FAIR TRIAL

What is Trial?

The word Trial is not defined anywhere in Criminal Procedure Code 1973. 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 just decision of the controlling being the guilt or innocence of the accused.

Concept of fair Trial:

At the present stage of civilization, it has been universally accepted as a human value that
a person accused of any offence should not be punished unless he has been given a fair trial and
his guilt has been proved in such trial. The notion of fair trial, like all other concepts
incorporating fairness or reasonableness, cannot be explained in absolute terms. Fairness is a
relative concept and therefore fairness in criminal trial could be measured only in relation to the
gravity of the accusation, the time and resources which the society can reasonably afford to
spend, the quality of available resources, the prevailing social values etc. However, leaving aside
the question of the degree of fairness in the criminal trial, the basic attributes of fair trial can be
identified and studied.

The concept of fair trial is deep rooted in the history goes way back, developed over thousands of
year. In 1215, the Magna Carta was a key first step in giving all free men the right to fair trial by
jury, enshrined in the constitution, sanctified by religious philosophy and juristic doctrines and
embodied in the statue intended to regulate the course of criminal trial.

India is a signatory to the International covenants such as “International Covenant on Civil

and Political Rights (ICCPR) and Universal Declaration of Human Rights 1948” (UDHR).
The Covenants guarantee to the citizens of signatory nations to the said covenants various rights
such as presumption of innocence etc. The salutary features of the International Covenants and
Universal Declaration of Human Rights are embodied into our constitutional scheme under
various Article viz. Article 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.

The major attributes of fair criminal trial are enshrined in Article 10 and 11 of the
Universal Declaration of Human Rights; this was adopted and proclaimed by the General
assembly on December10, 1948.

1).Article 10 of UDHR 1948 provides that “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”.
2). Article 11 of UDHR 1948 provides that “Every on charged with a penal offence has the
right t be presumed innocent until proved guilty according to law in a public trial at which he has
had all the guarantees necessary for his defence”.

3).Article 14(1) of International Covenant on Civil and Political Rights 1966, which India
ratified on 10 April 1979 [hereinafter 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’’

Our courts have recognized that the primary object of criminal procedure is to ensure a fair trial
of accused persons. Case law on this is:

i).Talab Haji Hussain v Madhukar Purshottam Mondkar, AIR 1958 SC 376: 1958 Cri LJ 701,
704.

ii).Iqbal Ismail Sodawala v State of Maharashtra, (1975) 3 SCC 140: 1974 SCC (Cri) 764,770:
1974 Cri LJ 1291.

The Law commission has accepted the view that the requirements of a fair trial, speaking
broadly, relate to the character of the court, the venue, the mode of conducting the trial
(particularly trial in public), rights of the accused in relation to defense and other rights.

Adversary System:
The system of criminal trial envisaged by the code is the adversary system based on the
accusatorial method. In this system the prosecutor representing the State (or the people) accuses
the defendant (the accused person) of the commission of some crime; and the law requires him to
prove his case beyond reasonable doubt. The law also provides fair opportunity to the accused
person to defend himself. The judge, more or less, is to work as an umpire between the two
contestants. Challenge constitutes the essence of adversary trial and truth is supposed to emerge
from the controverted facts through effective and constant challenges. Experience has shown that
adversary system I by and large dependable for the proper reconciliation of public and private
interests i.e. public interest in punishing the criminals and private interest in preventing wrongful
convictions. The system of criminal trial assumes that the State using its investigative resources
and employing competent legal services to challenge the evidence of the prosecution.

The above assumption has been found to be incorrect in one respect, particularly under the
existing conditions in India. Most of the accused persons here are uneducated and poor. They
cannot afford to engage lawyers for their defence, not have they any legal knowledge and
professional skill to safeguard their interest themselves. Therefore though the adversary system
envisages equal legal rights and opportunities to the parties to present their cases before the
court, such legal rights and opportunities would in practice operate unequally and harshly,
affecting adversely the poor indigent accused persons who are unable to engage competent
lawyers for their defense. The system therefore departs from its strict theoretical passive stance
and confers on the accused not only a right to be defended by a lawyer of his choice, but also
confers on the indigent accused person a right to get legal aid for defence at States cost, section
303,304 of the cr p c , Article 22(1) of the constitution and Article 21 as construed by the
Supreme Court in:

Hussainara Khatoon v State of Bihar, (1980) 1 SCC 98, 105: 1980 SCC (Cri) 40, 45: 1979 Cri LJ
1045, declaring free legal aid to the indigent accused as his constitutional right and also in:

Suk Das v Union Territory of Arunachal Pradesh, (1986) 2 SCC 401: 1986 SCC (Cri) 166.

It has been held by the Supreme Court that unless refused, failure to provide free legal aid to an
indigent accused would vitiate the trial, entailing setting aside of the conviction and sentence,
this was laid in:

Suk Das v Union Territory of Arunachal Pradesh, (1986) 2 SCC 401: 1988 SCC (Cri) 166: 1986
Cri LJ 1084.

Further apart from attempting giving legal aid to the indigent accused person, the Code has
suitably altered the notions of judge-umpire. The judge is not to remain passive as an umpire; but
he has to play a more positive and active role for protecting the public interests as well as the
individual interests of the accused person. For instance, as will be seen later, the charge against
the accused is to be framed not by the prosecution but by the court after considering the
circumstances of the case (see sections 228-240, the prosecutor cannot withdraw the case without
the consent of the court (Section 321); certain offences cannot be compounded without the
permission of the court (Section 320); the court has been empowered to examine any person as a
witness (Section 311); the court can examine the accused at any time to get explanations from
him (Section 313); the court may or may not accept the “plea of guilty” of the accused person
(Sections 229 – 241), 252 ec.)

Explaining th proper function of the judge in an adversary system of trial , the Supreme Court
has Observed in:

Ram Chander v State of Haryana, (1981) 3 SCC 191: 1981 SCC (Cri) 683, 685: 1981 CriLJ 609.

As follows:

“The adversary system of trial being what it is , there is an unfortunate tendency for a judge
presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop
into a contest between the prosecution and the defense with the inevitable distortions flowing
from combative and competitive elements entering the trial procedure. If a Criminal Court is to
be an effective instrument in dispensing justice, the presiding judged must cease to be a spectator
and a mere recording machine. He must become a participant in the trial b envincing intelligent
active interest...”

Though the notion of adversary system of trial has undergone some transformation by legislative
prescriptions and judicial gloss, it can still be reasonably considered as an essentially important
component of the concept of fair trial.

Presumption of innocence:
The principle that the accused person is presumed to be innocent unless his guilt is proved
beyond reasonable doubt, is of cardinal importance in the administration of criminal justice.

Case law:

i).Babu Singh v State of Punjab, (1964) 1 Cri LJ 566, 572:

ii).K.M Nanavati v State of Maharashtra, AIR 1962 SC 605: (1962) 1 Cri LJ 521, 533.

The burden of proving the guilt of the accused is upon the prosecution and unless it relives itself
of that burden, the courts cannot record a finding of the guilt of the accused

Case Law:

Kali ram v State of HP., (1973) 2 SCC 808: 1973 SCC (Cri) 1048, 1059: 1974 Cri LJ 1, 9.

Every criminal trial begins with the presumption of innocence in favour 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.

However a note of caution was struck by the Supreme Court regarding the application of this
principle in:

Shivaji Sahabrao Bobade v State of Maharashtra, (1973) 2 SCC 793: 1973 SCC (Cri) 1033.
1039: 1973 Cri LJ 1783, 1788

Observed as follows:

“It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the
people in the judicial system, much worse, however is the wrongful conviction of an innocent
person. The consequences of the conviction of an innocent person are far more serious and its
reverberations cannot but be felt in a civilized society.”

The criticism directed against the principle of “presumption of innocence” appears to be more a
criticism of the manner in which this principle and the principle of giving the accused the benefit
of doubt, has been applied and misused by weak and incompetent judges.
This becomes clear when one examines the decision of various courts including the Supreme
Court which have had occasions to dwell on this. Analyzing the proclivity of the police to take
advantage of the courts tendency to look or proof beyond doubt, in cases where they are accused
of serious crimes like custody killing, the Supreme Court pointed out that exaggerated adherence
to the establishment of proof may make the system a suspect. Court’s observations are pertinent:-

“The exaggerated adherence to and insistence upon the establishment of proof beyond every
reasonable doubt by the prosecution, ignoring the ground realities, the fact situations and
peculiar circumstances of a given case, as in the present case, often results in miscarriage of
justice and makes the justice delivery system a suspect”, this was observed in:

State of M.P v Shyamsunder Trivedi, 1995 SCC (Cri) 715 at 725: (1995) 4 SCC 262.

As mentioned earlier, the principle of “presumption of innocence” is undoubtedly an essential

attribute of fair trial.

Independent, impartial and competent judges:-