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FAIR TRIAL

Table of Contents

Question Bank

Discuss fully the rights of accused person.
Enumerate in brief the concept of fair trial.

Short Notes

Fair Trial
Right to be examined by medical practitioner.
Defense counsel / Exemption of accused.

SYNOPSIS

Introduction –
II) Following are some of the provisions that ensures fairness of trial in criminal proceedings

1) Adversarial System –

2) Independent Judiciary-

a) Separation of the judiciary from the executive-
b) Trial in open Court (S.327)-
c) Unbiased Judges (S.479)-
d) Right of accused to get case transferred (S.190)-

3) Presumption of innocence-

4) Right of accused person at trial-

(a) Right to know of accusation-

(b) Trial in accused presence-

(d) Right against double jeopardy-

(e) Right against ex-post facto law-

(f) Right against self incrimination-

8) Speedy Trial-

I. Introduction –

The primary object of criminal procedure is to punish the guilty and ensure a fair trial. It is important to punish a guilty person. However, an innocent person should not be punished. Therefore, the important principle of criminal jurisprudence is, ‘Let a hundred guilty be acquitted than to punish single innocent’. Therefore, it is important to ensure the fairness of the trial.

II) The following are some of the provisions that ensure fairness of the trial in criminal proceedings –

1) Adversarial System –

The Code has adopted an adversarial criminal trial system against the inquisitorial system.

In an adversarial system, the Court acts independently without favour either to the accused or the prosecution. The court is not part of an investigation in an adversarial system; however, in the inquisitorial system, the investigation is supervised by the Judicial Magistrate, which results in a higher conviction rate. In other words, the Judge becomes part and parcel of the investigation process and, therefore, acts in favour of the prosecution.

Therefore, the Malimmath Committee (on the reformation of the criminal justice system) opined that the adversarial system is best to preserve the fairness of the trial.

2) Independent Judiciary-

Trial fairness can be best preserved if the judiciary is independent and impartial. The Code has made the following provisions to preserve independence and impartiality of the judiciary viz-

a) Separation of judiciary from the executive-

The Constitution’s provisions have ensured the judiciary’s separation from executive interference. Ss.6 to 19 of the Code also makes some provisions to ensure a fair and impartial justice system. Unlike any other Government Department, the judiciary is under direct supervision and control of the High Court in each State and the Supreme Court in India. Judges’ salaries, allowances, transfers, etc., are not under the control of the executive but under the control of the High Court and Supreme Court.

b) Trial in open Court (S.327)-

S.327 provides that all criminal trials should be held in open Courts to which the general public will have access. However, the presiding Judge or Magistrate may, if he thinks fit, in a particular case, may order that the general public or any particular person shall not have access to the Court, e.g., evidence of rape victim may be taken “in camera” (i.e., in the closed chamber). Moreover, Ss.177 to 189 makes provision as to the place of trial. These sections lay down that if the place of trial is highly inconvenient to the accused person and causes various impediments in the preparation of his defence; the trial should be transferred to another convenient place. The best bakery case was tried in Mumbai despite the incident in Gujarat.

c) Unbiased Judges (S.479)-

S.479 incorporates the rule against bias. An important principle of Natural Law is that “no man shall be a Judge in his own case.” S.479 incorporates this principle. It provides that –

(i) No Judge or Magistrate shall, except with the permission of the higher appellate Court, try or commit for trial any case to or in which he is a party or personally interested and

(ii) No Judge or Magistrate shall hear an appeal from any judgment or order passed by himself[1].

d) Right of the accused to get the case transferred (S.190)-

S.190 (1) (c) provides that the Magistrate can take cognizance of an offence on his own. However, where the Magistrate has taken cognizance on his own, he is duty-bound to tell the accused (before any evidence is taken against him) that he is entitled to have the case tried by another Magistrate. If the accused wishes to transfer the case to another Magistrate, it shall be transferred accordingly.

3) Presumption of innocence-

In an adversarial system, an accused is presumed innocent unless and until convicted of an offence. Throughout the trial, the prosecution bears the burden of proving the accused’s guilt beyond reasonable doubt. The court has to presume during the trial that the accused is innocent.

4) Right of the accused person at trial-

At the trial, the accused person has the following rights –

(a) Right to know of accusation-

Every accused has the right to know the accusations against him to prepare his defence. Therefore, the Code provides that when the accused is brought before the Court for trial, the Court should tell him particulars of the offence of which he is accused. In cases of the trial of cognizable cases, the Court is required to frame a formal charge in writing and then read and explain it to the accused.

(b) Trial in accused presence-

The accused’s presence is required in a trial to understand the prosecution case. The trial is conducted in his presence to ensure a fair trial.

(c) Right to be heard-

The right to be heard is a natural right. The accused has the right to defend himself through a competent lawyer. If he is unable to engage a lawyer, the state is to engage a lawyer to defend the accused. In such a case, the accused need not pay lawyer fees. It is free legal aid to the accused.

The accused (through a lawyer) can cross-examine prosecution witnesses or lead evidence in his defence.

(d) Right against double jeopardy-

Art. 20(2) provides that if the accused is earlier prosecuted and punished for an offence, he cannot be prosecuted and punished for that offence again. In other words, a person accused cannot be prosecuted and punished for the same offence more than once.

(e) Right against ex-post facto law-

A person cannot be punished for an act without a law prohibiting that act. Moreover, he cannot be subjected to more punishment than prescribed at the time of the commission of that offence. (For detailed discussions, see Art. 20 Cl. (1)).

(f) Right against self-incrimination-

No person accused of any offence can be compelled to be a witness against himself. Therefore, the statement of the accused before the police is not considered evidence (Art. 20(3) of the Indian Constitution).

(g) Speedy Trial-

S.309 (1) provides that in every inquiry and trial, the proceedings shall be held as expeditiously as possible. In particular, when the examination of witnesses starts, it shall be continued day to day until all the witnesses are examined. The day-by-day hearing must be held unless the Court finds the adjournment of the same beyond the following day necessary for reasons to be recorded.

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[1] Ss.352, S.480 also makes provisions to ensure impartiality of Judges.