Bridging the Procedural Gap under the BNSS: Rethinking Sessions Courts’ Powers to Direct Committal in Cross, Counter and Connected Cases

Introduction

The problem of uncommitted cases

Examine the fate of a trial pending before a Court of Sessions (hereinafter, “Sessions Court”) for charges of murder and attempt to murder. The accused pleads the right to private defence, asserting that the initial act of assault was initiated by the deceased and complainant-victim as aggressors and that his actions were spontaneous responses. This defence forms the core of a cross-case instituted by the accused, arising out of the same incident, which remains pending before a Magistrate without being committed to the Sessions Court.

In another instance, examine a situation where a murder case is awaiting its trial by the Sessions Court. The recovery of the murder weapon is made from the possession or at the instance of the accused while being in police custody. This discovery not only constitutes a substantive offence¹ under Section 25 of the Arms Act, 1959² — generally triable by Magistrate, but also may carry significant evidentiary value in the forthcoming sessions trial as amounting to a discovery statement relevant under Section 23(2) proviso, Sakshya Adhiniyam, 2023³ (formerly Section 27 of the Evidence Act, 1872), if its conditions are met.

Session cases without context

The above scenarios reflect a common challenge: the existence of a cross⁴ and a connected case, respectively, that are integrally linked to the sessions triable case (also referred to as “primary case” henceforth) but have not been committed to the Sessions Court — primarily because they are in themselves triable by a Magistrate as per the law, thereby not being technically mandatory to commit (explained in detail hereafter) to the Sessions Court, irrespective of their nexus with the primary case. This aberration results in the fragmentation of proceedings across different courts, which entails procedural complications and risks a miscarriage of justice, among other implications. Moreover, the challenge compounds in light of the technical impediment manifested in the Sessions Court’s lack of power to call for such cases for its consideration or direct their committal⁵ for trial. Thus, unless these cases are committed before it, the Sessions Court is left with no effective mechanism to ensure a joint and complete trial in these cases, which are desirable principles in any criminal justice system.

This article further explores this procedural lacuna, examining the particular interface between Section 232 of the Nagarik Suraksha Sanhita, 2023 (BNSS)⁶ [former Section 209 of the Criminal Procedure Code, 1973 (CrPC)] and Section 362 of the BNSS, 2023⁷, and demands for powers of re-examination of Sessions Courts coupled with imposing corresponding duties upon Magistrate and police/investigating authorities to assess with regards to the existence of any cross or connected case, to prevent abovesaid consequences and uphold the interest of justice.

Relevant legal framework

Before delving deeper, it is pertinent to understand the legal and jurisprudential framework relevant to the discussion. As has often been said, every trial is a voyage of discovery in which truth is the quest. This journey of discovery begins with the evidentiary material gathered during the investigation and finds its true meaning in the judicial appreciation and evaluation, which underscores the vital role of the courts in safeguarding the fundamental purpose of a criminal trial: the pursuit of truth. Therefore, the BNSS and its predecessor, CrPC, place significant emphasis on investigation and trial with a comprehensive legal architecture for both stages. These laws identify the courts’ competence to try various offences through Schedule I⁸ which is read in conjunction with Section 21 of the BNSS, 2023⁹ (formerly Section 26¹⁰ CrPC, 1973) which confers a concurrent jurisdiction to the Sessions Court to try any offence under the Nyaya Sanhita, 2023¹¹ (formerly the Penal Code, 1860¹²), indicating its plenary power to try all possible cases, unlike the Magistrate whose jurisdiction is circumscribed by the said Schedule based on the nature and gravity of the offence.

In particular, amongst others, the sessions trial procedure applies to two kinds of cases:

1. Cases exclusively triable by the Sessions Court, as per the said Schedule, that fall under Section 232 of the BNSS, 2023/Section 209 CrPC, 1973 wherein the Magistrate is outrightly disempowered to try, thereby casting a legal mandate upon him to commit the case to the Sessions Court after taking cognizance. For brevity, the article refers to them as “mandatorily committable” cases.

2. Cases not exclusively triable by the Sessions Court but the Magistrate ought to commit them under Section 362 of the BNSS, 2023/Section 323¹³ CrPC, 1973. These are cases where the Magistrate is shown to be empowered to try as per Schedule I¹⁴ of the Criminal Procedure Code, 1973; however, in light of the other factors, he is satisfied that the trial ought to be done by the Sessions Court by following a similar procedure as applicable to “mandatorily committable” cases. These include a wide-ranging set of cases, such as cross/counter and connected cases¹⁵, wherein a joint trial (for connected cases) and a separate trial (of the cross-case) by the Court already seized of the matter might be desirable in the interest of justice. Such cases have been described as “otherwise committable” cases henceforth.

Pertinently, this scheme rests on the foundational principle that cognizance, which denotes the judicial application of mind in the process of continuing further proceedings in a case, is ordinarily¹⁶ the prerogative of the Magistrate, who will then determine whether to try the case himself or commit it to the Sessions Court as per the aforestated provisions. This framework reinforces a clear procedural hierarchy wherein the Magistrate’s involvement becomes a necessary preliminary step in nearly every case that eventually reaches the Sessions Court for trial. It, therefore, follows that as the first judicial authority to be engaged with the matter, the Magistrate would be better placed to appreciate the procedural history i.e. gain those insights which might not be readily available to the Sessions Court as it functions primarily in a post-committal capacity.

Judicial concern about fragmented adjudication

Keeping the earlier scenarios in mind where the issue concerns the intersection of both categories of cases in a particular relation to cross/counter and connected cases that fall within the second category but are intrinsically linked to the primary case that falls under the first category, certain fundamental principles as given below, may be considered.

To break this down further, firstly, it is pertinent to understand that these two categories of cases are mutually exclusive and operate in distinct domains. This implies that while the Magistrate, after taking cognizance, is statutorily bound to commit the former category of case, the said specific compulsion remains absent in the latter category even though the case concerned might be a cross or a connected case which may legitimately demand (given its interconnectedness by the same incident/transaction and relevancy of one in another) a committal to the Sessions Court to enable joint or successive trials, ensuring holistic adjudication.

Secondly, in such cases, judicial consistency remains peremptory. Highlighting the same with a specific reference to cross-cases, the Madras High Court in a case as far back as 1929¹⁷ observed:

1. … A case and a counter case arising out of the same affair should always, if practicable, be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other.

Further, in another case¹⁸, this need was reiterated in the face of a legislative vacuum surrounding the trial of cross-cases. This legislative silence has remained unchanged even after the enactment of the 1973 CrPC¹⁹, and the present BNSS also fails adequately to account for this legislative gap. The Supreme Court in Sudhir v. State of M.P.²⁰ also expressed concern about this legislative apathy. However, given the frequent incidence of cross-cases being filed by parties, the Court in Nathi Lal v. State of U.P.²¹ had to issue certain guidelines regarding the trial of such cases which include a separate trial by the same Judge of all such cases in quick succession to each other and a successive pronouncement of judgments in regard thereto. Furthermore, in State of M.P. v. Mishrilal²², the Court again reiterated its proclivity for a common adjudicatory authority to try cross-cases. Various courts²³ across the country have also delivered a series of judgments²⁴ that resonate with this line of thought.

It is this judicial consistency that undergirds fairness, coherence in decisions and findings, and effective justice delivery. To exemplify, when cross-cases are not tried together before the same adjudicating authority, it may cause the witnesses to turn hostile in one case due to adverse developments in the other; the accused may secure an acquittal on technicalities or procedural delay, and later may use that acquittal as a shield in the cross-case; or accused might himself be unable to present his defence to the Court’s satisfaction since it forms an uncommitted cross-case. This might frustrate justice, which is the cornerstone of the entire trial process. In fact, given this background where the trial of cross-cases often appears to be complex, there exists a discourse²⁵ advocating for the consolidation of such cases for trial before the same court with an evolved set of governing principles tailored to such trials.

Nevertheless, the legislative vacuum does not remain adequately filled by these judgments or such discourse. Essentially, for argument’s sake, the same logic applicable to a trial of cross-cases before the same Judge can also be extended to those cases that might not be like cross-cases technically, but are connected being in furtherance or otherwise linked with each other since these principles hold equally relevant and desirable in these cases as well.

To lend credence to the above argument, a perusal of these laws themselves would reveal that their scheme desires the attainment of the said objectives. An inter-court and case coordination mechanism through provisions relating to sending of cases across courts such as committal, joinder of charges and trial under Sections 241–247 of the BNSS, 2023²⁶ (formerly Sections 218-224 CrPC, 1973) aligned with judicial consistency and procedural fairness, Section 448 of the BNSS, 2023²⁷ (formerly Section 408 CrPC, 1973) which pertains to the powers of Sessions Court to transfer cases across courts within its subordination, are a clear manifestation of the same.

Situating the Sessions Court within the current framework

In this backdrop, it can be argued that in the specific factual matrices described at the outset where there remains no guarantee of the committal of the “otherwise committable” cases by the Magistrate, regardless of the dictates of judicial prudence, the Sessions Court’s lack of an enabling power to call for or direct committal of such cases under the existing procedural landscape might undermine the achievement of the aforesaid guidelines and objectives — however inadvertently. This concern finds indirect support in Sudhir case²⁸, where the Supreme Court dealt with a similar factual matrix and held that the Magistrate ought to commit such cases to the Sessions Court, albeit by nature, they may be otherwise committable. Also, in Venkatrayan v. Ganapathy Gounder²⁹, the Madras High Court clarified that the Sessions Court does not have the power to direct committal from the Magistrate, unlike the High Court which has the said power under Section 407 CrPC, 1973³⁰ (presently Section 447 of the BNSS, 2023). Thus, in other words, the effective burden rests upon the judicial brilliance of the Magistrate to be able to filter out such cases that may be linked with primary cases and commit them.

The above is an unstated but crucial expectation, as there exists no explicit duty upon the Magistrate or adequate governing guidelines for the Magistrates to ensure the existence of any such pending case, cross, counter or connected, from either the parties or the police who might be expected to be well-versed with such eventualities. In his seminal work³¹, Manas Kumar Pal sheds light on this aspect, highlighting the practical limitations faced by Magistrates in ensuring joint or successive trials before the same Judge in such cases, regardless of the theoretical desirability of the same.

Also notable is the absence of any explicit statutory duty upon the police or prosecution to ensure the existence of such cases (even up to the threshold of their bona fide knowledge or investigation) that may be potentially linked to leading sessions triable cases. Moreover, the absence of any superior judicial oversight by the Sessions Court, as also stated above, becomes troubling given the possible malpractices such as collusion between the police and the accused leading to non-reporting or deliberate non-lodging of a connected case, or the filing of a frivolous cross-case to stall prosecution in a genuine matter, investigative bias in charge-sheeting in some cases³², possible connivance between the Public Prosecutor and defence counsel without any knowledge of the innocent victim, or systemic lapses in the prosecution machinery³³. These factors often delay even the committal itself, and hence cannot be easily disregarded. Their adverse impact on cases especially linked to Sessions triable case without a corresponding provision empowering the Sessions Court opens a window for foul play, forum manipulation, and procedural tactics that can be detrimental to fair trial, the cornerstone of any effective criminal justice system, especially concerning an innocent party whose case would be most prejudiced because of this power disparity.

At present, in such situations, in the face of such legislative lacuna, the recourse³⁴ mainly lies in filing of an application under Section 362 of the BNSS, 2023 (formerly Section 323 CrPC, 1973), before the Magistrate by the parties, or of filing a revision before the Sessions Court or the High Court against his order in case he refuses to commit. However, this scheme also does not guarantee a committal. More importantly, it leads to an unnecessary protraction of the trial and a waste of the Court’s time on a mere point of committal or the ideal forum for trial.

Dissecting the procedural inconsistency

At this juncture, the rationale underlying the existing power anomaly concerning the Sessions Courts warrant closer scrutiny.

To explain, the initial taking of cognizance by the Magistrate, followed by a committal to the Sessions Court (being the general rule), aims to ensure judicial oversight at an initial stage, thereby filtering frivolous cases and streamlining the committal proceedings. In exceptional cases specified under special laws, these Sessions-level courts, functioning as Special Courts, are even expressly empowered to take cognizance directly, bypassing the Magistrate’s preliminary role by Section 213 of the BNSS, 2023³⁵ (formerly Section 193 CrPC, 1973) and such special laws. Thus, the Sessions Court’s greater judicial experience and wisdom or its competency to try even such cross, counter or connected cases, which it interestingly does not have the power to call for, is not even in question. This is particularly clear since Section 21 of the BNSS, 2023 (formerly Section 26 CrPC, 1973) gives it a concurrent competency over all offences. Added to it, in case of any unnecessary committal made to it, the Sessions Court is explicitly empowered to return the case to the Chief Judicial Magistrate or other Magistrate of First Class if it finds the case concerned to be triable by them, under Section 251 of the BNSS, 2023³⁶ (formerly Section 228 CrPC, 1973). In this light, when it can return a wrongly committed case, the absence of a corresponding power to call for a committable case renders the statutory design inconsistent.

Additionally, the legislative intent has historically favoured minimal Magisterial inquiry in assessing a case’s committable nature. This places implicit trust in the Sessions Court’s ability to evaluate such matters after committal, especially when a related case is already pending before it. This is evident in the shift from a full-fledged enquiry under CrPC, 1898³⁷ to a mere prima facie satisfaction under CrPC, 1973 and under the present BNSS by the Magistrate to decide as to the committable nature of a case. Furthermore, even Section 232 Proviso 2 of the BNSS, 2023 directs that any application in sessions triable case shall be forwarded to the Sessions Court, thereby ensuring that substantive procedural control lies with the Sessions Court once the committal is effected.

Addressing objections

In light of the given context, empowering the Sessions Court to call for or direct committal from the Magistrate of cross/counter and connected cases would serve as an effective safeguard against the previously mentioned concerns and facilitate coordinated, fair, and integrated trial of all related matters.

Here, a theoretical objection may arise that such a provision for an uncommitted case might imply an assumption of cognizance by the Sessions Court, which is a domain reserved for Magistrates, as a general norm, thereby disturbing the existing legal framework. However, this concern might not hold water. The proposed power does not suggest that the Sessions Court take cognizance, as it has already been taken at an earlier stage. Instead, it merely aims to empower the court concerned to ensure the fairness and completeness of the trial by ensuring that all parts of a similar transaction are brought before it, especially when a case (primary case) is already pending before it. The act of cognizance and committal thus continues to remain with the Magistrate, aligning with the statutory design and not promoting a jurisdictional overreach by the Sessions Courts. Judicial precedents such as Sudhir case³⁸, Kewal Krishan v. Suraj Bhan³⁹, acknowledge such a functional mechanism as they impliedly directed cases “otherwise committable” pending before the Magistrate to be tried together by the Sessions Court, to preserve trial integrity.

Another possible objection might arise that separate trials of cross/counter and connected cases conducted by other courts, even if irregular, might not per se vitiate the proceedings unless they result in demonstrable failure of justice in light of Section 511 of the BNSS, 2023⁴⁰ (formerly Section 465 CrPC, 1973). Moreover, remedies such as appeal or revision would serve as sufficient guardrails to cure such irregularities, if at all they exist. However, this view underestimates the high risk of prejudice, inconsistent findings, and delays inherent in fragmented trials. In such situations, the likelihood of injustice is not imaginary but real, and empowering the Sessions Court would serve as a necessary preventive measure rather than a curative afterthought.

The way forward

The proposed reform could involve the insertion of a proviso to Section 362 of the BNSS, 2023 (former Section 323 CrPC, 1973), much similar to Section 232 of the BNSS, 2023 (former Section 209 CrPC, 1973), or to Section 251(1)(a) of the BNSS, 2023 (formerly Section 228(1)(a) CrPC, 1973) empowering the Sessions Court to call for information or direct Magistrate to commit a case arising out of similar incident/transaction-thereby covering cross/counter and connected cases particularly where a primary case is already pending before it.

Similar amendments in Section 448 of the BNSS, 2023 (formerly Section 408 CrPC, 1973) should also be introduced to correspondingly expand the Sessions Court’s powers in situations where a primary case has already arisen before it. This will facilitate the transfer of connected matters involving common factual matrices.

Furthermore, to aid the Sessions Court in exercising this power, corresponding provisions that cast duties on: firstly, the Magistrate mandating him to enquire from the police/other investigating authority and the parties, complainant and accused, and later certify in every committal order passed by him as to the existence or non-existence of any cross/counter and connected case, based on his bona fide judicial assessment; secondly, the police/other investigating authority to explicitly flag any case that appears to be in nature of cross/counter and connected to the primary case, to the best of their knowledge. This will introduce greater diligence by authorities operating amid fluid factual settings and investigational discretion.

The concerns and realities raised above seek more relevancy and legitimacy from the author’s personal experience and interaction with the Sessions Judges on this specific point of law, which have only affirmed the same. Although such practices may lack extensive statistical support, they are well-known to trial court practitioners. Additionally, they manifest in the delays and procedural confusion that stem from this anomaly. Some limited discourse around this subject is nonetheless available, a couple of which have also been referenced at relevant places in this article itself.

Concluding remarks

To conclude, it can be said that while the silence in BNSS on committal of cross/counter and connected cases is a gaping procedural gap, the proposed empowerment of the Sessions Court alongside corresponding duties upon the Magistrate and police/investigating authorities, as discussed above, would add a much-needed supervisory layer to the process. This would uphold judicial consistency, procedural fairness, trial integrity, and coordinated adjudication of all cross, counter and connected cases, all while remaining faithful to the existing legal scheme. In a criminal adjudication, justice must be holistic, not compartmentalised, and must not only be done but also be seen to be done. This reform would help realign criminal adjudication with its foundational and justice-oriented purpose.