FAIR TRIAL IN CRIMINAL PROCEDURE Dr. Showkat Ahmad...

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FAIR TRIAL IN CRIMINAL PROCEDURE

Dr. Showkat Ahmad Bhat

Department of Law, University of Kashmir, Jammu & Kashmir

Introduction

The sole aim of law is to provide justice, and assurance of fair trial which is the first

requirement of dispensation of justice. The denial of fair trial is the denial of justice. One

of the contents of natural justice is the guarantee of fair trial to the accused. In the criminal

justice system of every civilized nation the minimum fair trail is given to every accused

person irrespective of his cast or stature in society. One of the most valuable right of every

accused is to get a fair and impartial trial free from an atmosphere of prejudice. This right

flows from article 21 of the Indian Constitution which makes it obligatory upon states not

to deprive any person of his life or personal liberty except according to the procedure

established by the law. The concept of fair trail is deep rooted in the history, enshrined in

the constitution, sanctified by religious philosophy and juristic doctrines and embodied in

the statute intended to regulate the course of a criminal trial. When a citizen has

apprehension based on some fact, that he would not get a fair trial in a court of law, then

it’s the duty of the said court to remove the apprehension and provide him fair trial and

protect his right and enunciated under the provisions of article 21 of the constitution of

India1. The formal concept of fair trial has been accepted as human rights jurisprudence in

the Universal declaration of human rights hereinafter referred as UDHR, 1948.2 . Article

10 of Universal declaration of Human rights 1948 provides:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 14(1) of International Covenant on Civil and Political Rights 1966, which India

ratified on 10 April 1979 [heirinafter called as ICCPR]3 provides:

All the persons shall be equal before the courts and tribunals. in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing, by a competent, independent and impartial tribunal established by the law….’’

Article 6 of European Convention of Human Rights provides:

1 Khokan Debbama v state of Tripura,2011 {4] cries 647 2 Universal declaration of human rights which was adopted by general assembly on 10,December 1948 3 International covenant on civil and political rights,1966



In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law

As far as the Indian legal jurisprudence is concerned, the international promise of fair trial

is very much reflected in the constitution scheme as well as in the procedural law like

CRPC. The Indian judiciary also highlighted the need and importance of the concept of

fair trial in number of cases. In ZAHIRA HABIBULLAH SHEIKH AND ORS V

STATE OF GUJRAT4(this case is also known as the Best Bakery Case) observed that the

fair trail obviously would mean a trail before an impartial judge, a fair prosecutor and an

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. If the witness

gets threatened or are forced to give false evidences that also would not result in a fair trial.

The failure to hear material witnesses is certainly denial of fair trial. The court also observed

that the principles of fair trail now informs and energizes many areas of the law. It reflected

in numerous rules and practices. The Supreme Court of India in the case of Willie

(Williams) Slaney v State of Madhya Pradesh5observed that the object of CRPC is to

provide, and ensure the full and fair trial to the accused, along with the well-established

principles of natural justice.

Fair trial is the cornerstone of democracy. A fair trial is the heart of criminal jurisprudence

and important facet of democratic polity that’s governed by rule of law. Conducting a fair

trial is beneficial both to the accused and as well as to the society. A conviction resulting

from an unfair trail is contrary to our concept of justice6. The assurance of fair trial, is the

first imperative of dispensation of justice. The concept of fair trial is designed to protect

the right to life and personal liberty from arbitrary power of arrest.

In the case of T.H.Hussain v M.P.Mondkar,7 The Supreme Court has summarised the

concept of fair trial in the following words.

It is obvious that the primary object of criminal procedure is to ensure a fair trial of the accused person. Every trail begins with the presumption of innocence in favour of the accused; and the provisions are so framed that a criminal trial should begin with and be throughout governed by this essential presumption, but a fair trial has naturally two objects in view, it must be fair to the accused and it must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view.it is therefore, of the utmost importance that, in criminal trial, witness should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial never be so conducted by the prosecution as would lead to a conviction of an innocent person similarly and guilty person should not be leaved unpunished...

4[2004] 4 SCC 158 5 AIR 1956 SC 11 6 State of Punjab v. Baldev Singh AIR 1999 SC 2378. 7 1958 S.C.Cri.L.J.701; A.I.R.1958 S.C. 376 (379).



R.V.Kelkar in his 'Criminal Procedure' retreats the concept and need of fair-trial as….

One principle object of criminal law is to protect society by punishing the offenders.

However, justice and fair play require that no one be punished without a fair trial. A

person might be under a thick cloud of suspicion of guilt, he might have been even

caught red-handed, and yet he is not to be punished unless and until he is tired and

adjudged to be guilty by a competent court. In the administration of justice it is of

prime importance that justice should not only be done but must also appear to have

been done. Further it is one of the cardinal principal of criminal law that everyone is

shed. The acquittal of innocent and conviction of guilty person are the objectives of criminal trial. Presumed to be innocent unless his guilt has been proved beyond

reasonable doubt in a trail before an impartial and competent court or tribunal.

Article 21 of Indian Constitution:

Article 21 of the constitution is sometimes called as mini constitution. It’s one of the

important articles in the constitution. Article 21 provides that, ‘no person shall be deprived of his life or personal liberty except according to procedure established by the law’ ’the right

guaranteed under article 21 is available to citizens as well as non-citizens. The supreme

court of India in the case of Rattiaram v. State of Madhya Pradesh8 observed that the fair

trial is the heart of criminal jurisprudence. Fair trial is a fundamental right which flows

from article 21 of the Constitution. Denial of fair trial is the denial of human rights. Every

person has a right to fair trial by a competent court in the spirit of the right to life and

personal liberty.9 In India the term Due Process was avoided and the term procedure

established by law was adopted. However, by way of judicial interpretation the meaning is

same. Justice Krishna Ayer in the case of Sunil Batra v. Delhi Administration 10 made the

following observation:

Truly our constitution has no due process clause as the 8th amendment of the US constitution but in this branch of law after Maneka Gandhi and R.C. Cooper case the effect is the same.

American constitution and fair trial:

5th Amendment

o American constitution, 1791 provides, "no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law."

6th Amendment

8 AIR 2012 SC 1485. 9 Mohd Husain alias Zulifikar Ali v. The State (Govt of NCT). 10 1978 SCC (4) 494



American constitution, 1791 states that, “in all criminal prosecution the accused shall enjoy the right to a speedy and public trial by an impartial jury and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour and have to assistance a counsel for his defence.”

8th Amendment

o American constitution of 1791, says that “excessive bail shall not be required nor excessive fine can be imposed, nor shall cruel and unusual punishment be inflicted,”

In USA the important facet of fair trial is the Due process clause. The due process is not

defined anywhere but it’s explained as the procedure which is fair and reasonable. Due

process has also been defined as a controlling element for legislature. The French

declaration 1789 makes a reference to due process clause under article 7 which reads as:

No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law.

Essential components of Fair Trial under Adversary System

All over the world there are two types of criminal justice system one is adversely system

and another is inquisitorial system. India follows the adversely system where two parties

contest each other and judge works as a neutral umpire. The burden of proof is on

prosecution to prove the guilt of accused beyond reasonable doubt. In Himanshu Singh

Sabharwal v State of M.P11the court observed that the fair trail envisaged under this code

is not imparted to the parties and the court has reason to believe that the prosecuting

agencies or prosecutor is not acting in the requisite manner the court can exercise its power

under 311 of the code or under 165 of the Indian Evidence Act 1872 to call in for a material

evidence’s and call for a relevant document as to sub serve the cause of justice:

Presumption of innocence

Independent, impartial and competent judge

Expeditious trail

Hearing should be in open court

Knowledge of accusation and Adequate opportunity to defend himself

Trial in presence of accused.

Evidences to be taken in presence of accused

Cross examination of prosecution witnesses.

Prohibition of double jeopardy

Legal aid.

11 MANU /SC/1193/2008



Presumption of Innocence

Presumption of innocence is the cardinal principle of criminal justice system. The accused

enjoys this right under various conventions. Article 11 of UDHR provides everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to the law in a public trail and when he has had all the guarantees necessary for his defence.

Article 14(2) of ICCPR 1966 States everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Article 6(2) of European convention on human rights [hereinafter as ECHR] provides

everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

According to article 8(2) of American convention on human rights [hereinafter ACHR]

provides every person accused of criminal offence has a right to be presumed innocent so long as his guilt has been proved according to law.

The principle of presumption of innocence is recognized in USA since from 1895.the

supreme court of USA in the case of COFFIN V UNITED STATES12 presumption of

innocence in favour of the accused is the undoubted law, axiomatic and elementary, and its

enforcement lies at the foundation of the administration of our criminal law. It’s to be

noted that the presumption of innocence has reached up to the level of fundamental rights

due to ‘due process’clause.in India in the case of Vinod Solanki v Union of India13 observed

that presumption of innocence may not be treated to be the fundamental right within the

meaning of article 21 of the Constitution. [Para 19 of judgment]. The presumption of

innocence means that the burden of proof lies on prosecution and he is supposed to prove

beyond reasonable doubt. If there is any doubt the benefit goes to the accused. This

presumption of innocence is a presumption of law.it flows from the Latin maxim ‘’ei-incumbit probation qui dicit, non qui negate’ ’which means the burden of proof is on that

who asserts, and not upon whom who denies. The presumption is based on the principle

that there must not be a wrongful conviction. The wrongful acquittals are undesirable and

shakes the confidence of people in the judicial system, much worse is however 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.14Under English common law, the accused is presumed innocent not only in

criminal proceeding’s but in civil proceedings as well.

12 156 U.S.432 1895 132009 [1]SC1 14 Kali Ram v. state of H.P 197 SCC [Cri] 1048.



In adversary system of trial, the criminal trial begins with the presumption of innocence

and provisions of the criminal codes are so framed that criminal trial throughout are

governed by presumption of innocence.

Independent, impartial and competent judge.

Independent is opposite to dependent. Judge must be an independent person which means

judiciary must be independent. Independent judiciary does not mean only lower judiciary

but higher judiciary as well. Once the judicial magistrate, sessions judges are appointed by

the state in consultation with high court than they work under direct control and

supervision of high court rather than state government.in this way independence of lower

judiciary is secured. Article 50 of Indian Constitution also impose a duty upon state to take

steps to separate the judiciary from the executive. Section6 of the code of criminal

procedure separates the courts of judicial magistrate from executive magistrate. The

independence of judiciary is a fundamental concept and now has been evaluated to the level

of basic structure of the Constitution and the very heart of the Constitution scheme.15The

concept of judiciary has its roots from England. Before 1701, the judges hold their office

during the crowns pleasure and like any other crown servant, the judge also could be

dismissed by the king.in this way the judges were the servants of executive. This

subservience naturally led the judges to favour the royal purgative16.the typical example of

such favourless is to be found in the case of hempedens case [the ship money case] in which

7 out of twelve judges gave an award in favour of crown to collect money without

parliamentary approval17.independency of judiciary is necessary organ of the rule of law.

The independency of judiciary is the most significant feature of the Indian Constitution.

Any policy or decision of the government which would undermine or destroy the

independence of judiciary would not only be opposite to public policy but would also

impinge upon the basic structure of the Constitution.18

Impartiality refers to conduct of Judges; impartiality is opposite of biasness. The judges

must render his duties without biasness. Generally, the biasness can be determined when

the judge has any interest in the case. According to the dictionary meaning ‘anything which

tends or may be regarded as tending to cause such a person to decide a case otherwise as

on evidence ‘’.19 Bias may be defined as a preconceived opinion of a predisposition

or…predetermination to decide a case or an issue in a particular manner, so much so that

such predisposition doesn’t leave the mind open to conviction. It’s in fact, a condition of

mind, which sways judgment and render the judge unable to exercise impartiality in a

particular case.20 Generally the bias is of four types, pecuniary bias, personal bias, official

15 State of Bihar v Bal Mukund Sah AIR 2000 SC 1296, 1317; [2000] 4 SCC 640. 16M.P.Jain-Constitutional law 7th edition.212 17 Ibid. 18BrijMohan lal v union of India 2012 6 SCC 502 19 Concise oxford dictionary [1995] 123 20 State of W.B.V Shivananda Pathak,[1998] 5 SCC 513,524;AIR 1998 SC 2050,2056



bias, judicial obstinacy. This biasness is taken away by section 479 of the code of criminal

procedure. Section 479 provides;

No judge or magistrate shall, except with the permission of the court to which an appeal lies from his court, try or commit for trail any case to or in which he is a party, or personally interested, and no judge or magistrate shall hear an appeal from any judgment or order passed or made by himself.

The above section clearly prohibits a trail by a judge or a magistrate in which he isa party

or has otherwise personal interest.

Expeditious Trial

The right to speedy trial has its roots from Magna Carta 1215. Magna Carta under clause

40 provides that ‘to no one will we sell, to no one will we refuse or delay, right or justice

‘which makes it clear that the Magna Carta also advocates speedy trial.

Another important facet of fair trial is expeditious trail. Speedy trial is the essence of

criminal justice system. It’s interesting to mention it here that the in United States, speedy

trial is one of the Constitutional guaranteed rights. The sixth amendment of the

constitution provides;

‘’in all criminal prosecutions, the accused shall enjoy the right of speedy and public trail’’

The sixth amendment speedy trial guarantee has been before the Supreme Court a number

of times. The court has spoken eloquently about its importance as a fundamental right and

in Klopfer v North Carolina21 incorporated it into the fourteenth amendments due process

cause. Despite the applicability of the speedy trial doctrine to notoriously overcrowded state

courts, the court has rarely found the right to have been violated. Refusing to lay down a

hard fast rule of speedy trail the US Supreme Court in the case of Barker v

Wingo22observed that despite a five year delay between indictment and trail, there was no

violation of the right. The court furthered observed that every case will be determined as

per the facts and circumstance. The court evolved the balancing test which considers;

Length of delay

Reason for delay

Prejudice to the defendant

The defendant’s timely assertion of rights.

The concept of fair trial mainly fulfils two essential purpose one is prevent defendants from

languishing in jail for an indefinite period before trail. Pre-trail confinements are more

often serious in nature because the question of employment, economic resources,

reputation, mental order are at stake. The second object is that the witnesses of case should

21 386 US 213 1967 22 407 U.S 514 1972



not disappear, or memories of witness should not fade, and the evidence should not be

wasted or destroyed.

Clause 3 of European convention on human rights provides;

‘Everyone arrested or detained shall be entitled to trial within a reasonable time or to release pending trial.

Clause 4

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

The right to fair trial is necessary in order to avoid the undue harassment of the accused.

It’s well settled principle of criminal jurisprudence that delayed justice is denied justice.

Speedy trail is necessary in order to gain the confidence of public on the judiciary. The

supreme court of India since from 1980, lays stress on speedy trial. The court in the case of

Husain Ara Khatoon [IV] v State of Bihar23 observed that speedy trial is an essential

ingredient of article 21 of the Constitution of India. And it’s the Constitutional duty of

the state to setup such procedure as would ensure speedy trial to the accused. The state

cannot avoid its Constitutional obligations by pleading financial or administrative

inabilities. Discussing the object of fair trial the Supreme Court in the case of Seta

Hemachandra Shashittal v State of Maharashtra24[para 10 of judgment] the court

observed

‘’The court has emphasised, time and again, the need for speeding of the trail as undue delay in culminating the criminal proceedings is antithesis to the Constitutional protection enshrined under article 21 of the Constitution, nonetheless the court has to view it from the pragmatic perspective and the question of delay cannot be considered entirely from an academic angel.’’

In the case of Moti Lal Saraf v Union of India25, the court observed that the concept of fair

trial is an integral part of article 21 of the Constitution.

In the case of A R Antulay v R.S. Nayak26, a five judge bench of the Supreme Court

reiterated the position that a right to speedy trial is implicit in article 21 of the Constitution.

The court also laid down detailed proposition of law on speedy trial:

Right to speedy trial flows from fair, just and reasonable procedure implicit under

article 21

23 1980 1 SCC 98 at 107 24 AIR 2001 SC 1246 25 2007 1 SCC [cri] 180 26 1992 1 SCC 225



Right to speedy trail is available at all stages like stage of investigation, stage of inquiry,

appeal, revision and retrial

Whenever the question of infringement of speedy trail comes the first question which

need to be answered is to –who is responsible for delay...

While determine the question of undue delay one must keep in mind the circumstance

of case, nature of offence, number of accused and witness, work load of the court, local

conditions and other like circumstances.

Each and every delay is not prejudice to accused. Some delay may helpful for him.

However inordinate delay may be taken as presumptive proof of prejudice.

Speedy trial under CRPC 1973

Section 158(2) provides; such superior officer may give such instruction to the officer in-

charge of the police-station as he thinks fit, and shall, after recording such instructions on

such report, transmit the same without delay to the magistrate.

Section 309(1) provides.; In every inquiry or trial the proceedings shall be continued from

day-to-day until all the 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.

Section 468 provides; except as otherwise provided elsewhere in this code, no court shall

take cognizance of an offence of the category specified in sub-section {2}, after the expiry

of period of limitation.

2. The period of limitation shall be-

a) Six month, if the offence is punishable with fine only;

b) One year, if the offence is punishable with imprisonment for a term not exceeding one

year;

c) Three years, if the offence is punishable with imprisonment for a term exceeding one

year but not exceeding three years.

3 for the purpose of this section, the period of limitation, in relation to the offence which

may be tried together, shall be determined with reference to the offence which is punishable

with the more severe punishment or, as the case may be, the most severe punishment.27

The criminal courts should exercise their available powers, such as mentioned in the above

sections of code of criminal procedure to give effect to the right to speedy trial. A watchful

and diligent judge can prove to be better protector of such right than any guideline.in order

to make it a Constitutional right, fundamental right there are practical problems like over

burden of cases, vacancies of judges, lack of infrastructure etc. Recently the chief justice of

27 Sub-s.[3] inserted by the act no.45 of 1978,s.33



India honourable T.S. Thakur makes various appeals to government of India to fulfil the

vacancies in the courts.it has been estimated that 45%cent of the vacancies are still unfilled.

Hearing should be in Open Court

Article 14(1) of the ICCPR28 guarantees right to a public hearing as one of the essential

requirement of fair trial however it also permits certain exceptions to the general rule. The

right to open court is not available only to the parties but it belongs to a general public as

well. It’s said that openness brings fairness. The openness of courts means fairness of trial.

Hearing in open court doesn’t mean only that parties should contest each other in open

court but it also means judge has to give its judgment in an open court. A judgment is

considered public when it’s pronounced in an open court orally or when it’s published.

Section 327 of the code makes provision for open court. Section 327 provides that the place

in which a trial shall be deemed to be an open court to which the public may have access

subject to the orders of a trail magistrate in a particular case that the pubic or a particular

person shall not have access thereto.327 gives discretion to the magistrate or a judge to

deny the access to the general public or any particular person to the court. Under clause 2

the judges or a magistrate can conduct a trail under camera.29In rape cases the magistrate

is also empowered to conduct the trail in camera30.the power of court to hold certain trails

in camera is inevitably associated with the administration of justice itself. Similar provisions

are also found in s 53 of Indian divorce act 1869,s 14 of Indian official secrets act, 1923,

section 22[1] of Hindu marriage act, 1955, etc.31

Knowledge of accusation and adequate opportunity to defend himself

Adequate opportunity to defend himself is essential feature of fair trial. A person can

defend himself only when he has knowledge of his accusation. Knowledge of accusation is

the corner stone of fair trial. Article 14(3) of ICCPR provides that everyone shall be

entitled to be informed promptly and in detail in a language which he understands of the

nature and cause of charge against him. Clause (b) also provides the adequate time and

facilities for the presentation of his defence and to communicate with counsel of his own

choice. Article 6(3) (b) of the ECHR also provides accused should be informed promptly,

in a language which he understands and in detail, of the nature and cause of accusation

against him. Under clause B accused must have adequate time and faculties for the

presentation of his defence.

28 Article 14[1] provides everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by the law. The press and public may be excluded from all or parts of a trail for reason of morals, public order or national security in a democratic society. 29 Sub section 2 was inserted by act no 43 of 1983. 30 Inserted by criminal law amendment act 2013 31 Ratanlal and Dhirajlal The code of criminal procedure 21st edition p.654



The code of criminal procedure also provides that the accused must be informed of his

charges, against him as early as possible, and adequate time must be given to him to prepare

his defence. The Supreme Court discussed the importance of chare in a number of cases

the object of framing a charge is to enable an accused to have a clear idea of what he is

being tried for and of the essential facts that he has to meet. The charge must also contain

the particulars of date, time, place and person against whom the offence was committed,

as are reasonably sufficient to give the accused notice of the matter with which he is

charged. The right to have a precise and specific accusation is contained in section 211 of

CRPC Section 50,228,240,246,251 of the code of criminal procedure are notable here.

Every police officer or other person arresting any person without warrant shall forthwith

communicate to him full particulars of the offence for which he is arrested or other grounds

for such arrest.32 Where the judge frames any charge, the charge shall be read and explain

to the accused and the accused shall be asked whether he pleads guilty of the offence

charged or claims to be tried.33 When the charge are framed, the charge shall than be read

and explained to the accused, and he shall be asked whether he pleads guilty of the offence

charged or claims to be tried.34

When the charges are framed, the charges shall than be read and explained to the accused,

and he shall be asked whether he pleads guilty or has any defence to make.35

When in the summon cases the accused appears or is brought before the magistrate, the

particulars of the offence of which he is accused shall be stated to him, and he shall be

asked whether he pleads guilty, or has any defence to make, but it shall not be necessary to

frame a formal charge.36 The accused is also entitled for adequate time and facilities for the

presentation of his defence. What constitutes adequate time will depend on the nature of

proceedings and the factual circumstances of the case? The term facilities mean, that the

accused and defence counsel must be granted access to appropriate information, files and

other documents necessary for the preparation of defence. The supreme court in the case

of Manipal v. State of Haryana37observed that ‘’every reasonable presumption must be

made in favour of an accused person; he must be given the benefit of every reasonable

doubt. The same broad principles of justice and fair play must be brought to bear when

determining a matter of prejudice as in adjudging guilt. But when all is said and done what

we are concerned to see is whether the accused had a fair trial, whether he knew what he

was being tried for, whether the main facts sought to be established against him were

explained to him fairly and clearly and whether he was given a full and fair chance to defend

himself.

32 See section 50 of the code of criminal procedure 1973. 33 See section 228(2) 0f the code of criminal procedure 1973 34 See section 240(20 of the code of crimmal procedure 1973 35 See section 246(2) of the code of criminal procedure 1973 36 See section 251 of the code of criminal procedure 1973. 37 AIR 2010 SC PARA 9 OF JUDGMENT



Trial in Presence of Accused

A trial in absence of the accused is not supported by the principles of natural justice unless

the code otherwise required. The general rule is that all the trial should run in presence of

accused and evidences should be taken in presence of accused. However, there are certain

exception to this rule. The code of CRPC provides that the court should not proceed ex

parte unless the circumstances otherwise require. The code require that judges, magistrates

should hear the accused on the question of sentencing before passing the sentence in

presences of accused.38However it should be kept in mind that presence of accused is not

essential requirement all the times, the court has power to hear the case without the

accused. The code under various sections of the code gives power to court to dispense with

the personal attendances and permit him through his pleader.39When a magistrate issues a

summon, he may, if he sees reason so to do, dispense with the personal attendance of the

accused and permit him to appear by his pleader.40Section 205(1) covers those cases in

which summon is issued, but it’s not confined to summon cases only. The magistrate may

direct the personal attendance o the accused at any stage of the proceedings. But if a warrant

is issued against an accused person his personal attendance cannot be dispensed with,

exemption from personal attendance cannot be sought directly in the high court under

section 482 of code. Remedies available before the trail court should be first exhausted.41On

exempting the accused from personal appearance the complaint has no right to be heard.

The magistrate however give reason for granting exemption42

Section 273 of code provides that all evidences should be taken in presence of accused, or

when his personal attendances is dispensed within the presence of pleader. The Supreme

Court in the case of Talab Haji Hussein case43 observed if the fair trail is the main object

of the criminal procedure, any threat to the continuance of a fair trial must be immediately

arrested. If an accused person but his own conduct, puts the fair trail into jeopardy, it would

be primary and paramount duty of criminal courts to ensure that the risk to the fair trial is

removed and criminal courts are allowed to proceed with the trail smooth and without any

interruption.

Section 317 provides exemption from personal attendance where accused represented by

pleader. Section 317 provides for enquires and trails being held in absence of the accused

[person in certain cases.it has been held by Kerala high court that all trivial and technical

cases not involving moral turpitude, where the accused are ladies, old and sickly person,

factory workers, labourers, busy business people and industrialists the court should

invariably exempts such persons from personal attendances.44

38 See section 235(2), 248(2) of code of criminal procedure 1973. 39 See section 205(1), 273, 317 of code of criminal procedure 1973 40 Section 205(1) of code of criminal procedure 1973 41 Rattan Lal & Dhirajlal the code of criminal procedure 21st edition p.442 42 S.R. Jhunjhunwalla v B.N. Poddar 1988 CRLJ 51 Cal. 43 AIR 1958 SC 376, 380. 44 Helen Rubber Industries v State of Kerala 1973 CRLJ 262



Evidence to be taken in presence of accused.

This is also a cardinal principle of fair trial that the evidences should be taken in presence

of accused. The code in this regard contain various provisions which casts an obligation

upon courts to take evidence’s in presence of accused.

Section 273 of the code provides. All evidence’s 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 within the presences of pleader. The rule enacted in this section makes it

imperative that all evidence’s in a trail shall be taken in presences of accused. However, this

section also contained exceptions as well. Presence of accused is not a strict rule. Sessions

judge has power to dispense with the personal attendance of an accused and to allow him

to appear by pleader during the sessions trail. Such a power may properly be exercised in

favour of pardanashin ladies or on a ground of ill-health.45[Rattan la book].it was held in

the case of state of Maharashtra v P.B.desai46, that section 273 CRPC provides for

dispensation from personal attendance.in such cases evidence can be recorded in the

presence of pleader. The presence of pleader is thus deemed to be presence of accused.

Thus this section contemplates constructive presence. This shows that the actual physical

presence is not necessary. The right created by this section is furthered supplemented by

278 of the code which provides that whenever the law requires the evidences of witness to

be read over to him after its completion, the reading shall be done in presence of the accused

or of his pleader. These provision enable the accused person to prepare his argument for

rebuttal of such evidences.47If any evidence is given in a language not understood by the

accused person, than the object of section 273 is violated in order to avoid this problem

section 279 casts a duty upon courts to understand the accused. Section 379 CRPC

provides that whenever any evidence is given in a language not understood by the accused,

and he is present I court in person, it shall be interrupted to him in open court in a language

understood by him. However it should be kept in mind that non-compliance with this

provision will be considered as a mere irregularity not vitiating the trail if there was no

prejudice or injustice caused to the accused person48.there are other provisions in the code

which also talks about that the accused must be present when evidence’s is to be taken, e.g.

framing of charges when are charges are framed the accused must be present and allegation

against the accused must be informed to the accused

Cross Examination of Prosecution Witnesses

45 Supra note 41 at p.552 46 2003 Cri.L.J.2033 S.C 47 Neeraj Tiwari, fair trail vis-à-vis criminal justice system, journal of law and conflict resolution vol.2 (4), pp.66-73, 2010 April. 48 Ibid.



Cross examination is an important tool to check the credibility of witness. This right is

available under various international conventions49. Article 14 of ICCPR, provides that,

“to examine or have examined the witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same condition as witnesses against him.”

This right is an essential element of the principle of equality of arms. The term “to examine

or have examined” should be read as recognition of the two main systems of criminal justice,

the inquisitorial and accusation one. It should be noted that the defence does not have an

Unlimited right to obtain the compulsory attendance of witness on the defendant’s behalf,

but only “under the same condition” as witnesses against him\her. But no such restriction

applies to the prosecution.in Badri v state of Rajasthan50the court held that where a

prosecution witness was not allowed to be cross-examined by the defence on a material

point with reference to his earlier statement made before the police, his evidence stands

untested by cross examinations and cannot be accepted as corroborating his previous

statement. Without having any cross examination, the evidences given by witness cannot

be assumed thrust worthy.so it’s the right of accused to cross examine the prosecution

witness and if any criminal trail drives the same right to the accused, it cannot be considered

as a fair trial as held in the case of Sukanra v state of Rajasthan51.

Prohibition of Double Jeopardy

The roots of the doctrine against double jeopardy are to be found in the well-established

maxim of the English common law, nemo debet bis vexari, meaning that a man must not

be put twice in a peril for the same offence. The concept of double jeopardy is based on the

doctrine of autrefois acquit and autrefios convict which means that 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 prohibition is recognized in various international

conventions. Article 14 is noteworthy;

No one shall be liable to be tried or punished again for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Article 8(4) of American convention provides .an accused person acquitted by a non-appealable judgment shall not be subject to a new trial for the same cause. Apart from all

the above provisions this right is also recognized under other statutes, conventions as

well.52Prohibition against jeopardy is also a Constitutional right recognized under Indian

Constitution under article 20(2) .this right is also guaranteed under American Constitution

49See European Convention, Article 6(3) (d); American Convention, Article 8(2) (f); African Commission Resolution, and ICC Statute, Article 67(1) (e). 50AIR 1976 SC 560 51AIR 1976 RAJ 52 See also Article 4 of Protocol 7 to the European Convention and Article 20 of the ICC Statute. Note that Article 8(4) of the American Convention is different in that the prohibition applies only if the accused has been previously acquitted, but then the prohibition is not limited to retrial on the same charge—no charge arising out of the same facts (“the same cause”) may be pursued.



as well. Fifth Amendment of American Constitution provides that no person shall be put twice in jeopardy of life or limb.in the U.S.A. The protection is not only against a second

punishment but even against the peril in which a person is placed by the second trail for

the same offence.in India article 20(2) which provides as ‘’no person shall be prosecuted

and punished for the same offence more than once’’ contains the rule against double

jeopardy. The principle was in existence even prior to the commencement of the

Constitution53but the same has now been given the Constitutional status rather than a

mere statutory right. The ambit of article 20(2) is however, narrower than the English or

American rule against double jeopardy. The Indian provision enunciates only the principle

of autrefois convict but not that of autrefois acquit.in Britain and the USA both these rules

operated and a second trail is barred even when the accused has been acquits at the first

trail for that offence. On the other hand, in India the rule of autrefois acquit is not

incorporated in article 20(2). Article 20(2) may be invoked only when there has been

prosecution and punishment in the first instances. Section 300 of the CRPC also embodied

the rue that the person once convicted or acquitted not to be tried for the same offence or

on the same facts for any other offence.

Legal Aid

Last but not least this is one of the most important ingredients of the principle of fir-trial.

The right of the legal counselling exclusive of all other fundamental rights associated with

fair-trial is unavoidable rights. Here giving right to legal assistance means maintaining right

to equality of arms which can lead to fair and full justice. This right preserve other rights

of the suspects and helps to protect them from customary crime like torture. That is why

this right must be guaranteed to the suspect while the investigating officer investigates the

crime. The right to receive legal aid is non-derogable right and is guaranteed a number of

international conventions.

Article 10 of UDHR 1948 Provides. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his right and obligations and of any criminal charge against him.

Article 14 of ICCPR 1966 provides. All persons shall be equal before the courts and tribunals.in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14 (3) (d) provides, The right of an accused person to be tried in his presence, and to defend himself in a person or through legal assistance of his own choosing, to be informed, if he does not have legal assistance of this right, and to have legal assistance assigned to him, in any case where the interest of justice so require, and without payment by him in any such case if he doesn’t have sufficient means to pay for it.

53 See sec 26 of General Clause Act and s 403(1) of CRPC1898, and CRPC 1973



Article 8 (2) (d) of American Convention of Human Rights, 1969 provides.

The right of accused to defend himself personally or to be assisted by a legal counsel of his own choosing, and to communicate freely and privately with his counsel.

Article 7 (1) (c) of American Charter on Human Rights and Peoples Right, 1981 provides:

The right to defence, includes the right to defend by counsel of his choice.

Article 6 (3) (c) of the European Convention on Human Rights 1998 provides that

Everyone charged with a criminal offence has the right to defend himself in person or through legal assistance, to be given it free when the interest of justice so requires.

In USA the 6th amendment to the Constitution provides that in all criminal prosecutions

the accused shall enjoy the right to have the assistance of counsel for his defence. The first

cases in the American Supreme Court where the court discussed the scope of legal aid is

the Powell v Alabama54where Justice Sutherland of the supreme court of United States gave

classical expression. He said. ‘Even the intelligent and educated layman has small or sometimes no skill in the science of law. If charged with crime, he is incapable, generally of determining for himself whether the inducement is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidences, or evidence irreverent to the issue or otherwise in admissible. He lacks both the skill and knowledge adequate to prepare his defence. He requires the guiding hand of counsel at every stage of proceedings against him. Without it, though he is not guilty, he faces the danger of conviction because he doesn’t know how to establish his innocence’55.in the landmark decision of Gideon v

Wainwright56 the supreme court of united states held that the 6th amendment guarantees

of counsel to indigent defendants was so fundamental and essential to a fair trial that the

due process clause required states to provide counsel to all indigent defendants in felony

cases. The court observed that the indigent person accused of serious offences is entitled to

a counsel at state expenses. Justice Hugo black observed, that the right of one charged with crime may not be deemed fundamental and essential to fair trial in some countries, but is in ours. From the very beginning, our state and national Constitution and law have laid great emphasises on procedural and substantive safe guard designed to assure fair trial before impartial tribunal in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him. Thus in U.S.A., the judiciary extended the right to legal aid to all

types of criminal trial, at all stages, at both the federal and state levels. The philosophy of

54 287 U 45 1932 55 Id at 69 56 372 U.S.335 1963



free legal services as an essential element of fair procedure has been recognized by the

court57

The right to legal aid has its roots from Magna Carta of 1215.Magna Carta under clause

40 provides that ‘to no one will we sell, to no one will we refuse or delay, right or justice.in

India right to counsel is recognized as a fundamental right of an arrested person under

article 22(1) which provides that no person who is arrested shall be detained in custody

without being informed, as soon as may be, of the grounds for such arrest nor shall he be

denied the right to consult, and to be defend by, a legal practitioner of his choice. The

framers of Indian Constitution did not want to incorporate the concept like NA

WAKEEL NA DALEEL, NA APPEAL [no lawyer, no hearing, and no appeal].the right

to legal aid is manifested in Constitution as well as in CRPC .article 39-A58 is considered

the mother of legal aid.it provides as the state shall secure that the operation of the legal

system promotes justice, on the basis of equal opportunity , and shall, in particular, provide

free legal aid, by suitable legislation or scheme 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.to fulfil the Constitutional obligation in 1987,the legal service authority

act was passed. This act provides various schemes which promote legal aid to the

marginalized society. However much more steps need to be taken to strength this act and

make it a tool to reach out people who are unable to reach courts.

The CRPC 1973 provides various sections which provides the legal aid to the people.

Prominet among them are as under,

Section 41 D59 provides. Where any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not though not throughout interrogation.

Section 303 provides. Any person accused of an offence before a criminal court or against home proceedings are instituted under this code, may of right be defended by a pleader of his choice

Section 304(1) provides. 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 state.

From the above provisions it’s clear that the concept of legal aid has a seminal importance

not at international level but at domestic level at well. The supreme court of India also gives

it a seminal importance and is regarded as the foundation of a fair trial. The supreme court

57 Dr M. Asad Malik, right to legal aid in human rights perspective.p.83, Indian Bar Review vol XL 2 2013 58 Inserted by the Constitution (Forty-Second Amendment) Act 1976 59 Inserted by the Code of Criminal Procedure (Amendment) Act 2008



in the case of Maneka Gandhi v union of India60it was held that the right of an indigent

person to be provided with lawyer at State expenses is an essential ingredient of article 21,

for no procedure can be just and fair which doesn’t make available legal service to an accused

person who is too poor to pay for a lawyer.in the case of Kadra Pahadia v State of Bihar61.

Bagwati J observed that petitioner must be provided legal representation by a fairly

competent lawyer at the cost of the state. Legal aid in a criminal case is a fundamental right

implicit in article 21of the Constitution. Legal aid at the cost of the state should be given

to indigent person under police custody also62. The supreme court of India in another

decision observed that it’s the duty of magistrate to satisfy himself that legal aid was

provided to the accused even if the accused is terrorist. The court furthered observed-

It’s the duty and obligation of magistrate before whom a accused of committing cognizable offence is first produced to make him fully aware that it is his right to consult and to be defended by a legal practitioner and in case he has no means to engage lawyer of his own choice, that one will be provided to him from legal aid at 5the expenses of state. The right flows from article 21 and 22(1) of the Constitution and needs to be strictly enforced.63

Importance of lawyers in legal aid.

The counsel is always an important person in any justice delivery system. The lawyer

represented a party in a court of law and lawyers uses their skill, knowledge to defend or

argue the matter.as a matter of fact generally a case cannot be defended or argued without

a counsel. The layers have a predominate position in our legal justice system. The Supreme

Court in the case of Md. Sukar Ali v state of Assam64observed that in a criminal cases if

the counsel for accused does not appear, for whatever reasons, cases cannot be decided

against the accused. The court should appoint amicus curiae to defend the accused.

In Mohammad Husain Alias Zulfikur Ali, v State (government of NCT) Delhi the court

in this case observed that the trail will be illegal if the lawyer is not presented to the accused.

The lawyers are duty bound to provide the legal aid to the needy person. The lawyers in

India are governed by Advocates Act 1961. The Act also casts a duty upon lawyer to

provide legal assistance to the needy people. The lawyers are supposed to represent the

accused irrespective of his offence. Professional ethics require that a lawyer cannot refuse a

brief, provided the accused is ready to pay the Breif.any kind of resolution passed by the

bar association that none of its members will appear for a particular accused, whether he is

a terrorist, policeman, rapist, mass-murderer etc. is against the norms of professional

ethics.65

60 AIR 1978 SC 597 61 AIR 1981 SC 939 62 Sheela Barse v State of Maharashtra AIR 1983 SC 378 63(2012) 9 SCC 1 64 AIR 2011 SC 1222. 65 Mohammad Rafi v State of Tamil Nadu AIR 2011 SC 308



Conclusion.

Our criminal justice system is adversarial in nature but has also adopted some features of

inquisitorial system. The code provides the balancing approach between the two. The

provisions regarding the fair trial is beautiful in books but as not beautiful on ground level.

One of the biggest thing which halts the fair trial is pendency of cases. The court rooms

are locked and there are number of vacancies of judges, recently the chief justice of India

makes publically several appeals to the Government of India in this manner. The litigants

must receive fair trial on both sides. The concept of equality is the corner-stone of the

Constitution of India.

FAIR TRIAL IN CRIMINAL PROCEDURE Dr. Showkat Ahmad...

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