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CONCEPT OF FAIR TRIAL by Y. Srinivasa Rao Judge
INTRODUCTORY! 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. nder our !onstitution as also the international treaties and conventions, the right to get a fair trial is a basic fundamental"human right. #e has a right to defend himself as a part of his human as also fundamental right as enshrined under Article $1 of the !onstitution of %ndia. &he right to defend oneself and for that purpose to adduce evidence is recogni'ed by the Parliament in terms of sub(section )$* of +ection $- of the !ode of !riminal Procedure, 1/-. 0air trial2 includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. %n a criminal case, denial of that right means denial of fair trial. &his issue now stands concluded by decision of #o3nble Ape4 !ourt in "a#yani $as%ar &'rs.( v. '.S. Sa)*oorna) &'rs.( +&,--( , SCC ,/01.
T2e 3o##o4ing 3our sub!5o*i6s are su66in65#y dis6ussed in 52is ar5i6#e 1. 5eneral principles of air &rial $. Arrest and Pre(&rial Detention 67ole of 8udge"9agistrate -. rom %nvestigation to the &rial +tage . rom &rial to inal 8udgment 1. 7ENERAL PRINCIPLES OF FAIR TRIAL ! &he system adopted by the !riminal Procedure !ode, 1/- is the adversary system based on the accusatorial method. As was well(said on 1th 9arch, 1/:; letter from
aughan, it is better that ten guilty escape than one innocent suffers.
'a8i)s? @8ustice hurried is justice buried3 but there is another ma4im 0justice delayed is justice denied.2 uic= and prompt trial of criminal offences is the need of the hour to repose faith of the people in judiciary. or this purpose the constitutional guarantee of 1|Page
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speedy trial is an important safeguard. &he right to speedy trial is implicit in Art. $1 of the constitution of %ndia. +ee? S2iv "u)ar Yadav vs S5a5e, Date of Decision? Bth 9arch, $B1;, !7C .9.!./$;"$B1; !rl. 9A $/;"$B1;. &here is another ma4im, Audi alteram partem which says that no one should be condemned unheard. As was observed in Rabindra "u)ar Dey vs S5a5e o3 Orissa ? 1// A%7 1/B, 1// +!7 )1* -, )Also see? Jai%ris2nadas 'ano2ardas Desai and Anr. v. S5a5e of
)ii* )iii*
that the onus ties affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from wea=( ness or falsity of the defence version while proving its caseH that in a criminal trial the accused must be presumed to be innocent until he he is proved to to be guiltyH guiltyH and that the onus of the prosecution never shifts.
A66used is *resu)ed 5o be inno6en5 %n S5a5e o3 U.P. v. Nares2 and Ors.,F )$BB1* +!! -$G the +upreme !ourt observed 0every accused is presumed to be innocent unless his guilt is proved. &he presumption of innocence is a human right subject to the statutory e4ceptions. &he said principle forms the basis of criminal jurisprudence in %ndia.2 I)*ar5ia# Judi6ia# O33i6ers As was held in S2ya) Sing2 v. S5a5e o3 Ra9as52an.: 1/- !ri C8 1, -, )7aj.*, the Iuestion is not whether a bias has actually affected the judgement. &he real test is whether there e4ists 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.
A *erson is 5ried and a6;ui55ed or 6onvi65ed o3 an o33en6e 2e 6anno5 be 5ried again &Au5re3ois A6;ui5 and Au5re3ois Convi65( %f a person is tried and acIuitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. &his doctrine has been substantially incorporated in the article $B)$* of the !onstitution and is also embodied in section -BB of the !r. P.!. &he concepts of double jeopardy and the right against self incrimination have also been e4amined in the light of recent case laws such as Se#vi v S5a5e o3 "arna5a%a $|Page
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where the !ourt concluded that a Jarco analysis test violates this right. %n "o##a a2ira =abibu##a2 S2ei%2 and ors v. S5a5e o3 7u9ara5 and ors.: )$BB* - +!! -/ at -;, the #on3ble Ape4 !ourt observed that 0each 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.
,. ARREST AND PRE!TRIAL DETENTION ?ROLE OF JUD7E@'A7ISTRATE Grounds of his arrest to be informed to accused: +ection ;B provides that any
person arrested without warrant shall immediately immediately be informed of o f the grounds of his arrest. &he duty of the police when they arrest without warrant is to be Iuic= to see the possibility of crime, but they ought to be an4ious to avoid mista=ing the innocent for the guilty. &he burden is on the police officer to satisfy the court before which the arrest is challenged that he had reasonable grounds of suspicion. %n Pranab C2a55er9ee v. S5a5e o3 $i2ar: )1/B* - +!! $, the #on3ble +upreme !ourt held that +ection ;B of !r.P.! is mandatory. %f particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. &he grounds can be communicate co mmunicated d orally or even impliedly by conduct. Production of accused before a Judicial Magistrate within 24 hours of arrest:-
+ection ;/ of !r.P.!. and Article $$)$* of !onstitution provide that a person arrested must be produced before a 8udicial 9agistrate within $ hours of arrest. %n S5a5e o3 Pun9ab v. A9aib Sing2, A%7 1;- +! 1B , the #on3ble +upreme !ourt held that arrest without warrant call for greater protection pro tection and production within $ hours ensures the immediate application of judicial mind to the legality of the arrest.
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Arrest of accused to be informed to his friend friend or relative:
&he decisions of the +upreme !ourt in Joginder "u)ar v. S5a5e o3 U55ar Prades2: 1 +!! )* $B and D.". $asu v. S5a5e o3 es5 $enga#, 1/ )1* +!! 1, were enacted in +ection ;B(A ma=ing 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 ma=e an entry in the register maintained by the police. &his was done to ensure transparency and accountability in arrest. +ec.1B of !r. P.! provides that investigation by any police officer of any male below 1; years or any woman can be made only at the place of their residence. +ection )* provides that no woman shall be arrested after sunset and before sunrise, save in e4ceptional circumstances and where such e4ceptional circumstances e4ist, the woman police officer shall, by ma=ing a written report, obtain the prior permission of the 8udicial 9agistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. Section 41A CrPC aimed to avoid unnecessar! arrest:-
%n Arnes2 "u)ar vs S5a5e O3 $i2ar B Anr , !7%9%JAC APPEAC JL. 1$// L $B1 )M+PE!%AC CEA>E PE&%&%LJ )!7C.* Jo.1$/ of $B1-*, it was observed that
to be considered by 9agistrate while granting or refusing r efusing to grant
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decision in
. FRO' IN
Procedural safe guards:-
1. +ection 1- of !r.P.! prohibits investigating officer from obtaining statements statements from witnesses through threatening conduct. $. nder +ection ;BA )1* of !r.P.!, immediately on arrest, the arresting police officer has an obligation to give information about the arrest and the place of detention to any person nominated by the arrested person. -. As was observed in D.".$asu vs. S5a5e o3 es5 $enga#: A%7 1/ +! 1B preparation of @Arrest 9emo3 indicating the date , place and time of arrestH signed by two independent witnesses and countersigned by the arrest officer is mandatory. Also see? +ection 1 A,<,!,D of !r.P.!. . !onducting medical e4amination of the accused at the time of arrest is essential. +ee. +ection ; of !r.P.!. ;|Page
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;. &orture to accused is absolutely forbidden inasmuch as torture is a violation of fundamental rights. +ection --B %P! criminali'es torture during interrogation and investigation for the purposes of e4tracting a confession of accused. . &he danger of illegal detention and torture of accused can be minimi'ed by strict compliance of section ;/ of !r.P.!. /. Article -$ and $$ of the %ndian !onstitution provide for compensation from the +tate for contravention of fundamental rights. +ee. Ni#aba5i $e2era vs. S5a5e o3 Orissa: A%7 1- +!! page 1-. :. &he !ode of !riminal Procedure,1/- codifies the duties of 9agistrate. 9agistrate shall follow the guidelines given in Arnesh Numar3s case. . nder section 1/$, a police officer shall maintain a day(to(day case diary. Police records must be =ept with scrupulous completeness, and investigations should be carried out with promptness, urgency and efficiency to achieve the object of discovery of truth in every case. 8udicial Lfficer3s signature on each page of the case diary operates as a safeguard against manipulation and interpolation. 1B. +ection 1/- of !r.P.! which imposes further record(=eeping duty on the police officer. +ee. $2ag4an5 Sing2 vs. Co))issioner o3 *o#i6e: De#2i , )1:-* !riminal Caw 8ournal 1B:1 O )1:;* +! 1$:;
. FRO' TRIAL TO FINAL JUD7'ENT &o say in short, a trial of a criminal case is a process by which a !ourt decides on the innocence or guilt of an accused. &he total trial process is governed and underpinned by the principles laid down in the !onstitution of %ndia. Accused is given every opportunity to defend himself. &he duty of a judicial officer is to ensure that witnesses are e4amined with great care and he has the duty to referee motions, weigh the facts and circumstances, draw logical conclusions and arrive at a reasoned decision about guilt or innocence by weighing the facts and circumstances, the evidence produced and the relevant law. %n "a#i Ra) v. S5a5e o3 =.P., F )1/-* $ +!! :B:Gthe +upreme !ourt observed 0it is no doubt that wrongful acIuittals are undesirable and sha=e the confidence of the people in the judicial system, much worseH however is the wrongful conviction of an innocent person. &he conseIuences of the conviction of an
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innocent person are far more serious and its reverberations cannot be felt in a civili'ed society.2 %n =i)ans2u Sing2 Sab2ar4a v. S5a5e o3 '.P:+ 9AJ"+!"11-"$BB:G, 9AJ"+!"11-"$BB:G, the ape4 court observed that if fair trial envisaged under the !ode is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the reIuisite manner the court can e4ercise its power under +ection -11 of the !ode or under +ection 1; of the %ndian Evidence Act, 1:/$ to call in for the material witness and procure the relevant documents so as to sub serve the cause of justice.
Se55#ed *rin6i*#es in 6ri)ina# 9us5i6e sys5e)! 1. An accused to be tried before a competent, independent and impartial tribunal"court. $. &he burden of proof tests on the prosecution. -. &he prosecution must establish guilt beyond reasonable doubt. . #igh probability is not enough to convict 6 where there are several possible accounts, the account supporting the accused should be upheld. ;. Accused has a right to remain silent. . 8udicial Lfficer must ensure that the prosecution and the defence lawyer 6 are being diligent, honest and learned in their efforts to ar rive at the truth. /. nder section / of !r.P.!, a judicial officer may not try or commit to trial any case in which he has a personal interest. &he basic principle is such that a judge cannot sit in a case in which he has a financial or other interest. interest. :. A significant legal ma4im is that @3 8ustice must not only be done, but be seen to be done.33 . %f a criminal court is to be an effective instrument in dispensing justice, the presiding officer must cease to be a spectator and a mere recording machine. 1B. nder section -$/ of the !ode, trial judges to invariably hold the trial of rape cases in camera, rather than in open court. 11. As seen from section -B of !r.P.!, it is =nown that the !ode safeguards the right to a speedy trial.
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1$. Every accused should be provided the opportunity to be defended by a pleader. 1-. &he +tate is obliged to provide prov ide free legal aid to a prisoner who is indigent or otherwise disable from securing legal assistance where the ends of justice call for such service. Articles $1 and -A to underline the importance of providing legal aid to accused who have no means to engage a pleader, especially for under trial prisoners. +ee. Su% Das vs. Union Terri5ory o3 Aruna62a#a Prades2, $ )1:* +!! B1 1. Accused should be furnished the copies of Police report and other documents in a criminal case. +ee. +ection $B/ of !r.P.!. 1;. nder section $/- of !r.P.!, evidence to be ta=en in the presence of the accused. #owever, in a recent times, it is interpreted that while recording the evidence through video(lin=age, physical presence of accused is not necessary. 1. nder the provision of section $- and $/ of the !ode, accused has right to produce witnesses in his defence, and these provisions are applicable eIually to cases instituted on a police report or private complaint. +ections $- ad $ of the !ode afford the accused the right to cross(e4amine the prosecution witnesses. 1/. &he object of section -11 of the !ode is to discover the truth and deliver a just decision. 1:. nder section $/ of the !ode, whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him. 1. &he principle of double jeopardy is a safeguard provided under Article $B )$* of the !onstitution which prohibits prosecution or punishing a person for the same offence more than once. $B. +ection -BB of the !ode puts forward three e4ceptions to the double jeopardy prohibition prohibition and provides several illustrations. A person once convicted or acIuitted cannot be tried for the same offence. +ee. S5a5e o3 And2ra Prades2 vs. "o%%i#igadda 'eerayya and Anr: 1 )1* +!! 11. $1. +ection -;- of the !ode mandates that judgment must be delivered in an open courtH be read out in courtH or the operative part of the judgment read out and the substance of the judgment e4plained.
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$$. +ection -; )1* of the !ode mandates that judgments must be reasoned. $-. Khen accused is sentenced to imprisonment, free of copy of judgment shall be furnished to him. $. Every judgment of a court must be based on legal evidence, substantive by law and logic without having to resort to speculations or inferences. $;. %n the operative part of the judgment, the court should state the conviction and the sentence in a specific and clear manner. $.
Con6#usion! %ndian law is in consonance with the prevailing international legal standards on the right to be tried by a competent and independent and impartial court. All persons must be eIual before the court. Every one shall be entitled to a fair trial by an impartial court established by law. A salient reIuirement of fair trial is o ne without undue delay. &he right to a speedy trial flowing 3ro) Article $1 of the !onstitution encompasses all the stages such as investigation, inIuiry, trial, appeal, revision and re(trial. %n a criminal case, a conviction cannot be based on the testimony of witnesses whose e4amination in chief stands contradicted by their cross( e4amination.
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