FAIR TRIAL

Introduction

It is rightly said that "Justice should not be done but it should be seen to have been done."
Convicting a wrong person is much more unjust than not convicting anyone at all. In order to
remove the discrimination and prejudices while conducting a trial, the concept of "Fair Trial"
was included in the laws of India. So what is fair trial? What are the principal features of fair
trial? What provisions of the Constitution and the Code of Criminal Procedure, 1973 support this
concept? Why is it important to conduct a fair trial?

What is Fair Trial?

According to Merriam Webster’s dictionary, fair trial means, “a trial that is conducted fairly,
justly, and with procedural regularity by an impartial judge and in which the defendant is
afforded his or her rights under the U.S. Constitution or the appropriate state constitution or other
law.”

In Zahira Habibualla H. Sheikh v. State of Gujarat1, which is commonly known as the best
bakery case, the Court said that a fair trial would mean a trial before an impartial judge, a fair
prosecutor and atmosphere of judicial calm, that in which bias or prejudice for or against the
accused, the witnesses or the cause which was being tried, was eliminated. Where, the witnesses
got threatened or were forced to give false evidence or where material witnesses were not heard,
fair trial would be said to have been denied.2

Right to Fair Trial- A Fundamental Right

Right to Fair Trial is a Fundamental Right enshrined under Article 21 of the Constitution of
India. It is said that free and fair trial is sine qua non of Article 21. Article 21 says,

"No person shall be deprived of his life or personal liberty except according to
procedure established by law."

In Zahira Habibulla H. Sheikh v. State of Gujarat 3, A trial which is primarily aimed at

ascertaining truth, has to be fair to all concerned. Not only the accused be fairly dealt with, but
also the victims or their family members and relatives. Denial of a fair trial is as much injustice
to the accused as is to the victim and the society.

In Kalyani Baskar v. M.S. Sampoornam4, Right to fair trial which includes fair and proper
opportunities allowed by law to prove innocence of accused, adducing evidence in support of the
defence, is a valuable right, denial of that right means denial of fair trial. It has been held that

1 AIR 2004 SC 3114

2 Narendra Kumar Constitutional Law of India 224 (Allahabad Law Agency, Faridabad, 7th Ed./ 2008)
3 (2006) 3 SCC 374
4 (2007) 2 SCC 258
rules of procedure designed to ensure justice should be scrupulously followed and the Courts
should be jealous in seeing that there is no breach of them.

Concept of Fair Trial under the Code of Criminal Procedure, 1973

The concept of fair trial has permeated every nook and corner of the Criminal Procedure Code.
This is what it should be. The major objective of the Code being to provide for fair trial in the
administration of criminal justice, it is but natural that all the provisions of the Code are attuned
to this goal.5

There are a lot of provisions of the Code which promote the concept of fair trial and aim to
eliminate every sort of discrimination which accused might face while being on a trial. The
system is the Adversary system of the Code according to which the prosecutor has to face the
case against accused beyond reasonable doubt and sufficient opportunity of being heard is given
to the accused.

Sections 211, 212, 213 of the Code ensures that accused get every information about the alleged
offence so that he/she can prepare the defences accordingly. Further, Sections 177 to 189 contain
the provisions regarding venue of trial so that the parties to the case do not face any
inconvenience. According to Section 177, ordinarily, the place of inquiry and trial is conducted
by the court in whose local jurisdiction it was committed.

Principal Features of Fair Trial

· Presumption of innocence

Every criminal trial begins with the presumption of innocence in favour of the accused. In Babu
Singh v. State of Punjab6, it was observed that the principle that the accused is presumed to be
innocent unless his guilt is proved beyond reasonable doubt, is of cardinal importance in the
administration of criminal justice.

· Unbiased and competent judges

The appointments of Session Judges, and Judicial Magistrates are made by the State
Government in consultation with the High Court. In order to have fair trial it is necessary that the
judges or the Magistrate must not be in any manner connected with the prosecution or interested
in the prosecution. Section 479 of the Code of Criminal Procedure, 1973 makes provisions for
this. Also, Section 327 contain the provisions for open courts generally accessible to the
members of the public.7 It is very significant that an unbiased and competent judges conduct the
trial so that there is no scope of any injustice. Further, Article 50 of the Constitution directs the
State to separate judiciary from executive so that the laws can be implemented fairly.

· Evidence is to be taken in the presence of the accused

5 R.V. Kelkar, Criminal Procedure 358 (Eastern Book Company, Lucknow, 6th Ed./2014)
6 (1964) I Cri Lj 566
7 Supra note 3 at 349-350
Section 273 of the Criminal Procedure Code says that the evidence is to be taken in the presence
of the accused. Section 278 says that if it is necessary, then the evidence of each witness is to be
read over to him in the presence of the accused.

· Accused can cross examine the prosecution witness

In Ajoy Kumar Ghose v. State of Jharkhand8, Supreme Court emphasized the need for cross-
examination of the prosecution witnesses before framing charges. This is to be afforded to the
accused so that he may plead for not charging him. He could seek for discharge.

· Right of the accused to have an expeditious trial

Section 309(1) has provisions which say that except in some offences , the inquiry and trial
should be completed within a period of two months from the date of filing of the charge sheet. In
Hussainara Khatoon v. State of Bihar 9, the Supreme Court considered the problem in all its
seriousness and declared that speedy trial is an essential ingredient of "reasonable, fair and just"
procedure guaranteed by Article and that it is the constitutional obligation of the State to devise
such a procedure as would ensure speedy trial to the accused. 10 It is an important feature of a fair
trial based on the statement that "Justice delayed is justice denied".

· Person once convicted or acquitted not to be tried for same offence

When once a person has been acquitted or convicted of any offence by any competent court, any
subsequent trial for the same offence would certainly put him in jeopardy and in any case would
cause him unjust harassment.11 It is based upon the doctrine of autrefois acquit and autrefois
convict. Section 300 of the Criminal Procedure Code and Article 20(2) both has led to the
applicability of this doctrine in the trials.

Conclusion

If the criminal trial is not fair and not free from bias, the judicial fairness and the criminal justice
system would be at stake, shaking the confidence of the public in the system and woe would be
the rule of law.12 In the administration of justice, it is very important that the trials are conducted
in the most fair manner and all the rights provided to the accused by the laws of our country are
ensured, only then the real accused would be behind the bars and the main purpose of framing of
the laws would become successful. Not following the concept of fair trial would not only be
unfair towards the alleged accused but also, it would vitiate the objectives with which the
legislators drafted the laws.

8 (2009) 14 SCC 115

9 (1980) 1 SCC 98
10 Supra note 3 at 356
11 Supra note 3 at 357
12 Supra note 2