Criminal law


Fair Trial is considered as a fundamental human right of all the individuals who have been convicted. It has been recognized at both national and international levels. Principles of fair trial are firm and are made in such a way that fair and impartial decision is made and thus rights of the convicted are also preserved. Right of fair trial is an inalienable right and it is available at both pre-trial and post-trial. This article is a critical analysis of how right to fair trial is important in today’s era and the challenges faced by the Criminal Justice System in India in context with some landmark cases.

What is Fair Trial?

Benjamin Franklin once said that “It is better that ten guilty escape than one innocent suffers”. The concept of fair trial is quite ancient and the first traces can be found in 1215, Magna Carta, which gave, all freemen the right to fair trial by jury. According to Black Law’s Dictionary, the term Fair Trial means the trial in the presence of an impartial judge and jury. Every person has a right to fair trial, which is considered as a fundamental right in the eyes of the law, every person has a right to defend himself (Sub-section (2) of Section 243 of the CrPC, 1973 recognises the right to defend oneself and to adduce evidence) and the denial of that right means denial of fair trial.[1]

Fair trial is based on the principles of natural justice. What comes under fair trial is laid down under various sections Code of Criminal Procedure, 1973. Universal Declaration of Human Rights (UDHR) under Article 10 and International Covenant on Civil and Political Rights (ICCPR) in its Article 14 at global level also recognises the concept of a fair trial. The concept of fair trial can also be seen in the Indian Constitution under Article 21 which renders the fair trial as a part of life and personal liberty. In Rattiaram v. State of Madhya Pradesh[2], the Supreme Court observed that the fair trial is the heart of criminal jurisprudence. Thus, right to fair is considered as a fundamental right.

The Principles of Fair Trial

(1) The system adopted by the Criminal Procedure Code, 1973 is Adversary System based on the Accusatorial Method which involves accusation by a prosecutor and a verdict reached by an impartial judge. In Himanshu Singh Sabharwa v. State of M.P. and Ors.,[3] the apex court held that if the court has reasons to believe that the prosecuting agency or prosecutor is not acting in accordance with procedure of fair trial as laid down under the code the court can exercise its power under Section 311 of the code or under Section 165 of the Indian Evidence Act, 1872 so as to subserve the cause of justice.

(2) The accused is presumed to be innocent until proved guilty.[4]This principle has been derived from the Latin maxim “eiincumbitprobatio qui dicit, non quinegar”. This is considered as the most important principle of fair trial and is must in a trial in order to protect the accused from arbitrary and wrongful conviction. As per Section 228 of Criminal Procedure Code if the judge is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame in writing a charge against the accused. The burden of proving the guilt of the accused is upon the prosecution unless proved the accused cannot be considered as guilty.

(3) The proceedings are to be conducted by a competent, independent and impartial court/judge. This principle has been derived from the Latin maxim “nemo judex in causa sua” which means no one can be a judge in his own cause. Section 479 of the code explicitly prohibits any judge or magistrate to trial any case in which he is a party or personally interested.

(4) Principle of Double Jeopardy. Section 300 of the CrPC talks about principle of Double Jeopardy which says that if a person is tried and acquitted or convicted of an offence he cannot be tried again. This doctrine is also incorporated in Article 20(3) of the Constitution of India. Section 300(1) of CrPC is wider than Article 20(2) of the Constitution.[5]

(5) Place of Trial- according to Section 177 of the CrPC, every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. In Rajendra Ram Chandra Kavalekar v State of Maharashtra[6], it was observed that the territorial jurisdiction of a court with regard to criminal offence would be decided on the basis where the incident has occurred. The provisions of section 179 to 189 are made to facilitate fair trial.

Pre-Trial Rights Available to an Accused

I. Protection against illegal arrest – Section 50 provides that any person arrested without a warrant shall be informed of the grounds of his arrest in a language, which he understands and if the offence is bailable, he shall be informed of his right to be released on bail. Section 50 is mandatory.[7]The grounds can be communicated orally or even impliedly by conduct. This provision is in conformity with Article 22 of the Indian Constitution. The Allahabad High Court in Udayabhan Shuki v. State of U.P., held that the right to be informed the grounds of arrest is a precious right of the arrested person as it enables him to move the proper Court for bail, or to make expeditious arrangements for his defence.

II. Knowledge of the Accusation- The accused is informed of the accusations against him in the form of ‘charge’. A charge should be so framed as to refer to the section of the IPC under which the offence is punishable. Section 211 of CrPC contains the right to know the grounds of accusation. It is a right to have a precise and specific accusation. Further section 228,240,246,251 of the code provides that the particulars of the offence of which he is accused shall be stated to him.

III. Production of accused before a judicial magistrate within 24 hours of arrest- Section 57,CrPC provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest. Where a police officer fails to produce an arrested person before a Magistrate within 24 hours of the arrest, he shall be held guilty of the offence of wrongful detention.

Where the investigation cannot be completed within 24 hours then the magistrate after the accused has been produced within 24 hours can order to detain him for a period of 15 days (not exceeding that) under section 167 of CrPC. In Kultej Singh v Circle Inspector of Police[8], the accused was produced before the magistrate much beyond the period of 24 hours, the police offered their explanation and stated that delay was caused because of the urgency to go elsewhere in connection with communal riots. It was accepted by the court.

IV. Arrest of accused to be informed to his friend or relative– In Joginder Kumar v State of Uttar Pradesh[9], it was held that it is the duty of the police officer to inform the friend or relative of the arrested person about his arrest and to make an entry in the register maintained by the police.

V. Right to Open Trial- This encompasses public hearing in an open court. Section 327 of the code makes provision for open courts for public hearing. In Naresh Sridhar Mirajkar v. State of Maharashtra[10], the Supreme Court observed that right to open trial must not be denied except in exceptional cases.

VI. Right to Fair Trial/Right to Free Legal Aid- It consists of two things first an opportunity to the accused to secure a counsel of his own choice and secondly it is the duty of the state to provide a counsel to the accused. This is given under sections 303 and 304 of the Code. Every person has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The objective behind this is to make sure that the accused gets free and fair trial of charge in a criminal case. In Khatri v. State of Bihar[11], the court held that the accused is entitled to free legal services not only at the stage of the trial but also when first produced before the Magistrate and also when remanded. In the leading case of Ramchandra Nivrutti Mulak v State of Maharashtra, the apex court held that the conviction of an appellant not represented by a lawyer was clearly in violation of the fundamental right. A right to fair trial includes the right for legal assistance. In the recent case of Reena Hazarika v State of Assam,[12] the Supreme Court threw light on the law pertaining to Section 313 of CrPC. The court was of the view this section cannot be seen simply as a part of Audi Alteram Partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a Constitutional right to fair trial under Article 21 of the Constitution.

VII. Right to Speedy Trial- It is given under section 309(1) of the code. It is considered as essential ingredient of “reasonable just and fair” procedure.[13]It is based on the maxim “justice delayed is justice denied”. This right comes from Article 21 of the constitution. In Moti Lal Saraf v. Union of India[14], the court held that the concept of fair and speedy trial is an integral part of article 21 of the constitution.

VIII. Proceedings in the Presence of the Accused– The underlying principle behind this right is that the court should not proceed ex parte against the accused person. Section 317 of the code provides that a magistrate may proceed with the trial if the presence of the accused is not necessary. Section 273 provides that all evidence taken in the course of the trial shall be taken in the presence of the accused. Section 238 makes it obligatory on the Magistrate to supply copies of these documents to the accused free of cost so that the accused person is given full opportunity to defend himself.

IX. Right to bail- Section 436 provides that the accused can claim bail as a matter of right. If the offence is bailable, bail will be granted without more ado. In non-bailable offences, the Magistrate has power to release the accused on bail without notice to the other party.

X. Evidence to be taken in the Presence of Accused-Section 273 of the code provides that all the evidence and the proceedings should take place in the presence of accused and the accused will appear through his counsel. In State of Maharashtra v. P.B. Desai[15], court held that Section 273 of CrPC provides for dispensation from personal attendance.

XI. Right against self-incrimination- This is mentioned under Article 20(3) of the Constitution of India. The right has been provided to ensure that an accused do not make any statement due to threatening, influence or any other compulsion.[16]

Post-trial rights available to an accused

I. Lawful Punishment– Article 20(1) of the Constitution of India explains that a person can be convicted of an offence if the act is made punishable by a law in force. It prohibits the enhancement of punishment for an offence retrospectively.

II. Right to Human Treatment- Every prisoner has right to clean and sanitized environment in the jail, proper medical facilities, right to visit and access by family members etc.

III. Right to File Appeal- Section 374 of the CrPC provides right to appeal against convictions to Supreme Court, High Court and Sessions Court. Section 389 of CrPC empowers the appellate court to suspend the execution of sentence or to release the appellant on bail.

Critical Analysis

From the above discussion, we see that how fair trial is an important right for every person and for the society. The Criminal Procedure code has laid several provisions in relation to that. Fair trials are the only way to prevent miscarriages of justice and are an essential part of a just society. It is true that a fair trial protects the rights of the accused but it also makes a society stronger and safer. Without a fair trial, trust in government and the rule of law will collapse. Right to fair trial is recognized by the international community but still this right is abused every day. Laws should be made more stringent were it is ensured that this right is not violated by the persons in power.

In a trial a judge is expected to take an impartial judgment against both the parties and it is his duty to make sure that the rights of the parties are preserved. A judge is expected to take a decision on the basis of the evidences and the case presented by the lawyer. A judge is not expected to take decision always against the defendant just because he has committed a certain crime so he should be punished.

A judge should be unbiased and patient enough to listen to both the parties as what they have to say. He has an obligation to make sure that the rights of the accused before and after trial were not violated as provided under the Criminal Procedure Code. Every day we read in news that there are over 30 million cases pending in the courts and because of this the basis right of Right to Speedy trial of the accused as given under Section 309 of the Criminal Procedure Code is violated. And just because of this some innocent accused have to rot in jail for years till their turn comes. Hence, a more speedy and transparent procedure should be implemented so that the rights can be preserved.

The Canadian Charter to Rights and Freedom (first part of the Canadian Constitution) gives rights in relation to criminal matters. Section 11(d) of the charter lays an obligation on the trial judge to ensure that an accused right to fair trial is preserved. The same was also mentioned in the case of Selvey v Director of Public Prosections.[17]If we compare this to Indian trial system, there is no such provision under the criminal law which casts a duty on the judges to make sure that the right of fair trial to an accused is preserved.

The European Convention on Human Rights also guarantees right to fair trial under article 6(1) . This article also bars press and the general public to be part of the trial in the interests of morals, national security and public order. Comparing it to the Indian Criminal Justice system there is no such provision that bars press and media from being the part of trial. However, section 327 of CrPC gives provision in regards to prohibition of public from attending a trial, which constitutes a sensitive subject matter.

In my views, stricter laws shall be made to prohibit press and media from conducting a media trial of an accused. One of the general principles of fair trial is that the accused is presumed to innocent until proven guilty by the court. Media is considered as the most powerful entity because it can entirely change the course of case. They have the power to make the innocent guilty and to make the guilty innocent as they control the minds of the masses. Hence, this concept should be totally banned to make sure that the rights of the accused are not violated.

What is Criminal Justice System? – The judiciary is considered, as an equivalent part of the government along with the legislature and the executive and for any powerful democracy it is crucial that the Criminal justice system works well. Criminal Justice System is a set of legal and social institutions created to control and look after the human affairs.

It is created by the state to administer and enforce the criminal law that is encoded in various sources such as the Indian Penal Code, Criminal Procedure Code, Protection of Civil Rights Act, Dowry Prohibition Act etc. Like, United States there are separate State, Military and Juvenile Justice Systems in India. This system includes major subsystems like Police, trial and appellate courts, prosecution and public defender offices, jails, reformatories etc. The Hon’ble Delhi High Court in the case of Sunil Kumar Sharma v State (CBI)[18] laid down the principles of criminal jurisprudence: (i) that the onus of prove lies on the prosecution to prove its case beyond any reasonable doubt (ii) the accused is presumed to be innocent unless proved guilty (iii) that the onus of prosecution never shifts.

What are the issues and challenges in Criminal Justice System in India?

The Criminal Justice System in India is considered as the best example of the phrase “Justice delayed, Justice denied”. The potency of any justice system can be judged by the speed at which the cases are disposed of. Right to Speedy Trial is given under Section 309 of CrPC and it is considered as a Constitutional right of every accused. Generally delay in Speedy trial is because either of delay in investigation of crimes or the negligent way in which a case is investigated. This this inordinate delay in litigation is leading to huge pendency in courts. According to a data approximately 30 million cases are pending in various courts.

Many of these cases consist a story of an innocent man who are in jail as an under trial prisoners for decades. In Akshardham Terror Attack case, the accused Mufti Abdul spent 12 years in jail. On 16 May 2014, a Supreme Court bench composed of Justices A K Patnaik and Venkate Gopala Gowda acquitted all six persons, including those awarded the death penalty. The Supreme Court slammed the Gujarat Police for the incompetence with which it investigated the case. The bench gave the decision holding that the prosecution failed to establish the guilt of the accused. In 2012 Delhi gang rape case the Supreme Court took 7 years to pass the verdict. In India there are 10 judges per million people as compared to 107 in England. This figure needs to be increased to ensure that the case are disposed of on time.

Section 437(6) of Criminal Procedure Code was enacted to prevent a prisoner who has been charged of a non-bailable offence but was made to stay in jail because of delayed trial to be released on bail where the trial has not concluded within the 60 days from the first date fixed for taking evidence. In Puran V. Rambilas and Anr.[19], it was held that that while dealing with an application for bail, the Court should indicate in its order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. In State of Maharashtra v. Anant Chintaman Dighe[20], the accused was granted bail because he was a prominent leader of a political party and there was no possibility of his committing any offence in future. But after his release on bail, he was found to threaten prosecution witnesses of committing their murder and giving lectures inciting violence.

The Apex Court therefore, held that the cancellation of bail of the accused was proper and hence needed no interference by the Court. The system responded to this situation by enacting Section 436-A80 which spells out the right of an under trial prisoner to apply for bail once she/he has served one half of the maximum term of sentence she/he would have served had she/he been convicted.

Secondly, the workload that the justice system has to bear with is huge. The police is considered as the Chief Investigating agency in India and it has a ratio of 138 police personnel per 1,00,000 citizens. Other countries like United States and Spain have 229 and 505 per 1,00,000 respectively. Section 155(2) of CrPC states that a magistrate can give an order to police to investigate a non-cognizable offence. Under Section 156 of CrPC the police has power to investigate in a cognizable offence. It is true that improper investigation by police can change the course of the case.

The Aarushi Talwar murder case the much talked about case in history of crime and punishment. In this case from investigation to follow up everything went wrong. Moreover, the crime scene investigation by the police was so bad and unprofessional. In addition to all of this there was media trial of the Accused which worsened the situation. Most, tragically, the manner in which the trial proceeded and concluded are a shocking testimony to our less than adequate criminal justice system. The accused spent nine years in jail.

Disorganised investigation is mainly because lack of professionalism and competence in crime investigation. A proper investigation includes professional skills and patience. In a recent judgment of Neelam v State of Haryana[21], the High Court held that the completion of investigation without considering outcome of forensic science laboratory couldn’t be considered as a fair investigation. Because of inordinate and improper investigation many prisoners rot in jail. However, this problem can be solved by proper enforcement of Section 167 of CrPC.

This section provides the procedure to be followed when the investigation cannot be completed in twenty four hours. This provision shields the accused from suffering incarceration on account of the inability of investigating agency to wind up its investigation. Sub-clause (b) of this section extends to allowing the person bail if there isn’t sufficient cause to hold him in custody. It was observes in Laxmi Narain Gupta V. State[22], that along with the present petition there were 20 other cases pending, where the accused is in judicial custody, either because they are poor or they are unaware of their rights. Section 167 must be expanded so that remedies are available for past illegal detentions or arrest even if in the present case custody it is legal. Also, the executive must also play a role by ensuring that more and more people are aware of their rights.

In addition to this people have no fear of police in India and as compared to countries like Singapore, China and japan where spitting in public, smoking in public, wearing the wrong dress when going out will directly land you jail. Stricter laws should be implemented so that the people have in their minds before committing any offence.

People are losing faith in criminal justice in India because of low conviction rate. In India only about 16 out of 100 people are booked for criminal offences which results in a big problem and this is causing inefficiency in the justice system.

Next impediment in Justice System is caused because of the time consuming and expensive legal process. The justice system is considered as expensive because the people who have money and power use it against the victims and second reason why the criminal justice system is expensive is because of the non- accountability of bar. The bar council of India is not able accountable and there is no discipline in the fraternity of advocates. A advocate charges high fees even for consultation.

There is lack of Coordination between the police and prosecution. Even if the police does its work well the outcome depends upon the prosecution because it is in his hands how he is going to collect he evidence and present it in court in an effective manner.

67% of the prisoners are under trial because of which there is heavy bulk of India’s prison population.[23] This overcrowding of jails lead to greater risks such as difficulties in surveillance, risk of disease etc.

The Indian judicial system like any other government institution is highly corrupted. The famous scams like CWG scam, 2G scam, Adarsh Society Scam are examples to it. Further there is no provision in law against a judge taking bribes.

Critical Analysis

The appointment of the Vohra Committee was the very first attempt towards reforming the Criminal Justice System in India. Vohra Committee report (1993) made an observation on the criminalisation of politics and of the nexus among criminals, politicians and bureaucrats in India. In 2000, the government formed a panel headed by Justice V.S. Malimath to suggest reform in the century-old criminal justice system. The Malimath Committee submitted its report in 2003 with 158 recommendations but these were never implemented. The Committee felt that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”

The first thing which the committee observed was that the victims do not get the protection and the representation which they deserve in a proper criminal proceedings which consequently resulted in the misconduct and distortions in the criminal justice administration. With this general observation, the committee reviewed the position of victims and also highlighted how Supreme Court and High Court in India have evolved the practice of awarding the monetary remedies. The first landmark judgment where compensation to the victim ordered by the Madras High Court was Palaniappa Gounder v. State of Tamil Nadu.[24]

According to World Justice Project India ranks 44 out of 102 countries on Criminal Justice. The United Nations Office on Drugs and Crime (UNODC) published a report in which it showed the number of police personnel per hundred thousand people. India ranked 67 out 71 as compared to Spain who topped the list which has 525 police personnel per hundred thousand people. India police is understaffed due to many problems are faced by the people. A criminal justice system cannot work well without the help of well-functioning police infrastructure.

We as a society needs to work towards a system in which the principles of criminal jurisprudence are adhered to. A system in which right to fair trial for both the parties is respected. Trials by media need to be stop immediately because the nation saw the disaster it created in the Aarushi Murder Case. The media played a major role in pointing towards her parents. Other examples include Priyadarshini Mattoo case, Jessica Lal case. Nitish Katara murder case. There has been numerous examples where the media has been accused of conducting the trial of the accused and passing the verdict even before the court passes its judgment. The job of the media is to act as watchdog and tell what is happening in the society. Hence, proper rules and regulations should be made to ensure a proper code of conduct.

Laws should also be made in respect of protection of witness. In Kerala nun rape case it still unclear how the key witness in the case died or who killed. Same thing happened in Unnao rape case, in which the key died and reason is still unknown as to who killed him. Hence laws should be made to protect them because witness are very important thing in a trial.

Comparing the Criminal Justice System in India with that of US. First thing we see is that in US there is jury trial that is common citizens take part in judicial decision making and this system has created a sense of judicial responsibility amongst citizens. Execution of jury system has failed in India due to problems of corruption and biased jurors. In K.M. Nanavati v. State of Maharashtra[25], the jury system was abolished.

The judiciary in India is not that transparent as compared to that of US. It should be made more transparent so that citizens can exercise their right to acquire any information from the government.


[1] Kalyani Baskar v. M.S. Sampoornam (2007) 2 SCC 258; Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors, (2006) 3 SCC 374.
[2] Rattiaram v. State of Madhya Pradesh, AIR 2012 SC 1485.
[3] Himanshu Singh Sabharwa v. State of M.P., Crl. 175 of 2006.
[4] State of U.P. v. Nareah and Ors., (2001) 4 SCC 324.
[5] Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703.
[6] Rajendra Ram Chandra Kavalekar v. State of Maharashtra, (2012) 79 ACC 811.
[7] Pranab Chatterjee v. State of Bihar, (1970) 3 SCC 926.
[8] Kultej Singh v Circle Inspector, ILR 1991 KAR 3198, 1991 (4) KarLJ 358.
[9] Joginder Kumar v. State of Uttar Pradesh, 1994 SCC (4) 260; D.K. Basu v. State of West Bengal., 1997 (1) SCC 416.
[10] Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
[11] Khatri v. State of Bihar, (1981) 2 SCC 493.
[12] Reena Hazarika v. State of Assam, 2018 SCC OnLine SC 2281.
[13] Hussainara Khatoon v. State of Bihar, AIR 1992 SC 1701.
[14] Moti Lal Saraf v. Union of India, 2007 1 SCC (CRI) 180.
[15] State of Maharashtra v. P.B.Desai, 2003 Cri.L.J. 2033.S.C.
[16] Nandant Sathpathy v. P.L. Dani, 1978 AIR 1025, 1978 SCR (3) 608.
[17] Selvey v. Director of Public Prosecutions, (1968) 2 All E.R. 497.
[18] Sunil Kumar Sharma v. State (CBI): 139 (2007) DLT 407, I (2007) DMC 654; Rabindra Kumar Dey v. State of Orissa: 1977 AIR 170,1977 SCR (1) 439; Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, (1960) 3 SCR 319 324.
[19] Puran v. Rambilas and Anr., AIR 2001 SC 2023.
[20] State of Maharashtra v. Anant Chintaman Dighe, 1990 SCR (1) 73.
[21] Neelam v. State of Haryana, 2018 SCC OnLine P&H 2044.
[22] Laxmi Narain Gupta v. State, 2002 CriLJ 2907.
[23] National Crime Record Bureau Report, 2008
[24] Palaniappa Gounder v. State of Tamil Nadu, AIR 1977 SC 1323.
[25] K.M. Nanavati v. State of Maharashtra, 1962 AIR 605.

Author Details: Niharika Tanwar

(Source: Juscholars Journal Volume 1, Issue 3)

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