Inquiry

The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) Cr.P.C. which defines an inquiry as follows:

“2(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.”

In State of U.P. v. Lakshmi Brahman & Anr., AIR 1983 SC 439, Supreme Court held that from the stage of filing of charge-sheet to ensuring the compliance of provision of Section 207 Cr.P.C., the court is only at the stage of inquiry and no trial can be said to have commenced.

The above view has been held to be per in curium in Raj Kishore Prasad v. State of Bihar & Anr., AIR 1996 SC 1931, wherein Supreme Court while observing that Section 319 (1) Cr.P.C. operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 Cr.P.C., the court is neither at the stage of inquiry nor at the stage of trial.

Even at the stage of ensuring compliance of Sections 207 and 208 Cr.P.C. it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Sessions.

Trial

Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf.

In Moly & Anr. v. State of Kerala, AIR 2004 SC 1890, the Court observed that though the word ‘trial’ is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must always be a forerunner to the trial.

A three-Judge Bench of this Court in The State of Bihar v. Ram Naresh Pandey & Anr., AIR 1957 SC 389 held:

“The words ‘tried’ and ‘trial’ appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used.

There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.”

In Ratilal Bhanji Mithani v. State of Maharashtra & Ors., AIR 1979 SC 94, the Court held:

“Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused.

The trial in a warrant case starts with the framing of charge; 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 Sections 254 to 258 to a logical end.”

In V.C. Shukla v. State through C.B.I., AIR 1980 SC 962, this Court held:

“…The proceedings starting with Section 238 of the Code including any discharge or framing of charges under Section 239 or 240 amount to a trial…”

In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.), AIR 1996 SC 1340, a three-Judge Bench while dealing with the proceedings in General Court Martial under the provisions of the Army Act 1950, applied legal maxim “nullus commodum capere potest de injuria sua propria” (no one can take advantage of his own wrong), and referred to various dictionary meanings of the word ‘trial’ and came to the conclusion:

“It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto.

The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.

Our conclusion further gets fortified by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV “Conditions requisite for initiation of proceedings” containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with “trial before a Court of Sessions” pursuant to committal order under Section 209 and in Chapter XIX “trial of warrant cases by Magistrates” containing Sections 238 to 250 etc.

It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the offence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the offence and taking further steps to conduct the trial.”

In “Common Cause”, A Registered Society thr. its Director v. Union of India & Ors., AIR 1997 SC 1539, the Court while dealing with the issue held:

“(i) In case of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned cases.

ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973, while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the concerned accused under Section 246 of the Code of Criminal Procedure, 1973.

iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make.”

In Raj Kishore Prasad (Supra), the Court said that as soon as the prosecutor is present before the court and that court hears the parties on framing of charges and discharge, trial is said to have commenced and that there is no intermediate stage between committal of case and framing of charge.

In In Re: Narayanaswamy Naidu v. Unknown 1 Ind Cas 228, a Full Bench of the Madras High Court held that,

“Trial begins when the accused is charged and called on to answer and then the question before the Court is whether the accused is to be acquitted or convicted and not whether the complaint is to be dismissed or the accused discharged.”

A similar view has been taken by Madras High Court subsequently in Sriramulu v. Veerasalingam, (1914) I.L.R. 38 Mad. 585.

However, the Bombay High Court in Dagdu Govindshet Wani v. Punja Vedu Wani (1936) 38 Bom.L.R. 1189 referring to Sriramulu (Supra) held:

“There is no doubt that the Court did take the view that in a warrant case the trial only commences from the framing of the charge …..But, according to my experience of the administration of criminal justice in this Presidency, which is not inconsiderable, the Courts here have always accepted the definition of trial which has been given in Gomer Sirda v. Queen Empress, (1898) I.L.R. 25 Cal. 863, that is to say, trial has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and, defence, if the accused be defended, present in Court for the hearing of the case.”

A similar view has been taken by the Lahore High Court in Sahib Din v. The Crown, (1922) I.L.R. 3 Lah. 115, wherein it was held that for the purposes of Section 350 of the Code, a trial cannot be said to commence only when a charge is framed. The trial covers the whole of the proceedings in a warrant case.

This case was followed in Fakhruddin v. The Crown, (1924) I.L.R. 6 Lah. 176; and in Labhsing v. Emperor, (1934) 35 Cr.L. J. 1261.

Conclusion

In ‘Hardeep Puri v. State of Punjab, (2014)’, the court after referring the above cases, reached on the conclusion that,

“the law can be summarised to the effect that as ‘trial’ means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the ‘trial’ commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken.

Section 2(g) Cr.P.C. and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under Cr.P.C. by the Magistrate or the court. The word ‘inquiry’ is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.”