Jurisdiction in inquiries and trials, evidence, and general provisions as to inquiries and trials

1. Inquiry and trial

An inquiry is every inquiry, other than a trial, conducted by a Magistrate or Court (s.2(1)(k)). Examples: the inquiry under s.225 before issue of process, security proceedings (ss.135–136), maintenance proceedings (s.144), inquiry into unsoundness of mind (s.367) and inquiry into offences against the administration of justice (s.379). A trial is not defined; it begins when the charge is framed (or, in summons-cases, when the particulars are stated) and ends in acquittal or conviction. Investigation is done by the police; inquiry and trial by the court.

2. Jurisdiction: where an offence is tried (ss.197–209; old ss.177–189)

• Ordinary rule (s.197): every offence is ordinarily inquired into and tried by a court within whose local jurisdiction it was committed.
• Uncertain, partly in different areas, continuing, or several acts (s.198): any of the local areas concerned.
• Act and consequence (s.199): where the act was done or the consequence ensued.
• Offence by relation to another (s.200): abetment may be tried where either act was done.
• Specific offences (s.201): dacoity and escape from custody where committed or the accused is found; kidnapping where the person was kidnapped, conveyed, concealed or detained; theft, extortion and robbery where committed or the property was possessed; breach of trust where property was received or was to be returned.
• Electronic communication and letters (s.202): cheating may be tried where the messages were sent or received, or the property was delivered or received; bigamy (BNS s.82) where the offender last resided with the first spouse, or where the first wife took up permanent residence after the offence.
• Journey or voyage (s.203): any court through whose jurisdiction the person or thing passed.
• Offences triable together (s.204): by any court competent to try any of them.
• State direction (s.205): a committed case may be tried in any sessions division.
• Doubt (s.206): where two courts take cognizance, the High Court decides.
• Offences outside India (s.208): by a citizen anywhere, or by anyone on an Indian ship or aircraft, may be dealt with as if committed at the place where he is found or where the offence is registered in India (new), but only with the previous sanction of the Central Government.
• Wrong place not fatal (s.508): a finding is not set aside only because the trial took place in the wrong sessions division, district or local area, unless a failure of justice has been occasioned.

Subject-matter jurisdiction is a separate question: the First Schedule (s.21) and the sentencing limits in ss.22–23 decide which class of court may try the offence.

3. Evidence in inquiries and trials (ss.307–336; old ss.272–299)

• Language of courts (s.307): fixed by the State Government.
• Evidence in presence of the accused (s.308, old s.273): or of his advocate when his attendance is dispensed with, including through audio-video electronic means at a designated place (new). Where a girl under eighteen alleged to be a victim of rape or a sexual offence testifies, the court may shield her from confrontation with the accused while preserving his right to cross-examine.
• Recording: summons-cases and inquiries (s.309), warrant-cases (s.310) and sessions trials (s.311); read over to the witness (s.313); interpreted to the accused (s.314); remarks on demeanour (s.315); record of examination of the accused (s.316).
• Commissions (ss.319–325): examination of witnesses who cannot be produced without delay, expense or inconvenience, including abroad.
• Reports admissible without calling the author: medical witnesses' depositions (s.326), identification reports of Executive Magistrates (s.327), Mint reports (s.328), and reports of Government scientific experts (s.329, old s.293), the court being able to summon the expert. Formal evidence by affidavit (s.332).
• Absconding accused (s.335, old s.299): depositions recorded in his absence may be used against him.
• Successor of a public servant or expert (s.336, new): where the author of a report has been transferred or retired, his successor may depose on it.

4. General provisions (ss.337–366; old ss.300–327)

• Double jeopardy (s.337, old s.300): a person once tried by a competent court and convicted or acquitted cannot, while that stands, be tried again for the same offence, or on the same facts for an offence for which a different charge could have been made under s.244(1) or of which he could have been convicted under s.244(2). Exceptions: a distinct offence under s.243(1) with State consent; consequences not known at the first trial (Illustration (b): grievous hurt, victim later dies); first court not competent to try the graver offence. Dismissal of a complaint or discharge is not an acquittal. Article 20(2) protects only against a second prosecution and punishment for the same offence: Maqbool Hussain v. State of Bombay, 1953 INSC 40, AIR 1953 SC 325, where confiscation of gold by customs authorities was held not to be a prosecution, so a later criminal trial was not barred. In Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, 2011 INSC 88, (2011) 2 SCC 703, the Court held that s.300 CrPC is wider than Article 20(2): it bars a second trial on the same facts even for a different offence.
• Public Prosecutor appears without written authority; private advocate assists (s.338); permission to others to prosecute (s.339).
• Right to be defended (s.340) and legal aid at State expense (s.341): now in any “trial or appeal before a Court”, not only sessions trials.
• Approver: tender of pardon to an accomplice (ss.343–345).
• Day-to-day trial and adjournments (s.346): not more than two adjournments at a party's request, and only for circumstances beyond its control; remand not more than fifteen days at a time; rape trials within two months of the charge-sheet.
• Local inspection (s.347) and power to summon material witnesses (s.348, old s.311): the court must summon a person whose evidence is essential to the just decision.
• Specimen signatures, handwriting, finger impressions and voice samples (s.349, new scope): a first class Magistrate may order any person, including an accused, to give them, and, for reasons recorded in writing, even from a person who has never been arrested in the case.
• Examination of the accused (s.351, old s.313): no oath; answers may be used; written statement may suffice.
• Accused as a competent witness (s.353), on his own written request.
• Inquiry or trial in the absence of the accused (s.355), and trial in absentia of a proclaimed offender (s.356, new): after ninety days from charge, two warrants thirty days apart, newspaper notice and notice to relatives; State-paid advocate; no appeal unless he surrenders to the appellate court, and none against conviction after three years.
• Proceeding against other persons (s.358, old s.319): the court may add as accused a person who appears from the evidence to have committed the offence. In Hardeep Singh v. State of Punjab, 2014 INSC 21, (2014) 3 SCC 92, a Constitution Bench held that the power can be used on evidence recorded at trial, even before cross-examination, but the test is more than a prima facie case: strong and cogent evidence showing more than mere probability of complicity.
• Compounding (s.359) and withdrawal from prosecution (s.360): see the next note; withdrawal now requires that the victim be heard.
• Successor acting on evidence (s.365) and open court (s.366): trials of rape offences in camera, as far as possible by a woman Judge.

How this is examined

“Jurisdiction of criminal courts in inquiries and trials” is answered from ss.197 to 209 in order, with an example for each, then s.508 and a sentence on subject-matter jurisdiction. A short note on “Inquiries” defines the term under s.2(1)(k), contrasts it with investigation and trial, and gives examples. Double jeopardy (s.337 with Maqbool Hussain and Kolla Veera Raghav Rao), s.358 with Hardeep Singh, and trial in absentia are frequent short notes.