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