In this article, we shall study the basic requisite for initiation of criminal proceeding against the accused; what types of offences are cognized by magistrate and session court; and what is the procedure of trial of magistrate, session and high court?
Condition requisite for initiation of criminal proceedingsCognizance is taken of an offence as soon as court competent to exercise his jurisdiction for the purposes of initiation of criminal proceedings. If in the opinion of the court to initiate judicial proceeding against the offender in respect of the offence, then it must commence the criminal procedure. The cognizance implies the acceptance of the offence committed by the accused in light of evidence and statement produced by the complainant. The competence of court is precondition to the cognizance of offence, and if, any offence is recognizance by court not having competency, then entire proceedings are irregular and illegal.
With exception the specific provisions in Cr.P.C.1898, where certain offences have been barred to be taken cognizance until mentioned specifically in penal statute. Magistrate is empowered under section 190 to take cognizance of the offences.
Cognizance of Offence by magistrate
Under subsection 1 of section 190 of Cr.P.C of 1898, the district magistrate or subdivision magistrate and any other magistrate specially empowered to take cognizance of any offence, if he receives a complaint of facts which constitute such offence or the report in writing of such facts made by any police officer or the information received from any person other than police officer or upon his own knowledge or suspicion that such offence has made committed, he will immediately take cognizance of the offence.
The provision of subsection 3 of section 190 has laid down that the a magistrate taking cognizance under sub-section (1) of an offence triable exclusively by court of session shall without recording any evidence, send the case to the court of session for trial. However, if any order has passed by magistrate whom he is not authorized by law to do that, then the order or enquiry reports shall not be binding on the Court of Session.
Cognizance of the offence by court of session and high Court
Under subsection 1 of 193 of Cr.P.C Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the section 190, subsection (3), and under section 194 of Cr.P.C 1898 of 1898. The High court may cognizance any offence described in Pakistan Penal Code or in any other penal code. The section 193 impose an embargo upon and limit the power of the Court of Session to take cognizance of any offence unless accused had been sent to Court of Session by magistrate duly empowered by penal statute. The session judge may take any view keeping in view the facts and circumstance of the case and these should be interpreted in light of penal statutes.
The sections 190 and 193 are mandatory and session court is not a court of original jurisdiction and cannot entertain any direct complaint or pass any order, unless the same is forwarded to it by magistrate under section 193(3), and if done are outcome of material irregularity of court.
Issue of process
When the offence has recognized by court and it is in opinion of the court of trial that there is sufficient ground for proceeding. The court may issue a warrant for summons for causing the accused to be brought or to be appeared at certain time before court.
The section 201 is the only section which authorizes a magistrate to issue process to the accused for purpose of summoning him to hold him accountable for charges leveled against him. Where he takes cognizance on the private complaint or on a police report or any other information or knowledge other complaint, he must proceed with existence of sufficient ground of proceeding and he has to commence proceedings against the accused by compelling his attendance before the court.
There must be sufficient of grounds of proceeding does not mean complaint alone but the complaint deposition, supported by oral or documentary evidence as produced before the courts. Only the prima facie case is required for initiated the criminal proceedings under section 204, court is not expected to go into the detail by the conducting a preliminary trial. If on the basis of evidence that have been supplied, it is adduced by complaint it can be said that there is sufficient ground for initiation of the criminal proceeding against the accused of crime .
Procedure of Trial by Magistrate
The sections 241 to 249 are related with trial by cases magistrate. The procedure is to be adopted in all cases instituted upon condition mentioned above.
1. Supply of statement and documents to the accused
Under subsection 1 of section 141-A, in all case instituted upon police report and copies of statement of all witnesses recorded and produced under section 161 and 164 and all of the records of evidence recorded by the investigation officer in charge of police station on his first visit to the place of occurrence. It is duty of the court law to supply all copies of document to accused at free of cost not less than seven days before the commencement of the trial.
The Supply of the copies of whiteness’s statement recorded under section 161, Cr.P.C 1898 to be provided to accused is an essential requirement for end of justice and it is preparatory stage of trial by magistrate . What have been stated in the petition of complaint the substance of the accused his name, address, and the names of his witness and the gist of the evidence and fact and circumstances which he is likely to adduce at the trial. It is necessary for trial court to give opportunity to the accused show cause of the allegation brought him and he must be given the affordable opportunity to defend himself .
2. Charges to be framed
When the accused appears or he is brought before the magistrate for defend alleged leveled against him, he shall be asked whether he admits that he has committed the offence with which he is charged.
When the magistrate having been satisfied, one the basis some cogent evidence spelling out the ingredients of an offence is required to frame a formal charge and these charge must read in open court. The framing the charges is essential and mandatory requirement of criminal procedure. Accused person should not be convicted straight way on the plea of guilt made by the accused. Trial Court is required to give opportunity to the accused to show cause of the allegation brought against him .
3. Conviction on admission of truth of accusation
If the accused admit that he has committed the offence, his admission shall be recorded exactly in the words which have spoken by him; and if magistrate finds no sufficient evidence available he may convict accused. The consideration of the sufficient cause must be based on material evidence in hand; the magistrate may convict accused accordingly in defined statutory procedure. The admission of guilt of accused made before the police is reversible at the discretion of the accused. The resiliency of admission of the guilt is relevant factor for court in convict of accused, but it is not sufficient ground.
4. Procedure when no such admission is made.
Under the subsection 1 of section of 244 of Cr.P.C 1898 if the magistrate does not convict the accused under the proceeding section then the magistrate shall proceed to hear the complaint and record all evidence produced in support of the prosecution by state functionaries. The magistrate also has to hear the accused and record all evidence which he produces for his defense.
The magistrate may issue summons or warrant to accused directing him to attend the proceeding . Accused not supplied with previous neither statements nor adequate opportunity to confront witness with previous statement. Witness not even mentioned in Challan but acquainted with facts of case can be examined as prosecution witness with permission of court. The right to cross examination is existed under section 244 of Cr.P.C 1898 as the right to defend.
5. Statement of Records before Magistrate
The statement recorded under section 244 if any statement is recorded under section 164 in presence of the accused, then he must be given the reasonable opportunity to cross the statement which has made against him. The methods of cross examination should be conducted according to the article of Qunun-e-Shahadat Order. There is no bar to power of court to record the evidence in absence of accused, if he pronounced to be absconding offender.
6. Acquittal or Conviction
If any evidence provides under section 244 and statement recorded under section 164, Magistrate has found the evidence insufficient and inadequate evidence to constitute the liable for commission or omission of offence, he may acquit the accused after due deliberation of evidence that has been forwarded by complainant to proof the accused guilty, and if he found guilty, he may pass sentence order.
Procedure of the trial of Cases by Session and High Court
In every trial before the Court of Session, initiated upon a police report, the prosecution shall be conducted by the public prosecutor, and entire cost of the expenditure to be incurred by the state. The option to engage any counsel rest on complainant where the private complaint lodged and complaint is satisfied with counsel. The following procedure shall be observed by High Court and Court of Session in which trial of cases by said courts.
1. Supply of documents and statement to accused
In all case proceeding to be initiated upon receiving of police report or by private complaint, and copies of documents of the first information report, the police report, the statement of witnesses recorded under section 161 and 164 and the inspection not recorded by an investigation officer on his first visit to the place of occurrence and note recorded by on recoveries made should to be supplied free of cost to accused not later than seven day before the commencement of the trial , No person should not be convicted unheard in court of law and sufficient opportunity must be provided to accused to make arrangement for engagement of counsel for his defense against the charges leveled against him.
In case where the cognizance of offence has made by magistrate on receiving of complainant, the documents mentioned in clause (a) and (b) of subsection 2 of section 265-C to supplied to accused. In addition to document mentioned above, what have been Stated in petition of complaint the substance of the accused, the name of his witnesses and gist of evidence which is likely to adduce at the trial should also be provided and all other the order of court issued for summoning of the accused and also the copies of the complaint and other document supplied by complainant to court as evidence.
Copies of statement recorded during investigation separately under section 161 or 172 Cr.P.C whether such person are cited as prosecution witness or not or whether supporting prosecution or defense have to supplied to the accused.
2. When charge is to be framed
After perusing the police report or the complaint and all other document and statement filed for prosecution in court for prosecution of the accused, the court need to initiate the criminal prosecuting. The court need to give due deliberation to gist of information, evidence in record in hand and where sufficient grounds are available for prosecution and the trial of the accused. The police should write the charges against the accused. The description of offence committed by the accused and these charges must fulfill the requirement of definition that is given in penal statutes.
3. Plea
The charge shall be read and be made open to the accused, and he shall be given affordable opportunity irrespective of fact that he is guilty or not. He should be chance to defend the charge leveled against him. If the accused pleads guilty, the court shall record the plea.
Whatever the charge is to be read and explained to the accused in open court, he should be brought before the court of law for criminal prosecution and he shall be asked whether he pleads guilty or has any defense to make, and if the accused plead guilty. Then it is the discretion of court to convict the accused but that discretion should not to be exercised beyond the power given in penal statutes. The personal whim and caprice of the court of law is a negation of criminal justice. The court is required to examine the prosecution evidence even if the guilty is admitted in response to the charge.
The section is quite clear in interpretation that court is not all circumstances which are brought before the court; it shall have to record conviction. That description must provide basis of material evidence, the accused has been prosecuted by court. That power given in this section aimed as to minimize the changes of wrong conviction of the accused.
4. Evidence for prosecution
If the accused does not plead guilty and no sufficient and material evidence are produced of the guilt of accused, then it is the discretion of court to convict accused. The court shall proceed to hear the complaint and take all such evidence as many are produced for his prosecution :
The court shall ascertain from the public prosecutor or as the case may be, from the complaint and, the name of any person likely to be acquainted with the facts of the case and shall summon such persons to give evidence . The court shall refuse to call any witness, if it will cause delay the justice and hamper end the justice. If the statement is given in the written form then that it shall be attached to the record .
The section refers to finalizing the prosecution case whether any defense has produced before the court not, and if no defense has adduced by the accused, the court shall after examination of the accused ask the prosecution to sum up his case where accused is eligible to make a reply. The pronouncement of judgment after its due deliberation is ultimate aim of the prosecution, but due opportunity be given to accused to defend himself.
In case of the private complaint the prosecution of the case has to be conducted by the private counsel of the accused not by state prosecutors. It is entirely discretion of the public prosecutor what witness shall be examined.
5. Acquittal or Conviction
If the court has found the accused not guilty having the record in hand, and after due interpretation of law in given circumstances, he shall order for acquittal of accused against the charges.
The section has vested power to the court to quit the accused at any stage when he found be beyond the shadow of doubt not guilty of any offense committed. The likelihood of suspicion always favors the accused and this power is limited to the jurisdiction when the trial court found that beyond the shadow of doubt. If the court has found material irregularity in evidence either recording or production of evidence and there is no direct connection of the accused with the offence alleged, the court may order the acquittal of accused.
Summary Trials
The magistrate of first class or any bench of magistrate specially has been empowered by provincial government may try in summary way all or any of the following offences mentioned clauses (a) to (m) of subsection 1 of 260.
Summary
It is here concluded that magistrate, session and high court can only initiate the criminal after cognizance of offences. The both magistrate and session court have their original jurisdiction to try offences as have been mentioned in Criminal procedure code. Initiation of criminal proceeding start with issue of warrants of accused and after his appearance before courts, he is provided ample opportunity to defend himself against the framed charges. If he pleads guilty after through examination of record in hand, the criminal court can pass order of conviction or acquittal of accused.
The writer is an advocate of High Court and practicing immigration and corporate laws in Pakistan since September 2001. He is a self employed and pioneer in research on electronic commerce taxation in Pakistan. His articles were published widely in the critical areas of cyber crimes, electronic commerce, e-taxation and various other topics. He wrote LL.M thesis on titled “Legislation of electronic commerce taxation in Pakistan?in which he provided comprehensive legal proposals for statutory reconstruction of tax laws for purpose of imposition of taxation on e-business in Pakistan. Currently he is conducting is research on topic ‘Electronic commerce taxation: emerging legal issues of digital evidence?
Author can be contacted by adil.waseem@lawyer.com.