Trial
The basic principle underlying the Criminal Justice-System in India is that hundred accused might be set free than one innocent man be sent behind bars. The trial of the accused should be fair and impartial and as the old saying goes 'that justice should not only be done but also seem to be done'. For this object in mind, our forefathers have made our judiciary independent of the executive and legislature. The whole burden of fair and impartial trial thus rests on the shoulders of the judiciary in India. To my mind, our 'judiciary' is performing its functions laudably fully conscious of their "independent functioning" in the largest democracy of the world under the Constitution.
We, in India, follow the adversary system where both the parties are allowed to plead their case, but forward their arguments, rubuttals and refusals with the help of evidence adduced during the trial. The court acts as a "refree" and participates in the whole trial till the evidence is closed by both the parties and arguments are advanced. The court has then to decide and pronounce its judgement on the basis of the records of the case and its fair and impartial opinion. The common law relating to criminal justice is founded on the principle that an accused is innocent until he is proved to be guilty beyond reasonable doubt. To elicit truth, the judge can also ask court questions from any witness and he is not a passive on looker in the court. The judge has been assigned with a pious duty to deliver justice on the basis of the principles governing the criminal justice-system in India. The Magistrate/Court does not work and perform its functions as an agency of the police or prosecution but acts independently of any fear or favour. During emergency, Indira Gandhi government tried to browbeat the highest-judiciary by superseding three senior-most judges of the Supreme Court by appointing Mr. Justice A.N. Ray as the Chief Justice of India but all the three superseded judges of the Supreme Court of India resigned and thus upheld the most important aspect of judiciary i.e. its "Independence".
If it is found at any stage of the 'appeal' that the trial judge did not act fairly and impartially while recording the evidence of the witnesses during trial, the appellate judges' were right in rejecting the whole of evidence and the appellant was set at liberty. These are some of the most celebrated principles on which our criminal-justice-system functions. An accused cannot be convicted if reasonable doubts appear in the prosecution-case and the benefit of doubt is always given to the accused by our courts, "is another important principle of criminal-law in India".
The trial should be conducted in a regular manner, so that continuity is maintained and justice is met. The accused has a right to be represented through a 'lawyer' who may be engaged privately or at State expenses. The court cannot deprive an accused of the services of a 'lawyer' so that the accused gets full opportunity to defend himself in the court. The Supreme Court has held that an accused has a fundamental right to the services of a defence lawyer and in case he is indigent and unable to engage a private counsel, then the State shall provide a 'lawyer' at its expenses but in no case the accused should go unrepresented by a 'lawyer' failing which the trial vitiates and the accused gets acquittal.
Summary trial may be held in cases where the offences alleged to have been committed are of minor nature and do not entail serious consequences. In Jagmalaram v. State of Rajasthan, 1982 Cr LJ 2314; it was held that:-
"This does not mean that by conducting a summary trial in certain cases, the Magistrate is also empowered to by-pass the provisions and obligations composed by both the Constitution and the Cr PC. For example, the accused has a right to be represented by a lawyer of his own choice; if the summary trial does not enable the accused to engage a lawyer, then opportunity must be given to the accused to do so, even if this may entail the postponement of the proceedings.
Another point to be noted in summary trials is that the Police Officers are inevitably present in this spot-trial proceedings and produce the accused on the venue of the court. Thus, any 'plea of guilty' in the presence of such officials though in the presence also of the magistrate, cannot be said to be 'voluntary'. And if the plea is not 'voluntary', the conclusion to be drawn is to the contrary and the accused must be given an opportunity to consult and engage a lawyer of his own choice."
Regular trial means, "proper investigation by the police followed by proper framing of charge(s), leading of the evidence by the prosecution and then the defence of the accused."
Certain trials are conducted in-camera at the request of the parties e.g., matrimonial cases, defamation, cases involving high dignitaries, rape cases etc., are usually held in-camera and the proceedings are not reported as in other cases. In these cases, normally parties names are omitted and instead of complete name only alphabets are allotted. However, trial in-camera does not by-pass the prescribed procedure.
Fair and impartial trial is the backbone of criminal-justice-system in India. When charges are framed by the court on the basis of police report and documents and statements of witnesses, the accused is asked whether he pleads guilty to the 'charges' or claims trial. If the accused 'pleads guilty', than the Court may convict him then and there and in case, the accused "pleads not guilty and claims trial", the Magistrate gives a date to the prosecution to bring its evidence on the date so fixed. The witnesses are examined and cross-examined in the court. The accused is also given an opportunity to adduce evidence in defence and his statement without oath is also recorded under section 313 of the Code of Criminal Procedure in questions and answer form so that due weightage could be given to such statement under section 313 Cr PC at the time of writing of the judgment after both the parties conclude their arguments. If the accused is not found guilty then he is acquitted of the 'charges' but if he is found guilty then he is heard on the question of quantum of sentence and also if he is entitled to the provisions of section 360 Cr PC or the provisions of Probation of Offenders Act. After passing of the appropriate 'sentence', the court is bound to supply him the attested copy of the judgment and the orders on 'sentence' so that he may file an appeal or revision as per law, if he is so advised by his counsel.
A trial is said to be fair and impartial, if the court is not influenced by any exterior pulls or favours while conducting trial and also the court does not browbeat or threaten the witnesses to depose in a particular manner. The judge should not give an impression by his conduct or otherwise that he is biased towards a particular accused or co-accused. The pre-notions of a trial judge are hinderances in imparting justice and thus act as anti-thesis to the concept of fair and impartial justice.
In H.S. Sabharwal v. State of Madhya Pradesh, MANU/SC/1193/2008 : AIR 2008 SC 1943, the Supreme Court held that if a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by a becoming a participant in the trail evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. Fair trail obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. The failure to hear material witnesses is certainly denial of fair trial.
Under the new Code of Criminal Procedure, there is a complete separation between the Executive and the Judiciary. Prior to it, the prosecutor and the judge were one and the same, and the accused could not be said to have had a fair trial. Now, under the new Code, this defect has been removed. The investigation of offences has been entrusted to the Police, whereas virtually the charge is framed by the Judge.1
The executive prosecutes while the accused defends or meets the charges. The trial judge acts as an umpire. The judge remains almost neutral till the end. He examines the evidence tendered by both the sides, weighs it, and forms his opinion as to whether the accused is guilty or not guilty and thereafter either convicts him or acquits him as the case may be. This is called the adversary system, which is the corner-stone of our Criminal Procedure. Here, the accused is given full chance and opportunity to defend himself while the duty of prosecution is that it must establish the case against accused beyond all reasonable doubts.
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1. Vide sections 228 and 240, Cr PC, 1973.
Under the Code of Criminal Procedure 1973, the provisions for legal aid to the accused have been enacted as the 'right' of the accused to defend himself by a pleader of his choice and in case he is unable to engage a counsel of his choice at his own expenses due to his poverty or any other reasons, then the State shall provide him legal aid of a lawyer to defend his case in the court at the expenses of the State.
"Section 303 - Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this code, may of right be defended by a pleader of his choice.
Section 304 -
(1) where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the State Government, make rules, providing for:
(a) the mode of selecting pleader for defence under sub-section (1),
(b) the facilities to be allowed to such pleaders by the Courts.
(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purpose of sub-section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before Court of Sessions."
The court is duty-bound to provide legal aid through a lawyer to an accused who is unable to defend himself or unable to seek the services of a lawyer of his choice. The High Court makes rules for providing free legal aid to the accused who are unable to engage a lawyer for his defence. Article 39A has also been introduced in the Constitution by 42nd Amendment in the year 1976 in order to provide equal justice and free legal aid to the needy. The Supreme Court also held that the State is under Constitutional obligation to provide free legal services to an indigent accused not only at the stage of the trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time; Khatri v. State of Bihar, MANU/SC/0518/1981 : AIR 1981 SC 928: 1981 Cr LJ 470.
In Ram Chander v. State of Haryana, MANU/SC/0206/1981 : AIR 1981 SC 1036; it was observed that, "Under the new Code, the role of the judge has become more active rather than passive as it was earlier. Though the judge has to remain impartial and act like a refree, but it does not mean that he is a passive spectator and "a mere recording machine". The Judge must participate in the proceedings in a very subtle manner so as to reach the grass-roots of the truth. He may ask short questions to elicit more factual information from either party or witness, but such questions should be asked so as "not to confuse, frighten or intimidate the witnesses" which action would vitiate the proceedings. The judge is not supposed to descent into the arena as it were".
Another important feature for the fair trial of a criminal case is the place where such trial or enquiry will take place. The code prescribes that the trial shall be held before a Magistrate within whose jurisdiction the offence was committed. The provisions regarding the place of trial is made under sections 117 to 189 of the Code and are helpful to the person accused of any offence in the sense that it is easier for him to collect evidence and witnesses in his defence from that place.
For fair trial, the accused person has to be given full opportunity to defend himself. This is possible only when he should be supplied with the copies of the charge sheet, all necessary documents pertaining to the investigation and the statements of the witnesses called by the police during the course of investigation.
Another corollary of the fair trial is that the joinder of charges of the offences the person accused of.
As regards to the 'joinder of charges', section 219 provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to last of such offences, he may be charged with, and tried at one trial for any number of them not exceeding three. Thus three charges can be combined at one trial, but such offences should be of the same kind which means punishable under the same section of the Indian Penal Code, and should be committed within a span of twelve months counted from the first to the last offence of the same kind. In Bhagat Singh v. State, AIR 1952 SC 45; where the accused was tried in respect of (i) causing the death of A, and thereby committing an offence punishable under section 307, IPC; (ii) firing a shot at B and C with the intention of causing their death, and thereby committing the offence punishable under section 307, IPC and (iii) bring a shot at D with the intention of killing him and thereby committing an offence punishable under section 307 IPC, it was contended on behalf of the defence that there was a misjoinder of charges as the second charge was really a charge in respect of two offences (viz. attempt to murder B and attempt to murder C, and that the accused had been tried for more than three offences in contravention of section 219(1), Cr PC. Their Lordships of the Supreme Court however, observed that there was nothing wrong in the trial as the single act of firing a shot at B and C is one offence and not two offences and the trial was held to be not bad for misjoinder of charges.
For the conduct of a fair trial, it is necessary that all proceedings related to the case should take place in the presence of the accused or his counsel.
In fairness to the accused, he or his counsel must be given full opportunity to cross-examine the prosecution witnesses. A trial at which the accused or his counsel is not afforded an opportunity to cross-examine the prosecution witnesses is vitiated from the very beginning and will be set aside.
When there is any doubt, whether or not, on the basis of the evidence adduced by the prosecution and the accused, the guilt of the accused is established, the benefit of such a doubt must go in favour of the accused.
This is one of the most important features in the interest of criminal justice and was, therefore, incorporated under the new code of 1973. Any delay keeps the accused in constant fear and psychological torture, and if he is in the police custody, the torture of confinement is enhanced. Section 309(1) of the Code prescribes for the expeditious inquiry or trial of the case.
This is the fundamental right provided to the accused in the constitution of India wherein, "once acquitted of a charge, he should not be tried for the same charge".
This provisions is intended to prevent what is called 'double jeopardy' and the rule has also been enshrined in Article 20(2) of our Constitution to ensure that if a person is tried and acquitted or convicted of an offence, he cannot be tried against for the same offence or on the same facts for any other offences. This rule is known as the "rule against double jeopardy" as stated above.
The procedure for trial of summons cases and warrant cases by Magistrates has been given under Chapters XIX and XX of the Code of Criminal Procedure, 1973 respectively.
A "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years and a "summons-case" means a case relating to an offence, and not being a warrant-case. [Clause (w) and (x)] of section 2, Cr PC. All the summons cases are those in which punishment prescribed is upto two years and the rest are warrant-cases if the punishment prescribed is for a term exceeding two years, life sentence or death sentence.
Warrant cases are dealt with in courts as per the provisions of sections 238 to 250 of Chapter XIX of the "Code".
These are devided into three groups i.e.
A. the cases instituted on a police report;
B. the cases instituted otherwise than on police-report;
C. the cases equally applicable both to cases instituted on a police report and the cases instituted otherwise than an a police report.
"Section 238 - Whereunder in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of section 207 of the Code. Section 207 provides for supply of copy of police report and other documents."
It means that the Magistrate shall facilitate the supply of copy of First Information Report, the statements of the witnesses recorded by the police during investigation of the case, and copies of confessions and statements made before any Magistrate during enquiry or investigation and copies of any other documents forwarded by the police to the Magistrate alongwith its report/challan under section 173 Cr PC.
Then, if upon considering the police report and documents sent with it under section 173 Cr PC and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing (section 239). But according to sub-section (1A) of section 173 the investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer-in-charge of the police station.
It means the Magistrate will hear both accused and the prosecution and would peruse the police report and documents and statements sent along with it, and if he then finds that no grounds exist for proceeding against the accused in the trial, then he would discharge the accused and would record his reasons for doing so. This 'discharge' would be for the specific offences which prosecution brought before the court for trial as per its report under section 173 Cr PC. It does not necessarily mean that the accused cannot be proceeded against for some other offence if there was evidence prima facie to establish such a charge; Prematha Nath Mukherjee v. State of West Bengal, MANU/SC/0083/1960 : AIR 1960 SC 810: 1960 Cri LJ 1165: [1960] 3 SCR 245.
Even if at one stage, the Magistrate finds no prima facie case against the accused and discharges him under section 239 Cr PC, the Magistrate does not become functus-officio if in proceeding with the case against others, he finds that there is prima facie case against the accused who he had discharged; Saraswatiben v. Thakore Lal, MANU/GJ/0067/1966 : AIR 1967 Guj 263.
In case the accused is not discharged under section 239 Cr PC, then a charge is framed against the accused by the Magistrate under section 240,
Cr PC. The charge is then read over and explained to the accused and he is asked by the Magistrate whether he pleads guilty of the offence charged or claims to be tried.
If the accused pleads guilty the Magistrate then records the plea and may in his discretion, convict him thereon under section 241 Cr PC.
Thereafter, evidence for prosecution is recorded if the accused refuses to plead guilty and claims trial and a date is fixed for recording the prosecution evidence in the court.
The prosecution may request in writing to issue summons to any of its witnesses directing him to attend or to produce any document or other thing. The Magistrate will then proceed to take all such evidence of the prosecution as may be produced by it in support of its case.
The accused shall be asked to cross-examine any such witness produced and examined by the prosecution. The Magistrate on the conclusion of prosecution-evidence, closes the same and asks the evidence for defence under the provisions of section 243 of the Code which reads as under:-
Section 243 -
(1) The accused shall then be called to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused, after he has entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing.
Provided that, when the accused had cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses, incurred by the witness in attending for the purposes of the trial be deposited in Court.
Such cases are dealt with by the Magistrate as per provisions of sections 244 to 247 Cr PC which are reproduced hereunder:-
Section 244 -
(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
Section 245 -
(1) If, upon taking all evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
Section 246 -
(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read over and explained to the accused and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea and may in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for prosecution whose evidence has been taken.
Section 247 -
The accused shall then be called upon to enter upon his defence and produce his evidence, and the provisions of section 243 shall apply to the case.
Then after recording the evidence of prosecution and that of the defence, if the Magistrate finds the accused not guilty, he shall then record an order of acquittal of the accused under section 248 Cr PC, but if the Magistrate finds the accused guilty of the charged offence then, after hearing the accused on the question of sentence, if he does not proceed in accordance with the provisions of section 325 or section 360 of the Cr PC (order to release convict on probation of good conduct), he will pass sentence upon him as per law.
Section 249 deals with the situation where the proceedings have been instituted upon complaint and on any day fixed for hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, at any time before the charge has been framed, discharge the accused.
The intention of the legislature in introducing this Section 249 is clear that it does not want the accused to face the trial if the complainant is absent on any date fixed for hearing of the case by the court but the offence should be lawfully compoundable or cognizable offence. The complainant voluntarily chooses not to present himself before the court in such a case, and the court is entitled to discharge the accused without going into the merits of the complaint/case.
Section 250 provides for compensation to the accused by the complainant if the Magistrate thinks that there was no reasonable ground for making the accusation against the accused and whom he has discharged or acquitted as per above provisions. The amount of compensation shall not exceed the amount of fine the Magistrate is empowered to impose and he shall record and consider any objection which the complainant or informant may urge against making of the direction; Kailash v. Laxminarayan, AIR 1966 Raj 364.
Sections 251 to 259 deals with the procedure to be followed in the trial of summons cases by Magistrates.
Section 251 - When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty, or has any defence to make, but it shall not be necessary to frame a formal charge.
The words "and he shall be asked whether he pleads guilty or has any defence to make" are imperative in their significance. If the provisions of this section have not been complied with, the plea of guilty made by the accused in such circumstances would not amount to a plea of guilty; Chandubhai Goverdhanbahi v. State, (1960) 2 GLR 266.
Section 252 reads that "If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.
The provisions of the above section are mandatory in nature. If the accused does not plead guilty, the court is bound to proceed according to law by examining the prosecution witnesses and then the defence witnesses, if any. Finally, the case is heard on merits and decided for or against the accused.
Section 253 provides that "Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine as specified in the summons.
The above simple procedure is for disposing of petty cases without the presence of the accused but through post or messenger or pleader as the case may be. The pleader has been authorised to plead guilty on behalf of the accused and to pay fine on his behalf.
Section 254 provides the procedure when accused is not convicted under section 252 or 253.
This section reads as under:-
Section 254 -
(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purpose of the trial be deposited in court.
Section 255 provides for acquittal or conviction of accused after conclusion of the trial by the Magistrate.
This section says:-
Section 255 -
(1) If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, on his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal.
(2) Where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
(3) A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter which form the facts admitted or proved, he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby.
The 'taking of evidence' by the Magistrate is must and that cannot stand complied with by only looking into the police papers which do not form part of a record of the case, and what they contain is no evidence in law. An order of acquittal passed on the basis of perusing police papers of the case is illegal; Thakorbhai Sukhabhai, MANU/GJ/0062/1968 : AIR 1968 Guj 15; Shanti Lal Daya Shanker, (1962) 1 Cr LJ 817.
Section 256 provides for non-appearance or death.
Section 256 reads as under:-
Section 256 -
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto on which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinafter contained, acquit the accused unless for some reason, he thinks it proper to adjourn the hearing of the case to some other day.
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
On default of the complainant's appearance, the Magistrate has a discretion either to dismiss the complaint and acquit the accused or to adjourn the hearing. The powers given under this section must be exercised reasonably and only in a case where the complainant has failed to appear without any just cause; Mahesh Parsad v. Mahavir Singh, MANU/UP/0132/1960 : AIR 1960 All 507; K. Dhulabhai v. P. Ganesh Bhai, 1969 Cr LJ 729.
Section 257 deals with the withdrawal of the complaint.
It reads as under:-
"Section 257 - If a complainant, at any time before a final order is passed is any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused against whom the complaint is so withdrawn".
This section applies to summons cases and not to warrant cases.
Where a case is instituted on a police report, the Magistrate cannot exercise his power of acquittal on an application of withdrawal made by the person at whose instance the police moved in the case; B.P. Zina, 1970 Cr LJ 919.
Section 258 says that Magistrate has the power to stop proceedings in certain cases.
It reads as under:-
"Section 238 - In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge".
The powers given to Magistrate to stop the proceedings at any stage, in a summons case instituted otherwise than upon complaint, have to be sparingly used and that too particularly, in exceptional or unusual circumstances attending the case; Sanghar Ladha, 1971 Cr LJ 949: MANU/GJ/0043/1971 : AIR 1971 Guj 148.
Where there are no special or unusual circumstances which make it difficult or impossible for the Magistrate to proceed with the case, he cannot involve the provisions of this section and stop further proceedings; Lohana Dhiraj Lal v. State 1973 Cr LJ 82.
Section 259 gives power to a Magistrate to convert summons cases into warrant cases
It reads as under:-
Section 259 - If in the course of trial of a summons-case relating to offence punishable with imprisonment for a term exceeding six months it appears to Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in accordance with the trial of warrant-cases.
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