TOPIC - 4

FROM TRIAL TO FINAL JUDGMENT

Sl. No. Officer Name and Designation Page Nos.

1. Sri M. Srikantha Chary,
2- 7
VII-Add. District Judge, Vijayawada.
Smt S. Rajani,
2. Addl. District Judge,-cum- Chairman, 8 - 18
Permanent Lok Adalat, Krishna, Machilipatnam.

3. Sri K. Prabhakara Rao,

19 - 22
Prl. Senior Civil Judge,Gudivada.

4. Smt S.V.P. Suryachandra Kala,

23 - 54
VI-Addl. Senior Civil Judge,Vijayawada.

5. Smt K. Aruna Kumari,

55 - 62
Prl. Junior Civil Judge,Gudivada.
Smt N. Anitha Reddy,
6. Judl. Magistrate of I-Class Special Mobile Court, 63 - 68
Machilipatnam.

7. Smt M. Anuradha,
69 - 99
Additional Junior Civil Judge, Nandigama.

8. Sri K. Srinivasa Rao,

100 - 104
I-Addl Junior Civil Judge,Nuzvid.
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FAIR TRIAL FROM TRIAL TO FINAL JUDGMENT

By
Sri M. Srikantha Chary,
VII-Add. District Judge,
Vijayawada.

The accused have certain rights which need to be nurtured and

preserved by the judge who has to maintain a fine balance between the rights

of the victim and assurance of fair treatment and due process to the accused.

2. While crime control, of course, is a significant aim, it is also a

fundamental rule of justice that the accused must be given adequate

opportunity to defend the charges against her/him. The rule of law mandates

the observance of due process to the accused, no matter how heinous the

offence. Assurance of a fair trial is the first imperative for the dispensation of

justice.

3. Fair trial principles have been agreed upon and recognized by the

international community of nations. They are a part of international

customary law and are embedded in the Universal Declaration of Human

Rights, the International Covenant on Civil and Political Rights and the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment. They have also been expressly guaranteed by the Constitution

– in the chapter of Fundamental Rights – and are inherent in many of the

provisions of the Code of Criminal Procedure, 1973.

4. The first and foremost principle is that a judge must begin with a

premise that the person being charged is innocent. This may be difficult in

high profile cases where the accused is often subject to a ‘trial by media’.
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Judges therefore have to keep themselves aloof from all the media posturing,

conjecture and rumours that abound in widely publicized cases. They must

personally detach themselves from the nature of charges to prevent personal

dislike or aversion vitiating the presumption of innocence. To ensure that

justice is not only done but is also seen to be done, trials are conducted

publicly unless there are compelling reasons for not doing so. It is the right of

citizens to be able to enter a court room anywhere in India and observe the

proceedings therein. This right derives from the democratic privilege to observe

the working of public institutions.

5. Procedural fairness also requires that the accused be given sufficient

opportunity of being heard. This can only be done if the accused are formally

informed about the nature of charges and given an adequate opportunity to

defend themselves in a language they understand. Unfortunately, many court

users particularly those belonging to economically and socially weaker section

are effectively denied access to information about their case, because the paper

work and proceedings are conducted in English. Even if they are conducted in

the official language of the State, it may be alien to the accused. A fair hearing

is only possible when the complainant and the accused are able to follow the

proceedings and progress of the case. It is therefore incumbent on the judge to

arrange for an interpreter in case where it is so warranted, and also to see that

the defence lawyer is defending the accused properly and not misleading

her/him any way.

6. Another area of crucial importance is that of bail and remand.

 4

Mechanical committing of accused persons to police or judicial custody

remains one of the biggest obstacles to the realization of the right to life and

personal liberty. Even if a person is finally acquitted, she/he has to grapple

with the social stigma attached with having had to spend time in custody.

Magisterial and trial courts must be fully convinced of the necessity to remand

a person before denying bail. Even if bail is granted, the poor are especially

vulnerable to de-facto denial of bail if the amount fixed is beyond their means;

or if they are asked to produce financially sound persons to act as sureties for

them; or if they are asked to furnish property as security for the grant of bail.

If at the time of production, it appears to the court that the accused cannot

arrange for a lawyer then s/he must be provided with access to competent legal

aid by the local legal services authority.

7. The right to obtain legal aid has been upheld by the Supreme Court,

which has consistently maintained that those without adequate means to put

up a defence must provided with a competent counsel at State expense

otherwise the trial and subsequent conviction would be bad in law.

8. Mere provision of an empanelled lawyer from the legal services authority

is not enough. S/he must be able to provide an adequate defence to the

accused and must be given sufficient time and facility for preparing the

defence. In practice, when the defence counsel appears ineffective, the judge

may assist during the trial. However, this alone does not guarantee fairness of

procedure. An incompetent or ineffective lawyer should be replaced. Such

situations can be averted if the district judiciary takes a proactive interest in

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guaranteeing that well qualified lawyers with human rights leanings are

consistently empanelled with the District Legal Services Authority; political

appointees are discouraged; and performance is periodically reviewed to weed

out those not inclined or capable enough to provide equality legal services to

needy persons.

9. Denial of adequate legal representation besides resulting in injustice is

also responsible for an individual’s rights against torture and harassment in

custody not being enforced.

Admissibility of character evidence and rights of the accused:

10. Article 20(2) of the Constitution of India explicitly states that no person

should be prosecuted and convicted of the same offence twice. Punishing an

accused by adducing evidence as to his previous misconduct or bad character

is tantamount to convicting him of an offence committed in the past and thus,

does not only cause unfair prejudice to him but also goes against the

protections given by the Constitution of a sovereign State to its citizens.

11. Section 54 of the Indian Evidence Act explicitly bars the admissibility of

bad character of the accused as evidence in criminal trials. The position of law

is well-settled and has been re-affirmed in various decisions. In Ramlakakhan

v. State of UP (AIR 1977 SC 1936) the Supreme Court observed that in the

Indian legal system, there is always a presumption of innocence of the accused,

his bad character is not relevant, unless he gives evidence of good character,

which can be rebutted or attacked by the prosecution by adducing evidence as

to his bad character. The object of the section is to prevent unfair prejudice to
 6

the accused by punishing him for his previous crime again and raking up his

whole past life.

Self-incriminating evidence and rights of the accused:

12. In India, the right against self incrimination is one of the fundamental

rights, enshrined in Article 20(3) of the Constitution. The first important

decision related to the rights of the accused against self-incrimination was

given in the case of State of Bombay v. Kathi Kalu Oghad (1961 AIR 1808).

The main question before the court in this case was the admissibility of

specimen writing and thumb impressions from the accused. The appellants

contended that obtaining of evidence in any way of these forms amounted to

self-incrimination, testimonial compulsion and a breach of Article 20(3) of the

Constitution. While rejecting the contentions of the accused, the court

departed from its earlier decision given in the case of M.P. Sharma v. Satish

Chandra (1954 AIR 300 (SC)) and observed that though the protective

umbrella of Article 20(3) of the Constitution extended to oral and written

testimonies, both inside and outside of courts, it did not extend to the

production of a thing or evidence though other means.

13. This case was instrumental in safeguarding the rights of the accused in

two ways. Firstly, it interpreted Article 20(3) to extend its protective umbrella

to statements made both in courts and before police officers. Secondly, it

extended the protection of Article 20(3) to both oral as well as written

testimonies.

14. The most important decision related to the admissibility of evidence

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obtained by employing scientific techniques and rights against self-

incrimination was given in the case of Selvi v. State of Karnataka(AIR 2010

SC 1974(SC)). In this case, the principal question before the court was the

admissibility of evidence obtained through scientific modes of investigation

including polygraphs, lie detectors and narco tests. The court while holding

such evidence to be inadmissible observed that the results of these tests were

different from material evidence. Since, under the influence of these tests, the

examinee is forced to impart some personal knowledge to the investigation

authorities, he is forced to be a witness against himself. Thus the court held

these tests and the evidence obtained through them as violative of Article 20(3)

of the Constitution, thereby going a long way to safeguard the rights of the

accused. The doctrine of excluding the fruits of a prisoners tree has been

incorporated.

An analysis of the above case-laws highlights that Article 20 safeguards

the rights of the accused during trial upto final judgment.

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FROM TRIAL TO FINAL JUDGMENT

By
Smt S. Rajani, M.A,M.L,
Addl. District Judge,-cum- Chairman,
Permanent Lok Adalat,
Krishna, Machilipatnam.

A trial is a process by which a court decides on the innocence or guilt of

an accused person. The procedure for trial is found in the Code of Criminal
Procedure and the Indian Evidence Act. But the entire Trial Process is governed
by the Principles laid down in the Constitution of India. The rules that ensure
the protection & roles of all Stake holders i.e. the victim, prosecution, accused,
defence and other witnesses, are laid down in the Code of Criminal Procedure
and Evidence Act.
As the Judge has complete control of a case as soon as it comes to court,
it is his duty to ensure that fair trial norms, which have been assured by the
constitution, are adhered to. Each person has a right to be dealt with fairly in a
criminal trial. A trial is primarily aimed at ascertaining truth has to be fair to
all the concerned which includes the accused, victims and society at large.
Denial of fair trial is nothing but causing injustice not only to the accused and
victim, but also to the society at large.
Since India is part of the international community of nations it has has
to accept international norms and legally bind documents such as The
Universal Declaration of Human Rights which were adopted by the United
Nations in 1948 and the International Covenant on Civil and Political Rights
which is a United Nations Treaty came into force on 23 - 3- 1976 which is
moniteered by the Human Rights Committee. India ratified the same in 1979
as such India is committed to uphold all the rights which the ICCPR
guarantees. The Universal Declaration of Human lays down the common
standard to be met by all nations. As per Article 11 (1) " every one charged with
a penal offence has the right to be presumed innocent until proved guilty."
The presumption of innocence is a cardinal principle of our Indian Legal
system also and it is a basic right of the accused. Judges need to bear in mind
 9

that suspicion, however strong it may be, can’t take the place of proof. So in
our Indian Jurisprudence, by reason of the presumption of innocence, the
burden of proof of the charge, is on the prosecution and the accused gets the
benefit of doubt. Strong piece of circumstantial evidence cannot establish guilt
unless each piece links to another and every link in the chain is proved.
We all know the legal maxim that “The justice must not only be done, but
be seen to be done”. That means the judge should conduct the proceedings in a
manner which excludes any legitimate doubt as to his/her impartiality. He
should not have any personal interest in the case and he should not be biased
against any party. If there is any slightest doubt of personal interest, the judge
must disclose the same to see that the matter is transferred to another court,
which would infuse confidence in the mind of the litigant public.
Some of the principles that are to be followed during trial to ensure fair
trial
I Right of accused to be presumed as innocent
All criminal trials based on the principle that the accused is innocent till
the guilt is proved. This presumption of innocence is a cardinal principle of our
criminal jurisprudence and is a basic right available to the accused. As per Sec
101 of Indian Evidence Act, the prosecution must prove all the ingredients of
the offence against the accused. The proof must be beyond reasonable doubt.
The long line of judicial pronouncements, recognizing this valuable right
of the accused, emphasized the following cardinal rules.
1. The burden of proof rests on the prosecution
2. The prosecution must establish the guilt of accused beyond all
reasonable doubts.
3. The benefit of doubt must be in favour of the accused.
4. High probability of grave suspicion is not enough to convict the
accused.
5. Strong pieces of circumstantial evidence can’t establish guilt of the
accused unless each piece links to another link in the chain is proved.
6. The circumstances should be of a conclusive nature.
 10

7. Extraneous factors such as public pressure, media reports, the

judge’s opinion or people opinion should not influence the judicial
verdict.
8. The decision of the court should be based on the facts and evidence
proved before it.

a particular circumstnace except where the law provides to do so.

II Right to have speedy trial

An important requirement of a fair trial is the trial without undue delay,
in other words speedy trial. Though speedy trail is not specifically mentioned
as a fundamental right in the Indian constitution, but is recognized under
Article 21 of the constitution, which is now regard as a sine qua-non of Article
21.
The provisions relating to investigation and trial proceedings in the Code
of Criminal Procedure also re-affirm that the requirement of prompt trail at all
stages of criminal proceedings including registration of FIR, investigation,
inquiry, trial, appeal, revision and re trial. Particularly during trial when the
examination of the witnesses commence, it must continue daily and till the
witness present has testified, there should not be any adjournment, unless the
court finds it necessary to adjourn the matter for the reasons recorded in
writing. So far as the trial of sexual offence against woman, it has to be
concluded with in 60 days.
In the case of Hussainara khatoon vs Home Secretary, State of Bihar
(1980), SCC 107, Honourable Supreme Court held that any accused who is
denied this right of speedy trial, is entitled to approach this court for the purpose
of enforcing such right and this court in discharge of its constitutional obligation,
has the power to give necessary directions to the State Governments and
appropriate authorities, for securing this right to the accused.
In the case of Common Cause a Registered Society through its
Director vs Union of India (1996) 4 SCC 33, the Supreme Court directed
 11

the release of the under-trials on bail, if the bail prosess continued to a certain
period and the accused were in prison for a certain period of time. And also
directed the acquittal or discharge of the accused, where trial had not began,
even after lapse of the whole or two thirds of the period i.e., imprisonment
prescribed for an offence. Economic offence moral turpitude offence and other
sexual offences against women and offences against State ete., are excluded
from the application of these guidelines.
Later, in the case of Rajiv Guptha vs State of Himachalapradesh 2000
(10) SCC 68, the Supreme Court clarified its order in the above said Common
Cause Case and excluded from its application those cases where the pendency
of criminal proceedings was wholly or partially attributable to dilatory tactics
adopted by the accused or on account of any other action by the accused which
resulted in prolonged trail.
But in the case of P.Ramachandra Rao vs State of Karnataka AIR
2002 SCC 1856, it was held that “it is not advisable, feasible or judicially
permissible to draw or prescribe any outer time limit for conclusion of all
criminal proceedings. It further directed that criminal courts should exercise
their powers provided under Sections 309 and 311 of the Code of Criminal
Procedure to effectuate the right to speedy trail.
Recently the Hon’ble Supreme Court issued certain directions regarding
adjournments in criminal cases particularly after commencement of trial and to
follow Section 309 CrPC without any deviation,not to adjourn the cases
unnecessarily
Thus the speedy trial is a fundamental right now. The Code of Criminal
Procedure safeguards this right of speedy trial through Section 309 CrPC and
necessary amendments are made in respect of trial of sexual offences against
women and children where trial should be completed within a period of two
months.So also Sec 35 of POCSO Act Prescribes 30 days time to record the
evidence of the child from the date of taking cognizance and to complete trial
one year time is provided.
III ******************
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III Right to have a public hearing in open court

It is well settled that in general, all cases brought before the courts,
whether Civil, Criminal or others, must be heard in an open court. It
guarantees that the public would be known as to how the justice is
administered and decisions are reached by the judicial system. Public can
review the legality of the proceedings. It affirms the independence, impartiality
and fairness of the courts thereby it increases the general trust of the
population in the judicial system. However, the right of the trial in open court
has certain exceptions. A judge at his discretion, may order that general public
or a particular individual can’t have access to the court at any stage of an
enquiry or trial.
Trial of certain offences such as Section 376, 376A, 376B or 376D of
Indian penal code and sexual offences against children and women and
offences under POCSO Act shall be conducted in Camera. Proceedings Under
Section 53 of Indian Penal Code which provides that the whole or part of any
proceedings may be heard in Camera, if the court thinks fit. Similarly
proceedings Under Section 14 of the Official Secrets Act may be conducted in
camera. But the sentencing process shall in any case take place in public.
Likewise proceedings under Hindu Marriage Act & Family Court Act are also
shall be conducted in camera if either party so desires; or if the Court thinks fit
to do so.
Sec 327 Cr P C Court to be open:
[(1)] 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, so far as the same can
conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit,
order at any stage of nay inquiry into, or trial of, any particular case, that the
public generally, or any particular person, shall not have access to, or be or
remain in, the room or building used by the Court.
[(2) Notwithstanding anything contained in sub-section (1), the inquiry
into and trial of rape or an offence under section 376, section 376A, section
376B, section 376C [section 376D or section 376E of the Indian Penal Code (45
of 1860)] shall be conducted in camera:
Provided that the presiding Judge may, if he thinks fit, or on an
application made by either of the parties, allow any particular person to have
access to, or be or remain in, the room or building used by the Court:
[Provided further that in camera trial shall be conducted as far as
practicable by a woman Judge or Magistrate.]
(3)Where any proceedings are held under sub-section (2), it shall not be
lawful for any person to print or publish any matter in relation to any such
proceedings, except with the previous permission of the Court:]
[Provided that the ban on printing or publication of trial proceedings in
relation to an offence of rape may be lifted, subject to maintaining
confidentiality of name and address of the parties.]
The exception for public trial require the Judge to apply his mind as to
 13

whether there is a fit care for excluding the public from the Trial. The Supreme
Court in Sakshi Vs Union of India issued the following directions:
1) The provisions of Sec.327(2) of Cr.P.C. shall, in addition to the offences
mentioned in sub-section, also apply in inquiry or trial of offences under
section 354 and 377 of the IPC.
2) In holding trial of cases of child sex abuse or rape:
(i) A screen or some such arrangments may be made when the vicitm or
witnesses do not see the body or faceof the accused.
(ii) The question put in cross examination on behalf of the accused, in so far as
they relate directly to the incident should be given in writing to the presiding
officer of the court who may put them to the victim or witnesses in a language
which is clear and is not embrassing.
(iii) The victim of the child abuse or rape while giving testimony in court should
be allowed sufficient breaks as and when required.
IV Right to have lawyer of his choice:-
As per Section 303 Cr.P.C. every accused should have an opportunity to
be defended by a pleader of his choice at the time of the proceedings and
should have sufficient opportunity with his legal adviser for the purpose of his
defence. In relation to the prosecution, the defence must have an equal
opportunity to prepare and present a case, and that the prosecution and
defence must have an equal position throughout the proceedings.
Sec.303 Cr.P.C reads as follows;
Right of person against whom proceedings are instituted to be defended:--
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.
V) Right to have free legal aid:-
As per Sec 304 CrPC, when the accused is not represented by an
advocate in trial before the court and when the court finds that the accused
does not have sufficient means to engage an advocate, the court shall assign a
pleader to defend the accused at the State’s expenses.
Sec 304 CrPC - Legal aid to accused at State expenses in certain cases.- (1)
Where, in a trial before the Court of Session, the accused is not represented by
a pleader, and where it appears to the Court that the accused has no sufficient
means to engage a pleader, the Court shall assign a pleader for his defence at
the expense of the State.
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Apart from Sec.304 Cr.P.C., Section 12 of Legal Services Authority Act

also provided free Legal Services to certain people including the accused who
are in prison Legal aid is currently viewed as a welfare measure rather
than as a non-derogable and enforceable fundamental right on the following
aspects:-
(1) No accused person who is unable to afford a lawyer goes unrepresented in
criminal proceedings.
(2) Certain minimum standard of a performance of the assigned lawyers must
be insisted
(3) Legal aid lawyers fees must to be paid by District Legal Services Authority.
(4) In a case where on a conviction at the time of imposing sentence, the
Magistrate or Sessions Judge is under obligation to inform the accused about
the availability of free legal services at the State expenses to prefer an appeal. If
free legal services are not provided to an accused who has no means to engage
an advocate, the trial itself would run the risk of being vitiated as contravening
Article-21 of the Constitution.
As per the settled legal position, when legal aid is provided, the accused can
not insist for engagement of advocate of his choice. Only when he engages his
counsel on his own, he will have choice of his counsel
VI Right to be provided with copies of all the documents relied upon by
the prosecution:-
Secs.207 and 208 of the Cr.P.C. mandate that in any criminal
proceedings instituted upon a police report, the Magistrate must freely furnish
the following copies to the accused.
1. Copy of police report.
2. Copy of FIR
3. All the statement of prosecution witnesses.
4. Any recorded confession
5. Any other documents
The object behind this is, to give adequate notice to the accused about
the material to be used against them so that he is not prejudiced/surprised
 15

during trial. It ensured a just and fair trail and to ensure the accused an
assessment whether there are real grounds for going forwards and to assist the
accused to argue that there is no case to answer.
VII Right of accused to be informed of the charges:-
Before framing charges against the accused, court shall hear the accused
about the accusation/charges to be made against him in writing. A judge may
add or alter the charges. When a charge is added, the court shall give
opportunity to this accused to re-examine the witnesses.
VIII Right of accused to be present at the time of recording evidence:-

As per Section 273 of Cr.P.C. evidence has to be taken in the

presence of accused. Section 273 reads as follows:

Sec 273.Evidence to be taken in the presence of accused:-Except as

otherwise expressly provided, all evidence taken in the course of the trial or
other proceeding shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of his pleader:
[Provided that where the evidence of a woman below the age of eighteen
years who is alleged to have been subjected to rape or any other sexual offence,
is to be recorded, the court may take appropriate measures to ensure that such
woman is not confronted by the accused while at the same time ensuring the
right of cross-examination of the accused.]
Explanation:-In this section, “accused” “includes a person in relation to
whom any proceeding under Chapter VIII has been commenced under this
Code.
When the introduction of Video Linking as per the ratio laid down in the
decision of “State of Maharashtra Vs. Pruful B Desai AIR 2003 SC 2053, the
Supreme Court held that the evidence recorded through Video conference in
the presence of the accused or his pleader fully needs the requirements of
Section 273 Cr.P.C. When the accused is declared as an absconder the court
can proceed with examination of witnesses in the absence of the accused as
per the procedure provided Under Sec.299 of Cr.P.C. So also when the defence
counsel representing the accused is present in the court and if there is no risk
of prejudice to the accused the court can record the evidence of accused, the
evidence of witnesses of prosecution in the absence of accused when his
personal appearance is dispensed with.
The accused must be given free assistance of an interpreter when he does
not know the language in which the proceedings are going on. So also the
same is applicable in case of victim or other witnesses of prosecution as well as
defence.
IX Guarantee against double Jeopardy:-

The principle of double jeopardy is safeguarded Under Order-20 (2) of the

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Constitution which prohibits prosecuting or punishing a person for the same

offence more than once. Section 300 Code of Criminal Procedure also states
that a person acquitted or convicted by a competent court may not be tried
again for this same offence. Sec.300 of Cr.P.C. reads as follows:
Sec 300 Cr P C, Person once convicted or acquitted not to be tried
for same offence:-
(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 the State Government, for any distinct offence for
which a separate charge might have been made against him at the 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 offenceconstituted 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 (10 of 1897) or of section 188 of this Code.
Explanation:-The dismissal of a complaint, or the discharge of the
accused, is not an acquittal for the purposes of this section.
This rule of autrefois acquit and autrefois convict is applicable to all

criminal trials. To ensure fair trial all the criminal courts have to follow the

above rule subjected to the above mentioned exceptions.

X Proecdure at the time of judgment to ensure fair trial

Sec 353 of CrPC mandates that the Judgement must be delivered in

open court and operative portion and substance of the Judgement must be
readout in the open court in the presence of the accused. Sec 353 and 354 of
CrPC together deal with the substantive and procedural requirements that a
 17

judge must follow in relation to, as to how a judgment is delivered, its language
and contents. It must be a reasoned judgement.
After pronouncement of judgment in the event of conviction the court
shoud hear the accused about quantum of punishment and other mitigating
circumstances which would be a part of fair trial.
Sec 363 of CrPC says about the right of acused to have a copy of
judgement in case of conviction, free of cost. The accused cannot effectively
exercise the right to appeal without a copy of his trial judgement in hand.
Apart from that he must be informed of his right to prefer an appeal through
free legal aid. If copy of the Judgement is not provided to the accused intime to
prefer an appeal, it would amount to violation of Article 21 of the constitution
of India.
At the time of furnishing copy of judgment, the court should inform
the accused about his right of appeal through free legal aid to be provided by
the District Legal Services Authority.

Entitlement of compensation by the victim as well as the accused

When the offence is resulted in loss or damage, or where it appears to

the court that the victim is entitled for compensation, the court can also
consider making a compensation order or refer the matter to legal Services
Authority for compensation under Victim Compensation Scheme or any other
law for the time being in force.
Now Section 357A was incorporated in CrPC for providing compensation to
the victim for rehabilitation, where the compensation awarded by the court is
not adequate,or where the case ends in acquittal or discharge and the victim
has to be rehabilitated or where the offender is not traced or identified, but the
victim is identified and no trial takes place. Court can also grant interm
compensation to the victim if circumstances so warrant.
So also when the accused is groundlessly arrested or false accusation is
made without reasonable cause (Sec 358 & 250 CrPC respectively), the
accused is also entitled for compensation. Awarding compensation to the victim
as well as to the accused is part of fair trial process

Conclusion:
The scheme of the Evidence Act and the Code of Criminal Procedure are
designed to creat a balance between all the parties including prosecution,
victim, accused and witnesses. Before concluding the article, it is necessary to
reiterate the legal principle i.e., "Justice must not only be done, but it must be
seen to be done". No justifiable doubts must arise on the impartiality of the
judge. He must be unbaised which must manifest on the face of the record
itself. If the above rights which are available to the accused as well as to the
 18

prosecution including the victim which are discussed supra, are followed
scrupulously, it would infuse confidence in the mind of the litigant public
about the fair trial.
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FROM TRIAL TO JUDGMENT

By
Sri K.Prabhakara Rao,
Prl. Senior Civil
Judge,
Gudivada.

INTRODUCTION:-
India has a highly developed criminal jurisprudence and prosecution
system and it is well supported by judicial precedents for judicial trials and our
penal laws are primarily governed by the Code of Criminal Procedure,1973, The
Indian Penal Code,1860 and Indian Evidence Act 1872. The basic purpose of
the criminal justice system in India among other things, is to ensure fair trial
without compromising the rights of the accused.
The word 'trial' is not defined anywhere in the Criminal Procedure Code.
In common parlance, a trial begins after the framing of charge and ends in
either conviction or acquittal. According to Stroud's Judicial Dictionary, Trial
means “the conclusion by a competent tribunal, of questions in issue in legal
proceedings, whether civil or criminal”.

Trial primarily aimed at ascertaining truth which has to be fair to all

concerned which includes the accused, the victims and society at large. Denial
of a fair trial is as much injustice to the accused as it is to the victim and
society. Right to get a fair trial is a basic fundamental/human right under our
Constitution and also as per international treaties and conventions . The right
to defend himself as a part of his humanright also fundamental right as
enshrined under Article 21 of the Constitution of India and even recognized by
the Parliament in terms of sub-section (2) of Section 243 of the Code of
Criminal Procedure,1973.
 20

"Fair trial" includes fair and proper opportunities allowed by law to prove
innocence. This issue now stands concluded by decision of Ho’nble Apex Court

in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258].

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. 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.
DIFFERENT TYPES OF TRAILS
1. Trial before a Court of Session: Chapter XVIII of Cr.P.C., Sections 225 to
227.
2. Trial of Warrant Cases: Sections 238 to 243 provides the procedure for trial
of cases instituted on police report. Sections 244 to 247 deals with procedure
to be followed for trial of cases instituted otherwise than on police report.
Sections 248 to 250 of the code are applicable to both the categories of cases.
3. Trial of Summons cases by Magistrates:
4. Summary Trial: Sections 260 to 265 and 363(3) of the Code deals with
Summary trial.
SETTLED PRINCIPLES IN CRIMINAL JUSTICE SYSTEM
1. An accused to be tried before a competent , independent and impartial
tribunal/court with presumption that accused is innocent and every accused
should be provided the opportunity to be defended by a pleader and free legal
aid to be provided in need (Articles 21 and 39A ) especially Under Trial
Prisoner.
2. The burden of proof tests on the prosecution and prosecution must
establish guilt beyond reasonable doubt.
 21

3. High probability is not enough to convict – where there are several

possible accounts, the account supporting the accused should be upheld.
4. Accused has a right to remain silent and 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.
5. 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 or financial interest.
6. A significant legal maxim is that ‘’ Justice must not only be done, but
be seen to be done.’’
7. If a criminal court is to be an effective instrument in dispensing justice,
the presiding officer must not cease to be a spectator and a mere recording
machine and as per section 327 of the Code, trial judges to invariably hold the
trial of rape cases in camera, rather than in open court.
8. As seen from section 309 of Cr.P.C, it is known that the Code safeguards
the right to a speedy trial and accused should be furnished the copies of Police
report and other documents in a criminal case. See. Section 207 of Cr.P.C.
9. 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.
10. 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 and 246 of the Code afford the accused the right to cross-examine the
prosecution witnesses.
11. The object of section 311 of the Code is to discover the truth and deliver
a just decision.
12. 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.
13. The principle of double jeopardy is a safeguard provided under Article 20
(2) of the Constitution which prohibits prosecution or punishing a person for
 22

the same offence more than once. Section 300 of the Code puts forward three
exceptions to the double jeopardy prohibition.
14. (a) 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 and judgments must be
reasoned basing on legal evidence, substantive by law and logic without having
to resort to speculations or inferences (section 354(1)).
(b) When accused is sentenced to imprisonment, free of costs, copy of
judgment shall be furnished to him. The Hon'ble Apex Court observed that
crime and punishment are two sides of same coin. Punishment must fit to the
crime. The notion of “Just Deserts” or a sentence proportionate to the
offender's culpability was the principle which became applicable to criminal
jurisprudence and Imposition of sentence must commensurate with gravity of
offence.”
15. Sections 357, 357A of the Code and Section 5 of Probation of Offenders
Act, 1958 empowers the court to provide compensation to the victims of crime.
The courts should exercise these powers liberally and award adequate
compensation to the victim, particularly when the accused is released on
admonition, probation or when the parties enter into a compromise.
CONCLUSION:-
Indian law is in consonance with the prevailing international legal
standards on the right to be tried by a competent and independent and
impartial court. All persons must be equal before the court and Every one shall
be entitled to a fair trial by an impartial procedure established by law without
undue delay.
 23

FROM TRIAL TO FINAL JUDGMENT

By
Smt S.V.P. Suryachandra Kala,
VI-Addl. Senior Civil Judge,
Vijayawada.

The purpose of investigation as well as trial is to find out the truth and to

punish the guilty. So for conducting trial the court has to keep in mind that

the trial should be fair. Mere accusation of accused cannot be held as guilty,

unless the trial has been conducted in such a manner which enables the court

to find out the truth by following the principles of natural justice, as well as the

procedure contemplated under criminal procedure code, it cannot be

considered as a fair trial. So the criminal law will be set into motion by giving a

report u/s.154 of Cr.P.C. and any person has knowledge regarding alleged

commission of cognizable offence he can give an information either orally or in

writing to the Officer-Incharge of Police Station which is called as First

Information Report which is the very basis for investigation basing on which

the Criminal Law will be set into motion and the Police Officer on due

investigation of cognizable offence when he has reason to believe the accused

said to have committed an offence, he will file charge sheet u/s.173 of Cr.P.C.

So it is fundamental cannon of Criminal Law and procedure is that the accused

should know the nature of the accusation made against him which may enable

him to defend. So framing of charge as contemplated u/ss.211 to 224 of

Cr.P.C. is the basic procedure for commencement of a trial, without framing

charge it can not be considered the trial procedure will be commenced. So it is

 24

the bounden duty of the court to frame a charge. The defective framing of

charge will cause miscarriage of justice and vitiate the trial. So the great care

has to be taken while framing the charges. So a charge can be considered a

specific accusation made against a person it can be the subject matter of a

trial. The object of the framing of charge is to ensure that the accused has

sufficient notice of exect nature of accusation so as to defend himself and to

enable the court to keep in view of the real point to be determined, to prove the

guilt of the accused by the prosecution beyond all reasonable doubt. So the

evidence can be confined to the relevant matter. So framing of charge is the

pre-requisite before commencement of trial. As per Sec.211 of Cr.P.C. every

charge shall contain the offence with which the accused is charged by its

specific name, to give a notice to the accused, the matter with which he is

charged, it should specify the law and section of law. The charge shall be

written in the language of the court. Section 272 of Cr.P.C. speaks that the

charge shall contain the details regarding the time and place of alleged offence

as well as the person against whom, or the thing in respect of which it was

reasonably said to have committed.

The charge should also contain the manner of committing an offence by

virtue of Sec.213 Cr.P.C. and the words used in the charge should be used in

the sense attached to them respectively by law under which the offence is

punishable. While framing charges errors should be avoided as it may cause in

failure of the justice. By virtue of Sec.216 Cr.P.C. the court may alter or add

any charge before judgment is pronounced, however, such alteration or

 25

addition shall be read and explained to the accused, if such alteration cause

prejudice to the accused, the court may either direct a new trial or adjourn the

trial for such period as may be necessary. So when a charge has been altered

u/s.216 Cr.P.C. or added after commencement of the trial, the Prosecutor and

the accused shall be allowed u/s.217 Cr.P.C. to recall or resummon and

examine any witness with reference to such alteration or addition. So by virtue

of Sec.218 Cr.P.C. for every distinct offence of which any person is accused,

there shall be a separate charge and every such charge shall be tried

separately. However, by virtue of the proviso if an accused person by an

application in writing so desires if the court is of the opinion that such person

is not likely to be prejudiced, then the Magistrate may try together or of any

number of charges framed against such person. By virtue of Sec.219 Cr.P.C.

three offences of same kind within one year may be charged together. So

offences when they are punishable with the same amount of punishment they

can be considered of the same kind. However, in order to invoke Sec.219

Cr.P.C. it has to be considered that if the accused said to have committed more

offences than one of the same kind within the span of 12 months from the first

to last of such offence, then only said provision can be invoked. By virtue of

Sec.220 Cr.P.C. if any one series of acts so connected together as to form the

same transaction more offences than one are committed by the same person

may be charged with and tried at one trial for every such offence. If it is

doubtful what offence has been committed, the accused may be charged with

having committed all or any of such offences and any number of such charges
 26

may be tried at once or he may be charged with the alternative by virtue of

Sec.221 Cr.P.C. So by virtue of Sec.222 Cr.P.C. when a person was charged

with an offence and facts proved into minor offence the accused person may be

convicted of the minor offence though he was not charged with it. U/s.223

Cr.P.C. the persons accused of the same offence committed in the course of

same transaction as well as who abetted or attempted to commit such offences

when the persons accused of different offences committed in the course of

same transaction etc. may be charged jointly.

Fair Trial

Ensuring fair trial to the accused repose confidence in the criminal trial

procedure. In the battle against crime and delinquency, state and its officers

cannot on any account forsake the decency of state behaviour and have

recourse to extra-legal methods for the sake of detention of crimes and even

criminals. State should not insist on good behaviour from others when their

own behaviour is blameworthy, unjust and illegal. Thus, in a democratic

society even the rights of the accused are sacrosanct, though accused of an

offence, he does not become a non-person. In the leading case of Kishore Singh

Ravinder Dev v. State of Rajasthan, it was said that the laws of India i.e.

Constitutional, Evidentiary and procedural have made elaborate provisions for

safeguarding the rights of accused with the view to protect his (accused) dignity

as a human being and giving him benefits of a just, fair and impartial trail.
 27

Articles 10 of the UDHR declares that everyone entitle in full equality to a fair

and public hearing by an independent and impartial tribunal, in the

determination of his legal rights and obligation and of any criminal charges

against him. Articles 14(1) of the international covenants on civil and political

rights provide that all people shall be equal before the court and tribunals.

There are various facets to the right to a fair trial. The Hon’ble Supreme

Court in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat has

held that, “the principle of fair trial now informs and energizes many areas of

the law. It is reflected in numerous rules and practices.... fair trial obviously

would mean a trial before an impartial Judge, a fair prosecutor and

atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice

for or against the accused, the witnesses, or the cause which is being tried is

eliminated.” The concept of fair trial entails familiar triangulation of interests of

the accused, the victim and the society and it is the community that acts

through the State and prosecuting agencies. Most of these safeguards to

ensure a fair trial are contained under the Code of Criminal Procedure, 1973

which contains and defines the procedure which has to be followed in criminal

cases.

The concept of a fair trial cannot be limited to a statute and the Courts

have gradually expanded it to include various aspects of criminal procedure.

For instance the Supreme Court has also in the past transferred cases from

one state to another when it is reasonably anticipated that the accused will not
 28

be afforded a fair trial or the court process may be interfered with by

extraneous considerations.

Right To Free Legal Aid

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 14 (3) (d) of the International Covenant on Civil and Political

Rights entitles the person facing the criminal charge either to defend himself in

person or through the assistance of a counsel of his choice and if he does not

have legal assistance, to be informed of his right and provide him the legal

assistance without payment in case he does not have sufficient means to pay

for it.

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.

 29

In Maneka Gandhi v. Union of India, it has been held by a Constitution

Bench of this Court that the procedure for depriving a person of his life or

liberty should be fair, reasonable and just. “We are of the opinion that it is not

fair or just that a criminal case should be decided against an accused in the

absence of a counsel. It is only a lawyer who is conversant with law who can

properly defend an accused in a criminal case. Hence, in our opinion, if a

criminal case (whether a trial or appeal/revision) is decided against an accused

in the absence of a counsel, there will be violation of Article 21 of the

Constitution.

Section 304 in The Code Of Criminal Procedure, 1973

Legal aid to accused at State expense in certain cases-

(1) Where, in a trial before the 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.

(2) The High Court may, with the previous approval of the State Government,

make rules providing for-

(a) the mode of selecting pleaders for defence under sub- section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and generally, for

carrying out the purposes of sub- section (1).

 30

(3) The State Government may, by notification, direct that, as from such date

as may be specified in the notification, the provisions of sub- sections (1) and

(2) shall apply in relation to any class of trials before other Courts in the State

as they apply in relation to trials before Courts of Session.

The Cr.P.C. provides that in all criminal prosecutions, the accused has a

right to have the assistance of a counsel and the Cr.P.C. also requires the court

in all criminal cases, where the accused is unable to engage counsel, to appoint

a counsel for him at the expenses of the State. Howsoever guilty the appellant

upon the inquiry might have been, he is until convicted, presumed to be

innocent. It was the duty of the Court, having these cases in charge, to see that

he is denied no necessary incident of a fair trial. It is equally true that the

absence of fair and proper trial would be violation of fundamental principles of

judicial procedure on account of breach of mandatory provisions of Section 304

of Cr.P.C.

The Supreme Court in Sukh Das v. State of Arunachal Pradesh has held that a

conviction of the accused in a trial in which he was not provided legal aid

would be set aside as being violative of Article 21 of the Constitution. But

where the accused pleads guilty without the assistance of a counsel under the

legal aid scheme and was convicted by the Magistrate it was held that the trial

and conviction was not vitiated because the Magistrate was fully satisfied that

the plea was voluntary, true and genuine.

 31

In Ram Awadh v. State of U.P, the Allahabad High Court held:

“The requirement of providing counsel to an accused at the State expense

is not an empty formality which may be not by merely appointing a counsel

whatever his calibre may be. When the law enjoins appointing a counsel to

defend an accused, it means an effective counsel, a counsel in real sense who

can safeguard the interest of the accused in best possible manner which is

permissible under law. An accused facing charge of murder may be sentenced

to death or imprisonment for life and consequently his case should be handled

by a competent person and not by a novice or one who has no professional

expertise. A duty is cast upon the Judges before whom such indigent accused

are facing trial for serious offence and who are not able to engage a counsel, to

appoint competent persons for their defence. It is needless to emphasis that a

Judge is not a prosecutor and his duty is to discern the truth so that he is able

to arrive at a correct conclusion. A defence lawyer plays an important role in

bringing out the truth before the Court by cross-examining the witnesses and

placing relevant materials or evidence. The absence of proper cross-

examination may at times result in miscarriage of justice and the Court has to

guard against such an eventuality. ”

Where in a criminal appeal the council appointed by the Court for the

accused does not turn up at the time of hearing and the appeal is disposed of

without hearing him, the case rightly deserved to be remanded for fresh

hearing of the appeal.

 32

Where in a sessions trial the accused made a request for being provided

the services of a particular lawyer named by him at the State expenses as

envisaged under Section 304 CrPC but the State provided another lawyer to

defend him, the High Court of Madhya Pradesh held that it is not denied that

an accused has the right to be defended by the lawyer of choice but when it

comes to the appointment of lawyer for the defence of accused at State

expense, it would be the choice of the Court and not of the accused to provide a

lawyer for defending him. The Court is under no obligation to provide to the

accused, the lawyer of his choice if he wants to be defended at the expenses of

the State Government.

Case: Ramchandra Nivrutti Mulak Vs. The State of Maharashtra

This appeal was based on the fact that the appellant was not represented

before the Sessions Court in his original trial under Section 302 of the Indian

Penal Code (Punishment for murder) and other offences. A lawyer had been

appointed to represent the appellant but had made an application to withdraw

from the case. Despite rejection of this application by the Sessions Judge, the

lawyer failed to appear for the trial. The trial proceeded without the appellant

being assisted by an advocate or the court informing the appellant that he

could avail of the services of a lawyer under the free legal aid scheme. As per

their judgement dated 26 June 2008, the learned judges equated the above

circumstances to instances where the accused has no representation.

The key issue identified during the appeal was: “If the lawyer appearing

for the accused files application for withdrawal, which is rejected by the court,
 33

and the lawyer fails to turn up for trial, is a duty cast on the trial court to ask

the accused to make alternative arrangement for appearance by lawyer or

appoint a lawyer for the accused under legal aid scheme?"

Judgment

Supreme court in Suk Das and another Vs. Union Territory of Arunachal

Pradesh, and Khatri and Others Vs. State of Bihar and Others, held that the

conviction of an appellant not represented by a lawyer was clearly in violation

of the fundamental rights of the appellant under Article 21 of the Constitution.

The trial was accordingly held to be invalid and the conviction and sentence

imposed against the appellant set aside.

Once a lawyer applies to withdraw and chooses not to appear, there is

burden cast on the courts to inform the accused either to engage another

lawyer or to inform him that he is entitled to free legal aid if he so desires… The

trial, therefore in the instant case ought not to have proceeded with in the

absence of the accused being informed of his right to be represented by lawyer.

The Magistrate or the Sessions Judge before whom an accused appears

must be held to be under an obligation to inform the accused that if he is

unable to engage the service of a lawyer on account of poverty or indigence, he

is entitled to obtain free legal services at the cost of the State.

A right to a fair trial includes the right for legal assistance. This is part of

the right to life enshrined under Article 21 of the Constitution of India. A new

trial was ordered and the learned judges reiterated the burden on the courts
 34

and the State to provide free legal aid. In doing so, they felt it would be

appropriate for the State Government to reconsider rules for grant of legal aid

and fix proper remuneration for advocates under the legal aid scheme.

Instructions were given to forward a copy of the judgement dated 26 June 2008

to the Chief Secretary, State of Maharashtra for necessary compliance and to

the Registrar General to place the matter before the learned Chief Justice for

appropriate directions.

Section 304 of the Code of Criminal Procedure, is a provision providing

for legal aid to the accused at State cost in certain cases. The High Court of

Judicature at Bombay made certain rules under Section 304 regarding legal

aid for accused without representation before Sessions Courts. These rules

came into effect from October 1982 and cast a duty on the Presiding Officer to

explain to every accused person without representation the provisions of the

rules of Legal Aid as soon as the accused is produced before the Presiding

Officer for the first time. If the accused confirms their income does not exceed

Rs.5,000/- per annum, they shall be asked if they desire to submit an

application for Legal Aid.

"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
 35

system of India. The beauty of the principles enshrined lies in the fact that

much matter is decocted into small words. The thrust is imperative to means

(criminal procedures) which must be trustworthy in order to have just ends.

The Constitution of India lays down a social policy concerning equal

justice and free legal aid "by suitable legislation or schemes or in any other

way, to ensure that opportunities securing justice are not denied to any citizen

by reason of economic or other disabilities." This social policy aims at:

"Indigence should never be a ground for denying fair trial or equal justice

particular attention should be paid to appoint competent advocates, equal to

handling complex cases, not patronising gestures to raw entrants at the Bar.

Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the

pleader for the defence of the accused at the expense of the state provided he is

unrepresented and the court is satisfied that he has no sufficient means to

engage a pleader. The selection of such pleader, the facilities to be given to him

by the court and his remuneration are to be governed by the rules that may be

framed by the High Court in this regard with previous approval of the State

Government. This facility also extends to any class of criminal trials before

other courts as indicated earlier to try criminal cases in the State as it applies

in relation to trials before Courts of Sessions.

So there are various modes of trials. It can be classified as (i) the trial of

warrant cases instituted upon a police report, (ii)as well as trial of warrant

cases instituted otherwise than upon a police report. So the trial procedure is

contemplated before the Metropolitan Magistrate or Judicial Magistrate of I

 36

Class and also two more classes of trials are there such as trial of summons

cases and summary trials. A warrant case is defined u/s.2(X) of Code of

Criminal Procedure which is defined as that “a case relating to an offence

punishable with death, imprisonment for life or imprisonment for a term

exceeding two years.” Sec.2(W) defines summons case which means “a case

relating to an offence and not being a warrant case.” So basing upon the

sentence prescribed by the IPC or any other law, the Magistrate has to decide

whether a case has to be tried as a warrant case or summons case. However,

the term summary trial was not defined under the code.

Chapter XIX, Section 238 to 243 deal with the procedure, in trial of

warrant cases instituted upon a police report. Under Sec.238 Cr.P.C.“when in

any warrant case instituted upon a Police Report, when the accused appears or

is brought before a Magistrate at the commencement of trial, the Magistrate

shall satisfy that the accused has complied with provisions of Sec.207 Cr.P.C.

which speaks of supplying of copies of police report and other documents to

the accused. So the Magistrate shall satisfy regarding furnishing copies to the

accused such as the police report, the copy of FIR, the Statements recorded

u/s.161(3) Cr.P.C. the Confessional Statements if any u/s.164 Cr.P.C. and any

other documents or extract forwarded to the Magistrate u/s.173(5) of Cr.P.C.

So after furnishing the copies, upon considering the police report as well as

the documents sent u/s.173 Cr.P.C. and after making such examination of the

accused if the Magistrate thinks necessary and after giving the prosecution and

the accused an opportunity of being heard the Magistrate considers the charge
 37

against the accused to be groundless, he shall discharge the accused by

recording the reasons u/s.239 Cr.P.C. By virtue of Sec.240 Cr.P.C. if the

Magistrate is of the opinion that there is ground for presuming that the

accused has committed an offence triable under this Chapter if the Magistrate

is competent to try, he shall frame a charge in writing against the accused,

however said charge shall be read over and explained to the accused. If the

accused did not pled or claimed to be tried, or he refused to plead guilty, the

Magistrate shall fix a date for examination of witnesses u/s.242 Cr.P.C. by

issuing summons to any of the witnesses to procuring their attendance to

produce documents or to give evidence and on the date so fixed, the Magistrate

shall proceed to take of such evidence as may be produced in support of the

prosecution case. If the accused pleads guilty u/s.241 Cr.P.C. the Magistrate

by recording the plea, in his discretion convict him thereon. So the trial

commences, when the accused had refused to plead guilty.

By virtue of Sec.243 Cr.P.C. the accused can be called upon to enter

upon his defence and produce his evidence and if he puts any written

statement the same shall be filed with the record. At the request of the

accused, the Magistrate shall issue any process for compelling the attendance

of any witness for production of any document or thing at the desire of the

accused in writing. So such was the procedure contemplated for trial of

warrant cases by a Magistrate.

There is a procedure contemplated u/s.244 CR.P.C. with respect to the

cases “instituted otherwise than on police report.” When an accused appears

 38

or is brought before a Magistrate, the Magistrate shall proceed to hear the

prosecution and take all such evidence as may be produced in support of the

prosecution and on application of prosecution, the Magistrate may issue

summons to a witness directing him to attend or to produce any document or

thing. If upon taking of evidence u/s.244 Cr.P.C. if the Magistrate considers

that no case against accused has been made out, if unrebutted would warrant

his conviction, by recording the reasons the accused shall be discharged

u/s.245 Cr.P.C. However, even at previous stage also the Magistrate can

discharge by recording the reasons if he considers the charge to be groundless.

By virtue of Sec.246 Cr.P.C. it lays down the procedure where the accused is

not discharged. If the Magistrate is of the opinion that there is a ground for

presuming, the accused has committed an offence of which such Magistrate is

competent to try, in his opinion the accused could be adequately punished by

him, he shall frame in writing a charge against the accused and charge should

be readover and explained to the accused by asking him whether he pleads

guilty or he has any defence to make. On pleading guilty by the accused the

Magistrate by recording the plea of guilty may in his discretion convict him

thereon u/s.246(3) Cr.P.C. If the accused refuses to plead or claims, to be

tried, he shall be required to state at the commencement of next hearing of the

case, or if the Magistrate for reasons to be recorded in writing so thinks fit,

forthwith whether he wishes to cross examine any of the witness of the

prosecution, the witness named by the accused shall be recalled and after

cross examination and reexamination if any, they shall be discharged. So the

 39

evidence has to be taken for the defence u/s.247 Cr.P.C.by calling upon the

accused to enter upon his defence and produce his evidence. By virtue of

Sec.248 Cr.P.C. in any case under this Chapter (XIX) in which a charge has

been framed, the Magistrate finds the accused is not guilty by recording

reasons shall pass an Order of acquittal u/s.248(1) Cr.P.C. If the Magistrate

finds the accused guilty, he shall after hearing the accused on the question of

sentence pass sentence upon him according to law u/s.248(2) Cr.P.C. it does

not proceed in accordance with provision of section 325 or sec.360 Cr.P.C. So

at the conclusion of the trial if the accused is found guilty by recording reasons

he shall be convicted after hearing on the quantum of sentence if the

provisions of Sec.325 or Sec.360 are not applicable, to release on Probation of

Offenders Act.

Sec.249 Cr.P.C. is an important provision. It empowers a Magistrate to

discharge the accused before framing a charge if the complainant is absent

when the proceedings have been instituted upon complaint. However in such

cases, the offence involved may be an offence which can be lawfully

compounded or it should not be a cognizable offence, If the offence involved is

not a compoundable offence or if the offence is a cognizable offence, the

Magistrate is not competent to invoke Sec.249 Cr.P.C. and discharge the

accused even before charge is framed. After the charge is framed the

Magistrate is not competent to invoke the provisions of Sec.249 Cr.P.C. After

the charge is framed even the complainant who lodged the complaint before the

court, becomes a mere witness for the prosecution. The Magistrate shall
 40

procure attendance of the witnesses and record further evidence from them

after the charge is framed.

Sec.250 Cr.P.C. relates to compensation for accusation, without

reasonable cause and it applies to warrant cases instituted upon police reports

as well as to cases instituted otherwise than on police reports. At the time of

discharge or acquitting the accused if the Magistrate is of the opinion that

there were no reasonable grounds for making the accusation against the

accused he may call upon the complainant or the person who gave the

information to the police to show cause, why he should not pay compensation

to the accused. After serving the show cause notice and after hearing the

complainant or informant if the Magistrate is satisfied that there was no

reasonable; ground for making the accusation for the reasons to be recorded by

him he can order payment of compensation by the complainant or informant to

the accused. It is necessary to note that the compensation amount directed to

be paid by the complainant or informant shall not exceed the amount of fine

which the Magistrate is empowered to impose. Public Officers are also not

exempted from liability to pay the compensation on frivolous and vexatious

complaints. A Master who lodges a complaint on behalf of his servant or a

servant who acts as mere mouthpiece of a Master can not be ordered to pay

compensation. A guardian/a next friend of the minor complainant can not be

ordered to pay compensation to the accused. The limit of the compensation

amount that can be awarded is in respect of each accused and not aggregated

amount of compensation directed to be paid to more than one accused in a

 41

case. S.250(6) Cr.P.C. gives a right of appeal to the complainant or informant

who was ordered to pay compensation amount. The compensation amount

need not be paid before appeal is disposed off. It is also necessary to point out

that S.250 Cr.P.C. applies not only to warrant cases but also summons cases

as laid down clearly in S.250(8) Cr.P.C. In default of making payment of

compensation, the complainant or the person ordered to pay such

compensation shall undergo simple imprisonment for a period of not exceeding

30 days.

Chapter XX deals with summons cases triable by the Magistrate. It

makes no difference between cases instituted upon a police report and cases

instituted otherwise than upon a police report. After taking cognizance of the

offence and after appearance of the accused before the court and after

furnishing copies of documents as required u/s.207 Cr.P.C. the Magistrate as

required u/s.251 Cr.P.C. shall bring particulars of the offence of which the

accused is charged to the notice of the accused. There upon he shall be asked

whether he pleads guilty or not. It is not necessary to frame a formal charge

in writing in summons case. If the charge is not framed in writing while

examining the accused u/s.251 Cr.P.C. it must be brought to the notice of the

accused the section of law under which the accused committed the offence.

Otherwise the accused may be under an impression that he may be tried for a

different offence. To avoid such an ambiguity it is always safe to frame charge

in writing even in summons case. If such charge is not framed in writing

specific provision shall be brought to the notice of the accused while he is

 42

examined u/s.251 Cr.P.C. Then the other provisions regarding convicting the

accused when he does not plead guilty, is the same as the procedure

prescribed for trial of warrant cases instituted upon a police report.

In trial of summons cases new provision is inserted in Cr.P.C. 1973. The

said provision is S.253 Cr.P.C. i.e. conviction on plea of guilty in the absence

of accused in petty cases. S.206 Cr.P.C. introduced a new provision for the

first time. In petty cases if the Magistrate wants to dispose off the case

summarily, he can issue special summons to the accused fixing the amount of

fine which the Magistrate wants to impose and without appearing before the

court if the accused desires to plead guilty he may plead guilty in writing and

transmit that information by post or by messenger to the Magistrate along with

the fine amount specified in the summons. There is a limit regarding the fine

to be imposed in the summons issued u/s.206 Cr.P.C. The fine amount shall

not exceed one thousand rupees by virtue of Act 45/1978 w.e.f. 18.12.1978.

The provision in S.206 is also extended to the trial of summons cases by the

Magistrates. The said provision is S.253 Cr.P.C.

Chapter-XXI deals with summary trials. Any Chief Judicial Magistrate,

any Metropolitan Magistrate and any Magistrate of the Ist Class specially

empowered by the Hon’ble High Court may try in a summary way any of the

offences mentioned in S.260 Cr.P.C. The procedure to be followed in a

summary trial is not much different from the procedure to be followed in a

summons case. However, it is not necessary for Magistrate to record elaborate

evidence. He can give brief reasons for his conclusion when the accused pleads
 43

not guilty to the offences of which he was accused Trivial offences alone are to

be tried in summary manner. S.262(2) Cr.P.C. imposes a limit regarding the

sentence to be imposed in a summary trial. No sentence of imprisonment for a

term exceeding three months shall be passed in a case of any conviction under

a summary trial. S.263 Cr.P.C. prescribes the particulars to be noted by the

Magistrate in every case tried summarily. It is commonly known as

S.T.C.Register. It is necessary to enter that the plea of the accused, his

examination, finding the sentence or final order in S.T.C. register by the

Magistrate in his own hand writing. He can not delegate that work to any of

his subordinates.

TRIAL BEFORE COURT OF SESSION:

As per Sec.9 of Criminal Procedure Code the State Government shall

establish a court of Session for every Sessions Division which shall be presided

over by a Judge to be appointed by the Hon’ble High court and Hon’ble High

Court may also appoint Additional Sessions Judge and Asst.Sessions Judge to

exercise the jurisdiction in a court of Session. The Asst. Sessions Court can be

established in a particular Sub Division and the presiding Judge shall exercise

of powers as entrusted by the Sessions Judge and the Asst.Sessions Judge is

sub ordinate to a Sessions Judge in whose court he exercise jurisdiction. The

court of Sessions can not directly take cognizance of an offence and there is a

bar to the Sessions Court to take cognizance of any case except certain cases

which arises under special laws, however by virtue of Sec.199 Cr.P.C. which is

an exception to said bar, under which the Sessions Court can take cognizance
 44

of offence. During trial or enquiry if it is of the opinion that some more persons

are yet to be directed to take trial as provided u/s.319 Cr.P.C. for adding

additional accused u/s.319 Cr.P.C. the court can take cognizance against an

additional accused and u/s.199(5) no court of Sessions shall take cognizance

of an offence. Under Sub-Section 2 unless the complaint is made within six

months from the date of which the offence is alleged to have committed. So by

virtue of Sec.199(2) when any offence falling under Chapter 21 of IPC is alleged

to have been committed against any person who at the time of such

commission with the President of India, the Vice President of India, the

Governor of a State, the Administrator of an Union Territory or a Minister of

the Union or of a State or of an Union Territory or any other Public Servant

employed in connection with the affairs of Union or of a State, in respect of his

conduct in the discharge of with public functions, a court of Sessions may take

cognizance of such offence without the case being committed to it upon a

complaint in writing made by the Public Prosecutor. So u/s.209 Cr.P.C. when

an accused appears or is brought before the Magistrate and it appears to the

Magistrate that the offence is triable exclusively by the court of Session, he

shall commit u/s.209 Cr.P.C. by furnishing copies u/s.207 Cr.P.C. and 208

Cr.P.C. the case to the court of Session subject to the provisions relating to the

bail and remand the accused to the custody only such commitment has been

made.

Chapter 18 of the Code of Cr.P.C. deals with the trial before the court of

Session and rule 90 of Criminal Rules of Practice clearly directs a Sessions

 45

Judge to give preference or priority to the Sessions work than the Civil work

and the Sessions work should never be interrupted.

Sec.225 of Cr.P.C. speaks that “in every trial before court of Session the

prosecution shall be conducted by a Public Prosecutor by opening a case

u/s.226 Cr.P.C. When the accused appears or is brought before the court of

Sessions in pursuance of committal of the case u/s.209 Cr.P.C. the Prosecutor

shall open the case by describing the charge brought against the accused and

by stating what evidence he proposes to prove the guilt of the accused. If upon

consideration of the record of the case, as well as the documents submitted

there with, after hearing submissions of the accused and the prosecution if the

Judge considers that there is no sufficient ground for proceeding against the

accused, he shall discharge the accused by recording the reasons for doing so.

So said discharge can be made only after considering averments in the charge

sheet and the relevant case law. While framing the charge trial court need not

Marshal materials on record. Prima facie consideration is sufficient and

Hon’ble High Courts will not interfere ordinarily with the Order of trial court of

framing charge. The court may discharge the accused if two views are possible

one giving raise to suggest that view it to suspicion only as distinguished from

grave suspicion. By virtue of Sec.301(2) of Cr.P.C. any private persons if

instructs a pleader to prosecute any person in any court the Public Prosecutor

or Addl.Public Prosecutor Incharge of the case shall conduct the prosecution

and the Private Pleader so instructed shall act under the directions of Public

Prosecutor or Addl.Public Prosecutor with the permission of the court.

 46

On hearing the accused and the prosecution if the Judge is of the

opinion that there is a ground for presuming that the accused has committed

an offence, the court shall frame a charge if it is of the opinion that there is a

ground for presuming that the accused has committed an offence which is

exclusively triable by the court of Sessions it shall frame a charge in writing

against the accused. If it is not exclusively triable by the court of Sessions, by

order, transfer the case, for trial, to the Chief Judicial Magistrate or any other

Judicial Magistrate of I Class by giving direction to the accused to appear

before such Magistrate on such date and direct the respective Chief Judicial

Magistrate or Judicial Magistrate of I Class to try the offence in accordance

with the procedure for trial of Warrant Cases instituted on a police report.

When a Sessions Court frames a charge in writing u/s.228(1) (b) Cr.P.C. the

charge shall be readover and explained to the accused and it shall be asked

whether he pleads guilty of the offence charged or claimed to be tried as per

Sec.248(2) Cr.P.C.

While framing a charge, court is not expected to go deep into the

probative value of the materials on record. Reasons to be recorded in case of

discharge of an accused, but not in case of framing a charge.

If the accused pleads guilty, the Sessions Judge or Asst.Sessions Judge

or Addl.Sessions Judge as the case may be, by recording the plea and may in

his discretion convict him u/s.229 Cr.P.C. If the accused refuses to plead

guilty, or claims to be tried, if he is not convicted u/s.229 Cr.P.C. the Judge

shall fix a date for examination of witness and may on the application of
 47

prosecution issue any process for compelling the attendance of any witness or

production of any document or thing u/s.230 of Cr.P.C.

So the date will be given for recording prosecution evidence which

usually be called fixing of the schedule and on the date fixed the court shall

record the evidence of prosecution witnesses incessantly or continuously. The

court shall take the evidence of the witness in the presence of accused. By

virtue of Sec.272 and 273 Cr.P.C. which speaks of language and mode of

taking and recording evidence. All evidence shall be taken during the course of

trial or other proceedings in the presence of the accused, if his personal

attendance is dispensed with, in the presence of his Pleader. The State

Government may determine the language in which the evidence has to be

recorded. By virtue of Sec.303 Cr.P.C. an accused person has right to defend

himself by a Pleader of his choice and by virtue of Sec.304 Cr.P.C. legal aid has

to be provided at the state expenses where in a trial before the court of

Sessions if the accused is not represented by a Pleader and it appears to the

court that the accused has not sufficient means to engage Pleader, the court

shall assign a Pleader for his defence at the expenses of the State. So by virtue

of Sec.309 Cr.P.C. 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 date to be necessary, however

by recording the reasons. So in every enquiry of trial, the proceedings shall be

continued incessantly. So expeditious trial is the foremost right of the accused

enshrined under article 21 of the Indian Constitution by virtue of Judicial

 48

precedents.

RECORDING OF EVIDENCE:

The recording of evidence in warrant cases trial by a Magistrate shall be

taken down in writing either by Magistrate himself or by his discretion in open

court if he is unable to do so due to physical or other incapacity under his

direction and the Superintendence, any Officer of the Court appointed by him

can take down and also the evidence of a witness be recorded by audio, video,

electronic means in the presence of the advocate of the person. Where a

Magistrate causes the evidence to be taken down he shall record a certificate to

that effect and evidence shall ordinarily be taken down in the form of a

narrative and in discretion the Magistrate may record the evidence or part of

the same with the form of question and answer and the evidence so taken shall

be signed by Magistrate and it becomes the part of the record. So this is the

procedure contemplated u/s.275 Cr.P.C. to record the evidence in Warrant

Cases and u/s.274 in summons cases and enquiries the Magistrate shall make

a memorandum of the substance of his evidence in the language of the court

which shall be signed by him, on his inability the same shall be caused to be

made in writing in open court, by recording the reasons and causes it to be

made by others.

Bs by virtue of Section 276 Cr.P.C. in all trials before court of Session,

the evidence of each witness shall be taken down in writing either by Presiding

Judge himself or by his dictation, in open court or under his direction and

Superintendence, by any Officer, the same procedure is contemplated in

 49

recording evidence in a warrant case and recording of evidence before court of

Sessions. If the witness gives evidence in the language of the court, it shall be

taken down in the said language if he gives in any other language if

practicable it can be taken down in the said language and if not practicable

with a true translation of the evidence in the language of the court shall be

prepared. It shall be signed by the Presiding Judge. So every witness is

competent to testify by virtue of Sec.118 of Indian Evidence Act if he is capable

of understanding the questions put to him and is able to give rational answers,

unless he is prevented by virtue of tender age, unsoundness, infirmity etc.

In a trial before Court of Sessions if the accused pleads guilty the Judge

shall record the plea and may in his discretion convict the accused u/s.229

Cr.P.C. So after taking the evidence of prosecution witnesses u/s.230 by fixing

the date and u/s.231 of Cr.P.C. after proceeding to take of evidence u/s.231(2)

Cr.P.C. the judge in his discretion permit the cross examination of any witness

to be deferred until any other witness have been examined or recall any witness

for further cross examination. After taking the evidence of prosecution

witnesses and on examining the accused i.e. u/s.313 Cr.P.C. and after hearing

the prosecution and the defence on the point, if the Judge considers that there

is no evidence that the accused committed the offence, the Judge shall record

an Order of acquittal u/s.232 of Cr.P.C. If he is not so acquitted u/s.232

Cr.P.C. the accused shall be called upon to enter on his defence and adduce

any evidence he may have in support thereof, and if the accused puts in any

written statement the Judge shall file it with the record u/s.233 (1)(2) Cr.P.C.
 50

respectively. At the request of the accused if he applies for issue of process for

compelling of any witness or for production of documents the Judge shall issue

process by recording the reasons and can also refuse if it is found said

application was vexatious or delaying or defeating the ends of justice.

So on completion of examination of defence witness the Prosecutor shall

sum up his case and the accused or his Pleader shall be entitled to reply. So if

any point is raised on law by the accused, the prosecution with the permission

of the Judge may submit the arguments on such point of law and the court will

hear the arguments u/s.234 Cr.P.C. when a case is triable by a court of

Session and the Judge shall give judgment u/s.235(1) Cr.P.C. If the accused is

convicted, unless the Judge proceeds in accordance with the provision u/s.360

Cr.P.C., the Judge shall hear the accused on the question of sentence and then

pass sentence according to law as contemplated u/s.235(2) Cr.P.C. By virtue

of Sec.428 Cr.P.C., the period of detention, undergone by the accused during

investigation, inquiry or trial of the same case, and before the date of such

conviction shall be set off against the term of imprisonment imposed on him on

such conviction.

Chapter 27 of Cr.P.C. speaks of the judgment. The judgment shall be

pronounced after termination of trial, after giving notice to the

parties/pleaders, in open court by the Presiding Officer by reading the whole or

operative part of the judgment and signed the transcript every page. By virtue

of section 354 Cr.P.C. the language and contents of the judgment shall be

written in the language of the court which shall contain the point for
 51

determination, the decision thereon and reasons for the decision. The

judgment shall contain the section of law under IPC or other law under which

the accused is convicted and the punishment to which he is sentenced. If the

accused is acquitted it shall state the offence under which the accused is

acquitted. U/s.29 of Cr.P.C. the court of Chief Judicial Magistrate may pass a

sentence authorized by law except a sentence of death or imprisonment for life

or imprisonment for a term exceeding 7 years. The court of a Magistrate of the

First Class may pass sentence of imprisonment for a term not exceeding 3

years or fine not exceeding Rs.10,000/- or of both. The court of Magistrate of II

Class may pass a sentence of imprisonment for a term not exceeding 1 year or

of fine not exceeding Rs.5000/- or of both. The court of a Chief Metropolitan

Magistrate shall have the powers of the court of a Chief Judicial Magistrate and

that of a Metropolitan Magistrate, the powers of the court of the Magistrate of

the I Class. U/s.30 of Cr.P.C. the sentence of imprisonment is prescribed in

default of payment of fine, however it shall not be in excess of the powers of the

Magistrate u/s.29 Cr.P.C. It shall not where imprisonment has been awarded

as part of the substantive sentence, exceed one-fourth of the term of

imprisonment which the Magistrate is competent to inflict as punishment for

the offence otherwise than as imprisonment in default of payment of the fine.

The imprisonment awarded under this section may be in addition to a

substantive sentence of imprisonment for the maximum term awardable by the

Magistrate u/s.29 Cr.P.C.

U/s.355 Cr.P.C. the Metropolitan Magistrate shall record in the

 52

judgment the serial number of the case, date of commission of the offence,

name of the complainant (if any) and the accused, their parentage, residence,

the offence complained of or proved, the plea of accused and his examination,

the final order and the date of such order. In every cases tried summarily in

which, the accused does not plead guilty, the Magistrate shall record the

substance of the evidence and a judgment containing a brief statement of the

reasons for the finding, as per section 264 of Cr.P.C., and every such record

and judgment shall be written in the language of the court by virtue of Sec.265

Cr.P.C.

By virtue of Sec.357 Cr.P.C. when a court imposes a sentence or fine of a

sentence of which fine forms a part, the court may when passing judgment,

Order, the whole or any part of the fine recovered to be applied in defraying

expenses in incurring the prosecution, in the payment to any person of

compensation of any law or injury caused by the offence, etc.

Before conclusion of the trial and before disposal of the appeal, the court,

trying the offence or ;the Appellate Court, as the case may be shall require the

accused to execute bail bonds with sureties to appear before the higher court,

as and when such court issues notice in respect of any appeal or petition filed

against the judgment of the respective court and such bail bonds shall be in

force for six months u/s.437-A Cr.P.C. and on failure of the accused to appear,

the bond stand forfeited.

Under Section 389(3) Cr.P.C., the trial court can suspend the sentence, if

the convicted person satisfies the trial court, that he intends to prefer an
 53

appeal, provided, if the convicted person is on bail and he is sentenced to

imprisonment for a term not exceeding 3 years.

No court once signed in its judgment/original order, shall alter or review

the same except to correct a clerical or arithmetical error as contemplated

under section 362 of Cr.P.C.

Under Section 363 of Cr.P.C. the copy of the Judgment shall

immediately after pronouncement of the judgment, when the accused is

sentenced to imprisonment, be given to him free of cost.

As contended under section 365 of Cr.P.C. Court of Session or a Chief

Judicial Magistrate, shall forward copy of finding and sentence(if any) to the

District Magistrate, concerned, when the court of Sessions passes sentence of

death, the proceedings shall be submitted to the Hon’ble High Court, under

Sec.366 Cr.P.C.

The court passing the sentence shall commit the convicted person to jail

custody under a warrant u/s.366(2) Cr.P.C., as the sentence of death imposed

by a court of Session, shall not be executed unless it is confirmed by the

Hon’ble High court.

Under Section 325 of Cr.P.C. when a Magistrate can not pass sentence

sufficiently severe, he may record the opinion and submit his proceedings and

forward the accused to the Chief Judicial Magistrate to whom, he is

subordinate.

CONCLUSION:- The accused person should get a fair trial in accordance with

the accepted principles of natural justice. The court shall make an endeavour
 54

to avoid delay in trial. The Criminal Procedure should ensure fair deal to the

weaker sections of the community.

 55

FROM TRIAL TO FINAL JUDGMENT

By
Smt K. Aruna Kumari,
Prl. Junior Civil Judge,
Gudivada.

1] All persons must be equal before the court. Every one shall be entitled to

a fair trial by an impartial court established by law. A salient requirement of

fair trial is one without undue delay. The right to a speedy trial flowing from

Article 21 of the Constitution encompasses all the stages such as investigation,

inquiry, trial, appeal, revision and retrial. In a criminal case, a conviction

cannot be based on the testimony of witnesses whose examination in chief

stands contradicted by their Cross examination. Basic concept behind a fair

trial is succinctly explained, in Manu Sharma v. State (NCTof Delhi), (2010) 6

SCC 1. A reasoned judgment diminished the chances of appeal, and reduces

the courts overload. Appreciation of evidence must be rational and

dispassionate. In every criminal trial the degree of probability of guilt has to be

much higher, almost amounting to certainty; and if there is the slightest

reasonable or probable chance of innocence of an accused the benefit must be

given to him.

2] Recently the Supreme Court of India in AG.V. Shiv Kumar Yadav another

[2016(1) ALT (Crl.) 167 (SC) =2015 (4) Crimes 1 (SC) held that in administration

of justice criminal trial should be fair trail as Article 21 of the constitution of

India emphasizes and when statutory laws are silent Court may evolve a
 56

principle to meet situation and statutory Provisions should be interpreted

keeping the principle of fair trial in mind and trial should be fair not only from

the review point of the accused but also from that of the victim and society.

3] 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 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. Settled
 57

principles in criminal justice system necessarily to be followed in trial are;-

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 anycase 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 orother
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.

4] Section 309 Cr.P.C. Contemplates that power to postpone or adjourn

proceedings:-

(1) In every enquiry and trail the proceeding shall be continued from day-to-
 58

day until all witness 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:

Provided that when the enquiry or trial relate to an offence Under Section

376-A, Section 376-B, Section 376-C or Section 376-D of the Indian Penal

Code, the enquiry or trial shall, as far as possible be completed within a period

of two months from the date of filling of charge-sheet.

(2) If the Court, after taking cognizance of an offence or commencement of

trial, finds it necessary or advisable to postpone, or adjourn, any enquiry or

trial, it may from time to time, for reasons to be recorded postpone or adjourn

the same on such terms as it thinks fit, for such time as it considers

reasonable and may by warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused persons to custody

under this section for a term exceeding 15 days at a time.

Provided further that when witnesses are in attendance, no adjournment

or postponement shall be granted for special reasons to be recorded in writing.

[Provided also that no adjournment shall be granted for the purpose only

of enabling the accused persons to show cause against sentence proposed to be

imposed on him].

[Provided also that –

a) no adjournment shall be granted at the request of a party, except

where
the circumstances are beyond the control of the party;

b) Provided that the pleader of a party is engaged in another court, shall

 59

not
be a ground for adjournment.

c) where a witness is present in court but a party or his pleader is not

present, or the party or his pleader though present in court, is not ready to
examine or cross-examine the witness, the court may, if it thinks fit, record
the statement of the witness and pass such orders as it thinks fit
dispensing with the examination in chief or cross-examination of the
witness, as the case may be.

Explanation1:- If sufficient evidence has been obtained to raise a

suspicion that the accused may have committed an offence, and it appears

likely that further evidence may be obtained by a remand, this is reasonable

cause for a remand.

Explanation 2:- The terms on which an adjournment or postponement

may be granted include, in appropriate cases, the payment of costs by the

prosecution or the accused.

A close study of this section unfolds that unfettered powers conferred on

courts to check adjournments but it is not being strictly implemented

practically. In many cases advocates ask time by representing that they are in

other cases. It should be curtailed and junior counsel should be encouraged to

commence trials. 5] 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 accused who have no means to engage

a pleader, especially for under trial prisoners. See. Suk Das vs. Union Territory

of Arunachala Pradesh, 2 (1986) SCC 401.

14. Accused should be furnished the copies of Police report and other
 60

documents in a criminal case. 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 leakage, 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

and 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

vs. Kokkiligadda Meerayya and Anr, 1 (1969) SCC 161.

21. Section 353 of the Code mandates that judgment must be delivered in an
 61

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.

6] To meet the present circumstances it is time to discuss about the causes

for delay in Indian Courts. One case can be adjourned to any times and the

discretion is with the Court according to law. Granting of time should be

limited by incorporating law. Delay in disposal create confidence to habitual

offenders and disappointment to victims. The crime rate will be deteriorated if

cases are disposed in time.

The number of judges has to be increased from trial court to Apex Court.

Approximately 2 years time is taken to select a judge this should be curtailed

to fill up existing vacancies. It is better to constitute a special cell with Judges

for recruitments for avoiding delay. The consent of Government is also vital

aspect on issuing G.Os. and presidential formalities, as early as possible this

executive process has to be cleared it will help to fill up vacancies. There is one
 62

judge for 10 lakhs people in India so on warfooting basis selections have to be

done and new posts have to be created.

The amenities provided in trial courts are very low they have to be

improved. Supplying good quality of computers, printers and staff members are

necessary. Except in identified and partheared cases the call work of

unimportant cases has to be entrusted to the online system for checking of

postings and routine steps and through the automatic generated system

concerned advocates can get adjournments dates alerts through S.M.S. and

emails etc., it will save one hour time in even trial court. The Software

technology has to be utilized for effective representations and to avoid clash of

date for hearing in different courts by same councils.

 63

FROM TRIAL TO FINAL JUDGMENT

By
Smt N. Anitha Reddy,
Judl. Magistrate of I-Class
Special Mobile Court,
Machilipatnam.

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 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
 64

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”.

Settled 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
 65

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 sould 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 accused who have no means to engage a pleader, especially for under trial
prisoners. See. Suk Das vs. Union Territory of Arunachala Pradesh, 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.
 66

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 alanguage
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 vs.
Kokkiligadda Meerayya and Anr, 1 (1969) SCC 161.

21. Section 353 of the Code mandates that judgment must be delivered in an open
 67

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.

Conclusion:-
Indian law is in consonance with the prevailing international legal standards
on the tright o be tried by a competent and independent and impartial court. All
persons must be equal before the court. Every one shall be entitled to a fair trial by
an impartial court established by law. A salient requirement of fair trial is one
without undue delay. The right to a speedy trial flowing from Article 21 of the
Constituiton encompasses all the stages such as investigation, inquiry, trial, appeal,
revision and re-trial. In a criminal case, a conviction cannot be based on the
testimony of witnesses whose examination in chief stands contradicted by their
cross-examination. Basic concept behind a fair trial is succinctly explained, . in
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1. A reasoned judgment
 68

diminished the chances of appeal, and reduces the courts overload. Appreciation of
evidence must be rational and dispassionate. In every criminal trial the degree of
probability of guilt has to be much higher, almost amounting to certainty; and if
there is the slightest reasonable or probable chance of innocence of an accused the
benefit must be given to him. As was observed by His Lordship Justice Krishna
Iyer, in State of Rajasthan versus Bal Chand, (AIR 1977 SC 2447), “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.’’
 69

FROM TRIAL TO FINAL JUDGMENT

By
Smt M. Anuradha,
Additional Junior Civil Judge,
Nandigama.

“Justice discards party, friendship, and kindred, and is therefore,

represented as blind.”
- Addison

Introduction:-
Every Trial is a voyage of discovery in which Truth is the quest. The
procedure for trial is found in the Code of Criminal Procedure, the Indian Penal
Code and the Indian Evidence Act. But the entire trial process is governed and
underpinned by the principles laid down in the Constitution of India. This
presentation examines the basic legal rules governing the fair trial proceedings
and the relevant case law. It also focuses on the principles ensuring
fundamental justice and how a person is treated when accused of a crime and
the judicial system in implementation of vital human rights norms.
Adversarial System - Trial :-
In our system of trial, the prosecution on behalf of the State, accuses the
defendant of the commission of a crime and must convince an independent
judge of the person’s guilt beyond reasonable doubt. The accused person is
given every opportunity to defend himself. The Adversarial system is based on
the idea that the truth will emerge from the disputed facts through effective
and constant challenges. The judge’s role is to ensure that witnesses are
examined with care and he has the duty to referee motions, weigh the facts and
the circumstances, draw logical conclusions and arrive at a reasoned decision
about guilt or innocence by weighing the facts, the evidence presented and the
relevant law. The adversarial nature of our trial system appears to suggest that
the judge is a mere umpire of fact and applier of statutory law.
However, the Supreme Court has repeatedly urged judges not to limit
themselves to being merely observers of the prosecution and defence, but to be
conscious that the highest duty of the judge is to arrive at the truth. In the
judgment between Ram Chander Vs. State of Haryana reported in AIR
 70

1981SC 1036 the Honourable Supreme Court held 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. He must become a
participant in the trial by evincing intelligent active interest by putting questions
to witnesses in order to ascertain the truth”. It is further held that this must
however, be done without unduly trespassing on the functions of the public
prosecutor or the defence counsel, without hint of partisanship and without
appearing to frighten or bully witnesses. This requires the judge to be aware
and active, and more towards a just conclusion by testing, probing and
challenging all contentions in his court, thereby arriving at conclusions
through rationale and objective thought processes.
BASIC LEGAL RULES GOVERNING FAIR TRIAL : -
As the judge has complete control of a case as soon as it comes to court, it is
his paramount duty to ensure that fair trial norms that have been assured by
the Indian Constitution as well as the procedural laws are adhered to. The
rules recognized under different provisions of law that ensure fair trial are as
follows:
1. Trial by a Competent, Independent & Impartial Tribunal
2. Trial in an Open Court
3. Trial without undue delay
4. Accused Person to be defended by a Lawyer of choice
5. Free Legal aid to the accused
6. Accused to be presumed Innocent until proven guilty
7. Duty of the Court to furnish copies and to explain the
accusation/charges to the accused
8. Trial in the presence of the accused
9. Giving adequate opportunity to the accused to examine the
witnesses
10. Accused right to remain silent during the trial.
11. Assistance of an Interpreter in certain cases
12. Prohibition of Double Jeopardy
13. Delivering reasoned Judgment and copy of the same to be made
available
 71

14. Accused to be heard on sentence

1) Trial by a Competent, Independent & Impartial Tribunal :-
All major human rights instruments, and our own Constitution and
legal system insist on the fundamental human right of an accused to be tried
before a competent, independent and impartial tribunal. This is an essential
aspect of any fair trial. The independence of the judiciary is one of the pillars
of the rule of law. Independence is essential for the protection of fair trial
standards. The principle of an independent judiciary requires that a judge can
make every decision without the intervention of the government, parliament or
administration. Court decisions can be only reviewed by higher courts. The
impartiality and independence of the courts may be guaranteed by ensuring
that a judge hearing a case has no relationship with either party that may
affect the decision making process. Judges are required to view both parties in
a fair and equal manner making an objective decision based solely on the facts
and evidence of the case. The independence of the judiciary is valued as part
of the basic structure of the Constitution.
(i)Article 50 of the Constitution:- Article 50 of the Constitution ensures that
“the State shall take steps to separate the judiciary from the executive in the
public services of the State. In S.P.Gupta Vs. Union of India reported in
1981 (Supp.) SCC 87, pp.221-222 the Honourable Apex Court interpreted
independence not merely as non-interference from the executive and other
forces, but independence from prejudices: “It is necessary to remind ourselves
that the concept of independence of judiciary is not limited only to independence
from executive pressure or influence but it is a much wider concept which takes
within its sweep independence from many other pressures and prejudices. It
has many dimensions, namely, fearlessness of other power centers, economic or
political, and freedom from prejudices acquired and nourished by the class to
which the Judges belong.”
(ii) Section 479 of Cr.P.C. - Principle of Audi Alterm pattern :- One of the
oldest rules of justice and of common sense is that no man shall act as a judge
in a case in which he has a substantial interest. The principle of individual
 72

impartiality or the rule that no man can be his own judge or give judgment
concerning his own rights is now universal. Apart from being inherent in the
constitutional design of our judiciary, it is captured by statute, illustratively
under Section 479 of the Code of Criminal Procedure, which states that a judge
or magistrate may not try or commit to trial any case in which they have a
personal interest or to which they are a party, unless the court to which an
appeal lies from their court give its permission.

(iii) Justice must not only be done but be seen to be done_:- This legal
maxim, is the other sign of impartiality. This principle was voiced by the
Hon’ble Apex Court in the case of Satish Jaggi Vs. State of Chhattisharh &
Ors reported in 3 (2007) SCC 62. The transfer of the case was sought on the
grounds that the Sessions Judge, an elder brother of a sitting MLA was very
close to the father of one of the main accused. The Sessions Judge himself did
not indicate his disinclination to hear the matter. The High Court felt that he
did this probably because he believed that the mere fact that his brother was
known to a political heavyweight would not stand in the way of his discharging
his judicial function impartially without fear and favour. The Hon’ble Apex
Court however transferred the case to another trial court saying “to ensure that
justice is not only done, but also seen to be done and peculiar facts of the case,
we feel that it will be appropriate to transfer the case to some other Sessions
Court”.

2. Trial in an Open Court:-

The right to a public hearing involves the possibility of the general public
to attend and observe a trial. It is an important safeguard in the interest of the
individual and society at large. It guarantees that the public is informed of
how justice administered and decisions are reached by the judicial system. It
also constitutes a guarantee to the parties, because the public can review the
legality of the proceedings. A public hearing affirms the independence,
 73

impartiality and fairness of the courts, thereby increasing the general trust of
the population in the judicial system.
(i) Section 327 Cr.P.C. – Court to be open:- Section 327 (1) of Cr.P.C. reads
as follows: 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, so far as the same can conveniently
contain them.

The paramount value of dispensing justice in an open court is

affirmed by the Hon’ble Supreme Court in Naresh Shridhar Mirajkar and
Ors. Vs. State of Maharashtraand Anr. reported in AIR 1967 SC 1, in a
defamation case instituted against the publisher of an English weekly, the
judge made an oral order forbidding the publication of the evidence of a
witness. This order was passed to save the witness from risk of excessive
publicity. Aggrieved by the order, the petitioners petitioned the High Court
against the order. The writ was dismissed on the grounds that the order was a
judicial order of the High Court and was not amenable to writ under Article
226. The petitioners then appealed to the Supreme Court under Article 32 for
the enforcement of a fundamental right. The Hon’ble Apex Court began its
analysis by stressing the historic importance of all cases, whether civil or
criminal, being heard in open court, because a public trial “is undoubtedly
essential for the healthy, objective and fair administration of justice. Trial held
subject to the public scrutiny and gaze naturally acts as a check against judicial
caprice or vagaries and serves as a powerful instrument for creating confidence
of the public in the fairness, objectivity, and impartiality of the administration of
justice. Public confidence in the administration of justice is of such great
significance that there can be no two opinions on the broad proposition that in
discharging their functions as judicial tribunals, courts must generally hear
causes in open and must permit the public admission to the court room.”
(ii) Public Trial- Exceptions:- However, the right to a public trial is qualified
by several exceptions. As per the proviso Section 327 (1) of Cr.P.C. , A judge or
 74

magistrate, at their discretion, may order that the general public or a particular
individual cannot have access to the Court at any stage of an inquiry or trial. As
per Section 327 (2) of Cr.P.C., the inquiry into, and trials of, rape or crimes
under Sections 376, 376-A, 376-B, 376-C, or 376-D, 376-E of the Indian Penal
Code shall beconducted in camera.
The Hon’ble Apex Court in State of Punjab Vs. Gurmeet Singh
and Ors., reported in 2 (1996) SCC 384 stressed the importance of in-camera
trials for sexual offences, stating that “the expression that the inquiry into and
trial of rape cases ‘shall be conducted in camera’ is not only significant but very
important. It casts a duty on the court to conduct the trial of rape cases
invariably ‘in camera’. Courts are obliged to act in furtherance of the intention
expressed by the legislature and not to ignore its mandate and must invariably
take recourse to the provisions of Section 327(2) of the Code and hold the trial of
rape cases in Camera. The Courts should avoid disclosing the name of the
prosecutrix in their orders to save further embarrassment to the victim. Trial of
rape case in camera should be the rule and an open trial in such cases,
is an exception.
As per the proviso Section 327 (3) of Cr.P.C., where any proceedings are
held under sub-section (2), it shall not be lawful for any person to print or publish
any matter in relation to any such proceedings, except with the previous
permission of the Court.

Having settled the principle that the administration of justice demands

trials in open courts, the Hon’ble Supreme Court in Naresh Sridhar’s case cited
supra also pointed out that this does not mean that there are no exceptions to
the rule of openness. “We feel no hesitation in holding that the High Court has
inherent jurisdiction to hold a trial in camera if the ends of justice clearly and
necessarily require the adoption of such a course. It is hardly necessary to
emphasise that this inherent power must be exercised with great caution and it
is only if the Court is satisfied beyond the doubt that the ends of justice
themselves would be defeated if a case is tried in open court that it can pass an
 75

order to hold the trial in camera. The principle underlying the insistence on
hearing cases in open court is to protect and assist fair, impartial and objective
administration of justice; but if the requirement of justice itself sometimes
dictates the necessity of trying the case in camera, it cannot be said that the said
requirement should be sacrificed because of the principle that every trial must be
held in open court. In this connection it is essential to remember that public trial
of cases is a means, though important and valuable, to ensure fair
administration of justice; it is a means, not an end. It is the fair administration of
justice which is the end of judicial process, and so, if ever a real conflict arises
between the fair administration of justice itself on the one hand, and public trial
on the other, inevitably, public trial may have to be regulated or controlled in the
interest of administration of justice.”

These exceptions require the judge to apply his mind as to whether there
is a fit case for excluding the public from trial, what the level of exclusion
should be, what limits to publication of evidence there might be, to decide on
the degree of prohibition of reporting, and whether it is to be temporary, for the
duration of the trial, for a period after that, or permanent. The paramount
purpose of assuring the administration of justice must be shown to be served
by the exclusion of the public from the trial.
3. Trial without undue delay:-
An important requirement of a fair trial is one without undue delay. A
fair trial implies a speedy trial and no procedure can be reasonable, fair or just,
if it extends for an unreasonably long time. The requirement of a prompt trial
in criminal cases obliges the authorities to ensure that all proceedings from the
pretrial stage to the final appeal, are completed, and judgments are issued
within a reasonable time. A speedy trial, as such, is not mentioned as a
specific fundamental right in the constitution. Quick justice is recognised as
implicit in the spectrum of Article 21 of the Constitution and it now regarded
as a sine qua non of Article 21.The mental agony, expense and strain which a
person proceeded against in criminal law has to undergo and which coupled
 76

with delay, may result in impairing the capability or ability of the accused to
defend himself have persuaded the constitutional courts of the country in
holding the right to speedy trial a manifestation of fair, just and reasonable
procedure enshrined in Article 21 of our Constitution.

(i) Section 309 (1) Cr.P.C. – Day to day Trial : The design of trial
proceedings laid out in the Criminal procedure Code also reaffirms that the
requirement of swiftness and promptitude applies to all stages of the
criminal process-investigation, inquiry, trial, appeal, revision and retrial. As
per section 309(1) in every inquiry or trial, the proceedings should be held
“as expeditiously as possible.”Section 309 (1) Cr.P.C. reads as follows:
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:
Provided that when the inquiry or trial relates to an offence under Section
376, Section 376A, Section 376 B, Section 376 C or Section 376 D of the Indian
Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed
within a period of two months from the date of filing of the charge sheet.

(ii) Sec.309(2) of Cr.P.C. :-After a trial has begun or the court takes notice of
an offence, the court may, at its discretion, deem it necessary or advisable to
postpone or adjourn the inquiry or trial for a reasonable period of time and
may remand the accused to custody by warrant as envisaged under section
309(2) Cr.P.C. When witnesses are in attendance, the court should not
postpone or adjourn the proceeding without examining them, unless the court
has special reasons for doing so, which it must record in writing as per the
proviso to Section 309(2)Cr.P.C.. Costs can be imposed on either party by the
court if witnesses are present but are not examined at the request of either the
defence or the prosecution as envisaged under Explanation 2 of section 309 (2)
of Cr.P.C.
(iii) Case law:- The Hon’ble Supreme Court has strongly disapproved of
judicial delays. In Michander Vs. State of Hyderabad, reported in AR 1955
 77

SC 792, the Court refused to remand the case back to the trial court for a fresh
trial because of a delay of five years between the commission of the offence and
the final judgment of the Hon’ble Supreme Court. The Hon’ble Apex Court
recorded that : “Weare not prepared to keep persons who are on trial for their
lives under indefinite suspense because trial judges omit to do their duty.. we
have to draw a balance between conflicting rights and duties... while it is
incumbent on us to see that the guilty do not escape, it is even more necessary to
see that persons accused of crime are not indefinitely harassed... while every
reasonable latitude must be given to those concerned with the detection of crime
and entrusted with administration of justice, limits must be placed on the lengths
to which they may go.”
The Judgment of the Hon’ble Supreme Court in Hussainara
Khatoon (1) Vs. Home Secretary, State of Bihar reported in (1980) 1 SC 81
proved to be a high watermark in the development of speedy trial
jurisprudence. A writ of habeas corpus was filed on behalf of prisoners
languishing in Bihar jails awaiting trials, for periods longer than the maximum
sentences for the offences they were charged with. The Court held that undue
delay in trial vitiated the guarantee of Article 21 of the Constitution which says
no one shall be deprived of his (her) life or personal liberty except according to
procedure established by law. The Hon’ble Supreme Court relied on its earlier
decision in the Maneka Gandhi Vs. Union of India reported in (1978) 1 SCC
248 case which lays down that “the “procedure” required under Article 21 has to
be “fair, just and reasonable” and not “arbitrary, fanciful or oppressive”.
In Sheela Barse Vs. Union of India reported in (1986) 3 SCC
632 the Hon’ble Supreme Court addressed the question left unanswered in the
Hussainara’s case, about the consequences of delayed trial. The Court held
that: “The right to speedy trial is a right would be that the prosecution itself
would be liable to be quashed on the ground that it is in breach of the
fundamental right.”
A landmark decision by the Hon’ble Supreme Court in Abdul
Rehman Antulay Vs. R.S. Nayak reported in 1992 (SCC) 225 finally
 78

adjudicated on questions left open in the Hussainara’scase, such as the scope

of the right, the circumstances in which it could be invoked, its consequences,
limits, etc. The salient features of the decision were:
(a) The right to a speedy trial flowing from Article 21 encompasses all the
stages, namely those of investigation, inquiry, trial, appeal, revision and re-
trial.
(b) In every case, where the right to a speedy trial is alleged to have been
infringed, the first question to be put and answered is: who is responsible for
the delay? Proceedings by either party in good faith, to vindicate their rights
and interests as perceived by them, cannot be taken as delaying tactics; nor
can the time taken in pursuing such proceedings be counted towards delay.
(c) While determining whether undue delay has occurred, one must take
into account all the attendant circumstances including the nature of the
offence, the number of accused persons and witnesses, the court’s workload,
the prevailing local conditions and so on.
(d) Every delay does not necessarily prejudice the accused. However,
inordinately long delays may be taken as presumptive proof of prejudice. The
prosecution should not be permitted to become a persecution. But when the
prosecution becomes a persecution depends on the facts of a given case.
(e) An accused’s plea of denial of a speedy trial cannot be defeated by saying
that the accused did not at any time demand a speedy trial.
(f) The Court has to balance and weigh several relevant facts – balancing
test – and determine in each case whether the right to a speedy trial has been
denied in a given case.
(g) Charge or conviction must be quashed if the court comes to the
conclusion that the right to a speedy trial of an accused has been infringed.
But this is not the only course open. It is open to the Court to make any other
appropriate order - including an order to conclude the trial within a fixed time
period, where the trial is not concluded, or reducing the sentence, where the
trial has concluded as may be deemed just and equitable in the circumstances
of the case.
 79

(h) It is neither advisable nor practicable to fix any time limit for trial of
offences. Not fixing any such outer limit in effectuates the guarantee of the
right to a speedy trial.
(i) An objection based on denial of the right to a speedy trial and for relief
on that account should first be addressed to the Hon’ble High Court. Even if
the Hon’ble High Court entertains such a plea, ordinarily it should not stay the
proceedings, except in cases of grave and exceptional nature. Such
proceedings in the Hon’ble High Court must be disposed on a priority basis.

The Hon’ble Supreme Court in Kartar Singh Vs. State of Punjab

reported in (1994) 3 SCC 569 held that the right to a speedy trial is not only
an important safeguard to prevent undue and oppressive incarceration, to
minimize anxiety and concern accompanying the accusation and to limit the
possibility of impairing the ability of an accused to defend himself, but there is
also a societal interest in providing a speedy trial. The Hon’ble Apex Court’s in
P.Ramachandra Rao Vs. State of Karnataka reported in AIR 2002 SC
1856 directed the criminal courts to exercise their available powers such as
those under sections 309, 311 and 258 of the Code of Criminal Procedure to
effectuate the right to a speedy trial.

Moti Lal Saraf Vs. State of Jammu an Kashimir and Anr. 10

(2006) SCC 560 held that “the appellant worked as a manager in the State
Bank of India. An F.I.R. under Section 5(2) of the Jammu and Kashmir
Prevention of Corruption Act was registered against him, pursuant to which he
was arrested on the allegation that he had received a sum o Rs.700/-as a
bribe. Over a period of 26years, repeated challans were filed, causing
immense mental, physical and emotional stress and harassment to the
appellant. In the intervening 26years, not even a single witness was examined
by the prosecution. The appellant sought relief on the grounds that it was the
right of every citizen to seek a speedy trial and that continuation of further
proceedings against him was contrary to the basic spirit of Article 21 of the
Constitution. Discharging the appellant, the Court maintained that permitting
 80

the state to continue with the prosecution and trial any longer would be a total
abuse of the process of law. It also stressed that it is the bounden duty of the
court and the prosecution to prevent unreasonable delay.
The Hon’ble Apex Court further held “The purpose of right to a
speedy trial is intended to avoid oppression and prevent delay by imposing on
the courts and on the prosecution an obligation to proceed with reasonable
dispatch.” In order to make the administration of criminal justice effective,
vibrant and meaningful, the Court urged the central and state Governments and
all the concerned authorities to take necessary steps to ensure that the
constitutional right of the accused to a speedy trial does not remain only on
paper.”

(iv) Insertion of Section 436 A to the Code of Criminal Procedure :- The

legislation has fixed the maximum period for which an under trial prisoner
can be detained by inserting section 436 –A of Cr.P.C. It reads as follows:
Where a person has, during the period of investigation, inquiry or trial
under this Code of an offence under any law (not being an offence for which
the punishment of death has been specified as one of the punishments under
that law) undergone detention for a period extending up to one-half of the
maximum period of imprisonment specified for that offence under that law, he
shall be released by the Court on his personal bond with or without sureties:
This section provided further that no such person shall in any case be
detained during the period of investigation inquiry or trial for more than the
maximum period of imprisonment provided for the said offence under that law.

4. Accused Person to be defended by a Lawyer of choice :-

Every accused should be provided the opportunity to be defended by a
pleader at the time of the proceedings and should have sufficient opportunity of
communication with his legal adviser for the purpose of his defence. This
right also extends to having all necessary means for the defence which is a
well- established principle under law. It means that the accused must have all
the elements of evidence at his disposal. This right is derived from the principle
of the equality of arms. It means that in relation to the prosecution, the defence
must have an equal opportunity to prepare and present a case, and that the
prosecution and defence must have an equal position throughout the
proceedings.
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(i) Article 22 of the Constitution & Section 303 of Cr.P.C. – Right of the
Accused person to be defended:- Article 22 of the Constitution guarantees
that every arrested person has the right to “consult and to be defended by a
legal practitioner of his choice.” Section 303 the code of Criminal Procedure
reinforces this idea, stating that: “any person accused of an offence before a
criminal court, or against whom proceedings are initiated under this Code, may
of right be defended by a pleader of his choice.”
(ii) Case Law:- In Suk Das Vs. UT of Arunachal Pradesh
MANU/SC/0140/1986 (1986) 2 SCC 401) it was held “Every accused
unrepresented by a lawyer has to be provided a lawyer at the commencement of
the trial, engaged to represent him during the entire course of the trial. Even if
the accused doe not ask for a lawyer or he remains silent, it is the Constitutional
duty of the Court to provide him with a lawyer before commencing the trial.
Unless the accused voluntarily makes an informed decision and tells the court, in
clear and unambiguous words, that he does not want the assistance any lawyer
and would rather defend himself personally, the obligation to provide him with a
lawyer at the commencement of the trial is absolute, and failure to do so would
vitiate the trial and the resultant conviction and sentence, if any, given to the
accused”.

In Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid

Vs. State of Maharashtra reported in (2012) 8 SCR 295, the
appellant/accused was offered a lawyer at the time of his arrest by the Police
officer, making the arrest. He declined the offer. He then wrote a letter to the
Pakistani High Commission asking to be provided with a lawyer. He made a
similar request in a second letter that was handed over to the Additional Chief
Metropolitan Magistrate. In the second letter, there is an assertion that he did
not want to be represented by an Indian Lawyer. It is thus clear that, in his
mind, the Appellant was still at war with India, and he had no use for a lawyer
from the enemy country. Moreover, the negative assertion that he did not
want an Indian Lawyer itself implies that he had received offers of legal
 82

counsel. But those offers were not acceptable to him. The defence counsel
argued that the request of the accused to be represented by a Pakistanee
lawyer could not be acceded to. On March 23, 2009 the Appellant finally
asked for a lawyer, apparently convinced by then that no help would come
from Pakistan or anywhere else. He was then immediately provided with a set
of two lawyers.
In the aforesaid facts, the Hon’ble Supreme Court held “there is no
question of any violation of any of the rights of the Appellant under the Indian
Constitution. He was offered the services of a lawyer at the time of his arrest
and at all relevant stages in the proceedings. We are also clear in our view that
the absence of a lawyer at the pre-trial stage was not only as per the wishes of
the Appellant himself, but that this absence also did not cause him any
prejudice in the trial.
The Hon’ble Apex Court further held “failure to provide a lawyer to the
accused at the pre-trial stage may not have the same consequence of vitiating the
trial. It may have other consequences like making the delinquent magistrate
liable to disciplinary proceedings, or giving the accused a right to claim
compensation against the State for failing to provide him legal aid. But it would
not vitiate the trial unless it is shown that failure to provide legal assistance at
the pre-trial stage had resulted in some material prejudice to the accused in the
course of the trial. That would have to be judged on the facts of each case.”

5. FreeLegal Aid to the accused:-

A procedure which does not make legal services available to an accused
person who is too poor to afford a lawyer and who would therefore have to go
through the trial without legal assistance, cannot possibly be regarded as
reasonable, fair and just. Thus the state is obliged to provide free legal aid to a
person who is indigent or otherwise disabled from securing legal assistance
where the ends of justice call for such service. The due process right
guaranteed to all individuals in Article 21 of the Constitution requires that an
individual has access to free legal counsel if he cannot afford it.
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(i) Article 39 A of Constitution of India - Equal justice and free Legal Aid:-

The State shall secure that the operation of the legal system promotes
justice, on a basis of equal opportunity, and shall, in particular, provide free
legal aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.
(ii) Section 304 of Cr.P.C. - Legal Aid to the accused at State Expense in
certain cases:-
Section 304, the Code of Criminal Procedure makes this right explicit
and outlines its implementation. When the accused is not represented by a
pleader in a trial before the Court of Session, and when the Court finds that
the accused does not have sufficient means to engage a pleader, the Court
shall assign a pleader to defend the accused at the state’s expense. With the
previous approval of the state Government, the Hon’ble High Court may create
a rule to determine the method to select pleaders for defence, the facilities the
assigned pleaders will be given, and the fees payable to the pleaders by the
Government. The state Government may order that these provisions be made
applicable to any class of trials before other courts in the state, as they apply in
relation to trials before the Courts of Sessions.

(iii) Legal Services Authorities Act, 1987:-

In furtherance to the idea of Article 39-A, Parliament enacted the Legal
Services Authorities Act, that came into force from 09.11.1995. Section 12 &
Section 13 in Chapter IV of the said Act recognizes certain categories of people
for entitlement to legal services.
(iv) Case Law:- The Hon’ble Supreme Court in several decisions has referred
to both Articles 21 and 39A to underline the importance of providing legal aid
to under trials. In Hussainar Khatoon and Ors. V. Home Secretary, State
of Bihar, Bihar Patna, (1980) 1 SCC 108 the Supreme Court concluded that
the right to free legal service is an essential ingredient of reasonable, fair and
 84

just procedure for an accused person and it must be held to be implicit in the
guarantee of Article 21. In Kharti (II) Vs. State of Bihar (1981) 1 SCC 627,
the Hon’ble Supreme Court also ruled “the state cannot seek to avoid this
constitutional obligation by pleading financial or administrative inability”
In Kasab’s case reported in (2012) 8 SCR 295 cited supra, the Hon’ble
Supreme Court opined: “to deal with one terrorist, we cannot take away the
right given to the indigent and under privileged people of this Country by this
Court (31) years ago. The right to free legal services is, therefore, clearly an
essential ingredient of “reasonable, fair and just”, procedure for a person
accused of an offence and it must be held implicit in the guarantee of Article 21.
This is a constitutional right of every accused person who is unable to engage a
lawyer and secure legal services on account of reasons such as poverty,
indigence or incommunicado situation and the State is under a mandate to
provide a lawyer to an accused person if the circumstances of the case and the
needs of justice so require, provided of course the accused person does not object
to the provision of such lawyer.” Further the Hon’ble Apex Court directed the
Magistrates and Sessions Judges in the Country to inform every accused who
appears before them and who is not represented by a lawyer on account of his
poverty or indigence that he is entitled to free legal services at the cost of State
and further make it clear that any failure to fully discharge the duty, would
amount to dereliction in duty and would make the concerned Magistrate liable to
disciplinary proceedings.

6. Accused to be Presumed Innocent until proven guilty:-

“It is better that ten guilty escape than one innocent suffers.” Criminal
procedure is built around the principle of “innocent until proven guilty” and is
designed to protect this right. When it is said that a defendant to a criminal
charge is presumed to be innocent, what is really meant is that the burden of
proving his guilt lies on the prosecution. Section 101 of the Indian Evidence
 85

Act further reinforces this right, by providing that whoever desires a court to
give judgment as to any legal right or liability dependent on the existence of
facts which he asserts, must prove those facts. Thus, if the state wishes to
convict an individual of an alleged crime, the state carries the burden of firmly
establishing and providing the defendant’s guilt. Judges need to bear in mind
that suspicion, however grave, cannot take the place of proof, and strong pieces
of circumstantial evidence cannot establish guilt unless each piece links to
another and every link in the chain is proved.
7. Duty of the Court to furnish copies and to explain the
accusation/charges to the accused:-
The objective of this provision is to give adequate notice to an accused
person of the material to be used against him so that he is njot prejudiced
during the trial. It is also to ensure that the trial is just and fair. The right to
know what wrongful activity is alleged and the basis of it is vital in order to give
the defendant a chance to mount the fullest defence and is a fundamental fair
trial requirement.
(i) Section 207 of Cr.P.C. - Provide copies of Police Report and other
documents to the Accused:-Section 207 of the Code of Criminal Procedure
dictates that in any criminal proceedings instituted on the basis of a police
report, the Magistrate must freely furnish to the accused:
1. A copy of the police report;
2. A copy of the first information report;
3. The statements of any prosecution witnesses;
4. Any recorded confessions or statements; and
5. Any other documents forwarded to the magistrate by the police.

(ii) Section 208 of Cr.P.C. - Provide copies of other statements and

Documents to the accused if the case is Triable by the Court of Sessions:
If a matter is triable exclusively by the Court of Sessions, Section 208 of
the Code requires that the Magistrate freely furnish to the accused the
statements of persons examined by the Magistrate, any statements and
confessions, and any documents produce before magistrate on which the
prosecution proposes to rely.
 86

(iii) Copies of statements of the prosecution witnesses to be furnished to

the indigent Accused:- In Gangula Suryanarayana Reddy Vs. State
of Andhra Pradesh (2002) Cr.LJ 2472 (AP)the petitioners/accused move an
application to secure copies of prosecution witnesses statements free of cost as
there were 430 witnesses and the cost of securing them was far beyond their
reach. The Hon’ble High Court of A.P. was of the opinion that if a person is
unable to obtain the copies because he is not in a position to pay for them, it
would lead to adjournment after adjournment because the advocate appearing
for him, even if provided by the state, would not be in a position to defend the
case. The Hon’ble Court further directed all magistrates and judges that on filing
of an application for copies, supported by an affidavit, a copy of the evidence
should be furnished to an indigent accused.
(iv) Contents of charges to be read over and explained to the accused:-
As per Section 211(1) of Cr.P.C. the accused must be given full notice of
the offences he is charged with. As per section 211(2) of Cr.P.C., each offence
must be described and have the specific name of the offence as stated in the
law. As per section 222 of Cr.P.C., the framed charge must state the exact time
and place of the alleged offence and the person against whom, or the thing in
respect of which, it was committed. The trial Court judge in the magistrate’s
court or the Sessions Court has a duty to frame the charges in writing. The
judge may add or alter the charges framed by the prosecution. After framing
the charges the Court of sessions u/s.228(2) of Cr.P.C. and the Magistrate
u/s.240(2) of Cr.P.C. are under obligation to read over and explain the
Charges to the accused.
(v) Alteration and addition of Charges to be read over to the Accused:-
As per Section 216(1) of Cr.P.C, the court has sufficient powers to alter
or add to any charges that have been included by the prosecution agency. As
per Section 216(2) of Cr.P.C every such alteration or addition shall be read and
communicated to the accused. When a charge altered or added by the Court,
the prosecutor and the accused will be allowed to recall,, re-summon and
examine any witness who may have already been examined by the Court,
 87

unless the Court is of the view that the same is being done to defeat the ends of
justice. The aid of these provisions is to enable the accused to have a clear
idea of what he is being tried for and of the essential facts he has to meet. It is
one of the elementary principles of criminal law that an accused person must
know the precise accusation against him before he is called on to enter his
defence.
8. Trial in the presence of the accused:-

The presence of an accused during his trial is an absolute right. The

right to be tried in one’s presence is implicit in the right to adequate defence.
Trials in absentia can prejudice the fairness of the hearings in a grave manner.
It is obligatory that the evidence from the prosecution and defence should be
taken in the presence of the accused. A trial is vitiated by the failure to
examine witnesses in the presence of the accused.
(i) Section 273 of Cr.P.C. - Evidence to be taken in the presence of the
accused:- This principle has been read into Article 21 as being an element of
due process and is given clear expression in Section 273 of Cr.P.C. which says:
“Except as otherwise expressly provided, all evidence taken in the course of trial
or other proceeding shall be taken in the presence of the accused or, when his
personal attendance is dispensed with, in the presence of his pleader.”
In State of Maharashtra Vs. Praful B Desai reported in AIR 2003
SC 2053 With the introduction of video linking the Supreme court has held
that evidence recorded via video in the presence of the accused or his pleader
fully meets the requirements of Section 273.
(ii) Exceptions to the said Rule - Sections 205, 299, 317 (1) of Cr.P.C.:-
There are some provisions under the law where the Court may record the
evidence even in the absence of the accused. Under Section 205 (1) of Cr.P.C.
the magistrate may dispense with the personal attendance of the accused and
permit him to appear by his pleader. Section 299 of Cr.P.C is another instance
when the court can proceed in the absence of the accused, when he is declared
as absconder. This provision is in derogation of the normal procedure that
 88

evidence in a trial of an accused shall be recorded in his presence. But its

justification lies in the accused’s default to take part in the trial.
As per Section 317 (1) of Cr.P.C., the right to be in court throughout a
trial belongs to the Accused, if there is no risk of prejudice to either side and
where the interests of justice remain fully served even in the absence of the
accused, the Court may at the request of an accused dispense with his
personal appearance and allow the matter to go forward through his
representative. Under Rule 37 of Cr.P.C. and Circular Orders, 1990, one of the
accused may be permitted to represent the other in any criminal proceedings.

9. Giving adequate opportunity to the accused to examine the

witnesses:-

Fair trial includes fair and proper opportunities allowed by the law to
prove one innocence. Denial of this right means a denial of fair trial. The right
is critical to preserving fairness and ensuring accuracy at trial. The accused
cannot adequately present his defence and challenge the prosecution’s case
against him unless he has the opportunity to call witnesses on his behalf and
cross examine prosecution witnesses. Moreover, the questioning of witnesses
by the defence provides the court with an opportunity to arrive at more
accurate findings, as questioning witnesses serves the necessary function of
scrutinizing the witness’ credibility and reliability. Fair trial includes rules of
procedure that are designed to ensure reasonable and adequate opportunities
to mount an effective defence. This includes the right of the accused to present
evidence on his behalf and challenge evidence put forward by the prosecution.
If this is denied to the accused, there is no fair trial.
(i) Evidence for the Prosecution:-The charge sheet indicates the facts and
circumstance that emerge through the police investigation and form the
elements of the crime which the accused must answer. Once that is presented
to the accused and he is asked to plead his case, he knows the charges and the
basis for these. The prosecution can file further charges if more evidence
comes to light or further crimes are indicated. The rules of procedure require
 89

that the prosecution presents and completes its case first. It is essential at the
very outset of the trial to put before the court all the evidentiary material it
intends to rely on to prove its case beyond reasonable doubt. This can include
lay and expert witnesses, documents, forensic material and analysis. At the
commencement of the trial the prosecution must again indicate the witnesses it
has chosen to put in the box. All such witnesses must be present in person,
give evidence orally and be available for cross-examination.

The prosecution has to lay before the Court all material evidence
available to it to unfold the case. Sections 231, 242, 244 & 254 of the Code
afford the opportunity to the prosecution to examine its witnesses and put
forth oral or documentary evidence. Every witness must be examined orally.
After prosecution witnesses are examined, cross-examination by the accused
and re-examination (if any) shall follow immediately as envisaged u/s.138 of
Indian Evidence Act. There is no right to reserve cross-examination.
Ordinarily, examination and cross-examination are to be a continuous process
but sub-section 2 of Section 231 vest the judge with the discretion to permit for
sufficient reason, either (i) the cross-examination of any witness to be deferred
till any other witnesses or witnesses have been examined, or (i) recall any
prosecution witness for further cross-examination.
(ii) Section 313 of Cr.P.C. – Duty of the court to explain all
incriminating evidence to the accused: Section 313 of Cr.P.C.envisages
power of the trial Court to examine the accused to explain the circumstances
appearing in the evidence against him. The provision contained in Section 313
is based on one of the most fundamentals to be observed in a criminal trial
that the accused should be called upon to explain the evidence against him
and should thus be given an opportunity of stating his own case.

InAsraf Ali Vs. State of Assam reported in (2008) 16 SCC 328andin

Manu Sao Vs. State of Bihar reported in2010 (12) SCC 310andin Nagesh
Vs. State of Karnataka reportedin (2012) 6 SCC 477the Hon’ble Supreme
Court explained the object of Section 313 of Cr.P.C. by holding that “the
 90

primary purpose is, to establish a direct dialogue between the Court and the
accused and to put to the accused every important incriminating piece of
evidence and grant him an opportunity to answer and explain”.
(iii) Evidence for the defence:- Section 233 of Cr.P.C. provides that if the
judge does not acquit the accused under section 232 of the Code on the ground
that there is no evidence, he shall call the accused to enter his defence and
adduce evidence and file with the record any written statement, if put in by the
accused. If the accused desires to call any witness and applies for the issue of
process to compel the attendance of a witness or the production of any
document or item, an adjournment has necessarily to be given for the purpose.
The provisions of Section 243 and 247 of the Code granting the
right to the accused to produce witnesses in his defence, applies equally to
cases instituted on a police report or private complaint. After the examination
and cross-examination of all the prosecution witnesses, i.e. after the
completion of the prosecution case, the accused is called upon to enter his
defence. The provision for the defence’s evidence in warrant cases instituted
other than on a police report is contained in Section 247 of the Code of
Criminal Procedure which is pari material with Section 243. The provision as
contained in Section 254 pertains to the trial of summons cases by a
Magistrate. When there is no admission of guilt by the accused and a
conviction thereon under section 252, the Magistrate must proceed to hear the
case and take evidence adduced by the parties.
(iv)Participatory Role of Judge- Section 311 of Cr.P.C. and Section 165 of
Indian Evidence Act:- The Courts have to take a participatory role in a trial.
They are not expected to be tape recorders to record whatever is being stated
by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act
confer vast and wide powers on Presiding Officers of Court to elicit all
necessary materials by playing an active role in the evidence collecting process.
They have to monitor the proceedings in aid of justice in a manner that
something, which is not relevant, is not unnecessarily brought into record.
Even if the prosecutor is remiss in some ways, in can control the proceedings
 91

effectively so that ultimate objective i.e. truth is arrived at. This becomes more
necessary the Court has reasons to believe that the prosecuting agency or the
prosecutor is not acting in the requisite manner. The Court cannot afford to be
wishfully or pretend to be blissfully ignorant or oblivious to such serious
pitfalls or dereliction of duty on the part of the prosecuting agency. The
prosecutor who does not act fairly and acts more like a counsel for the defence
is a liability to the fair judicial system, and Courts could not also play into the
hands of such prosecuting agency showing indifference or adopting an attitude
of total aloofness.
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 Courts
to examine a witness if his evidence appears to be essential to the just decision
of the Court. In Mohan Lal Vs. Union of India MANU/SC/0318/1991
this Court has observed, while considering the scope and ambit of Section 311,
that the very usage of the word such as, “any Court”, “at any stage”, or “any
enquiry or trial or other proceedings” “any person” and “any such person”
clearly spells out that the Section has expressed in the widest possible terms
and do not limit the discretion of the Court in any way. Though the discretion
given to the Court is very wide, the very width requires a corresponding
caution.
10. Accused right to remain silent during the trial:-
It is a generally accepted principle that the suspect/accused cannot be
forced to incriminate himself / herself. While the rights of the victim are
protected by the state, the accused is often completely dependent on the judge
to ensure his rights. Article 20(3) of the Constitution protects the right of the
accused to remain silent by providing that: “No person accused of any offence
shall be compelled to be a witness against himself.”
(i) Further statements of the accused to the Court during the trial :-The
Code of Criminal Procedure, Section 313 further protects the right to silent. It
 92

protects the accused from liability for refusing to answer or falsely answering
questions by a judge during a court proceeding. It says:“ the accused shall not
render himself liable to punishment by refusing to answer such questions, or
by giving false answers to them.”.

(ii) Accused is competent witness for further defence:-As per Section 315
of Code of Criminal Procedure, 1973, during trial, the accused can be arraigned
as a witness for the defence but cannot be called on to give evidence except at
his own request. If the accused chooses not to give evidence, the court cannot
draw any adverse presumption against him. Section 316 of Code of Criminal
Procedure, 1973 provides that except as a condition requisite to a tender of
pardon, no influence by means of any promise or threat or otherwise can be
used on the accused to induce them to disclose or withhold any matter within
their knowledge. Thus, Sections 313, 315 and 316 of the Code raise a
presumption against guilt and in favour of innocence, grant a right to silence
at the stage of trial and also preclude any party or the court from commenting
on the silence.
11. Assistance of an Interpreter in certain cases:-
All rights to an adequate defence are useless even if the accused is
present, if he lacks the ability to understand the charges brought against him,
follow the proceedings or communicate his own defence and challenge properly
because he does not understand the proceedings or cannot understand the
language. In criminal trials where the consequences of a negative decision
carry enormous weight on the future of the individual, it is imperative that the
accused can follow the proceedings in detail and can express himself in a
language he fully understands, failing which he will be unable to defend
himself.
(i) Section 279 of Cr.P.C. - Procedure where the accused does not
understand the proceedings:-
Thorough out the Criminal Procedure Code there are various sections
designed with the aim of ensuring that the accused has every opportunity to
 93

mount an effective defence. As far as language is concerned, Section 279 of

the Code requires that “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.” The words of
section 279 of the Code: “It shall be interpreted to him in open Court”
suggested that the judge has a duty to interpret himself for the person unable
to understand the language of the Court, or to ensure that his pleader explains
each witness statement and evidentiary document, or to seek the services of an
interpreter in order to fulfill the requirements of the Section. In addition,
Section 318 of the Criminal Procedure Code recognizes that there may be
categories of persons who “cannot be made to understand the proceedings.”.
However, in such cases, the Section allows the judge to proceed with the trial
even if the accused cannot understand the proceedings, but, if such
proceedings result in conviction, the Judge must forward the proceedings to
the Honourable High Court along with a report of the circumstances of the
case, and the Honourable High Court will then pass such order as it thinks fit.

(ii) Case Law :- Denial of the right to an interpreter violates Articles 21 of the
Constitution and requires a re-trial The provision u/s.279 Cr.P.C. is of course
intended to “safeguard” defendants’ interests, held in K.M. Subramani Vs.
State of A.P. 2003 CriLJ 3526. In the said case, a Tamilian was charged
with causing the death of two motor scooter riders when he allegedly drove his
lorry negligently through a traffic intersection. The court conducted his entire
trial in Telugu, which the appellant did not understand. The Court did not
provide the appellant with a Tamil interpretation so that he could comprehend
the proceedings. The judge even read the charges against him and questioned
the appellant in Telugu. The appellant was convicted and sentenced to one
year of rigorous imprisonment and Rs.5000/- fine. On appeal, the Honourable
High Court found that the trial court had indulged in a “short cut” by not
providing the appellant with the procedural rights that Section 318 and 279
afforded him. Charactering the trial court’s decision to conduct the
 94

proceedings in a language not understood by the appellant or provide

translation as a “miscarriage of justice”, the Honourable High Court awarded
the appellant a fresh trial.
Inability to comprehend the language is a major hurdle to assuring
a fair trial. When a person is being prosecuted and his individual liberty is at
stake, it is the bounden duty of the Magistrate to explain everything in the
language understood by the accused, so that the he can raise his pleas and
provide proper assistance and guidance to his counsel.

12. Prohibition of Double Jeopardy:-

The principle of double jeopardy or ne bis in idem, whereby nobody can
be tried or punished twice for the same offence protects against three distinct
abuses:
1. A second prosecution for the same offence after final acquittal;
2. A second prosecution for the same offence after final conviction; and
3. Multiple punishments for the same offence.

(i) Guarantee Against Double Jeopardy- Article 20(2) of the Constitution:-

The principle of double jeopardy is safeguarded under Article 20(2) of the
Constitution which prohibits prosecuting or punishing a person for the same
offence more than once. Article 20(2) of Constitution of India provides that “No
person shall be prosecuted and punished for the same offence more than
once.”
(ii) Section 300 of Cr.P.C. - A person Once convicted or Acquitted Cannot
Be Tried for the same Offence:-Section 300 of the Cr.P.C. states that a
person acquitted or convicted by a competent court may not be tried again for
the same offence. However, the dismissal of a complaint or the discharge of the
accused does not represent an acquittal for the purposes of Section 300, and a
court can retry the accused when the previous proceeding resulted in either
dismissal or discharge.
(iii) Exceptions under section 300 of Cr.P.C.:- Section 300 of Cr.P.C.
also puts forward three exceptions to the double jeopardy prohibition and
provides several illustrations. A person convicted of any offence constituted by
 95

any act causes consequences which constitute a different offence from the
offence which he was convicted, may later be tried for the different offence, if
the consequences had not happened or were unknown to the Court at the time
when he was convicted.
As per section 300(4) of Cr.P.C. a person acquitted or convicted of any
offence may be subsequently charged with, and tried for, any other offence
arising out of the same set of fact, if the court that first tried him was not
competent to try the offence with which he is subsequently charged. Section 258
Cr.P.C.grants the judge the power to stop criminal proceedings at any time and
discharge the accused. A person discharged by the Court pursuant to Section
258 of Cr.P.C. cannot be tried again for the same offence unless the Court that
issued his discharge consents to the subsequent trial, provide under section
300(5) of the Cr.P.C.. This exception is in line with the rationale that
safeguards an individual from state harassment.
13. Delivering reasoned Judgment and copy of the same to be made
available:-
A reasoned judgment given in public, increases confidence in the
judiciary, is considered to be an essential part of the fair administration of
justice and a vital parameter of democratic functioning. The right to a
reasoned judgment is regarded as part of the elements of natural justice and as
a crucial element that grounds an effective appeal. Any decision of the court
has to serve justice. For a trial to be considered fair, a judgment must satisfy
three elements: it must be public, it must be available to the accused and it
must be reasoned. The judgment must be valid in terms of the Constitution
and the statutes guiding it. 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 the judge.
Since the Mrs.Maneka Gandhi’s case made it explicit, it is well
established that the constitutional guarantee that no person shall be deprived
of life or personal liberty except according “to procedure established by law”.
This implies that the procedure itself has to be fair and reasonable with all the
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attributes that these words carry as discussed above. This requirement of

fairness applies to judgments as much as to every other stage of trial or court
proceedings.
(i) Judgment Must Be Known- Section 353 & 354 of Cr.P.C. :- Under
section 235(1) Cr.P.C., in cases of sessions trial, after hearing arguments and
point of law (if any), the judge shall give a judgment in the case. Under
Sections 248 Cr.P.C. in warrant cases and under 255 Cr.P.C. in summons
cases, on conclusion of the trial, the magistrate shall record an order of either
acquittal or conviction. Section 353 & 354 of Cr.P.C. together deal with the
substantive and procedural requirements that a judge must ensure and follow.
The requirements in relation to how a judgment is delivered, its language and
content are not matters of form but are elements of fairness and must be fully
met. Section 353 of Cr.P.C. mandates that the 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. Section 354(1) (b) of Cr.P.C.
mandates that judgments must be reasoned. Every judgment must thus
contain the points for determination, the decision and the reasons for such
decision.
(ii) Judgment Copy to be made available:- Section 363 of Cr.P.C.
confirms the accused right to get a copy of the judgment. Where the accused is
sentenced to imprisonment, the Court must immediately furnish a copy of
judgment to him free of cost. On an application for a certified copy of the
judgment and if necessary a translation, the Court must furnish the same
without delay to the accused. In judgments conferring the death sentence, the
court must immediately furnish the accused with a certified copy of the
judgment regardless of whether the accused has requested it or not. In
M.H.Hoskot Vs. State of Maharashtra reported in AIR 1978 SC 1548 the
Hon’ble Apex Court held, “the accused cannot effectively exercise his right to
appeal without a copy of his trial judgment in hand. Article 21 is violated if the
Court fails to provide the accused with a copy of the judgment in time to file an
appeal.”
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14. Accused to be heard on Sentence:-

Every conviction is followed by a sentence. The judge or the magistrate
has to keep in his mind the provision of law under which the punishment is
prescribed for the offence as also the maximum and minimum sentences
permissible under law and between these two extremes he has to fix up
somewhere the punishment, which is to be awarded to the accused in the case
before him.
(i) As per 235 (2) of Cr.P.C. in case of sessions trial, if the accused is
convicted, the Judge shall, unless he proceeds in accordance with the
provisions of Section 325 Cr.P.C. or under section 360 of Cr.P.C., hear the
accused on the question of sentence, and then pass sentence on him according
to law. Similar provisions are appended to section 248(2) of Cr.P.C. in warrant
cases and Section 255(2) Cr.P.C. in summons cases.
In Santa Singh Vs. State of Punjab reported in (1976) 4 SCC
190 the Hon’ble Apex Court held that the provision u/s.235(2) Cr.P.C. is clear
and explicit and does not admit of any doubt. It requires that in every trial
before a court of sessions, there must first be a decision as to the guilt of the
accused. The court must in the first instance, deliver a judgment convicting or
acquitting the accused. If the accused is a acquitted, no further question
arises. But if he is convicted, then the court has to “hear the accused on the
question of sentence, and then pass sentence on him according to law.” When
a judgment is rendered convicting the accused, he is, at that state, to be given
an opportunity to be heard in regard to the sentence and it is only after hearing
him that the court can proceed to pass the sentence.

It is further held this provision is also intended to give an

opportunity to the prosecution and the accused to place before the court facts
and material relating to various factors bearing on the question of sentence and
if they are contested by either side, then to produce evidence for the purpose of
establishing the same. Of course, care would have to be taken by the Court to
see that this hearing on the question of sentence is not abused and turned into
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an instrument for unduly protracting the proceedings. The claim of due and
proper hearing would have to be harmonized with the requirement of
expeditious disposal of proceedings.
(ii) Benefit of Probation on Good Conduct:-The provisions under Probation
of Offenders Act, 1958 and the Provision under section 360 of Code of
Criminal Procedure, 1973 envisages that the Court may Order to release the
accused on due admonition or on Probation of Good Conduct in certain cases,
instead of sentencing them at once to any punishment.
(iii) Benefit of Set Off :-Section 428 of Cr.P.C. envisages that the Period of
detention during investigation, enquiry of trial of the case undergone by the
accused before the date of such conviction, shall be set off against the term of
imprisonment.

Conclusion:-
The fair trial for a criminal offence consists not only in technical
observance of the frame and forms of the law, but also in recognition and just
application of its principles in substance, to find out the truth and prevent
miscarriage of justice. As the judge has complete control of a case as soon as it
comes to court, it is his paramount duty to ensure that fair trial norms that
have been assured by the Indian Constitution as well as intentionally agreed to
are adhered to. Non-compliance with any single norm at any stage can subvert
all further proceedings, taint the entire process and gravely impinge on the
rights of all parties before the Court.
Though the aforesaid rules governing fair trial emphasize the safeguards
to the accused, the rights of the victims and protection of witnesses also got
paramount importance as considered by the Hon’ble Apex Court in the
judgments, Zahira Shikh Vs. State of Gujarat (2006) 3 SCC 374, National
Human Rights Commission Vs. State of Gujarat, (2003) 9 Scale 329. A
trial primarily aimed at ascertaining truth has to be fair to all concerned which
includes the accused, the victims and society at large. Each person has a right
to be deal with fairly in a criminal trial. The efforts should be to ensure fair
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trial where the accused and the prosecution both get a fair deal. Public
interest in the proper administration of justice must be given as much
importance if not more, as the interests of the individual accused. In this the
Trial Courts have a vital role to play.
“The judgment is like a pair of scales, and evidence like the weights; but the uill
holds the balances in its hands; and even a slight jerk will be sufficient in any
case, to make the lighter side appear the heavier.”

- Whately.
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FROM TRIAL TO JUDGMENT

By
Sri K. Srinivasa Rao,
I-Addl Junior Civil Judge,
Nuzvid

INTRODUCTORY:-

Article 21 of the Indian Constitution states: ‘No person shall be

deprived of his life or personal liberty except according to
procedure established by law.

India has a highly developed criminal jurisprudence and prosecution system

and it is well supported by judicial precedents for judicial trials and our penal

laws are primarily governed by the Code of Criminal Procedure,1973, The

Indian Penal Code,1860 and Indian Evidence Act 1872. The basic purpose of

the criminal justice system in India is to ensure fair trial without compromising

the rights of the accused.

The word 'trial' is not defined anywhere in the Criminal Procedure

Code. A trial is judicial process always ends in either conviction or acquittal. .

In common parlance, trial begins after framing of charge. . "Fair trial" includes

fair and proper opportunities allowed by law to prove the innocence by

accused in criminal trial. Adducing evidence in support of the defence is a

valuable right. Each person has a 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 society.
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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. 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 .

DIFFERENT TYPES OF TRAILS

1. Trial before a Court of Session:Chapter XVIII of CrPC, sections 225 to 227

2. Trial of Warrant Cases:Sections 238 to 243 provides the procedure for trial

of cases instituted on police report. Sections 244 to 247 deals with procedure

to be followed for trial of cases instituted otherwise than on police report.

Sections 248 to 250 of the code are applicable to both the categories of cases.

3.Trial of Summons cases by Magistrates:

4.Summary Trial: Sections 260 to 265 and 363(3) of the Code deals with

Summary trial.

SETTLED PRINCIPLES IN CRIMINAL JUSTICE SYSTEM

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

tribunal/court with presumption that accused is innocent and every accused

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should be provided the opportunity to be defended by a pleader and free legal

aid to be provided in need (Articles 21 and 39A ) especially UT prisoner.

2. The burden of proof tests on the prosecution and prosecution must establish

guilt beyond reasonable doubt.

3. High probability is not enough to convict – where there are several possible

accounts, the account supporting the accused should be upheld.

4. Accused has a right to remain silent and 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.

5. 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 or financial interest.

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

seen to be done.’’

7. 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

and as per section 327 of the Code, trial judges to invariably hold the trial of

rape cases in camera, rather than in open court.

8. As seen from section 309 of Cr.P.C, it is known that the Code safeguards the

right to a speedy trial and accused should be furnished the copies of Police

report and other documents in a criminal case. See. Section 207 of Cr.P.C.
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9. 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.

10 . 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.

11. The object of section 311 of the Code is to discover the truth and deliver a

just decision.

12. 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.

13. 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. Section 300 of the Code puts forward three

exceptions to the double jeopardy prohibition .

14. (a) 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 and judgments must be
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reasoned basing on legal evidence, substantive by law and logic without having

to resort to speculations or inferences ( section 354(1).

(b) When accused is sentenced to imprisonment, free of copy of judgment

shall be furnished to him. The Hon'ble Apex Court observed that crime and

punishment are two sides of same coin. Punishment must fit to the crime. The

notion of “Just Deserts” or a sentence proportionate to the offender's

culpability was the principle which became applicable to criminal

jurisprudence and Imposition of sentence must commensurate with gravity of

offence.”

15. Sections 357, 357A of the Code and Section 5 of Probation of Offenders

Act,1958 empowers the court to provide compensation to the victims of crime.

The courts should exercise these powers liberally and award adequate

compensation to the victim, particularly when the accused is released on

admonition , probation or when the parties enter into a compromise.

Conclusion:-

Indian law is in consonance with the prevailing international legal standards

on the right to be tried by a competent and independent and impartial court.

All persons must be equal before the court. Every one shall be entitled to a fair

trial by an impartial court established by law. A salient requirement of fair trial

is one without undue delay. The right to a speedy trial flowing from Article 21

of the Constitution encompasses all the stages such as investigation, inquiry,

trial, appeal, revision and re-trial.