Arguments of Counsel — Prosecution and Defence

After the evidence closes and the accused has been examined, the trial reaches its penultimate stage — the arguments of counsel. In a written criminal judgment, the section recording those arguments is not decoration; it is the bridge between the statement of the prosecution case and the court's own reasoning. A judgment that leaps from the evidence straight to the verdict, without recording what the Public Prosecutor urged and how the defence answered, is a judgment that has not visibly applied its mind. This chapter explains the statutory architecture of arguments under the Code of Criminal Procedure, 1973 and the Bharatiya Nagarik Suraksha Sanhita, 2023, the distinct roles of the two sides, and — most importantly for the judgment-writer — how the arguments are to be marshalled, summarised and answered on paper so that the decision survives appeal.

Where the arguments sit in the structure of the judgment

The conventional skeleton of a criminal judgment runs: cause-title, the statement of the prosecution case, the charge framed against the accused, the plea of the accused, the evidence, the points for determination, the arguments of counsel, the discussion and findings, and finally the operative order. Arguments therefore occupy a transitional position — they come after the court has set out the raw material (evidence and plea) but before the court speaks in its own voice. A reader of the judgment should be able to see, at this point, the two competing theories of the case fully articulated: the prosecution's theory of guilt and the defence's theory of innocence or of a lesser offence.

The discipline of writing this section well is the discipline of fair summarisation. The judge is not yet deciding; the judge is reporting what was urged. A common drafting error is to begin demolishing the defence argument in the very paragraph that purports to record it. Keep the recording neutral; reserve the answer for the discussion. A second error is to omit the prosecution argument altogether on the assumption that the charge speaks for itself — but the charge states the accusation, whereas the argument states why the evidence proves it, and the two are not interchangeable.

The placement matters for a structural reason too. By the time arguments are reached, the points for determination ought already to be visible from the evidence and the plea. The arguments section is where each side tells the court how those points should be answered. A judgment that records the arguments faithfully thereby pre-organises its own discussion: the court need only take each point for determination, recall the rival submissions on it, and decide. For the architecture of the document as a whole, see the chapter on the structure of a criminal judgment and the foundational chapter on the criminal judgment writing format hub.

Statutory basis: the right to address arguments

The entitlement to address the court is anchored in two layers of the Code. The general provision is Section 314 of the Code of Criminal Procedure, 1973, now re-enacted verbatim as Section 352 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It provides that any party to a proceeding may, as soon as may be after the close of his evidence, address concise oral arguments, and may, before concluding the oral arguments, submit a memorandum to the court setting forth concisely and under distinct headings the arguments in support of his case; that memorandum forms part of the record, and a copy must be simultaneously furnished to the opposite party. The court may regulate arguments that are not concise or relevant, and adjournment merely to file written arguments is to be refused unless reasons are recorded.

Layered on top of this general provision are the trial-specific provisions. In a Sessions trial, Section 234 CrPC (Section 257 BNSS) provides that when the defence evidence is complete, the prosecutor shall sum up his case and the accused or his advocate shall be entitled to reply; where a point of law is raised by the defence, the prosecution may, with the permission of the judge, make submissions on that point. The sequence — prosecution sums up, defence replies — is deliberate: the defence gets the last word on facts. The judgment-writer should mirror this sequence when recording the arguments.

The right to be heard is a facet of the fair trial guarantee

The right to advance oral arguments is not a mere procedural courtesy. In Chinnavan @ Govindaraj v. State (2024), the Madras High Court held that the right of an accused to advance oral arguments under Section 234 CrPC is not merely a statutory entitlement but assumes the character of a fundamental right flowing from the guarantee of a fair trial under Article 21 of the Constitution. The court went further: where the defence counsel fails or refuses to argue, the trial court cannot proceed to pronounce judgment solely on the record but must appoint a legal aid counsel or amicus curiae to argue for the accused. A judgment delivered without the defence having been heard on arguments was, accordingly, set aside and the matter remitted.

This reflects the older principle of natural justice, audi alteram partem — let the other side be heard. For the judgment-writer the practical lesson is that the arguments section must affirmatively record that both sides were heard, or, if the defence declined to argue, that an amicus was appointed and heard. A judgment silent on this point invites the inference that the right was denied. The constitutional dimension links this stage to the broader theme developed in the introduction, importance and statutory basis of criminal judgment writing.

The role of the prosecution: a minister of justice, not a hired advocate

When the judgment records the prosecution's arguments, it is recording the submissions of a constitutional functionary held to a higher duty than an ordinary litigant's counsel. In Shiv Kumar v. Hukam Chand (1999) 7 SCC 467, the Supreme Court emphasised that a Public Prosecutor is not expected to show a thirst to reach the accused in the conviction somehow or other irrespective of the true facts; the expected attitude must be couched in fairness to the court, to the investigating agencies and to the accused alike. If an accused is entitled to any legitimate benefit during trial, it is the Public Prosecutor's duty to bring it to the fore rather than conceal it.

This fairness duty shapes how prosecution arguments ought to read on paper. The prosecutor's submission is properly framed as an analysis of whether the evidence establishes each ingredient of the charge beyond reasonable doubt — not as advocacy at any cost. Where the judgment records a prosecution argument that overstates the evidence or invites conviction on suspicion, the court's discussion should expressly note the departure from the prosecutor's role. The prosecution argument typically tracks the ingredients of the offence as crystallised in the charge framed against the accused.

Who may argue for the prosecution: Public Prosecutor and private counsel

The conduct of a Sessions prosecution is the exclusive province of the Public Prosecutor. Section 301 CrPC (Section 338 BNSS) provides that the Public Prosecutor in charge of a case may appear and plead without written authority, and that where a private person instructs a pleader, that pleader acts under the directions of the Public Prosecutor and may, with the permission of the court, submit only written arguments after the evidence is closed. Section 302 CrPC (Section 339 BNSS) governs permission to conduct prosecution in Magisterial trials.

The contemporary contours of this rule were restated in Vijay Sharma v. State of Madhya Pradesh (2026), where the Madhya Pradesh High Court, construing Sections 338 and 248 BNSS, held that a private advocate engaged to assist the prosecution cannot make oral arguments or cross-examine witnesses in a Sessions trial; the role is confined to filing written arguments after the close of evidence, on the instructions of the Public Prosecutor and with the court's permission. Shiv Kumar v. Hukam Chand remains the foundational authority for this limitation. For the judgment-writer, this means the oral arguments recorded on the prosecution side should be attributed to the Public Prosecutor, while any written submission of a victim's counsel is noted as a memorandum on record.

The role of the defence: testing the prosecution to destruction

The defence argument operates on a fundamentally different footing from the prosecution's. The defence carries no burden to prove innocence; its task is to demonstrate that the prosecution has not discharged its burden of proving guilt beyond reasonable doubt. Defence arguments characteristically attack the credibility of witnesses, expose contradictions and omissions, challenge the chain of circumstantial evidence, question the integrity of recoveries and the sanctity of the investigation, and invoke statutory presumptions and the benefit of doubt.

Because the burden never shifts to the accused to establish innocence, the defence argument succeeds the moment it shows a reasonable doubt; it need not prove an alternative narrative true. This asymmetry should be visible in the way the judgment records the two sides — the prosecution argument asserting that each ingredient is proved, the defence argument asserting that at least one ingredient is not proved to the requisite standard. A well-drafted judgment records the defence argument as a structured set of contentions, each tied to a specific item of evidence or a specific point of law, rather than as an undifferentiated complaint. Where the defence raises a plea such as alibi, private defence, grave and sudden provocation, or absence of mens rea, the argument should be recorded as a discrete head so that the discussion can answer it point by point. The defence's right to reply after the prosecution sums up, preserved by Section 234 CrPC and Section 257 BNSS, means the judgment should present the defence argument as the answer to the prosecution case — and the court's findings as the answer to both.

Oral arguments and the written memorandum

Section 314 CrPC / Section 352 BNSS contemplates two complementary modes: concise oral argument and an optional written memorandum filed before the oral argument concludes. The memorandum is to be set out under distinct headings and forms part of the record; a copy must be furnished simultaneously to the opposite party. This dual scheme has practical consequences for the judgment-writer. The written memorandum gives the court an authoritative, party-authenticated statement of each side's contentions, which the judgment may safely summarise and cite.

The statute's insistence on concision — and its express power to regulate arguments that are not concise or relevant, coupled with the bar on adjournments merely to file written arguments — reflects a legislative anxiety about delay. A judgment should not, therefore, reproduce arguments at indiscriminate length. It should distil each side's case to its load-bearing propositions. Where written submissions have been filed, the judgment may note that fact and incorporate the headings, but the court must still engage with the substance rather than merely acknowledging the filing.

The duty to deal with the arguments in the reasons

Recording the arguments is necessary but not sufficient. The judgment must also answer them. A decision that lists the rival contentions and then announces a conclusion, without explaining why one set of arguments prevailed over the other, is a non-speaking order vulnerable on appeal. The requirement of reasons is the discipline that turns a verdict into a judgment.

The Supreme Court's Constitution Bench in State of Punjab v. Jagdev Singh Talwandi (1984) 1 SCC 596 drew attention to the serious difficulties caused by pronouncing a final order without a reasoned judgment, observing that the final order should not be announced until a reasoned judgment is ready for pronouncement — giving the example of an accused being acquitted, or a detenu released, on a bare order with reasons to follow. The reasoning must visibly grapple with the arguments actually advanced. In Anil Rai v. State of Bihar (2001) 7 SCC 318, the Court deprecated inordinate delay between the conclusion of arguments and the delivery of judgment, holding that such delay can prejudice the parties and erode the value of the arguments heard, and laid down time-bound guidelines for pronouncement. The judgment-writer should therefore decide soon after arguments close and, in the discussion, answer each substantial contention rather than disposing of them by a general formula.

Distinguishing points of law from points of fact

Both Section 234 CrPC and Section 257 BNSS draw an explicit distinction between argument on the facts and argument on a point of law. The provisions give the prosecution a right to respond, with the judge's permission, to a point of law raised by the defence — a structured exception to the rule that the defence has the last word. The judgment-writer should respect this distinction when recording and answering arguments.

Points of law — for instance, the maintainability of a sanction, the bar of limitation, the legality of a confession, the admissibility of evidence under the Bharatiya Sakshya Adhiniyam, or the applicability of a statutory presumption — are best recorded and decided as preliminary or discrete heads, because their resolution may dispose of the case or reshape the factual enquiry. Points of fact — credibility of eyewitnesses, the strength of the circumstantial chain, the genuineness of recoveries — are recorded against the relevant points for determination. Conflating the two produces a muddled discussion; separating them produces a judgment that is easy to test on appeal.

Arguments on the question of sentence

The arguments of counsel do not end with the verdict on guilt. Where the accused is convicted, a second, distinct round of arguments arises on the quantum of sentence. Section 235(2) CrPC (Section 258 BNSS) mandates that, on convicting the accused, the judge shall — unless proceeding under the probation provisions — hear the accused on the question of sentence before passing it. This is a mandatory pre-sentence hearing, not a formality.

In Santa Singh v. State of Punjab (1976) 4 SCC 190, the Supreme Court held that the hearing under Section 235(2) is not confined to oral submissions but is intended to give both the prosecution and the accused an opportunity to place before the court facts and material bearing on sentence, and, if contested, to lead evidence. The conviction was upheld but the sentence was set aside and the matter remanded for compliance. In Bachan Singh v. State of Punjab (1980) 2 SCC 684, the Court, while upholding the constitutionality of the death penalty, reinforced this by requiring a balance-sheet of aggravating and mitigating circumstances and reserving the death sentence for the rarest of rare cases — an exercise impossible without a genuine sentence hearing. A judgment that convicts and sentences in a single breath, without recording the arguments on sentence, is therefore defective.

Consequences of failing to hear or record arguments

The failure to hear arguments, or to record and answer them, is not a harmless irregularity that the appellate court will overlook. As Chinnavan @ Govindaraj v. State demonstrates, a conviction recorded without affording the defence its right to oral argument is liable to be set aside and the matter remitted for a fresh hearing — a costly outcome that delays justice for both the accused and the victim. Where the defect lies only in the sentence hearing, the remedy under Santa Singh is a remand confined to sentence, leaving the conviction intact.

The lesson for the judgment-writer is preventive. The arguments section should affirmatively record that the prosecution summed up its case, that the defence was heard in reply (or that an amicus was appointed where the defence did not argue), that any written memoranda were received and considered, and that, on conviction, the accused was separately heard on sentence. These recitals are not padding; they are the evidence on the face of the judgment that the mandatory procedure was followed.

Drafting the arguments section: a model approach

A disciplined arguments section moves in a fixed order. First, a short recital that, after the close of evidence and the examination of the accused, the matter was heard on arguments. Second, the prosecution's submissions, attributed to the Public Prosecutor and organised around the ingredients of the offence, noting any written memorandum on record. Third, the defence's submissions, organised as discrete contentions of fact and law, recording the reply and any specific pleas such as alibi or private defence. Fourth, a note of any point of law on which the prosecution was permitted to respond. The section closes by listing the authorities cited by each side, so the discussion can engage with them.

Throughout, the register stays neutral and reportorial — the court is recording, not yet deciding. Avoid the temptation to insert findings into this section; the answer belongs in the discussion. Attribute each submission to the side that made it, using a consistent formula such as "learned Public Prosecutor submitted" and "learned counsel for the accused contended", so that the reader is never in doubt about whose argument is being summarised. Keep the summary concise, in keeping with the statutory premium on brevity, and resist quoting submissions verbatim where a faithful paraphrase will do. Done well, this section reads as a fair précis that any losing party would accept as an accurate statement of what was urged, and it sets up the reasoning that follows. For how this section connects to the framing of issues and the operative findings, return to the structure of a criminal judgment.

What the BNSS changed — and what it kept

For aspirants writing under the new code, the continuity is more striking than the change. The substantive scheme of arguments survives intact: Section 352 BNSS reproduces Section 314 CrPC on oral arguments and the written memorandum; Section 257 BNSS reproduces Section 234 CrPC on Sessions arguments; Section 338 and Section 339 BNSS carry forward Sections 301 and 302 CrPC on who may conduct the prosecution. The roles of prosecution and defence, the right to reply, and the case law of Shiv Kumar, Santa Singh and Bachan Singh continue to govern.

The principal innovation lies adjacent to arguments rather than within them: Section 258 BNSS, the successor to Section 235 CrPC, now prescribes an outer time-limit for delivering judgment — as soon as possible and ordinarily within thirty days of the completion of arguments, extendable to forty-five days for reasons recorded in writing. This statutory timeline gives legislative form to the concern voiced judicially in Anil Rai v. State of Bihar. The pre-sentence hearing under Section 258 BNSS is retained in the same terms as Section 235(2) CrPC, so Santa Singh continues to apply with full force.

For examination purposes, the safest approach is to treat the principles as code-neutral and to cite both the CrPC section and its BNSS successor. An answer that records the prosecution summing up, the defence reply, the receipt of any written memorandum, the disposal of points of law, and — on conviction — a separate hearing on sentence, will satisfy the requirements of either statute. The case law has not been displaced by the recodification; if anything, the BNSS timeline gives the older judicial concern about delay a sharper statutory edge, and a model answer that notes this continuity demonstrates command of both the letter and the spirit of the provisions.