right-to-a-fair-trial.docx

8/17/2019 Right-to-a-Fair-Trial.docx

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TABLE OF CONTENTS

CHAPTERIZATION:-

1) Introduction

2) Right to Fair Trial- a Human Right

3) Constitutional Provision

4) Provisions Under CrPC

) Conclusion!I"liogra#h$

INTRODUCTION

The conce#t o% %air trial has "een ado#ted "$ almost all the countries in their res#ected %ield

o% la&s' The #ur#ose "ehind the esta"lishment o% %air trial is to #rotect the common man

%rom un%air means o% an$ in(ustice and violation o% %undamental right' The #rinci#als o% natural (ustice are the ultimate "asis o% %air trial s$stem' s %ar as countr$ li*e India is

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM1


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concerned the conce#t o% %air trial is envisaged under the constitutional la& and other

#rocedural la&'

+ver$one has an in"uilt right to "e dealt %airl$ in a criminal trial' ,enial o% a %air trial is as

much in(ustice to the accused and is to the victims and the societ$' The %air trial o% criminal

o%%ence consists not onl$ in technical o"servance o% the %rames and norms o% la& "ut also in

recognition and (ust a##lication o% its #rinci#les in su"stance to %ind out the truth and

#revent miscarriage o% (ustice'

Aims & Objectives-.

The aims and o"(ectives o% the #ro(ect is to-

1) /no& a"out the right to %air trial

2) 0tud$ the relevant #rovisions under CrPC

Hy!t"esis-:

ccording to the researcher the h$#othesis o% the #ro(ect is that even a%ter so man$

#rovisions and rights related to %air trial onl$ %e& #eo#le are a"le to %ace a %air trial'

Rese#$c" %et"!!'!(y-.

The method o% &riting ado#ted is ,octrinal one including "oth descri#tive and nal$tical

S!)$ces O* D#t#-:

The researcher has mainl$ relied u#on #rimar$ as &ell as secondar$ sources e'g' !oo*s

rticles Internet &e"sites'

Ri("t t! # F#i$ T$i#'- # ")m#+ $i("t



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The right to %air trial is an essential right in all countries res#ecting the rule o% la&' trial in

these countries that is deemed un%air &ill t$#icall$ "e restarted or its verdict voided' arious

rights associated &ith a %air trial are e#licitl$ #roclaimed in rticle 15 o% the Universal

,eclaration o% Human Rights the 0ith mendment to the United 0tates Constitution and

rticle 6 o% the +uro#ean Convention o% Human Rights as &ell as numerous other

constitutions and declarations throughout the &orld' There is no "inding international la&

that de%ines &hat is or is not a %air trial %or eam#le the right to a (ur$ trial and other

im#ortant #rocedures var$ %rom nation to nation'

The right to %air trial is ver$ hel#%ul in numerous declarations &hich re#resent customar$

international la& such as the Universal ,eclaration o% Human Rights 7U,HR)' 1 Though the

U,HR enshrines some %air trial rights such as the #resum#tion o% innocence until the

accused is #roven guilt$ in rticles 6 8 9 and 11 2 the *e$ #rovision is rticle 15 &hich

states that. :+ver$one is entitled in %ull e;ualit$ to a %air and #u"lic hearing "$ an

inde#endent and im#artial tri"unal in the determination o% his rights and o"ligations and o%

an$ criminal charge against him':3

0ome $ears a%ter the U,HR &as ado#ted it &as decided that the right to a %air trial should "e

de%ined in more detail in the International Covenant on Civil and Political Rights 7ICCPR)'

The right to a %air trial is #rotected in rticles 14 and 16 o% the ICCPR &hich is "inding in

international la& on the 82 states that have rati%ied it'4 rticle 1471) esta"lishes the "asic

right to a %air trial article 1472) #rovides %or the #resum#tion o% innocence and article 1473)

sets out a list o% minimum %air trial rights in criminal #roceedings' rticle 147) esta"lishes

1 Doebbler, Curtis (200!" I#tro$u%tio# to I#ter#&tio#&l Hu' Ri)ts L&*" CD

+ublis)i#" " 10-

2 Al.re$sso#, /u$'u#$ur Ei$e, Asbor# (1!" T)e U#i3ers&l De%l&r&tio# o.

Hu' Ri)ts4 & %o''o# st$&r$ o. &%)ie3e'e#t" M&rti#us Ni)o5 +ublis)ers"

" 226

7 )tt488***"u#"or8e#8$o%u'e#ts8u$)r8i#$e9"s)t'l

: Doebbler, Curtis (200!" I#tro$u%tio# to I#ter#&tio#&l Hu' Ri)ts L&*" CD

+ublis)i#" " 10;



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the right o% a convicted #erson to have a higher court revie& the conviction or sentence and

article 1478) #rohi"its dou"le (eo#ard$'

rticle 1471) states that. :ll #ersons shall "e e;ual "e%ore the courts and tri"unals' In the

determination o% an$ criminal charge against him or o% his rights and o"ligations in a suit at

la& ever$one shall "e entitled to a %air and #u"lic hearing "$ a com#etent inde#endent and

im#artial tri"unal esta"lished "$ la&' The #ress and the #u"lic ma$ "e ecluded %rom all or

#art o% a trial %or reasons o% morals #u"lic order or national securit$ in a democratic societ$

or &hen the interest o% the #rivate lives o% the #arties so re;uires or to the etent strictl$

necessar$ in the o#inion o% the court in s#ecial circumstances &here #u"licit$ &ould

#re(udice the interests o% (ustice< "ut an$ (udgement rendered in a criminal case or in a suit at

la& shall "e made #u"lic ece#t &here the interest o% (uvenile #ersons other&ise re;uires or

the #roceedings concern matrimonial dis#utes or the guardianshi# o% children':6

The =eneva Conventions guarantee com"atants the right not to "e #ut on trial %or %ighting in

a &ar - unless the$ commit a &ar crime 7a grave "reach) or other crime 7e'g' ca#tured

"ehind enem$ lines out o% #ro#er uni%orms or insignia &hile carr$ing out es#ionage or

sa"otage o#erations)' >ost held under the =eneva Conventions are not accused o% a crimeand there%ore it &ould "e a &ar crime under the =eneva Conventions to give them a trial'

This #rotection against getting a trial is %ull$ consistent &ith human rights la& "ecause

human rights la& #rohi"its #utting #eo#le on trial &hen there is no crime to tr$ them %or'

The =eneva Conventions ho&ever guarantee that an$one charged &ith a &ar crime or other

crime must get a %air trial'

The right to a %air trial is enshrined in articles 3 8 and 26 o% the %rican Charter on Human

and Peo#les? Rights 7CHPR)'8

6 Al.re$sso#, /u$'u#$ur Ei$e, Asbor# (1!" T)e U#i3ers&l De%l&r&tio# o.

Hu' Ri)ts4 & %o''o# st$&r$ o. &%)ie3e'e#t" M&rti#us Ni)o5 +ublis)ers"

" 226?%e o. t)e U#ite$

N&tio#s Hi) Co''issio#er .or Hu' Ri)ts"

; Doebbler, Curtis (200!" I#tro$u%tio# to I#ter#&tio#&l Hu' Ri)ts L&*" CD

+ublis)i#" " 10-"

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM:


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The right to a %air trial is also enshrined in articles 6 and 8 o% the +uro#ean Charter on

Human Rights and articles 2 to 4 o% the 8th Protocol to the Charter'9

The right to a %air trial is %urthermore enshrined in articles 3 9 @ and 15 o% the merican

Convention on Human Rights'@

The right to e;ualit$ "e%ore the la& is sometimes regarded as #art o% the rights to a %air trial'

It is t$#icall$ guaranteed under a se#arate article in international human rights instruments'

The right entitles individuals to "e recognised as su"(ect not as o"(ect o% the la&'

International human rights la& #ermits no derogation or ece#tions to this human right' 15

Closel$ related to the right to a %air trial is the #rohi"ition on e #ost %acto la& or retroactive

la& &hich is enshrined in human rights instrument se#aratel$ %rom the right to %air trial and

can not "e limited "$ states according to the +uro#ean Convention on Human Rights and the

merican Convention on Human Rights11'

- Doebbler, Curtis (200!" I#tro$u%tio# to I#ter#&tio#&l Hu' Ri)ts L&*" CD

+ublis)i#" " 10-"

Doebbler, Curtis (200!" I#tro$u%tio# to I#ter#&tio#&l Hu' Ri)ts L&*" CD

+ublis)i#" " 10-"


+ublis)i#" " 110


+ublis)i#" " 10-"



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CONSTITUTIONAL PRO,ISIONS:

Fair trial is "ased on #rinci#le o% natural (ustice' Constitution o% India also #rovide %or %air

trial o% the accused' It has "een universall$ acce#ted in the #resent da$ o% civiliAation that asa human value no #erson accused o% an$ o%%ence should "e #unished unless he has "een

given a %air trial and his guilt has "een #roved in such trial' The notion o% %air trial cannot e

e#lained in a"solute terms' Fairness is relative conce#t and there%ore %airness in criminal

trial could "e measured onl$ in relation to the availa"le time and resources and the

#revailing human values in the societ$' rticle 21 #rovides the #rotection o% li%e and

#ersonal li"ert$' ccording to this article no #erson shall "e de#rived o% his li"ert$ ece#t

according to #rocedure esta"lished "$ la&' s a "road #rinci#le it ma$ "e stated that the

li"ert$ o% a #erson should not "e ta*en a&a$ &ithout (ust cause' The detention o% accused

#erson #rior to or #ending trial is li*el$ to cause direct or indirect o"structions in #re#aration

o% his de%ence and &ould not there%ore "e ;uite conductive to a %air trial' 12 I% the #resence o%

accused cannot "e #rocured other&ise then he should "$ all means "e arrested and detained'

rticle 25 o% the constitution #rovides #rotection in res#ect o% conviction %or o%%ences'

ccording to this article no #erson shall "e convicted o% an$ o%%ence ece#t %or violation o% a

12 See," R"@"elB&r 4 outli#es o. %ri'i#&l ro%e$ure, (1;;! &t "77"

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM


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la& in %orce at the time o% the commission o% the o%%ence nor "e su"(ected to #enalt$ greater

than that &hich might have "een in%licted under the la& in %orce at the time o% the

commission o% the o%%ence' It also #rovides #rotection %rom dou"le (eo#ard$' It %urther

#rovides that no accused #erson shall "e &itness against himsel%' This is also sa%eguarded

under section 2 and 26 o% Indian evidence ct "$ not acce#ting con%ession made "e%ore

#olice o%%icer and #olice custod$'

A$t ./0 sa$s :Bo #erson &ho is arrested shall "e detained in custod$ &ithout "eing

in%ormed as soon as ma$ "e o% the grounds %or such arrest nor shall he "e denied the right

to consult and to "e de%ended "$ a legal #ractitioner o% his choice':' It em"odies t&o

distinct rights - the right to "e told o% the grounds o% arrest and the right to consult a legal

#ractioner o% his choice' The second right o% consulting a legal #ractitioner o% his choice

actuall$ de#ends on the %irst right o% "eing told a"out the grounds o% arrest' I% the #erson

doesn?t *no& &h$ he is "eing arrested he cannot consult a legal #ractioner meaning%ull$'

In H#$i1is"#+ vs St#te !* %#"#$#s"t$#/2 0C held that the grounds o% arrest must "e

communicated to the #erson in the language that he understands other&ise it &ould not

amount to su%%icient com#liance o% the constitutional re;uirement'

A$t .0 that gives a %undamental right to the arrested #erson that he must "e #roduced

"e%ore a magistrate &ithin 24 hours o% arrest' It sa$s :+ver$ #erson &ho is arrested and

detained in custod$ shall "e #roduced "e%ore the nearest magistrate &ithin a #eriod o%

t&ent$-%our hours o% such arrest ecluding the time necessar$ %or the (ourne$ %rom the #lace

o% arrest to the court o% the magistrate and no such #erson shall "e detained in custod$

"e$ond the said #eriod &ithout the authorit$ o% a magistrate':

In 3"#t$i .II0 vs St#te !* Bi"#$/4 has strongl$ urged u#on the 0tate and its #olice to ensure

that this constitutional and legal re;uirement o% "ringing an arrested #erson "e%ore a (udicial

magistrate &ithin 24 hours "e scru#ulousl$ met' This is a health$ #rovision that allo&s

magistrates to *ee# a chec* on the #olice investigation' It is necessar$ that the magistrates

17 AIR 12

1: 1-1 SCC, SC

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM;


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should tr$ to en%orce this re;uirement and &hen the$ %ind it diso"e$ed the$ should come

heavil$ u#on the #olice'

Further in S"#$i*b#i vs Ab)' R#5#1 /67 0C held that i% a #olice o%%icer %ails to #roduce an

arrested #erson "e%ore a magistrate &ithin 24 hours he shall "e held guilt$ o% &rong%ul

detention'

rticle 2274) #rovides that no la& #roviding %or #reventive detention shall authoriAe the

detention o% a #erson %or a longer #eriod than three months unless-

a n advisor$ "od$ consisting o% #ersons &ho are or have "een or are ;uali%ied to "e

a##ointed as (udges o% high court has re#orted "e%ore the e#iration o% the said

#eriod o% three months that there is in its o#inion su%%icient cause %or such detention.Provided that nothing in this su"-clause shall authoriAe the detention o% an$ #erson

"e$ond the maimum #eriod #rescri"ed "$ an$ la& made "$ the #arliament under

su"-clause 7") o% clause 8< or

" 0uch #erson is detained in accordance &ith the #rovisions o% an$ la& made "$

#arliament under su"-clause 7a) and 7") o% clause 8'

0ection 22 7) &hen an$ #erson is detained in #ursuance o% an order made under an$ la&

#roviding %or #reventive detention the authorit$ ma*ing the order shall as soon as ma$ "e

communicate to such #erson the ground on &hich the order has "een made and shall a%%ord

him the earliest o##ortunit$ o% ma*ing a re#resentation against the order'

0ection 22 76) #rovides that nothing in clause 7) shall re;uire the authorit$ ma*ing an$ such

order as is re%erred to in that clause to disclose %acts &hich such authorit$ considers to "e

against the #u"lic interest to disclose'

rticle 2278) #arliament ma$ "$ la& #rescri"e-

a The circumstances under &hich and the class or classes o% cases in &hich a #erson

ma$ "e detained %or a #eriod longer than three months under an$ la& #roviding %or

#reventive detention &ithout o"taining the o#inion o% an dvisor$ !oard in

accordance &ith the #rovisions o% su" clause 7a) o% clause 7 4 )<

16 AIR 11

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM-


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" the maimum #eriod %or &hich an$ #erson ma$ in an$ class or classes o% cases "e

detained under an$ la& #roviding %or #reventive detention< and

c the #rocedure to "e %ollo&ed "$ an dvisor$ !oard in an in;uir$ under su" clause

7a) o% clause 7 4 ) Right against +#loitation'

In D838 B#s) vs8 St#te !* 9est Be+(#'/ 0u#reme Court held the %ollo&ing re;uirements to

"e %ollo&ed in all cases o% arrest or detention till legal #rovisions are made in that "ehal% as

#reventive measures.

71) The #olice #ersonnel carr$ing out the arrest and handling the interrogation o% the arrestee

should "ear accurate visi"le and clear identi%ication and name tags &ith their designations'

The #articulars o% all such #olice #ersonnel &ho handle interrogation o% the arrestee must "e

recorded in a register'

72) That the #olice o%%icer carr$ing out the arrest o% the arrestee shall #re#are a memo o%

arrest at the time o% arrest and such memo shall "e attested "$ atleast one &itness &ho ma$

"e either a mem"er o% the %amil$ o% the arrestee or a res#ecta"le #erson o% the localit$ %rom

&here the arrest is made' It shall also "e counter signed "$ the arrestee and shall contain the

time and date o% arrest'

73) #erson &ho has "een arrested or detained and is "eing held in custod$ in a #olice

station or interrogation center or other loc*-u# shall "e entitled to have one %riend or relative

or other #erson *no&n to him or having interest in his &el%are "eing in%ormed as soon as

#ractica"le that he has "een arrested and is "eing detained at the #articular #lace unless the

attesting &itness o% the memo o% arrest is himsel% such a %riend or a relative o% the arrestee'

74) The time #lace o% arrest and venue o% custod$ o% an arrestee must "e noti%ied "$ the

#olice &here the net %riend or relative o% the arrestee lives outside the district or to&n

through the egal id Drganisation in the ,istrict and the #olice station o% the area

concerned telegra#hicall$ &ithin a #eriod o% 9 to 12 hours a%ter the arrest'

7) The #erson arrested must "e made a&are o% this right to have someone in%ormed o% his

arrest or detention as soon as he is #ut under arrest or is detained'

76) n entr$ must "e made in the diar$ at the #lace o% detention regarding the arrest o% the

#erson &hich shall also disclose the name o% the net %riend o% the #erson &ho has "een

1 D"" &su 3s" St&te o. est e#&l, AIR1;SC10

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM


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in%ormed o% the arrest and the names and #articulars o% the #olice o%%icials in &hose custod$

the arrestee is'

78) The arrestee should &here he so re;uests "e also eamined at the time o% his arrest and

ma(or and minor in(uries i% an$ #resent on hisEher "od$ must "e recorded at that time' The

:Ins#ection >emo: must "e signed "oth "$ the arrestee and the #olice o%%icer e%%ecting the

arrest and its co#$ #rovided to the arrestee'

79) The arrestee should "e su"(ected to medical eamination "$ a trained doctor ever$ 49

hours during his detention in custod$ "$ a doctor on the #anel o% a##roved doctors a##ointed

"$ ,irector Health 0ervices o% the concerned 0tate or Union Territor$' ,irector Health

0ervices should #re#are such a #enal %or all Tehsils and ,istricts as &ell'

7@) Co#ies o% all the documents including the memo o% arrest re%erred to a"ove should "e

sent to the illa;a >agistrate %or his record'

715) The arrestee ma$ "e #ermitted to meet his la&$er during interrogation though not

throughout the interrogation'

711) #olice control room should "e #rovided at all district and state head;uarters &here

in%ormation regarding the arrest and the #lace o% custod$ o% the arrestee shall "ecommunicated "$ the o%%icer causing the arrest &ithin 12 hours o% e%%ecting the arrest and at

the #olice control room it should "e dis#la$ed on a cons#icuous notice "oard'



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PRO,ISIONS UNDER CRI%INAL PROCEDURE CODE

The s$stem ado#ted "$ the Criminal Procedure Code 1@83 7hereina%ter re%erred as the

Code) is the adversar$ s$stem "ased on the accusatorial method' In adversarial s$stem

res#onsi"ilit$ %or the #roduction o% evidence is #laced on the o##osing #art$ that is

#rosecutions &ith the (udge acting as a neutral re%eree "et&een the #arties' !$ contrast in

in;uisitorial trial s$stem res#onsi"ilit$ %or the #roduction o% evidence at trial is the (o" o% the

trial (udge and it is the trial (udge &ho decides &hich &itnesses &ill "e called at trial and

&ho does most o% the ;uestioning o% &itnesses' The adversar$ s$stem is more or less "ased

on the notion o% reconciliation o% #u"lic and #rivate interests that is #u"lic interest in

#unishing the &rongdoer and #revents him to commit more crimes and #rivate interest in

#reventing the &rong%ul convictions and #rotect his li%e and #ersonal li"ert$' This s$stem o%

criminal trial assumes that the state on one hand "$ using its investigative agencies and



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government counsels &ill #rosecute the &rongdoer &ho on the other hand &ill also ta*e

recourse o% "est counsels to challenge and counter the evidences o% the #rosecution' 18

!ut i% &e ta*e a close loo* o% the Code then &e &ill %ind that there are some #rovisions

&hich negate the strict adherence o% the adversarial trial s$stem'

BASIC FAIR TRIAL CRITERIA

The standards against &hich a trial is to "e assessed in terms o% %airness are numerous

com#le and constantl$ evolving' The$ ma$ constitute "inding o"ligations that are

included in human rights treaties to &hich the state is a #art$' !ut the$ ma$ also "e %ound

in documents &hich though not %ormall$ "inding can "e ta*en to e#ress the direction in

&hich the la& is evolving'

Provisions as regard arrest are contained in section 41 to 65 o% cr#c 1@83' In this cha#ter

man$ o% the #rovision relates to the %air trial' 0ection 4 #rovides that a #olice ma$ arrest

&ithout &arrant hence he has reason to "elieve that o%%ence has "een committed "$ the

#erson and arrest is necessar$ as s#eci%ied in this section' 0ection 41 ! #rovides that the

#olice shall in%orm the %amil$ mem"er o% the arrested #erson' 0ection 41-, #rovides that the

arrested #erson shall "e entitle to meet an advocate o% his choice during interrogation

though not through out interrogation' 0ection 4@ #rovides that no #erson shall "e su"(ected

to more restrain than is necessar$ to #revent his esca#e' 0ection 5 o% this code #rovides that

the accused must "e in%ormed o% the %ull #articulars o% the o%%ence %or &hich he is arrested or

all other grounds %or such arrest' It %urther #rovides that i% the o%%ence is "aila"le one then

the accused must "e in%ormed o% his right to %urnish "ail and he ma$ arrange %or sureties on

his "ehal%' 0ection 5 ma*es an o"ligation o% #erson ma*ing the arrest to in%orm a"out the

arrest and #lace &here the accused #erson is detained to the nominated #erson' 0ection 6

#rovides that the accused #erson shall "e ta*en to the magistrateor o%%icer incharge o% a

#olice station ithout reasona"le dela$' 0ection 8 #rovides that the reasona"le time should

"e &ithin 24 hours eclusive o% the time necessar$ %or the (ourne$ %rom the #lace o% arrest to

the magistrateGs court'

Provisions as regard "ail are contained in 0ections 436-45 o% Cr'P'C' 1@83' The "ail

#rovisions aim at securing the release o% a #erson &ho has "een #ut "ehind "ars as an under

1; "N"C"+ill&i (e$!,R"@"elB&rs Cri'i#&l +ro%e$ure , &t 77(6 t) e$#"!



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trial or charged &ith some "aila"le and non-"aila"le o%%ences' The #ur#ose is that a #erson

need not "e *e#t in the #olice loc*-u#s &ithout "eing charged &ith an$ o%%ence under the

Criminal la&' There are no hard and %ast rules regarding grant or re%usal o% "ail' +ach case

has to "e considered on its o&n merits' The matter al&a$s calls %or (udicious eercise o%

discretion "$ the courts' here the o%%ence is o% a serious nature the court has to decide the

;uestion o% grant o% "ail in the light o% such considerations as the nature and seriousness o%

the o%%ence the character o% evidence circumstances that are #eculiar to the accused

reasona"le #ossi"ilit$ o% #resence o% the accused not "eing secured at the trial the

reasona"le a##rehension o% a &itness "eing tam#ered &ith the larger interest o% the #u"lic or

such similar other considerations' In the "aila"le cases the grant o% "ail is a matter o%

course' It ma$ "e given either "$ the #olice o%%icer in-charge o% the #olice station having the

accused in his custod$ or "$ the court' The release ma$ "e ordered on the accused eecuting

a "ond and even &ithout suret$' In non-"aila"le cases the accused ma$ "e released on "ail

either "$ the court or a #olice o%%icer "ut no "ail can "e granted &here the accused a##ears

on reasona"le grounds to "e guilt$ o% an o%%ence #unisha"le either &ith death or &ith

im#risonment %or li%e' This rule does not a##l$ to a #erson under 16 $ears o% age a &oman

or a sic* or in%irm #erson' Bo dou"t li"ert$ o% a #erson must "e Aealousl$ sa%eguarded "$

the court nonetheless &hen a #erson is accused o% a serious o%%ence li*e murder and his

successive "ail a##lications are re(ected on merit there "eing prima-facie material the

#rosecution is entitled to #lace correct %acts "e%ore the court< li"ert$ o% the accused on "ail

should not "e construed as the sole concern o% the court' The 0u#reme Court o% India has

ho&ever held that though a #erson accused o% a "aila"le o%%ence is entitled to "e released on

"ail #ending his trial i% his conduct su"se;uent to his release is %ound to "e #re(udicial to a

%air trial he %ore%eits his right to "e released on "ail and such %ore%eiture can "e made

e%%ective "$ invo*ing the inherent #o&ers o% the High Court under 0ection 492 o% the Cr'P'C'

0ection 439 o% Cr'P'C'1@83 #rovides a uni;ue #rovision %or grant o% :anticipatory bail ': the

necessit$ %or granting antici#ator$ "ail arises mainl$ "ecause sometimes in%luential #ersons

tried to im#licate their rivals in %alse cases %or the #ur#ose o% disgracing or %or other

#ur#oses "$ getting detained in (ails %or some da$s' #art ' ' ' %rom %alse cases &here there

are reasona"le grounds %or holding that a #erson accused o% an o%%ence is not li*el$ to

a"scond or other&ise misuse his li"ert$ &hile on "ail there seems no (usti%ication to re;uire



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him %irst to su"mit to custod$ remain in #rison %or some da$s and then a##l$ %or "ail': 19'

##eal Re%erence Revie& and Revision

The criminal (ustice s$stem #rovides measures %or #re%erring a##eal re%erence revie& or

revision in order to avoid miscarriage o% (ustice'1@ I% the %inding reached "$ the trial court is

"ased on #lausi"le reasons or the trial court?s %indings cannot "e said to "e unreasona"le the

a##ellate court should "e slo& in distur"ing the trial court?s %inding o% %act even i% it &as

#ossi"le to reach a di%%erent conclusion on the record "ecause the trial (udge has the

advantage o% seeing and hearing the &itnesses and the initial #resum#tion o% innocence in

%avour o% the accused is not &ea*ened "$ his ac;uittal' The Constitution o% India also

#rovides that an a##eal shall lie to the 0u#reme Court %or an$ (udgementor %inal order o% the

high court in a criminal #roceeding i% the High Court certi%ies that the case involves a

su"stantial ;uestion o% la& as to the inter#retation o% the Constitution' Ho&ever &here the

High Court re%uses to give such a certi%icate the 0u#reme Court ma$ on "eing satis%ied that

the case involves a su"stantial ;uestion o% la& as to the inter#retation o% the Constitution

grant s#ecial leave to a##eal %rom such (udgement or %inal order or determination or

sentence' It %urther states that an a##eal shall lie to the 0u#reme Court %rom an$ (udgement

%inal order or sentence in a criminal #roceeding o% a High Court i% the High Court 7a) has on

a##eal reversed an order o% ac;uittal o% an accused #erson and sentenced him to death or 7")

has &ithdra&n %or trials "e%ore itsel% an$ case %rom an$ court su"ordinate to its authorit$ and

has on such trials convicted the accused #erson and sentenced him to death or 7c) certi%ies

that the case is a %it one %or a##eal to the 0u#reme Court'

P$e-T$i#'

It is the statutor$ right o% the #olice to carr$ out the investigation o% a crime "e%ore a

#rosecution is launched and it cannot "e inter%ered &ith "$ the courts'25 It ma$ "e o"served

that the %unctions o% the (udiciar$ and o% the #olice are com#limentar$ not overla##ing< the

court?s %unction "egins &hen a charge is #re%erred "e%ore it and not until then' The accused

1- See :1st reort o. t)e L&* Co''issio# o. I#$i&

1 7;::12 o. Cr+%, 1;7"

20 16:1; o. Cr+%, 1;7

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM1:


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#erson ma$ "e *e#t in the custod$ o% the #olice %or a #eriod o% 1 da$s thus ena"ling the

#olice to com#lete the investigation o% the crime' Ho&ever a total #eriod o% the custod$ ma$

"e u# to 65 da$s &hen the investigation relates to a serious o%%ence or @5 da$s &hen the

investigation relates to an o%%ence #unisha"le &ith death or im#risonment %or li%e or

im#risonment %or a term o% not less than 15 $earsand such #eriod shall "e construed (udicial

custod$ and not #olice custod$' I% the #olice cannot com#lete the investigation &ithin @5

da$s then the accused #erson shall "e released on "ail'

The investigation #rocess "egins on an in%ormation given to a #olice o%%icer and such

in%ormation is *no&n as the First In%ormation Re#ort' The First In%ormation Re#ort is an

im#ortant document in a criminal trial and ma$ "e #ut in evidence to su##ort or contradict

the evidence o% the #erson &ho gave the in%ormation' The o"(ective o% the First In%ormation

Re#ort is to set the criminal la& in motion and %rom the #oint o% vie& o% the investigating

agenc$ to o"tain in%ormation a"out the alleged criminal activities so as to "e a"le to ta*e

suita"le ste#s to trace and to "ring to "oo* the guilt$'

The criminal trial #rocess ma*es it clear that trial should "e %air and as such it has "een

em#hasised that con%ession made to #olice shall "e non-admissi"le< con%ession etracted "$

torture or third degree method can "e #leaded at trial' Con%ession as to the commission o% an

o%%ence must "e voluntar$ and recorded "e%ore a >agistrate or a res#ecta"le #erson' The

Cr'P'C and Indian +vidence ct a proprio vigro state that a con%ession made "$ an accused

#erson to a #olice o%%icer is inadmissi"le in evidence< i% a #erson in #olice custod$ desires to

ma*e a con%ession he must do so in the #resence o% a >agistrate' >agistrate shall record

the con%ession i% he is satis%ied that it is voluntar$'

n accused *e#t either in the custod$ o% #olice or (udicial custod$ has to "e #rovided &ith

humane and h$gienic living conditions during loc*-u#s' This is so "ecause the accused is

#resumed to "e innocent unless #roved guilt$' ail >anuals #rescri"e that there ought not "e

overcro&dedness in the cells< the undertrials should "e #rovided &ith recreational %acilities'

T$i#' St#(e

criminal trial "egins &ith the %iling o% a case' The Cr'P'C states that :no court shall ta*e

cogniAance o% an o%%ence a%ter the e#ir$ o% the #eriod o% limitation and the #eriod o%

limitation shall "e.



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7a) si months i% the o%%ence is #unisha"le &ith %ine onl$<

7") one $ear i% the o%%ence is #unisha"le &ith im#risonment %or a term not eceeding one

$ear<

7c) three $ears i% the o%%ence is #unisha"le &ith im#risonment %or a term eceeding one $ear

"ut not eceeding three $ears<

7d) the #eriod o% limitation in relation to o%%ences &hich are #unisha"le &ith more severe

#unishment shall "e determined "$ the court i% the o%%ence is #unisha"le &ith im#risonment

eceeding three $ears or severe #unishments'

The o"(ect is to #revent the #arties %rom %iling cases a%ter a long time as a result o% &hich

material evidence ma$ vanish and also to #revent the %iling o% veations and "elated

#rosecutions'

+ver$ trial "egins &ith the charges and ever$ charge shall state the o%%ence &ith &hich the

accused is charged'21 The charge shall give the accused %ull notice o% the o%%ence charged

against him' The #ur#ose o% the charge is to tell the accused #erson as #recisel$ and

concisel$ as #ossi"le o% the matter &ith &hich he is charged and must conve$ to him &ith

su%%icient clarit$ and certaint$ &hat the #rosecution intends to #rove against him and o%

&hich he has to clear himsel%'

criminal trial ma$ ta*e #lace either "e%ore a >agistrate or Court o% 0essions as the nature

o% the case ma$ "e'22

' >ode o% Ta*ing and Recording +vidence

It is o"ligator$ that evidence %or #rosecution and de%ence should "e ta*en in the #resence o%

the accused'23 trial is vitiated "$ %ailure to eamine the &itnesses in the #resence o% the

accused< mere cross eamination in the #resence o% the accused is not su%%icient'

21 21122: o. Cr+%, 1;7"

22 22626 o. Cr+%, 1;7"

27 2;22 o. Cr+%, 1;7"



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Seey T$i#'s

It is im#erative that ever$ criminal trial should "e com#leted s#eedil$ e#editiousl$ and

e%%icientl$' The 0u#reme Court o% India in ugust 1@@6 has e#ressed that the trial court

should not &aste its time &hen it is %airl$ satis%ied that there is no #ros#ect o% the case

ending in conviction' I% the trial court (udge is almost certain that the trial &ould onl$ "e an

eercise in %utilit$ or a sheer &aste o% time it is advisa"le to truncate or sni# the #roceedings

at the stage o% %raming the charge under relevant #rovisions o% the Cr'P'C' and discharge the

accused'

Though it is im#erative to com#lete the trial s#eedil$ e#editiousl$ and e%%icientl$ $et there

are irritations &ith the criminal trial #rocess during #re-trial as &ell as trial stages' For instance the #olice &hich are to com#lete the investigation o% crime &ithin the #rescri"ed

time limits consume much more time than #rescri"ed "$ la&' This results in the languishing

o% the undertrials in (ails %or a longer #eriod than the #eriod o% the conviction' The adversar$

#rocedure is also res#onsi"le %or the dela$ed trials and there are studies &hich tell that dela$

is a riddle &ra##ed in m$ster$ inside an enigma' Indecisiveness is the cause o% "oth dela$

and un#leasantness' It could "e avoided i% detention on %alse grounds is eased< ad(ournments

(ust on demands are discouraged< stri*e and cessation "$ an advocate is given a %ull sto#'

CONCLUSION

Dne Princi#al o"(ect o% criminal la& is to #rotect societ$ "$ #unishing the o%%enders'

Ho&ever (ustice and %air #la$ re;uire that no one "e #unished &ithout a %air trial' #erson

might "e under a thic* cloud o% sus#icion o% guilt he might have "een even caught red-

handed and $et he is not to "e #unished unless and until he is tried and ad(udged to "e guilt$

"$ a com#etent court' In the administration o% (ustice it is o% #rime im#ortance that (ustice

should not onl$ "e done "ut must also a##ear to have "een done' Further it is one o% the

cardinal #rinci#les o% criminal la& that ever$one is #resumed to "e innocence unless his

guilt is #roved "e$ond reasona"le dou"t in a trial "e%ore a im#artial and com#etent court'

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM1;


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There%or it "ecomes a"solutel$ necessar$ that ever$ #erson accused o% crime is "rought

"e%ore the court %or trial and that all the evidence a##earing against him is made availa"le to

the court %or deciding as to his guilt or innocence'

%ter so man$ #rovisions and la&s #eo#le are still not having a %air trial' In order to have

ade;uate insights into %air trial %unctionall$ rather than structurall$ it is im#erative to have

an in-de#th stud$ o% trial courts' 0uch a stud$ &ould dis#el the com#laint against the (udicial

s$stem o% the countr$' s such com#laints are "ased on %acts that :higher courts are right

"ecause the$ are su#erior not su#erior "ecause the$ are right': The trial (udge in %act

handles the "ul* o% (udicial "usiness' It ma$ ho&ever "e not conceived that the (ustices do

not &ant the #eo#le to understand the (udicial %unction< un%ortunatel$ there are relativel$

%e& #eo#le to understand inter#ret and e#lain the court?s role in &ider terms' In a sense

#eo#le *no& less a"out the case than the$ do a"out the Parliament or the #olitical #arties'

Trial (udges handle the "ul* o% (udicial "usiness "ecause the$ #reside over trials among other

things including management o% case #rocessing a##roval o% #lea "argaining su#ervision o%

the settlement #rocess monitoring remedial decrees--the$ as such e#erience the drama o%

the adversar$ #rocess' This inevita"l$ in%luences (udicial decision-ma*ing and "ehaviour'

trial (udge is not a mechanical scale or com#uter "ut is a human "eing' 0o the trial (udges

var$ in their res#ective ;ualities o% intelligence #ers#ective attentiveness and other mentaland emotional characteristics o% o#eration &hile the$ are listening to and o"serving

&itnesses' Fatigue o% the trial (udge that is a%ter ho& man$ cases the trial (udge cannot

%unction at ease and the cases heard and tried in %atigue ma$ ham#er or a%%ect the %air trial

ma$ "e one assum#tion amongst others to ma*e an in-de#th stud$ o% trial courts in order to

have an assessment o% %air trial in criminal #roceedings that is %unctional'

BIBLIO;RAPH<

B!!1s-:

• R''/el*ar criminal #rocedure 3rd edition 1@@3

• Ratanlal ,hira(lal criminal #rocedure 3rd edition 1@@9

• Chaudhar$ criminal #rocedure 3rd edition 1@@

• ,r' B'' Paran(a#e The Code o% Criminal Procedure2nd +dition Central a&

genc$ llaha"ad'

• 0'B'>isra The Code o% Criminal Procedure14th +dition Central a& Pu"lication

llaha"ad

FAIR TRIAL IN THE CRIMINAL JUSTICE SYSTEM1-


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• The code o% criminal #rocedure code 1@83

• The constitution o% India

I+te$+et s!)$ce:

• http://www.ksl.edu.np/cpanel/pics/concept_of_fair_trial_awani.pdf

• http://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf

• www.humanrights.coe.int/Intro/eng/GENERAL/trial.htm


http://www.ksl.edu.np/cpanel/pics/concept_of_fair_trial_awani.pdfhttp://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdfhttp://www.humanrights.coe.int/Intro/eng/GENERAL/trial.htmhttp://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdfhttp://www.humanrights.coe.int/Intro/eng/GENERAL/trial.htmhttp://www.ksl.edu.np/cpanel/pics/concept_of_fair_trial_awani.pdf


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