Criminal Trial

From Justice Definitions Project

What is 'Criminal Trial'

A trial is a formal meeting in a court in which evidence about crimes, disagreements, etc., is presented to a judge and often a jury so that decisions can be made according to the law.[1] Criminal trial is designed to resolve accusations levied (usually by the State) against a person accused of a crime.[2] The Code of Criminal Procedure, 1973 does not provide a definition of criminal trial. Similarly, Bharatiya Nagarik Suraksha Sanhita, 2023 does not define criminal trials.

Adversarial and Inquisitorial Criminal Justice Systems

Adversarial System

In an adversarial system, the truth is meant to surface from the opposing versions of events that the prosecution and defence present to an impartial judge.[3] This indicates that the trial's goal is to negotiate a fair settlement for the parties, not to find the truth. The judge's job as an unbiased arbiter is to determine whether the prosecution has proven its case beyond a reasonable doubt. As a result, the parties are essential to the process by which the judge determines guilt. In India, this system is used.

Inquisitorial System

In this system, the prosecution, police, and court are often viewed as collaborators in the pursuit of justice or the truth, or as parties to the crime. Through the combined efforts of the prosecutor, the police, the defence attorney, and the court, justice is intended to be served. The court can actively participate in gathering evidence, conducting a case investigation, and questioning witnesses. Under this system, the judicial police officers (Police/Judiciary) have the primary authority to conduct investigations. They look into it and use the information they find to draw the paperwork.[4]

Legal provision(s) relating to 'Criminal Trial'

Ordinary place of inquiry and trial

Section 177 CrPC  (Section 197 BNSS) - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

Place of inquiry or trial

Section 178 CrPC / Section 198  BNSS -

(a) When it is uncertain in which of several local areas an offence was committed; or

(b) where an offence is committed partly in one local area and partly in another; or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one; or

(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Conclusion of Trials

Acquittal or conviction - BNSS Section 271

If the Magistrate finds the accused not guilty, he shall record an order of acquittal.[5] Where Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of section 364 or section 401, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.[6]

Absence of complainant - BNSS Section 272

When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may after giving thirty days' time to the complainant to be present, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

Compensation for accusation without reasonable cause. - BNSS Section 273

If, in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one; or, if such person is not present, direct the issue of a summons to him to appear and show cause as aforesaid.

Types of 'Criminal Trials'

Warrant Trial

The Code of Criminal Procedure, 1973 does not explicitly define the ‘Warrant Case’. However, section 2(x) of the CrPC defines a 'Warrant Case' as a case relating to an offense punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. The trial for warrant case is called a warrant trial.

Summon Trial

Section 2(w) CrPC refers to a summon case as a case relating to an offense, and not being a warrant-case. This means that it is a case relating to an offense not punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The trial for summon case is called a summon trial.

Summary Trial

The term ‘Summary case’ refers to trials, which under the CrPC provide a streamlined and expeditious legal process for quickly disposing of certain types of criminal cases in India. They are typically used for cases involving petty offences, where the maximum punishment is up to two years of imprisonment, or cases deemed to be of a summary nature by law. These summary trials are designed to ensure swift justice by simplifying procedures and reducing timelines. Trial for summary cases is called a summary trial.

Session Trial

If the offence committed is punishable with more than seven years of imprisonment or Life imprisonment or Death, the trial is to be conducted in a Sessions court after being committed or forwarded to the court by a magistrate. These are called session trials.

'Trial' As Defined in Case Laws

A. K. Gopalan v. State of Madras[7]

The word "due" in the expression "due process of law" in the American Constitution is interpreted to mean "just," according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law. The deliberate omission of the word "due" from article 21 lends strength to the contention that the justiciable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word "due", the limitation imposed by the word "procedure" and the insertion of the word "established" thus brings out more clearly the idea of legislative prescription in the expression used in article 21. By adopting the phrase "procedure established by law" the Constitution gave the legislature the final word to determine the law. The interpretation of Article 21 does not lead to natural justice under fair trial.

Maneka Gandhi v. Union of India (UOI) and Ors.[8]

Article 21 clubs life with liberty and when we interpret the colour and content of 'procedure established by law' we must be alive to the deadly peril of life being deprived without minimal processual justice, legislative callousness despising 'hearing' and fair opportunities of defence. And this realization once sanctioned, its exercise will swell till the basic freedom is flooded out. Hark back to Article 10 of the Universal Declaration to realize that human rights have but a verbal hollow if the protective armour of audi alteram partem is deleted. When such pleas are urged in the familiar name of pragmatism public interest or national security, courts are on trial and must prove that civil liberties are not mere rhetorical material for lip service but the obligatory essence of our hard-won freedom. This judgement overruled the A. K. Gopalan judgement.

D.K.Basu Vs State of West Bengal[9]

The courts issued following guidelines:

  1. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  2. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
  3. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  4. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
  5. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
  6. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

Naresh Sridhar Mirajkar V. State of Maharashtra[10]

It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court-room. he principle underlying the insistence on hearing causes in open court is to protect and assist fair, impartial and objective administration of justice; but if the requirement of justice itself sometimes dictates the necessity of trying the case in camera, it cannot be said that the said requirement should be sacrificed because of the principle that every trial must be held in open court. In this connection it is essential to remember that public trial of causes is a means, though important and valuable, to ensure fair administration of justice; it is a means, not an end. It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.

Arnesh Kumar v. State of Bihar[11]

The court issued following guidelines with respect to criminal trial:

  1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
  2. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
  3. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
  4. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
  5. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

International Experience

United Kingdom

The magistrates' court is typically the lone venue for the trial of less serious charges like driving offences or public order violations. We refer to these as "summary only" offences. Only the Crown Court has the authority to try cases involving the most heinous crimes, including murder or rape. These offences are referred to as "indictable only." "Either way" offences are those that fall in the middle, and the District Judge or magistrates will determine whether to send the matter to the Crown Court or continue it in their court. Trials take place in Crown Courts or Magistrates' Courts.[12]

United States of America

Unlike India, USA still follows the jury system to conduct trials. Juries are composed of average citizens who actively participate in deciding the outcome of legal disputes brought to trial. After hearing evidence presented during the trial, they deliberate in secret and reach their decision, called a verdict, which the jury then presents to the judge and which generally brings an end to the trial and to the underlying.[13] For the trial to conclude, the jury must reach a unanimous verdict.


The 1959 Code of Criminal Procedure (Code de procédure pénale; CPP) contains information about French criminal procedure. There are two components to the inquiry: the court-supervised in-depth investigation (instruction) and the preliminary police investigation (enquête). The office of the public prosecutor (procureur) oversees the preliminary police inquiry. During this stage, the police look for leads and conduct investigations to ascertain whether a crime has been committed. The thorough investigation to determine whether there is sufficient evidence to support prosecution is done in the second phase. The prosecutor (procureur) or, in more serious cases, the investigating judge (juge d'instruction) typically handle the second portion.[14]

United Arab Emirates

Arabic is the language used for all judicial proceedings, and all statements are either translated into or taken in Arabic. A sworn translator will be provided to the accused by the courts and public prosecutor. A judge hears cases in a closed, or non-public, environment. The only people allowed in chambers are the defence and prosecution teams, the defendant, the victim or victims, the parties involved in the case, and any expert witnesses who may have been asked to testify. Parents and legal guardians are permitted to present when minors are involved. Jury trials are not practiced.

South Africa

Six major components make up the criminal justice system in South Africa.[15]

1. The South African Police Service, sometimes known as the SAPS, is responsible for preventing crime, looking into crimes, and apprehending suspects. 2. Whether or not to prosecute someone who is accused of committing a crime is decided by the prosecution agency, formally known as the National Prosecuting Authority. 3. After hearing testimony, the presiding officer—a magistrate or judge who hears the case—and the judiciary—the courts—determine whether the accused is guilty or innocent. They also choose the appropriate punishment for those found guilty. 4. The Department of Justice offers everyone equitable access to high-quality justice. 5. The Department of Correctional Services (DCS), which oversees the prison system, ensures that sentences are carried out. They also try to rehabilitate the convicted criminals in their care. 6. Probation officer/social worker provide social services for the poor and vulnerable people. They work with victims of crime, families and communities. Probation officers are appointed by the Minister of Social Development, and are officers of every magistrate's court.

Research that engages with 'Criminal Trial'

Reports on Primary Data - ;


Following are some of the challenges posed to a smooth conducting of criminal trials:

  1. Malpractices by Police
  2. Institutional Corruption
  3. Non-registration of crimes
  4. Insufficient Allocation of Resources
  5. Frequent transfers of Investigating Ofiicers
  6. Custodial Interrogation
  7. Overburdened criminal justice system
  8. Lack of public prosecutors
  9. Overcrowded Prisons
  10. Increasing number of undertrial prisoners
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