Fair Trail

A trial conducted by a judge in an impartial way is said to be a Fair Trial. The

question of whether a trial is fair or not depends upon the procedure as laid down
by the Code of Criminal Procedure, 1973 and the prevailing system of criminal
justice. In Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors,[1]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. A 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. Thus, in order to secure the right to
fair and impartial trial all Indian criminal laws are well made to safeguard these
rights.

Universal Declaration of Human Rights (UDHR) at global level recognizes the

concept of a fair trial as the part of human rights. Article 10 of the
UDHR[2] provides that “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.”

International Covenant on Civil and Political Rights

(ICCPR) in its Article 14(1)[3]
provides that “All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law……”

Indian Constitution on Fair Trial:

Right to a fair trial is a concept which is essentially embodied in the Constitution
of India. In a democratic country like India, even an accused cannot be denied his
right to life and personal liberty. Indian Constitution through its Article 21 renders
the fair trial a part of life and personal liberty. The Supreme Court in the case
ofRattiaram v. State of Madhya Pradesh,[4] observed that the fair trial is the heart
of criminal jurisprudence. A fair trial is a fundamental right which flows from
article 21 of the Constitution. Denial of the fair trial is the denial of human rights.
Also, the Court in Mohd. Hussain @ Julfikar Ali v. The State (Govt. Of
Nct),[5] stated that 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. Thus, right to a fair trial
being a fundamental right cannot be refused to any person by the virtue of
Constitution.

Principles of Fair Trial:

1. Adversary Trial System:
The Code of Criminal Procedure, 1973 is based on an adversarial trial system. This
system suggests that onus of proving the guilt of the accused is on the prosecution
and judge acts as a neutral referee from both the sides.

In Himanshu Singh Sabharwa v. State of M.P. and Ors.,[6] 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 subserve the cause of justice.

2. Presumption of innocence:
An accused is innocent until proven guilty. The onus of proving that the accused is
guiltyis on the prosecutor. This principle has been originated from a Latin maxim,
‘eiincumbitprobatio qui dicit, non quinegat’, which means the burden of proof
rests on the one who asserts and not on the one who denies.
Presumption of innocence is the fundamental principle and has its recognition in
human rights. Article 11(1) of UDHR[7] reads ‘Everyone charged with a penal
offence has the right to be presumed innocent until proved guilty according to the
law in a public trial at which he has had all the guarantees necessary for his
defence.’

The apex court in State of U.P. v. Naresh and Ors,[8] held that “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 principle of innocence is must in a trial in order to protect the accused from
arbitrary and wrongful conviction.

3. Independent, Impartial and Competent judge:

This principle can be said to emerge from the principle of natural justice ‘nemo
judex in causa sua’ which means no one can be a judge in his own cause. Thus, a
trial is said to be fair if it is done before an independent, impartial and a competent
judge. Independence of the judiciary is the essential part of Indian Constitution.
Section 479 of the Code of Criminal Procedure explicitly prohibits any judge or
magistrate to trial any case in which he is a party or personally interested and also
prohibits to entertain any appeal from any order or judgment made by him.

Shyam Singh v. the State of Rajasthan,[9] the court held 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.

Thus, a trial conducted by a biased judge leads to a miscarriage of justice.

Pre – Trial Rights:

 1. Knowledge of Accusation:
As per Article 22(1) of the Constitution, it is the fundamental right of every
accused to be defended by a legal practitioner. However, this right can only be
exercised only if accused is informed about the accusation against him. Article
22(1) also renders right to be informed about the grounds of arrest as a
fundamental right.

The grounds of accusation must be communicated to accused in the language

which he or she understands. It is important to convey the grounds of accusation in
order to be defended. Section 211 of Cr.P.C incorporates the right to have a precise
and specific accusation.

2. Right to Open Trial:

The openness of a trial is associated with fairness. A fair trial requires that trial
must be in an open court. The openness of the court as per section 327(1) of Cr.P.C
means in which not only parties but also, the general public have access to records
of the court.

However, the rule laid down under section 327(1) is followed by an exception.
Under section 327(2) the court is bound to observe the trial relating to rape
offences in camera. Cases relating to rape offences require secrecy and thus,
proceedings conducted in the camera are not a violation of the right to fair trial.

In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra,[10] the apex
court held 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.

3. Right to Free Legal Aid:

If to ensure a fair trial the accused is to be defended by a legal practitioner, it is
also important to ensure that he has all the necessary means to engage a lawyer.
This right is secured by the Article 39A of the Constitution which provides for
equal justice and free legal aid. Section 304 of Cr.P.C also provides for legal aid at
the expense of State. Legal assistance to accused that has no means to defend
himself is crucial to protect his life and personal liberty.

Legal aid has its root not only in Constitution and Criminal laws but also in human
rights. In Khatri v. the State of Bihar,[11] the court held that the accused is entitled
to free legal services not only at the stage of the trial but also when first produced
before the Magistrate and also when remanded.

4. Right to Speedy Trial:

Speedy trial is an essential feature of a fair trial. Delayed justice leads to denial of
justice. A speedy trial is important not only to the victim but also to the accused.
Speedy trial ensures that the accused is free from any unnecessary harassment.

The concept of speedy trial flows from Article 21 of the Constitution.

In Husainara Khatoon v. the State of Bihar,[12] the Supreme Court recognized that
speedy trial is an essential ingredient of article 21 of the Constitution of India. And
it’s the Constitutional duty of the State to set up such procedure as would ensure
speedy trial to the accused.

In the case of Moti Lal Saraf v. Union of India,[13] the court observed that the
concept of a fair trial is an integral part of article 21 of the Constitution.

Section 309(1) of Cr.P.C provides that ‘In every inquiry or trial the proceedings
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 speedy trial is a right
guaranteed by the Constitution and its denial is the violation of the right to fair
trial.

5. The trial in Presence of Accused:

The general rule is that all proceedings related to the case should take place in the
presence of the accused. The principle behind is that the court is restricted from
making any ex-parte decision. However, this is not an absolute rule and court has
the power to proceed the case even in the absence of accused. The court requires
the presence of accused if it feels necessary for the administration of justice.

6. Evidence to be taken in Presence of Accused:

Indian judiciary places its reliance upon evidence and in order to ensure the fair
and impartial administration of justice, it is must that evidence are taken in
presence of accused. Section 273 of Cr.P.C requires that all the evidence and the
proceedings should take place in presence of accused. This rule is backed with
exceptions as well. The court may take evidence in the absence of the accused and
the accused will appear through his counsel. The court in the case of State of
Maharashtra v. P.B.desai,[14] held that section 273 CRPC provides for
dispensation from personal attendance. In such cases, evidence can be recorded in
the presence of pleader. The presence of pleader is thus, deemed to be a presence
of accused. Therefore, actual presence is not necessary, a constructive presence is
also enough.

7. Protection against Illegal Arrest:

According to section 57 of the Code, no person arrested will be detained for more
than 24 hours and will be produced before the Magistrate within 24 hours. It is also
a fundamental right under Article 22(2) of the Constitution. A detention of a
person in excess of 24 hours without the permission of the Magistrate will be
termed as illegal detention.

8. Right to Bail:
Bail simply refers to the release of a person from the custody of police. When a
person is arrested for a bailable offence, he is entitled to be released on bail. As per
section 50(2) of the Code, it is the duty of the police officer to inform the arrested
person of his right to bail and allow to make arrangements for sureties.
 9. Prohibition on Double Jeopardy:
This principle is placed on the rule of ‘nemo debet vis vexari‘ which means a man
should not be put twice in peril for the same offence. Prohibition on double
jeopardy is a fundamental right protected by the Constitution of India under Article
20(2) which reads ‘no person shall be prosecuted and punished for the same
offence more than once.’ The principle of double jeopardy is based on the doctrine
of autrefois convict and autrefois acquit. This doctrine implies that if a person is
prosecuted and convicted or acquitted cannot be prosecuted again for the same
offence. Section 300(1) of Cr.P.C also explicitly lays down the rule that a person
once acquitted or convicted will not be tried for the same offence or for any other
offence on the same facts.

Article 20(2) of the Constitution and section 300(1) differs from each despite the
fact that their meaning is the same. The Supreme Court in Kolla Veera Raghav Rao
v. Gorantla Venkateswara Rao,[15] differentiated between article 20(2) of the
Constitution and section 300(1) of Cr.P.C. 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.

10. Right against Self – Incrimination:

Article 20(3) of the Constitution reads, “No person accused of any offence shall be
compelled to be a witness against himself.” As per Article 20(3), no person is
bound to accuse himself. The right has been provided to ensure that an accused do
not make any statement due to threatening, influence or any other compulsion.
However, where an accused himself admits the guilt without any inducement
Article 20(3) cannot be invoked. According to this article, the accused need not
require to make any statement against his will and the onus is on the prosecution to
establish the guilt. In Nandani Sathpathy v. P.L. Dani,[16] it was held that a person
is required to truthfully answer all the question except those which admit his
personal guilt.

Post – Trial Rights:

1. Lawful Punishment:
Article 20(1) of the Constitution provides protection against ex-post facto criminal
laws. As per this article a person can be convicted only for violating the law in
force. This implies that if an act is not an offence at the time of its commission it
cannot be an offence at the date subsequent to its commission. A person can be
lawfully punished only for acts which are charged as an offence at the time of their
commission. An act charged as an offence at a later date does not make an act
committed before such an act punishable.

Generally, a legislature has the power to make retrospective as well as prospective

laws. But Article 20(1) prohibits the legislature to make retrospective criminal
laws. In Om Prakash v. State of Uttar Pradesh,[17] it was held that 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 the bribe in 1948.

2. Right to file Appeal:

An appeal is initiated to review a judgement given by the lower court by a higher
court. An appeal is an inherent right of every person in criminal cases. The
appellate court under section 389(1) of the Code is empowered to suspend
execution of any sentence. The court is also empowered to release the convicted
person on bail if he is confined if the appeal is pending. Section 374 of the Cr.P.C.
provides right to appeal against convictions to Supreme Court, High Court and
Sessions Cour