This article is written by V. Krishna Laasya, a student of School of Excellence in Law.
State has an obligation of duty over all its citizens, irrespective of whether the person is a drunkard, illiterate, accused, ideal citizen etc. State must not differentiate between its own citizens and fair trial to all accused persons is a mandate.
Concept of a fair trial is more often than not limited to the statute in existence at the time of prosecution for a particular crime. That is why it is more pertinent that the person who has been accused of commission of a crime is provided with a fair trial and his guilt or innocence may be proven by way of the outcome of the trial.
Using the facade of fighting crime, State or State’s officers cannot pull away this right. This right must be kept free from the concept of criminal behaviour or psychotic exhibition.
Fairness is a concept that is different for each person. One person may deem it fair to punish the accused by himself while another person may deem it fair to subject the accused to a trial in a Court of Law. Thus, the Code of Criminal Procedure may be invoked to state that the concept of fairness, though relative may be classified on the basis of the magnitude of the offence, witnesses available, time spent by the Courts and the society and the substantial act in force at the time of commission of an offence.
Principles of Fair Trial- Consonance with Code of Criminal Procedure
It is a well known and accepted fact that the Code of Criminal Procedure is a procedural law and it can be differentiated from Substantive law as it lays down the enforcement of the rights and liabilities stipulated in Substantive Law.
The concept of a fair trial is constituted when principles of natural justice- Nemo in propria causa judex and Audi altrem partem are followed in a wide ambit.
In a narrow perspective, the concept of fair trial constitutes provisions of Code of Criminal Procedure, 1973 where the Rights of an accused person have been meted out. Thus, to constitute a fair diligence on fair trial, the triad path of Equality, Justice and Free Liberty must be embodied. This is to ensure that the provisions of the Constitution of India read along with the International Conventions have an imperative mechanism to deal with any injustice, fair or unfair by the Courts or the judges.
Generality of a Fair Trial is discussed through the practicality of its judicial decisions. It has been intricately pointed by the Supreme Court that a fair trial before an impartial judge is that which is absolutely calm judicially and a trial made without any open bias or pre-mediated prejudice against the accused or any witnesses. A judge in a trial is not considered a mere spectator. In fact, he is to be an active participant in evaluation of evidences and must be in possession of great intelligence and zeal.
In Kalyani Baskar v. MS Sampoornam, the Supreme Court elucidated on the fact that rules of procedure have been made in such a way that the process of access to justice is made easier and courts must be active protectors of ensuring the same.
Innocence- A Ground for Presumption
It is a well-established principle in criminal law that all accused are innocent unless their guilt is proven or established. This mentioned principle has a two-fold effect:
- Presumption of innocence is a cardinal criminal principle and is built around the essence that the accused must not only be proven of his involvement in the commission of an offence, but must also be proved beyond reasonable doubt.
- CrPC Provisions on Fair Trial have not only been developed to favour prosecution but have also been sorted to be a level playing field as the aspects of law enforcement in both sides is a mandate. The burden of proof thus, lies on the prosecution to prove that the other side is actually guilty and has, in reality, committed the offence being accused of.
Essentials of a Fair Trial
- A criminal trial or proceedings must be supervised by a competent, qualified and impartial judge. This principle is streamlined by Nemo Judex in causa sua where no person can be a judge in his/her own cause or subject matter. This has been codified through S. 479 of CrPC where a judge or a magistrate cannot take part or adjudge a trial where he is an own party or if his personal interests lie in the case.
- S. 177 embodies the principle that an offence when committed, shall be tried by the court in whose jurisdiction and territoriality it took place or was committed. This jurisdiction is of a local nature and has been illustrated in Ram Chandra Kavalekar v. State of Maharashtra where the place of trial was held to be the basis of occurrence of an event and the territorial jurisdiction depends accordingly.
- A Judge or a Magistrate is required to conduct a trial in such a way that justice is served and not on the basis that the defendant has committed a certain offence and hence, must be punished. Judge is expected to make a decision, taking into account facts and circumstances, the evidence presented and arguments made by the lawyer.
International Conventions Highlighting the Essence of Fair Trial
- S. 11(d) of the Canadian Charter of Rights and Freedom lays down certain obligations and duties on the trial judge to be able to declare the offence of the accused in an open and fair trial. This part of the Canadian Constitution was elucidated in Selvey v. Director of Public Prosecutions, thus presenting a backbone to the non-existent specificity of the principle of Fair Trial in the Indian Code of Criminal Procedure, 1973.
- Article 6(1) of the European Convention on Human Rights guarantees on the process of fair trial, not only on the aspect of protecting general public’s rights, interests and morals but also by preventing media and press trials.
- Article 11(1)of UDHR embodies that every person who has been charged with an offence, either of a grave or less serious nature, will be presumed innocent unless and otherwise he or she is proven guilty under law.
- Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) stipulates a principle and adopts an approach similar to UDHR and maintains presumption of innocence.
The concept of fair trial promotes dynamism, as it requires the Judges and Magistrates to think quick on their feet, according to their views and interpretations of the provisions of CrPC and the Constitution of India. The concept of fair trial, though has no legal express validity in the Indian Codified Legal System, it is still important to be followed for the implication of the need for impartial, competent and fair judges with openness of mind and unbiased opinions.
The following cardinal rules are perquisites of constituents of a fair trial and are needed to be followed.
- Burden of proof lies on the prosecution.
- Guilt must not only be proven and established but also must be far and above the possibility of reasonability (reasonable doubt).
- Probability must not be considered like there is a 1 out of 5 chances that the accused would have committed the offence. Majorly, the accused-supporting-account must be held valid.
Reasoned decisions are those which elucidate that a decision by a Hon’ble Judge has been taken after ample considerations of all evidence produced. Giving reasons is a sign of good decision-making skills and also assures the public that the conviction made, has suitable legal backing. This also showcases the ability of the public accessability and the elements of transparency and responsibility.
Rights of an Accused Person
The rights of the accused persons must be meticulously protected and this is elucidated by taking into account a judicial precedent, DK Basu v. State of West Bengal, where any deviation from the powers of the officers will lead to contempt of court and in case of illegal detention, the police can be persecuted if it results in violation of rights of accused persons.
There are catena of judgments that cater to protecting the rights of accused persons, like Joginder Kumar v. State of UP, Madhu Limaye v. Respondent where A. 22(1) of the Constitution was intricately analysed to see the embodiment of safeguarding personal liberty. The aspects analysed in this case include the Court’s perseverance and ability to see if the police officers have discharged their duties in a due reasonable manner and whether the investigation and custodial maintenance necessity were pertained to or not.
In Khatri v. State of Bihar and Nandini Satpathy v. PL Dani, The fundamental rule of law as per A. 22(1) includes the accused availing services of a lawyer in the course of a custodial interrogation and this concedes to the right of availing a legal practitioner of choice by the accused.
Courts have assured that the main objective of CrPC is to conduct a fair trial of all accused persons in an unbiased manner. The Law Commission in retribution to the same have highlighted the fact that fair trial can be held constitutional only when there are elements of conducting trial, venue, court character and rights of accused inherently present.
Right of accused to have an expeditious trial
A criminal trial that is delayed over series of many adjournments or hearings is justice denied. It is not considered a fair trial especially when the accused has not been released on say bail, during lis pendens. S. 437 (6) states that if the trial does not take place within 60 days from the first hearing date, the accused must be released on bail.
Though there is no explicit provision regarding expeditious trial in CrPC, S. 309 (1) may be considered valid as it deals with the concept of speedy trials and disposals. Examination of this concept evolved over the years with Moti Lal Saraf v. State of Jammu and Kashmir, Hussainara Khatoon v. State of Bihar where the inability to provide speedy trial is not a valid excuse by the State and measures that can be taken include setting up more courts to enhance speedier disposal, appointment of more judges.
Right to be Notified of Charges or Framing of Charge
The objective of this right in the context of CrPC is to provide the accused with a notice requisitioning him on the evidence to be used against him and ensuring that the trial is just and fair.
CrPC provides for the following:
- S. 207 mandates that, if the criminal trial has been constituted with the structure of a police report, then the magistrate must ensure that the accused is provided with the copies of FIR and the police report, statements either recorded or made by witnesses under S. 161.
- S. 208 provides that the Magistrate provides with adequate materials relating to the prosecution evidence before trial, exclusively if triable in Court of sessions.
- S. 211 and 212 provide that the accused is ensured of a fair trial where the accused must be known of the charges made against him/her, the charge must contain the exact date and place of the occurence of the offence. The accused must also be made known as to the law applicable and relevant provisions dealing with the alleged offence. In State of Orissa v. Debendra Nath Padhi, the concept of whether the Court must consider the accused-filed-material while framing charges was discussed and held that, if it is in such a manner that it will affect the sustainability of the case, then the matter must be considered.
Right to be present at one’s own trial
The right to be present at the accused’s own trial is implicit in the provisions of the Indian Codifications and this is in fact, an obligatory mechanism as it is considered prejudice to the fairness of conducting the hearings, if the accused is not present at the time of hearing. The accused must be present for the proceedings of the case against him, not only because he can answer the charges made against him but also because he can know what is said and prepare for the best possible arguments and defences.
As per the right, there are two aspects to be segregated namely:
- Evidence to be taken in the presence of the Accused- The provision relevant here is S. 273 of CrPC where all evidence taken in the course of trial has to be mandatorily taken in the presence of the accused or in the presence of the pleader appearing for the accused. In State of Maharashtra v. Praful Desai, the Court held that even if the evidence is recorded via video conferencing when the accused and his pleader are present is a valid defence and condition.
- Inquiries and trials if held, in the absence of the Accused- Interests of justice to be served and to prevent the risk of prejudice, the accused may be present in the proceedings. As per S. 317 of CrPC, the accused may provide valid reasons and be dispensed off with personal attendance during the trial. However, it must be noted that mere absence of the accused will not be considered enough. It must be established to the court that there were reasonable grounds for the same and such reasons must be recorded in the proper manner provided by the Court.
The article evaluates whether the principles of fair trial have coordination and are complementary to the provisions of Accused persons as elucidated in the Constitution of India and CrPC or not. The project, after a critical analysis of the considerations of Fair Trial and Accused persons may highlight that Right of Accused persons is indeed a component and facet of Fair Trial and has not been merely placed in CrPC for pomp and show.
The concept of fair trial does go hand in hand with the Rights of Accused Persons by way of implication as per the Code of Criminal Procedure, 1973. Fair Trial necessitates the aspect of a competent and a qualified judge, Court and Magistrate.
The accused persons are thus entitled to
- Right to know the accusation.
- Tried in his own presence.
- Tried by Impartial and competent judges.
- Right to cross-examine prosecution witnesses and produce evidence in defence.
- Right to have an expeditious trial.
In the article, the Rights of an accused person have been made with the view of assent with Fair trial and not as a separate, pervasive concept.
- Commonwealth Human Rights Initiative Fair Trial Manual A Handbook for Judges and Magistrates https://www.humanrightsinitiative.org/download/1595051095Fair%20Trial%20Manual%202019.pdf
- Sri T. Mallikarjuna Rao General Principles of Fair Trial at https://districts.ecourts.gov.in/sites/default/files/1st%20Topic.pdf.
- Anju P. Singh Reasoned Decision: The Necessity and Importance to Achieve Transparent and Accountable Society at https://journals.sagepub.com/doi/10.1177/2277401720150110.
- Gazal Ghai Principle of Natural Justice: Rule Against Bias at https://lexlife.in/2020/05/18/principle-of-natural-justice-rule-against-bias/.
- Legal Service India Rights of Accused Persons at http://www.legalserviceindia.com/legal/article-219-rights-of-accused-persons.html.
- K. N . Chandrasekharan Pillai R. V Kelkar’s Criminal Procedure Code 6th Edn 2014 Reprinted 2018.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: