Law and You >Procedural Laws > CrPC > Principles of Fair Trial and CrPC (Trial Stage)

It is always said that “justice should not only be done, but it should appear to have been done”.  “Trial, the hearing of a case, civil or criminal before a Judge who has jurisdiction over it according to the laws of the land. A trial is the finding out by due examination of the truth of the point in issue or question between the parties, whereupon judgment may be given. It is the duty of the presiding judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. The Indian legal system is mainly adversary trial system. However, in certain aspects, it is a hybrid of adversarial and inquisitorial functions.

The primary object of a criminal trial is to ensure a fair trial. A fair trial is an open trial by an impartial judge in which all parties are treated equally. The right to a fair trial is one of the fundamental guarantees of human rights and rule of law, aimed at ensuring the administration of justice. A fair trial includes fair and proper opportunities allowed by law to prove innocence.

A trial has to be fair to all concerned which includes the accused, victims and society at large. Each person has a right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and society.

In Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258 at p 262 case, the Supreme Court held that “it is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous (sic) in seeing that there is no breach of them.”

In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Case, the Supreme Court stressed the following “five golden principles” that must be fulfilled before the case against an accused can be said to be fully established:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved.
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

It is frequently argued that the rights afforded to the accused are somehow bought at the cost of the victim, the state and society at large, but that is not so. The scheme of the Indian Evidence Act and the CrPC are designed not to favour one party over the other, but to protect and safeguard the rights of all the parties concerned, and to ensure a level playing field.

Principles of Fair Trial (Trial Stage):

Adversary Trial System:

In the adversarial system, the 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 investigating agencies and the Government counsels will prosecute the wrongdoer, on the other hand, the person charged will also take the recourse of best counsels to challenge and counter the evidence of the prosecution. 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. Thus the right to equality is protected in the adversary trial system as both parties have an equal voice of representation.

As per Section 303 of CrPC, any person accused of an offence before a criminal court, or against whom proceedings are instituted under this court, may of right be dependent by a pleader of his choice, the Judge is to work as an umpire between the two contestants.

In Ram Chander v. State of Haryana, (1981) 3 SCC 191 case, the Hon’ble Apex Court observed: “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. He must become a participant in the trial by evincing intelligent active interest.”

In Himanshu Singh Sabharwa v. State of M.P., Manu/SC/1193/2008 case, the Apex Court observed: “if fair trial envisaged under the Code is not imparted to the parties and Court has reason 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.”

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 a similar duty on the state to take steps to separate the judiciary from the executive.

The Indian legal system is mainly adversarial. However, in certain aspects, it is a hybrid of adversarial and inquisitorial functions. Particularly the criminal justice system is not strictly adversarial, as some provisions in the criminal code require the judge to perform inquisitorial functions. For example, the judge will undertake active fact-finding exercises, such as:

• Directing further investigation.
• Assisting in the framing of charges.
• Calling any person as witness and procuring evidence.

Distinguishing Between Adversarial System and Inquisitorial Trial Systems

Adversary Trial System	Inquisitorial Trial System
The adversarial process is only prepared to discover the truth within evidential and procedural boundaries.	Inquisitorial processes place a higher value on the discovery of truth.
The adversarial system trusts the parties to present their argument and expects that the truth emerges from the presentation of each party’s side properly and honestly.	The inquisitorial system places the search of the truth into the hands of the impartial investigator whose duty is to objectively discover facts.
Adversarial systems regard the exclusionary rules of evidence as protecting the accused from the prejudicial effect of such evidence.	In inquisitorial systems, the willingness to admit all evidence, including evidence that has been improperly obtained is perceived as an important factor in search of the truth.
In adversarial models, decision-making is left largely in the hands of the parties. There is a recognized prosecutorial discretion not to proceed with the case, even where there is evidence that supports the charge.	In inquisitorial systems, there is less discretion, and the legality principles dictate that prosecution must take place in all cases where sufficient evidence exists in the guilt of the matter.

Independent, Impartial, and Competent judge:

The independence of the judiciary and the competency of judges are indispensable aspects of every fair trial. The separation of powers protects the independence of the judiciary. Article 217 of the Indian Constitution deals with the appointment of the Judges of the High Court. There were recommendations to form the National Judicial Appointments Commission under the 99th amendment by bringing in a new Article 124A. 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.

As per Section 479 of CrPC in order to have a fair trial, it is necessary that the Judge or Magistrate must not be in any manner connected with the prosecution or interested in prosecution.

In S.P. Gupta v. Union of India, 1981 (Supp.) SCC 87, pp. 221-222 case, the Court interpreted independence not merely as non-interference from the Executive and other forces, but independence from prejudices: “It is necessary to remind ourselves that the concept of independence of judiciary is not limited only to independence from Executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong”. The Supreme Court also held that impartiality in judging is the touchstone of a fair trial. Impartiality implies being free from bias. This is judged on the basis of two tests:

1. Subjective test: A judge should not have any personal interest in the case, or, because of his personal convictions; he/she should not be biased against any party.
2. Objective test: A judge should conduct the proceedings in a manner which excludes any legitimate doubt as to his impartiality.

In order to satisfy the objective test, two important considerations are that:

1. The court should not be a mere onlooker in a trial before it; and
2. The court should ensure that the trial is not merely a hasty stage-managed or partisan one.

in Satish Jaggi v. State of Chhattisgarh, (2007) 3 SCC 62 case, the transfer of the case was sought on the grounds that the Sessions Judge was an elder brother of a sitting MLA who was very close to the father of one of the main accused. The Sessions Judge himself did not indicate his disinclination to hear the matter. The High Court felt that he did this probably because he believed that the mere fact that his brother was known to the father of the accused, who was a political heavyweight, would not stand in the way of his discharging his judicial function impartially without fear and favour. The Apex Court however transferred the case to another trial court saying: “…to ensure that justice is not only done, but also seen to be done and the peculiar facts of the case, we feel that it will be appropriate to transfer the case to some other Sessions Court….”

In Shyam Singh v. State of Rajasthan., 1973 Cri LJ 441, 443, (Raj.) case, the Court held that the question is not whether a bias has actually affected the judgment. The real test is whether there exists a circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.

In Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 at 395 case, the Court observed: “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 it is to the victim and to society. A fair trial obviously would mean a trial before an impartial judge, a fair prosecutor, and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried.”

Presumption of Innocence:

Article 14(2) of the International Convention on Civil and Political Rights 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. Every criminal trial begins with the presumption of innocence in favour 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. This presumption is seen to flow from the Latin legal principle 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 must, in addition, be maintained not only during a criminal trial vis a vis the defendant but also in relation to a suspect or accused throughout the pre-trial phase.

If an innocent person is convicted the consequences are so serious that its reverberations cannot but be felt throughout the civilian society. It is only to ensure that the court does not wrongly convict an innocent person an accused is presumed to be innocent until proven guilty.

Section 101 of the Indian Evidence Act further reinforces the presumption of innocence by providing that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he/she asserts, must prove those facts. Thus, if the State wishes to convict an individual of an alleged crime, the State carries the burden of firmly establishing and proving each fact. To protect this right to be presumed innocent, Section 161(2) of the CrPC permits persons questioned by the police to refrain from answering questions that might expose them to criminal penalty.

In Sujit Biswas v. State of Assam, AIR 2013 SC 3817 para 23 case, the Supreme Court noted that an accused absconding does not lead to a firm conclusion of his/her guilt. An innocent person may also abscond in order to evade arrest and such an action may be part of the natural conduct of the accused. The Court held that the fact that the accused absconded should only be taken as a minor item in evidence for sustaining a conviction.

In Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625 case, the appellant Ram Gopal was charged with the murder of Zingrooji Sita Ram. It was established that Sita Ram was poisoned and died on his way to the hospital. The prosecution argued that Ram Gopal had administered the victim an insecticide in kerosene oil either with tea or in water and Sita Ram died as a result of the poisonous insecticide. The post mortem report stated that death was by poisoning and a chemical analyst’s report confirmed the presence of an organo-chloro compound in the viscera of the deceased. The prosecution argued that the defendant’s motive to murder Sita Ram was established by the fact that prior to his death, Sita Ram had sold a piece of land to Ram Gopal. Ram Gopal had promised to pay the full amount within six weeks of the execution of the sale deed. Despite constant pestering, Ram Gopal kept putting off Sita Ram on some pretext or the other. The prosecution argued that the deceased had fallen ill and died after a visit to the accused. Opportunity and the means of death had been established. Ram Gopal was sentenced to death by the Sessions Judge, Nagpur and this was confirmed by the High Court of Bombay (Nagpur Bench). In appeal to the Supreme Court against the death sentence the Apex Court stated that the prosecution’s case had too many gaps. First, there was no evidence to show that the accused was ever in possession of any organo-chloro compound. Second, it was improbable that such a large dose of a kerosene-based poison that was fatal could have been consumed by the victim without noticing it and thirdly, other possibilities such as suicide had not been ruled out. This was sufficient to give the accused the benefit of doubt, and the Apex Court reversed the verdict of the lower courts. The case is illustrative of the need to keep in mind that not only must every fact be established along with the mens rea required, but that the prosecution must be able to link the sequence of events and rule out other probable causes for the occurrence. Here, the Supreme Court felt that there may have been other causes for the death of the victim, and therefore the “beyond reasonable doubt” degree of proof had not been met.

In the State of U.P. v. Naresh, (2001) 4 SCC 324 case, the Supreme Court observed “every accused is assumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”

In Dataram Singh v State of Uttar Pradesh, Criminal Appeal No. 227/2018 case, the Court held that 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. 

In P. N. Krishna Lal v Government of Kerala, 1995 Supp(2) SCC 187 case, the Apex Court clarified that the principle of presumption of innocence is entrenched in the Indian Constitution. The Universal Declaration of Human Rights and the International Convention on Civil and Political Rights, to which India is a party, also guarantee fundamental freedoms and liberties to an accused person. The procedure prescribed for trial, must in spirit also stand the test of the rights guaranteed by those fundamental human rights.17 In criminal jurisprudence, the settled law is that the prosecution must prove all the ingredients of the offences for which the accused has been charged. The proof of guilt of the accused is on the prosecution and must be proved beyond a reasonable doubt. At no stage of the trial is the accused under an obligation to disprove his innocence. “Unlike in a trial of a civil action, the burden of proof of a case always rests on the prosecution and it never gets shifted… To place the entire burden on the accused to prove his innocence, therefore, is arbitrary, unjust and unfair infringing, violating the guarantee under Article 21.”

There are various statutes such as the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; the Terrorist and Disruptive Activities (Prevention) Act, 1987; Narcotic Drugs and Phototropic Substances Act, 1985; and the Protection of Children from Sexual Offences Act, 2012 that provide for a presumption of guilt and shifting of the burden of proof on the accused.

In Babu v. State of Kerala, (2010) 9 SCC 189 case, the Supreme Court has held that judges must not interpret such presumptions to be contradictory to the fundamental fair trial principle of presumption of innocence. A presumption of guilt can only be raised when certain foundational facts are established by the prosecution and the circumstances provided in the statutes are found to be fulfilled.

In Baijnath v. State of Madhya Pradesh, 2016 Law Suit (SC) 1089 case, a Two Judge Bench of the Supreme Court held that One of the essential ingredients of dowry death under Section 304-B of the Indian Penal Code is that the accused must have subjected the woman to cruelty in connection with the demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death 28 under Section 113-B of the Indian Evidence Act.

In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773 case, Kali Ram was convicted of two murders. He appealed his conviction to the Supreme Court. The prosecution’s case rested on three pieces of evidence. First, a witness testified that Kali Ram had spent the night near the victims’ residence, and on the evening of the crime was seen heading toward the victims’ house. Second, the prosecution asserted that they had a written confession from Kali Ram which he had mailed to the police station. Third, the prosecution asserted that Kali Ram had made an oral confession to a witness. Noting that the accused was entitled to the presumption of innocence requiring the prosecution to establish guilt beyond a reasonable doubt, the Supreme Court reviewed the prosecution’s evidence. First, the Court concluded that the evidence that Kali Ram was headed toward the victims’ house on the night of the crime was unreliable because the testifying witness had waited for over two months to come forward, despite knowing of the incident since the crime’s occurrence. The Court found that the prosecution did not offer a cogent explanation as to why the witness was silent for so long. Second, the Court held that the prosecution had not verified the authenticity of the letter of confession nor displaced the possibility that it could have been fabricated. It was necessary for the prosecution to do that before the letter of confession had evidentiary value. Third, the Court found the testimony of the witness regarding the oral confession highly questionable. Having found all the prosecution’s primary evidence untrustworthy, the Court reversed the conviction, explaining that the prosecution did not rebut the accused’s presumption of innocence.

In State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 case, the Supreme Court cautioned judges against being influenced by trials by media. It warned that judges must guard themselves from such external pressures and ensure that the rule of law is upheld.

Right to Free Legal Aid:

Article 39A of the Indian Constitution directs the State to ensure that the operation of the legal system promotes justice, on a basis of equal opportunities and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that make opportunities for securing justice are not denied to any citizen by of reason of economic or other disabilities.

Section 304 of Criminal Procedure Code provides that “where in a trial before Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State”.

In Khatri Vs. State of Bihar, (1981) 2 SCC 493, the court held that the accused is entitled to free legal services not only at the stage of trial but also when first produced before the Magistrate and also when remanded.

In Mohd. Hussain alias Julfikar Ali v. the State of (Govt. of NCT) Delhi, in Crl. Appeal No.1091/2006, dated 11.1.2012, the Hon’ble Supreme Court observed: “the right of a person charged with a crime to have the services of a lawyer is fundamental and essential to a fair trial. The right to be defended by a legal practitioner, flowing from Article 22(1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and enactment of Sub Section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants’ and Human Rights Declarations. If an accused too poor to afford a lawyer is to go through the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just”.

In Hussainara khatoan v. State of Bihar, (1980) 1 SCC 98 case, the Court observed that free legal aid to the indigent Accused is his constitutional right. As per Article 39-A of the Constitution of India Accused is entitled to free legal aid. In an adversary system, The Judge is not a silent spectator; he has to play a more positive and active role in protecting the public interest as well as the individual interest of the accused person.

Venue of the Trial:

The provisions regarding the place of enquiry or trial are contain in Sections 177 to 189 of the Code. If the place of trial is highly inconvenient to the accused person and causes various impediments in the defence preparation, the trial at such a place cannot be considered as fair trial. Apart from exceptional circumstances, it would be convenient both to the prosecution and to the defence if the trial is conducted by a Court within whose local jurisdiction the crime was committed. Trial at any other distant place would generally mean hardship to the parties in the production of evidence.

The Trial in Presence of Accused:

For the conduct of a fair trial, it is necessary that all proceedings related to the case should take place in the presence of the accused or his counsel. The underlying principle behind this is that in a criminal trial the court should not proceed ex parte against the accused person. The personal presence of the accused throughout his trial would enable him to understand properly the prosecution case as it is unfolded. This would facilitate in the making of the preparations for his defence. The Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the court feels that his presence is necessary for effective disposal of the case.

Section 273 of the Criminal Procedure Code provides that all evidence taken in the course of the trial shall be taken in the presence of the accused or if the personal attendance of the accused is dispensed with then the evidence shall be taken in the presence of his pleader.

The requirement of the presence of the accused during his trial can be implied from the provisions which allow the Court to dispense with the personal attendance of the accused person under certain circumstances. For instance, a Magistrate issuing summons may dispense with the personal attendance of the accused and permit him to appear by his pleader (Section 205).

The Code does not explicitly provide for mandatory presence of the accused in the trial as Section 317 empowers the court to dispense with the personal attendance of the accused person at his trial. The Court before dispensing with the personal attendance of the accused must be satisfied that (1) such attendance is not necessary in the interest of justice, or (2) that the accused persistently disturbs the proceedings in Court. This power can be exercised only if the accused person is represented by a lawyer. The Court is also required to record its reasons for such order.

For fair trial, the accused person has to be given full opportunity to defend himself. This is possible only when he should be supplied with the copies of the charge sheet, all necessary documents pertaining to the investigation and the statements of the witnesses called by the police during investigation. Section 238 makes it obligatory on the Magistrate to supply copies of these documents to the accused free of cost.

In the case of Helen Rubber Industries v. State of Kerala, 1973 CriLJ Ker 262 case, the 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.”

In State of Madhya Pradesh v. Budhram, 1996 Cri. LJ 46 (MP) case, the Sessions Court found Budhram guilty of murder and sentenced him to death. Budhram appealed on the grounds that when the trial commenced he was not defended by a lawyer but got one only on making a request to the court. However, on a number of occasions, as an accused he was not produced before the court. The trial was adjourned on this ground on several occasions and was inordinately delayed. To proceed more expeditiously, counsel representing the accused informed the court that he had no objection if the witnesses in attendance were examined in the absence of the accused. With this no objection from the defence counsel, the judge went ahead and recorded the evidence of witnesses in the absence of the accused. The matter ended in a conviction. In appeal, Budhram submitted that the law required that all the evidence must be recorded in his presence, barring the exceptions expressly provided in the CrPC. The counsel representing Budhram had no authority to inform the Court that he had no objection if evidence was recorded in his absence. In such circumstances, recording of the evidence from witnesses in the absence of the accused resulted in the violation of Section 273 of the CrPC. The Court agreed, set aside the conviction and ordered a retrial. The Court also criticised the practice of jail authorities of not producing the accused on several occasions on some pretext or the other, terming this to be an attempt to obstruct the course of justice and said: “The time has come when this Court is to take stock of the situation and try to evolve remedial measures.”

Evidence to be Taken in Presence of Accused:

Fair trial requires that the particulars of the offence have to be explained to the accused person and that the trial is to take place in his presence. Therefore, such a trial should also require the evidence in the trial to be taken in the presence of the accused person.

Section 273 of the Code contemplated that evidence to be taken in presence of accused. The Section makes it imperative that all the evidence must be taken in the presence of the accused. Failure to do so, would vitiate the trial, and the fact that no objection was taken by the accused is immaterial. This rule is subject to certain exceptions made by the provisions of the Code i.e., Sections 205, 293, 299 and 317.

If any evidence is given in a language not understood by the accused person, the bare compliance with section 273 will not serve its purpose unless the evidence is interpreted to the accused in a language understood by him. If the accused is found incapable of understanding the proceedings by reason of unsoundness of mind, his case will be dealt with according to the provisions contained in Sections 328 – 339 of the Code.

If the accused does not understand the proceedings, though not of unsound mind, there is a real difficulty in giving effect to Section 273 in its proper spirit. Section 318 of the Code dealt with such cases. In order to acquaint the accused further with the prosecution case and to facilitate his preparations for the defence, it is obligatory to supply him with copies of police report, statements before the police and other documents on which the prosecution wants to rely.

Prosecution can Examine Witnesses:

Sections 231, 242, 254 of Criminal Procedure Code provides opportunity to the prosecution to examine its witnesses and put forth oral and documentary evidence.

Cross-Examination of Prosecution Witness and to Production of Evidence in Defence:

Evidence given by witnesses may become more reliable if given on oath and tested by cross-examination. Though the burden of proving the guilt is entirely on the prosecution and though the law does not require the accused to lead evidence to prove his innocence, yet a criminal trial in which the accused is not permitted to give evidence to disprove the prosecution case, or to prove any special defence available to him, cannot by any standard be considered as just and fair.

Article 14 of the Constitution ensures 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 or her defence. In fairness to the accused, he or his counsel must be given full opportunity to cross examine the prosecution witness.

• Sections 233, 247, 254 (2) Criminal Procedure Code guarantees the accused to produce evidence in his defence.
• Section 314 Criminal Procedure Code provides that any party to a proceeding make oral arguments and can submit written arguments in support of his case.
• Section 315 of Criminal Procedure Code provides that any person accused of an offence before a criminal court shall be a competent witness for the offence and may give evidence on oath in disproof of the charges made against him.

In Mohd.Hussain @ Julfikar Ali v. the State (Govt. of NCT) Delhi Crl.Appeal No.1091/2006 it was held that every person has a right to have a fair trial. A person accused of serious charges must not be denied of this valuable right. Appellant was not provided an opportunity to cross-examine the fifty six witnesses. Only one witness was cross-examined to complete the formality. Hence, appellant’s conviction and sentence was set aside.

In Badri v. State of Rajasthan, AIR 1976 SC 560 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 statements.

Interpretation of Evidence to Accused or his Pleader:

Whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him. If he appears by pleader and the evidence is given in a language other than the language of the court, and not understood by the pleader, it shall be interpreted to such pleader in that language. When documents are put for the purpose of formal proof, it shall be in the discretion of the court to interpret as much thereof as appears necessary.

If the accused, though not of unsound mind, cannot be made to understand the proceedings, the court may proceed with the inquire or trial and, in the case of a court other than a High Court, if such proceedings result in a conviction, the proceedings shall be forwarded to the High court with a report of the circumstances of the case, and the High court shall pass thereon such order as it thinks fit. In order to acquaint the accused further with the prosecution case and to facilitate his preparations for the defence, it is obligatory to supply him with copies of police report, statements before the police and other documents on which the prosecution wants to rely, or with a copy of the complaint etc.

Right to Bail:

Bail is a 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.

By virtue of Section 436 the accused can claim bail as a matter of right in cases which have been shown as bailable offences in the First schedule to the Code.

In Shambhu v. State, AIR 1956 AII 633 case, the Court held that the bail under Section 389(1) after conviction is not a matter of right whether the offence is bailable or non-bailable reported

If no charge sheet is filed before the expiry of 60 or 90 days as the case may be; the accused in custody has a right to be released on bail. In nonbailable offences, the Magistrate has the power to release the accused on bail without notice to the other side if charge sheet is not filed within a period of 60 days.

In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 case, the appellant was facing allegations of political corruption. Fearing arrest, he applied for anticipatory bail under Section 436 of the CrPC in the High Court of Punjab and Haryana. The High Court refused the application and the applicant approached the Supreme Court. The Supreme Court held as follows:

• The question whether to grant bail or not depends upon a variety of circumstances. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal to bail. Therefore, the powers of the High Court or Sessions Court to grant or refuse bail is discretionary as should be exercised in the circumstances of each case. Conditions mentioned in Section 437 cannot be read into Section 438.
• The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Such belief must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested.
• If an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the magistrate concerned under Section 437 of the Cr.P.C. as and when an occasion arises.
• The filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438.
• Anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. But the provisions of Section 438 cannot be invoked after the arrest of the accused.
• An order of bail can be passed under the section without notice to the public prosecutor. But notice should be issued to the public prosecutor or the government advocate forthwith and the question of bail should be re[1]examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.
• The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR with respect to the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Cr.P.C. within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.

In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 case, the Court held that in deciding an application for anticipatory bail courts need to take into account the following:238

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court with respect to any cognizable offence;
3. The possibility of the applicant to flee from justice;
4. The likelihood of repetition of similar or other offences;
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
7. The court must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the IPC, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
8. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
9. The court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution; in the normal course of events, the accused is entitled to an order of bail.

In Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 case, the Supreme Court held that while a detailed examination of evidence and elaborate documentation of the merits of a case is not usually necessary, there is a need to provide clear, reasoned orders about why bail is granted or rejected. Courts need to take account of:

1. The nature of the accusation;
2. The gravity of the crime;
3. The circumstances of the individual concerned;
4. Whether further detention is at all necessary;
5. The risk of flight;
6. The risk of subverting or tampering with evidence;
7. The nature of the evidence in support of the accusation;
8. The severity of the punishment which conviction would entail;
9. Whether the sureties are independent, or indemnified by the accused person.

Prohibition on Double Jeopardy:

Article 20(2) provides that “No person shall be prosecuted and punished for the same offence more than once.” If a person is prosecuted again for the same offence for which he has already been prosecuted he can take the complete defence of his former acquittal or conviction.

Section 300 of the Code of Criminal Procedure provides that persons once convicted or acquitted not to be tried for the same offence or on the same facts for any other 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.

While the UK and the US courts have interpreted the guarantee against double jeopardy to protect against a second trial regardless of whether the first ended in conviction or acquittal, the Indian Supreme Court has adopted a different perspective.

In S.A. Venkataraman v. Union of India, AIR 1954 SC 375 case, the Supreme Court refused to read “prosecuted and punished” disjunctively and instead read it as barring a second trial only when the person has been punished once for the same offence. An acquittal, therefore, does not bar a second trial.

In Kola Veera Raghav Rao v. Gorantla Venkateshwara Rao, 2011 (2) SCC 703 case, the Hon’ble Supreme Court observed that “the language used in Section 300 (1) of Criminal Procedure Code is different from the language used in Article 20 (2) of the constitution. The former is wider than the later. Article 20 (2) of the Constitution states that “no one can be prosecuted and punished for the same offence more than once”. Section 300 (1) of Criminal Procedure Code states that “A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence, for which a different charge from the one made against him might have been made under Sub-Section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof”.

Right against Self-Incrimination:

In the determination of any criminal charge against him/her, everyone is entitled “Not to be compelled to testify against himself or to confess guilt”. Clause (3) of Article 20 provides: “No person accused of any offence shall be compelled to be a witness against himself. “This clause is based on the maxim nemo tenetur prodere accusare seipsum, which means that ‘no man is bound to accuse himself.

To attract the protection of Article 20 (3) it must be shown that the accused was compelled to make the statement likely to be incriminating of himself. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply.

As per Section 316 of the Criminal Procedure Code no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.

In Selvi v. State of Karnataka, AIR 2010 SC 1974 case, the Supreme Court held that: “The compulsory administration of the impugned techniques violates the “right against self-incrimination.” This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. The Court also stated that: “Forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose, since the test results could also expose a person to adverse consequences of a non-penal nature.” The Court further said: “The protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses, who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion.” Upholding the right to remain silent, guaranteed by Article 20(3) of the Constitution, the Supreme Court held that the forcible “conveyance of personal knowledge that is relevant to the facts in issue” violates Article 20(3) of the Constitution. In the concluding paragraph of the Selvi case, the Supreme Court held the “Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused” issued by the National Human Rights Commission in 2000, as binding. The Court said that these guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the “narco analysis technique” and the “brain electrical activation profile” test. These guidelines were reproduced in the Selvi Judgment. They are:

1. No lie detector tests should be administered except on the basis of the consent of the accused. An option should be given to the accused whether he wishes to avail such a test or not.
2. If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him/her by the police and his lawyer.
3. The consent should be recorded before a Judicial Magistrate.
4. During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
5. At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a “confessional” statement to the Magistrate but will have the status of a statement made to the police.
6. The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
7. The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
8. Ffull medical and factual narration of the manner of the information received must be taken on record.

Reasoned Decisions or Speaking Order:

A reasoned Judgment given in public, increases confidence in the Judiciary. The Justification for the reasoning in the Judgment must be based on the law and cannot appear to be attributed to personal opinions, prejudices or the socialization of Judge.

Sections 353 and 354 of the Cr.P.C together deal with the substantive and procedural requirements that a judge must follow. The requirements in relation to how a judgment is delivered, its language and content are not just matters of form, but are also elements of fairness and must be fully met. Section 353 mandates that the judgment must be delivered in an open court; be read out in court; or the operative part of the judgment read out and the substance of the judgment explained.

• Section 353 and 354 of Code together deal with the substantive and procedural requirements that a Judge must ensure are followed.
• Section 363 of the Code confirms the accused’s right to a copy of his judgment where he is sentenced to imprisonment; the court must immediately furnish a copy of the judgment to him free of cost. Article 21 is violated if the court fails to provide the accused with a copy of Judgment in tie to file an appeal.

Conclusion:

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