7/24/23, 2:45 PM Principal Features Of A Fair Trial under Indian constitution and Cr.

PC

Principal Features Of A Fair Trial

By Mariya Paliwala - December 22, 2019

Image source - https://bit.ly/2POIorS

This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing
B.A.LLB (Hons) from School of law, SASTRA. This is an exhaustive article which deals
with the various features of a fair trial.

Table of Contents 
1. Introduction
2. Concept of a fair trial
3. Adversary system
4. Trials
5. Presumption of Innocence
6. Independent, Impartial and Competent Judges
7. Venue of Trial
8. Right of the Accused to Know the Accusation
8.0.1. Accused Person to be tried in his Presence
8.0.2. Evidence to be taken in the Presence of Accused
8.0.3. Right of accused person to cross-examine prosecution witnesses and to produce
evidence in defence
8.0.4. Right of the Accused Person to have an Expeditious Trial
9. The doctrine of “Autrefois Convict” and “Autrefois Acquit”
10. Conclusion
11. References

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

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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.

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 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).

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Adversary system
The Court proceedings in the countries which follow common law are adversarial in
nature. The right to equality is protected in this system as both parties have an equal
voice of representation. In this system, the counsels of both the parties defend their
parties and establish the facts which are supporting them. The Judge decides on the
behalf of the facts mentioned, whereas in the inquisitorial system the involvement of
judges are more. The court is actively involved in collecting evidence. In the inquisitorial
system, the judges themselves might conduct the investigation and in certain scenarios,
sometimes it can be biased. The inquisitorial system is mostly used in the civil legal
systems like France and Italy.

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 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:

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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
Presumption of innocence is an important factor to conduct a fair trial as it prevents
wrongful convictions. This presumption of innocence is based on the Blackstone’s ratio,
which is the idea that “It is better that ten guilty persons escape than that one innocent
suffer”. This concept of presumption of innocence is also derived from the Latin term ‘Ei
incumbit probatio qui dicit, non qui negat’, which basically means the burden of proof is
on the one who declares, not on the one who denies. It is the duty of the prosecution to
prove that the accused is guilty with proper evidence beyond any reasonable doubts.

Article 14(2) of the International Convention on Civil and Political Rights also provides
that everyone who is accused is presumed to be innocent as long as it is proved
otherwise. Article 11 of the Universal Declaration of Human Rights, also deals with the
presumption of innocence.

The same principle is also enshrined under Article 6(2) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms.

This principle is also followed in various cases decided by the Indian Courts, in the case
of Dataram Singh v State of Uttar Pradesh, it was held that the individual freedom
cannot be cut off for an infinite period as long as the person is proved guilty. This
freedom can only be affected when the guilt is proved. There are certain provisions in
the Indian Evidence Act like Section 111A which acts as an exception for this
presumption of innocence. According to this Section, if a person has tampered the peace
and security in certain places, or if they commit any offences under Section 121, Section
121 A, Section 122 and Section 123 of the Indian Penal Code, then they are not
presumed to be innocent. Section 121 of the Indian Penal Code deals with the offence of
waging war or planning to war against the Government of India. Section 121A of the
Indian Penal Code punishes the person who conspires to commit the offence of war
against the Government. Section 122 deals with the offence of collecting arms with an
intention to wage war against the Government. Section 123 deals with the offence of
concealing certain facts which would facilitate the waging of war. There is also an
exception to the presumption of innocence in offences like dowry death.

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Click here

Independent, Impartial and Competent Judges

The independence of the judiciary is an indispensable aspect of every fair trial. The
separation of powers protects the independence of the judiciary. The competency of
judges is an important factor that will decide the fate of the judiciary. If the judges
appointed are incompetent then the whole process of trial is damaged. Article 217 of the
Indian Constitution deals with the appointment of the Judges of the High Court.
According to this article, there are various qualifications that have to be followed while
appointing the Judges like,

The Judges of the High Court are appointed by the President after consultation with
the Chief Justice of India.

The person appointed has to be a Citizen of India.

The person must have held a judicial office for at least ten years in India.

The person has to be an advocate of a High Court or of two or more such Courts in
succession for at least ten years.

There were recommendations to form the National Judicial Appointments Commission

under the 99th amendment by bringing in a new Article 124A and the main functions of
the commission would be,

To recommend persons for an appointment for the post of Chief Justice of India and
Judges of various courts in India.

To ensure that the person recommended has all the eligibility and integrity.

To recommend persons for transfer from one Court to another Court.

The Supreme Court struck down the amendment and held it to be unconstitutional and
thus the old collegium system of appointing the Judges was retained. The Supreme
Court later brought in new developments to bring transparency in the collegium system
like the Central Government will not prepare a draft memorandum for judicial
appointment.

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Venue of Trial
The venue of the trial also plays an important role in ensuring the fairness of the trial.
The Court has to be competent to deal with the cases. Section 177 of the Code of
Criminal Procedure,1973 provides that the ordinary place of enquiry or trial would be the
Court within whose local jurisdiction it was committed. Section 178 of the Code of
Criminal Procedure,1973 deals with the place of trial. According to this Section, the
jurisdiction can be changed in certain situations like when it is uncertain in which of
several local areas an offence is completed or when an offence is committed partly in
one place and partly in another place and when an offence is a continuing one. According
to Section 181 of the Code of Criminal Procedure, 1973 sometimes the place of a trial
depends on certain types of offences, for example, offences like kidnapping or abduction
can be tried by the Court where the person was kidnapped or abducted.

Right of the Accused to Know the Accusation

Article 22 of the Indian Constitution provides that no person can be detained in custody
without giving proper information. The Sixth Amendment of the Constitution of the
United States also provides this right of the accused to know the accusation. The
accused should be aware of the reason why he is being detained. Section 50 of the Code
of Criminal Procedure also provides that it is the right of every accused to be informed
about the various grounds of arrest. The police officer has to inform the person of the
various reasons for arrest if the arrest is done without a warrant.

Accused Person to be tried in his Presence

It is necessary for the accused to be tried in his presence, however, there are certain
situations where the magistrate can dispense the attendance after considering relevant
factors. Section 317 of the Code of Criminal Procedure,1973 grants the Magistrate this
power. The Magistrate can only dispense the attendance only if it does not affect the
process of the trial in any manner. This principle is also supported by Article 14 of the
Indian Constitution which guarantees equality.

Evidence to be taken in the Presence of Accused

Section 273 of the Code of Criminal Procedure,1973 provides that the evidence should
be taken in the presence of the accused. This provision should not be followed only in
rare situations like cases relating to the rape of a minor woman. Section 299 of the Code
of Criminal Procedure,1973 provides the conditions to record evidence in the absence of
the accused.

Right of accused person to cross-examine prosecution witnesses

and to produce evidence in defence
The accused person has the right to cross-examine any number of witnesses so that it
would ensure the fairness of the trial. In the case of Mohd. Hussain Julfikar Ali v. The
State (Govt. of NCT) Delhi, the appellant was not provided with an opportunity to cross-
examine the fifty-six witnesses. Only one witness was cross-examined to complete the

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formality. Hence the appellant’s conviction and sentence was set aside for the same
reasons.

Right of the Accused Person to have an Expeditious Trial

The concept of speedy trial increases the public confidence in the judiciary. The concept
of speedy trial is enshrined in Article 21 of the Indian Constitution. In the case of Babu
Singh v State of Uttar Pradesh, it was said that the speedy trial is also part of the fair
trial. In the case of Kartar Singh v State of Punjab, it was declared that the speedy trial
is a part of the right to life and personal liberty. The same principle is also enforced in
various other cases like Husainera Khatoon and others v. Home Secretary, State of Bihar.
The undue delay must be avoided and it must be also ensured that all the proceedings of
the trial are followed properly.

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.

Conclusion
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.

References
https://blog.ipleaders.in/trial-before-a-cour-of-session/

http://devgan.in/crpc/index.php?q=300&a=2

https://www.echr.coe.int/Documents/Convention_ENG.pdf

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