Introduction
The concept of fair trial has been developed on the basic belief that it is the duty of the State to provide justice to victims and punish the offenders for violation of laws. In order to maintain a just judicial system, it is important for the State to adopt a judicial procedure that is just, fair and reasonable. The primary object of criminal procedure is to ensure fair and impartial trial so that an innocent person is not punished for an offense unless he is proved guilty for it. In the case of Zahira Habibullah Sheikh and ors. vs. State of Gujarat and ors, it was observed by the court that every person has a right to fair criminal trial and if a person is denied of such right then it will be considered as injustice to the accused, victim and society at large. In this case, the hon’ble Court defined fair trial as a trial before an impartial judge, a fair prosecutor, and an atmosphere of judicial calm.
Trial must be conducted by a competent, independent and impartial Court
Presumption of innocence
In a criminal trial, the accused is
presumed to be innocent until proven guilty. The presumption is based on the
legal maxim ‘ei incumbit probatio qui dicit, non qui negat’ i.e.
the burden of proof is on the person who asserts (prosecution) and not on the
person who denies (accused). The prosecution needs to prove the guilt of the
accused before the court of law and only then, the court can record the accused
to be guilty of a criminal offense. Trial can be said to be a fair trial only
when the accused is presumed to be innocent during the proceedings and even
during the pre-trial phrase. The Code of Criminal Procedure, 1973 is formed in
such a way that presumption of innocence of the accused taken into
consideration from the pre-trial period and extends throughout the trial. The
conviction of accused before been proven guilty by the prosecution will result
in an unfair trial. In the case of State of U.P. vs. Naresh and ors., the
apex Court stated that every accused has to be presumed to be innocent until he
is proven to be guilty. It was also stated by the Court that the presumption of
innocence of the accused is a human right and is also an integral part of criminal
jurisprudence in India.
Double Jeopardy
The concept of double jeopardy is derived
from legal maxim nemo debet vis vexari i.e. no man shall be tried twice for the
same offence or on same facts of the case for any other offence. The concept
has been recognised under the Indian Constitution and Code of Criminal
Procedure, 1973. Section 300 of the Code states that if a person is tried and
convicted for an offence then he cannot be tried again for the same offence or
for any other offence which is based on same facts of the case for which he was
tried and convicted previously. The violation of the principle of Double
Jeopardy results in an unfair trial. In Kolla Veera Raghav vs. Gorantla
Venkateswara Rao, the hon’ble Supreme Court stated the difference between
Constitution and Code of Criminal Procedure, 1973 in relation to double
jeopardy. In Indian Constitution the principle of double jeopardy bars
prosecution and punishment for a particular offence twice while in Code of
Criminal Procedure, it is stated that a person cannot be tried and convicted
for the more than once and also a person cannot be tried for an offence which
is based on the same facts of the case for which he was previously prosecuted
and punished.
In the case of S.A. Venkataraman vs.
Union of India, the accused was dismissed from his office based on the
result of an inquiry under the Public Servants (inquiries) Act, 1960. The
proceedings for such dismissal based on inquiry was held before the Enquiry
Commissioner. Subsequently, the person was also prosecuted before the Court of
Law under Indian Penal Code and Prevention of Corruption Act. It was held in
this case by the Court of Law that the proceeding which took place before the
Enquiry Commissioner does not constitute to be a prosecution for the offence
under Indian Penal Code as it was mere dismissal of service of Government
office and not prosecution and punishment for the offence committed by him.
Therefore, the proceeding under IPC before court of law based on the same facts
would not amount to double jeopardy.
Knowledge of the ground for the accusation
The accused must be given an adequate
opportunity to defend his case and it is possible only when the accused will be
informed of the ground for his accusation. It is important that the accused
knows the ground for his accusation for the purpose of a fair and impartial
trial. Under Section 228, 240, 246, 251 of Code of Criminal Procedure, 1973 it
has been stated that the accused shall be informed by the court of law of the
grounds and particulars of the offence for which he has been accused of and
brought before the court for the purpose of criminal trial. The accused must be
informed of the grounds of accusation as soon as possible in a language in
which he understands. The information can be given orally or in writing. It is
the duty of judicial magistrate to make sure that the person accused of a crime
knows the ground for accusation and has the complete knowledge of the charge
that has been put against him by the prosecution.
Right to public hearing
Right to a public hearing or an open trial
is an important right of the parties to a case before court of law. A fair
criminal trial requires the trial to be a public hearing. Public hearing refers
to a trail which is conducted orally and publically except in a case where the
parties of the case requests it to be otherwise. Section 327 of the Code of
Criminal Procedure states that a criminal trial must be in public except in a
case where the presiding judge or magistrate thinks that the trial must be in
private in order to protect the interests of the party or any other disturbance
in trial because of public or in case where the parties might not be able to
disclose the incidents or facts of the case because of the reason of public hearing. In Naresh Sridhar Mirajkar vs. State of Maharashtra, the Supreme Court
stated that right to public hearing is an essential to the right to fair trial
and it must not be denied unless there is an exceptional case in which it
public hearing may tamper the process of trail or in cases the court of law
thinks the need of a private hearing i.e. ‘in camera’. The Court
of law has the power to hold the criminal trials in camera or to prohibit
publication of the proceedings or a part of the proceedings.
Right to free legal aid
Article 22(1) of the Indian Constitution
provides for the right to be represented by a lawyer. Article 39 A of
Constitution lays down free legal aid as a duty of State towards the accused
persons and State’s obligation to provide free legal aid in case the accused
person needs it. Section 304 of the Criminal Procedure Code, 1973 provides
for legal assistance to a person who is not able to secure a lawyer for himself
because of the reason of financial issues. The aim behind the rule for free
legal aid is that no person shall be left unrepresented before the court of
law. The accused must be given a chance to defend his case for the purpose of
fair and impartial trial. Rule of free legal aid is also important in order to
ensure that no party in a case has a benefit over the other and there is a
reasonable trial. In the case of Khatri vs. State of Bihar, it was held by the
court that the right free legal aid is available to the accused not only for
the purpose of trial but also when he is first produced before the Magistrate
and when he is remanded.
Speedy Trial
Right of speedy trial or expeditious trial
is necessary in order to avoid unnecessary harassment of the accused persons
and to ensure fair trial. ‘Justice delayed is justice denied’ is a principle
which has been derived from criminal jurisprudence. The Supreme Court in the
landmark case of Husianara Khatoon vs. State of Bihar, held that the right
to speedy trial is a fundamental right under Article 21 of the Indian Constitution.
In this case it was shown that the accused persons were kept behind the bars
for more than 20 years which was way more than maximum punishment of the
offence for which they were accused of. It was stated by the court that in
order to ensure fair trial it is important for the State to set up courts for
speedy trial and a procedure must be followed strictly in order to ensure
speedy trial of the accused persons. Section 309 (1) of Code of Criminal
Procedure, 1973 lays down the obligation to speedy trial on courts. The trials
and proceedings shall be conducted as expeditiously as possible in order to
ensure fairness of trial and avoid unnecessary harassment of the accused
persons. The main object of judiciary is to prevent crimes in society and punish
the offenders.
Trial must be conducted in the presence of
the accused
It is necessary for both the parties to be
present in a criminal trial. The court shall not start with the proceedings
without presence of the accused. Every accused shall be given the opportunity
to prepare and present his defence before the court of law. The court shall not
pass an ex parte in criminal case if the accused is not present in the trial as
the absence of the accused in criminal trial is not supported by the principle
of natural justice. For the purpose of fair trial, it is important that the
accused is present in the trial or the trial is taking place in presence of his
counsel. The appearance of accused is needed when the court feels it to be
necessary for his own interest or for the effective disposal of the case. Under
Section 273 of the Code of Criminal Procedure it is laid down that all the
evidence that are taken during the course of trial shall be taken only when
accused is physically present or when his counsel is present. The legal
maxim ‘audi alteram partem’ i.e. hear the other party has to be
followed for the purpose of fair and impartial trial.
Cross examination of prosecution witnesses
The accused has the right to cross examine
the witnesses of prosecution in order to ascertain the credibility of the
witnesses. The principle fair trial also includes that the prosecution shall
inform the court before bringing any witnesses for his case. This principle
gives a fair chance to the accused to check the credibility of the witnesses
and for their interrogation. The accused has the right of interrogation of the
witnesses and shall not be denied of such right. It was held by the Supreme
Court in the landmark case of Badri vs. State of Rajasthan, that in case
the witnesses of the prosecution is not cross-examined on a material point,
such witness would not be acceptable for the statement made in support of such
witnesses.
Criminal Procedure Code and current
scenario of criminal justice in India
In India the Criminal Justice System aims
to ensure a fair and impartial trial. It works to provide an impartial trial
for each and every accused person within the territory of India. According to
the World Justice Project (WJP), 2019 Rule of Law Index India has
been ranked 68 out of 128 countries. Former Chief Justice of India Ranjan
Gogoi in a pep talk to the chief justices of various High Courts on the topic
of speedy trial and expeditious disposal of cases, mentioned that the cases
which were pending before the court of law for more than 10 years have been
disposed of.
CONCLUSION
The concept of fair trial is recognised
internationally across the world. India the concept has been recognised by both
Constitution of India and Code of Criminal Procedure, 1973. The criminal
justice of India has been developed over time and embodied with all the
necessary principles of fair trial it has been seen that even after all the
provisions of criminal justice, India still lags behind in Rule of Law Index
with rank of 68 out of 128 countries. The reason for such a ranking is based on
delayed investigations, expensive and complicated legal process, One of the major reason for it is the delay and irregularity in
implementation of the principles which are laid down by the Criminal Procedure
Code. If we go on to see the actual scenario, it would be difficult to find a
criminal case which has been disposed of within a period of two years even
after the provision of speedy and expeditious trial.
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