Concept of Fair Trail

SARDAR PATEL SUBHARTI INSTITUTE OF
LAW
PROJECT ON: -
CONCEPT OF FAIR TRIAL & IT’S ESSENTIAL
ELEMENTS IN CRIMINAL JUSTICE SYSTEM
SUBJECT: COMPARATIVE CRIMINAL PROCEDURE;
COMMON LAW & CIVIL LAW SYSTEM
SUBMMITED TO SUBMITTED BY
Dr. SARIKA TYAGI AREEF MOHAMMED
(Associate Professor ) (LLM. 1ST YEAR 2nd Semester)
(2022)
1 | P a g e “CONCEPT OF FAIR TRIAL & IT’S ESSENTIAL ELEMENTS IN CRIMINAL JUSTICE SYSTEM”
ACKNOWLEDGEMENT
At the very outset, I would like to pay thanks to the almighty God. It gives me
immense pleasure to acknowledge and pay thanks to the persons who helped me throughout
the course of my work. I am really thankful to the subject teacher Dr. SARIKA TYAGI
ma’am (Associate Professor [LAW])” who has given me this topic (“CONCEPT OF FAIR
TRIAL & IT’S ESSENTIAL ELEMENTS IN CRIMINAL JUSTICE SYSTEM”) of high
relevance under who’s learned and scholarly guidance the present work has been completed.
she helped me in a passive way, gave me moral support and guided me indifferent matters
regarding the topic. she had been very kind and patient while suggesting me the outlines of
this Project and correcting my doubts.
I thank her for her overall support, constructive suggestions which have always been
soothing and had desired effects, hence it my duty to express my gratitude for her constant
support and encouragement.
I want to pay my sincere thanks to our Dean/Principal “Prof. (Dr.) VAIBHAV

GOEL BHARTIYA” Sir of Sardar Patel Subharti Institute of Law, Swami Vivekananda
Subharti University. Last but not the least, my thanks to all who have helped me directly or
indirectly in the completion of my work.
AREEF MOHAMMED
Table of Contents
1. INTRODUCTION………………………………………………………………………… 4
2. CONCEPT OF A FAIR TRIAL…………………………………………………………....6
3. GLIMPSES OF FAIR TRIAL UNDER THE CRIMINAL PROCEDURE CODE, 1973…6
 ADVERSARY TRIAL SYSTEM……………………………………………………..6
 TRIALS………………………………………………………………………………..7
 PRESUMPTION OF INNOCENCE…………………………………………………..8
 INDEPENDENT, IMPARTIAL AND COMPETENT JUDGES……………………..9
 VENUE OF TRIAL AND PUBLIC HEARING……………………………………..10
 KNOWLEDGE OF THE ACCUSATION…………………………………………...11
 TRIAL IN THE PRESENCE OF THE ACCUSED………………………………….11
 EVIDENCE TO BE TAKEN IN THE PRESENCE OF THE ACCUSED…………..12
 CROSS-EXAMINE PROSECUTION WITNESSES………………………………...13
 EXPEDITIOUS TRIAL………………………………………………………………14
 PROHIBITION ON DOUBLE JEOPARDY (NE BIS IN IDEM) …………………..15
 AID OF COUNSEL…………………………………………………………………..16
4. ROLE OF DEFENCE COUNSEL AND FAIR TRIAL…………………………………..18

5. THE DOCTRINE OF “AUTREFOIS CONVICT” AND “AUTREFOIS ACQUIT” ……20
6. THE SUPREME COURT GUIDELINES FOR A FAIR TRIAL FOR THE ACCUSED...21
7. CONCLUSION & SUGGESTION……………………………………………………......22
CONCEPT OF FAIR TRIAL & IT’S ESSENTIAL ELEMENTS IN

CRIMINAL JUSTICE SYSTEM
"Anyone can be falsely accused of a crime. Everyone accused of a crime
deserves a fair trial."
-John
Garamendi
INTRODUCTION
“Lex uno ore omnes alloquitur” which means that everyone is equal before the eyes of the
law which is an important principle which forms the basis of judicial proceedings across the
world. The law treats everyone equally and this principle is enshrined in various provisions of
the Indian Constitution. Article 14 of the Indian Constitution exclusively deals with the Right
to Equality. Trials are an indispensable part of any proceeding. Conducting fair trails is an
important aspect of the law which ensures equality.
The right to a fair trial is a norm of international human rights law and also adopted by many
countries in their procedural law.1 It is designed to protect individuals from the unlawful and
arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent of
which are the right to life and liberty of the person. The concept of fair trial is based on the
basic principles of natural justice. Though the form and practice of the principles of natural
justice may vary from system to system on the basis of prevailing conditions of the society
concerned. The formal account of the concept of fair trial has been accepted as human rights
jurisprudence in the Universal Declaration of Human Rights, 1948 (hereinafter as UDHR).
The major features of fair criminal trial are preserved in Article 10 and 11 of the UDHR. 2
1
Countries like U.S.A., Canada, U.K., India have adopted this norm and it is enshrined in their Constitution. The
Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets
forth rights of accused person in relation to fair criminal trial. Section 11 of the Canadian Charter of Rights and
Freedoms, which is part of the Canadian Constitution’s Charter of Rights, protects a person's basic legal rights
in criminal prosecution. Article 6 of the European Convention on Human Rights also provides detailed right to a
fair trial, which is discussed hereinafter.
2
Universal Declaration of Human Rights was adopted by the General Assembly on December 10, 1948. Article
10 of UDHR provides that “everyone is entitled in full equality to fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations of any criminal charge against him.” Article
11 extends the rights conferred by Article 10 and states that “everyone charged with a penal offence has the
right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.”
Article 14 of the International Covenant on Civil and Political Rights (hereinafter as ICCPR) 3
reaffirmed the objects of UDHR and provides that
“Everyone shall be entitled to a fair and public hearing by a competent, independent

and impartial tribunal established by law.”
The standards against which a trial is to be assessed in terms of fairness are numerous,
complex, and constantly evolving. They may constitute binding obligations that are included
in human rights treaties to which the state is a party. But they may also be found in
documents which, though not formally binding, can be taken to express the direction in which
the law is evolving.4 As far as Indian legal system is concerned, the international promise of
fair trial is very much reflected in its constitutional scheme as well as its procedural law.
Indian judiciary has also highlighted the pivotal role of fair trial in catena of cases. In Zahira
Habibullah Sheikh and ors v. State of Gujrat and ors 5
the Supreme Court of India
observed the evolving horizons of fair trial and stated that the principle of fair trial now
informs and energizes many areas of the law. It is reflected in numerous rules and practices.
It is a constant, ongoing development process continually adopted to new and changing
circumstances and exigencies of the situations, peculiar at times and related to the nature of
crime, person involved, directly or operating behind, social impart and societal needs and
even so many powerful balancing factors which may come in the way of administration of
criminal justice. This article proposes to critically examine various components of fair
criminal trial in the light of Indian criminal justice system. To achieve this end, the author
will discuss relevant provisions of criminal procedure as well as various case laws. Lastly,
this article will also throw light on the role of the defence counsel in relation to the
enforcement of these basic guarantees.
 Concept of a fair trial
The concept of a fair trial is not just a right provided in our country but it is also guaranteed
by various other legislations all over the world. Article 6 of the European Convention on
3
International Covenant on Civil and Political Rights, UN General Assembly resolution 2200A (XXI),
December16, 1966, entered into force March 23, 1976. http://www2.ohchr.org/english/law/pdf/ccpr.pdf
4
For example, India is not a signatory of the ‘Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment’, (UN General Assembly resolution 39/46, December 10, 1984, entered
into force June 26, 1987) but there are many provisions in Criminal Procedure Code, 1973 which tacitly
affirmed the objects of the said Convention
5
MANU/SC/1344/2006
Human Rights deals with the Right to a fair trial. According to this Article, everyone is
entitled to a fair and public hearing within a reasonable time. The trial must be conducted by
an independent and impartial tribunal established by law. The African Charter of Human
Rights protects the dignity of humans and prevents exploitation under Article 5. Article 6 of
the African Charter of Human Rights guarantees individual liberty and security to a person.
The right to a fair trial is guaranteed under Article 7 which includes various rights like:
 Right to appeal to the competent jurisdiction.
 Right to defence.
 Right to be tried.
 Right to be presumed innocent until proven otherwise.
Article 14 of the International Convention on Civil and Political Rights (ICCPR) guarantees
the right to a fair trial and Article 16 provides a right to recognition everywhere as a person
before the law. Article 10 of the Universal Declaration of Human Rights (UDHR), which
guarantees the right to a fair trial. The provisions related to a fair trial in the International
Convention on Civil and Political Rights (ICCPR) is more exhaustive and detailed than the
provisions in the Universal Declaration of Human Rights (UDHR).
 GLIMPSES OF FAIR TRIAL UNDER THE CRIMINAL

PROCEDURE CODE, 1973
 Adversary trial system
The system adopted by the Criminal Procedure Code, 1973 (hereinafter referred as the Code)
is the adversary system based on the accusatorial method. In adversarial system responsibility
for the production of evidence is placed on the opposing party that is prosecutions with the
judge acting as a neutral referee between the parties. By contrast, in inquisitorial trial system
responsibility for the production of evidence at trial is the job of the trial judge and it is the
trial judge who decides which witnesses will be called at trial and who does most of the
questioning of witnesses. The adversary system is more or less based on the notion of
reconciliation of public and private interests, that is public interest in punishing the
wrongdoer and prevents him to commit more crimes and private interest in preventing the
wrongful convictions and protect his life and personal liberty. This system of criminal trial
assumes that the state, on one hand, by using its investigative agencies and government
counsels will prosecute the wrongdoer who, on the other hand, will also take recourse of best
counsels to challenge and counter the evidences of the prosecution. 6 But if we take a close
look of the Code then we will find that there are some provisions which negate the strict
adherence of the adversarial trial system.7 In Himanshu Singh Sabharwa v. State of M.P.
and Ors.8 the apex court observed that if fair trial envisaged under the Code is not imparted
to the parties and court has reasons to believe that prosecuting agency or prosecutor is not
acting in the requisite manner the court can exercise its power under section 311 of the Code
or under section 165 of the Indian Evidence Act, 1872 to call in for the material witness and
procure the relevant documents so as to sub serve the cause of justice. Though the concept of
adversary trial system is diluted in the Code but still this system is praised not only because
of the protection it accords the accused but also because its competitive style of presenting
evidence and argument is thought to produce a more accurate result than an inquisitorial
system where the judge monopolizes evidence taking.9 The judiciary has also advocated the
role of presiding judge as a participant in the trial rather than a mere spectator in order to be
an effective instrument in dispense of justice.10
 Trials
Trials are an inevitable aspect to bring out justice. Trials have to be conducted properly
following all the procedures and steps so that it would be fair and free from influences. There
is no proper definition of the term trial in the Code of Criminal Procedure,1973. Trials are an
examination of offence by the judicial bodies which have jurisdiction over it. Section 225 of
the Code of Criminal Procedure,1973 mandates that in every trial before the Court of Session,
the Public Prosecutor will conduct the prosecution. Section 304 of the Code of Criminal
Procedure,1973 deals provides that it is the duty of the State to provide legal assistance to an
accused if the Court feels that the accused has no sufficient means to appoint a pleader for his
defence. The Court itself will appoint a pleader in that case at the expense of the State. This
6
K.N.C. Pillai (ed.), R.V. Kelkar’s Criminal Procedure, at 336 (5 th edn.).
7
Provisions which show departure from the adversary trial system are sections 228 and 240 which suggest that
charge against the accused is to be framed by the court and not by the prosecution
8
MANU/SC/1193/2008.
9
Encyclopaedia of Crime and Justice (2 nd edn.) Vol. 1 at 25.
10
Ram chander v. State of Haryana (1981) 3 SCC 191.
provision ensures that the trial is not biased as there is equal representation from both sides.
The High Court with the previous approval of the State Government makes rules under
various aspects for:
 The mode of selecting pleaders for defence;
 The facilities to be allowed to such pleaders by the Courts;
 The fee which is payable to such pleaders by the Government.
 Presumption of innocence
The principle that the accused person is presumed to be innocent unless his guilt is proved
beyond reasonable doubt is of cardinal importance in the administration of justice. 11 This
notion is incorporated as a right of accused person under many Conventions.12 Actually this
principle is based on legal adage that it is better that ten criminals escape than that one
innocent person is wrongfully convicted. This principle was recognised by the United States
(hereinafter as US) way back in 1895 in the case of Coffin v. United States13 that ‘the
principle that there is a presumption of innocence in favour of the accused is the undoubted
law, axiomatic and elementary, and its enforcement lies at the foundation of the
administration of our criminal law...’ It is worth noting that the US Supreme Court has raised
the presumption of innocence to the level of a fundamental right by reading it into the ‘due
process’ clause. As a basic component of the right to a fair trial, the presumption of
innocence, inter alia, means that the burden of proof in a criminal trial lies on the prosecution
and that the accused has the benefit of doubt. 14 This presumption is seen to flow from the
11
Babu Singh v. State of Punjab (1964) 1 Cri. LJ 566 at 572
12
For example, article 14(2) of the ICCPR states that every person charged with a criminal offence shall have
the right to be presumed innocent until proved guilty according to law. Article 11 of the UDHR also states that
everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to
law in a public trial at which they have had all the guarantees necessary for their defence. Article 6(2) of the
European Convention on Human Rights (hereinafter as ECHR) provides that everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law. American Convention on Human
Rights (hereinafter as ACHR) also states the same principle in article 8(2) that every person accused of a
criminal offence has the right to be presumed innocent so long as his guilt has not been proven according to
law.
13
156 U.S. 432 (1895)
14
But strict liability offences are exception to this principle where the burden of proof is shifted on the accused
person and the prosecution is required only to prove that the accused has committed the actus reus of a
particular offence. In India, there are many welfare legislations have been enacted (e.g., The Prevention of
Food Adulteration Act 1954, Essential Commodities Act 1955, Income Tax Act 1961) which aim to curb
economic offences by excluding the adherence of means rea and in these specific cases the burden of proving
innocence is on the accused person
Latin legal principle that “ei incumbit probatio qui dicit, non qui negat” that is the burden of
proof rests on who asserts, not on who denies. The presumption of innocence is in fact a legal
instrument created by the law to favour the accused based on the legal inference that most
people are not criminals. The presumption means: With respect to the critical facts of the case
- whether the crime charged was committed and whether the defendant was the person who
committed the crime - the state has the entire burden of proof. With respect to the critical
facts of the case, the defendant does not have any burden of proof whatsoever. The defendant
does not have to testify, call witnesses or present any other evidence, and if the defendant
elects not to testify or present evidence, this decision cannot be used against him. 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.15
In Kali Ram v. State of H.P.16the Supreme Court observed “it is no doubt true that wrongful
acquittals are undesirable and shake the confidence of the people in the judicial system, much
worse; however, is the wrongful conviction of an innocent person. The consequences of the
conviction of an innocent person are far more serious and its reverberations cannot be felt in a
civilized society.” It is the duty of the prosecutor and defence 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 and competent judges
The basic institutional framework enabling the enjoyment of the right to a fair trial is that
proceedings in any criminal case are to be conducted by a competent, independent and
impartial court. Independence presupposes a separation of powers in which the judiciary is
institutionally protected from undue influence by or interference from the executive branch.17
15
http://en.wikipedia.org/wiki/presumption_of_innocence (accessed on 11-12- 09)
16
1973 SCC (Cri) 1048 at 1061. Though in the same year in a previous case of Shivaji Sahabrao Bobade v. State
of Maharashtra, 1973 SCC (Cri) 1033
17
Though the appointments of the sessions judges and judicial magistrates are made by the state government
in consultation with the high court but once the first appointment is made by the government, the judge or
magistrate thereafter works only under the direct control and supervision of the high court and not of the
government. So, in this way the independence in the subordinate level of judiciary is protected. Article 50 of
the Indian Constitution has also incorporated the principle of separation of powers and states that the
executive branch should be separated from judiciary.
The rationale of this provision is to avoid the arbitrariness and bias that would potentially
arise if criminal charges were to be decided on by a political body or an administrative
agency. In a criminal trial, as the state is the prosecuting party and the investigating
machinery is also limb of the state, it is of utmost significance and importance that the
judiciary is unchained of all suspicion of executive influence and control, direct or indirect. In
this regard section 6 of the Code is relevant which separates courts of Executive Magistrates
from the courts of Judicial Magistrates. Article 50 of the Indian Constitution also imposes
similar duty on the state to take steps to separate the judiciary from the executive. Impartiality
refers to the conduct of the judge. Bias is the decisive factor for ascertaining a court’s
impartiality. It can, thus, be prima facie called in question when a judge has taken part in the
proceeding in some prior capacity or when he has a personal stake in the proceedings. But
this presumption is taken away by section 479 of the Code 18, which prohibits trial of a case by
a judge or magistrate in which he is a party or otherwise personally interested.
 Venue of trial and public hearing
Fair trial also requires public hearing in an open court. Article 14(1) of the ICCPR also
guarantees the right to a public hearing, as one of the essential elements of the concept of a
fair trial. 19
It is a right not belonging to the parties only, but also to the general public in a
democratic society. The right to a public hearing means that the hearing should as a rule is
conducted orally and publicly, without a specific request by the parties to that effect. The
court is, inter alia, obliged to make information about the time and venue of the public
hearing available and to provide adequate facilities for attendance by interested members of
the public, within reasonable limits. 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.20 Section 327 of the Code makes provision for
open courts for public hearing but it also gives discretion to the presiding judge or magistrate
that if he thinks fit, he can deny the access of the public generally or any particular person to
the court. The provisions regarding the venue or place of inquiry or trial are contained in
sections 177 to 189 of the Code. It is general rule that every offence is to be inquired into or
18
Section 479 provides that “no judge or magistrate shall, except with the permission of the court to which an
appeal lies from his court, try or commit for trial any case to or in which he is a party, or personally interested,
and no judge or magistrate shall hear an appeal from any judgment or order passed or made by himself.”
19
But there are some exceptions to this rule provided under article 14(1
20
http://www.humanrightsfirst.org/pubs/descriptions/fair_trial.pdf
tried by a court within whose local jurisdiction it was committed. Trial at any other distant
place would generally mean hardship to the parties in the production of evidence and it would
also adversely affect the defence preparation. In the case of Naresh Sridhar Mirajkar v.
State of Maharashtra21 the apex court observed that the public confidence in the
administration of justice is of such great significance that there can be no two opinions on the
broad proposition that in discharging their functions as judicial tribunals, courts must
generally hear causes in open court and must permit public admission to the court.
 Knowledge of the accusation
It is also one of the attributes of the fair trial that the accused person is given adequate
opportunity22 to defend himself. But this opportunity will have no meaning if the accused
person is not informed of the accusation against him. But the Code considered the value of
this object and provides under many provisions23 in plain words that when an accused person
is brought before the court for trial, the particulars of the offence of which he is accused shall
be stated to him. In case of serious offences, the court is required to frame in writing a formal
charge and then read and explain the charge to the accused person.24
 Trial in the presence of the accused
The general rule in criminal cases is that all inquiries and trials should be conducted in the
presence of the accused person. The underlying principle behind this is that in a criminal trial
the court should not proceed ex parte against the accused person. It is also necessary for the
reason that it facilitates the accused to understand properly the prosecution case and to know
the witnesses against him so that he can check their truthfulness in a later stage. Though the
Code does not explicitly provide for mandatory presence of the accused in the trial 25 but it
21
AIR 1967SC 1 at 8
22
Article 14(3) (b) of the ICCPR provides that in the determination of any criminal charge against him or her
everyone is entitled “to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing.” Article 6(3)(b) of the ECHR and article 8(2)(c) of the ACHR
also provide that every person accused of a criminal offence has a right “to have adequate time and facilities
for the preparation of his defence”. What constitutes “adequate” time will depend on the nature of the
proceedings and the factual circumstances of a case. Factors to be taken into account include the complexity
of a case, the defendant's access to evidence, the time limits provided for in domestic law for certain actions in
the proceedings, etc.
23
Ss. 228(2), 240(2), 246(2), 251 of the Code
24
Supra note 6 at 340.
can be indirectly inferred from the provisions which allow the court to dispense with the
personal presence of the accused person under certain circumstances. 26
In the case of H.R. Industries v. State of Kerala 27 the Kerala High Court very beautifully
stated that the circumstances in which the personal presence of the accused person could be
done away. It was opined that:
“In cases which are grievous in nature involving moral turpitude, personal attendance
is the rule. But in cases which are technical in nature, which do not involve moral
turpitude and where the sentence is only fine, exemption should be the rule. The
courts should insist upon the appearance of the accused only when it is his interest to
appear or when the court feels that his presence is necessary for effective disposal of
the case. When the accused are women labourers, wage earners and other busy men,
court should as a rule grant exemption from personal attendance. Court should see
that undue harassment is not caused to the accused appearing before the court.”
 Evidence to be taken in the presence of the accused
As a logical corollary of sections 228, 240, 246 and 251 (where the particulars of the offence
have to be explained to the accused person) it is also imperative that in a trial the evidence
should be taken in the presence of the accused person. Section 273 of the Code is significant
in this regard which provides that all evidence taken in the course of the trial shall be taken in
the presence of the accused. This section provides for exception to this rule that if the
personal attendance of the accused is dispensed with the evidence shall be taken in the
presence of his pleader.28 The right created by this section is further supplemented by section
278, which, inter alia provides that whenever the law requires the evidence of a witness to be
read over to him after its completion, the reading shall be done in the presence of the accused,
or of his pleader.
25
Ss. 235(2) and 248(2) which are related to pre-sentence hearing require that the judge shall hear the accused
on the question of sentence before passing the sentence provide for the presence of the accused
26
Ss. 205(1), 273 and 317 of the Code. Section 205(1) provides that “whenever a magistrate issues summons,
he may, if he sees reasons to do, dispense with the personal attendance of the accused and permit him to
appear by his pleader.”
27
1973 Cri LJ 262 (ker) at 263.
28
As provided under ss. 205, 293, 299 & 317 of the Code.
These provisions enable the accused person to prepare his arguments for rebuttal of such
evidences.
If any evidence is given in a language not understood by the accused person, the object of
section 273 will not be fulfilled; therefore, to avoid this difficulty section 279 casts a
mandatory duty on the court that whenever any evidence is given in any language not
understood by the accused, it shall be interpreted to him in open court in a language
understood by him. But non-compliance with this provision will be considered as a mere
irregularity not vitiating the trial if there was no prejudice or injustice caused to the accused
person.
 Cross-examine prosecution witnesses
Article 14(3)(e) of the ICCPR29 states that in the determination of any criminal charge
against the accused, he is entitled to examine, or has examined, the witnesses against him and
to obtain the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him. This mandates that the parties be equally treated with
respect to the introduction of evidences by means of interrogation of witnesses. The
prosecution must inform the defence of the witnesses it intends to call at trial within a
reasonable time prior to the trial so that the defendant may have sufficient time to prepare
his/her defence. Though, in adversarial trial system, the burden of proving the guilt is entirely
on the prosecution and the law does not call for the accused to lead evidence to prove his
innocence, yet the accused is given a right to disprove the prosecution case or to prove
special defence available to him. The refusal without any legal justification by a magistrate to
issue process to the witnesses named by the accused person was good enough to vitiate the
trial.
In Badri v. State of Rajasthan 30, the court held that where a prosecution witness was
not allowed to be cross examined by the defence on a material point with reference to his
earlier statement made before the police, his evidence stands untested by cross-examination
and cannot be accepted as corroborating his previous statement.
29
See supra note 3.
30
AIR 1976 SC 560
 Expeditious trial
Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed trial
defeats the objective of the re-socialization of the offenders too. Delayed justice leads to
unnecessary harassment. Section 309(1) gives directions to the courts with a view to have
speedy trials and quick disposals.31 Though this feature is recognised as an element of fair
trial but the real problem is how to make it a reality in actual practice where millions of cases
are pending before the subordinate courts for disposal.
In Hussainara Khatoon (IV) v. State of Bihar 32 this court declared that speedy trial
is an essential ingredient of ‘reasonable just and fair’ procedure guaranteed by article 21 and
it is the constitutional obligation of the state to set up such a procedure as would ensure
speedy trial to the accused. The state cannot avoid its constitutional obligation by pleading
financial or administrative inadequacy. As the guardian of the fundamental rights of the
people, it is constitutional obligation of this court to issue necessary directions to the State for
taking positive action to achieve this constitutional mandate. In Motilal Saraf v. State of J
and K.33 the Supreme Court explained the meaning and relevance of speedy trial and said
that the concept of speedy trial is an integral part of article 21 of the Constitution. The right to
speedy trial begins with actual restraint imposed by arrest and consequent incarceration, and
continues at all stages so that any possible prejudice that may result from impressible and
avoidable delay from the time of commission of the offence till its final disposal, can be
prevented.
31
Section 309 directs that every inquiry or trial proceeding shall be held as expeditiously as possible. Clause (1)
provides that when the examination of witnesses has once begun, the same shall be continued from day to
day until all the witnesses in attendance have been examined. The court, after recording its reason, may
adjourn the same beyond the prescribed day. For detailed discussion see B.L. Arora, ‘Law of Speedy Trial in
India’, (Universal Law Publishing, Delhi, 2006)
32
(1980) 1 SCC 98 at 107.
33
(2007) 1 SCC (Cri) 180.
 Prohibition on double jeopardy (ne bis in idem)
The concept of double jeopardy is based on the doctrine of ‘autrefois acquit’ and
‘autrefois convict’ which mean that if a person is tried and acquitted or convicted of an
offence he cannot be tried again for the same offence or on the same facts for any other
offence. Article 14(7) of the ICCPR also provides that;
“No one shall be liable to be tried or punished again for an offence for which he has
already been finally convicted or acquitted in accordance with the law and penal procedure of
each country”.34
This concept is embodied in section 300 of the Code which provides that persons once
convicted or acquitted not to be tried for the same offence or on the same facts for any other
offence.35 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 offence. Plea of double jeopardy
is not applicable in case the proceedings for which the accused is being tried are distinct and
separate from the offence for which the accused has already been tried and convicted.36 If we
compare the constitutional position of India and America on double jeopardy then we will
make out that the protection under article 20(2) of our Constitution is narrower than that
given in American constitution.37 Under the American Constitution the protection against
double jeopardy is given for the second prosecution for the same offence irrespective of
whether an accused was acquitted or convicted in the first trial. But under article 20(2) the
protection against double punishment is given only when the accused has not only been
‘prosecuted’ but also ‘punished’, and is sought to be prosecuted second time for the same
offence.38
 Aid of counsel
34
See also article 20 of the ICC Statute. Note that article 8(4) of the American Convention
35
Similar right is also provided by the Constitution under article 20(2) but it only protects the person who is
prosecuted and punished for the same offence and does not include previous acquittal as in case of section
300 of the Code which considered both situations.
36
Jitendra Panchal v. Intelligence Officer NCB & Ors. 2009 (2) SCALE 202.
37
Fifth Amendment to the American Constitution provides that “no person shall be twice put in jeopardy of life
or limb.”
38
Basu, D.D., Commentary on the Constitution of India, (8 th edn.) at 2973.
Lawyers in criminal courts are necessities, not luxuries. The requirement of fair trial involves
two things: a) an opportunity to the accused to secure a counsel of his own choice, and b) the
duty of the state to provide a counsel to the accused in certain cases. The right is recognised
because of the obvious fact that ordinarily an accused person does not have legal knowledge
and the professional skill to defend him before a court of law where in the prosecution is
conducted by a competent and experienced prosecutor. 39 In U.S.A., the 6th Amendment to the
Constitution provides, inter alia, in all criminal prosecutions, the accused shall enjoy the right
to have the assistance of counsel for his defence. In Gideon v. Wainwright40 the Supreme
Court of United States held that the 6th Amendment’s guarantee of counsel to indigent
defendants was so fundamental and essential to a fair trial that the due process clause
required states to provide counsel to all indigent defendants in felony cases…
In Powell v. Alabamma41 Justice Sutherland of the Supreme Court of United States gave
classic expression to the plight of the unguided individual entangled in a criminal process.
The passage is worth to cite here. He said “even the intelligent and educated layman has
small or sometimes no skill in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is good or bad. He is unfamiliar
with the rules of evidence. Left without the aid of the counsel he may be put on trial without a
proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue
or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his
defence. He requires the guiding hand of counsel at every stage of proceedings against him.
Without it, though he is not guilty, he faces the danger of conviction because he does not
know how to establish his innocence…”42
In India, right to counsel is recognised as fundamental right of an arrested person under

article 22(1) which provides, inter alia, no person shall be denied the right to consult, and to
be defended by, a legal practitioner of his choice. Sections 303 and 304 of the Code are
manifestation of this constitutional mandate. 43 In Maneka Gandhi v. Union of India 44 it was
held that the right of an indigent person to be provided with a lawyer at state’s expenses is an
39
40
372 U.S. 335 (1963)
41
287 U.S. 45 (1932)
42
Id. at 69
43
Section 303 provides a right to accused person to be defended by a pleader of his choice, whereas section
304 casts a duty on the State to provide legal aid to indigent persons in a trial before the Court of Sessions.
44
AIR 1978 SC 597.
essential ingredient of article 21, for no procedure can be just and fair which does not make
available legal services to an accused person who is too poor to pay for a lawyer. In this
context a difference is to be noted as between article 21 of the Constitution and section 304 of
the Code. Article 21 as interpreted by the Supreme Court in Khatri v. State of Bihar45 the
mandatory obligation to provide free legal aid arise in every criminal case against an indigent
accused, whether the trial is before a Magistrate or Sessions Judge. Under section 304 of the
Code, the imperative duty arises only if the trial is before the Sessions Court, while in the
cases before the Magistrate, the duty would arise only if the State Government issues a
notification to that effect. If we take literal meaning of section 304, no conviction by a
Magistrate can be quashed for failure to provide free legal assistance to the indigent person.
But the M.P. High Court took the other way and set aside a conviction by a Magistrate made
upon evidence taken without offering legal representation to the accused. 46 In this way the
court tried to remove the anomaly which is created by the Legislature.
Further, article 39-A was also inserted in the Constitution as per Constitution (42nd
Amendment) Act, 1976, which requires that the state should pass suitable legislations for
promoting and providing free legal aid. This article also emphasizes that free legal service is
an unalienable element of ‘reasonable, fair and just’ procedure for without it a person
suffering from economic or other disabilities would be deprived of the opportunity for
securing justice. To fulfil this constitutional mandate the Parliament enacted Legal Services
Authorities Act, 1987. Section 12 of the said Act provides legal services to the persons
specified in it. Let it not forgotten that if law is not only to speak justice but also deliver
justice, legal aid is absolute imperative. Legal aid is really nothing else but equal justice in
action. It is in fact the delivery system of social justice. In Suk Das and Ors. v. Union
Territory of Arunachal Pradesh47, the court strengthen the need for legal aid and held that
“free legal assistance at state cost is a fundamental right of a person accused of an offence
which may involve jeopardy to his life or personal liberty. The exercise of this fundamental
right is not conditional upon the accused applying for free legal assistance so that if he does
not make an application for free legal assistance the trial may lawfully proceed without
adequate legal representation being afforded to him. On the other hand, the Magistrate or the
Sessions Judge before whom the accused appears is under an obligation to inform the accused
that if he is unable to engage the services of a lawyer on account of poverty or is entitled to
45
AIR 1981 SC 928.
46
Nekram v. State of M.P., (1988) Cr LJ 1010 (MP).
47
AIR 1986 SC 991.
obtain free legal services at the cost of the State. The conviction reached without informing
the accused that they were entitled to free legal assistance and inquiring from them whether
they wanted a lawyer to be provided to them at State cost which resulted in the accused
remaining unrepresented by a lawyer in the trial is clearly a violation of the fundamental right
of the accused under article 21 and the trial must be held to be vitiated on account of a fatal
constitutional infirmity”.48
 ROLE OF DEFENCE COUNSEL AND FAIR TRIAL
In the eyes of many people, the criminal defence lawyer represents all that is best about the
legal profession; in the eyes of others, all that is worst. Defence counsel is the innocent
accuser’s last shelter against the horror of wrongful conviction or we can say that the
defender is the only friend that an accused person has left in the world. He is also the
accuser’s chief instrument for defeating justice and getting away with crime. It sounds absurd
or seems to contradict itself, but is in fact true that the defender is at once the indispensable
condition for justice and the enemy of justice. An advocate, in the discharge of his duty,
knows but one person in the entire world, and that person is his client. To save that client by
all means and expedients and at all hazards and costs to other persons, and, amongst them, to
himself, is his first and only duty.49 The system of criminal justice, adopted by our Code, pits
prosecution against Défense and requires undivided partisanship. Because the prosecution
will present the state’s case, the defendant must concentrate entirely on the accused, and
present it as forcefully as possible.
The scope of counsel’s participation in the pre-trial process, particularly before the
commencement of judicial screenings is however the focal point of a strong controversy. The
conflict between the individual rights and demand of society for security, which
administration of criminal justice aims to resolve, is perhaps more apparent at this period than
at any other stage in criminal process. 50 It is noteworthy that unlike the other stages of the
criminal process, this initial period which intervenes between the invocation of the process
against a person and his production before a judicial officer, is marked by the absence of a
disinterested third party to ensure fairness in procedure and justice and impartiality in
48
Id at 993.
49
Encyclopaedia of Crime and Justice (2 nd edn.) Vol. 3 at 278.
50
Prasannan, R., ‘Counsel in the Criminal Process’, 10 Journal of the Indian Law Institute, 1968 at 645.
decision making. The vesting of the function of the decision making in the impartial judge,
who presides over and supervises the proceeding, is one of the principal safeguards to the
accused against the arbitrary and oppressive action. But during this initial stage, this
triangular situation is notably non-existent. The investigating officers on whom there is a
direct pressure to ‘solve’ crimes and ‘to bring criminal to justice’ and hence whose
impartiality is subjected to the greatest stress. In this situation the presence of counsel might
encourage the accused person.51 Secondly, in bail matters an accused who is at liberty has
always the advantage to prepare and organize his defences by locating and conferring with
witnesses as well as by collecting evidence for his favour. A lawyer is sine qua non to get the
bail and assistance of a client who is at liberty also helps the counsel to prepare his case. At
trial stage, the effective participation by counsel might significantly reduce the drop in the
number between the prosecution initiated and the convictions resulted. He can prevent hasty
and oppressive application of the criminal process against the innocent person and can save
him from inconvenience, humiliation and expense which might result from a lengthy and
protracted trial. During trial stage the counsel has a duty to ensure that full disclosure is
provided by the prosecutor; that all evidence bearing on the accused's case is disclosed or
produced; that all legal issues bearing on the accused's case are fully explored and properly
adjudicated; that, in particular, all evidence tendered by the prosecution was collected in
accordance with constitutional standards; that all evidence supporting the accused's case is
tendered at trial; that prosecutor’s witnesses are cross-examined; that an accused is convicted
only when the prosecution has satisfied its constitutional burden of proving guilt beyond a
reasonable doubt.52 Défense counsel is professionally bound to advance all arguments
ethically permitted on behalf of the accused, to ensure that the accused is convicted only if
the prosecutor can properly establish guilt. If on the basis of all of the evidence the accused is
convicted it is the duty of the counsel to see that the penalty is proportionate to the gravity of
the offence and to the degree of culpability of the accused, and he may also in pre-sentence
hearing show those conditions which may help the accused to reduce the gravity of
punishment. The appellate process is intended and designed to give a last opportunity to
challenge the methods and policies of the administrators of criminal justice at the earlier
stages, and the legality and fairness of the decision taken by them. There may be a mistaken
identification arising out of the victim’s and the witnesses’ desire for vengeance. The
witnesses may have committed perjury or the police may have made suggestions to them.
51
Id. at 646
52
http://www.ebcindia.com/practicallawyer/index.php?option=com_conten
While these and other similar mistakes of facts may go directly to the innocence of the
defendant, errors in the interpretation and application of the related provision of the law may
also result in grievous injustice. The counsel’s presence at this level is necessary to put before
the appellate court all that is indigence, he relevant to show the errors of law or arbitrariness
of the trial court.53
 THE DOCTRINE OF “AUTREFOIS CONVICT” AND “AUTREFOIS

ACQUIT”
The principle autrefois convict means ‘formerly convicted’ and the principle autrefois acquit
means ‘formerly acquitted’. The same principle is also accepted by the various Australian
courts by the name “issue-estoppel”. Autrefois convict is a defence plea that is followed and
accepted by the common law countries. This plea ensures that no person is convicted twice
for the same offence. This plea will stop the entire proceeding. The concept of double
jeopardy is also prevented by our Indian Constitution. Section 300 of the Code of Criminal
Procedure,1973 provides that the person once convicted or acquitted not to be tried for the
same offence. There are certain exceptions to the above-mentioned rule in subsection (2) and
(4) of Section 300 of the Code of Criminal Procedure,1973. According to this section the
person acquitted or convicted can be tried again if the prior trial was not done by a competent
court. The person acquitted or convicted can be tried again with the consent of the State
Government for any different offence for which a separate charge has been made against the
accused in the formal trial.
 THE SUPREME COURT GUIDELINES FOR A FAIR TRIAL FOR

THE ACCUSED
53
Some guidelines issued by the Supreme Court of India which should be followed by the
police for a for trial of the accused are:
 While arresting or questioning the accused, the police officers should bear a proper
and visible tag stating his name and designation.
 A memo of arrest should be shown and signed by at least one witness while arresting
an accused.
 A person detained by the police for interrogations has the right to inform a relative or
a friend.
 Other guidelines mentioned int he Constitution for the fair trial are:
 All civil cases and criminal cases should be held in an open court.
 The accused should be provided with a lawyer by the state if he/she is unable to
engage a private lawyer.
 The lawyer or an advocate of the accused should be given opportunities to cross-
examine all the prosecution witnesses and to present their own witnesses.
 The judge has to decide matters on the basis of evidences which are presented before
him in the court.
CONCLUSION & SUGGESTION
The Right to get a fair trial is an essential right of every accused. The concept of fair trial
brings confidence in the public and the people start to believe in the judiciary. It is necessary
to follow every above-mentioned aspect in order to ensure that the trial is free from biases.
These rights are not just domestic rights but also the various international conventions
guarantee these rights. Thus, the concept of a fair trial is an essential aspect of every
proceeding.
After analysing different provisions of the Code, it can be submitted that though the system
adopted by the Indian justice administration is adversary in nature but the reflections of
inquisitorial system can also be not negated. The Code provides a balancing approach while
dealing with these two kinds of systems. As far as other basic components of fair trial are
concerned, the adherence of these components can be seen in different provisions of the
Code. But the real issue comes with the implementation part of these provisions. One of the
examples is provision for speedy trial which seeks quick disposal of cases but the truth is that
around 1.7 lakh under trials languishing in jail who are booked for petty offences (though the
total number of under trials are approximately 2.45 lakh) and despite having served a major
part of the prescribed maximum sentence.54 In these circumstances the role of counsel in an
adversary criminal system, which is triangular in nature, is very crucial because in such cases
the prosecution, which represents state, is in a stronger position because it has also the
support of investigating agencies. On the other hand, the accused person can solely rely on
his counsel who, being the last resort for him can save him from the arbitrary and oppressive
action.
“A fair trial is one in which the rules of evidence are honoured, the accused has competent
counsel, and the judge enforces the proper courtroom procedures - a trial in which every
assumption can be challenged.” - Harry Browne
54
One of the most neglected aspects of criminal justice system is the delay in the disposal of the cases and
detention of the poor accused pending trial. It is undesirable that the criminal trial should wait till everybody
concerned has forgotten all about the crime. The facts mentioned above run against the dictum of this court in
Maneka Gandhi Case (see supra note 44) where Justice Krishna Iyer and Justice Bhagwati stressed that the
procedure established by law should be ‘just, fair and reasonable’ and not oppressive and fanciful. Now
obviously procedure prescribed by law for depriving a person of his liberty cannot be reasonable, fair or just
unless that procedure ensures a speedy trial for determination of guilt of such person. Procedural law is
expected to quicken the pace of justice, but often it acts contrary to this purpose.
BIBLIOGRAPHY
STATUTES:
1. THE CINSTITUTION OF INDIA
2. INDIAN PENAL CODE 1860
3. INDIAN EVIDENCE ACT 1872
BOOKS REFERRED.
1. INTRODUCTION TO THE CONSTITUTION OF INDIAN BY D.D BASU 23 RD EDITION.
2. SPEEDY & FAIR TRIAL BY NAYAN JOSHI
3. FAIR TRIAL RIGHT OF ACCUSED EDITED BY RONALD BANAZAK, Sr.
4. THE INDIAN PENAL CODE BY RATANLAL & DHIRAJLAL
5. THE INDIAN EVIDENCE ACT BY V. NAGESWARA RAO
6. INDIAN PENAL CODE (BY M. P. TANDON, SHAILENDER MALIK)
WEDSITES REFERRED
1. https://districts.ecourts.gov.in/sites/default/files/1st%20Topic.pdf
2. http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/
05._criminal_justice_administration/12._fair_trial/et/8179_et_et.pdf
3. http://hrlibrary.umn.edu/research/ZIM%20Principles_And_G.pdf
4. https://academicjournals.org/article/article1379856371_Tiwari.pdf
5. https://blog.ipleaders.in/fair-trial-adversary-system-principles-of-fair-trial/
6. https://blog.ipleaders.in/principal-features-of-a-fair-trial/
7. https://www.topperlearning.com/answer/what-are-the-supreme-court-guidelines-for-a-
fair-trial-for-the-accused/1ofwxoww
8. https://blog.ipleaders.in/principles-fair-trial-assent-rights-accused-person-mere-grass-
wilderness/
9. https://www.lawctopus.com/academike/concept-fair-trial/
10. http://www.lc2.du.ac.in/DATA/fair%20trial%20(Dr.%20Kalpna%20Sharma).pdf

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SARDAR PATEL SUBHARTI INSTITUTE OF

Dr. SARIKA TYAGI AREEF MOHAMMED

(Associate Professor ) (LLM. 1ST YEAR 2nd Semester)

I want to pay my sincere thanks to our Dean/Principal “Prof. (Dr.) VAIBHAV

4. ROLE OF DEFENCE COUNSEL AND FAIR TRIAL…………………………………..18

CONCEPT OF FAIR TRIAL & IT’S ESSENTIAL ELEMENTS IN

“Everyone shall be entitled to a fair and public hearing by a competent, independent

 Concept of a fair trial

 Right to appeal to the competent jurisdiction.

 Right to be presumed innocent until proven otherwise.

 GLIMPSES OF FAIR TRIAL UNDER THE CRIMINAL

 The mode of selecting pleaders for defence;

 The facilities to be allowed to such pleaders by the Courts;

 The fee which is payable to such pleaders by the Government.

 Independent, impartial and competent judges

 Venue of trial and public hearing

 Knowledge of the accusation

 Trial in the presence of the accused

 Evidence to be taken in the presence of the accused

 Cross-examine prosecution witnesses

In India, right to counsel is recognised as fundamental right of an arrested person under

 ROLE OF DEFENCE COUNSEL AND FAIR TRIAL

 THE DOCTRINE OF “AUTREFOIS CONVICT” AND “AUTREFOIS

 THE SUPREME COURT GUIDELINES FOR A FAIR TRIAL FOR

CONCLUSION & SUGGESTION

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