FEATURES OF FAIR TRIAL

Sasi K.G.

01. INTRODUCTION

A trial primarily aimed at ascertaining truth has to be fair to all concerned including the accused, the victims and society at large. Each person has a right to be dealt with fairly in a criminal trial. Under our Constitution as also the international treaties and conventions, the right to get a fair trial is a basic fundamental, human and statutory right. An accused has a right to defend himself as a part of his fundamental rights as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure,1973. "Fair trial" includes fair and proper opportunities allowed by law to prove the innocence. Adducing evidence in support of the defence is a valuable right. In a criminal case, denial of that right means denial of fair trial. This issue now stands concluded by decision of Honourable Apex Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258.

In Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors (2006) 3 SCC 374 at 395, the Supreme Court of India observed “each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated.

02. SOME MAXIMS OF FAIR TRIAL

01. Justice hurried is justice buried

Nirbhaya’s case led to certain revolutionary reforms in Judiciary which includes setting up of Fast Track Courts for disposing of the cases relating to heinous crime against women such as abduction, rape, dowry death etc. Chief Justice of India had written to all the High Court of the Country which resulted in creation of such exclusive courts presided over by women Judicial officers in most of the courts so that the large number of cases relating to women pending in various courts are disposed of expeditiously. On the direction of the High Courts, subordinate judiciary at District level started disposing such cases in speedy mode even in few days. Very often in the print media, we studied about decision of various courts particularly in Punjab that cases relating rape and other crime against women are disposed of by a court within 7 days, 5 days or amazing in 2 days!

Such a haste would only defeat the interests of fair trial and thus the interests of justice shall also be compromised. It is in such circumstances the maxim ‘Justice hurried is justice buried’ has great application. Proper opportunity should be given both to the prosecution and the accused to prove their respective cases and the judges should properly apply their mind in deciding the criminal cases.

02. Justice delayed is justice denied

Quick and prompt trial of criminal offences is essential to repose faith of the people in judiciary and to curtail the unnecessary imprisonment of some innocent undertrials. The right to speedy trial is implicit in Art. 21 of the Constitution of India as held in Shiv Kumar Yadav v. State CRL .M.C.725/2015 & Crl. MA 2765/2015.

In Hussainara Khatoon v State of Bihar AIR 1979 SC 1377, it was held that a speedy trial is an essential ingredient of fair trial procedure and it is the constitutional obligation of the State to set up a procedure that would ensure the same.

03. Audi alteram partem

The maxim is a maxim of natural justice which says that no one should be condemned unheard, as was observed in Rabindra Kumar Dey v. State Of Orissa 1977 AIR 170, 1977 SCR (1) 439 and Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R. 319. 324.

Three principles of criminal jurisprudence which are well settled are applicable to this maxim as under:

(i) that the onus ties affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weak-ness or falsity of the defence version while proving its case;

(ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty; and

(iii) that the onus of the prosecution never shifts.

Section 228, 239, 251 of the Cr.P.C. states that when an accused person is brought before the court for trial, the particulars of the offence of which he is accused shall be stated to him, so that accused can prepare his defence for facing the trial. Section 313 of Criminal Procedure Code also provides that incriminating circumstances that are appearing against the accused should be explained to the accused.

04. Autrefois Acquit, Autrefois Convict and Nemo Debet Bis Vexari, Si Constat Curiae Quod Sit Pro Una Iti Eadem Causa

The first two of these two French maxims mean that ‘A person who is tried and acquitted’ or ‘A person who is tried and convicted’ of an offence, cannot be tried again. If a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. This doctrine has been substantially incorporated in the article 20(2) of the Constitution and is also embodied in section 300 of the Cr. P.C.

Section 300 of the Criminal Procedure Code, 1973 is reproduced below.

Section 300.(1) : A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub section (1) of section 221, or for which he might have been convicted under sub section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of State Government, for any distinct offence for which a separate charge might have been against him at a former trial under sub section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 or of section 188 of this code.

The concepts of double jeopardy and the right against self incrimination have also been examined in the light of recent case laws such as Selvi v. State of Karnataka Criminal Appeal 1267 of 2004: 2010(7) SCC 263, where the Supreme Court concluded that a Narco analysis test violates this right.

In Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao., (2011) 2 SCC 703, Supreme Court held that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that ‘no one can be prosecuted and punished for the same offence more than once’, Section 300 (1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.

These maxims have close nexus with the Latin maxim ‘nemo debet bis vexari, si constat curice quod sit pro una iti eadem causa’ meaning ‘no man shall be punished twice, if it appears to the court that it is for one and the same cause’. This is the maxim applied in the doctrine of res judicata. It is a well-settled law that res judicata has application in criminal proceedings.

05. Nemo Judex in Sua Causa; or Nemo Debet Esse Judex in Propria Causa

This Latin maxim means that no person can judge a case in which he or she is party or in which he/she has an interest. This is also known as the rule against bias. The maxim crystalized in British-tradition common law in the case Frome United Breweries Co. v. Bath Justices (1926) A.C. 586, in which British's highest legal officer, called the "Lord Chancellor" made a decision favourable to a canal company when Lord Chancellor was a shareholder in the canal company and had not told the litigants about it. The Lord Chancellor's decision was set aside because of the nemo judex maxim.

In Wright v Crump 2 Ld. Raym. 766: 92 E.R. 12 (1790) the Mayor of Hereford, England, circa 1790, claimed title to a local house. So he arranged with a friend to lease the real estate to him and then that friend brought a legal action for ejectment of the occupants before Lord Mayor himself, who found for the claimant. The occupants appealed the decision to the Court of King's Bench and the Mayor was sentenced to a term of imprisonment.

06. Ei incumbit probatio qui dicit, non qui negat

This is a Latin maxim which means "the burden of proof lies upon him who affirms, not him who denies." The phrase is a legal maxim in criminal law relevant to the presumption of innocence and indicates the legal burden of proof falls upon the prosecution making the charge and not the defendant.

07. nemo tenetur prodere or nemo tenetur seipsum accusare

This is as a protest against the inquisitorial methods adopted by the Star Chamber and other ecclesiastical Courts in England. The maxim nemo tenetur prodere or nemo tenetur seipsum accusare means that "No man is bound to accuse himself." This principle is now embodied in the Criminal Evidence Act, 1898 in England, which stipulates that though the accused is competent to be a witness on his own behalf, he cannot be compelled to give evidence against himself. The same privilege was extended to witnesses also both in civil and criminal proceedings. This principle was adopted in other countries also. In the Fifth Amendment, to the Constitution of the United States of America, it is said that "No person ...shall be compelled in any criminal case to be a witness against himself.

This maxim is upheld in Damodar V. Pangrekar v. Ramachandra Vaswani and Anr 1974 CriLJ 160 also.

03. SOME CONSTRAINTS OF FAIR TRIAL

01. Prejudice and Fair Trial

Under the Indian legal dispensation, fair trial concepts have been discussed mostly in the context of any ‘prejudice’ that may be caused as a result of not adhering to the fair trial standards prescribed by the constitutional principles and statutory provisions.[i] The basic principle on which the Code of Criminal Procedure in India is based was explained by the Supreme Court thus– the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities….The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood line that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice.[ii] In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial.[iii] At the same time, it is pointed out, it has to be borne in mind that it is procedure that spells much of the difference between rule of law and rule by whim and caprice. The object of the Code is to ensure for the accused a full and fair trial in accordance with the principles of natural justice. If there be substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results in miscarriage of justice.[iv] It has been held that ‘Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the court…. Right to fair trial, presumption of innocence until pronouncement of guilt and the standards of proof i.e. the prosecution must prove its case beyond reasonable doubt are the basic and crucial tenets of our criminal jurisprudence. The courts are required to examine both the contents of the allegation of prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude, as it will always depend on the facts and circumstances of a given case. Therefore, the court has to ensure that the ends of justice are met, as that alone is the goal of criminal adjudication.

02. The Adversarial System

India is having an adversarial system in criminal justice. In adversarial system responsibility for the production of evidence is placed on the prosecution with the judge acting as a neutral referee. In this system of criminal trial assumes that the state, on one hand, by investigating agencies and the Government counsels will prosecute the wrongdoer, on the other hand, the person charged will also take the recourse of best counsels to challenge and counter the evidence of the prosecution.

03. The Beneficiaries of Fair Trial

The court administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. The Principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted.

It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

04. Equality before Law of All Parties

All persons shall be equal before the courts and tribunals. Everyone must have access to courts and tribunals. The term everyone would include all conceivable parties to the administration of criminal justice. Fair trial, according to the Supreme Court, means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. Bentham described “Witnesses” as the eyes and ears of justice, of importance and primacy of the quality of trial process. It is in this context that the Supreme Court declared that if the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors…. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution.[v]

05. Constitution and Fair Trial

As per Article 20 of Constitution of India that 'No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.’

Art. 20(2) dealing with 'Double Jeopardy' states, “No person shall be prosecuted and punished for the same offence more than once.”

Art. 20(3) further says that 'No person accused of any offence shall be compelled to be witness against himself.'

Art. 21 provides that 'No person shall be deprived of his life or personal liberty except according to procedure established by law.'

Art. 22(1) 'No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he, be, denied the right to consult, and to be defended by a legal practitioner of his choice.'

Art.22 (2) directs that 'Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 of hours of such arrest excluding the time necessary for the journey'.

These Articles are incorporated in Chapter III of the Constitution of India dealing with the Fundamental Rights guaranteed to the persons in India.

Provisions of Criminal Procedure Code, Indian Penal Code, and Evidence Act must be in consonance with these Articles. The procedure laid down in Cr.P.C. and Evidence Act have got to be followed while dealing with offences under Excise Act, Food Adulteration Act etc., unless otherwise barred specifically.

The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.

(i) giving a discretion to the Court to examine the witness at any stage and

(ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court.

Though the discretion given to the Court is very wide, the very width requires a corresponding caution.

As a principle of Fair Trial, the Accused should be provided free legal assistance at the cost of the state. It is a fundamental right. Failure to provide such assistance vitiates the trial. He shall also be entitled for all copies of documents filed in the case. At the time of framing charge it should be explained in the language known to him. The witnesses are to be examined in his presence or in the presence of his pleader. He should be given an opportunity to cross examine those witnesses. If the evidence is recorded other than the language known to him, it should be explained in the language known to him.

It is not the accused alone must be fairly dealt with, but also the society at large includes, the victims or their family members and relatives must also dealt with fairly. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of fair trial is as much injustice to the accused as is to the victim and the society.

Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. It is a Team work and every member in the team should play their respective role sincerely, honestly, fairly by following the established procedure of law and their common goal should be to discovery, vindication and establishment of truth.

There should not be any bias or prejudice for or against the accused, the witness, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence or induced, that also would not result in a fair trial. The failure to hear material witness is certainly denial of fair trial.

In Zahira Habibulla Sheikh v. State of Gujarat 2004 (4) SCC 158 popularly known as Best Backery Case, according to the Appellant there was no fair trial and the entire effort during trial and at all relevant times before also was to see that the accused persons got acquitted. When the investigating agency helps the accused, the witnesses are threatened to depose falsely and prosecutor acts in a manner as if he was defending the accused, and the Court was acting merely as an onlooker and there is no fair trial at all, justice becomes the victim.

Another principle of Fair Trial is innocence of accused. In every criminal trial begins with the presumption of innocence in favor of the accused; and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption. The entire Burden of proof of proving the allegations are on the Prosecution. The accused cannot be called upon to prove negative.

A criminal trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused to lead to the acquittal of a really guilty offender.

The fate of the proceedings cannot always be left entirely in the hands of the parties, because crimes being public wrongs in breach and violation of public rights and duties, which effect the whole community as a community and harmful to the society in general.

Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice, often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of Law in the future as in the case before it.

If the criminal court is to be an effective instrument in dispensing justice, the Presiding judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves.

While administering justice the courts cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceeding, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts.  Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

The Apex court, while dealing with the claims for the transfer of a case under Section 406 of the Code from one State to another in Mrs. Maneka Sanjay Gandhi and another v. Ms. Rani Jethmalani 1979 (4) SCC 167, emphasized the necessity to ensure fair trial, observing as : “Assurance of a fair trial is the first imperative of the dispensation of justice.”

06. Some Settled Principles in Criminal justice System

The following are some basic principles in criminal justice system.

1. An accused to be tried before a competent, independent and impartial tribunal/court.

2. The burden of proof tests on the prosecution.

3. The prosecution must establish guilt beyond reasonable doubt.

4. High probability is not enough to convict – where there are several possible accounts, the account supporting the accused should be upheld.

5. Accused has a right to remain silent.

6. Judicial Officer must ensure that the prosecution and the defence lawyer – are being diligent, honest and learned in their efforts to arrive at the truth.

7. Under section 479 of Cr.P.C, a judicial officer may not try or commit to trial any case in which he has a personal interest. The basic principle is such that a judge cannot sit in a case in which he has a financial or other interest.

8. A significant legal maxim is that ‘’ Justice must not only be done, but be seen to be done.’’

9. If a criminal court is to be an effective instrument in dispensing justice, the presiding officer must cease to be a spectator and a mere recording machine.

10. Under section 327 of the Code, trial judges to invariably hold the trial of rape cases in camera, rather than in open court.

11. As seen from section 309 of Cr.P.C, it is known that the Code safeguards the right to a speedy trial.

12. Every accused should be provided the opportunity to be defended by a pleader.

13. The State is obliged to provide free legal aid to a prisoner who is indigent or otherwise disable from securing legal assistance where the ends of justice call for such service. Articles 21 and 39A to underline the importance of providing legal aid to the accused who have no means to engage a pleader, especially for under trial prisoners. This principle is upheld in Suk Das v. Union Territory of Arunachala Pradesh AIR 2 (1986) SCC 401

14. Accused should be furnished the copies of Police report and other documents in a criminal case. See. Section 207 of Cr.P.C.

15. Under section 273 of Cr.P.C, evidence to be taken in the presence of the accused. However, in a recent times, it is interpreted that while recording the evidence through video-linkage, physical presence of accused is not necessary.

16. Under the provision of section 243 and 247 of the Code, accused has right to produce witnesses in his defence, and these provisions are applicable equally to cases instituted on a police report or private complaint. Sections 243 ad 246 of the Code afford the accused the right to cross-examine the prosecution witnesses.

17. The object of section 311 of the Code is to discover the truth and deliver a just decision.

18. Under section 279 of the Code, whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him.

19. The principle of double jeopardy is a safeguard provided under Article 20 (2) of the Constitution which prohibits prosecution or punishing a person for the same offence more than once.

20. Section 300 of the Code puts forward three exceptions to the double jeopardy prohibition and provides several illustrations. A person once convicted or acquitted cannot be tried for the same offence. See. State of Andhra Pradesh v. Kokkiligadda Meerayya and Anr AIR 1 (1969) SCC 161.

21. Section 353 of the Code mandates that judgment must be delivered in an open court; be read out in court; or the operative part of the judgment read out and the substance of the judgment explained.

22. Section 354 (1) of the Code mandates that judgments must be reasoned.

23. When accused is sentenced to imprisonment, free of copy of judgment shall be furnished to him.

24. Every judgment of a court must be based on legal evidence, substantive by law and logic without having to resort to speculations or inferences.

25. In the operative part of the judgment, the court should state the conviction and the sentence in a specific and clear manner.

26. Benefit of doubt always goes to accused.

These principles along with others have evolved into some basic principles of Fair Trial.

04. PRINCIPLES OF FAIR TRIAL

In Himanshu Singh Sabharwa v. State of M.P. & Ors MANU/SC/1193/2008, the apex court observed that if fair trial envisaged under the Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court may exercise its power under Section 311 of the Criminal Procedure Code or under Section 165 of the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so sub serve the cause of justice.

The basic principle of the right to a fair trial is that proceedings in any criminal case are to be conducted by a competent, independent and impartial court. In a criminal trial, as the state is the prosecuting party and the police is also an agency of the state, it is important that the judiciary is unchained of all suspicion of executive influence and control, direct or indirect. The whole burden of fair and impartial trial thus rests on the shoulders of the judiciary in India.

The primary principle is that no man shall be judge in his own cause. Section 479 of the Criminal Procedure Code, prohibits trial of a case by a judge or magistrate in which he is a party or otherwise personally interested. This disqualification can be removed by obtaining the permission of the appellate court.

In Shyam Singh v. State of Rajasthan 1973 Crl. LJ 441, 443 (Raj), the court observed that the question is not whether a bias has actually affected the judgment. The real test is whether there exists a circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.

There are a series of similar judgments upholding various principles of fair trial, some of them are mentioned below under proper classifications.

01. Presumption of Innocence

Every criminal trial begins with the presumption of innocence in favour of the accused. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. This presumption is seen to flow from the Latin legal principle ei incumbit probatio qui dicit, non qui negat, that is, the burden of proof rests on who asserts, not on who denies. The presumption of innocence must, in addition, be maintained not only during a criminal trial vis a vis the defendant, but also in relation to a suspect or accused throughout the pre-trial phase.

In State of U.P. v. Naresh and Ors (2001) 4 SCC 324, the Supreme Court observed “every accused is assumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”

The cardinal principles of Criminal jurisprudence is presumption of innocence of the accused. The burden of proving the guilt of the accused beyond all reasonable doubt is upon the prosecution and unless it relieves itself of that burden, the court cannot record finding of the guilt of the accused. This presumption is seen to flow from the Latin Legal Principle i.e. incumbit probation qui dicit, non qui negat, means the burden of proof rests on who asserts, not on who denies. It is basic right of the accused person and human right as laid down in Narendra Singh v. State of Madhya Pradesh 2004 Crl.L.J. 2842 and State of U.P. v. Naresh and others 2001 (4) SCC 324, wherein the Supreme Court observed that “Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principles form the basis of criminal jurisprudence in India.” In Baijnath and others v. State of Madhya Pradesh 2016 Law Suit (SC) 1089, a Two Judge Bench of the Supreme Court held that One of the essential ingredients of dowry death under Section 304-B of the Indian Penal Code is that the accused must have subjected the woman to cruelty in connection with the demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death under Section 113-B of the Indian Evidence Act.

If an innocent person is convicted the consequences are so serious that its reverberation are felt throughout the civilian society. It is only to ensure that the court does not wrongly convict an innocent person an accused is presumed to be innocent until proven guilty. At no stage of the trial of a case an accused, the accused is called upon to disprove his innocence.

02. Prohibition of Double Jeopardy

The concept of double jeopardy is based on the doctrine of 'autrefois acquit' and 'autrefois convict' which mean that if a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. This clause embodies the common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence. Section 300 of the Code of Criminal Procedure provides that persons once convicted or acquitted not to be tried for the same offence or on the same facts for any other offence. Plea of double jeopardy is not applicable in case the proceedings for which the accused is being tried are distinct and separate from the offence for which the accused has already been tried and convicted.

In Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao (2011) 2 SCC 703, the Supreme Court differentiated between Section 300(1) of Cr.P.C and article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. Therefore, the second prosecution would be barred by Section 300(1) of Cr.P.C.

03. Knowledge of the Accusation

Fair Trial requires that the accused person is given adequate opportunity to defend himself. But, this opportunity will have no meaning if the accused person is not informed of the accusation against him. The Criminal Procedure Code therefore provides in Section 228, 240, 246, 251 in plain words that when an accused person is brought before the Court for trial, the particulars of the offence of which he is accused shall be stated to him.

In the determination of any criminal charge against him/her everyone shall be entitled, in full equality “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. This duty to inform relates to an exact legal description of the offense (“nature”) and of the facts underlying it.

The information must also be provided to the accused in a language which s/he understands, meaning that translation is mandated and that its form, oral or written, will depend on the manner in which the “charge” is initially conveyed. An indictment must, obviously, be translated in writing. In case of serious offences, the court is required to frame in writing a formal charge and then read and explain the charge to the accused person. A charge is not an accusation in abstract, but a concrete accusation of an offence alleged to have been committed by a person. The right to have precise and specific accusation is contained in section 211 Cr.P.C. In the determination of any criminal charge against him or her everyone is entitled “To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing”. The right to adequate time and facilities for the preparation of a defense applies not only to the defendant but to his or her defense counsel as well.

04. Right to Open Trial

Fair Trial also requires public hearing in an open court. The right to a public hearing means that the hearing should as a rule is conducted orally and publicly, without a specific request by the parties to that effect. Section 327 of the Criminal Procedure Code makes provision for open courts for public hearing but it also gives discretion to the Presiding judge or magistrate that if he thinks fit, he can deny the access of the public generally or any particular person to the court during disclosure of indecent matter or when there is likelihood of a disturbance or for any other reasonable cause.

Section 273 Criminal Procedure Code provides that evidence to be taken in the presence of the accused. In the case of Naresh Sridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1 , the apex court observed that the right to open trial must not be denied except in exceptional circumstances. High Court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part of its proceedings.

Section 327 Criminal Procedure Code provides that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access.

05. Right to Free Legal Aid

The requirement of fair trial involves two things: a) an opportunity to the accused to secure a counsel of his own choice, and b) the duty of the state to provide a counsel to the accused in certain cases. The Law Commission of India in its 14th Report has mentioned that free legal aid to persons of limited means is a service which a Welfare State owes to it citizens.

The right to be defended by a legal practitioner, flowing from Article 22(1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations.

Article 39A of Indian Constitution directs the State to ensure that the operation of the legal system promote justice, on a basis of equal opportunities and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that make opportunities for securing justice are not denied to any citizen by of reason of economic or other disabilities.

Section 304 of Criminal Procedure Code provides that “where in a trial before Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State”.

Every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case.

In Khatri v. State of Bihar AIR (1981) 2 SCC 493, the court held that the accused is entitled to free legal services not only at the stage of trial but also when first produced before the Magistrate and also when remanded.

In Mohd. Hussain @ Julfikar Ali v. the State of (Govt. of Nct) Delhi Crl.Appeal No.1091/2006, dated 11.1.2012, the Hon’ble Supreme Court observed “the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trail. The right to be defended by a legal practitioner, flowing from Article 22(1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and enactment of Sub Section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants’ and Human Rights Declarations. If an accused too poor to afford a lawyer is to go through the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just”.

06. Speedy Trial

Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed justice leads to unnecessary harassment. Section 309(1) provides “in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

The primary interest of the Criminal Justice system is to entrance society’s rights to sanction activities harmful to the public order and thereby punish offenders to prevent future misconducts. The Supreme Court in several decision held that the expression “procedure established by law” in Article 21 envisages an expeditious procedure. Therefore, a procedure in which the trial was unduly delayed for no fault of the petitioner was held to be an anti-thesis of an expeditious procedure, termed as a blatant dilatory procedure, shocks judicial conscience and casts a very sad reflection on the judicial system (see Sada Shiv Manohar Parkar v. State of Maharashtra, 1998 Crl. LJ 3755). The right to speedy criminal trial is one of the most valuable fundamental rights guaranteed to a citizen under the Constitution, which right is integral part of right to life and liberty guaranteed under Article 21.

Section 309 (1) Criminal Procedure Code provides “in every inquiry of trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded”.

In Hussainara Khatoon (No.1) v. Home Secretary, State of Bihar, Reported in AIR 1979 SC 1360, a petition for a writ of habeas corpus was filed by number of under trial prisoners who were in Jails in the State of Bihar for years awaiting their trial. The Supreme Court held that “right to a speedy trial” a fundamental right is implicit in the guarantee of life and personally liberty enshrined in Article 21 of the Constitution. Speedy trial is the essence of criminal justice.

In Mangal Singh and Another v. Kishan Singh and others, Reported in AIR 2009 SC 1535, it is observed:- “Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.”

07. Protection against Illegal Arrest

14. Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick to see the possibility of crime, but they ought to be anxious to avoid mistaking the innocent for the guilty.

In Pranab Chatterjee v. State of Bihar (1970) 3 SCC 926, the court held that Section 50 is mandatory. If particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. The grounds can be communicated orally or even impliedly by conduct.

08. Proceedings in the Presence of the Accused

For the conduct of a fair trial, it is necessary that all proceedings related to the case should take place in the presence of the accused or his counsel. The underlying principle behind this is that in a criminal trial the court should not proceed ex parte against the accused person.

The Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the court feels that his presence is necessary for effective disposal of the case. Court should see that undue harassment is not caused to the accused appearing before them. Section 273 of the Criminal Procedure Code provides that all evidence taken in the course of the trial shall be taken in the presence of the accused or if the personal attendance of the accused is dispensed with then the evidence shall be taken in the presence of his pleader.

09. Right to Bail

By virtue of Section 436 the accused can claim bail as a matter of right in cases which have been shown as bailable offences in the First schedule to the Code. Bail is basically release from restraint, more particularly, release from custody of the Police. An order of bail gives back to the accused freedom of his movement on condition that he will appear to take his trial.

But bail under Section 389(1) after conviction is not a matter of right whether the offence is bailable or non-bailable reported in Shambhu v. State, AIR 1956 AII 633.

10. Right against Self Incrimination

In the determination of any criminal charge against him/her, everyone is entitled “Not to be compelled to testify against himself or to confess guilt”. Clause (3) of Article 20 provides: “No person accused of any offence shall be compelled to be a witness against himself. “This clause is based on the maxim nemo tenetur prodere accusare seipsum, which means that 'no man is bound to accuse himself.

The accused has right to remain silent. Article 20 (3) of Indian Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. To attract the protection of Article 20 (3) it must be shown that the accused was compelled to make the statement likely to be incriminative of himself. Compulsion means duress which includes threatening, beating or imprisoning of the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply.

As per Section 316 of Criminal Procedure Code no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter with in his knowledge.

In the case of Selvi v. State of Karnataka AIR 2010 SC 1974, the Apex Court held that “Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests are testimonial compulsions and are prohibited by Article 20(3) of the Constitution. It was further held that Lie Detector Tests can be done only with the consent of the accused in the presence of his Lawyer and Judicial Magistrate should record the consent of the accused.

11. Right to File Appeal

“Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.

Section 389(1) of Cr.P.C empowers the appellate court to suspend execution of sentence, or when the convicted person in confinement, to grant bail pending any appeal to it. Court need not give notice to the public prosecutor before suspending sentence or releasing on bail. Existence of an appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of right irrespective of whether the offence is bailable or nonbailable and should be allowed only when after reading the judgment and hearing the accused it is considered justified.

12. Right to Compensation for Miscarriage of Justice

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attribute to him.”

If the victims of a crime are ignored it does not result in a Fair Trial. Section 357 and 357-A of Criminal Procedure Code provides scheme of compensation to victims of an offence.

Similarly if a person causes a police officer unnecessarily arrest another simply acquit him does not result in Fair Trial. Section 358 of Criminal Procedure Code enables the Magistrate to award compensation to such groundlessly arrested person payable by the person who is responsible for such arrest.

13. Trial before Independent, Impartial and Competent Judicial Officers

As was held in Shyam Singh v. State of Rajasthan., 1973 Cri LJ 441, 443, (Raj.), the question is not whether a bias has actually affected the judgment. The real test is whether there exists a circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.

Article 50 of Constitution ensures that the State shall take steps to separate the judiciary for the executives in the public services of the State.

Section 479 of Criminal Procedure Code no Judge or Magistrate shall try or commit for any trial any case to or in which he is a party or personally interested, and no judge or Magistrate shall hear, an appeal from any judgment or order passed or made by himself.

The Hon’ble Apex court in Devender Pal Singh v. State of NCT of Delhi and Another, 2002 (5) SCC 234 observed as follows: “Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.”

In Viscount Simon in Stirland v. Director of Public Prosecutor 1944 (2) ALL ER 13 Court held as follows: “A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape….. Both are public duties ….”

In Zahira Habibullah Sheikh and Another v. State of Gujarat and others 2006 (3) SCC 374, the Hon’ble Apex court observed that If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that he occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

However, in Sister Mina Lalitha Baruwa v. State of Orissa and others in Criminal Appeal No.2044/2013, dated 5.12.2013, Hon’be Apex Court held that “a Criminal Court, while trying an offence, acts in the interest of the society and in public interest. As has been held by this Court in Zahira Habibullah H. Sheikh (supra), a Criminal Court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 of Criminal Procedure Code, as well as Section 161 of the Evidence Act.”

Recently the Hon’ble High Court of Delhi by its order, dated 9.1.2017 observed that dishonest recording of Court proceedings does injustice”. “It is human beings who are put to trial, and they deserved to be treated as human beings with the same dignity as any other person, the court said. A judge who does not honestly and fairly record the proceedings does the greatest injustice to the parties, the Delhi High Court has observed.

Transferring the case to another court, Justice Sanghi said the Special Judge, in his haste to conclude the trial, had conducted the proceedings unfairly and his approach in the case, and the orders passed by him, disqualify him from the proceeding any further in the matter. “I may only remind the learned Special Judge of the off quoted phrase that “Justice should not only be done, but also be seen to be done”, the court said.

‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done’ is a famous remark of Lord Hewart CJ, in R v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233.

14. Protection against Ex post facto Law

An ex post facto law is a law which imposes penalties retrospectively, i.e.,on acts already done and increases the penalty for such acts. Article 20 (1) of Indian Constitution imposes a limitation on the law-making power of Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, but clause (1) of Article 20 Prohibits the Legislature to make retrospective Criminal laws.

15. Accused can Engage Counsel of His Choice

Section 303 of Criminal Procedure Code provides that “Any person accused of an offence before a Criminal court, or against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice”.

16. Victim can Engage Counsel of His Choice

Proviso Section 24 (8) of Criminal Procedure Code states that the court may permit the victim to engage an advocate of his choice to assist the prosecution.

Section 301 of Criminal Procedure Code provides that in any Court, any private person can engage a counsel of his choice and make such counsel to assist the public prosecutor and such a pleader can submit written arguments with the permission of the court, after evidence is closed in the case.

In the case of Lokesh Singh v. the State of U.P. Criminal Miscellaneous case No.3769/2013, dated 26.8.2013, the Allahabad High Court held that “after insertion of proviso to Section 24(8) Criminal Procedure Code if the court permits the victim to engage an advocate of choice, the court thereafter cannot deprive the advocate to address the court in addition to his right to file the written argument as contained in Section 301 Criminal Procedure Code after close of evidence”.

Section 302 Criminal Procedure Code allows the victim to conduct prosecution personally or by a pleader before any Magistrate with the permission of the court.

17. Prosecution can Examine Witnesses

Sections 231, 242, 254 of Criminal Procedure Code offered opportunity to the prosecution to examine its witnesses and put forth oral and documentary evidence.

18. Right of the Accused to Produce Evidence and to Submit Arguments

Sections 233, 247, 254 (2) Criminal Procedure Code guarantees the accused to produce evidence in his defence. Section 314 Criminal Procedure Code provides that any party to a proceeding make oral arguments and can submit written arguments in support of his case.

Section 315 of Criminal Procedure Code provides that any person accused of an offence before a criminal court shall be a competent witness for the offence and may give evidence on oath in disproof of the charges made against him.

19. Right to a Reasoned Judgment and availability of Judgment

A reasoned Judgment given in public, increases confidence in the Judiciary. The Justification for the reasoning in the Judgment must be based on the law and cannot appear to be attributed to personal opinions, prejudices or the socialization of Judge.

Section 353 and 354 of Code together deal with the substantive and procedural requirements that a Judge must ensure are followed. Section 363 of the Code confirms the accused’s right to a copy of his judgment where he is sentenced to imprisonment; the court must immediately furnish a copy of the judgment to him free of cost. Article 21 is violated if the court fails to provide the accused with a copy of Judgment in tie to file an appeal Section 354 (1) (b) mandates that Judgments must be reasoned.

20. Right to Venue of Trial

The provisions regarding the place of enquiry or trial are contain in Sections 177 to 189 of the Code. If the place of trial is highly inconvenient to the accused person and causes various impediments in the defence preparation, the trial at such a place cannot be considered as fair trial. Apart from exceptional circumstances, it would be convenient both to the prosecution and to the defence if the trial is conducted by a Court within whose local jurisdiction the crime was committed. Trial at any other distant place would generally mean hardship to the parties in the production of evidence.

21. Right of Accused under section 313 Cr.P.C. to Have Access to Documents in Custody of the Court

In V.K. Sasikala v. State represented by Superintendent of Police (2012) 9 SCC 771 Supreme Court upholding this right held, “While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well-entrenched principles of law that have been laboriously built by illuminating judicial precedents is sacrificed or compromised. In no circumstance, the cause of justice can be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time. In view of what has been stated above and to balance the need to bring the prosecution in the present case to its earliest conclusion and at the same time to protect and preserve the right of the accused to a fair trial we are of the view that the following directions would take care of the conflicting interests that have surfaced in the present case:

(1) The accused No. 2, i.e. the Appellant herein, be allowed an inspection of the unmarked and unexhibited documents referred to by her in the application dated 29.3.2012, i.e., IA No. 711 of 2012 in CC No. 2008/2004 filed in the Court of XXXVI Additional City Civil & Sessions Judge, Bangalore;

(2) Such inspection will be completed within a period of 21 days from the date of receipt of this order by the learned trial court. The venue of such inspection and also the persons who will be permitted to be present at the time of inspection will be decided by the learned trial court.

(3) The right of inspection conferred by this order will not affect the validity of any part of the trial till date, including, the examination of the accused No. 1 under Section 313 Cr.P.C. which has since been completed or any part of such examination of the second accused that may have been completed in the meantime.

(4) In the event the third and the fourth accused also desire inspection of the unmarked and unexhibited documents such inspection will be allowed by the learned trial court. In such an event the process of inspection will also be simultaneously carried out and completed within the period of 21 days stipulated in the present order.”

22. Right to Cross Examine Adverse Witnesses

Article 14(3)(e) of the ICCPR[vi] states that in the determination of any criminal charge against the accused, he is entitled to examine, or has examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This mandates that the parties be equally treated with respect to the introduction of evidences by means of interrogation of witnesses. The prosecution must inform the defence of the witnesses it intends to call at trial within a reasonable time prior to the trial so that the defendant may have sufficient time to prepare his/her defence. Though, in adversarial trial system, the burden of proving the guilt is entirely on the prosecution and the law does not call for the accused to lead evidence to prove his innocence, yet the accused is given a right to disprove the prosecution case or to prove special defence available to him. The refusal without any legal justification by a magistrate to issue process to the witnesses named by the accused person was good enough to vitiate the trial.

In Badri v. State of Rajasthan AIR 1976 SC 560, the court held that where a prosecution witness was not allowed to be cross- examined by the defence on a material point with reference to his earlier statement made before the police, his evidence stands untested by cross-examination and cannot be accepted as corroborating his previous statement.

23. Equality of Arms

All international documents dealing with fair trial specify equality of arms. In a trial for determination on any criminal charge against a person, every such person shall be entitled to minimum guarantees of being informed promptly, in detail and in a language that he understands, of the nature and cause of the charge against him. While reiterating that a fair trial to the accused is a sine qua non in our criminal justice system, it has been observed by the Supreme Court that procedural law contained in the Code of Criminal Procedure is designed to further the ends of justice and not to frustrate them by introduction of hyper – technicalities. Every case must depend on its own merits and no straitjacket formula can be applied. The essential and important aspect to be kept in mind is whether omission to frame a specific charge resulted in prejudice to the accused.[vii] Fair trial also includes procedural equality, equality in opportunity of presenting his case, the adversarial nature of proceedings, instruction concerning rights during trial, to have adequate time and facilities for the preparation of defence and to communicate with counsel of own choosing. The right to counsel is the right to the effective assistance of counsel.[viii]

24. Prohibition against Cruel, Inhuman or degrading Punishment

There is a prohibition against cruel, inhuman or degrading punishment. It has been held that the guarantee against cruel and harsh punishment given in the Eighth Amendment of the U.S. Constitution is also part of our constitutional guarantee. Once the concept of 'due process of law' and the guarantee against harsh and cruel punishment (Eighth Amendment of the U.S. Constitution) are woven in our Constitutional guarantee, it is the duty of the Court to uphold the same whenever any statute even prima-facie seeks to invade the same.[ix]

There is a right to a public and timely judgment supported with reasons. It may not be public in situations where the interest of juvenile persons requires otherwise or the proceedings concern matrimonial disputes or the guardianship of children. Everyone convicted of a crime shall have the right to his conviction and/or sentence being reviewed by a higher tribunal according to law and it must be a genuine review. All the rights in trial should also be, with incidental modification, available in appeal. There have been international efforts to disseminate the information on fair trial rights so as to make it universally discernable and applicable.[x]

25. Pre Trial Rights

There are a few pre trial rights available to an accused; some of which are detailed below.

01. Grounds of his arrest to be informed to accused

Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick to see the possibility of crime, but they ought to be anxious to avoid mistaking the innocent for the guilty. The burden is on the police officer to satisfy the court before which the arrest is challenged that he had reasonable grounds of suspicion. In Pranab Chatterjee v. State of Biha, (1970) 3 SCC 926, the Hon’ble Supreme Court held that Section 50 of Cr.P.C is mandatory. If particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. The grounds can be communicated orally or even impliedly by conduct.

02. Production of accused before a Judicial Magistrate within 24 hours of arrest

Section 57 of Cr.P.C. and Article 22(2) of Constitution provide that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest. In State of Punjab v. Ajaib Singh AIR 1953 SC 10, the Hon’ble Supreme Court held that arrest without warrant call for greater protection and production within 24 hours ensures the immediate application of judicial mind to the legality of the arrest.

03. Arrest of accused to be informed to his friend or relative

The decisions of the Supreme Court in Joginder Kumar v. State of Uttar Pradesh, 1994 SCC (4) 260 and D.K. Basu v. State of West Bengal, 1997 (1) SCC 416, were enacted in Section 50-A making it obligatory on the part of the police officer to inform the friend or relative of the arrested person about his arrest and also to make an entry in the register maintained by the police. This was done to ensure transparency and accountability in arrest. Sec.160 of Cr. P.C provides that investigation by any police officer of any male below 15 years or any woman can be made only at the place of their residence. Section 46 (4) provides that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Section 41A Cr.PC is aimed to avoid unnecessary arrest. In Arnesh Kumar v. State Of Bihar & Anr, Criminal Appeal No. 1277 OF 2014 (@ Special Leave Petition (CRL.) No.9127 of 2013, it was observed that Before a Magistrate authorizes detention under Section 167, Cr.P.C , he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorize his further detention and release the accused.

In Sanjay Chandra v. CBI – (2012) 1 SCC 40, what factors to be considered by Magistrate while granting or refusing to grant Bail are clearly explained. In Siddhram S. Mhetre v. State of Maharashtra (2011) 1 SCC 694, the scope of Anticipatory Bail is explained. In Gurbaksh Singh v. State of Punjab AIR 1980 SC 1632, the scope of Anticipatory Bail is considered. In Sajal Kumar Mitra v. State Of Maharashtra 2011 CrLJ 2744, it is discussed as to granting of Cash Bail initially to facilitate the accused to arrange for Surety in the meantime . In K K Girdhar v. M S Kathuria 1989 CrLJ 1094, it was observed that the Magistrate to decide Bail Application of the Accused along with Remand Application of the Police. In Lal Kamlendra Pratap Singh v. State of U.P, (2009) 4 SCC 437, the factors such as interim Bail by Magistrate till the final decision in Bail Application; arrest is not a must in all cases of cognizable offences; and police officer must act according to the principles laid down in Joginder Kumar v. State of U.P. (1994) 4 SCC 260. In Joginder Kumar v. State of U.P. (1994) 4 SCC 260 arrest is not a must in all cases of cognizable offences; police officer must act according to the principles laid down in this case; Arnesh Kumar v. State of Bihar JT 2014 (7) SC 527, Joginder Kumar (AIR 1994 SC 1349) and Arnesh Kumar cases (JT 2014 (7) SC 527) are most relevant to follow for the best administration of criminal justice system. Under the Code of Criminal Procedure,1973, sections 167(2), 169, 436, 437, 438, 439, 389(1), 389(3), 436A, 437(6), 437A etc. of Cr.P.C dealt with bails.

26. Rights from Investigation to Trial Stage

So far as rights implicated during the investigation stage is concerned, Article 21 of the Indian Constitution is relevant. Article 21 states: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ Our courts interpreted this Article in catena of decisions. These judicial pronouncements provide valuable instructions to judicial officers on how to protect the rights of accused. In order to assure a fair trial, judicial officers are expected to follow every procedural safeguard and protect every assurance provided by the law to all parties. The law is settled that Magistrate should not authorize detention of an accused to any custody mechanically in routine.

01. Procedural safe guards

1. Section 163 of Cr.P.C prohibits investigating officer from obtaining statements from witnesses through threatening conduct.

2. Under section 50A (1) OF Cr.P.C, immediately on arrest, the arresting police officer has an obligation to give information about the arrest and the place of detention to any person nominated by the arrested person.

3. As was observed in D.K.Basu v. State of West Bengal, AIR 1997 SC 610 preparation of ‘Arrest Memo’ indicating the date, place and time of arrest; signed by two independent witnesses and countersigned by the arrest officer is mandatory. Also see: Section 41 A,B,C,D of Cr.P.C.

4. Conducting medical examination of the accused at the time of arrest is essential. See. Section 54 of Cr.P.C.

5. Torture to accused is absolutely forbidden inasmuch as torture is a violation of fundamental rights. Section 330 IPC criminalizes torture during interrogation and investigation for the purposes of extracting a confession of accused.

6. The danger of illegal detention and torture of accused can be minimized by strict compliance of section 57 of Cr.P.C.

7. Article 32 and 226 of the Indian Constitution provide for compensation from the State for contravention of fundamental rights. See. Nilabati Behera v. State of Orissa, AIR 1993 SCC page 13.
8. The Code of Criminal Procedure,1973 codifies the duties of Magistrate. Magistrate shall follow the guidelines given in Arnesh Kumar’s case.

9. Under section 172, a police officer shall maintain a day-to-day case diary. Police records must be kept with scrupulous completeness, and investigations should be carried out with promptness, urgency and efficiency to achieve the object of discovery of truth in every case. Judicial Officer’s signature on each page of the case diary operates as a safeguard against manipulation and interpolation.
10. Section 173 of Cr.P.C which imposes further record-keeping duty on the police officer. See. Bhagwant Singh v. Commissioner of police, Delhi, (1983) Criminal Law Journal 1081 = (1985) SC 1285

27. Rights from Trial to Final Judgment

To say in short, a trial of a criminal case is a process by which a Court decides on the innocence or guilt of an accused. The total trial process is governed and underpinned by the principles laid down in the Constitution of India. Accused is given every opportunity to defend himself. The duty of a judicial officer is to ensure that witnesses are examined with great care and he has the duty to referee motions, weigh the facts and circumstances, draw logical conclusions and arrive at a reasoned decision about guilt or innocence by weighing the facts and circumstances, the evidence produced and the relevant law. In the case of Kali Ram v. State of H.P. (1973) 2 SCC 808 the Supreme Court observed “it is no doubt that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse; however is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot be felt in a civilized society.” In Himanshu Singh Sabharwa v. State of M.P. and Ors. MANU/SC/1193/2008, the apex court observed that if fair trial envisaged under the Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court can exercise its power under section 311 of the Code or under section 165 of the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so as to sub serve the cause of justice.

28. Post Trial rights

01. Lawful punishment

Article 20(1) explains that a person can be convicted of an offence only if that act is made punishable by a law in force. It gives constitutional recognition to the rule that no one can be convicted except for the violation of a law in force. In Om Prakash v. State of Uttar Pradesh AIR 1957 All 388, offering bribe was not an offence in 1948. Section 3 of the Criminal Law (Amendment) Act, 1952 inserted Section 165A in the Indian Penal Code, 1860, declaring offering bribe as punishable. It was held that the accused could not be punished under Section 165A for offering bribe in 1948. Article 20(1) provides that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It prohibits the enhancement of punishment for an offence retrospectively. But article 20(1) has no application to cases of preventive detention.[xi]

02. Right to human treatment

A prisoner does not become a non-person. Prison deprives liberty. Even while doing this, prison system must aim at reformation. In prison, treatment must be geared to psychic healing, release of stress, restoration of self-respect apart from training to adapt oneself to the life outside.[xii] Every prisoner has the right to a clean and sanitized environment in the jail, right to be medically examined by the medical officer, right to visit and access by family members, etc. Recognizing the right to medical facilities, the National Human Rights Commission recommended the award Rs. 1 Lakh to be paid as compensation by the Govt. of Maharashtra to the dependents of an under trial prisoner who died in the Nasik Road Prison due to lack of medical treatment.[xiii]

03. Right to file appeal

Section 389(1) empowers the appellate court to suspend execution of sentence, or when the convicted person I in confinement, to grant bail pending any appeal to it. Court need not give notice to the public prosecutor before suspending sentence or releasing on bail. Existence of an appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of right irrespective of whether the offence is bailable or non-bailable and should be allowed only when after reading the judgement and hearing the accused it is considered justified.[xiv]

04. Proper execution of sentence

The hanging of Afzal Guru was criticised by human rights activists, legal experts all over the country. In carrying out Afzal Guru’s death sentence, the government deliberately ignored the view of the Supreme Court and courts across the world that hanging a person after holding him in custody for years is inhuman. Mohammad Afzal Guru was convicted by Indian court for the December 2001 attack on the Indian Parliament, and sentenced to death in 2003 and his appeal was rejected by the Supreme Court of India in 2005. The sentence was scheduled to be carried out on 20 October 2006, but Guru was given a stay of execution after protests in Jammu and Kashmir and remained on death row. On 3 February 2013, his mercy petition was rejected by the President of India, Pranab Mukherjee. He was secretly hanged at Delhi’s Tihar Jail around on 9 February 2013.

05. The Right of Habeas Corpus

Habeas corpus is a Latin term that literally means "you have the body - the body being that of the suspect or criminal. It is defined as a writ directed to a sheriff or other person detaining another, commanding him or her to produce the body of the prisoner at a certain time and place and to report the day and cause of the prisoner's taking and detention to the judge awarding the writ. Habeas corpus is the remedy against any type of illegal restraint by a government official.

Habeas corpus proceedings have their basis in Article I, Section 9 of the Constitution, which provides that "the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it."

Anyone who is unconstitutionally held in custody may file habeas corpus. The writ may be used as a pre-trial relief and as post-conviction relief. It may be filed any time a prisoner establishes (or thinks he or she can establish) that his constitutional rights have been violated. The rights prisoners usually invoke in habeas corpus proceedings are the protection against unreasonable search and seizure, the exclusionary rule, privilege against self-incrimination, the right to an attorney, the protection against double jeopardy, and the right to due process of law. A person who has been awarded a writ of habeas corpus is entitled to immediate release from custody.

The writ of habeas corpus is not a substitute for an appeal. In contrast to an appeal from judgment, which is a form of direct review, a writ of habeas corpus is a form of indirect review that only focuses on legality of detention or imprisonment. While the appeal is a part of criminal proceeding, the writ of habeas corpus is a separate civil proceeding whose purpose is to provide for a swift judicial review of alleged unlawful restraint of liberty.

05. INTERNATIONAL LAW AND FAIR TRIAL

01. International Documents on Fair Trial

The fairness of a criminal trial is based on the human rights. Universal Declaration adopted and proclaimed by the General Assembly of the United Nations of Human Rights, 1948[xv] provided the following law related rights along with other rights:

(1) All human beings are born free and equal in dignity and Rights (Art. 1).

(2) Everyone is entitled to all the rights and freedoms set forth in this Declaration (Art. 2).

(3) Everyone has the right to life, liberty and security of person (Art. 3).

(4) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Art. 5).

(5) Everyone has the right to recognition everywhere as a person before the law (Art. 6).

(6) All are equal before the law and are entitled without any discrimination to equal protection of the law (Art. 7).

(7) Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted to him by the Constitution or by law (Art. 8).

(8) No one shall be subjected to arbitrary arrest, detention or exile (Art. 9).

(9) Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him (Art. 10).

(10) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed (Art. 11).

The question whether a criminal trial is fair or not will have to be examined on the basis of protecting the human rights, prevailing social values and adoption of the procedure laid in the Code of Criminal Procedure, 1973 and prevailing adversary system of criminal trial, based on accusational method. All the provisions of the Code of Criminal Procedure are attuned to provide for fair trial in the administration of criminal justice.

Internationally, the major legal provisions on fair trial are to be found in Article 14 of the International Covenant on Civil and Political Rights, Articles3, 7 and 26 of the African Charter on Human and Peoples’ Rights, Article 8 of the American Convention on Human Rights and Articles 5, 6 and 7 of the European Convention on Human Rights and Articles 2 to 4 of the 7th Protocol to the Charter. Other rules to which reference could be made are the Statutes of the International Criminal Court and the International Criminal Tribunals for Rwanda and the former Yugoslavia.

Additionally, the provisions of the Universal Declaration of Human Rights14 are generally considered declarative of customary international law. It may be of great importance as a binding customary law especially if a State has not ratified or acceded to the ICCPR, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,[xvi] or other regional human rights instrument. The most directly relevant Articles of the UDHR are 5, 9, 10 and 11. Customary international law is generally used as a supplementary source of a State's obligations in ensuring the right to a fair trial.[xvii]

Non-binding documents relevant to the conduct of criminal proceedings and to laying down fair trial standards include the Basic Principles for the Treatment of Prisoners,[xviii] Standard Minimum Rules for the Treatment of Prisoners,[xix] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,[xx] Basic Principles on the Role of Lawyers,[xxi] Basic Principles on the Independence of the Judiciary,[xxii] UN Standard Minimum Rules for the Administration of Juvenile Justice,[xxiii] Code of Conduct for Law Enforcement Officials,[xxiv] Guidelines on the Role of Prosecutors,[xxv] Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions,[xxvi] Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,[xxvii] UN Rules for the Protection of Juveniles Deprived of Their Liberty,[xxviii] etc.

06. CONCLUSION

 “Equality, Justice and Liberty” is the trinity of fair trial recognized in the administration of justice of India where the affluent and the “lowly and lost” have the equality of access to justice in the administration of justice in general and the criminal justice system in particular. This fundamental principle of fair trial is the backdrop of the International Covenants, and enjoined in the Constitution of India as well as the criminal laws devising the criminal justice system of India.

Arijit Pasayat J. in the famous “Best Bakery’s case” quoted Manusmrti, “where in the presence of Judges “dharma” is overcome by “adharma” and “truth” by “unfounded false hood”, at that place they (the Judges) are destroyed by sin. In the adharma flowing from wrong decision in a court of law, one fourth each is attributed to the person committing the adharma, witness, the judges and the ruler”.

Justice Krishna Iyer in State of Rajasthan v. Bal Chand, AIR 1977 SC 2447 observed, “the basic rule perhaps be tersely put as bail not jail, except where there are circumstances, suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the Petitioner who seeks enlargement on bail from the court.’’

 

 

BIBLIOGRAPHY

1.                  The Code Criminal procedure by Batuk Lal, published by Central Law Agency, Allahabad, Revised Edition, 2008

2.                  The Code Criminal procedure, 1973 by George Johnson and Dominic Johnson, published by Law Book Centre, Ernakulam, Fourth Edition, 2014

3.                  Criminal Major Acts by R.G. Sagar published by Delhi Law house, Delhi, First Edition, 1998

4.                  https://indiankanoon.org

5.                  http://judis.nic.in/supremecourt/chejudis.asp

6.                  http://judis.nic.in/judis_kerala/content.asp

7.                  https://en.wikipedia.org/wiki/Main_Page

NOTES

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[i] See with benefit discussions on various facets of fair trial and criminal justice administration in Tiwari, Neeraj, Fair trial vis-à-vis Criminal Justice Administration: A Critical Study of Indian Criminal Justice System, Journal of Law and Conflict Resolution Vol. 2(4), pp. 66-73, April 2010, available at www.academicjournals.orgarticlearticle1379856371_Tiwari.pdf, for dimensions of fair trial standards under Indian criminal justice system (last visited on 27.09.2014)

[ii] Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116

[iii] Gurbachan Singh v. State of Punjab AIR 1957 SC 623

[iv] Iqbal Ismail Sodawala v. State of Maharashtra and Ors (1975) 3 SCC 140

[v] National Human Rights Commission v. State of Gujarat and Ors. (2009) 6 SCC 342

[vi] International Covenant on Civil and Political Rights, UN General Assembly resolution 2200A (XXI), December16, 1966, entered into force March 23, 1976. http://www2.ohchr.org/english/law/pdf/ccpr.pdf (accessed on 10-11-09)

[vii] Anna Reddy Sambasiva Reddy & Ors v. State of AP AIR 2009 SC 2661

[viii] Hew, Maurice, Jr., Expanding the Civil Privilege of Being Represented by Counsel through the Presumed Prejudice Doctrine, 17 UDCDCSL L. Rev. 46 (2014)

[ix] Sunil Batra v. Delhi Administration and Ors. (1978) 4 SCC 494

[x] Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, Office of the High Commissioner for Human Rights in Cooperation with the International Bar Association, Professional Training Series No. 9 http://www.ohchr.org/documents/publications /training9titleen.pdf - UN New York and Geneva, 2003 last visited on 06.10.2014

[xi] Prahlad Krishna v. State of Bombay AIR 1955 Bom 1

[xii] Phul Singh v. State of Haryana, (1979) 4 SCC 413

[xiii] NHRC News Letter, September, 1999

[xiv] Section 436 of Cr. P.C.

[xv] UN General Assembly resolution 217A (III), December 10, 1948

[xvi] UN General Assembly resolution 39/46, December 10, 1984, entered into force June 26, 1987

[xvii] What is A Fair Trial? A Basic Guide to Legal Standards and Practice Lawyers Committee for Human Rights, March 2000 available at www.humanrightsfirst.orgwp-contentuploadspdffair_trial.pdf last visited on 27.09.2014

[xviii] UN General Assembly resolution 45/111, December 14, 1990

[xix] UN Economic and Social Council resolution 663 C (XXIV), July 31, 1957 and resolution 2076 (LXII), May 13, 1977

[xx] UN General Assembly resolution 43/173, December 9, 1988

[xxi] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 – September 7, 1990

[xxii] UN General Assembly resolution 40/32, November 29, 1985 and resolution 40/146, December 13, 1985

[xxiii] UN General Assembly resolution 40/33, November 29, 1985

[xxiv] UN General Assembly resolution 34/169, December 17, 1979

[xxv] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27-September 7, 1990

[xxvi] UN Economic and Social Council recommended resolution 1989/65, May 24, 1989

[xxvii] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27- September 7, 1990

[xxviii] UN General Assembly resolution 45/113, December 14, 1990