- What are the preliminary pleas that can be used to bar a trial?
- “Every offence shall ordinarily be inquired and tried by a court within the local limits of whose jurisdiction it was committed.” Explain the statement and state its exceptions, if any.
General Concept
When an accused appears or is brought before the court for a trial, he may raise certain pleas or objections to avoid the trial. For example, he may plead that the court does not have jurisdiction in the case or that the offence happened too long ago, or that he has already been tried and acquitted for the same offence. Such pleas are meant to stop the trial from proceeding further and discharge the accused. However, such pleas may also be raised by the prosecution when the court does not have competency or jurisdiction in the case.
Such pleas are supposed to be brought forth at the beginning of a trial or as soon as charges are framed. However, there is no explicit direction in Cr P C regarding the timing for such pleas.
The following are the pleas that can be raised –
1. Court without Jurisdiction – The jurisdiction of criminal courts is of two kinds. One determines the competency of the court to try a specific offence and the other determines whether the offence happened in the territory of the court, which is also known as territorial jurisdiction.
Competency of the Court to try the offence – Section 26 read with column 6 of the first schedule determines which court can try a given offence. For example, offences against public tranquillity can be tried by any magistrate while the offence of counterfeiting a government stamp can be tried only by a Court of Session. Similarly, only the prescribed court or magistrate has the power for all the offences defined in IPC and other laws.
Thus, any party to the proceeding can raise the plea that the court is not competent to try the concerning offence. Section 461 provides that if any magistrate, who is not empowered to try an offence, tries the offender for that offence, the proceedings shall be void.
Also, an executive magistrate has no power to try for any offence.
Further, as per Section 479, no magistrate or judge can try any case in which he is a party or in which he is interested. If a trial is initiated in violation of this rule, a plea can be raised in this regard.
Territorial Jurisdiction – This jurisdiction is determined according to Section 177 to 188 of CrPC. These rules have been enacted mainly for the purpose of convenience of the court, the investigating agency, the accused, and the victim. The general concept is that only the court in whose territory the offence or any part of the offence has happened can try that offence. In simple terms, an offence committed in Mumbai cannot be tried in a court in Delhi. However, most cases are not as simple as that. For example, A hurts B with a knife in Dewas and D dies because of the wound in Indore. In this case, both the courts in Dewas and Indore have jurisdiction. However, if victim B lives in Bhopal and if an FIR of his death is filed in Bhopal, can A be tried in Bhopal? If not, and if A is tried in Bhopal, A can raise a pleas to bar the trial in Bhopal.
Any violation of the rules of territorial jurisdiction does not ipso factor vitiate the trial unless it has in fact resulted in failure of justice. However, if a plea of territorial jurisdiction is raised at the beginning of the trial, then such objection must be sustained and the trial must be stopped. It cannot gain legitimacy under Section 462 in that case.
2. Time barred proceedings – Earlier, any offence committed could have been taken cognizance of after any number of years. This caused grave injustice to the accused as important witnesses became unavailable, or important evidence was destroyed over time. For these reasons, CrPC has now incorporated some general rules for taking cognizance of the crimes within a specific period of their happening. In general, the principle that offences punishable with only a fine or with imprisonment up to 3 yrs should be tried within a limited time. The provisions regarding such limitations are contained in Sections 467 to 473 and an accused can take advantage of the appropriate section to raise the plea that the case against him is barred by the prescribed period of limitation.
Section 468 contains the basic rule which provides that no court shall take cognizance of an offence punishable with a fine only or with imprisonment up to three yrs after the expiry of the period of limitation. The period of limitations is –
1. 6 months, if the offence is punishable by a fine only.
2. 1 yr, if the offence is punishable with imprisonment of a term not exceeding 1 yr.
3. 3 yrs, if the offence is punishable with imprisonment of a term not exceeding 3 yr.
These provisions are subject to any other provision which might have been created explicitly for any particular offence.
Trial of offences of serious nature, i.e. offences which entail punishment of imprisonment of more than 3 yrs, or death, as of yet, are not barred by any time limitation.
3. Plea of autrefois acquit and autrefois convict – This means that if the offender has already been tried for the exact same offence before and he has been either acquitted or convicted in that trial, he cannot be tried again on that offence. Art 20(2) of the constitution recognizes this principle as a fundamental right. It says that no person shall be prosecuted and punished for the same offence more than once. While the article gives this right only upon previous conviction, section 300 fully incorporates this principle.
4. Disabilities of the accused – Under the broad interpretation of Article 21 by the Supreme Court, an accused has a fundamental right to be represented by a legal practitioner in his trial. If he is indigent, it is the responsibility of the state to provide a lawyer for him. Section 304 also requires the court to assign a pleader for the accused in certain situations. If this is not done, a plea can be raised in this regard. If the trial still proceeds, despite the objects, the trial is deemed to be vitiated.
Further, when the accused is of unsound mind and consequently incapable of making his defence, the code requires the court to postpone the trial until the accused has ceased to be so. The accused can raise this plea for objecting to the trial.
5. Principle of issue estoppel
6. Application of res judicata
Keywords: Preliminary Pleas, Preliminary Pleas Under Code of Criminal Procedure, 1973, Preliminary Pleas Definition, Preliminary Pleas in India, Preliminary Pleas Under CrPC, 1973.
Click here to read the Bare Act of Code of Criminal Procedure, 1973
