Fair

Trial
Sec.
273,300,303-304,
313,316,317,319,
327 CRPC
Sec.273- All the evidence should be taken in the presence of accused
• Sec. 273 provides that all the evidence should be taken in the presence of
accused, or when his personal attendance is dispensed with, in the
presence of his pleader.

• Correspondingly Section 299 provides that in the following circumstances

evidence may be recorded in the absence of accused:

I. Where the accused has absconded.

II. Where an offence punishable with death or life imprisonment has
been committed by some unknown person
Sec. 300: Person once convicted or acquitted not to be tried
for the same offence
• Article 20(2) of the Constitution stipulates that no person shall be prosecuted and punished for the same
offence more than once.
• This is called doctrine of double jeopardy. The objective of this Article is to avoid harassment which may
be caused by the successive criminal proceedings, where a person has committed only one crime.
• lt is based on the maxim nemo debet bis vexari, which means no person shall be put twice in peril for the
same offence.
• There are two aspects of doctrine of double jeopardy i.e. autrefois convict and autrefois acquit.
• Autrefois convict means a person has been previously convicted in respect of the same offence.
Autrefois acquit means that the person has been previously acquitted in respect of the same offence.
[State of Jharkhand v. Lalu Prasad Yadav, (2017) 8 SCC 1]
• The basic rule given under Section 300 of the Code is that 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 liable to be tried again for the same offence.
• In Pritam Singh v State of Punjab, AIR 1956 SC 415 Supreme Court held that the provisions of
Section 300 are also based on the principle of res-judicata, or issue estoppel means the verdict of
acquittal given by a competent court, will be binding on the parties to the adjudication in all subsequent
proceedings.
• Section 300 (1) provides that following conditions are essential for application
of this rule i.e. autrefois convict and autrefois acquit:

i. Accused must have been tried for an offence

ii. Such trial must be by a competent court.
iii. He must have been either convicted or acquitted for that offence
iv. Conviction or acquittal must remain in force

• Such person shall 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 might have
been made under Section 221 (1) or for which he might have been convicted
under Section 221(2).
• Section 300 (2), 300 (3) & 300 (4) provide exceptions to the above general
rule.
Sec. 303 & 304:Right of person against whom proceedings are
instituted to be defended and legal aid to the accused at State's
expense
• Section 303 provides that any person accused of an offence before a Criminal
Court, or against whom proceedings are instituted under this Code, may of right
be defended by a pleader of his choice.
• It is also a Fundamental Right under Article 22(1) that no person shall be denied
the right to be defended by the lawyer of his choice.
• Section 304 provides for legal aid to accused at state is expense where he has
not got sufficient means to engage a pleader.
• Article 39A also recognizes that it is the duty of the State to provide free legal
aid in order to ensure that equal opportunities for securing justice are not
denied.
• Supreme Court in Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98
observed that right to free legal services is an essential ingredient of reasonable,
fair and just procedure and it must be held implicit in Article 21.
• The court added that it is a constitutional mandate that every accused person
who is unable to engage a lawyer and secure legal services on account of
poverty, indigence or other compelling situation should be provided free legal
services at expense of State.
• In Khatri () v. State of Bihar, (1981)1 SCC 627 Supreme Court held that State
cannot avoid its constitutional obligation to provide free legal services to indigent
persons by pleading financial or administrative inability.
• In Suk Das V. Union Teritory of Arunachal Pradesh, AIR 1986 SC911 Supreme
Court observed that conviction of an accused in a trial in which the accused was
not provided legal aid is liable to be set aside.
• Supreme Court in Ajmal Kasab v. State of Maharashtra, (2012) 9 SCC1 clarified
that it is incorrect to say that right to be defended by lawyer of his choice under
Section 304 comes into force only at the Commencement of trial. This right is
attracted when the accused is for the first time produced before the Magistrate
and also when he is remanded from time to time.
Sec. 313 : Power to examine the accused
• Section 313 provides that in every inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances appearing in the evidence
against him the court-
• May at any stage, without warning the accused put such questions to him as the
court considers necessary;
Shall, after the witnesses for the prosecution have been examined and before he is
called on for his defence, question him generally on the case.

The first part gives discretion to the court to question the accused at any stage of
the trial. The second part is mandatory and court is obliged to question accused
generally after the prosecution evidence is over.

In summons cases where the court has dispensed with the personal attendance of
the accused, it may also dispense with his examination.
Object:
• The object of section 313 CRPC is to give the accused an opportunity to personally
explain the prosecution case against him.
• The answer given by the accused may be taken into consideration in such inquiry or
trial & put in evidence for or against him in any other inquiry or trial for any other
offence which such answer may tend to show he has committed. However no
conviction could be based on this statement as it is not stated on oath.
• In Samsul Haque vs. State of Assam (2019), the Supreme Court observed that the
incriminating material that came in evidence is to be put to the accused during his
examination under Section 313, This is in recognition of the principles of audi alteram
partem so that the accused gets a fair chance to defend himself.

• Oath shall not be administered to the accused while examining under this section.
Accused also shall not be rendered to any punishment by refusing to answer the
questions or by giving false answer to them.

• The reason is that when he is examined under Section 313 he is not a witness.
• A conviction cannot be based merely on the basis on statements under Section 313.
Sec.317:Provision for inquiries and trial being held in the absence of
accused in certain cases.—
• (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is
satisfied, for reasons to be recorded, that the personal attendance of the accused
before the Court is not necessary in the interests of justice, or that the accused
persistently disturbs the proceedings in Court, the Judge or Magistrate may, if
the accused is represented by a pleader, dispense with his attendance and
proceed with such inquiry or trial in his absence, and may, at any subsequent
stage of the proceedings, direct the personal attendance of such accused.
• (2) If the accused in any such case is not represented by a pleader, or if the Judge
or Magistrate considers his personal attendance necessary, he may, if he thinks
fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or
order that the case of such accused be taken up or tried separately
Sec.319: Power to proceed against other person appearing to
be guilty of offence
• Section 319 provides that where, in a course of any inquiry into or trial of an offence it
appears from the evidence that any person not being the accused has committed any
offence for which such person could be tried together with the accused, the court
many proceed against such person for the offence which he appears appears to have
committed.
• The main purpose of this section is that the whole case against all known suspects
should be proceeded with and the convenience requires that cognizance against the
newly-added accused should be taken in the same manner as against the other
accused.
• The section is based on the doctrine judex damnatur cum nocens absolvitur i.e. judge is
condemned when guilty is acquitted.
• In S Mohammad Ishpabani v. Yogendra Chandak, (2017) 16 SCC 226 Supreme Court
held that Section 319 is meant to rope in those persons who were not implicated when
the charge sheet was filed but during the trial the court finds that sufficient evidence
has come on record to summon them and face trial. Power under Section 319 is
discretionary and an extraordinary power and it has to be used sparingly.
• The Supreme Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC92, laid down
following guidelines with respect to Section 319:-
• (1) The word 'evidence' has to be broadly understood and it must not be restricted to the
evidence brought during trial. Materials coming before the court in course of inquiries can
be used for corroboration of the evidence recorded in the court after the trial commences
for the exercise of Section 319.
• (2) The 'evidence' need not be tested by cross-examination. The power can be exercised
even on the basis of examination-in-chief.
• (3) The degree of satisfaction required for summoning the person under Section 319 is
same as that of framing of charge
• (4) A person not named in FIR or a person though named in the FIR but has not been
charge- sheeted or a person who has been discharged can be summoned under Section
319.

• In Rajesh v. State of Haryana, (2019) 6 CC 368, Supreme Court held that a trial court
can summon under Section 319 those persons named in FIR, but who were not
charge-sheeted, even if the stage of giving opportunity to the complainant to file a
protest petition is over.
Section 327: Courts to be open
• Section 327 provides that the trial should ordinarily be held
In an open court.
• In a case of trial for sexual offence the court should conduct the
proceeding in camera and as for as practicable by a woman judge or
Magistrate.
• It also prohibits the publication of proceedings in sexual offences
without the previous permission of the court. But such ban may be
lifted subject to maintaining confidentiality of names and address of
the parties.