Trial before a Court of Session | Section 248 to 260 BNSS

Trial before a Court of Session under the BNSS, 2023: Chapter XIX, Sections 248 to 260, Discharge, Charge, Evidence, Judgment and the Hearing on Sentence

A Sessions trial is the most elaborate procedure the Bharatiya Nagarik Suraksha Sanhita, 2023 provides, and it is reserved for the gravest offences. Chapter XIX sets it out in thirteen sections, in a sequence that has not changed in its essentials since 1898: the Public Prosecutor opens; the Judge considers whether to discharge; he frames a charge; the accused pleads; the prosecution evidence is taken; the accused may be acquitted if there is none; he enters on his defence; the parties argue; and the Judge gives judgment and, on a conviction, hears the accused on the question of sentence.

What has changed is the timing. The Sanhita has put a period on almost every stage: sixty days for an application for discharge, sixty days for the framing of the charge, and thirty days, extendable to forty-five, for the pronouncement of judgment. None of those existed under the Code of Criminal Procedure, and together with the fourteen-day limit for the supply of documents and the ninety-day limit for committal, they put a timetable on a proceeding that had none.

1. The Sequence

Figure 1: The trial from the opening to the judgment

1.1 The Public Prosecutor and the opening: sections 248 and 249

Section 248 provides that in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. It is not open to a private person to conduct a Sessions prosecution. The victim or the complainant may engage an advocate, but that advocate acts under the direction of the Public Prosecutor and may, with the permission of the Court, submit written arguments after the evidence is closed.

Section 249 requires the prosecutor, when the accused appears or is brought before the Court in pursuance of the commitment, to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. The opening is a statement of the case, not an argument on it: its purpose is to enable the Judge to follow the evidence as it comes, and it is not the occasion for submissions on the merits.

1.2 Discharge: section 250

Section 250, BNSS 2023

(1) The accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under section 232.

(2) If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

📖 State of Bihar v. Ramesh Singh, (1977) 4 SCC 39

Facts: The Sessions Judge framed a charge, and the accused contended that the material did not establish a case and that the charge should not have been framed. The question was the standard the Judge applies at that stage: whether he must be satisfied that a conviction would follow, or something less.

Held: The Supreme Court held that at the stage of framing a charge the Judge is not to weigh the evidence as if he were deciding the case. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, cannot show that the accused committed the offence, then there is no sufficient ground for proceeding. But at that stage there is no scope for the Judge to act as if he were conducting a trial: the standard is not whether the material would warrant a conviction, but whether there is ground for presuming that the accused has committed the offence. The Court observed that the Judge may consider whether the material discloses a grave suspicion, and that if two views are equally possible on the material, the case must go to trial rather than be stopped at the threshold.

Ratio: At the charge stage the Judge asks whether the prosecution material, taken at its highest and before it is tested, could show the commission of the offence. He does not weigh the evidence as at a trial, and where two views are possible the case proceeds.

The test is examined more fully in the separate topic comparing cognizance with the framing of a charge. In short: grave suspicion justifies a charge, mere suspicion justifies a discharge, and the Judge has the undoubted power to sift and weigh the material for the limited purpose of deciding which it is, without conducting a roving inquiry.

1.3 The charge, and the plea: sections 251 and 252

Section 251(1): if, after such consideration and hearing, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Session, he shall frame in writing a charge against the accused. Sub-section (2) requires the charge to be read and explained to the accused, who shall be asked whether he pleads guilty or claims to be tried. And the section now requires the charge to be framed within sixty days from the date of the first hearing on charge.

Where the offence is not exclusively triable by the Court of Session, the Judge may frame a charge and transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class, who shall try the offence in accordance with the procedure for a warrant case instituted on a police report.

Section 252: if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The discretion matters: a plea of guilty in a Sessions case, where the sentence may be very severe, is not accepted as a matter of course, and the Judge must satisfy himself that it is unambiguous and made with a full understanding of its consequences.

2. The Evidence

Provision	Content
Section 253	Date for prosecution evidence. If the accused refuses to plead, or does not plead, or claims to be tried, or is not convicted on a plea of guilty, 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 a witness or the production of a document or thing
Section 254(1)	Evidence for the prosecution. On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution
Section 254(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
Section 255	Acquittal. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, he shall record an order of acquittal
Section 256	Entering upon defence. Where the accused is not acquitted under section 255, he shall be called upon to enter on his defence and adduce any evidence he may have in support. Any written statement he puts in shall be filed with the record. If he applies for the issue of process to compel attendance or production, the Judge shall issue it unless he considers, for reasons to be recorded, that the application is made for the purpose of vexation or delay or for defeating the ends of justice
Section 257	Arguments. When the examination of the witnesses for the defence is complete, the prosecutor shall sum up his case and the accused or his advocate shall be entitled to reply. Where any point of law is raised by the accused or his advocate, the prosecution may, with the permission of the Judge, make submissions with regard to it

⚠ Section 255 is narrower than it looks

The Judge acquits under section 255 only where there is no evidence that the accused committed the offence. The expression is strict: it is not a power to acquit because the evidence is weak, unconvincing or contradicted.

Where there is evidence, however unsatisfactory it may appear, the accused must be called on to enter on his defence, and the question whether the evidence is sufficient is decided at the end of the trial under section 258.

The section exists so that a trial is not continued where the prosecution has produced nothing at all on an essential element — for instance, where no witness has spoken to the identity of the accused. It is a provision against a futile continuation, not a second discharge.

3. Judgment and Sentence

Figure 2: The judgment, the hearing on sentence, and the time limits

Section 258, BNSS 2023

(1) After hearing arguments and points of law, if any, the Judge shall give a judgment in the case.

Provided that the judgment shall be pronounced in open Court within a period of thirty days from the completion of arguments, which may be extended to a period of forty-five days for reasons to be recorded in writing.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions relating to the release of offenders on probation or after admonition, hear the accused on the question of sentence, and then pass sentence on him according to law.

📖 Santa Singh v. State of Punjab, (1976) 4 SCC 190

Facts: The accused was convicted and sentenced to death. The Sessions Judge had, immediately on pronouncing the conviction, proceeded to pass sentence without affording the accused any real opportunity to be heard on the question of sentence. The conviction and sentence were challenged on the ground that the requirement of a hearing on sentence had not been complied with.

Held: The Supreme Court held that the requirement of hearing the accused on the question of sentence is mandatory and is not a formality. It is a separate stage, coming after the finding of guilt, and its object is to give the convicted person a genuine opportunity to place before the Court all the material bearing on the sentence — his age, family circumstances, background, antecedents, the conditions in which the offence was committed, and the prospect of his reform — matters which have no place at the trial of the issue of guilt and on which no evidence would have been led. The Court held that the hearing contemplates a real opportunity, which may require an adjournment and may require the parties to be permitted to lead evidence on the question; a perfunctory question asked and answered in the same breath does not satisfy it. A sentence passed without such a hearing is liable to be set aside, and the matter remitted for a fresh hearing on sentence.

Ratio: The hearing on sentence is a mandatory and separate stage. It requires a real opportunity to place material relevant to sentence before the Court, and a sentence passed without it is liable to be set aside and remitted.

3.1 Previous conviction, and the special case

Section 259 deals with a previous conviction. Where a previous conviction is charged under section 234(7) and the accused does not admit that he has been previously convicted as alleged, the Judge may, after he has convicted the accused under section 252 or section 258, take evidence in respect of the alleged previous conviction and shall record a finding thereon. But no such charge shall be read out by the Judge, nor shall the accused be asked to plead thereto, nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 252 or section 258.

The reason is plain: a previous conviction is highly prejudicial and has nothing to do with whether the accused committed the offence now charged. The section therefore quarantines it until the question of guilt has been decided, and permits it to be proved only for the purpose for which it is relevant — the sentence.

Section 260 provides for the one case in which a Court of Session tries a case without commitment. A case instituted under section 222 — the prosecution for the defamation of a public servant, on a complaint by the Public Prosecutor — is tried by the Court of Session as a warrant case instituted otherwise than on a police report, with the modification the section specifies; and the person against whom the offence is alleged to have been committed shall, unless the Court otherwise directs, be examined as a witness for the prosecution.

4. The Time Limits

Stage	Provision	Period
Supply of documents to the accused	Section 230	Fourteen days from the date of production or appearance
Committal proceedings	Section 232, proviso	Ninety days from the date of taking cognizance, extendable for reasons recorded
Application for discharge	Section 250(1)	Sixty days from the date of commitment
Framing of the charge	Section 251	Sixty days from the date of the first hearing on charge
Pronouncement of judgment	Section 258(1), proviso	Thirty days from the completion of arguments, extendable to forty-five days for reasons recorded
Furnishing a copy of the judgment	Chapter XXIX	Free of cost to the accused, and to the victim where the Sanhita so requires

⚠ What the time limits do, and what they do not

Every one of them is new. The Code of Criminal Procedure fixed no period for any of these stages, and a Sessions case could remain at the committal stage, or with judgment reserved, for a year or more.

They prescribe no consequence. None of the provisions says what happens if the period is exceeded, and section 258 and section 232 expressly permit extension for reasons recorded. They are therefore directory in effect.

But they are not without value. A period fixed by statute gives a party something to invoke and a supervising court something to measure against, where previously there was nothing. And the requirement that an extension be for reasons recorded in writing means that delay must now be explained on the record rather than simply occurring.

5. Key Takeaways

The position stated shortly

1. Section 248: in every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor. A private person may not conduct it.

2. Section 249: the prosecutor opens his case by describing the charge and stating by what evidence he proposes to prove the guilt. It is a statement of the case, not an argument.

3. Section 250: on the record and documents and after hearing the parties, if there is no sufficient ground for proceeding, the Judge shall discharge and record his reasons. An application may be preferred within sixty days of commitment — which is new.

4. Section 251: if there is ground for presuming that the accused committed an offence exclusively triable by the Court of Session, the Judge shall frame a charge in writing, read and explained to the accused, within sixty days of the first hearing on charge — also new.

5. The test at that stage is whether the prosecution material, taken at its highest and before it is tested, could show the commission of the offence. The Judge does not weigh the evidence as at a trial, and where two views are possible the case proceeds: Ramesh Singh.

6. Section 252: on a plea of guilty the Judge records the plea and may in his discretion convict. The discretion is real, because the sentence may be severe.

7. Section 254(2): the Judge may defer cross-examination until another witness has been examined, or recall a witness for further cross-examination.

8. Section 255: the Judge acquits only where there is no evidence that the accused committed the offence. It is not a power to acquit because the evidence is weak.

9. Section 258: judgment is to be pronounced within thirty days of the completion of arguments, extendable to forty-five for reasons recorded — which is new. On a conviction the Judge shall hear the accused on the question of sentence.

10. The hearing on sentence is mandatory and a separate stage, requiring a real opportunity to place material bearing on sentence before the Court; a sentence passed without it is liable to be set aside: Santa Singh.

11. Section 259: a previous conviction is not read out, not pleaded to, and not referred to by the prosecution until after conviction, when the Judge may take evidence of it.

12. Section 260: a case instituted under section 222 for the defamation of a public servant is tried by the Court of Session without commitment, as a warrant case instituted otherwise than on a police report.

6. Frequently Asked Questions

Who conducts the prosecution in a Sessions trial?

A Public Prosecutor: section 248. A private person cannot conduct it, though an advocate engaged by the victim or complainant may act under the direction of the Public Prosecutor and, with the permission of the Court, submit written arguments after the evidence is closed.

Is there now a time limit for seeking discharge in a Sessions case?

Yes. Section 250(1) permits the accused to prefer an application for discharge within sixty days from the date of commitment of the case under section 232. The Code of Criminal Procedure fixed no period.

What is the test at the stage of framing a charge?

Whether there is ground for presuming that the accused has committed the offence. The Judge asks whether the prosecution material, taken at its highest and before it is tested in cross-examination or rebutted, could show the commission of the offence; he does not weigh it as at a trial: State of Bihar v. Ramesh Singh.

When can a Sessions Judge acquit under section 255?

Only where, after taking the prosecution evidence, examining the accused and hearing both sides, he considers that there is no evidence that the accused committed the offence. It is not a power to acquit because the evidence appears weak or unconvincing; that question is decided at the end of the trial.

Is the hearing on sentence compulsory?

Yes. Section 258(2) requires the Judge, on convicting the accused, to hear him on the question of sentence unless he proceeds under the probation provisions. The hearing is a mandatory and separate stage requiring a real opportunity, and a sentence passed without it is liable to be set aside: Santa Singh v. State of Punjab.

When must the judgment be pronounced?

Within thirty days from the completion of arguments, extendable to forty-five days for reasons to be recorded in writing: the proviso to section 258(1). The limit is new; the Code of Criminal Procedure fixed no period.

Related Topics

The Charge under the BNSS, 2023: Sections 234 to 247
Cognizance and the Framing of a Charge Distinguished
Commencement of Proceedings: Sections 227 to 233, BNSS
The Public Prosecutor under the BNSS, 2023
Charge and Notice of Accusation Compared
Judgment under the BNSS, 2023: Chapter XXIX