Fair Trial

INDORE INSTITUTE OF LAW
(Affiliated to D.A.V.V. & Bar Council of India)
{{
B.A.LLB. (HONS.)
Project Subject :
Project Topic :
Submitted to :
Submitted by : Avinash Rai
Date-:01/06/2016 Semester : VI

CERTIFICATE
This is to certify that I Avinash Rai has successfully
completed the project on the title “
” for the partial fulfillment of the
DAVV norms under the supervision of Prof.
at Indore Institute Of Law.
Faculty Signature :
Date:

ACKNOWLEDGEMENT
It is not possible to prepare a project report without the assistance and
encouragement of other people. This is certainly an exception. On the very outset
of this project I would like to extend our sincere and heartfelt obligation towards
all the personages who have helped me in this endeavor. Without their active
guidance, help, cooperation and encouragement, we would not have made headway
in the project.
I am thankful to Asst. Prof. .for conscientious guidance and
encouragement to accomplish this assignment. I extend my gratitude to INDORE
INSTITUTE OF LAW for giving me this opportunity. I also acknowledge with a
deep sense of reverence, my gratitude towards my friends and members of my
family who have always supported us morally as well as economically.
Thanking You
Avinash Rai

DECLARATION
I hereby declare that the project titled “ ”
is my original work.
I take full responsibility for any kind of plagiarism.
Signature Of Student :

INTRODUCTION
Fair trial is an integral part of Article 21 of the Constitution and rests on the basic principle of
presumption of innocence. The research paper focuses on the concept of fair trial in India.
International instruments such as the Universal Declaration of Human Rights, International
Covenant on Civil and Political Rights. The right to a fair trial is a norm of international human
rights law and also adopted by many countries in their procedural law. Countries like U.S.A.,
Canada, U.K., and India have adopted this norm and it is enshrined in their Constitution. The
right to a fair trial has been defined in numerous international instruments. The major features of
fair criminal trial are preserved in Universal Declaration of Human Rights, 1948.
Article 10(i)- Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
Article 11(ii)- (1) 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 defense. (2) No one shall be held guilty of any penal offence on account of any
act or omission which did not constitute a penal offence, under national or international law, at
the time when it was committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the penal offence was committed.
Article 14 of the International Covenant on Civil and Political Rights 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. Article 14(2) provides for the presumption
of innocence, and article 14(3) sets out a list of minimum fair trial rights in criminal proceedings.
Article 14(5) establishes the rights of a convicted person to have a higher court review the
conviction or sentence, and article 14(7) prohibits double jeopardy
Section 11 of the Canadian Charter of Rights and Freedoms, protects a person’s basic legal rights
in criminal prosecution.

1
Concept of the fair trail
The concept of fair trial is based on the basic ideology that State and its agencies have the duty to
bring the offenders before the law. In their battle against crime and delinquency, State and its
officers cannot on any account forsake the decency of State behavior and have recourse to extra-
legal methods for the sake of detection of crime and even criminals. Therefore the procedure
adopted by the State must be just, fair and reasonable. The Indian courts have recognized that the
primary object of criminal procedure is to ensure a fair trial of accused persons. Human life
should be valued and a person accused of any offence should not be punished unless he has been
given a fair trial and his guilt has been proved in such trial.
At the present stage of civilization, it has been universally accepted as a human value that a
person accused of any offence should not be punished unless he has been given a fair trial and
his guilt has been proved in such trial. The notion of fair trial, like all other concept incorporating
fairness on reasonableness cannot be explained in absolute terms. Fairness is a relative concept
and therefore fairness in criminal trial could be measured only in relation to the gravity of the
accusation, the time and resources which the society can reasonable afford to spend, the quality
of available resources, the prevailing social values.
1 . S.N. Mishra

Fair Trial Rights
The right to a fair trial has been defined in numerous regional and international human rights
instruments. It is one of the most extensive human rights and all international human rights
instruments enshrine it in more than one article. The right to a fair trial is one of the most
litigated human rights and substantial case law that has been established on the interpretation of
this human right. Despite variations in wording and placement of the various fair trial rights,
international human rights instrument define the right to a fair trial in broadly the same
terms. The aim of the right is to ensure the proper administration of justice. As a minimum the
right to fair trial includes the following fair trial rights in civil and criminal proceedings.
 The right to be heard by a competent, independent and impartial tribunal.
 The right to a public hearing
 The right to be heard within a reasonable time
 The right to counsel
 The right to interpretation
 The right to a trial without undue delay
The right to be heard by a competent
Everyone whose rights are affected or who is accused of any wrongdoing has the right to legal
recourse. Such recourse is only useful if the quality of the administration of justice meets
minimum requirements. In this respect the International Covenant on Civil and Political Rights
and the American Convention on Human Rights clearly require a competent, independent and
impartial tribunal. The right to an independent and impartial tribunal established by law contains
both objective and subjective elements. The objective requirements are mainly institutional,
demanding the separation of powers within the constitutional structure of the country. The
subjective element requires that any semblance of dependence must be avoided by the (members
of the) tribunal. They should avoid any act, attitude or comment which may lead to doubts
among litigants as to the independence of the tribunal. Such avoidance is also part of the
necessary impartiality of the judiciary.
The right to a public hearing

The right to a fair trial is fundamental to the rule of law and to democracy itself. The right
ap2plies to both criminal and civil cases, although certain specific minimum rights set out in
Article 6 apply only in criminal cases. The right to a fair trial is absolute and cannot be
limited. It requires a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. The procedural requirements of a fair hearing might differ
according to the circumstances of the accused. 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. However,
it also permits several exceptions to this general rule under specified circumstances.
The right to be heard within a reasonable time
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. However, it also permits several exceptions to this general
rule under specified circumstances. The publicity of a trial includes both the public nature of the
hearings not, it should be stressed, of other stages in the proceedings and the publicity of the
judgment eventually rendered in a case. It is a right belonging to the parties, but also to the
general public in a democratic society. The right to a public hearing means that the hearing
should as a rule be conducted orally and publicly, without a specific request by the parties to that
effect.
The right to counsel
Right to counsel means a defendant has a right to have the assistance of counsel and if the
defendant cannot afford a lawyer, requires that the government appoint one or pay the
defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right
of trial.
The right to interpretation
The Indian judiciary has time and time again interpreted article 21 of the Indian constitution in
new and innovative ways in order to bring relief to the oppressed. However the Supreme Court
has started to declare rights which are difficult to enforce and may be only be law for namesake.
The Court should take into consideration the enforceability of a right or else it will just remain an
empty promise. The fundamental right to life and personal liberty has become a favorite
provision for the judiciary to experiment with, to redress a variety of injustices and social
wrongs. This has led to some rather impractical rulings by the Supreme Court. Granting a right
2 . www.lawctopus.com

which is never enforced is akin to giving an empty promise. Progress must be tempered with
reality.
The right to a trial without undue delay
In the determination of any criminal charge against him/her, everyone shall be entitled to be tried
without undue delay Article 14(3)(c). This provision has been interpreted to signify the right to a
trial that produces a final judgment and if appropriate a sentence without undue delay. The time
limit begins to run when the suspect accused defendant is informed that the authorities are taking
specific steps to prosecute him. The assessment of what may be considered undue delay will
depend on the circumstances of a case its complexity the conduct of the parties whether the
accused is in detention.
Pre-Trial Rights
The Cr. P.C. entitles an accused of certain rights during the course of any investigation, enquiry
or trial of an offence with which he is charged.
 Right to open trial
 Aid of counsel
 Expeditious trial
 Protection against illegal arrest
 Right to bail
 Right against self-incrimination
Right to open trial
Fair trial also requires public hearing in an open court. The right to a public hearing means that
the hearing should as a rule is conducted orally and publicly without a specific request by the
parties to that effect. A judgment is considered to have been made public either when it was
orally pronounced in court or when it was published, or when it was made public by a
combination of those methods.

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 during disclosure of indecent matter or
when there is likelihood of a disturbance or for any other reasonable cause.
Aid of counsel
The requirement of fair trial involves two thing
a) an opportunity to the accused to secure a counsel of his own choice,
b) the duty of the state to provide a counsel to the accused in certain cases.
The Law Commission of India in its 14th Report has mentioned that free legal aid to persons of
limited means is a service which a Welfare State owes to it citizens. In India right to counsel is
recognized 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.
Expeditious trial
Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed justice leads
to unnecessary harassment. 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 namely, the stage of investigation, inquiry,
trial, appeal and revision. Section 309(1) provides in every inquiry or trial, the proceedings shall
be held as expeditiously as possible and in particular 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.

Protectionagainstillegalarrest
Section 50 provides that any person arrested without warrant shall immediately be informed of
the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick
to see the possibility of crime but they ought to be anxious to avoid mistaking the innocent for
the guilty. The burden is on the police officer to satisfy the court before which the arrest is
challenged that he had reasonable grounds of suspicion.
Right to bail
By virtue of Section 436 the accused can claim bail as a matter of right in cases which have been
shown as boilable offences in the First schedule to the Code. Bail is basically release from
restraint more particularly release from custody of the police. An order of bail gives back to the
accused freedom of his movement on condition that he will appear to take his trial. If the offence
is boilable.
Post-Trial Rights
1. Lawful punishment
Article 20(1) explains that a person can be convicted of an offence only if that act is made
punishable by a law in force. It gives constitutional recognition to the rule that no one can be
convicted except for the violation of a law in force Section 3 of the Criminal Law Amendment
Act 1952 inserted Section 165A in the Indian Penal Code 1860 declaring offering bribe as
punishable. It was held that the accused could not be punished under Section 165A for offering
bribe in 1948. Article 20(1) provides that no person shall be subjected to a penalty greater than
that which might have been inflicted under the law in force at the time of the commission of the
offence. It prohibits the enhancement of punishment for an offence retrospectively. But article
20(1) has no application to cases of preventive detention.
2. Right to human treatment:
A prisoner does not become a non-person. Prison deprives liberty. Even while doing this, prison
system must aim at reformation. In prison treatment must be geared to psychic healing release of
stress restoration of self-respect apart from training to adapt oneself to the life outside. Every

prisoner has the right to a clean and sanitized environment in the jail, right to be medically
examined by the medical officer right to visit and access by family members.
3. Right to file appeal
Section 389(1) empowers the appellate court to suspend execution of sentence owhen the
convicted person I in confinement to grant bail pending any appeal to it. Court need not give
notice to the public prosecutor before suspending sentence or releasing on bail. Existence of an
appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of
right irrespective of whether the offence is boilable or non-boilable and should be allowed only
when after reading the judgment and hearing the accused it is considered justified.
4. Properexecution of sentence
The hanging of Afzal Guru was criticized by human rights activists legal experts all over the
country. In carrying out Afzal Guru’s death sentence the government deliberately ignored the
view of the Supreme Court and courts across the world that hanging a person after holding him
in custody for years is inhuman. Mohammad Afzal Guru was convicted by Indian court for the
December 2001 attack on the Indian Parliament and sentenced to death in 2003 and his appeal
was rejected by the Supreme Court of India in 2005. The sentence was scheduled to be carried
out on 20 October 2006 but Guru was given a stay of execution after protests in Jammu and
Kashmir and remained on death row. On 3 February 2013, his mercy petition was rejected by the
President of India Pranab Mukherjee. He was secretly hanged at Delhi’s Tihar Jail around on 9
February 2013.

Principles Of Fair Trial
There are given principal of fair trial.
Adversary trial system
The system adopted by the Criminal Procedure Code 1973 is the adversary system based on the
accusatorial method. In adversarial system responsibility for the production of evidence is placed
on the prosecution with the judge acting as a neutral referee. 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.
Presumption of innocence
Every criminal trial begins with the presumption of innocence in favor of the accused. The
burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of
that burden the courts cannot record a finding of the guilt of the accused.
Independent, impartial and competentjudges
The basic principle 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. In a criminal trial as the state is the
prosecuting party and the police is also an agency of the state it is important that the judiciary is
unchained of all suspicion of executive influence and control direct or indirect. The whole
burden of fair and impartial trial thus rests on the shoulders of the judiciary in India.

GENERAL PRINCIPLES APPLICABLE TO ALL LEGAL PROCEEDINGS
1. Fair and Public Hearing
In the determination of any criminal charge against a person, or of a person’s rights and
obligations, everyone shall be entitled to a fair and public hearing by a legally constituted
competent, independent and impartial judicial body.
2. Fair Hearing
The essential elements of a fair hearing include:
(a) equality of arms between the parties to a proceedings, whether they be administrative, civil,
criminal, or military;
(b) equality of all persons before any judicial body without any distinction whatsoever as regards
race, color, ethnic origin, sex, gender, age, religion, creed, language, political or other
convictions, national or social origin, means, disability, birth, status or other circumstances;
(c) equality of access by women and men to judicial bodies and equality before the law in any
legal proceedings;
(d) respect for the inherent dignity of the human persons, especially of women who participate in
legal proceedings as complainants, witnesses, victims or accused;
(e) adequate opportunity to prepare a case, present arguments and evidence and to challenge or
respond to opposing arguments or evidence;
(f) an entitlement to consult and be represented by a legal representative or other qualified
persons chosen by the party at all stages of the proceedings;
(g) an entitlement to the assistance of an interpreter if he or she cannot understand or speak the
language used in or by the judicial body;
(h) an entitlement to have a party’s rights and obligations affected only by a decision based
solely on evidence presented to the judicial body;
(i) an entitlement to a determination of their rights and obligations without undue delay and with
adequate notice of and reasons for the decisions; and
(j) an entitlement to an appeal to a higher judicial body.
Public hearing:
(a) All the necessary information about the sittings of judicial bodies shall be made available to
the public by the judicial body;

(b) A permanent venue for proceedings by judicial bodies shall be established by the State and
widely publicized. In the case of ad-hoc judicial bodies, the venue designated for the duration of
their proceedings should be made public.
(c) Adequate facilities shall be provided for attendance by interested members of the public;
(d) No limitations shall be placed by the judicial body on the category of people allowed to
attend its hearings where the merits of a case are being examined;
(e) Representatives of the media shall be entitled to be present at and report on judicial
proceedings except that a judge may restrict or limit the use of cameras during the hearings;
(f) The public and the media may not be excluded from hearings before judicial bodies except if
it is determined to be
1. in the interest of justice for the protection of children, witnesses or the identity of victims of
sexual violence
2. for reasons of public order or national security in an open and democratic society that respects
human rights and the rule of law.
(a) Judicial bodies may take steps or order measures to be taken to protect the identity and
dignity of victims of sexual violence, and the identity of witnesses and complainants who may be
put at risk by reason of their participation in judicial proceedings.
(b) Judicial bodies may take steps to protect the identity of accused persons, witnesses or
complainants where it is in the best interest of a child.
(c) Nothing in these Guidelines shall permit the use of anonymous witnesses, where the judge
and the defense is unaware of the witness’ identity at trial.
Any judgment rendered in legal proceedings, whether civil or criminal, shall be pronounced in
public.
Independent tribunal
(a) The independence of judicial bodies and judicial officers shall be guaranteed by the
constitution and laws of the country and respected by the government, its agencies and
authorities.
(b) Judicial bodies shall be established by law to have adjudicative functions to determine
matters within their competence on the basis of the rule of law and in accordance with
proceedings conducted in the prescribed manner.
(c) The judiciary shall have jurisdiction over all issues of a judicial nature and shall have
exclusive authority to decide whether an issue submitted for decision is within the competence of
a judicial body as defined by law.

(d) A judicial body’s jurisdiction may be determined, inter alia, by considering where the events
involved in the dispute or offence took place, where the property in dispute is located, the place
of residence or domicile of the parties and the consent of the parties.
(e) Military or other special tribunals that do not use the duly established procedure of the legal
process shall not be created to displace the jurisdiction belonging to the ordinary judicial bodies.
(f) There shall not be any inappropriate or unwarranted interference with the judicial process nor
shall decisions by judicial bodies be subject to revision except through judicial review, or the
mitigation or commutation of sentence by competent authorities, in accordance with the law
(g) All judicial bodies shall be independent from the executive branch.
(h) The process for appointments to judicial bodies shall be transparent and accountable and the
establishment of an independent body for this purpose is encouraged. Any method of judicial
selection shall safeguard the independence and impartiality of the judiciary.
(i) The sole criteria for appointment to judicial office shall be the suitability of a candidate for
such office by reason of integrity, appropriate training or learning and ability.
(j) Any person who meets the criteria shall be entitled to be considered for judicial office without
discrimination on any grounds such as race, color, ethnic origin, language, sex, gender, political
or other opinion, religion, creed, disability, national or social origin, birth, economic or other
status. However, it shall not be discriminatory for states to:
1. prescribe a minimum age or experience for candidates for judicial office;
2. prescribe a maximum or retirement age or duration of service for judicial officers;
3. prescribe that such maximum or retirement age or duration of service may vary with different
level of judges, magistrates or other officers in the judiciary;
4. require that only nationals of the state concerned shall be eligible for appointment to judicial
office.
(a) No person shall be appointed to judicial office unless they have the appropriate training or
learning that enables them to adequately fulfill their functions.
(b) Judges or members of judicial bodies shall have security of tenure until a mandatory
retirement age or the expiry of their term of office.
(c) The tenure, adequate remuneration, pension, housing, transport, conditions of physical and
social security, age of retirement, disciplinary and recourse mechanisms and other conditions of
service of judicial officers shall be prescribed and guaranteed by law.
(d) Judicial officers shall not be:

1. liable in civil or criminal proceedings for improper acts or omissions in the exercise of their
judicial functions;
2. removed from office or subject to other disciplinary or administrative procedures by reason
only that their decision has been overturned on appeal or review by a higher judicial body;
3. appointed under a contract for a fixed term.
(a) Promotion of judicial officials shall be based on objective factors, in particular ability,
integrity and experience.
(b) Judicial officials may only be removed or suspended from office for gross misconduct
incompatible with judicial office, or for physical or mental incapacity that prevents them from
undertaking their judicial duties.
(c) Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to
guarantees of a fair hearing including the right to be represented by a legal representative of their
choice and to an independent review of decisions of disciplinary, suspension or removal
proceedings.
(d) The procedures for complaints against and discipline of judicial officials shall be prescribed
by law. Complaints against judicial officers shall be processed promptly, expeditiously and
fairly.
(e) Judicial officers are entitled to freedom of expression, belief, association and assembly. In
exercising these rights, they shall always conduct themselves in accordance with the law and the
recognized standards and ethics of their profession.
(f) Judicial officers shall be free to form and join professional associations or other organizations
to represent their interests, to promote their professional training and to protect their status.
(g) States may establish independent or administrative mechanisms for monitoring the
performance of judicial officers and public reaction to the justice delivery processes of judicial
bodies. Such mechanisms, which shall be constituted in equal part of members the judiciary and
representatives of the Ministry responsible for judicial affairs, may include processes for judicial
bodies receiving and processing complaints against its officers.
(h) States shall endow judicial bodies with adequate resources for the performance of its their
functions. The judiciary shall be consulted regarding the preparation of budget and its
implementation.

Impartial Tribunal
(a) A judicial body shall base its decision only on objective evidence, arguments and facts
presented before it. Judicial officers shall decide matters before them without any restrictions,
improper influence, inducements, pressure, threats or interference, direct or indirect, from any
quarter or for any reason.
(b) Any party to proceedings before a judicial body shall be entitled to challenge its impartiality
on the basis of ascertainable facts that the fairness of the judge or judicial body appears to be in
doubt.

RELETED CASE
Himanshu Singh Sabharwal
Vs.
State of M.P
DATE OF JUDGMENT 12/03/2008
CITATION: Transfer Petition 175 of 2007
Factof this case
Transfer Petition (Crl.) No.175 of 2007 has been filed by one Himanshu Singh Sabharwal who is
the son of late Prof. H.S. Sabharwal. Prof. H.S. Sabharwal was a professor in Government
College, Ujjain, M.P. He was brutally beaten up by certain persons, for taking a rigid stand in the
college union elections. Though the assaults were made in the presence of several police
officials, media persons and members of public, attempt has been made to project as if his death
was as a result of an accident. Initially, First Information Report was lodged and after
investigation charge sheet was filed and charges have been framed against several persons who
are respondents in the Transfer Petition. Grievance of the petitioner is that the witnesses have
been coerced, threatened and ultimately justice is a casualty. Role of the investigating officer
gives ample scope to doubt, impartiality and the sincerity of the investigating agency. Similar is
the position of the public prosecutor. It is also highlighted that the trial Court also did not make a
serious effort to see that justice is done. In this connection it is pointed out that public prosecutor
did not cross-examine the persons who had resided from their statements made during
investigation. This according to the petitioner also shows that the trial Court did not act as is
required under law. By order dated 11.7.2007 the proceedings in the sessions case were stayed.
In pursuance of the notice the respondent- State and accused respondents have appeared. if any
person is guilty he has to be punished and State never had or has any intention to protect any
guilty person.
Right from the inception of the judicial system it has been accepted that discovery, vindication
and establishment of truth are the main purposes underlying existence of Courts of justice. The

operating principles for a fair trial permeate the common law in both civil and criminal contexts.
Application of these principles involves a delicate judicial balancing of competing interests in a
criminal trial, the interests of the accused and the public and to a great extent that of the victim
have to be weighed not losing sight of the public interest involved in the prosecution of persons
who commit offences. Restraints on the processes for determining the truth are multi-faceted.
They have emerged in numerous different ways, at different times and affect different areas of
the conduct of legal proceedings. By the traditional common law method of induction there has
emerged in our jurisprudence the principle of a fair trial.
The principle of fair trial now informs and energises many areas of the law. It is reflected in
numerous rules and practices. It is a constant, ongoing development process continually adapted
to new and changing circumstances, and exigencies of the situation peculiar at times and related
to the nature of crime, persons involved - directly or operating behind, social impact and societal
needs and even so many powerful balancing factors which may come in the way of
administration of criminal justice system. As will presently appear, the principle of a fair trial
manifests itself in virtually every aspect of our practice and procedure, including the laws of
evidence. It is desirable that the requirement of fairness be separately identified since it
transcends the content of more particularized legal rules and principles and provides the ultimate
rationale and touchstone of the rules and practices which the common law requires to be
observed in the administration of the substantive criminal law.
This Court has often emphasized that in a criminal case the fate of the proceedings cannot always
be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of
public rights and duties, which affect the whole community as a community and harmful to the
society in general. The concept of fair trial entails familiar triangulation of interests of the
accused, the victim and the society and it is the community that acts through the State and
prosecuting agencies. Interests of society is not to be treated completely with disdain and as
persona non grata. Courts have always been considered to have an over-riding duty to maintain
public confidence in the administration of justice often referred to as the duty to vindicate and
uphold the 'majesty of the law'. Due administration of justice has always been viewed as a
continuous process, not confined to determination of the particular case, protecting its ability to
function as a Court of law in the future as in the case before it. If a criminal Court is to be an
effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a

mere recording machine by becoming a participant in the trial evincing intelligence, active
interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out
the truth, and administer justice with fairness and impartiality both to the parties and to the
community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious
or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name and standing of the judges as impartial
and independent adjudicators.
The principles of rule of law and due process are closely linked with human rights protectio n.
Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has
to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be
fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of
the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual
situations with the ultimate object in mind. Whether something that was done or said either
before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice
has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with.
That would be turning Nelson's eyes to the needs of the society at large and the victims or their
family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal
trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.
Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the
accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence that also would not result in a fair trial. The failure
to hear material witnesses is certainly denial of fair trial.
A fair trial is the first imperative of the dispensation of justice and the central criterion for the
court to consider when a motion for transfer is made is not the hypersensitivity or relative
convenience of a party or easy availability of legal services or like mini-grievances. Something
more substantial, more compelling, more imperilling, from the point of view of public justice
and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This
is the cardinal principle although the circumstances may be myriad and vary from case to case.
We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally
the complainant has the right to choose any court having jurisdiction and the accused cannot

dictate where the case against him should be tried. Even so, the process of justice should not
harass the parties and from that angle the court may weigh the circumstances.
A more serious ground which disturbs us in more ways than one is the alleged absence of
congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our
country that court proceedings are being disturbed by rude hoodlums and unruly crowds,
jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse.
This tendency of toughs and street roughs to violate the serenity of court is obstructive of the
course of justice and must surely be stamped out. Likewise, the safety of the person of an
accused or complainant is an essential condition for participation in a trial and where that is put
in peril by commotion, tumult or threat on account of pathological conditions prevalent in a
particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet
and concern to a court of justice if a person seeking justice is unable to appear, present one's
case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure
propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions
putting the accuser's life in danger or creating chaos inside the court hall may jettison public
justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from
that place may become necessary.
A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a
judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue
and obtain proof of such facts at which the prosecution and the accused have arrived by their
pleadings; the controlling question being the guilt or innocence of the accused. Since the object
is to mete out justice and to convict the guilty and protect the innocent, the trial should be a
search for the truth and not a bout over technicalities, and must be conducted under such rules as
will protect the innocent, and punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and
circumstantial and not by an isolated scrutiny.
Failure to accord fair hearing either to the accused or the prosecution violates even minimum
standards of due process of law. It is inherent in the concept of due process of law, that
condemnation should be rendered only after the trial in which the hearing is a real one, not sham
or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the
process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan

trial. The fair trial for a criminal offence consists not only in technical observance of the frame
and forms of law, but also in recognition and just application of its principles in substance, to
find out the truth and prevent miscarriage of justice.
"Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and
primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes
and ears of justice, the trial gets putrefied and paralyzed, and it no longer can constitute a fair
trial. The incapacitation may be due to several factors like the witness being not in a position for
reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some
corrupt collusion. Time has become ripe to act on account of numerous experiences faced by
Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion,
lures and monetary considerations at the instance of those in power, their henchmen and
hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously
adopted to smoother and stifle truth and realities coming out to surface rendering truth and
justice, to become ultimate casualties. Broader public and societal interests require that the
victims of the crime who are not ordinarily parties to prosecution and the interests of State
represented by their prosecuting agencies do not suffer even in slow process but irreversibly and
irretrievably, which if allowed would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way for anarchy, oppression and injustice
resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and
jealously guarded and protected by the Constitution. There comes the need for protecting the
witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting
witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is
not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start
with at least in sensitive cases involving those in power, who has political patronage and could
wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a
casualty.
Legislative measures to emphasize prohibition against tampering with witness, victim or
informant have become the imminent and inevitable need of the day. Conducts which
illegitimately affect the presentation of evidence in proceedings before the Courts have to be
seriously and sternly dealt with. There should not be any undue anxiety to only protect the
interest of the accused. That would be unfair as noted above to the needs of the society. On the

contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get
a fair deal. Public interest in the proper administration of justice must be given as much
importance if not more, as the interests of the individual accused. In this courts have a vital role
to play.
The Courts have to take a participatory role in a trial. They are not expected to be tape recorders
to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of
the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all
necessary materials by playing an active role in the evidence collecting process. They have to
monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not
unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control
the proceedings effectively so that ultimate objective truth is arrived at. This becomes more
necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is
not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be
blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the
prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the
defense is a liability to the fair judicial system, and Courts could not also play into the hands of
such prosecuting agency showing indifference or adopting an attitude of total aloofness.

Some Fact
The Supreme Court on Friday reserved its judgment on a petition seeking transfer of Professor H
S Sabharwal murder case outside Madhya Pradesh. A bench comprising Justices Arijit Pasayat
and P Sathasivam indicated that the case may be transferred to Nagpur where there is no
Bharatiya Janata Party (BJP) Government and it is also closer to Ujjain. Himanshu Sabharwal,
son of Professor Sabharwal, is seeking transfer of the case outside the state as the accused belong
to the student wing of the ruling BJP in the State and BJP-ruled administration was sparing no
efforts in shielding the culprits. Himanshu is also seeking re-investigation in the case by the
Central Bureau of Investigation (CBI) as he is not satisfied with the shoddy investigation carried
out by the State police. Professor Sabharwal, the head of the political science department of
Ujjain's Madhav College, died on August 26 last year from lung and rib injuries after being
beaten up by Akhil Bharatiya Vidyarthi Parishad (ABVP) activists.

BIBLIOGRAPHY
http://www.oneindia.com/
/indiankanoon.org.
S.N.Mishra

Fair Trial

More Related Content

What's hot (20)

Viewers also liked (8)

Similar to Fair Trial (20)

More from Avinash Rai (20)

Recently uploaded (20)

Fair Trial