When pursuant to a commitment of the case under Section 209 of the Code of Criminal Procedure, 1973 (Cr.P.C.) the accused is brought before the Court of Session the prosecutor has to open his case by describing the charge brought against the accused and stating that by what evidence he proposes to prove the guilt of the accused. When the case is brought before the Court of Session, the Judge has the power to 

  • either discharge the accused under Section 227 of Code of Criminal Procedure, 1973 (CrPC) or 
  • frame charges against the accused under Section 228 of Code of Criminal Procedure, 1973 (CrPC).  Before exercising its power, there is a duty upon the court to consider the record of the case and documents submitted therewith and to hear the submissions of the accused and the prosecution on that behalf.  

If after considering the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf, the Judge exercises his power of discharge under Section 227 of Code of Criminal Procedure, 1973, he has to give a definite opinion for discharging the accused. Meaning thereby that if the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused ‘after recording his reasons for doing so’. The language emanating from Section 227 of the Code of Criminal Procedure, 1973, makes it clear that the Judge cannot proceed on the basis of presumption. The use of the word ‘considers’ reflects that while discharging the accused, there has to be consideration by the Judge and not merely a presumption.

In the second scenario, if after considering the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf, the Judge exercises his power to frame charges against the accused under Section 228 of Code of Criminal Procedure, 1973 the opinion of the court is tentative. Meaning thereby that if the judge is of the opinion that there is ground for even presuming that the accused has committed an offense he shall frame in writing a charge against the accused. The use of the word ‘presumption’ in Section 228 of the Code of Criminal Procedure, 1973 suggests that mere presumption by the Judge is sufficient to frame charges against the accused. Unlike Section 227 of the Code of Criminal Procedure, 1973, Section 228 of Code of Criminal Procedure, 1973 does not require the Judge to record his reasons for framing charge against the accused. 

The Supreme Court of India in the case of State of Bihar vs. Ramesh Singh (MANU/SC/0139/1977) in the year 1977 laid down that at this initial stage, truth, veracity, and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defense of the accused. It is not obligatory for the Judge at this stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts if proved, would be incompatible with the innocence of the accused or not. The Supreme Court of India in the case of Amit Kapoor vs. Ramesh Chander (MANU/SC/0746/2012) in the year 2012 observed that at the initial stage of trial when the charges are framed against the accused, the court is concerned not with proof but with a strong suspicion that the accused has committed the offense, which if put to trial could prove him guilty.    

However, this presumption or suspicion of the guilt of the accused at the initial stage does not mean that the accused is guilty unless the contrary is proved. The judgment of acquittal or conviction by the Judge is given under Section 235 of the Code of Criminal Procedure, 1973. The Apex Court in the case of Ramesh Singh observed that at the conclusion of the trial, if the scale of guilt and innocence are even, the benefit of the doubt is to be given to the accused and the same is to end in acquittal.    

Section 232 of the Code of Criminal Procedure, 1973 gives power to the Judge to record an order of acquittal if after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defense on the point, the Judge considers that there is no evidence that the accused committed the offense. Meaning thereby that before entering upondefense by the accused under Section 233 of the Code of Criminal Procedure, 1973 if the Judge considers that there is no evidence that the accused committed the offense, he can record an order of acquittal.