The CrPC, 1973, though a Code dealing with procedural law, is embellished with numerous substantive elements in it. The substantive elements give effect to Articles 14, 20, 21 and 22 of the Constitution of India , 1950 . Any Court that deals with a criminal case, starting at the magisterial level, is duty-bound to give effect to the CrPC, 1973 which would only mean the protection of rights conferred under the Constitution of India , 1950 . To put it differently, the CrPC, 1973 is a handbook introduced to maintain and uphold fair play in a criminal case, starting with the investigation and ending with the acquittal or a conviction leading to a sentence.
FRAMING OF CHARGES
Section 228 of the CrPC, 1973
“228. Framing of charge. –
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which–
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”
In Sunita Devi v. State of Bihar (2024), the court said,
“21. Under sub-section (2) of Section 228 of the CrPC, 1973, the Judge, while framing any charge, is ordained to read and explain it to the accused. Thereafter, the accused shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. As a matter of routine, video conferencing must be avoided, unless there are compelling reasons to do so. This is an occasion where the Judge avoids the lawyer and keeps in touch with the accused directly. He records the response of the accused. Under those circumstances, unless a situation so warrants otherwise, the presence of the accused shall be ensured.”
EXAMINATION OF WITNESSES
Section 230 of the CrPC, 1973
“230. Date for prosecution evidence .-
If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 229, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.”
Section 231 of the CrPC, 1973
“231. Evidence for prosecution.-
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.”
In Sunita Devi v. State of Bihar, (2024), the court said that,
“22. These two provisions are to be read in consonance with each other. At this stage, the Court is concerned only with the prosecution’s evidence. To ensure fair play, as a normal practice, the Court has to fix a date for the examination of the witnesses. The idea is to complete the examination-in-chief and cross examination, both at the same time. While fixing the date, the Court is expected to take into consideration the relative convenience of the parties, though the discretion lies with it.
Sub-section (1) of Section 231 of the CrPC, 1973 fixes a responsibility on the Court , the prosecution and the defence to go ahead with the examination of witnesses on the date so fixed. Therefore, even for this reason, the Court shall ascertain and then decide a convenient date for both sides, while being conscious about any attempt to drag the trial. Completion of such examination is a matter of rule as any deferment can at best be an exception, to the discretion of the Court . Obviously, the use of such a discretion, being judicial in nature, has to be on a case-to-case basis. Suffice it is to state that a balance has to be struck between the competing interests.”
State of Kerala v . Rasheed, (2019) 13 SCC 297
“22. There cannot be a straitjacket formula providing for the grounds on which judicial discretion under Section 231(2) CrPC can be exercised. The exercise of discretion has to take place on a case-to-case basis. The guiding principle for a Judge under Section 231(2) CrPC is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed.
23. While deciding an application under Section 231(2) CrPC, a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The following factors must be kept in consideration:
(i) possibility of undue influence on witness(es);
(ii) possibility of threats to witness(es);
(iii) possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy;
(iv) possibility of loss of memory of the witness(es) whose examination-in-chief has been completed;
(v ) occurrence of delay in the trial, and the non-availability of witnesses, if deferral is allowed, in view of Section 309(1) CrPC [
“309. Power to postpone or adjourn proceedings.-(1) In every inquiry or trial the proceedings shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:”See also Vinod Kumar v . State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712; and S.J. Chaudhary v . State (UT of Delhi), (1984) 1 SCC 722 : 1984 SCC (Cri) 163.] .
These factors are illustrative for guiding the exercise of discretion by a Judge under Section 231(2) CrPC.
24. The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:
24.1. A detailed case-calendar must be prepared at the commencement of the trial after framing of charges.
24.2. The case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted.
24.3. The case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible.
24.4. Testimony of witnesses deposing on the same subject-matter must be proximately scheduled.
24.5. The request for deferral under Section 231(2) CrPC must be preferably made before the preparation of the case-calendar.
24.6. The grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses.
24.7. While granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for.
24.8. The case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary.
24.9. In cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.”
Reference
Sunita Devi v State of Bihar (2024)