Inside the Courtroom

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a transformative shift in India’s criminal justice system, replacing the Code of Criminal Procedure, 1973. Aimed at modernizing and expediting the administration of criminal trials, the BNSS introduces novel procedural guidelines, restructured trial processes, and advanced technology to ensure justice is delivered with greater efficiency and transparency. One of the pivotal components of the BNSS is the procedure for trials conducted before a Court of Session.

The framework under the BNSS emphasises prosecutorial responsibility, judicial discretion, and the safeguarding the rights of the accused persons while ensuring swift adjudication of criminal matters. This article delves into the detailed procedures, roles, and critical judicial interventions mandated under the BNSS for conducting a fair and balanced trial before a Court of Session, examining how the BNSS reinforces the principles of justice and security for citizens.

Who conducts the prosecution in every trial before a Court of Session?

In every trial before a Court of Session, the prosecution is conducted by a Public Prosecutor.

What does the Public Prosecutor do when the accused appears before the Court?

The Public Prosecutor opens the case by describing the charge brought against the accused and stating the evidence that will be used to prove the accused’s guilt.

Can the accused apply for discharge, and if so, when?

Yes, the accused may apply for discharge within sixty days from the date of commitment of the case.

Under what conditions may a Judge discharge the accused?

A Judge may discharge the accused if, after reviewing the case record and documents and hearing both parties, he finds insufficient grounds for proceeding. Reasons for the discharge must be recorded.

What does “the record of the case” include?

The record of the case” includes documents and articles produced by the prosecution, as clarified in M.E. Shivalingamurthy v. CBI (2020) 2 SCC 768.

What is the scope of the Special Judge’s power regarding discharge orders?

The Special Judge should not act as a trial Judge but should assess only if a prima facie case exists, discharging the accused if a grave suspicion is not present. This principle was opined in Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4.

When does a Judge frame a charge against the accused?

If there are grounds for presuming that the accused committed an offence, the Judge frames a charge accordingly. This depends on whether the offence is exclusively triable by the Court of Session or not.

How is the charge communicated to the accused if framed under a Court of Session?

The charge is read and explained to the accused, who is asked if they plead guilty or claim to be tried, and this can be done either physically or through audio-video electronic means.

What are the principles related to framing of charges?

At the stage of framing charges, the Judge must appreciate the material available on record, with grave suspicion being sufficient for framing charges, as was held in State (NCT of Delhi) v. Shiv Charan Bansal (2020) 2 SCC 290.

Is there a provision for framing issues in a criminal trial?

No, framing of issues is applicable only to civil matters, as stated in (2020) 12 SCC 630.

What happens if the accused pleads guilty?

If the accused pleads guilty, the Judge records the plea and may, at his discretion, convict the accused based on that plea.

What is the next step if the accused does not plead guilty or claims to be tried?

If the accused does not plead guilty or claims to be tried, the Judge will set a date for the prosecution’s evidence and may issue processes to ensure the attendance of witnesses or production of documents.

How is the evidence for prosecution taken?

The Judge proceeds to take all evidence supporting the prosecution, and evidence from public servants or witnesses may be recorded via audio-video means.

Does the Judge have discretion over the order of cross-examinations?

Yes, the Judge may defer cross-examination or recall witnesses for further cross-examination if appropriate, with guiding principles discussed in State of Kerala v. Rasheed (2019) 13 SCC 297.

What happens if there is no evidence against the accused after prosecution evidence?

If there is no evidence against the accused, the Judge shall record an order of acquittal.

What is required if the accused is not acquitted?

The accused is called upon to enter on their defence, adduce any supporting evidence, and may submit a written statement, which the Judge will file with the record.

Can the accused request attendance of witnesses for defence?

Yes, the Judge shall issue process for witness attendance or document production unless it is for vexation, delay, or defeating justice.

How are arguments conducted at the close of the defense examination?

The prosecutor sums up his case, and the accused or their advocate is entitled to reply. The prosecution may address any point of law raised by the accused with the Judge’s permission.

When and how should the judgment be pronounced?

The Judge should pronounce judgment as soon as possible within thirty days of argument completion, extendable to forty-five days with reasons recorded in writing.

What process follows if the accused is convicted?

The Judge must hear the accused on sentencing before passing sentence, ensuring fairness and individualized consideration as discussed in Rameshbhai Chandubhai Rathod v. State of Gujarat (2009) 5 SCC 740.

How is a previous conviction handled in sentencing?

If previous convictions are relevant, the Judge may take evidence on this after the current conviction, ensuring fairness and non-prejudice in the current proceedings.

What is the procedure in defamation cases?

The Court of Session follows the warrant-case procedure with the possibility of in-camera trials, compensation orders for false accusations, and provisions for appeals against compensation orders.

Therefore, the procedural structure for a trial before a Court of Session under the Bharatiya Nagarik Suraksha Sanhita, 2023, represents a progressive alignment of India’s criminal justice system with contemporary needs. By placing emphasis on expeditious trial processes, prosecutorial responsibility, and judicial safeguards, the BNSS strives to balance the scales of justice with efficiency and fairness. As the legal community adapts to the BNSS’s mandates, this comprehensive legislation is poised to significantly reduce delays, enhance transparency, and improve accountability in criminal trials. Ultimately, the BNSS reaffirms the commitment to uphold the rule of law, offering a streamlined, equitable framework that protects citizens’ rights while reinforcing public safety. The shift introduced by the BNSS in sessions trial procedures holds the promise of a more responsive and resilient justice system for a modern India.

 Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.