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Fair Trial

Introduction to Principles of Fair Trial:

There are two systems of Criminal Trial, they are 1. Inquisitorial 2. Adversarial system or adversary system. In Inquisitorial System the Judicial Investigation or enquiry by the Judge where the Public are excluded. This type of system is implementing in France & other countries.

In Inquisitorial System the Judicial Investigation or enquiry by the Judge where the public are excluded. This Type of System is implementing in France & other countries. In adversial system of criminal trial public are allowed in court. In India we have adopted adversial system of criminal trial in this process it has only to decide to which party has succeeded in proving his case.

In Adversarial System of Criminal trial generally speaking the prosecutor representing the state the Accused person is to prove his case beyond reasonable doubt. In this adversial system the rights and opportunities are recognized equally to both the parties i.e., the State and the Accused person to present this case before the court. The most vital, pivotal and indispensable condition for a fair trial is:

1) To have an independent, impartial competent judge to conduct the trial

2) A Fair Prosecutor

3) An atmosphere of Judicial Calm

India is signatory to the International covenants such as "International Covenant on Civil and Political Rights and also Universal declaration of Human rights, 1948". The said International Covenants guarantee to the citizens of signatory nations to the said covenants various rights such as presumption of innocence etc. These salutary features of the International Convenants and Universal declaration of Human Rights are embodied into our constitutional scheme under various Articles viz. Artl. 14, 20, 21, 22 and 39-A, which deal with Fair Trial. Fair Trial is rule of law and heart of Criminal Jurisprudence of all modern civilized nations. Denial of fair trial is crucification of human rights.

II) WHAT IS TRIAL:-

The word Trial is not defined anywhere in Criminal Procedure Code. A Criminal trial is a judicial examination of the facts in the case process in the discovering truth to decide the facts in issues to arrive at a just decision of the controlling question being the guilt or innocence of the accused.

FAIR TRIAL:

India adopted a criminal justice system known as adversarial criminal justice system. The prime aim of system is to give fair trial to the citizens. Fair trial obviously would mean 1) a trial before an impartial judge, 25 2) a fair prosecutor and 3) an atmosphere of judicial calm. A fair trial means a trial in which bias or prejudice for or against the accused, the witness, or the cause which is being tried is eliminated. In a criminal case the fate of the proceedings cannot always by left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the "Majesty of the Law". The court administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. The Principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a 26 miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

III) THE SALIENTPRINCIPLES OF THE FAIR TRIAL:

The principle of Fair Trial is deep rooted in Article 21 of the Indian Constitution, which declares that no person shall be deprived of his "life" or "Personal liberty" except according to the procedure established by law. The golden principles of fair trial is:-

1) PRESUMPTION OF INNOCENCE:

The cordinal principles of Criminal jurisprudence is presumption of 27 innocence of the accused. The burden of proving the guilt of the accused beyond all reasonable doubt is upon the prosecution and unless it relieves itself of that burden, the court cannot record finding of the guilt of the accused. This presumption is seen to flow from the Latin Legal Principle i.e. incumbit probation qui dicit, non qui negat, means the burden of proof rests on who asserts, not on who denies. It is basic right of the accused person and human right as laid down in Narendra Singh v. State of Madhya Pradesh, Reported in 2004 Crl.L.J. 2842 and State of U.P. v. Naresh and others, Reported in 2001 (4) SCC 324, wherein the Supreme Court observed that

"Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principles form the basis of criminal jurisprudence in India." And another decision in Baijnath and others v. State of Madhya Pradesh, Reported in 2016 Law Suit (SC) 1089, a Two Judge Bench of the Supreme Court held that One of the essential ingredients of dowry death under Section 304 -B of the Indian Penal Code is that the accused must have subjected the woman to cruelty in connection with the demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death 28 under Section 113-B of the Indian Evidence Act.

If an innocent person is convicted the consequences are so serious that its reverberation are felt throughout the civilian society. It is only to ensure that the court does not wrongly convict an innocent person an accused is presumed to be innocent until proven guilty. At no stage of the trial of a case an accused, the accused is called upon to disprove his innocence.

2) PROHIBITION AGAINST SELF INCRIMINATION:-

The accused has right to remain silent. Article 20 (3) of Indian Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. To attract the protection of Article 20 (3) it must be shown that the accused was compelled to make the statement likely to be incriminative of himself. Compulsion means duress which includes threatening, beating or imprisoning of the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply. As per Section 316 of Criminal Procedure Code no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter with in his knowledge. In the case of Selvi v. State of Karnataka, (AIR 2010 SC 1974), the Apex Court held that "Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests are testimonial compulsions and are prohibited by 29 Article 20(3) of the Constitution. It was further held that Lie Detector Tests can be done only with the consent of the accused in the presence of his Lawyer and Judicial Magistrate should record the consent of the accused.

3) PROTECTION AGAINST EXPOST FACTO LAW:-

An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts already done and increases the penalty for such acts. Article 20(1) of Indian Constitution imposes a limitation on the law-making power of Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, but clause (1) of Article 20 Prohibits the Legislature to make retrospective Criminal laws.

4) PROTECTION AGAINST DOUBLE JEOPARDY:-

The Maxim "Autrefois Acquit and Autrefois Convict": states 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. Article 20(2) of out Constitution says that "no person shall be prosecuted and punished for the same offence more than once". This clause empodies the common law rule of "nemo debt vis vexari" which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction. Section 300(1) of Criminal Procedure Code also prohibits double jeopardy. 30 In the case of Kola Veera Raghav Rao v. Gorantla Venkateshwara Rao, (2011 (2) SCC 703) the Hon'ble Supreme Court observed that "the language used in Section 300 (1) of Criminal Procedure Code is different from the language used in Article 20 (2) of the constitution. The former is wider than the later. Article 20 (2) of the Constitution states that "no one can be prosecuted and punished for the same offence more than once". Section 300 (1) of Criminal Procedure Code states that "A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence, for which a different charge from the one made against him might have been made under Sub-Section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof".

5) SPEEDY TRIAL:

Section 309(1) Criminal Procedure Code provides "in every inquiry of 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". In Hussainara Khatoon (No.1) v. Home Secretary, State of Bihar, Reported in AIR 1979 SC 1360, a petition for a writ of habeas corpus was 31 filed by number of under trial prisoners who were in Jails in the State of Bihar for years awaiting their trial. The Supreme Court held that "right to a speedy trial" a fundamental right is implicit in the guarantee of life and personally liberty enshrined in Article 21 of the Constitution. Speedy trial is the essence of criminal justice. In Mangal Singh and Another v. Kishan Singh and others, Reported in AIR 2009 SC 1535, it is observed:-

"Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence."

6. ACCUSED CAN ENGAGE COUNSEL OF HIS CHOICE:

Section 303 of Criminal Procedure Code provides that "Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice".

7. VICTIM CAN ENGAGE COUNSEL OF HIS CHOICE:

Proviso Section 24(8) of Criminal Procedure Code states that the court may permit the victim to engage an advocate of his choice to assist the 32 prosecution. Section 301 of Criminal Procedure Code provides that in any Court, any private person can engage a counsel of his choice and make such counsel to assist the public prosecutor and such a pleader can submit written arguments with the permission of the court, after evidence is closed in the case. In the case of Lokesh Singh v. the State of U.P. in Criminal Miscellaneous case No.3769/2013, dated 26.8.2013, the Allahabad High Court held that "after insertion of proviso to Section 24(8) Criminal Procedure Code if the court permits the victim to engage an advocate of choice, the court thereafter cannot deprive the advocate to address the court in addition to his right to file the written argument as contained in Section 301 Criminal Procedure Code after close of evidence". Section 302 Criminal Procedure Code allows the victim to conduct prosecution personally or by a pleader before any Magistrate with the permission of the court.

8) RIGHT TO FREE LEGAL AID:

Article 39A of Indian Constitution directs the State to ensure that the operation of the legal system promote justice, on a basis of equal opportunities and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that make opportunities for securing justice are not denied to any citizen by of reason of economic or other disabilities. Section 304 of Criminal Procedure Code provides that "where in a trial before Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State". In the case of Mohd. Hussain @ Julfikar Ali v. the State of (Govt. of NCT) Delhi, in Crl.Appeal No.1091/2006, dated 11.1.2012, the Hon'ble Supreme Court observed-

"the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trail. The right to be defended by a legal practitioner, flowing from Article 22(1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39A of the Constitution by the 42nd Amendment Act of 1976 and enactment of Sub Section 1 of Section 304 of the Code of Criminal Procedure.

Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants' and Human Rights Declarations. If an accused too poor to afford a lawyer is to go through the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just".

9. PROSECUTION CAN EXAMINE WITNESSES:-

Sections 231, 242, 254 of Criminal Procedure Code offered opportunity to the prosecution to examine its witnesses and put forth oral and documentary evidence.

10. RIGHT OF THE ACCUSED TO PRODUCE EVIDENCE AND TO SUBMIT ARGUMENTS:

Sections 233, 247, 254(2) Criminal Procedure Code guarantees the accused to produce evidence in his defence. Section 314 Criminal Procedure Code provides that any party to a proceeding make oral arguments and can submit written arguments in support of his case. Section 315 of Criminal Procedure Code provides that any person accused of an offence before a criminal court shall be a competent witness for the offence and may give evidence on oath in disproof of the charges made against him.

11. RIGHT TO OPEN TRIAL:

Section 327 Criminal Procedure Code provides that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access. Section 273 Criminal Procedure Code provides that evidence to be taken in the presence of the accused. In the case of Naresh Sridhar Mirajkar v. State of Mharashtra, (AIR 1967 SC 1) the apex court observed that the right to open trial must not be 35 denied except in exceptional circumstances.

12. HEARING OF THE ACCUSED: (AUDI ALTERAM PARTEM):

Fair trial requires that the accused person is given adequate opportunity to defend himself. But this opportunity will have no meaning if the accused person is not informed of the accusation against him. The code therefore provides in Section 228, 239, 251 in plain words that when an accused person is brought before the court for trial, the particulars of the offence of which he is accused shall be stated to him. So that accused can prepare his defence for facing the trial. Section 313 of Criminal Procedure Code also provides that incriminating circumstances that the are appearing against the accused should be explained to the accused.

13. TRIAL BEFORE INDEPENDENT, IMPARTIAL AND COMPETENT JUDGES:

Article 50 of Constitution ensures that the State shall take steps to separate the judiciary for the executives in the public services of the State. Section 479 of Criminal Procedure Code no Judge or Magistrate shall try or commit for any trial 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 Hon'ble Apex court in Devender Pal Singh v. State of NCT of Delhi and another, (2002 (5) SCC 234) observed as follows:

"Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law."

In Viscount Simon in Stirland v. Director of Public Prosecutor, Reported in 1944 (2) ALL ER 13 Court held as follows:

"A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape..... Both are public duties ...."

In the case of Zahira Habibullah Sheikh and another v. State of Gujarat and others, Reported in 2006 (3) SCC 374, the Hon'ble Apex court observed that If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that he occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 37 However, in the case of Sister Mina Lalitha Baruwa v. State of Orissa and others in Criminal Appeal No.2044/2013, dated 5.12.2013. The Hon'be Apex Court held that "a Criminal Court, while trying an offence, acts in the interest of the society and in public interest. As has been held by this Court in Zahira Habibullah H. Sheikh (supra), a Criminal Court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 of Criminal Procedure Code, as well as Section 161 of the Evidence Act."

Recently the Hon'ble High Court of Delhi by its order, dated 9.1.2017 observed that dishonest recording of Court proceedings does injustice". "It is human beings who are put to trial, and they deserved to be treated as human beings with the same dignity as any other person, the court said. A judge who does not honestly and fairly record the proceedings does the greatest injustice to the parties, the Delhi High Court has observed. Transferring the case to another court, Justice Sanghi said the Special Judge, in his haste to conclude the trial, had conducted the proceedings unfairly and his approach in the case, and the orders passed by him, disqualify him from the proceeding any further in the matter. "I may only remind the learned Special Judge of the Off quoted phrase that "Justice should not only be done, but also be seen to be done", the court said. 38

14. RIGHT TO A REASONED JUDGMENT AND AVAILABILITY OF JUDGMENT:-

A reasoned Judgment given in public, increases confidence in the Judiciary. The Justification for the reasoning in the Judgment must be based on the law and cannot appear to be attributed to personal opinions, prejudices or the socialization of Judge. Section 353 and 354 of Code together deal with the substantive and procedural requirements that a Judge must ensure are followed. Section 363 of the Code confirms the accused's right to a copy of his judgment where he is sentenced to imprisonment; the court must immediately furnish a copy of the judgment to him free of cost. Article 21 is violated if the court fails to provide the accused with a copy of Judgment in tie to file an appeal Section 354(1)(b) mandates that Judgments must be reasoned.

15) COMPENSATION TO VICTIMS AND PERSONS GROUNDLESSLY ARRESTED:

If the victims of a crime are ignored it does not result in a Fair Trial. Section 357 and 357-A of Criminal Procedure Code provides scheme of compensation to victims of an offence. Similarly if a person causes a police officer unnecessarily arrest another simply acquit him does not result in Fair Trial. Section 358 of Criminal Procedure Code enables the Magistrate to award compensation to such groundlessly arrested person payable by the person who is responsible for such 39 arrest.

IV) CONCLUSION:

In India everyone shall be entitled to a fair trial by an Impartial Court established by Law. The salient requirement of Fair Trial is one without undue delay. The right to a speedy Trial according to Article 21 of the Constitution provides all the stages such as Investigation, Enquiry, trial, Appeal, Revision & re-trial. In criminal proceedings a conviction in a case cannot be based on testimony of witnesses whose examination-in-chief. In Manu Sharma v. State of NCT of Delhi cited in 2010 (6) SCC 1. A reasoned Judgement diminished the chances of Appeal & reduces the courts overload in State of Rajasthan v. Balchand cited in AIR 1997 SC 2447 the basic rule perhaps be tersely put as Bail not Jail, except where there are circumstances, suggestive of Fleeing from justice or thwarting the course of Justice or creating other troubles in shape of offences are intimidating, witnesses and Likely the Petitioner who seeks enlargement on Bail from the Court.

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