extreme view was disapproved by Hardeep Singh in paragraph 35. That is where we stand, trial. So trial, in the absence of a concrete definition, we are left to the judicial interpretation of the word trial. Shall we pass on to question number two? So usually, the problem I think arises from the fact that we are so used to the term trial in civil proceedings as starting of evidence. When we produce a document, the original will be produced at the time of trial. Meaning that in the year of tendering of evidence or the matters listed for trial, that means with us should be ready. I think that might be the reason why it is so much of confusion is being there also. So the question would be, the criminal procedure court, which does not define the expression trial, however, defines the expression judicial proceeding under section two I as follows. To one safe, judicial proceedings includes any proceeding in the course of which evidence is or may be legally taken on oath is not a magistrate. Recording a confession or a statement under section 164 CRPC, conducting a judicial proceeding as defined under section 2 I of CRPC. So going by the definition of judicial proceeding, it includes any proceeding in the course of which evidence is or may be legally taken. So the question is whether 164 proceedings before a magistrate, a witness or a victim is sponsored by the police before a magistrate for recording his 164.5 statement or an accused voluntarily goes to the magistrate and offers to make a confession. He need not be sponsored by the police, as you know. Then the magistrate recording a confession or recording a statement of a witness is he conducting a judicial proceeding is our question. You will be tempted to say that it is a judicial proceeding. But no, a magistrate acting under section 164 CRPC during the stage of investigation is not acting as a court and therefore the recording of confession or statement is not done in any judicial proceeding. At that stage of investigation, such person cannot be strictly called an accused or a witness and there is no trial of a fact in issue or a relevant fact. As you all know, evidence can be used only regarding a fact in issue or a relevant fact as declared by section 5 of the evidence act. It is not done either of these things when a 164 statement is recorded or a confession is recorded. There is a beautiful decision by a full bench of the Bombay High Court in Emperor versus Purushotham Ishur Amin, 1920 ILR 45 Bombay 834 full bench. Then where it was held that a statement recorded under section 164, CRPC is not evidence in judicial proceeding. Then the classic decision, Naseer Ahmad versus Emperor, AER 1936 Privy Council 253 in paragraph 12. The Privy Council held that the magistrate exercising power under section 164 CRPC is not acting as a court. Then there are other rulings also AER 1963 Alabad 308. Again AER 1964 Alabad 294 full bench of the Alabad High Court presided over by Chief Justice Desai, a beautiful decision. I am thankful to Mr. Premraj for once giving this citation. He had one occasion to give me this citation. The full bench decision is rendered by the Chief Justice Desai. Beautifully explained why it is not a judicial proceeding recording of confession. Yes, shall we go to question number three? Yes, sir. Normally, while you are remembering, they say that you should remember by manomics. So here it is, they say it is IIT, that is investigation inquiry and trial. What is the difference between the three? Yes. Now section two edge of the CRPC defined the expression investigation, which includes all proceedings under the CRPC for collection of evidence. That is investigation. The definition of inquiry under section 2G CRPC is not very helpful since it means inquiry means every inquiry other than trial. That is not at all helpful. A trial cannot come in as long as an investigation or an inquiry does not come to an end. In an investigation or inquiry, one aspect to be noted is evidence is usually collected, not in the presence of the accused. But the evidence so collected behind the back of the accused is adduced in his presence during the trial of the case. See the difference? While collection of evidence is taking place behind his back, the evidence is adduced during trial in his presence. This was taken note of by a three judge bench in Bipin Chandra Purshottam Das Patel versus Tato Gujarat 2003 volume 4 SCC 642 three judges. In fact, you may also notice that section 273 CRPC also say that evidence is to be ordinarily taken in the presence of the accused. It is he has a right to be present when the evidence is adduced before the court during trial. Now, though the expression trial has not been defined in CRPC, the expressions like inquiry and investigation has contained in section 2G and 2H near of have been defined, but not to a not very satisfactorily. The world trial is clearly distinguishable from inquiry and inquiry must always be a forerunnel of trial. Rather, it is only after the conclusion of inquiry that trial can begin. That has been taken note of by the by the Supreme Court in two decisions which went from Kerala, Vela Vidhan versus Tato Kerala 2004 volume 1 SCC 215 corresponding to AIR 2004 Supreme Court 536 and Moli versus Tato Kerala 2004 volume 4 SCC 584 corresponding to AIR 2004 Supreme Court 1890 1890. But you may kindly note that this Vela Vidhan and Moli both were overruled by a three judge bench on another point, not on this point on another point there where a session score takes cognizance without a commitment and conducts trial without a demar by the accused. These two decisions held that that trial is initiated. That was overruled by a three judge bench holding that no it is only in irregularity. The accused has no objection and he has undergone the trial without any demar. Then you cannot say that trial is initiated. It is a curable irregularity. So that that is Ratiram, Ratiram versus Tato Madhya Pradesh AIR 2012 Supreme Court 1485 three judges. But this aspect of Moli and Vela Vidhan that is inquiry is a forerunner of trial has not been overruled. In fact in Hardeep Singh's in the constitution bench in Hardeep Singh AIR 2014 Supreme Court 1400 at Para 27 Moli versus Tato Kerala has been specifically appell this aspect of Moli. Therefore you cannot say that Moli stands overruled. He is overruled on a different point. In the case of a private complaint, free trial proceedings under sections 200 201 and 202 CRPC constitute inquiry. When a private complaint is filed and the magistrate after applying his mind decides to proceed under chapter 15 by recording this own statement and then proceeds to 201 or 202 which is also inquiry on a private complaint. And then this inquiry and an inquiry under section 389 CRPC are also inquiry in the in the context of section 319 wherein an additional person can be arrayed as an acute over and above the acute already facing trial. This was observed by the constitution bench in Hardeep Singh's case at Para 117.2. Now an inquiry under section 389 CRPC is strictly not an inquiry for all purposes. For example dismissal of a complaint, 389 inquiry, you will like dismissal of a complaint under section 203. Then dismissal of a complaint for failure to pay the court fee under section 2044. There also an inquiry under 389 can be ordered. Then discharge of an acute. There also an inquiry under 389 can be ordered. But by whom? Not by the magistrate, either by the session court or by the high court, sitting in the revisional jurisdiction. Therefore one aspect we will have to, we will have occasion to refer to that this inquiry when we refer to 389 and 319, 319 CRPC. Now in the case of, in the case investigated by the police, inquiry before a court ordinarily start after the submission of the charges. Once the charge sheet or final police report is filed before a court after investigation, then inquiry starts and it will continue till commencement of trial. That is what Hardeep Singh in paragraph 25 and 43 said, it will continue till commencement of trial. But then in Para 43 itself, the constitution bench would say that during the stages of sections 207 and 208 complying with the 207 and 208 and the stage of committal 209, there is only application of mind and not judicial application of mind. With due respect, I have my own reservations about this aspect of the statement in Hardeep Singh because you can't say that after the inquiry has started with the filing of the charge sheet, there is a stoppage of the inquiry when it comes to 206, 207, 208 or at the time of committal. We'll have occasion to deal with that in detail. Now once again, in fact in there's one decision in which Justice Sadashivami is a party who was also a party to the constitution bench. That is Sajjan Kumar versus EBI 2010-9 SCC 368 in which it was held that a magistrate inquiring into a case under section 209 SCR busy is not to act as a post office and he has to consider whether the case is fit for commitment to the court of session. If he is not to act as a post office and if he has to consider the fitness of the case for commitment to the court of session, is he not applying his judicial mind? Then again in paragraph 24 of Dharampal, another constitution bench decision, Dharampal versus state of Haryana, 2014 volume 3 SCC 306 corresponding to AIR 2013 Supreme Court 3018, five judges judgment by Justice Altama Kabir. It has been held that it is open to the committal magistrate to disagree with the police report and issue summons to persons whose complicity has been revealed by the records and thereafter commit the case to the court of session. What else is the magistrate doing when he is doing that, when he is finding out whether other persons who have been charged cheated or the complicity is also revealed by the records and if he can proceed against them also, what is he doing? I have my own doubts about that, barring that, there is no problem. Then there are two other beautiful decisions namely state of Pihar versus Ram Nareesh Pandey, 1957 Supreme Court 389, three judges, there is Jagannath Das, Justice Imam and go in the Menon and then Rajendra Kumar, Jain versus state of special police establishment, AIR 1980 Supreme Court 1510 by none other than Justice Yarkrishna and the Chinnapradhi, judgment by Justice Chinnapradhi wherein the apex court held that a committal magistrate has the power to judicially apply his mind and give consent for withdrawal from prosecution even in a case exclusively tribal by court of session. What exactly is the session is the magistrate doing, committal magistrate is applying his judicial mind to give consent for withdrawal from prosecution, this can be done even in a case tribal by court of session therefore to that extent I have some then another very interesting case that is a three judge bench of the Supreme Court in Tota Vengadeshwar Luu who is the state of Andhra Pradesh, AIR 2011 Supreme Court 2900 holding that prior sanction of the central government under the proviso to section 188 CRPC is not necessary for taking cognizance of an offense committal outside India and falling under section 188 it is in fact this proviso says no inquiry or trial, no inquiry or trial, taking cognizance is it not an inquiry when after the filing of the charge sheet the court we have already seen the constitution bench is ruling then when the court applies his mind to the papers the charge sheet produced along with the charge sheet it is inquiry then the three judge in fact this three judge bench was mechanically following an earlier two judge decision in Ajay Agarwal versus union of India to the to the effect that previous sanction of the central government is not necessary for and even if it is necessary under section 188 such sanction could be obtained before trial begins before trial begins there is an inquiry section the proviso to section 188 says no inquiry or trial in fact in Ajay Agarwal this question did not arise at all both justice Ramaswami as well as justice Hai both had both judges had given separate judgments to hold that the part only a part of the offense was committed in Dubai the offense was only the conspiracy was hatched in Chandigarh and the culminated also in Chandigarh only a part of the offense was committed in Dubai therefore both the judges clearly held that section 188 is not attracted if section 188 is not attracted where is the question of applying the proviso to section 188 when part of the offense was major part of the offense was committed in India not outside India therefore it was this passing observation in Ajay Agarwal which was followed by the three judge bench to hold that even if sanction is necessary it can be produced before trial that means after an inquiry and where what about the what about the relevance of the word inquiry in the proviso I course can of course say that even though the word inquiry is used it can only be trial such an interpretation can be given but not to say that no it can be produced before trial this is this is the distinction between investigation inquiry investigation after conclusion of investigation which is a police investigation case they will file a final police report after the filing of the police report inquiry start before a court if it is a private complaint inquiry starts the moment the private comes the magistrate applies his judicial mind for the purpose of proceeding under chapter 15 there are from that stage onwards inquiry starts and then inquiry will come to an end as observed by this two judges two cases from Kerala which was approved by Hardeep Singh that it is a forerunner of trial after a conclusion of inquiry inquiry trial starts this is the three major these are the three areas of investigation inquiry and trial I suppose I am clear to you yes we will go to question number four sir just before going to question number four yes regarding this question number three you have to go to Dharampal's judgment Dharampal also is a constitutionalist decision of 2013 now sir cognizance is taken of the offense not of the offender but it is a Dharampal judgment yes that decision states that cognizance of a session of an offense which is tribal by a sessions can no longer be taken by a magistrate it must be taken by the session judge after committed so cognizance of a police report or a final report which is filed by the police is always taken by the magistrate section 191 b exactly I was not only that supposing the magistrate is satisfied that an offense exclusively tribal by a court of session is revealed why should he take the case on file as CP exactly he's taking cognizance of that offense so the judgment of the constitution even in Hardeep Singh yes rest in that it lends support to the correctness of this constitutional engine Dharampal yes requires reconsideration requires not agree requires reconsideration you are absolutely right so the fourth question is what is the object of criminal law why should there be a criminal law what is the its object it was beautifully stated in a judicial bench ruling of the Kerala court comprising of justice KT Thomas and justice Chetur Sishankaranaya in uh state of Kerala versus the Narayan and Bhaskaran 1991 to KLT 217 corresponding to 1991 criminal law journal 238 to say that the object of criminal law is to suppress criminal enterprise and to punish the guilty is not only to punish the guilty to suppress criminal enterprise also as you all notice see the IPC does not say you shall not commit murder you shall not commit rape IPC does not say Indian penal code does not say you shall not commit murder you shall not commit rape if you go over commits murder over commits rape this shall be the punishment that's all so the purpose of criminal law is to suppress criminal enterprise and to punish the guilty whoever is found guilty beautifully stated by the judicial bench then in paragraph nine of Harbin Singh versus Eto Punjab a year 1962 Supreme Court 439 the Supreme Court speaking through justice KC Das Gupta probably is the same Das Gupta who was referred to by Chief Justice Kanya in um RR Chari's case 50 Supreme Court it is a court it is a court duty to convict a guilty person when the guilt is established beyond reasonable doubt no less than it is his duty to acute the accused when such guilt is not established so both are the duties of the criminal court not to see that a a an innocent person is found is set off even a guilty person should be punished that is also duty of the court yes question number five my question is a continuation of what by mass how is that object or objective achieved through criminal trial yes that object can be achieved only by through a fair and impartial trial as guaranteed by article 21 of the constitution of India in which justice is done not only to the victim but also to the team to the accused and also to the society at large society at large is also interested in the outcome of a prosecution Amiga Prasad versus state Delhi administration a year 2000 Supreme Court 718 then again Asha Ranjan versus state of Bihar a year 2017 Supreme Court 1079 again Gopala Krishnan P al alias Dilip versus state of Kerala a year 2020 Supreme Court page one all the decisions have highlighted the fact that it has to be a fair trial conformity with article 21 of the constitution of India etc then another aspect is presumption of innocence and benefit of doubt one of the cardinal principles we should always be observed in our system of administration of justice in criminal cases is that a person arraigned as an accused is presumed to be innocent until and unless found guilty by a court of competent jurisdiction another golden thread which runs through the web of administrative justice in criminal cases is that if two views are possible on the evidence adduced one pointing to the guilt and the other in favor of the accused courts are bound to take the view favorable to the accused provided this rider is important on the evidence two views should be available only if two views are reasonably possible then only this principle did the you may refer to Kali Ram versus state of Himachal Pradesh a year 1973 Supreme Court 2773 in fact this decision is also an authority for the proposition that an investigating officer by by having communications correspondence cannot circumvent 162 the bar under 162 then Shio Nandan Paswan Shio Nandan Paswan versus state of Bihar a year 1983 Supreme Court 194 again Nisha Rally versus state of UP a year 1957 Supreme Court 366 then again the beautiful observation by Vaikon Simon a judge does not preside over a criminal trial merely to see that an innocent man is punished a judge also precise to see that a guilty man does not escape both are public duties of the court as per Vaikon Simon in Stirland versus director of public prosecution 1944 appeals cases 315 this court was approved by the Supreme Court at least in two cases a that is state of AP versus Anil Singh a year 1988 Supreme Court 1998 again state of Punjab versus Karnail Singh a year 2003 Supreme Court 3609 there may be other cases also his beautiful proposition lay down in in Stirland was noted with approval by the Supreme Court then in Jaya Lal Sahu versus state of Orissa there's a beautiful decision by justice Arjun Pasahit heading a division bench in of the Orissa High Court wherein his lordship has the highlighted the fact that just as an just as an innocent person should not be punished a guilty man should not go unpunished both are equal both are important in then another aspect of fair trial is delay in completion of trial on the question of undesirability of protraction in the prosecution and resultant trial a constitution bench of the Supreme Court way back in the year 1954 observed as follows it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime the public interest demands that criminal justice should be safe and sure and that the guilty are punished while the events are still fresh in public mind and the innocent is absorbed as early as consistent with a fair and impartial trial see what beautiful statement criminal trial should be very safe and both the innocent should be set free as early as possible likewise a guilty person also should be punished as early as possible there's the when the memory is still fresh in the public mind as MS Sherry versus state of Madras a year 1954 Supreme Court 397 constitution bench judgment by justice Vivian Joe's Vivian Bose then judges we are Krishna here also had occasion to mention about the delay in trials Shivaji Shahab Rao Bobaday versus state of Maharashtra a year 1973 Supreme Court 2622 made a pertinent observation at the opening of the judgment itself one of the misfortunes our criminal process which stifles penal justice is the counterproductive course of trial and appeal each removing a lengthy lengthening chain beautifully stated so these are these in fact is the the basics of a criminal trial it has to be swift it has to be sure and it has to be fair it has to be fair not only to the queue but also to the victim but also to the society at large yes we'll pass on to question number six yes sir when does trial start in a summary in a summons case now we come to the most important part of this lecture when does trial start in a summary and summons case see what is a summons case summons case means punishable with imprisonment for two years and below about two years warrant warrant trial now in a summary trial procedure is same as that of the summons trial namely 262 reduced section 251 251 is the crucial section courts have taken the view that the trial in the summons case starts when the accused in response to the process issued against him either appears or is produced before the magistrate and the substance of the accusation is stated to him by the magistrate under section 251 CRPC and the plea of the accused is recorded under section 252 252 CRPC so substance of accusation is stated to the accused by the magistrate under section 251 and the plea of the accused is recorded under section 252 trial starts is the view taken thereafter the procedure contemplator in chapter 20 CRPC has to be followed and the trial is to be taken to its logical conclusion is what para 16 of Subramanian said the ramen versus data Maharashtra 2004 2004 volume 13 SCC 324 corresponding to AIR 2004 Supreme Court 4711 three judges ruling as held now here I have some some reservations about this statement of law when the substance of accusation is put to the accused and he's please taken he has two options one I plead guilty or I do not plead guilty if he pleads guilty magistrate has got some some responsibility magistrate should be satisfied that the plea of guilt is made voluntarily made for that he will have to tell the accused my dear accused you are not bound to plead guilty even if you plead guilty this is the sentence impossible on this for this punishment for this offense and don't expect any leniency from me therefore even if you plead guilty there you you can be sentenced to this much period of imprisonment etc therefore you don't you don't have to plead guilty then if you want to think over it if you are under it under the influence of some policeman or somebody else that if you plead guilty you will be let off with a fine you are currently misunderstood don't be under such impression and if you want to think over it I'll give you time for reflection these are all the things which the magistrate will have to safeguard which the magistrate will have to follow before holding that he has voluntarily pleaded pleading guilty now which is the sub which is the foundation for a for an accused pleading guilty and the court convicting him where do you find the sub the foundation in the evidence law in the law of evidence the foundation for an accused to plead guilty and the court to convict him straight away it's a facet of section 58 an admitted fact need not be proved see section 58 evidence act says an admitted fact need not be proved and not understanding the official court under the proviso court cannot they ask for the opposite party to prove the case not to change the admission therefore it is a beautiful expansion of that principle an accused who has committed an offense may have the guilty feeling prick of conscience to say that why did I committed this offense why should I plead not guilty why should I tell fault total absolute falsehood before court I know that I committed this offense he has the prick of conscience therefore he has he is given the option to plead guilty only thing is magistrate should be satisfied that he is not influenced by any other extraneous influence once the magistrate is satisfied the magistrate can straight away convict him and impose an appropriate sentence that is the plea of guilt now supposing he pleads guilty and the magistrate volunteer he satisfied that he is voluntarily pleading guilty and convicts him and imposes an appropriate sentence on him is there a trial is there a trial there is no trial trial can commence only when he pleads not guilty then only he would say that I claim to be tried I want to be tried if he pleads guilty and the magistrate straight away convicts him and imposes a sentence on him there is no trial prosecution is not called upon to prove its case therefore that aspect has not been highlighted in many of the rulings then we pass on to question number seven question number seven immediately after his appearance in a summons trial case the accused filed an application requesting the magistrate to drop the proceedings since ingredients of the offense were absent in the substance of accusation proposed to be stated to him even though the magistrate was convinced that the ingredients of the offense were absent he dismissed the application filed by the accused relying on the dictum in Adalat Prasad versus Ruklar Jindal he are 2000 supreme court 4674 will the accused be able to successfully challenge the order passed by the magistrate yes see there is some confusion arising from K. Matthew which was overruled by Adalat Prasad K. Matthew said after the commencement of trial in a summons trial case a summons case after the commencement of trial that is after the substance of accusation has been read over to the accused and trial has started there is only two options before the magistrate conduct the trial and it will end in conviction or acquittal these are the only option there is no via media stoppage of the case but K. Matthew said no you can't deny such a power to the magistrate of course CRPC is silent but then what is not prohibited can be if a power a power which is not prohibited by the CRPC can be located in the magistrate this is what K. Matthew said in fact overruling a decision of the CRPC K. Matthew said that no even if the trial has started the court can in a summons trial case drop the proceedings now that is CRPC taken that different view but CRPC is overruled then about 12 years or so entire state throughout the country magistrates used to drop proceedings on some reason or the other applying K. Matthew then in Adalat Prasad 2004 Supreme Court 4674 AR 2004 Supreme Court 4674 Adalat Prasad the Supreme Court became wiser they said that no we we wrongly overruled because once summons trial trial has started with the substance of accusation being read out to the court the court can only come complete the trial to a logical conclusion either acquittal or conviction there's no via media stoppage of the trial or dropping of the proceedings that is what Adalat Prasad said and overruling K. Matthew now here what is the position and Adalat Prasad said the one the court has issued magistrate has issued process to the accused the process cannot be recalled and the magistrate cannot go back to the pre-process stage which he will amount to review which will amount to review that power is not there and inherent power is also not there for the magistrate unlike whereas in the case of a civil court civil court has got inherent power under section 151 therefore any wrong any erroneous stage any erroneous step taken by the civil court can be either suomoto or on application be corrected by the civil court either by virtue of its inherent power or by virtue of its review power or a 47 I suppose or a 47 TPC is the provision but such a power is not there in criminal court therefore Adalat Prasad said once after the process has been issued to the accused if you recall the process you are going to the pre-process stage for which there is no power therefore K. Matthew was wrongly decided that is what Adalat Prasad but here the the important question is not Adalat Prasad's application application of Adalat Prasad Adalat Prasad Subramaniam yes you are right in fact the the the principle which is which is applicable is Subramaniam Sethuraman because once this trial has started in a summon trial case with the substance of accusation being read out to the accused once trial has started of course Adalat Prasad will also apply and the court has no right to stop the case via media they have to complete the trial but this is the case where the substance of accusation is yet to be read over yet to be read over in fact the accused is satisfying the court that there are the substance of accusation are absent substance of accusation are absent in this case therefore what is it that you are going to read particulars of the offense ingredients of the offense are not made out when the ingredients of the offense are not made out where is the question of court reading the substance of accusation where is the court reading the particulars of the offense ingredients of the offense are absent therefore please don't read the ingredients of the offense against me because the ingredients of the offense are absent in this case therefore don't start the trial once you start the trial Adalat Prasad Subramaniam Sethuraman etc will apply and the court will be helpless to drop the proceedings court cannot but here is a stage when the ingredients of the offense are absent and don't frame the chart don't start the trial by reading the substance of accusation this is the in fact such a view was taken there was a kerala echoed in ananda veil versus food inspector 2010 volume 3 klt 49 corresponding to ilr 2010 3 kerala 145 and dr. kamala rajaram was a dysp that is the summons police charges this is a private company the earlier case is ananda veil is a private company the second one is a summons police charge summons case i that is come dr. kamala rajaram versus dysp spo police rural neyati gira 2005 volume 3 klt 617 corresponding to 2006 criminal law journal 1447 so please note the distinction try once trial starts in a summons trial case with the summons with the substance of accusation being read over to the accused particulars was often being read over to the accused being read over to the accused there is no via media court court will be helpless court will have to complete the trial but once the trial has not started as ala prasad our subramaniam subramaniam Sethuraman will not apply the trial is yet to start particulars of offense is yet to be read over to the accused this is a case where there is the ingredients of offense are absent therefore please roll don't read the substance of accusation please don't start the trial is the request of the accused yes i suppose i am clear earlier we spoke about when the trial starts in a summons in a summons trial summons trial now let us see how it starts in the or when it starts in a warrant case or a session scheme yes now the following are the provisions in the CRPC pertaining to the framing of charge in warrant and session trial warrant trial 240 section 240 is the provision for framing charge in a poly charge case and 246 is the private complaint case warrant trial then session trial is section 228 CRPC is the provision for framing of charge now in paragraph 28 of retinal banji methani which was referred to by her deep sinks constitution bench in her deep skin sink's case retinal banji methani versus state of marastra air 1979 supragoat 94 three judges the leading judgment is by sarcaria justice sarcaria there's an observation in paragraph 28 trial in a warrant case starts with the framing of charge prior to it the proceedings are only inquiry trial start with the framing of charge prior to it proceedings are only inquiry subsequently a four judge bench decision in vc shukla versus it cbi a year 1980 supragoat i think it is for jet is it not for him for jet it's for jet 80 supragoat 962 without reference to retinal banji made the following observation the proceedings starting with section 238 of the code including any discharge or framing of charge under section 239 or 240 amount to trial so framing of charge your discharge amount to trial her deep sink state of punjab five judges constitution bench speaking through justice doctor justice bs johan after referring to uh raj kishore prasad a year 1996 supragoat 1931 then retinal banji methani a year 1979 supragoat 94 then vc shukla a year 1980 supragoat 962 union of india versus madhalla yadav 1996 four sec 127 and common cause case a racial society that is a year 1997 supragoat 1339 concluded in paragraphs 35 and 43 that trial commences with the framing of charge trial commences with the framing of charge now in fact after retinal banji methani and other verdicts refer to there's a the the general understanding among the legal fraternity both the bench and the bar included including academicians the trial in a warrant or session trial starts session case starts with the framing of charge but this is really a mistaken impression about retinal banji retinal banji has viewed justice sarcaria has beautifully stated when does the trial start but only one sentence has been read out of context rather the the readers did not go beyond that sentence i will read that portion paragraph 28 trial in a warrant case starts with the framing of charge everybody read only that prior to it the proceedings are only an inquiry after the framing of charge if the accused pleads not guilty the magistrate is required to proceed with the trial in the manner provided in section 254 to 258 to a logical end 254 to 258 is under old gold corresponding to 246 to 248 of the presidency rpg therefore the justice sarcaria beautifully put it trial starts with the framing of charge after framing of charge is accused please not guilty then the magistrate is required to proceed with the trial to a logical conclusion this is the beautiful statement by sarcaria unfortunately the first sentence alone has been taken to say that trial starts with the framing of charge now we will see the sections the crpc section 242 one crpc is the provision for warrant trial in a poly charge case then 246 4 is the private company warrant trial 230 is the session trial in all these sections the the section says the accused please the accused does not plead guilty or claims to be tried does not plead guilty and the claims to be tried therefore trial is yet to begin he pleads not guilty i am not guilty suppose he pleads guilty there's no trial straight away the magistrate if he satisfied that the police voluntarily made he straight away award the convict the accused and award the punishment then then we will we will examine the logic of this argument different way also see if the accused voluntarily pleads guilty and magistrate is satisfied that the police voluntarily made is there a trial so just because the charge has been framed and the accused voluntarily pleads guilty there's no trial charge has to be framed accused plea of the accused is to be taken and the accused shouldn't say that i don't plead guilty i want the trial to be conducted then only the trial will start then we will examine this proposition in another way also see during the preliminary hearing in a in a case exclusively tribal by court of session session court conduct the preliminary hearing under section 227 crpc and if these sessions yet is satisfied from the record prosecution record that is an offense exclusively tribal by a court of session is not made out what is the procedure prescribed under section 228 1 b 228 1 a i'm sorry 228 1 a i'll read that section for you 228 1 a if after the if after consideration and hearing as a force that the judges have opinion that there is ground for presuming that the accused has committed an offense which which is not exclusively tribal by a court of session he may frame a charge against the accused and by order transfer the case for trial to the court chief judicial magistrate or any other judicial magistrate therefore session judge is framing the charge if trial start with the framing of charge trial has started before the session judge under section 228 1 a if you say that trial will start with the framing of charge trial has started before the session judge thereafter can you forward these can you transfer the matter to the CJM or the to the judicial magistrate of the class for trial and not only that see the wording the and by order transfer the not exclusively trial by court he may frame a charge against the accused and by order transfer the case for trial transfer the case for trial to the chief judicial magistrate or to the judicial magistrate of the class that means he is transferring the case only for trial trial is yet to take place nearly because charge has been framed you cannot say trial has started in fact you may see the session judge is not taking the plea of the accused session judge is only framing the charge he's not taking the plea and can the magistrate take the plea on this charge framed by the session judge can the magistrate take the plea of the accused on the charge you framed by the session judge he cannot he has not framed the charge so the magistrate will have to frame a first charge and take record the plea of the accused see see the beauty of the sections see the beauty of sections therefore it is not correct to say that trial before a session court or in a warrant trial or session trial starts with the framing of charge no wrong trial can start only when the accused pleads not guilty to the charge framed against him and claims to be tried so to sum up I will say that a proper understanding of Radhulal Banji Mitani and the above sections 240 246 228 would be to indicate that after framing of charge it is only when the accused pleads not guilty and claims to be tried that the trial can legitimately start am I clear yes sir thank you we pass on to question number nine yes sir uh is cognizance of an offense taken before or after the commencement of trial the simple question when is the cognizance of an offense taken is it before or after the commencement of trial it is only after cognizance taken and the process issued that the accused will be summoned to the court accused will enter appearance then only the question of framing charge and the commencement of trial will arise therefore cognizance is will always invariably precede the trial then question number 10 question number 10 is the final question yes why is that the stage of commencement of trial relevant in criminal proceedings because I have been I have been trying to impress upon you about the commencement of trial when does the trial start in a summon trial when does the trial the trial start in a warrant trial when does the trial start in a session trial etc why you might have been wondering why this man is a uh after all about the commencement of trial but the the commencement of trial has some meaning under in certain proceedings one for example recording of confession or statement under section 150 was ERPC cannot be done after the commencement of trial likewise holding of a test identification period VIP cannot be done after the commencement of trial for the the commencement of trial assumes importance then thirdly there cannot be any inquiry or trial without the previous sanction of the central government in a case covered by section 188 of the ERPC wherein offense has been committed outside India in view of the prohibition under the proviso to section 188 CRPC therefore there also commencement of inquiry or trial is relevant there I have already stated before you that Tota Venkateshwar Lu case where it was held that it is enough that the sanction is produced before commencement of trial that is after inquiry can it be done is my question then the fourth situation is session judge cannot withdraw or recall a case which he had made over to the additional session judge after the commencement of trial before the additional session code if you read section 409 2 subsection 2 of section 409 what the session judge makes over in a case is say session case for trial to the additional session code and the additional session code that has framed the charge and taken the plea and trial has started the session judge cannot withdraw the case to himself by virtue of the 409 by virtue of the bar under section 409 2 the ERPC but there is one decision of the Kerala Icon Deution Bench Virendra Kumar versus Vijayan 2005 4 KLT's 475 this bar will not apply if the session judge were to transfer the case from the additional session code to the additional code what you cannot do directly is sought to be indirectly achieved through this ruling I don't know how far it is through or not even I leave it to the floor for discussion in fact that decision says irrespective of the state of the case the session judge can transfer the case under section 408 in gross violation of section 409 2 anyway then the power under section 319 CRPC for adding an accused person can be exercised only when there is evidence evidence which means evidence brought out during trial that is what Hardeep Singh's constituent bench in Hardeep Singh's case held the power under 319 can be exercised only when there is evidence brought out during trial section says evidence during inquiry or trial so how to explain inquiry the the word inquiry occurring in section 391 CRPC takes in inquiry under section 200 202 202 and 398 CRPC and the materials coming before code during such inquiry can be used only for cooperation is what the the constituent bench said can be used it is not evidence can be used for cooperation when the actual evidence is recorded during trial that is what the Hardeep Singh's case held in to constituent bench ruling I have already given citation year 2014 Supreme Court 1400 five judges but then what has been held in para 108 of Hardeep Singh is that a person discharged earlier can be arraigned as a as an accused under section 319 only after conducting an inquiry under section 305 subsection 5 of section 300 and section 398 CRPC and during such inquiry there is evidence against such a person section 300 cross 5 takes in only a discharge under section 258 CRPC not any other discharge there are other instances of discharge under section 239 245 227 etc that is not taken in by section 305 again secondly how can a magistrate who has already discharged an accused conduct an inquiry under section 398 the 98 is the revisional power of the session judge or the icos I don't I don't know I am leaving it to the floor for discussion with that I think we have covered this aspect of trial inquiry and investigation thank you for here you were the as I say just like master of the roster you have you have framed the questions you covered every aspect and rest of the people can't even claim that they are people I don't I don't claim to be all knowing I am only to the best of my knowledge information and belief that's all we can give an affinity humility at its best sir we have three questions so far one is by Mr. Iyer when can a trial be started against the accused if accused has been closed sorry if case has been closed on the closure report by the investigation agency whether police can see what are restart the investigation arrest the accused in such a case ordinarily no because once they say closure report is filed as held in 1985 to Bhagawan Bhagawan Singh etc starting from 85 to bring it onward not only the police but also the court is bound to give notice to the first informant first informant is entitled to notice and after notice he can either object to the case being dropped or he can file a protest complaint and if cognizance is taken on the protest complaint when the case comes up for trial trial again can start on a protest company that is the well accepted principle. Second by Naveen Kumar when the case is posted for evidence before recording the plea after framing charges can that order be recalled or can a discharge application be filed upon the ground that evidence is yet to be started. In 1992 Supreme Court said once a plea of not guilty is taken and trial has started the court the court can allow him to plead guilty and but actually it the 92 is the year in which K.M. Matthew was decided but K.M. Matthew was overruled in Adala Prasad. If strictly applying Adala Prasad the criminal court cannot go back to the pre-trial stage pre-pleased stage and allow his plea technically it is not possible but anyway 92 Supreme Court has stayed as has not been overruled so far and following 92 Supreme Court Kerala Iqot has also taken the view that not restating the plea of not guilty he can be allowed to plead guilty but I don't think if you strictly apply Adala Prasad Iqot the criminal court has no power of review or inherent power so he cannot go back to the previous stage. Am I right Mr. Prem? Absolutely of course Adala Prasad and of course Sretu Subramaniam at the same time during 2012 there's a decision by the Supreme Court I think it is by just Sadashvam and this is Charameshwar. Motion was the NCT of Delhi that is 2012 Volume 5 SCC page 424 which rules that a magistrate has the power to discharge an accused even in a summons case it says that it is inherent under section 251 CRPC that if an accused is he appears before the court before the trial court in persons of the summons which is issued under section 244 it is the bound and duty of the trial court to first carefully go through the indications exactly exactly then if it is not in the affirmative the magistrate he can discharge he is bound to discharge the accused as per section 239 after reading the after reading the substance of accusation no if no such a lead out that is what I said Anand Devail Anand Devail is that principle that is you don't you don't start the trial you don't comment the trial you tell him you or accused can in fact tell the court that the ingredients of offense are not made out therefore don't start the trial then you don't call it discharge you drop the proceedings it's not like that the magistrate explains the substances then going by Subramaniam that Subramaniam Sederaman trial and started exactly because there were three judge rulings and this is a two judge decision yes that is the problem with our supreme court you have any number of conflicting decisions by supreme court on your own or both every point in criminal law and actually this Bhushan Kumar if you go deep into Bhushan Kumar it was in fact section 420 IPC was in play so in fact it's a warranties and not a summons case and it was decided as if it's a summons case what is the difference between confession and leading guilty that is a judicial confession reading guilty is a judicial confession taking place inside the court confession can take place outside the court extra judicial confession reading guilty is an instance of judicial confession clear Amesh Gandhi on the basis of protest petition or otherwise whether the magistrate can summon the accused not charged sheeted but named in the FIR regarding offenses exclusively tribaled by the court of sessions I didn't get the question on the basis of a protest petition or otherwise whether the magistrate can summon the accused not charged sheeted but named in the FIR regarding offenses exclusively tribaled by a court of session that is what what is that not Hardeep Singh the other one what is that contradictory bench Dharampal Dharampal Dharampal held so magistrate has got the power to proceed against a person not charged sheeted but whose complicity is revealed by the police records that should be there if his complicity is revealed by the police records we can issue summons and get him and then commit him to the court of session for the last question can a plea and 311 statement be recorded together in a summons case what is the effect of recorded together we and 311 311 is additional evidence or further material we and 311 have no no parallel no nothing to nothing in common I didn't get the question that's fine so we can end up the session and as usual we will this time request Mr. Menend to complete it what a formal vote of thanks now we have been told in detail what exactly is trial and what is the significance of the word trial because as we see since the very ancient civilization itself our criminal laws have been distinctive for uniquely serious potential consequences for the failure to abide by the law of a specific culture or any region the whole world you can see and of course exceptions are the role of a monarch or a dictator or elsewhere it can be even a communist rule otherwise every society I mean every crime that is one against a society so we should have certain laws and the criminal laws it is so decide because it is put inside a particular kind of procedure because it is for the course to exercise or to make implement these laws through the procedure which is established by last we see and this is what the criminal procedure for serves as a vehicle for implementing criminal justice and today we have been enlightened all of us have been enlightened by justice Ramkumar who has taken us through the nuances of criminal trial now what the CRPC contemplates and at which stage the trial commences what are all the judgments starting with the Privy Council judgment and ending with the latest Supreme Court judgment and also pointing out the deficiencies of some of the Supreme Court judges I mean judgments like Hardev Singh of 2014 so that is absolutely wonderful because when you are in plain we can see that you are a complete judge and all your judgments reflect the completeness of what a judicial officer should be and with your sort of commitment and an in-depth knowledge we have been able to understand what exactly are the nuances of this particular field of law thank you so much sir it was absolutely erudite and enlightened now before parting shall I ask one question to all don't you feel that the criminal court also should have inherent power and a power of review so you mean that I mean the magistrates and session judges for doing justice sir it's already there because to recall Adalat Prasad has not considered certain judgments take it this way a criminal court does say wrong patent wrong like summoning a person if it is patently wrong now it is not wise to say that the criminal court does not have the power to recall see if you see the judgment in Satyam Paiber's was Indian back which bases upon certain old English judgments it says any court whether civil or criminal is having inherent power because here comes a dictum I mean the legal maximum actors cure an imminent grab of it that is so but then what I say wrong the court has the power to undo the wrong what about section 460 461 465 etc when without jurisdiction something has been done it is for the superior court to rectify that is it not candy that the candy wrongdoing court itself rectify the mistake but at the same time sir except for see you can see of course the public review it is not good but the power of review and the power of recall they are extremely different that is that is the aspect because review is a separate power equal is a separate power that is recall is a judgment of law exactly review is a statutory power unless unless comfort there is no power of review I call you say judgment law correct sir but at the same time yes yes you can no no sorry sorry you can just go on no like sometimes what happens is the magistrate passes the order the police are refusing to add to that order saying yes yes saying that this is a technicality the judge the magistrate did not mention this now the magistrate now cannot recall that order and then then we are stuck so now you're forcing you to go for review for something that doesn't exist maybe a case of criminal civil contempt civil contempt not disregarding disregarding violating an order of court of court correct but then it is it is lengthening the process of the proceedings is that that which the police has no powers in the first place you see so in the in the hands of an unscrupulous police officer nobody is safe true I agree with you sir thank you sir and at the same time sir if you see the three judges bench rulings in Agalat Prasad as well as in the Sukramalem Sethuraman yes both the judgments would see that if the magistrate issues a process even without a basis the only remedy is under 482 how can that be only under 482 there are other remedies even your 27 can be 226 227 397 anything can be 99% I think Agalat Prasad to that extent Agalat Prasad in Sukramalem Sethuraman to that extent needs to be reconsidered and that Matthew has to be bought in needs to be released sir but Matthew was just startling startling and what happened throughout the country magistrates were indiscriminately dropping proceedings that should not happen it should be at the cost of justice and at the same time sir when Agalat Prasad says your remedy is under 482 there are constitutional bench decisions numerous saying that 482 should be exercised only sparingly and that too in the rare case but then of course just that will not foreclose a relief on a remedy under 397 or 226 or 227 if you drop 227 also article 227 also will be there just because Supreme Court said 482 that is the only remedy you can't say that no other remedy is available now we have that ancient resurfacing case also sir there was one question that if sanction has not been obtained under 197 will the trial be vitiated trial will know in fact it can be raised at any any stage is the question in fact to that extent Agalat Prasad may be wrong suppose Agalat Prasad and the Prasad, Supreme Court says one trial has started court has no other function except to complete the trial but supposing constitutional sanction is raised so it is same Supreme Court has said that it can be raised at any stage any stage correct yes that is that I agree with you sir but then it is not a total nullity not nullity trial without a sanction of course it is a nullity in fact it may be reminded back to the trial after the sanction but then there's no acquittal once prosecution has been conducted without a prosecution sanction is it is a nullity but that that doesn't end in acquittal of the acquittal can only discharge or dropping on the proceedings so that it will not preclude a further trial with sanction correct correct but in one case Supreme Court acquitted thank you for one of prosecution's action which is not correct over to you Vikas so we had a session wherein like Mr. Prem has said that we have been understood what is trial and special warrants everything we have covered including the investigation trial as well as the inquiry the 10 questions have covered the entire gamut of the principles of trials and what could be the facets of that and thank you friends for joining us and again we will request keep on maintaining the social distancing do vaccination and maintain wear your mask that is a paramount though it sometimes looks like it has a monotonous that time and again saying that but we have seen that all these things are bringing effects nobody including you nobody including you is wearing the mask so we are all ensconced in our houses this is a public place only in public place even in the office is this so yes as good as self-isolation absolutely yeah so and tomorrow the session would be substantive law and procedural law industry the reliability by justice sd anand former judge of Punjab and high court do connect with us at 4 p.m and today there's a session tweet or not to tweet by Sajan Pohya at 6 p.m by Daksha legal those who want to join they can connect on the Daksha legal platform thank you everyone stay safe stay blessed sir thank you for your insights thank you and thank you Mr. Prem, Shyam and Mr. K. J. Rao to take things in the right way thank you Namaskar