IMPORTANCE OF

FAIR TRIAL
Question27

Discusstheobject of criminal trial and

coneptoffairtrial? how it is related to the
Answer
Ain object of law of Criminal
Procedure
AOCused person gets a full and fair tril)Ir has
is to ensure that
provided
mechanismfor the
enforcement of criminal law.
criminal law would be almost worthless, in the
The substantive
nrcdural law. (Every criminal trial is a voyageabsence of proper
of discovery of
th. It ensures fair trial. Every criminal trial
must be fair to both
he accused and the prosecution. The trial
must be judged from
this dual point of view. The object of criminal trial is to
guilty person when the guilt is established beyond the convict
the
doubt, thus, the object of the Criminal Procedure can bereasonable
achieved
by givingassurance of fair trial.)
The concept of fair trial: The first imperative of the
dispensation
of Justice is assurance of fair trial. It is one of the most
valuable
ights of our citizens to get a fair trial and impartial trial free from
prejudice.YThe denial of such a right amounts to violation of
nght to personal liberty within the meaning of Article 21 of the
Constitution. It makes obligatory upon the State Srate not to deprive
any person of his life or
personal liberty except according to the
dle procedure established by the law. The concept not only
aright, it gves
also follows that the accused must be tried free from
Prejudice. Otherwise, the trial may be vitiated.
Thus, the concept of fair trial has a relation enshrined in the
theConsaccused
titution.is Ittosayssaysbe tried
that, the mode and the manner in which
shall not occasion afailure of justice
ounts to denial of justice. The concept of fair trial is
97
a ralr, Just and reasOnabie nal UIlal.

(In thecase of Hussainara Khatoon v. Honme Secretary, Bibar,

[AIR 1979 SC 1377] the Supreme Court has held that, it is the
constitutional right of every accused person, who is unable to
engage a lawyer and secure legal services an account of reasons
such as poverty or indigence to have free legal services provided to
him by the State. In this regard, the State is under constitutiond
duty toprovide a lawyer to such a person, if the needs of justic
sorequire. If free legal services are not provided, the
be said to be afair one and it may be trial cannot
Article 21. vitiated as contravening
SiGUDHR. heh hel 76
 F
Atcle le Qud
UD#

eyoe
Cwon a
caualiy Renalpne
tofaran
hos gut
an udepadet yo e
presmag

-fcenal.

law
Rio ) OBLYGprON pudetas

hay hal
Cyeminal
guacteies
fhes
efence
 tobbe examined in
willhave relation to the fair or not
which the gravity of the
accusation,
resources society can the
theavailable resources, the reasonably afford to spend, the
rimeand
and
Ualityofthe
it
ature, is attempted| to give an prevailing
overview of
social values, etc. Inthis
criminaltrial.
the common attributes of
afair

, ADVERSARY SYSTEM
Wehaveadopted adversary system of criminal trial based on accusatorial
Tnethod. According to this:
system, any dispute as to the criminal
4iy of a person is to be resolved by the respon
irand adequate opportunity tothe disputantscriminal
to
court after giving
heir respective cases.(The court is more or less place before the court
m like an umpire and is not
take sides or to show any favour or
odecide as to which party has distavour to any party.(t has only
succeeded
olaw.The adversary system of trial enables an
in proving its case according
court to have a proper perspective of the case, andimpartial and competent
it is believed that on
the whole this system is aabetter device to
manner.
discover the truth in a fair
In oúr system of criminal trials, generally
speaking, the prosecutor
Tepresenting the State accuses the defendant (accused person) of the com
misson of the alleged crime; and the law requires him to prove his case
1. See,
Arts. IO and IIof the Universal Declaration of Human Rights as adopted and
proclaimed by the General Assembly of the United Nations on 1o-I2-1948.
 hich
cesary, that ofagainst tor picionspecial
ecution,directwould [See,Executive
the (2 under (by has
subject creating independent V
the ent,
The 2.
the
administration judicialCourts of
administrative Ss. requiring
th e brought Code
significance
executive In 6-19]beán Separation impartial most
INDEPENDENT,
blic the confidence to criminal
a any direct
Magistrates) has
place such to theabout indispensable
lly caprice be Because
way functioning made and
in influence and supervision of
reasonable open.Public of subordination connected appointment th e
which trial, judiciary compet the ent
criminal oforimportance of and IMPARTIAL
ay vagaries)and
publíc the separation following
the or as and the
of condition
the separation, bringing
vestrictions control--direct
court
justice.(The in with of from judge
fairness, trial control judiciary
. that State tothe Judicial ofprovisions: tofor AND
is serves anyone them, the the
held in prosecution,
the is (no a
of in conduct fair
, objectivity as open judiciary the judge th e
Magistrates executive.-n
judiciary COMPETENT
shall tCode,he as prosecuting
orconnected High for criminal trial
S. court
aindirect. all the is
be powerful
court or trial. to
therefore, nor
Judicial Court
practical from
an and acts freed is (as matters,order haveJUDGES
open may would
with In
impartiality party, in
executivethethe
distinct this an
instrument as Magistrate each
consiaer
court provides a
of the
he
purposes toindepend.
the respect,
check all it Stated en
ispros be Code
sus of in
 ne the1M or
m O incorpotat
of or
madethe
judgment provi contempt
High judicial
the any to an
on
interested
ougnt permission
to proVisionsthan in in trial.)-
the
embargo practices
of
case a or cog
in of
to (other court
manbeen any
any subjector course
bersonally
No has the andfrom cognate an it, whothat
section trial courts
xim
causa. with interested; putand before
appeal
thepleader
in
take
for has by in impart
Magistrate
court. to
ma this somewhat r95 committed
notice
excentcommit 3s2 3so) no emp
be brobria
the to an S.
to ofAccording personally in and
hearhimself.Section that that
its secure
shall, to a
not in essence or shall more 349 under
try (referredis as of
provides
jurisdiction
judex by offence sit
345, Mag
Magistrate Magistrate a) broughtshall to
The Code. higher
appellate
court,
COurt,
or Magistrate
made twonoted:
344, 48o cases
essecause. party,
context,offences such Magistrate
debet the
or be Ss. is Section local
a
a passed anyor
of
Or own of or is or may in
authority,
I90(1
thea(Tran
479 judge he judge contained
certain b)
case.-Nemo
(3Judge present when
his whichorder Code anywithin
proceeding;
Section
in no no Courts) of Secti
thetheof court
judge (a) (b) trialsions its court
in Inby of
 interference in exercise of power under Section 406 CrPC7 A\re our
Court allowed
In Kanaklata v. State (NCT of Dellbi)", the Supreme Court
PLOT
the
ransfer of a case under the Scheduled Castes and the Scheduled the
(Prevention of Atrocities) Act, from a court because of the Tribes
remarks of the judge regarding the misuse of the Act. ) negative
(5)Competentjudges made available through hierarchy ofc
courts.
regarding the constitution of criminal
will show their hierarchical structure (see, Ss. 6,
-An
courts
and 2.2 given in Lecture 2, Functionaries Under the Code" onFigures 2.I
The hierarchy is desirable and necessary for marshalling of thepage I9).
limited
resources available for the administration of criminal justice. Complicated
cases of heinous offences would attract severe
fore, these cases should be handled with great punishments
care by
and there.
and experienced judges. On the other hand, in case ofbetter qualified
inviting only light punishments, it may be more expedientpetty offences
to have quick
trials and speedy disposals, and such cases can be
by the subordinate judiciary. [See, S. 26 conveniently
and the First Schedule)
handled
Sections 322-325 also indicate the policy of making
tent judges foY handling cases in available compe
Children below r8 years of agecertain peculiar circumstances.
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. Hence, Section 27
5. Zabira
Habibullah Sheikh v. State of Gujarat, (2004)
999: 2O04 Cri LÊ 4
 (6) Qualifications of judges and Magistrates,--For fair trial,persons
it is ofof
prime importance that the judges and Magistrates should be
integrity and character with the necessarv ability and sound knowleage
provisionin this
of law. Though the Code does not make any specific respect
and 18 in
respect, eXCept the provisions contained in Sections 13
efforts are made
of the appointment of special Magistrates, all reasonable competent and
Courts to recruit
by the State Governments and the High
Magistrates.
qualified persons for the posts of judges and
REPRESENTED BY COMPETENT LAWYERS
3/ PARTIES TO BE trial would necessarily
means of securing fair
Adversary system as a independent judges and Magistrates,
and
require not only competent able lawyers adequately representing the parties
competent and
but also
before the court. more
State.-Crime is a wrong done
Prosecutor representing the crime. Therefore, in a
individual victim of the
(I)
society than to the society comes before the crimi
tothe State representing the person suspected of hav
criminaltrial, the
punishment to the accused the Assistant
Public
dyen of
and
ninal (2)
gtation

trial
tmes

of
the
that
sccused
the
State
by
ll a
sing
r.-Th

its
inve
Article 2I of the Constitution as propounded in its earlier decision in
Maneka Gandbiv. Union of ndials, has explicitly observed as foilows:
The right to free legal services is, therefore, clearty 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 Articie zI. This is a con
stitutional right of every accused person who is unable to engage a lawver
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 sorequire, provided of course the accused person does not object
to the provision of such lawyer.l6
 VENUE OF THE TRIAL
provisions regarding venue, i.e. the place of enquiry or
contained in Sections 177-189. If the place of trial is highly trial, ate
totothe accused pYsor and causes various impediments in the
the
of his defence, the trial at such a place cannot be considered
The provisions regarding venue of the trial have
as a
incpronevpeanraietinotfainr
cussed in Lecture 6, "Local Jurisdiction of the Courts : already
trial.)The
the been dis.
page ro9." These provisions are essentially meant to facilitate Police" on
fair trial.
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOE
The adversary system of trial that we have adopted is based oa on the
accusatorial method; and the burden of proving the guilt of the
IS upon the prosecution and unless it relieves itself of
accused
that
burden, the
court cannot record afinding of the guilt of the accused,19 Every
criminal
trial begins with the presumption of innocence in tavour of the accused.
and the provisions of the Code are so framed that a criminal trial should
begin with and be throughout governed by this essential presumption 2
However, it has been observed that the cherished principles or golden
thread of proof beyond reasonable doubt which runs through the web
of our law, should not be stretchd morbidly to embrace every hunch.
hesitancy and degree of doub
6. RIGHTSOF ACCUSED PERSONS AT THE TRIAL
Afair trial implies that it should be fair, both to the
as the accused person. Therefore, the following rights prosecution as well
in favour of the
accused have been recognised by the Code with a view to mke the trial
fair to the accused person:
17. See, Suk Das v. UT of Arunachal Pradesh, (r986) 2 SCC 401,
case, (20I2) 9 SCCI: (2012) 3 SCC (Cri) 48I: 2012 Also see, the Kas40
18. See, Kehar Singh v. State (Delbi Admn.), (1988) I SCCCri609:
LJ 4770.
I988 SCC(Cri) 7I1 and
Mobd. Shahabuddin v. State of Bihar, (20o4) 13
19. Kali Ram v. State of H.P., (I973) 2SCC 8o8: 1973 SCCSCC
s65.(Cri) I048, IO^9: 1974 Cri
LJ I.
20. Talab Haji Hussain v. Madbukar Purushottam Mondkar, AIR 1958 SC 376: 1958
Cri LJ70I, 704.
21) Shivaji Sababrao Bobade v. State of Maharashtra, (r973) 2SCC 793: 1973SCC(Cri)
IO33, IO39: I973 Cri LJ I783. But see, this case explained in Kali Ram V. Stateof
H.P, (1973) 2 SCC8o8, 8I8: I973 SCC (Cri) IO48, IoS8:
I974 Cri LJ I.
 Sa) Rigbt to know of the accusation,-In order to enable the accused
to make preparations for his defence, it is essential that he be informed
of.the accüsations against him. The Code, therefore, provides in unam-
biguous terms that when an accused person is brought before the court
trial, the particulars of the offence of which he is accused shall be
stated to him. [Ss. 228, 240, 246, 251l In case of 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. [See, Ss. 228, 240, 246]
Detailed provisions have been made in the Code in Sections 2II-224
regarding the form of charge and joinder of charges.
(2) Right of accused to be tried in bis presence,--The personal pres
ence of the accused throughout his trial would enable him to understand
properly the prosecution case as it is unfolded in the court. A trial and
a decision behind the back of the accused person is not contemplated by
the Code, though no specific provision to that effect is found therein.
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. [See,
Ss. 205, 273]
Section 317, however, makes an exception to the above rule and
empowers the court to dispense with the personal attendance of the
accused person at his trial under certain circumstances. At any stage of
an enquiry or trial, if the court is satisfied that the personal attendance
of the accused before it 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 the proceedings, direct the personal attendance of
such accused. [S. 317(1)]
(3) Evidence to be taken in presence of accused.Exceptas otherwise
expressly provided (by any such sections like Ss. 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, or, when his personal attendance
is dispensed with, in the presence of his pleader. (S. 273] However, it
should not be understood that the above rule is applicable even where the
accused by his own conduct makes recording of evidence in his presence
an impossibility. Otherwise it would not only mean negation of a fair
trial, but also mean an end of all trial at the choice of the accused. Such
a position can never be considered to be consonant with the basic prin
ciples underlying the Code.2 It is also provided that while recording the
evidence of an alleged victim of sexual offence or rape
the court shall ensure that the woman is not
confronted
a
under
by the i8
yea
Further, whenever any evidence is given in
language ac use
it not
court in and
openaccused,
inby the
he is present in court in person,
alanguage understood by him. (S. 279|)be shall underst
stand the proceedings. In such a
unsound mind and thus
An accused person may be of case, special
with such a situation.provisions unable
have O inbteerpnet under.
in Sections 328-339 to deal not of unsound made
An accused person, though knowing the language mind, may be
dumb; may be a foreigner not such accused is
and if
of he
unable to
dcouteatt
anadnd
no interpreter is available;
or cannot be made to understand
case, it has been
the proceedings,
provided there understand
that the court may be a
case of a court other may rea
difculty. n such a
withthe enquiry or trial; and in
Court, if such proceedings result in a
the
conviction, the than proce d
aHig
be forwarded to the High Court with athereon report of the proceedings shalofl
the case, and the
fit. [S. g18]
High Court shall pass such ordercircumstanctehsinks
as it

(4) Right to cross-examine prosecution witnesses.-It is an

tant right for the purposes of defence. A criminal trial which
accused person the right to cross-examine prosecution witnesses is deniimespOr-the
on weak foundation, and cannot be considered as a fair trial.24 based
K) Right to produce evidence in defence.-Though the burden of
pròving the guilt is entirely on the prosecution and though the law dns
not require the accused to lead evidence to prove his
criminal trial in which the accused is not permitted to innocence, yet a
give evidence to
disprove the prosecution case cannot be considered as just and fair. The
refusal without any legal justification by a Magistrate to
to the witnesses named by the accused issue process
to vitiate the trial.{It has been ruled by the person has been held enough
accused requires the prosecution to give any Supreme Court that if the
her defence, it has to supply that information to prepare his
(6) Right to have reasoned information/document to him/her.
of justice and fair trial the decisions,-On the plainest requirement
least that is expected of the trial
23. See, Proviso inserted by S. court is t0
20 of the
torce on 3-2-20I3.Criminal Law (Amendment) Act, 2013, dei
to have come into
24. See, Sukanraj v. State of Rajasthan, AIR 1967 Rai
25. Habeeb 267, 268: 1967 Cri LJ 1702
Mohammed
348; Ronald Wood
v. State of
Hyderabad, AIR 1954
II64 and NarayanuMathams v.v. State of W.B., AIR r954 SC ^I: I9$4 Cri J 338,
Mudaly SC 455: I954 Cri LJ II6I,
Janardhanan Pillai v. Emperor, ILR (I907) 3I Mad 13I. Also see, T.N.
1992 Cri LJ 3433 (Ker).State, 1992 Cri LJ 436 (Ker); Pillay v. PJ. Alexander,
26. See, the Sasi
Kala case, (2o12) 9
Sreedhar
constitutional dimension. SCC 771: (20I3) I SCC (Cri) IOIO discussingthe
notice, consider and discuss,
nesses as well as the argumentshowever briefly, the evidence of various wit-
applicable to the addressed at the bat 27 This requirement
is also decisions of the appellate courts.28
(7) Doctrine of f"autrefois acquit" and
to this doctrine, if aa persoD is tried and "autrefois convict".-According
acquitted of 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 incor-
poratedin Article 2o2) of the Constitution and is also embodied in
Section 3oo of the Code. The second ot subsequent trial in violation of
the above doctrine would mean unjust harassment of the accused person
nd can beconsidered as anything but fair and has been prohibited both
bu the Code and the Constitution. The doctrine would be discussed in
detail in a subsequent lecture.
7. EXPEDITIOUS TRIAL
Inevery enquiry or trial, the proceedings shall be held as expeditiously
ás 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
adjournmnent of the same beyond the following day to be necessary for
reasons to be recorded. (S. 309()]
Acriminal trial which drags on for unreasonably long time is not a fair
imposed by
trial. The right to speedy trial begins with actual restraint
continues at all stages, namely,
arrest and consequent incarceration and
stage of investigation, enquiry, trial, appeal and revision so that any
the impermissible and avoidable
possible prejudice that may result from
the time of the commjssion of the offence till it consummates
delay from has also been held that it is neither
be arrested. I t
into a finality can an
advisable nor feasible nor judicially permissible to draw or prescribe
conclusion of all criminal proceedings. Whenever there is
outer limit for right to speedy trial, the court has to per
any allegation of violation of all attending circum
by taking into consideration
torm a balancing act whether right to speedy trial has been denied in
the
stances and to decide particularly so in acase where the accused is not
agiven case.30 This
is
pendency of the trial and the trial is inordi
released on bailduring the
nately delayed. 760: 199s SCC (Cri)
296.
v. State of Punjab, (1995) I SCC
(1995) I SCC I78: 1995 SCC (Cri) 222.
Singh I
. Mukhtiar FuliibhaiPatniv. State of Gujarat,
Ishvarbhai Mabarashtra, (2013) 6 SCC 770: (2014)
<0. Gaikwad v. State of
See, Ankush Shivaiithe cases referred to therein. s6o: (2007) I SCCC(Cri) 18o: 2006
SCC (Cri) 28s andState of JeK, (2006) 12 SCC
29. Moti Lal Saraf v. Srinivas,(20o8) 8 SCC s8o: (2008) 3
v. B.
Cri LJ 4765.
Police, Karnataka Lokayukta
30. Supt. of
SCC (Cri) <87.
 RIGHTS OF
Question 1
ARRESTED PERSON
about
Discuss about the
rights arrested persons
of
of the Criminal Procedure
Code, 1973. under the provisions
Answer
The provisions off law: Article 22,2)
of the
Sections 50, 54, 56, 57,76 of
the Code ofIndian Constitution and
the Criminal
are the important provisions
which
arrested person.According to the above deal with the Procedure
rights of an
are the rights of an arrested person: provisions, the following
(1) Right to be informed of
According to Section 50, the persongrounds of arrest (Section 50):
a arrant is entitled to know the arrested with or without
section imposes a duty on the person grounds forfor his arrest. The
arresting anyone,
communicate the person arrested, the full particulars of the
to
to

ofence for which he is being arrested or other grounds for such

arrest, forthwith. )
frepredotne
This right of an arrested person has been recognised by the
Constitution as one of the Fundamental Rights under Aricle 22.
This right under thesection gives an opportunity to the arrested
person to know the full particulars of the offence and to remove
any mistake or misunderstanding in the minds of the authority
empowered to arrest.
2) Right to bail: Sub-section 2 of Section 50 provides on
more pre-right to the arrested person. The section says, that, if
any person is arrested without awarrant in respect of a bailable
offence, the arresting authority shall informthe person arrested
that he is entitled to be released on bail and he may arrange for
Securities on his behalf. It isto be noted that this right is available
43
 44 QoA Rosedar Series personhas
arrested
only in the case of a bailable offence wherethe
practitioner
been arrested without a warrant. medical arrested
the ifthe
(3) Right to be examined by54ofthe CrPC, requiredto direct
Section
(Section 54): According to is
Magistratemedical
a registered practitioner.
person makes any request, the when
examination ofhis body by a either atthetime
the request during the
arrested person can make a any time
The
the Magistrate or atMagistrate must satisf,
Produced before custody. The arrested person will
period of his detention in
the body of thecommission by him of
that the examination of disprovethe
by any other
afford evidence which will
establish
will the commission
which
any offence or against his body.
any offence 3781
person of ofMaharashtra, [AIR 1983 SC
State the
InSheelaBarse u that, the Magistrate betore whom
held arrestee about his
the Supreme Court produced, must inform the
arrested person is in terms of Section 54 ofthe CrPC
examined
right to be medically Magistrate considers that
noted that if the
However, it is to be defeats the ends of justice or rhe
person
the request of thearrested then the Magistrate
purpose ofexecution or delay the proceedings,
under Section 54.
may refuse togive such adirection
officer-in-charge
(4) Right to be taken before a Magistrate or
of policestation without delay(Section 56): Section 56 says that,
the person arresting, is required to produce the arrested person
A before the Magistrate or the court having jurisdiction in thecase
or before the officer-in-charge of a police station, without any
unnecessary delay. The person arresting may have arrested with or
without a warrant.
(5) Right not to be detained for more than 24 hours
(Section 57):According to this section, in case of every arres
the police officer shall not detain a person a
person arrested without
warrant under his custody for alonger period than that exceedis
twenty four hours. The time of twenty-four hours excludes the
 Rights of ArrestedPerson 45

ime necessary for the journey from the place of arrest to the
Magistrate's Court. However, the arrested person cannot claim
a special order is passed under Section 167 of the
this right, ifMagistrate.
CrPC by a
This section enables the Magistrate to keep check over the
police investigation. This right has been tecognised by the
Constitution as one of the Fundamental Rights under Article
22(2).Theobject to incorporate this right is are

provided with a view:

andldetention for the purpose of extracting
(1) to preventarrest
confessions.
to prevent the police officers from using the police stations
(2)
as prisons.
an early recourse to a judicial officer independent
(3) to afford
the police on allquestions of bail or discharge.
of
being detained for more than twenty-four
This right of not of executinga warrant of arrest
the case
hours is also applicable in CrPC.
the
under the provisions of practitioner: Section 303, CrPC
legal India: Every arrested
6. Right to consult the Constitution of
and Article 22(1) of legal practitioner of his choice.
a right to consult a Constirution under
person has incorporated in the
This right has been
Article 22(1). to consult a legal
the arrested person
This right enables begins from the very moment a person
with a legal
practítioner. This right arrestee is in consultation conversation
an
gets arrested. While are not entitled to hear the
practitioner, the police be present but,
police officer may
between them. However, che
not within his hearing. Constitutional right of indigent
7. Right to free legal aaid: The recognised as one oft the
has been
Scdto getfree legal aid Constitution.
the
fundamental rights under Article 21 of
 In Khatri v. State of Bibar, [1981 CriLJ 470], the Supreme
Court held that, the constitutional right to legal aid cannot
be denied for the reason that the accused failed to apply for it.
Hence, a free legal aid must be provided to every accused, unless
refused by him. In case, if the accused is convicted and sentenced
ue to any failure to provide free legal aid, such a conviction and
sentence may be set-aside.