The Effectiveness Of The Criminal Procedure Code, 1973 In Ensuring A Fair Trial In India

Concept Of Fair Trial

Fair trial is a right not only provided by our country but also guaranteed by various other legislations around the globe. The European Convention of Human Rights mentions the Right to a Fair Trial under Article. 

Article 6 states that everyone is entitled to a fair and public hearing within a reasonable time. The Concept of fair trial states that every person has the right to have an impartial and fair public hearing conducted within a reasonable time. Such a trial must be independent and by the established law in force for the time being.

Fair trials are called as the cornerstone of Democracy as they try to determine the truth of a case which is essential to everyone involved in it to ensure fair and just societies and limit the power of government and state authorities. 

The state has been conferred with wide powers to arrest, prosecute and punish an individual and such powers must be exercised prudently and must have reasonable restraints to afford protection and safeguard the accused and his rights throughout the criminal process. 

A person suspected of a crime should not be subject to loss of dignity and compassion nor taken away of his right to keep his case in front of the court and get an impartial and unbiased hearing.

Fair Trial In India

The Right to Fair Trail has been recognised under Article 21 of the Indian Constitution. Article 21 states about the Protection of Life and Personal Liberty; it reads as:

No person shall be deprived of his life or personal liberty except according to procedure established by law[1]

A person living in a democracy should not be deprived of his right to personal liberty or life, irrespective of whether he is innocent or the accused. Thus this provision is of utmost importance in every democracy to safeguard the basic fundamental rights of a person.

As per Article 21 of the Indian Constitution, fair trial is rendered as a part of personal life and liberty. Fair Trial yields a chance for the convict to keep his case as he wants. 

It ensures that the convict is awarded a reasonable opportunity to defend himself and that the judges listen to both parties without any bias and are impartial while passing the judgement.

Mrs Kalyani Baskar v/s Mrs M. S Sampoornam[2]

Hon’ble Apex Court concluded that “Fair Trial” includes truthful and right opportunities allowed by way of law to prove her innocence. 

Adding proof in support of the defence is a treasured property. In a criminal case, denial of that right manner is a denial of a fair trial. Without fair trials, innocent people are convicted, and the rule of law of regulation and public religion inside the justice system collapse.

ZahiraHabibulla Sheikh and Ors, v/s The State of Gujarat and Ors.[3]

The Supreme Court of India stated that “Everyone has an innate right to be treated fairly in a criminal prosecution” Denial of a fair trial is an injustice to both the accused and the victim, as well as to the society.

A Fair Trial would imply a trial before an impartial Judge, a fair Prosecutor, and a judicially calm setting. A fair trial is one in which bias or prejudice for or against the accused, the witness, or the cause under trial is eradicated.

Fair Trial Under Code Of Criminal Procedure, 1973

To have a fair trial is a basic and universally accepted right of a human being and the criminal procedure aims to ensure the same. 

The question of whether a criminal trial is fair or not will have to be scrutinized to the gravity of the accusation, the time and resources which the society can reasonably impart to spend, the quality of the available resources, the prevailing social values etc. [4]

The features of fair trial as seen in the Criminal Procedure Code are:     

•  Adversary System
•  Open Trials
•  Expeditious Hearing
•  Double Jeopardy
•  Examination of Witness
•  Right to Defend

Adversary System

India adopts the adversary system of criminal trial wherein both the parties to a case have adequate time and opportunity to present their case, produce evidence and have counsel of their own choice to argue the case and the Court is expected to decide the case based on the facts and evidence presented. 

In the case of India, the state represents the victim and starts the trial against the accused; thus the victim is represented by the prosecutors of the state that prosecute the wrongdoer and the accused can recourse to counsel to challenge and counter the evidence of the prosecution.

 Under this system, a court is responsible for resolving the criminal responsibility of a person by providing him with a fair trial of their respective case. The system recognises the equal rights of both parties and it is considered as an apt mechanism to discover the truth fairly. 

The code also requires the court to play a more active role in the proceedings than as a mere referee in the combat between the state prosecutor and the accused person. 

The court must frame the charges against the accused after taking into account the circumstances of the case and the prosecutor cannot withdraw without the consent of the Court. Thus, the right of equal voice of representation is upheld under this system.

Expeditious Hearing

A speedy Trial is a vital organ for the mechanism of a fair and just procedure guaranteed under Article 21 of the Indian Constitution. Sec 309 of the Code of Criminal Procedure enables the provision for the same.

The section enacts that in every inquiry or trial, the proceedings shall be held as expeditiously as possible and when the examination of witnesses has begun, it shall be held continuously every day until the witness has been properly examined. 

Thus the court must take care that the proceedings of a trial are held swiftly and promptly without any delay. However, if after taking cognizance of an offence or commencement of a trial, the court finds it necessary or advisable to postpone or adjourn any trial, it may do so for the reasons that are to be recorded.

Mohd. Khalid v/s State of West Bengal[5]

The Supreme Court cautioned that unnecessary adjournments give scope for grievance that the accused persons get time to get over witnesses. 

Whatever the truth in the allegation, the fact remains that such adjournments lack the spirit of section 309 of the Code.

As a general rule, the witness of the case must also be examined as soon as the witness is brought in front of the Court and once his examination-in-chief is over, no adjournment should be granted by the Court on merely asking, unless there are compelling reasons to do so.

Dastane v/s Shivde[6]

 The Court was of the view that “When witnesses are present in the court for examination the advocate concerned must see that their examination is conducted. 

We remind that the witnesses who come to the Court, on being called by the Court, do so as they have no other option, and such witnesses are also responsible citizens who have other work to attend to, for asking out a livelihood. 

They cannot be treated as less respectable to be told to come again and again just to suit the convenience of the advocate concerned.”

Double Jeopardy

India adopts the principle of ‘Double Jeopardy’ in our Constitution. This principle is upheld by Section 300 of the Code of Criminal Procedure, 1973 which provides that “ 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 for which a different charge from one made against him might have been made, or for which he might have been convicted.”[7]

Section 300 is based on the general principle of ‘Autrefois Acquit’ (formerly acquitted) and ‘Autrefois Convict’ (formerly convicted) recognised by English Courts. India also adopts the principle of Issue- estoppel which states that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached, such a finding would constitute an estoppel or res judicata between the parties and cannot be re-agitated in subsequent proceedings.

Pritam Singh v/s State of Punjab[8]

Pritam Singh was prosecuted under the Arms Act for possessing a revolver without holding a valid license and was acquitted by a competent court, He was subsequently tried on the charge of murder. 

The accused was acquitted since the evidence of recovery and factum of possession of the revolver could not be relied upon by the prosecution as he had already been acquitted by a competent court on that charge.

Examination Of Witnesses

One of the main ingredients of Fair Trail is that before a person is held guilty at a criminal trial, he must be allowed to defend himself effectively. 

A fair trial requires the witnesses to be examined and the evidence to be recorded in the presence of the accused. Section 273 of the Code lays down that all evidence taken in the course of the trial must be in the presence of the accused; and in the case where his presence is dispensed with, the evidence will be taken in the presence of his pleader.

This provision helps the accused understand the course and the direction in which the trial is headed and protects his interest. This provision is salutary and should be by Sections 205, 291-293,299 and 317 of the Code.  

When the evidence is given in a language incomprehensible by the accused, it shall be interpreted and explained in a language understood by him; and if the pleader cannot understand the same it will be explained in the language of the court. However, the presence of the accused can be restrained by the Code under Section 317. 

The section enacts that at any stage of inquiry or trial, if judge or magistrate may if the accused persistently disturbs the proceedings in court, the judge or magistrate may if the accused is represented by a pleader, dispense with his presence and proceed with the inquiry or trial and may at any subsequent stage of the proceedings, direct the personal attendance of the accused.

The term ‘Presence’ in Section 273 includes both actual and constructive presence.

State of Maharashtra v/s Praful Desai[9]

The Supreme Court ruled that recording of evidence by video-conferencing also satisfies the requirement and object underlying section 273. 

The accused can also see the demeanour of the witness even better than in a crowded courtroom. He can hear and re-hear the deposition of a witness. No prejudice is thus likely to be caused to the accused.

Trial In Open Court

Section 327 of the Code of Criminal Procedure states that:

The place in which any Criminal Court is held to inquire into or try any offence shall be deemed to be an Open Court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

Section 327 of the Code of Criminal Procedure, 1973 enacts that as a general rule, all criminal trials should be held in open courts to which the general public will have access. 

However, if the presiding Judge or the Magistrate feels that such access must be restricted in a particular case it has the power to restrict the public or a person in particular e.g. trial of rape cases held in camera. The provision is salutary and not absolute. 

Public Trial in Open Court is undoubtedly essential for the healthy objective and fair administration of justice.[10] The openness of the trial is not only the right of the accused but also enables the judgement to be open and accessible to the general public

Mc Pherson v/s Mc Pherson[11]

Even if a trial is held in a private house or is held inside the jail or anywhere, no sooner it becomes the venue of the trial of a criminal case, it is deemed to be a public place and everyone has a right to go and attend the trial subject to the restriction of number of persons as can be accommodated.

Right To Defend

Section 303 of the Code of Criminal Procedure states that:

“Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”

As the victim is represented by the state prosecutor, Section 303 of the Code confers on the accused person a right to be defended by a legal practitioner of his own choice. Thus if the accused is not represented by a pleader and it appears to the court that the accused does not have sufficient means to engage a pleader, the court shall provide a pleader to the accused for his defence at the expense of the state.

The 41^st Law Commission Report in regards to this right mentioned that “If the right to provide legal assistance is essential to Fair Trial, there must be a corresponding duty on the State to provide a lawyer to an accused if he is unable to engage a lawyer because of his poverty.”[12]

Section 304of the Code of Criminal Procedure lays down that:

“Where, in a trial before the Court of Sessions, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

Thus the section says that a lawyer will be provided to the accused in a trial before the Court of Sessions and to any class of trials before other courts if the State Government deems it necessary. 

The State has ensured that the right given to the accused under Section 303 has been ensured by the provision under Section 304 and no accused shall be deprived of a proper opportunity to be represented and defended by a pleader merely on the grounds of his financial status.

Issues And Challenges

Indian Criminal System accepts the doctrine of ‘Justice Delayed is Justice Denied’. The potential of any justice system depends on the speed with which it disposes of the case. However what is given in the Code is not always delivered, and that is where the system lacks.

Section 309 of the Code enacts that every accused must get an expeditious trial and the case must be disposed of as quickly as possible. However time and again judiciary faces the issue of delay due burden of cases and lack of resources to fulfil it. 

There have been cases where the trial of an innocent was ongoing for years and kept in jail until finally acquitted by the Court. By the Amendment of 2008, it was held that in cases of rape, the trial be disposed of within two months. 

Despite that, it was seen in the Nirbhaya Case that it took seven years for the Court to present its verdict on the same.

Another challenge that the justice system faces is the burden of workload as a consequence of which one has to face unsatisfactory and at times erroneous results. Statistics show that India has only 138 police personnel per 1,00,000 citizens which is way less as compared to the other countries. 

This lack of numbers affects the entire investigation process and further proceedings; and in case the investigation is done properly and on time, it is all in the hands of the public prosecutor to present the arguments and evidence correctly. 

The public prosecutors are too less in number and burdened with a lot of cases which hampers their competency in trying a case.

Thus to truly uphold the principle of Fair Trial the criminal system must work to fill these lacunas in the system to provide the citizens with what is promised to them. It must face and solve these challenges in order to ensure that Fair Trial as mentioned in the Constitution and the Code of Criminal Procedure can also be seen in the actual practice.

Analysis And Conclusion

It is irrefutable how essential is a Fair Trial in order to uphold the principles of Democracy. The Code of Criminal Procedure governs the course of action to be followed in a criminal matter. 

Thus the above-mentioned Sections of the Code help ensure that the principles of Fair Trial are preserved under this code and the procedure laid down is the same.

The Code ensures to give adequate rights to both the prosecution and the accused to keep their side of the case, present their arguments and provide valid evidence to the Court so that the Judges can decide on a particular matter according to the facts and circumstances of the case. 

The essence of a Fair Trial lies in giving reasonable and sufficient opportunity to both the parties of the case to receive an impartial judgement which is based only on the merits of the case.

India adopts the principles of an adversary system and presumption of innocence (a person is presumed to be innocent until proven guilty) to secure fairness and equitable trial. India is a developing country, yet the justice and legal system of India is renowned around the globe. 

It is time for India to fill up the existing lacunas in the system of judicature and to bring the legal system to its epitome. Merely ensuring a provision within the books of Law is not enough, the system must look after that a proper performance of such provisions and principles is also seen in practical life.

Footnotes

[1]Constitution of India

[2] Mrs. KalyaniBhaskar v/s Mrs M. S Sampoornam (2007) 2 SCC 258

[3]ZahiraHabibullah Sheikh and Ors v/s The State of Gujarat and Ors (2006) 3 SCC 374

[4]A Fair Trial in the Criminal Justice System- article- Legal Services India

[5]Mohd. Khalid v/s State of West Bengal (2002) 7 SCC 334 (366)

[6]Dastane v/s Shivde AIR 2001 SC 2028 (2032)

[7]Section 300 of Code of Criminal Procedure, 1973

[8]Pritam Singh v/s State of Punjab AIR 1956 SC 415

[9]State of Maharashtra v/s Praful Desai AIR 2003 SC 2053

[10]Law Commission’s 41^st Report, para 24.84

[11]Mc Pherson v/s Mc Pherson AIR 1936 PC 246 (250)

[12]Law Commission’s 41^st Report; para 24.9

This article has been contributed by Nistha Savar, a student at 5th year B.L.S LL.B.