Sankalp Mandawaria
Abstract
Fair trial means a trial before an impartial judge, a fair prosecutor and an atmosphere with judicial calm where both parties have equal opportunity to defend themselves. It is a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated. Everyone has a right to fair and impartial trial undertaken by an independent judge. It ensures that where an individual who is being accused of an offence is not denied his/her rights necessary to defend and protect himself/herself.Fair trials are the only way to prevent miscarriages of justice and are an essential part of a just society. Every person accused of a crime should have their guilt or innocence determined by a fair and effective legal process.[1] Most of these safeguards to ensure a fair trial are contained under the Code of Criminal Procedure, 1973 which contains and defines the procedure which has to be followed in criminal cases.
Introduction
Right to a fair trial is a concept which is essentially embodied in the Constitution of India. In a democratic country like India, even an accused cannot be denied his right to life and personal liberty. Indian Constitution through its Article 21 renders the fair trial a part of life and personal liberty. Under Indian system, it is the prosecution who has to prove the guilt of the accused beyond a reasonable uncertainty.
Principles of Fair trial:
1. Adversary trial System: The Code of Criminal Procedure, 1973 is based on an adversarial trial system.[2] It suggests that onus of proving the guilt of the accused is on the prosecution and judge acts as a neutral arbitrator.
2. Presumption of innocence: An accused is innocent until proven liable. The onus of proving the accused’s guilt rests upon the prosecutor. This principle has been originated from a Latin maxim, ‘eiincumbitprobatio qui dicit, non quinegat’, which implies that “the burden of proof is on the one who declares, not on one who denies”.[3]
3. Independent, impartial and competent judge: A trial is said to be fair if it is done before an independent, impartial and a competent judge. Independence of the judiciary is the important part of Indian Constitution. Section 479 of the Code of Criminal Procedure explicitly prohibits any judge or magistrate to trial any case in which he is a party or personally interested and also prohibits to entertain any appeal from any order or judgment made.
4. Right to Free Legal Aid: To ensure a fair trial the accused is to be defended by a legal practitioner, it is also important to ensure that he has themeans to engage a lawyer. This right is secured by the Article 39A of the Constitution which provides for equal justice and free legal aid. Section 304 of Cr.P.C also provides for legal aid at the expense of State. Legal assistance to accused that has no means to defend himself is essential to protect his life and personal liberty.
5. Hearing in open court: A fair trial requires that trial must be in an open court. The openness of the court as per section 327(1) of Cr.P.C implies parties as well as the general public have access to records of the court with the exception of rape offences as stated in section 327(2).
5. Knowledge of Accusation: As per Article 22(1) of the Constitution, it is the fundamental right of every accused to be informed about the grounds of accusation and defended by a legal practitioner. Section 211 of Cr.P.C incorporates the right to have a precise and specific accusation.
6. The trial in presence of accused:The court requires the presence of accusedwhile proceedings, if it feels necessary for the administration of justice. However, this isn’t an absolute rule and court has the power to proceed the case even in the absence of accused.
7. Evidence to be taken in presence of accused: The evidence must be taken in presence of accused. Section 273 of Cr.P.C requires that all the evidence and the proceedings should take place in presence of accused. Although this rule is backed with exceptions as well.
8. Protection against Illegal Arrest: According to section 57 of the Code, no individual arrested will be detained for more than 24 hours andmust be presented before a magistrate within 24 hours of the arrest.[4] It is a fundamental right under Article 22(2) of the constitution. A detention of an individual in excess of 24 hours without the permission of the Magistrate will be termed as illegal detention.
9. Prohibition on Double Jeopardy: It is a fundamental right under Article 20(2) of the constitution. This principle is placed on the rule of ‘nemo debet bis vexari‘ which means a man should not be put twice in risk for the same offence. The principle of double jeopardy is based on the doctrine of autrefois convict and autrefois acquit. This doctrine implies that if an individual is prosecuted and convicted or acquitted cannot be prosecuted again for the same offence. Section 300(1) of Cr.P.C also explicitly lays down the rule that anindividual once acquitted or convicted will not be tried for the same offence or for any other offence on the same facts.
10. Right to Free Legal Aid: If to ensure a fair trial the accused is to be defended by a legal practitioner, it is also important to ensure that he has all the necessary means to engage a lawyer. This right is secured by the Article 39A of the Constitution which provides for equal justice and free legal aid. Section 304 of Cr.P.C also provides for legal aid at the expense of State. Legal assistance to accused that has no means to defend himself is pivotal to protect his life and personal liberty.
Some of the relevant cases and their influence
Himanshu Singh Sabharwa v. State of M.P. and Ors.[5]
The court observed that iffair trial envisaged under the Code is not imparted to the parties when court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court is capable of exercising power under section 311 of the Code or under section 165 of the Indian Evidence Act, 1872 to call in for the witness and procure the relevant documents to impart justice.
State of U.P. v. Naresh and Ors.[6]
The court held that “every accused is assumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions”.
Conclusion
Equality, Justice and Liberty are the main aims of fair trial recognised in the administration of justice of India where the affluent and the “lowly and lost” have the equality of access to justice in the administration of justice in general and the criminal justice system in particular. Concept of Fair trial is necessary for imparting justice in its true form.
[1]The Right to a Fair Trial – Fair Trials, Wikipedia, (March3,2020 5:10 PM),
https://en.wikipedia.org/wiki/Fair_Trials#cite_ref-fairtrials_1-0
[2]Swati Duggal, Concept of a Fair Trial, Lawoctopus, (March3,2020, 5:17 PM),
[3] Team @Law Times Journal, Ei incumbit probatio qui,Law Times Journal, (March 3, 2020, 5:34 PM),http://lawtimesjournal.in/ei-incumbit-probatio-qui/
[4]Mohini Chaturvedi, Protection against illegal arrest, detention and custodial death, Law Times Journal, (March 3, 2020, 5:49 PM),
[5] (Crl.) 175 of 2007
[6] (2001) 4 SCC 324
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