Fair Trial Rights: Beyond the Rhetoric

FAIR TRIAL RIGHTS BEYOND THE RHETORIC

The conception of truthful trial relies on the essential ideology that State and its agencies have the duty to bring the offenders before the law. In their tussle against transgression and minor crime, State and its officials cannot on any ground ignore the appropriateness of State etiquette and have the possibility to extra-lawful alternatives for the sake of detection of crime and even offenders. The Indian courts have recognized that the first object of criminal procedure is to make sure a good trial of defendant persons. Human life should be valued and a person accused of any offense should not be punished unless he has been given a fair trial and his guilt has been proved in such trial.

The Supreme Court of India ascertained “each one has an associate in nursing constitutional right to be treated fairly in a very criminal trial. Denial of a good trial is the maximum amount of injustice to the defendant because it is to the victim and to society. Fair trial clearly would mean an endeavor before Associate in nursing impartial decides, a good functionary and an environment of judicial calm. Fair trial means that an endeavor during which bias or prejudice for or against the defendant, the witness or the cause that is being tried is eliminated.”

The right to a good trial may be a basic safeguard to make sure that people square measure shielded from unlawful or whimsical deprivation of their human rights and freedoms, most significantly of the right to liberty and security of person.

Features of fair trial with the context of Indian Law

Antagonist trial system

The system adopted by the Criminal Procedure Code, 1973 is that the antagonist system supported the disputant technique. In the adversarial system responsible for the assembly of proof is placed on the prosecution with the decide acting as a neutral referee.

The Supreme Court has ascertained “if a tribunal is to be an efficient instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He should become a participant within the trial by evincing intelligent active interest.”

The Supreme Court established that if truthful trial envisaged underneath the Code isn’t imparted to the parties and court has reasons to believe that prosecuting agency or functionary isn’t acting within the requisite manner the court will exercise its power underneath section 311 of the Code[i] or underneath section 165 of the Indian Evidence Act, 1872[ii] to decision sure the fabric witness and procure the relevant documents therefore on subserve the explanation for justice.

Presumption of being innocent

Every criminal trial begins with the presumption of innocence in favor of the defendant. The burden of proving the guilt of the defendant is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.

It is the duty of the prosecutor and defense counsel as well as all public authorities involved in a case to maintain the presumption of innocence by refraining from pre-judging the outcome of the trial.

Independent, impartial judges

It is very much in consonance and important that while the judiciary is dealing with the fair trial proceedings, the Courts should act as competent and impartial judgment has to be given with all independent on the judiciary. In a criminal trial, as the state is the prosecuting party and the police are also an agency of the state, it is important that the judiciary is unchained of all suspicion of government influence and management, direct or indirect. The whole burden of a fair and impartial trial thus rests on the shoulders of the judiciary in India.

In Shyam Singh v. the State of Rajasthan (1973 CriLJ 441, 1972 WLN 165), the court observed that the question is not whether bias has actually affected the judgment. The real take a look at is whether or not there exists a circumstance in keeping with that a party might moderately apprehend that bias due to a judicial officer should have operated against him in the final decision of the case.

“Autrefois Acquit and Autrefois Convict”

According to this doctrine, if a person is tried and acquitted or convicted of an offense he cannot be tried again for the same offense or on the same facts for any other offense. This doctrine has been substantially incorporated in article 20(2) of the Constitution[iii] and is also embodied in section 300 of the Criminal Procedural Code[iv].

Article 20(2) of the Constitution[v]  only states that ‘no one can be prosecuted and punished for the same offense more than once’, Section 300(1) of Criminal Procedural Code[vi],  states that no one can be tried and convicted for the same offense or even for a different offense but on the same facts.

Pre-Trial Rights

The Criminal Procedural Code entitles an accused of certain rights during the course of any investigation, inquiry or trial of an offense with which he is charged.

Knowing the incident of accused

A fair trial requires that the accused person is given adequate opportunity to defend himself. But this opportunity will have no meaning if the accused person is not informed of the accusation against him. The Code, therefore, in overall sections 228, 240, 246, 251 in plain words that when an accused person is brought before the court for trial, the particulars of the offense of which he is accused shall be stated to him.

In case of significant offenses, the court is required to frame in writing a formal charge and then read and explain the charge to the accused person. A charge is not an accusation in the abstract, but a concrete accusation of an offense alleged to have been committed by a person. The right to own precise and specific accusation is contained in section 211, the Criminal Procedural Code.[vii]

Right to have an open trial

The fair trial also requires a public hearing in an open court. 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. A judgment is considered to have been made public either when it was orally pronounced in court or when it was published, or when it was made public by a combination of those methods.

In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra (1967 AIR, 1 1966 SCR (3) 744), the Supreme Court observed that the right to open trial must not be denied except in exceptional circumstances. The high court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part of its proceedings.

In the case of State of Punjab v. Gurmit (1996 AIR 1393, 1996 SCC (2) 384), the court held that the undue publicity is evidently harmful to the unfortunate women victims of rape and such other sexual offenses. Such publicity would mar their future in many ways and may make their lives miserable in society.

The aid of counsel

The requirement of the 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. The Law Commission of India in its 14th Report has mentioned that free legal aid to persons of limited means is a service that a Welfare State owes to its citizens.

In Mohd. Hussain @ Julfikar Ali vs. The State Delhi[viii] the appellant an illiterate foreign national was tried, convicted and sentenced to death by the trial court without assignment of counsel for his defense. Such a result is confirmed by the High Court. Therefore it had been a command that each person includes a right to own a good trial.

A person, which is been accused of heinous or serious charges, associated with the commission of the act must not be denied of these important rights. The appellant was provided with legal aid/counsel at the last stage which amounted to a denial of effective and substantial aid. Hence the appellant’s conviction and sentence were set aside.

Protection against illegal arrest

Section 50[ix] provides that any person arrested without a warrant shall immediately be informed of the grounds of his arrest. The duty of the police after they arrest and no warrant was fast to visualize the chance of crime, but they ought to be anxious to avoid mistaking the innocent for the guilty. The burden is on the police officer to satisfy the court before which the arrest is challenged that he had reasonable grounds of suspicion.

In Pranab Chatterjee v. the State of Bihar ((1970)3SCC926), the court command that section 50[x] is necessary. If particulars of an offense are not communicated to an arrested person, his arrest and detention are illegal. The grounds can be communicated orally or even impliedly by conduct.

In the State of Punjab v. Ajaib Singh (1953 AIR 10, 1953 SCR 254), the court command that arrests while not warrant need larger protection and production among twenty-four hours ensures the immediate application of judicial mind to the lawfulness of the arrest.

Right to bail

By virtue of Section 436[xi], the suspect will claim bail as a matter of right in cases that are shown as bailable offenses within the 1st Schedule to the Code. Bail is basically released from restraint, more particularly, release from custody of the police. An order of bail provides back to the suspect freedom of his movement on condition that he can seem to require his trial. If the offense is bailable, bail will be granted without more ado. But bail under section 389(1)[xii] after conviction is not a matter of right whether the offense is bailable or non-bailable.

Prohibition on double jeopardy

The concept of double jeopardy is based on the doctrine of ‘autrefois acquit’ and ‘autrefois convict’ which means that if a person is tried and acquitted or convicted of an offense he cannot be tried once more for identical offense or on identical facts for the other offense. This clause embodies the common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offense.

Right against self-incrimination

The Hon’ble Apex Court, pronounced decision saying that “to be a witness” does not constitute to “furnishing evidence”. Self-incrimination should mean transfer info primarily based upon the non-public data of the person giving the data and can’t embrace simply the mechanical method of manufacturing documents in Court that may throw a light-weight on any of the points within the tilt, but which do not contain any statement of the accused based on his personal knowledge.

The court held that the scientific tests resorted to by the investigating do not amount to testimonial compulsion. Hence, the petition was dismissed. 

Post-Trial Rights

Lawful punishment

Article 20(1)  is of the view that if a person is being convicted or taken for any kind of proceedings of an offense only if that act is made punishable by law. It gives the constitutional right to the saying under the Constitution that no one can be convicted except when there is a strict violation of a law in force. In the case of Om Prakash v. State of Uttar Pradesh[xiii], offering bribe was not an offense in 1948. Section 3 of the legal code (Amendment) Act, 1952 inserted Section 165A in the Indian Penal Code, 1860, declaring offering bribe as punishable. It was held that the accused could not be punished under Section 165A[xiv] for offering a bribe in 1948.

Right to human treatment

A prisoner does not become a non-person. Prison deprives liberty. Even while doing this, the prison system must aim at reformation. In prison, treatment must be geared to psychic healing, the release of stress, and restoration of self-respect apart from training to adapt oneself to the life outside. Every prisoner has the right to a clean and sanitized environment in the jail, the right to be medically examined by the medical officer, the right to visit and access by family members, etc. Considering into the purview of the right to have medical facilities, the National Human Rights Commission, awarded Rs. 1 Lakh to be paid as compensation by the Govt. of Maharashtra to the dependents of an undertrial prisoner who died in the Nasik Road Prison due to lack of medical treatment.

Right to file an appeal

Section 389(1)[xv] empowers the tribunal to suspend execution of sentence, or once the condemned person I in confinement, to grant bail unfinished any attractiveness to that. The court need not give notice to the public prosecutor before suspending the sentence or releasing on bail. The existence of an appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of right irrespective of whether the offense is bailable or non-bailable and should be allowed only when after reading the judgment and hearing the accused it is considered justified.

Conclusion

The judge is not to draw any inferences against the defendant from the fact that he has been charged with a crime and is present in court and represented by a counsel. He must decide the case solely on the evidence presented during the trial. State of U.P. v. Naresh and Ors  In this case it was held that the law in this regard is well settled that while dealing with a judgment of acquittal, an appellate court must think about the whole proof on record therefore on reach a finding on whether or not the views of the tribunal were perverse or otherwise unsustainable.

Frequently Asked Question

1) What do you understand by Fair Trial Rights?

Fair trial means that an endeavor during which bias or prejudice for or against the defendant, the witness or the cause that is being tried is eliminated. The right to a good trial may be a basic safeguard to make sure that people square measure shielded from unlawful or whimsical deprivation of their human rights and freedoms, most significantly of the right to liberty and security of person.

2) How the Fair Trial Rights be related with execution policies?

Every criminal trial begins with the presumption of innocence in favor of the defendant. The burden of proving the guilt of the defendant is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. It is the duty of the prosecutor and defense counsel as well as all public authorities involved in a case to maintain the presumption of innocence by refraining from pre-judging the outcome of the trial.

3) How the Judiciary enforces the principle for the Fair Rights Principle?

The fair trial requires a public hearing in an open court. 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. A judgment is considered to have been made public either when it was orally pronounced in court or when it was published, or when it was made public by a combination of those methods.

Edited by Chiranjeeb Prateek Mohanty

Approved & Published – Sakshi Raje

Reference

[i] 311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

[ii] 165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

[iii] 20 (2) No person shall be prosecuted and punished for the same offence more than once

[iv] 300. Person once convicted or acquitted not to be tried for same offence.

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of section 188 of this Code. Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section illustrations

(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust.

(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.

(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.

(d) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the cage comes within sub- section (3) of this section.

(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may subsequently be charged with, and tried for, robbery on the same facts.

(f) A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.

[v] Supra note iii

[vi] Supra note iv

[vii] 211. Contents of charge.

(1) Every charge under this Code shall state the offence with which the accused is charged.

(2) If the law which creates the offence gives it any specific- name, the offence may be described in the charge by that name only.

(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.

(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.

(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

(6) The charge shall be written in the language of the Court.

(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. Illustrations

(a) A is charged with the murder of B. This is equivalent to a statement that A’ s act fell within the definition of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860 ); that it did not fall within any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception applied to it.

(b) A is charged under section 326 of the Indian Penal Code (45 of 1860 ), with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the said Code-, and that the general exceptions did not apply to it.

(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property- mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property- mark, without reference to the definitions of those crimes contained in the Indian Penal Code (45 of 1860 ); but the sections under which the offence is punishable must, in each instance, be referred to in the charge.

(d) A is charged under section 184 of the Indian Penal Code (45 of 1860 ) with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.

[viii] CRIMINAL APPEAL NO. 1091  OF 2006

[ix] 50. Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

[x] 50. Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

[xi] 436. In what cases bail to be taken.

(1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A 1 .

(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

[xii] 389. Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

[xiii] SLP (Crl.) No. 6111 of 2005

[xiv] 165. Search by police officer.

(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place with the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

[xv] Supra note xii

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Shikhar Shrivastava, currently pursuing 4th Year Law Course [B.A.LL.B (Hons.)] from Indore Institute of Law, Indore (Madhya Pradesh). The areas of interest for him are Contract Law, Constitutional Law, Criminal Law, Environmental Law, Labour Law, Administrative Law, Family Law, Human Rights Law, Intellectual Property Law, Property Law, Juvenile Law, Health Law. In order to pursue a career in Law, he takes anxious curiosity in developing his research skills as well as dealing with National and International Moot Court Competitions. He has worked with many Online Internships as well as Offline Internships for various Law firms established in Offices- Delhi, Bangalore, Ahmedabad. He too has published various Blogs, Legislative Comments, Short Articles, Newsletter articles, Articles for Journals.