PRINCIPAL FEATURES OF FAIR TRIAL:

PRIMARY OBJECT-Criminal Procedure- to ensure a fair trial to every person accused of any crime.

The notion of fair criminal trial has close links with the basis and universally accepted human rights [A 10

& A 11 of the Universal Declaration of Human Rights as adopted and proclaimed by the General

Assembly of the UN]

The System we adopted for Fair Trial- ADVERSARY SYSTEM:

The Adversary system of criminal trial- based on Accusatorial Method.

According to this system- any dispute as to the criminal responsibility of a person is to be resolved by

the criminal court after giving fair and adequate opportunity to the disputants to place before the court

their respective cases.

The Court’s Role: The court is more or less like an umpire and is not to take sides or to show any favor

or disfavor to any party. It has only to decide as to which party has succeeded in proving its case

according to law.

The adversary system of trial enables an impartial and competent court to have a proper perspective of

the case, and it is believed that on the whole this system is a better device to discover the truth in fair

manner.

In our system- criminal trials- the prosecutor representing the State accuses the defendant (accused

person) of the commission of the alleged crime, and the law requires him to prove his case beyond

reasonable doubt. The adversary system as such recognizes equal rights and opportunities to both the

parties, i.e, the State and the accused person, to present their cases before the court.

Under the prevailing conditions of India: The equal rights and opportunities would in practice operate

unequally and harshly, affecting adversely the poor indigent accused persons who are unable to engage

competent lawyers for their defense. The system therefore, departs from its strict theoretical passive

stance and attempts to provide legal aid at State costs to indigent accused persons to defend

themselves in criminal trials.

The court requires the criminal courts to play a more active and positive role than that of a mere referee

in the combat between the Prosecutor-State and the accused person.

The charge against the accused is to be framed not by the prosecution by the court after consideration

the circumstances of the case[S 228,240], prosecutor cannot withdraw from the case without the

consent of the court [S321], etc.

OVERVIEW:

INDEPENDENT, IMPARTIAL and COMPETENT JUDGES:

The most indispensable condition for a fair trial is- to have- an independent, impartial- competent judge

to conduct the trial.

To fulfill this the following provisions are made by the CODE:

1. Separation of judiciary from the executive

2. Courts to be open

3. Judge or magistrate not to be personally interested in the case

4. Transfer of cases to secure impartial trial

5. Competent judges made available through hierarchy of courts

6. Qualifications of judges and magistrates

PARTIES TO BE REPRESENTED BY COMPETENT LAWYERS:

1. Prosecutor representing the State

2. Representation of the accused by a lawyer

VENUE OF THE TRIAL

PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

RIGHTS OF THE ACCUSED PERSONS AT THE TRIAL

1. Right to know of the accusation

2. Right of the accused to be tried in his presence

3. Evidence to be taken in presence of accused

4. Rights to cross-examine prosecution witnesses

5. Right to produce evidence in defense

6. Right to have reasoned decisions

7. Doctrine of “autrfoit acquit” and “autrefois convict”

EXPEDIOUS TRIAL

ALL PERVASIVE CONCEPT OF FAIR TRIAL (major objective of fair trial, what it should be?)

Details:

1. Separation of Judiciary from Executive:

Independent functioning of judiciary- in criminal matters- the Code has brought about the

separation of the judiciary from the executive- by requiring the appointment of Judicial

Magistrate (as distinct from Executive Magistrate) and bringing them, for all practical purposes,

under the direct supervision and control of the High Court in each State. In a criminal trial, as the

State is the prosecuting party, it is of special significance and importance that the judiciary is

freed of all suspicion of executive influence or control- direct or indirect.

Because of Separation- no judge- or Judicial Magistrate would be in any way connected with the

prosecution, nor would he be in direct subordination to anyone connected with the prosecution.

2. Courts to be Open:

Public trial- in open court- acts as a check against judicial caprice or vagaries and serves as a

powerful instrument for creating confidence of public in fairness, objectivity and impartiality of

the administration of criminal justice.

The Code- provides- that subject- to such reasonable restrictions as the court may consider

necessary, the place in which the court is held shall be an open court to which the public

generally may have access(S 327)

3. Judge or Magistrate not to be personally interested in the case- Nemo debet judex in propria

causa- No man ought to be a judge in his own cause. The essence of the maxim has been

incorporated in Section 479 of the Code.

According to this Section:

(a) No judge or Magistrate shall, except with the permission of the higher appellate court, try or

commit for trial any case to or in which he is party, or personally interested; and

(b) No judge or Magistrate shall hear an appeal from any judgment or order passed or made by

himself.

4. Transfer of cases to secure impartial trial- Section 190(1)(c) , a Magistrate empowered to take

cognizance of an offence may do so upon his own knowledge about the commission of any such

offence. However, in such a case the accused must be told before any evidence is taken that he

is entitled to have the case tried by another Magistrate(S 191)

Whenever it is made to appear to the High Court that a fair and impartial enquiry or trial cannot

be held in any criminal court subordinate to it, it may, subject to the conditions laid down in

Section 407 order that, (1) any offence to be inquired into or tried by any other competent

court, or (2) that any particular case or class of cases to be transferred from a criminal court

subordinate to its authority to any other criminal court of equal or superior jurisdiction(S 407).

5. Competent judges available through hierarchy of courts:

Is hierarchy desirable? If so please relate with the header.

(S322-S 325 indicate the policy of making available competent judges for handling cases in

certain peculiar circumstances)

Special provision- children below 18years- accused of violations of law are not criminals and

therefore, their cases should be handled with great care and understanding by experienced and

qualified judges. Section 27- makes a special provision that the juvenile offenders in respect of

certain offences may be tried by the court of a Chief Judicial Magistrate (CJM) in the absence of

any special courts established under the relevant statutes. Trial of rape case, as far as

practicable shall be conducted by a court presided by a woman.

6. Qualifications of Judges and Magistrates:

For fair trial, it is of prime importance that the judges and Magistrates should be persons of

integrity and character with the necessary ability and sound knowledge of law. Though the Code

does not make any specific provision in this respect, except in Section 13 and S 18 in respect of

the appointment of special Magistrates, all reasonable efforts are made by the State

Governments and the High Courts to recruit competent and qualified persons for the posts of

Judges and Magistrates.

Parties to be represented by Competent Lawyers:

Adversary System- Requirement to have competent lawyers along with Judges and Magistrates. Why?

1. Prosecutor representing the State: In a criminal trial- the State representing society-comes

before the criminal court and seeks punishment to the accused person suspected of having

committed the crime.

The Public Prosecutor or the Assistant Public Prosecutor(APP) represents the State in such trials.

What are the qualifications expected from them.

2. Representation of the accused by a lawyer: The adversary system of criminal trial assumes that

the State using its investigative resources and employing competent prosecutors will prosecute

the accused who, in turn, will employ competent legal services to challenge the evidence of the

prosecution. Considering the situation in India, most of the people are not able to engage

lawyers due to various reasons like unawareness or illiterate.

Art 22(1) of the Constitution: provides that no person who is arrested, shall be denied the right

to consult and to be defended by a legal practitioner of his choice. Similarly Section 303 of the

Code provides any person accused of an offence before a criminal court, or against whom

proceedings are instituted, may of right be defended by a pleader of his choice.

If right to counsel is essential to fair trial, it is equally important to see that accused has the

necessary means to engage a lawyer for his defense. The Code-made provision for indigent

persons- in a trial- before a Sessions Court.

Hussainara Khatoon v. State of Bihar: Equal Justice and free legal aid

Maneka Gandhi v. Union of India: right to free legal services

Venue of the Trial:

The place of enquiry or trial, are contained in S 177-189. If place highly inconvenient to the accused

person- causes various impediments in the preparation of his defense, the trial at such a place cannot be

considered as a fair trial. These provisions are used to facilitate fair trial.

Presumption of Innocence and Burden of Proof:

Is it necessary for adversary system of trial (based on accusatorial method), and the burden of proving

the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the court

cannot record a finding of the guilt of the accused.

Every Criminal Trial- begins with presumption of Innocence- in favor of the accused- the provisions of

the Code are so framed that a trial should begin with and be throughout governed by this essential

presumption.

Rights- of the Accused Person:

1. Right to know of the accusation: the necessity of it? To enable the accused- prepare for his

defense- it is essential that he is informed of the accusations against him. In serious offences-

the court is required to frame in writing a formal charge and then to read and explain the charge

to the accused person(S. 228, 240, 246)

2. Rights of the accused to be tried in his presence: Things to ponder upon- why will his presence

be helpful? The personal presence of the accused throughout his trial would enable him to

understand properly the prosecution case as it is unfolded in the court. The requirement of the

presence of the accused during his trial can be implied from the provisions which allow the court

to dispense with the personal attendance of the accused under certain circumstances (S 205,

273).

S 317- of the Act makes an exception- empowers the court to dispense with the personal

attendance of the accused person at his trial under certain circumstances.

S 317(1) That circumstance- at any stage- of the enquiry or trial- if the court is satisfied that the

personal attendance of the accused is not necessary in the interests of justice, or that the

accused persistently disturbs the proceedings in court, the court may, if the accused is

represented by a pleader, dispense with his attendance and proceed with such enquiry or trial in

his absence, and may, at any subsequent stage of proceedings, direct the personal attendance

of such accused.

3. Evidence taken in presence of accused: (Except Sections 205, 293, 299 ,317) All evidence taken

in the course of the trial or other proceeding shall be taken in the presence of the accused-

other proceedings shall be taken in the presence of the accused- when his personal attendance

is dispensed with , in the presence of his pleader(S 273). (The above rule is applicable-even if the

accused make the recording of the evidence impossible, otherwise it would not mean negation

of a fair trial rather an end of all trial at the choice of the accused).

Recording evidence- of an alleged victim of sexual offence or rape under 18- the court shall

ensure that the woman- is not confronted by the accused.

(S 318**)

4. Right to cross-examine prosecution witnesses: Important right- for the purposes of defense.

Sukanraj v. State of Rajasthan: A criminal trial which denies the accused person the right to

cross- examine prosecution witnesses is based on weak foundation, and cannot be considered

as a fair trial.

5. Right to produce evidence in defense: the burden of proving the guilt is on the prosecution-

though the law does not require the accused to lead evidence to prove his innocence, yet a

criminal trial in which the accused is not permitted to give evidence to disprove the prosecution

case cannot be considered as just and fair. The refusal without any legal justification by a

Magistrate to issue process to the witnesses named by the accused person has been held

enough to vitiate the trial.

6. Right to have reasoned decisions: Mukhtiar Singh v. State of Punjab- one of the foremost

requirement is to notice, consider and discuss, however briefly, the evidence of various

witnesses as well as the arguments addressed at the bar.

7. Doctrine of “autrefois acquit” and “autrefois convict”: if a person is tried and acquitted or

convicted of an offence, he cannot be tried again for the same offence or on the same facts for

any other offence. This doctrine has been substantially incorporated in Art 20(2) of the

Constitution and also embodied in Section 300 of the Code. The second or subsequent trial in

violation of the above doctrine would mean unjust harassment of the accused person and can

be considered as anything but fair and has been prohibited both by the Code and the

Constitution.

Expeditious Trial:

A criminal trial which drags for unreasonably long time is not a fair trial. In every, enquiry or trial, the

proceedings shall be held as expeditiously as possible, and, in particular, when the examination of

witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in

attendance have been examined, unless the court finds the adjournment of the same beyond the

following day to be necessary for reasons to be recorded[S 309(1)]

Speedy trial is an essential ingredient of “reasonable, fair and just” procedure guaranteed by Art 21,

and it is the constitutional obligation of the State to devise such a procedure as would ensure

speedy trial to the accused.

Whenever, there is any allegation of violation of right of speedy trial, the court has to perform a

balancing act by taking into consideration all attending circumstances and to decide whether the

right to speedy trial has been denied in a given case.