Trial before a Court of Session

1. Which cases go to the Court of Session

Offences shown in the First Schedule as triable by the Court of Session (for BNS offences), and under Part II offences punishable with death, life imprisonment or more than seven years. The Court of Session does not take cognizance as a court of original jurisdiction; the case must be committed to it by a Magistrate under s.232 (s.213). The Magistrate supplies copies (ss.230, 231) and commits within ninety days of cognizance, extendable to 180 (proviso to s.232).

2. The stages (Chapter XIX, ss.248–260; old ss.225–237)

• Prosecution by Public Prosecutor (s.248): every sessions trial is conducted by a PP; a private complainant's advocate may only assist (s.338(2)).
• Opening the case (s.249): the prosecutor describes the charge and states the evidence by which he proposes to prove guilt.
• Discharge (s.250): the accused may apply for discharge within sixty days of commitment (new). If, on the record and documents and after hearing both sides, the Judge finds no sufficient ground for proceeding, he discharges the accused with reasons.
• Framing of charge (s.251): if there is ground for presuming that the accused committed an offence, the Judge (a) if it is not exclusively triable by the Court of Session, may frame a charge and transfer the case to the CJM or a first class Magistrate, who tries it as a warrant case on police report; (b) if it is exclusively triable, frames a charge in writing within sixty days of the first hearing on charge (new). The charge is read and explained to the accused, present physically or through audio-video means, and he is asked whether he pleads guilty or claims to be tried.
• Plea of guilty (s.252): the Judge records the plea and may, in his discretion, convict. The plea must be unequivocal and given by the accused himself; in grave cases a court is cautious about convicting on a plea alone.
• Date for prosecution evidence (s.253): if the accused refuses to plead, does not plead, claims trial or is not convicted, the Judge fixes a date and issues process for witnesses.
• Prosecution evidence (s.254): examination-in-chief, cross-examination and re-examination. Evidence of a witness may be recorded by audio-video means; a public servant's deposition may be taken through audio-video means (new); cross-examination may be deferred or a witness recalled.
• Examination of the accused (s.351, old s.313): after the prosecution evidence, the court questions him generally to let him explain the circumstances against him; no oath; refusal or false answers are not punishable. The court may take help from both counsel in framing the questions and may accept a written statement as sufficient compliance (s.351(5), new).
• Acquittal at half time (s.255, old s.232): if, after prosecution evidence, the examination of the accused and hearing both sides, there is no evidence that he committed the offence, the Judge records an acquittal.
• Defence (s.256): otherwise the accused enters on his defence, may file a written statement and summon witnesses (refused only for vexation or delay). He may himself give evidence on oath (s.353), and his failure to do so cannot be commented on.
• Arguments (s.257): the prosecutor sums up; the accused replies; the prosecution may answer a point of law with permission.
• Judgment (s.258): as soon as possible, within thirty days of completion of arguments, extendable to forty-five days for recorded reasons (new).
• Hearing on sentence (s.258(2)): if convicted, unless released on probation or admonition under s.401, the accused must be heard on sentence before it is passed. Failure to hear him is not a mere irregularity; the remedy is to remit for a hearing.
• Previous conviction (s.259): proved only after conviction.
• Defamation of high functionaries (s.260): tried on a complaint by the PP under the warrant procedure, in camera if a party wishes.

3. Discharge and charge: the test

At the stage of ss.250–251 the court does not weigh the evidence as at the end of trial. In Union of India v. Prafulla Kumar Samal, 1978 INSC 223, (1979) 3 SCC 4, the Court held that the Judge may sift the evidence to see whether a prima facie case is made out; if the material discloses grave suspicion not properly explained, a charge should be framed; if two views are possible and one gives rise only to suspicion, as distinct from grave suspicion, he may discharge. He is not a post office for the prosecution, but nor does he hold a mini-trial. Sajjan Kumar v. CBI, 2010 INSC 624, (2010) 9 SCC 368, restated these principles.

4. Day-to-day trial and adjournments (s.346)

Proceedings continue day to day until the witnesses in attendance are examined. No adjournment at a party's request except for circumstances beyond its control, and then not more than two; an advocate's engagement in another court is no ground; trials for rape offences to be completed within two months of the charge-sheet. The court may summon or recall any witness essential to the just decision (s.348), and proceed against a person not yet an accused who appears from the evidence to be guilty (s.358, old s.319).

5. Problem

In a murder trial, after the prosecution examines its witnesses, the only evidence against A is that he was seen near the house on the day of the offence. What should the Sessions Judge do?

Issue. Whether the trial must proceed to defence evidence, or whether A can be acquitted at the end of the prosecution case.

Law. Section 255 BNSS: if, after the prosecution evidence, the examination of the accused under s.351 and hearing both sides, the Judge considers that there is no evidence that the accused committed the offence, he shall record an order of acquittal.

Application. Presence near the house on the same day, without more, does not show that A committed the murder. It is a circumstance falling far short of a complete chain. The Judge should examine A under s.351 on that circumstance, hear the PP and the defence on the point, and decide under s.255 whether there is any evidence that he committed the offence.

Conclusion. If nothing else connects A to the killing, the Judge should acquit him under s.255 without calling on him to enter his defence.

How this is examined

Write the stages as numbered headings: commitment, opening (s.249), discharge (s.250), charge (s.251), plea (s.252), prosecution evidence (ss.253–254), examination of accused (s.351), acquittal (s.255), defence (s.256), arguments (s.257), judgment and sentence (s.258). Cite Prafulla Kumar Samal for the discharge test and mark the three new time limits. A short note on “plea of guilt” (January 2026) uses ss.252, 264 and 275 and the bar on appeal in s.416.