Table of Contents
• Introduction
• Concept of a fair trial
• Adversary system
• Trials
• Presumption of Innocence
• Independent, Impartial and Competent Judges
• The doctrine of “Autrefois Convict” and “Autrefois Acquit”
• arrest and pre-trial detention –role of judge/magistrate
• Venue of Trial
• Right of the Accused to Know the Accusation
▪ Accused Person to be tried in his Presence
▪ Evidence to be taken in the Presence of Accused
▪ Right of accused person to cross-examine prosecution witnesses and to produce
evidence in defense
▪ Right of the Accused Person to have an Expeditious Trial
• Conclusion
• References
Abstract
“Lex uno ore omnes alloquitur” which means that everyone is equal before the eyes of the law which is an important principle which forms the basis of judicial proceedings across the world. The law treats everyone equally and this principle is enshrined in various provisions of the Indian Constitution. Article 14 of the Indian Constitution exclusively deals with the Right to Equality. Trials are an indispensable part of any proceeding. Conducting fair trails is an important aspect of the law which ensures equality.
The concept of a fair trial is not just a right provided in our country but it is also guaranteed by various other legislations all over the world. Article 6 of the European Convention on Human Rights deals with the Right to a fair trial. According to this Article, everyone is entitled to a fair and public hearing within a reasonable time. The trial must be conducted by an independent and impartial tribunal established by law.
Introduction
A trial primarily aimed at ascertaining truth has to be fair to all concerned which includes the accused, the victims and society at large. Each person has a right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and society. An accused has a right to fair trial. Under our Constitution as also the international treaties and conventions, the right to get a fair trial is a basic fundamental/human right1 . He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure,1973. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. In a criminal case, denial of that right means denial of fair trial. This issue now stands concluded by decision of Hon’ble Apex Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258].
Concept of a fair trial
The concept of a fair trial is not just a right provided in our country but it is also guaranteed by various other legislations all over the world. Article 6 of the European Convention on Human Rights deals with the Right to a fair trial. According to this Article, everyone is entitled to a fair and public hearing within a reasonable time. The trial must be conducted by an independent and impartial tribunal established by law. The African Charter of Human Rights protects the dignity of humans and prevents exploitation under Article 5. Article 6 of the African Charter of Human Rights guarantees individual liberty and security to a person. The right to a fair trial is guaranteed under Article 7 which includes various rights like:
• Right to appeal to the competent jurisdiction.
• Right to defense.
• Right to be tried.
• Right to be presumed innocent until proven otherwise.
Article 14 of the International Convention on Civil and Political Rights (ICCPR) guarantees the right to a fair trial and Article 16 provides a right to recognition everywhere as a person before the law. Article 10 of the Universal Declaration of Human Rights (UDHR), which guarantees the right to a fair trial. The provisions related to a fair trial in the International Convention on Civil and Political Rights (ICCPR) are more exhaustive and detailed than the provisions in the Universal Declaration of Human Rights (UDHR).
Adversary trial system:
The system adopted by the Criminal Procedure Code, 1973 is the adversary system based on the accusatorial method. “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. He must become a participant in the trial by evincing intelligent active interest.
” In Himanshu Singh Sabharwa v. State of M.P. and Ors.,[ MANU/SC/1193/2008], the apex court observed that if fair trial envisaged under the Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court can exercise its power under section 311 of the Code or under section 165 of the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so as to sub serve the cause of justice.
Presumption of Innocence
Presumption of innocence is an important factor to conduct a fair trial as it prevents wrongful convictions. This presumption of innocence is based on the Blackstone’s ratio, which is the idea that “It is better that ten guilty persons escape than that one innocent suffer”. This concept of presumption of innocence is also derived from the Latin term ‘Ei incumbit probatio qui dicit, non qui negat’, which basically means the burden of proof is on the one who declares, not on the one who denies according to section 101 of Indian Evidence Act, 1872 . It is the duty of the prosecution to prove that the accused is guilty with proper evidence beyond any reasonable doubts.
The accused though not duty bound to prove his defense beyond reasonable doubt but if he is also claiming any general exception then it is his duty to prove the fact and circumstances to bring it in the scope of exceptions mentioned in any existing law as according to section 105 of Indian Evidence Act, 1872.
Article 14(2) of the International Convention on Civil and Political Rights also provides that everyone who is accused is presumed to be innocent as long as it is proved otherwise. Article 11 of the Universal Declaration of Human Rights, also deals with the presumption of innocence.
The same principle is also enshrined under Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
This principle is also followed in various cases decided by the Indian Courts, in the case of Dataram Singh v State of Uttar Pradesh, it was held that the individual freedom cannot be cut off for an infinite period as long as the person is proved guilty. This freedom can only be affected when the guilt is proved.
So, even after a person is tried under judicial proceedings as an accused still there exists certain fundamental rights as under Article 14, 20 and 21 of the Constitution of India and this is the best example of India proceeding with the guidelines of fair trial.
There are certain provisions in the Indian Evidence Act like Section 111A which acts as an exception for this presumption of innocence. According to this Section, if a person has tampered with the peace and security in certain places, or if they commit any offences under Section 121, Section 121 A, Section 122 and Section 123 of the Indian Penal Code, then they are not presumed to be innocent. Section 121 of the Indian Penal Code deals with the offence of waging war or planning to war against the Government of India. Section 121A of the Indian Penal Code punishes the person who conspires to commit the offence of war against the Government. Section 122 deals with the offence of collecting arms with an intention to wage war against the Government. Section 123 deals with the offence of concealing certain facts which would facilitate the waging of war. There is also an exception to the presumption of innocence in offences like dowry death.
Independent, impartial and competent judges:
In Shyam Singh v. State of Rajasthan., [1973 Cri LJ 441, 443, (Raj.)], the court observed that the question is not whether a bias has actually affected the judgement. The real test is whether there exists a circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.
Autrefois Acquit and Autrefois Convict:
If a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. This doctrine has been substantially incorporated in the article 20(2) of the Constitution and is also embodied in section 300 of the Cr. P.C.
In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao., [ (2011) 2 SCC 703] the Supreme Court observed that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that ‘no one can be prosecuted and punished for the same offence more than once’, Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. In the present case, although the offences are different, the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C. The impugned judgment of the High Court was set aside.
Khatri v State of Bihar (where it was held that an accused is entitled to free legal services).
Hussainara Khatoon v State of Bihar, (where it was held that a speedy trial is an essential ingredient of fair trial procedure and it is the constitutional obligation of the State to set up a procedure that would ensure the same)
The concepts of double jeopardy and the right against self incrimination have also been examined in the light of recent case laws such as Selvi v State of Karnatakawhere the Court concluded that a Narco analysis test violates this right.
In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors., [ (2006) 3 SCC 374 at 395] The Supreme Court of India observed “each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society.
2. ARREST AND PRE-TRIAL DETENTION –ROLE OF JUDGE/MAGISTRATE:-
Protection against illegal arrest:
Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick to see the possibility of crime, but they ought to be anxious to avoid mistaking the innocent for the guilty. The burden is on the police officer to satisfy the court before which the arrest is challenged that he had reasonable grounds of suspicion.
In Pranab Chatterjee v. State of Bihar[ (1970) 3 SCC 926] the court held that Section 50 is mandatory. If particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. The grounds can be communicated orally or even impliedly by conduct.
Section 57 of Cr.P.C. and Article 22(2) of Constitution provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest. In State of Punjab v. Ajaib Singh[AIR 1953 SC 10] the court held that arrest without warrant calling for greater protection and production within 24 hours ensures the immediate application of judicial mind to the legality of the arrest.
The decisions of the Supreme Court in Joginder Kumar v. State of Uttar Pradesh[1994 SCC (4) 260] andD.K. Basu v. State of West Bengal[1997 (1) SCC 416], were enacted in Section 50-A making it obligatory on the part of the police officer to inform the friend or relative of the arrested person about his arrest and also to make an entry in the register maintained by the police. This was done to ensure transparency and accountability in arrest. Sec.160 of Cr. P.C provides that investigation by any police officer of any male below 15 years or any woman can be made only at the place of their residence. Section 46(4) provides that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Venue of Trial
The venue of the trial also plays an important role in ensuring the fairness of the trial. The Court has to be competent to deal with the cases. Section 177 of the Code of Criminal Procedure,1973 provides that the ordinary place of enquiry or trial would be the Court within whose local jurisdiction it was committed. Section 178 of the Code of Criminal Procedure,1973 deals with the place of trial. According to this Section, the jurisdiction can be changed in certain situations like when it is uncertain in which of several local areas an offence is completed or when an offence is committed partly in one place and partly in another place and when an offence is a continuing one. According to Section 181 of the Code of Criminal Procedure, 1973 sometimes the place of a trial depends on certain types of offences, for example, offences like kidnapping or abduction can be tried by the Court where the person was kidnapped or abducted.
Right of the Accused to Know the Accusation
Article 22 of the Indian Constitution provides that no person can be detained in custody without giving proper information. The Sixth Amendment of the Constitution of the United States also provides this right of the accused to know the accusation. The accused should be aware of the reason why he is being detained. Section 50 of the Code of Criminal Procedure also provides that it is the right of every accused to be informed about the various grounds of arrest. The police officer has to inform the person of the various reasons for arrest if the arrest is done without a warrant.
Accused Person to be tried in his Presence
It is necessary for the accused to be tried in his presence, however, there are certain situations where the magistrate can dispense the attendance after considering relevant factors. Section 317 of the Code of Criminal Procedure, 1973 grants the Magistrate this power. The Magistrate can only dispense the attendance only if it does not affect the process of the trial in any manner. This principle is also supported by Article 14 of the Indian Constitution which guarantees equality.
Evidence to be taken in the Presence of Accused
Section 273 of the Code of Criminal Procedure,1973 provides that the evidence should be taken in the presence of the accused. This provision should not be followed only in rare situations like cases relating to the rape of a minor woman. Section 299 of the Code of Criminal Procedure,1973 provides the conditions to record evidence in the absence of the accused.
Right of accused person to cross-examine prosecution witnesses and to produce evidence in defence
The accused person has the right to cross-examine any number of witnesses so that it would ensure the fairness of the trial. In the case of Mohd. Hussain Julfikar Ali v. The State (Govt. of NCT) Delhi, the appellant was not provided with an opportunity to cross-examine the fifty-six witnesses. Only one witness was cross examined to complete the formality. Hence the appellant’s conviction and sentence was set aside for the same reasons.
Right of the Accused Person to have an Expeditious Trial
The concept of speedy trial increases the public confidence in the judiciary. The concept of speedy trial is enshrined in Article 21 of the Indian Constitution. In the case of Babu Singh v State of Uttar Pradesh, it was said that the speedy trial is also part of the fair trial. In the case of Kartar Singh v State of Punjab, it was declared that speedy trial is a part of the right to life and personal liberty. The same principle is also enforced in various other cases like Husainera Khatoon and others v. Home Secretary, State of Bihar. The undue delay must be avoided and it must be also ensured that all the proceedings of the trial are followed properly.
Conclusion
Indian law is consistent with worldwide legal norms on the opportunity to be tried by a competent, free, and fair court. Under the law, everyone should be treated the same. Each will be eligible for a fair trial by a court established by law. A notable requirement of a reasonable and fair trial is one that stands out right away.
According to Article 21 of the Constitution, the right to a speedy trial incorporates all stages such as examination, inquiry, rectification, trial, and re-trial. In a criminal case, a conviction cannot be based on the testimony of witnesses whose credibility has been called into question by their interrogation. Proof should be appraised objectively and impartially. In every criminal preliminary, the degree of probability of blame must be much greater, practically achieving confidence; and if there is even the slightest reasonable or plausible prospect of the accused’s innocence, the benefit should be granted to him.
References
• https://blog.ipleaders.in/trial-before-a-cour-of-session/
• http://devgan.in/crpc/index.php?q=300&a=2
• https://www.echr.coe.int/Documents/Convention_ENG.pdf
• http://www.nja.nic.in/Concluded_Programmes/2019-
20/P1163_PPTs/1.Right%20to%20Fair%20Trial_Handout.pdf