INTRODUCTION

The right to a fair trial is based on the principal of natural Justice. It is a basic
human right which has been adopted by the international human rights law and
also by many countries in their procedural law. It is designed to protect individuals
from the unlawful and arbitrary curtailment or deprivation of their basic rights and
freedoms, the most prominent of which are the right to life and liberty of the
person. The objective of the Fair trial is to provide every Individual a fair chance
of public hearing by a competent, Independent and Impartial body established by
law. Human rights jurisprudence affirmed and accepted this objective of Fair trial
under Article 10 and Article 11 of the Universal Declaration of Human Rights,
1948. Indian legal system promises Fair trial to its citizens and it has been reflected
through its constitutional scheme as well as its procedural law. Supreme Court of
India in the case of Zahira Habibullah Sheikh and ors v. State of Gujrat
(MANU/SC/1344/2006) stated that the practice of Fair trial is an essential part of
the Justice system which is a constantly developing process according to the
exigencies of the situations, peculiar at times and related to the nature of crime &
person involved. This article proposes to critically examine various components of
fair criminal trial in the light of Indian criminal justice system. To achieve this end,
the author will discuss relevant provisions of criminal procedure as well as various
case laws. Lastly, Causes for the delay in the criminal justice system.
FAIR TRIAL UNDER THE CRIMINAL PROCEDURE CODE, 1973

ADVERSARY TRIAL SYSTEM

The Indian legal system provides the Indian Penal Code, 1860 as the substantive
law and the Code of Criminal Procedure, 1973 & the Indian Evidence Act, 1872 as
the procedural laws. Indian Penal Code and Code of Criminal Procedure are
together known as “twin sisters” of criminal law whereas Indian Evidence Act is a
comprehensive, treaty on the law of “evidence”. The system adopted by the
Criminal Procedure Code, 1973 (hereinafter referred as the Code) is the adversary
system based on the accusatorial method. There are mainly two types of trial
systems that are present i.e. adversarial system and Inquisitorial trial system. In the
former system, it is the responsibility of the opposing party or the prosecution to
produce evidence before the Judge who acts as a neutral referee. On the other
hand, the latter puts the responsibility for the production of evidence as well as the
selection of witnesses for the trial on the trial Judge. The adversary system
reconciles both public and private interests, it is assumed under this system of trial
that the state will punish the wrong doer with the help of his investigative agencies
and public council to prevent him from committing more crimes. On the other
hand, the wrong doer will take recourse to the best councils to challenge and
counter the evidence of the prosecution. In Himanshu Singh Sabharwal v. State
of M.P. and Ors (MANU/SC/1344/2006) the apex court observed that if fair trial
has not been imparted in the requisite manner than the court can exercise its power
under section 311 of the Code or under section 165 of the Indian Evidence Act,
1872 to look into the matter where the justice has not been served properly. The
adversary system is thus praised for its competitive style of presenting evidence
and arguments which produces a more accurate result than an inquisitorial system
where the judge monopolizes the process.

PRESUMPTION OF INNOCENCE
In India, the Police after registering the First Information Report (FIR) under
section 154 of Code of Criminal Procedure(hereinafter referred to as the
‘Code’)investigates into the matter produces a final report also known as charge-
sheet under section 173 of the Code. It mentions the facts and evidence collected
by them proving the offense before the hon’ble court. However, if the police
refuses to lodge an FIR, the court can order for the investigation under section
156(3) of the code. The search warrant can be issued by a District Magistrate, Sub
Divisional Magistrate or a Magistrate of a first class, based upon information and
after inquiry, as they think necessary. In cases where a search has to be conducted
concerning a document or thing which is in the custody of the postal or telegraph
authority, then the District Magistrate or the Chief Judicial Magistrate are
authorised to issue a search warrant. Search-warrant should be issued on petition
using Form No. 10 in Schedule II of the Code of Criminal Procedure, 1973. The
warrant has to be in writing, and it must state the name of the police officer or the
person to whom authorisation has been given to search. It must also indicate the
details of the document which has to be searched and the details of the place where
the search has to be conducted. Section 165 of the Code of Criminal Procedure,
1973 specifies the grounds when a police officer can conduct a search without a
warrant. Whenever an officer in charge of a police station or a police officer
making an investigation has reasonable grounds to believe that anything necessary
for an investigation of any
offence which he is authorized to investigate can be found in any place, and that
thing cannot in his opinion be obtained without undue delay or without a search,
such officer may search for such thing in any area within the limits of such station.

Thus, in complaint cases, an authorization from a magistrate is necessary, as only

then the police become empowered to investigate into those offences. For FIR
cases, no search warrant is necessary because the police is empowered to
investigate of its own accord. An accused person is presumed to be innocent unless
proved guilty beyond reasonable doubt. This principle was recognized by the
United States in the case of Coffin v. United States [156 U.S. 432 (1895)] and it
was later on got accepted in India with a saying that it is better if ten criminals
escapes than to the conviction of an innocent soul [Kali Ram v. State of H.P.( 1973
SCC (Cri) 1048 at 1061)]. This presumption can be seen from a Latin legal
principle ‘ei incumbit probatio qui dicit, non qui negat’ means that the burden of
proof in a criminal trial rests on who asserts or the prosecution, not on who denies
i.e. the accused enjoys the benefit of doubt [Shivaji Sahabrao Bobade v. State of
Maharashtra, 1973 SCC (Cri) 1033]. Hence, it is submitted that the judge cannot
draw any interferences against the defendant just because he has been charged with
a crime it can solely be decided on the basis of the evidences presented before him
during the trial.

COGNIZANCE OF AN OFFENSE
The basic Institutional framework for the impartment of justice is an independent,
competent and impartial court. It is very important that the judiciary is
institutionally protected from the undue influence or interference from the
executive. Article 50 of the Constitution of India imposes this duty on the state to
separate the judiciary from the executive whereas Section 6 of the code separates
Executive magistrates from the judicial magistrates. A magistrate can take
cognizance of an offense means that the court prima facie assumes that the offense
have been committed by the accused. Cognizable offense has been defined under
section 2(c) of the code, as an offense in which police can arrest the accused
without a warrant. However, these offenses are punishable for a period of three
years or more. hence, they are Non-bailable offenses.

The Court can disagree with the findings of the Investigating agencies and will not
accept the closure reports or the charge-sheet under some circumstances, otherwise
if it appears that the crime has been committed by the accused. The magistrate can
transfer the case to the court of sessions. The magistrate then records the
statements of the complainant along with his witnesses under section 200 and 202
of the code respectively.

However, A judge can be bias in a particular case where he has some personal
stake or is a part of the proceeding itself therefore it could be called in question for
for ascertaining a court’s impartiality but this presumption of doubt can is taken
away by section 479 of the Code, which prohibits trial of a case by a judge or
magistrate in which he is a party or otherwise personally interested.

PUBLIC HEARING OF THE TRIAL

In a democratic country, the requirement of public hearing in an open court is an
essential requirement for the conduct of fair trial. The right to a public hearing
means that the hearing should as a rule is conducted orally and publicly, without a
specific request by the parties to that effect. The court is, inter alia, obliged to
make information about the time and venue of the public hearing and also the
judgment needs to be orally announced in the court. Section 327 of the Code
makes provision for open courts for public hearing but it also gives discretion to
the presiding judge or magistrate that if he thinks fit, he can deny the access of the
public generally or any particular person to the court. The provisions regarding the
venue or place of inquiry or trial are contained in sections 177 to 189 of the Code.
It is general rule that every offence is to be inquired into or tried by a court within
whose local jurisdiction it was committed. Trial at any other distant place would
generally mean hardship to the parties in the production of evidence and it would
also adversely affect the defence preparation. In the case of Naresh Sridhar
Mirajkar v. State of Maharashtra (AIR 1967SC 1) the apex court observed that
the public confidence in the administration of justice is of such great significance
that there can be no two opinions on the broad proposition that in discharging their
functions as judicial tribunals, courts must generally hears causes in open court and
must permit public admission to the court.

FRAMING OF CHARGES AND KNOWLEDGE OF ACCUSITION

The court after ascertaining the facts of the case can frame charges against the
accused. The court is not bound to the charges mentioned by the police in the
charge-sheet or the FIR. Accused has the right to require all the documents which
are being relied upon by the prosecution. The court is also required to furnish a
copy of the charge-sheet, statements under section 161 & 164 of the code and other
documents which are being relied upon. however, if the documents are voluminous
the accused will get atleast a few weeks to scrutinize the documents by filing an
application under section 207 of the code.

At this point, the prosecution will argue as to why the charges should be framed
whereas the defense will argue that how the charges cannot be made out of the
material on record. however, the defense is not allowed to introduce material other
than what is relied upon in the charge-sheet. The Accused can consider filing an
application for discharge. It is pertinent to distinguish “discharge” from
“acquittal”. An acquittal takes place if findings state that the accused is not guilty
at the end of the entire trial after charges are framed, evidence recorded and
arguments addressed. Discharge takes place before charges are framed.

It is very essential for the conduct of a fair trial that the accused person is given
adequate opportunity to defend himself. Therefore, it is very essential for the court
to state the charges which are being pressed against him. In case of serious
offenses, the court is required to frame in writing a formal charge and then read
and explain the charge to the accused person. Now, If the accused pleads guilty,
then the Judge is required to explain the consequences of doing so and thereafter
impose the punishment or fine provided for. If the accused pleads not guilty, then
he is deemed to claim trial. The Court will then proceed to summon prosecution
witnesses.

TRIAL AND EVIDENCE IS TO BE TAKEN IN THE PRESENCE OF THE

ACCUSED
The general rule in criminal cases is that all inquiries and trials should be
conducted in the presence of the accused person. The underlying principle behind
this is that in a criminal trial the court should not proceed ex parte against the
accused person. It is also necessary for the reason that it facilitates the accused to
understand properly the prosecution case. However, it is submitted that the courts
should insist upon the appearance of the accused only when it is his interest to
appear or when the court feels that his presence is necessary for effective disposal
of the case. When the accused are women labourers, wage earners and other busy
men, court should as a rule grant exemption from personal attendance. Court
should see that undue harassment is not caused to the accused appearing before the
court.[ H.R. Industries v. State of Kerala(1973 Cri LJ 262 (ker) at 263)].

As a logical corollary of sections 228, 240, 246 and 251 (where the particulars of
the offence have to be explained to the accused person) it is also imperative that in
a trial the evidence should be taken in the presence of the accused person. Section
273 of the Code is significant in this regard which provides that all evidence taken
in the course of the trial shall be taken in the presence of the accused. This section
provides for exception to this rule that if the personal attendance of the accused is
dispensed with the evidence shall be taken in the presence of his pleader.The right
created by this section is further supplemented by section 278, which, inter alia
provides that whenever the law requires the evidence of a witness to be read over
to him after its completion, the reading shall be done in the presence of the
accused, or of his pleader. These provisions enable the accused person to prepare
his arguments for rebuttal of such evidences.

If any evidence is given in a language not understood by the accused person, the
object of section 273 will not be fulfilled; therefore to avoid this difficulty section
279 casts a mandatory duty on the court that whenever any evidence is given in
any language not understood by the accused, it shall be interpreted to him in open
court in a language understood by him. However, non-compliance with this
provision will be considered as a mere irregularity not vitiating the trial if there
was no prejudice or injustice caused to the accused person.

EXPEDITIOUS TRIAL
Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed
trial defeats the objective of the re-socialization of the offenders too. Delayed
justice leads to unnecessary harassment. Section 309(1) of the code gives
directions to the courts with a view to have speedy trials and quick disposals.31
Though this feature is recognized as an element of fair trial but the real problem is
how to make it a reality in actual practice where millions of cases are pending
before the subordinate courts for disposal. In Hussainara Khatoon (IV) v. State of
Bihar [(1980) 1 SCC 98 at 107)] this court declared that speedy trial is an essential
ingredient of ‘reasonable just and fair’ procedure guaranteed by article 21 and it is
the constitutional obligation of the state to set up such a procedure as would ensure
speedy trial to the accused. The state cannot avoid its constitutional obligation by
pleading financial or administrative inadequacy. As the guardian of the
fundamental rights of the people, it is constitutional obligation of this court to issue
necessary directions to the State for taking positive action to achieve this
constitutional mandate. In Motilal Saraf v. State of Jammu and Kashmir [(2007)
1 SCC (Cri) 180)]. The Supreme Court explained the meaning and relevance of
speedy trial and said that the concept of speedy trial is an integral part of article 21
of the Constitution. The right to speedy trial begins with actual restraint imposed
by arrest and consequent incarceration, and continues at all stages so that any
possible prejudice that may result from impressible and avoidable delay from the
time of commission of the offence till its final disposal, can be prevented.

CROSS-EXAMINATION OF PROSECUTION WITNESSES

The prosecution witnesses first take the stand wherein the prosecution seeks to
prove its case. For each witness, the steps are as follows:
Examination in Chief: In this, the Prosecution is to lead evidence and mark
documents which would be helpful in proving the prosecution case as Exhibits.
During the proceedings, the Examination in chief shall not be permitted to ask
leading questions (i.e. questions which themselves suggest an answer).However,
The prosecution must inform the defence of the witnesses it intends to call at trial
within a reasonable time prior to the trial so that the defendant may have sufficient
time to prepare his/her defence. Though, in adversarial trial system, the burden of
proving the guilt is entirely on the prosecution and the law does not call for the
accused to lead evidence to prove his innocence, yet the accused is given a right to
disprove the prosecution case or to prove special defence available to him.

Cross-examination: The Defence here gets a chance to test the prosecution case
and find gaps or improvements in the story of the prosecution. Here the questions
which may be asked are much broader than what is permitted in examination in
chief. This mandates that the parties be equally treated with respect to the
introduction of evidences by means of interrogation of witnesses In Badri v. State
of Rajasthan (AIR 1976 SC 560), the court held that where a prosecution witness
was not allowed to be cross- examined by the defence on a material point with
reference to his earlier statement made before the police, his evidence stands
untested by cross-examination and cannot be accepted as corroborating his
previous statement. hence, it can be said that it is the right of the accused to
examine the witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him.

Re-examination: Often certain inconsistencies are found or additional aspects

arise during the cross-examination which the prosecution may seek clarifications
on. After re-examination, the Defense counsel again has a chance to cross-examine
the witness on the issues raised by the Prosecution in re-examination.
Statement of the Accused: After the conclusion of prosecution evidence, the
Court puts to the accused all the evidence which is presented against him and seeks
his explanation. However, during this stage, no oath is administered and the
accused is in the position of a “privileged liar” as he has the right to be protected
against self-incrimination. The Supreme Court has however held that in cases
which are based entirely upon circumstantial evidence, silence or misleading
answers given by the accused can be used to complete the chain of circumstances.
No questions are asked by any person except the court. (Refer to Section 313,
Criminal Procedure Code)

The accused also has the option of choosing to appear as a defense witness. In such
a case he or she will have to give evidence on oath and he or she is susceptible to
examination-in-chief and cross-examination. If the accused refuses to appear as a
witness no adverse inference will be drawn. This is usually not a common practice.
This is a high-risk strategy for any accused - if the judge finds the testimony of the
accused to be reliable, there may be good chances of his or her acquittal. On the
other hand, it also makes him or her more vulnerable to cross-examination by the
prosecution.

FINAL STAGES OF A TRIAL

The final stage of the criminal trial wherein the evidence is to be gone through in
detail and each side will try and use the evidence and documents which support its
case.

However, The Judge writes the judgment after hearing all the evidence and
arguments to determine whether or not the Accused is guilty of the offence he has
been charged with. The judgment must address all the issues raised and needs to be
a reasoned order. If the Accused is found guilty, then a separate hearing is required
to be held on the issue of the amount of the punishment to be awarded. At this
stage, the accused can seek suspension of the sentence or probation if permitted
under law. The time spent in custody is also generally set off against the sentence
actually awarded to the Accused.

Revision - Section 397 of the CrPC states that the High Court or any Sessions
Court, which has jurisdiction may call for and examine the record of any
proceeding of any subordinate criminal Court which is situated within its
jurisdiction. The aggrieved person has the liberty to file a revision before the High
Court or the Sessions Court from any order passed by the subordinate court. But
the court exercising revisional powers must have revisional jurisdiction. Thus, it is
not imperative that the Sessions court should be approached first before filing a
revision in the High Court. The only bar, in this case, is that the subordinate court
must be situated in the jurisdiction of the High Court or Sessions Court exercising
its revisional powers.

However, where a revision lies against the order passed by the Sessions court, then
revision can only be filed in the High Court having jurisdiction. Furthermore,
unlike an appeal which permits the Appellant to invite the higher Court to re-
examine both the facts and the law, a revision requires to be more pinpointed and
limited in its scope raising one or a few specific issues related to only question of
law

The limitation period for filing a revision application is 90 days from the date of
the impugned order passed by the subordinate court.

Appeal – After the judgment and the order on sentence, you may take a decision
on filing an appeal. From the prosecution side, the victim or the Directorate of
Prosecution can file an appeal. On the side of defense, the accused may decide to
file an appeal (along with an application for suspension of the sentence). The right
of appeal is provided in the Criminal Procedure Code. In criminal cases, Supreme
Court has special powers to hear appeals (contrary to civil cases, where it is
mandatory to file a Special Leave Petition or obtain a certificate from the High
Court to appeal). As per the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970, one can appeal to the Supreme Court from a High Court’s
judgment if:

1. The High Court has reversed an acquittal and sentenced the accused
imprisonment exceeding 10 years.
2. The High Court has taken up a case proceeding in the trial court's upon
itself and sentenced the accused to imprisonment exceeding 10 years.

Special leave petition (SLP) – A special leave petition is possible to the Supreme
Court from any order or decision of any lower court, and is usually preferred where
there is no statutory right of an appeal. It is based upon the discretion of the
Supreme Court to admit and hear the petition.

ROLE OF COUNSEL
Lawyers in criminal courts are necessities, not luxuries. The requirement of fair
trial involves two things: a) an opportunity to the accused to secure a counsel of his
own choice, and b) the duty of the state to provide a counsel to the accused in
certain cases. In India, right to counsel is recognized as fundamental right of an
arrested person under article 22(1) which provides, inter alia, no person shall be
denied the right to consult, and to be defended by, a legal practitioner of his choice.
Sections 303 and 304 of the Code are manifestation of this constitutional mandate.
In Maneka Gandhi v. Union of India (AIR 1978 SC 597) it was held that the right
of an indigent person to be provided with a lawyer at state’s expenses is an
essential ingredient of article 21. Article 39-A was also inserted in the Constitution
as per Constitution (42nd Amendment) Act, 1976, which requires that the state
should pass suitable legislations for promoting and providing free legal aid. This
article also emphasizes that free legal service is an unalienable element of
‘reasonable, fair and just’ procedure for without it a person suffering from
economic or other disabilities would be deprived of the opportunity for securing
justice. In Suk Das and Ors. v. Union Territory of Arunachal Pradesh (AIR
1986 SC 991), the court strengthen the need for legal aid and held that “free legal
assistance at state cost is a fundamental right of a person accused of an offence
which may involve jeopardy to his life or personal liberty.

However, In this context a difference is to be noted between article 21 of the

Constitution and section 304 of the Code. Article 21 as interpreted by the Supreme
Court in Khatri v. State of Bihar (AIR 1981 SC 928) the mandatory obligation to
provide free legal aid arise in every criminal case against an indigent accused,
whether the trial is before a Magistrate or Sessions Judge. Under section 304 of the
Code, the imperative duty arises only if the trial is before the Sessions Court, while
in the cases before the Magistrate, the duty would arise only if the State
Government issues a notification to that effect. Therefore, if we take literal
meaning of section 304, no conviction by a Magistrate can be quashed for failure
to provide free legal assistance to the indigent person.

DELAY IN CRIMINAL JUSTICE SYSTEM

Inordinate delays in the investigation and prosecution of criminal cases involving
serious offences and in the trial of such cases in the Courts is a blot on justice
system. The objective of penal law and the societal interest in setting the criminal
law in motion against the offenders with reasonable expedition is thereby
frustrated. The adverse effect of delay on the society at large is immeasurable.
The fear of law and the faith in the criminal justice system is eroded irretrievably

Public interest demands that the criminal cases especially those related to serious
crimes are concluded within a reasonable time so that those guilty are punished.
According to the data compiled by National Crime Records Bureau (NCRB), in its
Publication relating to the year 2010, over 1.78 crore cognizable criminal cases,
including cases registered under Indian Penal Code (IPC) and special/local laws
(SLL), were pending for trial at the beginning of 2010.

It is submitted that two important steps are ideally required for speeding up the
criminal justice in the hope that this will also augment the conviction rate. These
are as under:

1. Deployment of technology at the level of police stations.

Recording of FIR: It is found that many of the acquittals are due to the delay, ante
timing and absence of the necessary details of the incident in the FIRs. This one
single factor can be eliminated by providing for compulsory and automatic
recording of all landlines provided in the Police Stations. FIRs shall be recorded on
the computer and they shall be instantly sent to the Magistrates’ Courts by e-mail.
The practice of sending FIR through e-mail should be legally recognized.
Similarly, section 161 statements should also be placed on the computer and posted
on the website of the concerned court

2. Strengthening Criminal Courts’ infrastructure and upgrading facilities

and amenities therein

Properly designed Court Complexes: It is essential that a standardized design of

the criminal court complex be prescribed by the High Court which shall inter alia
take care of separate rooms for witnesses, undertrial prisoners, Police personnel,
advocates and prosecutors and shall provide for sufficient number of washrooms
and filtered drinking water facilities.

Summons etc. – Service: All court notices, summons for appearance or summons
for production of documents may be served through e-mail and in the absence of
the e-mail of the addressees, through the e-mail of the police station, which must
report compliance with regard to the service on a weekly basis through e-mails.

Recording of evidence: All criminal courts ought to be provided with Audio

recording through tamper-proof technology for recording of statements of
witnesses so that the appellate courts can also refer to the same for determining the
exact statement made by the witnesses.

Witness Rooms: All criminal courts ought to be provided with a separate witness
room where witnesses, who have been summoned in different courts, be provided
with the facilities of comfortable seating, drinking water, urinals, tea/coffee
machine & some reading material. It needs to be appreciated that witnesses are the
eyes and ears of the court and the court needs them more for dispensing justice
than they need the court. This will also enable them to be saved from the
harassment they have to face at the hands of the accused as they also wait in the
same corridors.

Centralized Registry: All criminal courts located in a single or nearby complex

must have a centralized record room instead of separate record keeping for each
court. The centralized record keeping will ensure that the relevant part of the file
is placed before the concerned court as and when required.
CONCLUSION
After analyzing different provisions of the Code it can be submitted that though the
system adopted by the Indian justice administration is adversary in nature but the
reflections of inquisitorial system can also be not negated. The Code provides a
balancing approach while dealing with these two kinds of systems. As far as other
basic components of fair trial are concerned, the adherence of these components
can be seen in different provisions of the Code. But the real issue comes with the
implementation part of these provisions. One of the example is provision for
speedy trial which seeks quick disposal of cases but the truth is that around 1.7
lakh under trials languishing in jail who are booked for petty offences (though the
total number of under trials are approximately 2.45 lakh) and despite having
served a major part of the prescribed maximum sentence.54 In these circumstances
the role of counsel in an adversary criminal system, which is triangular in nature, is
very crucial because in such cases the prosecution, which represents state, is in a
stronger position because it has also the support of investigating agencies. On the
other hand, the accused person can solely rely on his counsel who, being the last
resort for him can save him from the arbitrary and oppressive action.