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In India, the matters are dealt with by the courts and the authorities as per the procedure laid down in the two Codes:

  • Code of Criminal Procedure 1973;
  • Civil Procedure Code, 1908.

The former provides the procedure to be followed in case of criminal cases whereas the latter provides for the process to be followed in civil cases. The right to a fair trial is considered a human right and an important principle under criminal law. This was also upheld by the apex court in the case of Rattiram v State of MP[1].


The term ‘Criminal trial’ refers to the legal court procedure whereby the crime of a person is made out and he is punished for the same. It includes cases like murder, culpable homicide, rape etc. In India, the Indian Penal Code 1860 provides for the punishments for different crimes; the Code of Criminal Procedure 1973 provides for the procedure related to a criminal trial, and the Indian Evidence Act 1872 contains provisions related to the admissibility of evidence.

Firstly, there is a commission of the offense, which could be cognizable or non-cognizable. Then the criminal procedure begins.

Cognizable Offence: These are offenses that can be investigated by the police on their own (Section 156[2]) and there is no need for a warrant to arrest. It mainly consists of non-bailable and serious cases. The process is initiated by the registration of FIR by the police.[3] Then the accused is arrested by the police and may be kept in police custody or sent to judicial custody. It is mandatory to produce the accused before the Magistrate within 24 hours of the arrest. Then the case is investigated by the police to:

  • Collect evidence;
  • Interrogation of the accused;
  • Statement of witnesses;
  • Expert opinion.

On completion of the investigation, if no offense is made out then the case is closed by filing a case closure report before the police. If the offense is made out, the police file a charge sheet before the Magistrate as per Section 173[4] of the CrPC. If the charge is not made out then the accused is released. If the charges are made then the trial before court starts. The court asks the accused to plead guilty or not guilty. If the accused pleads guilty under Section 253[5] then he is convicted accordingly. If not, then the Prosecution bears the burden of proof and responsibility to produce the evidence and witnesses. The Counsel cross-examines these witnesses on behalf of the accused. After that, the court examines the accused and the Defense produces its evidence. The Prosecution cross-examines the witnesses at this stage.

Then, there is a conclusion of the evidence. Oral arguments of both the parties are heard and the Memorandum of arguments are submitted to the court. In the end, the Judgement is given by the court which could be related to the acquittal or conviction of the accused. After this, there is a hearing on the quantum of the sentence. Then, there may be appeals preferred by the accused to the higher courts like the Sessions Court, High Court, and Supreme Court.

However, if an application is filed by the accused in the initial stages of the trial, for anticipatory bail (before Sessions court) then he may be released on it. If this application may be rejected even by the High Court, then Special Leave Petition for anticipatory bail could be filed with the Supreme Court

Non-Cognizable Offence: These are those cases where the police are entitled to investigate on the order of the court. The police officers cannot arrest without a warrant. It mainly includes bailable offenses. The court can take cognizance and inquire into the case or order the police officers to investigate the same. If a prima facie case is made out then the accused is summoned. The court may even grant bail to the accused if it considers it in the best interest of justice.

In the matter of Rajesh Gandhi[6], the apex court held that nobody can oblige a particular investigating agency to investigate a matter. Hence, the request of the petitioners that only the CBI should investigate the case was dismissed.


The term ‘civil trial’ refers to the procedure involved in dealing with a civil case by the courts. It involves matters related to breach of contracts, money fraud, etc.  In India, the Civil Procedure Code of 1908 provides for it.  According to Rule 1, pleadings mean a plant or a written statement. According to Order VI Rule 16, the court is authorized to reject the pleadings if it is unnecessary, scandalous, or an abuse of the process of the court. The first stage is the presentation of the plaint in the court. Then, the summons is issued and served on the defendants or the respondents as per Schedule 1. However, if the defendants fail to appear before the court, then an ex-party decree may be passed by the court as per Order IX of the CPC[7].

After receiving the summons, the defendants are required to file a written statement within 30-90 days generally. This is a type of reply to the plaint filed, rejecting the allegations of the plaintiff. The next stage is the production of documents and evidence by both parties. The next stage is related to the Examination of the parties by the court. As per Rule 1A, the court may also direct the parties to resolve their dispute through the Alternative Dispute Resolution Mechanism.

The stage is followed by the framing of issues which could be factual or legal or a mixture of both. Also, witnesses are summoned by the court. The civil cases involve adjournments as well. After this, the defendant’s side cross-examines the plaintiff’s witnesses. Then, the Plaintiff side cross-examines the defendant’s witnesses.

After completion of the examination of witnesses, the arguments of both parties are heard by the court, and judgment is given. The aggrieved party may apply for a review of the judgment within 30 days and can also file a review petition in a higher court within a limitation period of 60-90 days. Finally, the decree is executed.


Article 226[8] and 227[9] of the Constitution of India provides for the Jurisdiction of the High Court. The jurisdiction of the High Court is also governed by two Codes i.e., Code of Criminal Procedure, and Code of Civil Procedure.

According to the Constitution of India, the following are the provisions related to the Jurisdiction of the High Court:

Original Jurisdiction: The original criminal jurisdiction of the High courts has been taken away entirely by the Code of Criminal Procedure but the civil jurisdiction of the court is retained.

Appellate Jurisdiction: The appellate jurisdiction of the High courts is there for both civil and criminal cases. In civil cases, the court is empowered to hear the first as well as the second appeal. Where a subordinate court decides an appeal then a second appeal lies to the High Court but only on the question of law and procedure and not on the question of fact. However, the criminal appellate jurisdiction is complex and appeals lie from the decisions of:

  • A Sessions Judge or an Additional Sessions Judge, where the imprisonment exceeds seven years.
  • An Assistant Sessions Judge, Magistrate Metropolitan Magistrate, or other Judicial Magistrate or as specified under Sections 374[10] and 376[11] of the CrPC.


The Constitution of India provides the High Court with the power of superintendence over all courts and tribunals throughout the territory of India about which it exercises jurisdiction except the military tribunals. The power of superintendence of the High Court is supervisory and not appellate. But this power cannot be exercised in the cloak of an appeal in disguise. In the case of Radhey Swami v Chhabi Nath[12], the court observed that the high court cannot intervene with the orders of the trial court when passed on sound considerations.


A trial mainly includes the process of registering the complaint, framing of charges, investigation of the case, cross-examination, etc. In India, the procedure to be followed in trials is provided under the Code of Criminal Procedure, 1973 (for criminal cases) and Civil Procedure Code, 1908 (for civil cases). The crimes may be cognizable or non-cognizable. Both have different procedures for trial. Further, article 226[13] of the Constitution provides that the High Court shall not have original jurisdiction for criminal cases, as it is having for civil cases. It can exercise only appellate jurisdiction in criminal cases.

Author(s) Name: Leezer Kaur (Army Institute of Law, Mohali)


[1] Rattiram v State of Madhya Pradesh AIR 2012 SC 1485

[2] Code of Criminal Procedure 1973, s 156

[3] Code of Criminal Procedure 1973, s 154

[4] Code of Criminal Procedure 1973, s 173

[5] Code of Criminal Procedure 1973, s 253

[6] CBI v Rajesh Gandhi 1996 (11) SCC 253

[7] Civil Procedure Code 1908, or 9

[8] Constitution of India 1950, art 226

[9] Constitution of India 1950, art 227

[10] Code of Criminal Procedure 1973, s 374

[11] Code of Criminal Procedure 1973, s 376

[12] Radhey Swami v Chhabi Nath (2015) 5 SCC 423

[13] Constitution of India 1950, art 226