Law and You >Procedural Laws > CrPC > Principles of Fair Trial and CrPC (Pre-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 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. In this article, we shall study the principles of fair trial and provisions of CrPC for the same in the pre-trial stage.

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 (Pre-Trial Stage):

Knowledge of Accusation:

Fair Trial requires that the accused person is given adequate opportunity to defend himself. But, this opportunity will have no meaning if the accused person is not informed of the accusation against him. When the accused person is brought before the court for trial, the particulars of the offence of which he is accused shall be stated to him.

In case of serious offences, the court is required to frame in writing a formal charge and then read and explain the charge to the accused person. A charge is not an accusation in the abstract, but a concrete accusation of an offence alleged to have been committed by a person. The right to have precise and specific accusations is contained in section 211, CrPC.

If the accused, though not of unsound mind, cannot be made to understand the proceedings, the court may proceed with the inquiry 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.

The Criminal Procedure Code provides in Section 228, 240, 246, 251 in plain words that when an accused person is brought before the Court for trial, the particulars of the offence of which he is accused shall be stated to him.

Sections 207 and 238 CrPC make it obligatory for the Magistrate to supply copies of trial documents to the accused free of cost. 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 accused may have sufficient time to prepare his/her defence.

In Union of India v. Ranu Bhandari, (2008) 17 SCC 348 case, the apex court noted that “courts which are empowered to issue prerogative writs have…to be extremely cautious in examining the manner in which a detention order is passed with respect to an individual so that his right to personal liberty and individual freedom is not arbitrarily taken away from him/ her even temporarily without following the procedure prescribed by law.” In this case, the Supreme Court refused to overturn the High Court’s decision to quash the detention on the ground that the detainee was prevented from making an effective representation in his defence when he was not supplied with all the documents he needed to answer the case against him.

In Joginder Kumar v. State of U.P., AIR 1994 SC 1349 case, the Court observed: the treatment of suspects, accused, and detainees is governed by the need for fairness. Laws governing the administration of justice are designed both substantively and procedurally to ensure the interests of all parties involved: the State and the individual, the accused and the victim, the prosecution and the defence. Thus, safeguarding human liberty is a prime constitutional value and the law of arrest is one of balancing individual rights, liberties, and privileges, on the one hand, and individual duties, obligations, and responsibilities on the other; of weighing and balancing the rights, liberties, and privileges of the single and those of individuals collectively. The judge is the custodian of all this.

Protection Against Illegal Arrest:

Arrest and detention of a person in police custody can cause incalculable harm to the reputation and self-esteem of the arrested person. Therefore, arrests should not be made in a routine manner on the mere allegation that a person has committed an offence. Arrests must only be made after reasonable satisfaction that the complaint has adequate substance to ground a sensible suspicion that an offence has been committed by that person. All too often, however, it is routine practice for the police to leap from receiving a First Information Report to forcibly detaining the person named in it without application of mind as to whether there is any justifiable merit in depriving the person of his/her liberty, without first ascertaining the reasonableness of the complaint or objectively assessing the causal link of the person in custody to logically being considered the perpetrator of the alleged offence. It is in the hands of the judge to remedy these wrongs through the firm, constant, certain, and even-handed exercise of his/her powers under the CrPC.

Article 22 (1) of the Indian Constitution states that a person who has been arrested under normal circumstances (not under preventive detention), has the right to know the charges for which he has been arrested and can be detained further and he can’t be denied off an attorney or a lawyer’s service to represent him in court or to guide him and defend him in the court of law. The concerned authority, like the police or any other government authority, is compelled to tell him this information as soon as possible.

Article 22 (2) of the Indian Constitution states that any person who has been arrested by an authority must be presented before a magistrate within 24 hours of the arrest. This period of 24 hours doesn’t include the time taken to travel to the court of the magistrate. The person cannot be detained or held in custody for more than twenty-four hours. After that, it is with the authority or permission of the magistrate that an agency or government body can extend the period of the detention.

• Section 50 of CrPC 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. In Pranab Chatterjee v. State of Bihar, (1970) 3 SCC 926 case, the court held that Section 50 is mandatory. If particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. The grounds can be communicated orally or even impliedly by conduct.
• Section 57 of CrPC provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest. In State of Punjab v. Ajaib Singh, AIR 1953 SC 10 case, the Hon’ble Supreme Court held that arrest without warrant call for greater protection and production within 24 hours ensures the immediate application of judicial mind to the legality of the arrest.
• The decisions of Apex Court in Joginder Kumar Vs. State of Uttar Pradesh 1994 SCC (4) 260 and in D.K.Basu Vs. State of West Bengal 1997 (1) SCC 416 leads to enact in Section 50-A making it obligatory on the part of the police officer to inform the friend or relative of the arrested person about his arrest and also to make an entry in the register maintained by the police. This was done to ensure transparency and accountability in arrest.
• Sec.160 of Cr. P.C provides that investigation by any police officer of any male below 15 years or any woman can be made only at the place of their residence.
• Section 46(4) provides that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

in Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 case, a Constitution Bench of the Supreme Court held that “the remedy against arbitrary arrests lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of FIR when the information discloses commission of a cognizable offence.”

In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 case, the Supreme Court ruled that it is the duty of magistrates to ensure that Section 41, CrPC is scrupulously followed by the police. In this regard, the Court held that when the arrested person is produced before the magistrate for remand, the magistrate is duty bound to release the person if the requirements of Section 41, CrPC are not met. It ruled that the magistrate must examine the reasons that the police officer has given justifying the arrest, and only if he/she is satisfied that the arrest is necessary, should remand be granted. It further ruled that the magistrate should also record his/her reasons for granting remand.

Protection Against Ex post-Facto Law:

An ex post facto law is a law that imposes penalties retrospectively, i.e., on acts already done and increases the penalty for such acts. Article 20 (1) of the Indian Constitution imposes a limitation on the law-making power of the Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, but clause (1) of Article 20 Prohibits the Legislature to make retrospective Criminal laws. However, only the procedure of sentencing and convicting is what is prohibited under this clause, and not the trial itself. Thus, a person accused according to a particular procedure can’t be questioned under the doctrine of Ex post facto law.

Soni Devrajbhai Babubhai v. State of Gujarat, (1991) 4 SCC 298 Case is an example of the first safeguard under Article 20(1). The appellants argued that Section 304B of the IPC which had been inserted in November 1986, should apply to an alleged incident that had occurred in August 1986. The Court rejected this contention and held that Article 20(1) meant that Section 304B could not be given any retrospective effect.

In Kedar Nath Bajoria v. West Bengal, AIR 1953 SC 404 case, The appellant committed an offence in 1947 under the Prevention of Corruption Act which then prescribed punishment of imprisonment or fine or both. In 1949, by an amendment of the law, the punishment was enhanced. The appellants were fined Rs. 50,000, for accepting Rs. 47,550 from the government as compensation for damages that were falsely claimed. The appellants argued that the Rs. 50,000 fine violated Article 20(1) of the Constitution because, in 1947, the relevant criminal law only allowed for a fine equal to the amount of money the accused obtained from the commission of the crime. However, at the time of his trial in 1950, the relevant statute, enacted in 1949, allowed for increased fines. Agreeing with the appellant’s claim and setting aside the excess fine, the Supreme Court held that the enhanced punishment would not be applicable to the offence committed in 1947 because of the prohibition contained in Article 20(1). Thus the Supreme Court held that a court cannot apply these newer penalties to crimes committed before they entered into force.

In G. P. Nayyar v. State (Delhi Administration), AIR 1979 SC 602 case, two public officials were tried in 1973 for criminal conspiracy and illegal gratification under the Prevention of Corruption Act, 1947, for allegedly accepting bribes from 1955 to 1961. The accused appealed to the Supreme Court claiming that the burden of proof applied to their trial mandating that the court presume the accused guilty unless proved otherwise was in violation of Article 20(1), as in 1964 the legislature had repealed the relevant statute which applied this standard. The Supreme Court denied the appeal, explaining that repealed statutes remain applicable to crimes committed before the statute’s repeal. Also, here, the repealed statute was revived by a subsequent statute in 1967, thus further allowing for application of the rule even during the repeal period for acts committed before the repeal. Thus the Court held that courts can still apply repealed criminal statutes if the accused committed the crimes prior to such statute’s repeali and courts can also apply a repealed statute to crimes committed subsequent to the repeal if by the time of the trial a new statute is in force which revives the earlier statute.

Engagement of Counsel:

Section 303 of the Criminal Procedure Code provides that “Any person accused of an offence before a Criminal court, or against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice”.

Proviso Section 24 (8) of the Criminal Procedure Code states that the court may permit the victim to engage an advocate of his choice to assist the prosecution.

Section 301 of the Criminal Procedure Code provides that in any Court, any private person can engage a counsel of his choice and make such counsel to assist the public prosecutor and such a pleader can submit written arguments with the permission of the court after evidence is closed in the case.

Section 302 Criminal Procedure Code allows the victim to conduct prosecution personally or by a pleader before any Magistrate with the permission of the court.

In Lokesh Singh v. the State of U.P. in Criminal Miscellaneous Case No.3769/2013, dated 26.8.2013 case, the Allahabad High Court held that “after insertion of proviso to Section 24(8) Criminal Procedure Code if the court permits the victim to engage an advocate of choice, the court thereafter cannot deprive the advocate to address the court in addition to his right to file the written argument as contained in Section 301 Criminal Procedure Code after close of evidence”.

Right to Open Trial:

Fair Trial also requires a 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.

Section 327 of the Criminal Procedure Code makes provision for open courts for a 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 the likelihood of a disturbance or for any other reasonable cause.

In Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 case, the apex court observed that the right to open trial must not be denied except in exceptional circumstances. High Court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part of its proceedings.

In the State of Punjab v. Gurmit, (1996) 2 SCC (Cri) 316 case, the Court held that the undue publicity is evidently harmful to the unfortunate women victims of rape and such other sexual offences. Such publicity would mar their future in many ways and may make their life miserable in society. Section 327(2) provides that the inquiry into and trial of rape or an offence under Section 376, 376-A, 376-B, 376-C, or 376-D of the Indian Penal Code shall be conducted in camera.

Speedy Trial:

A speedy trial is necessary to gain the confidence of the public in the judiciary. Delayed justice leads to unnecessary harassment.

Sec. 309(1) of CrPC 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, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

In Sada Shiv Manohar Parkar v. State of Maharashtra, 1998 Crl. LJ 3755 case, the Supreme Court held that “procedure established by law” in Article 21 envisages an expeditious procedure. Therefore, a procedure in which the trial was unduly delayed for no fault of the petitioner was held to be an anti-thesis of an expeditious procedure, termed as a blatant dilatory procedure, shocks the judicial conscience and casts a very sad reflection on the judicial system.

In Hussainara Khatoon (No.1) v. Home Secretary, State of Bihar, AIR 1979 SC 1360 case, a petition for a writ of habeas corpus was filed by a number of under-trial prisoners who were in Jails in the State of Bihar for years awaiting their trial. The Supreme Court held that the “right to a speedy trial” a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution. Speedy trial is the essence of criminal justice.

In Sheela Barse v. Union of India, (1986) 3 SCC 632 case, the Supreme Court addressed the question left unanswered in the Hussainara case about the consequences of delayed trial. The Court held that: “The right to speedy trial is a right implicit in Article 21 of the Constitution and the consequence of violation of this right would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.”

In Mangal Singh and Another v. Kishan Singh, AIR 2009 SC 1535 case, the Court observed: “Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in a trial does not cause acute suffering and anguish to the victim of the offence. In many cases, the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.”

In A. R. Atentulay v. R. S. Nayak, AIR 1992 SC 1701 case, the Apex Court issued guidelines for the time period during which different classes of cases are to be conducted and held “it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. While determining the alleged delay, the Court has to decide each case on its facts having regard to all attending circumstances including nature of the offence, the number of accused and witnesses, the workload of the Court concern, prevailing local conditions etc. – what is called systematic delay.” The salient features of the decision were:

• The right to a speedy trial flowing from Article 21 encompasses all the stages, namely those of investigation, inquiry, trial, appeal, revision and re-trial.
• In every case, where the right to a speedy trial is alleged to have been infringed, the first question to be put and answered is: who is responsible for the delay? Proceedings by either party in good faith, to vindicate their rights and interests as perceived by them, cannot be taken as delaying tactics; nor can the time taken in pursuing such proceedings be counted towards delay.
• While determining whether undue delay has occurred one must take into account all the attendant circumstances, including the nature of offence, the number of accused persons and witnesses, the court’s workload, the prevailing local conditions and so on.
• Every delay does not necessarily prejudice the accused. However, inordinately long delays may be taken as presumptive proof of prejudice. The prosecution should not be permitted to become a persecution. But when the prosecution becomes a persecution depends on the facts of a given case.
• An accused person’s plea of denial of a speedy trial cannot be defeated by saying that the accused did not at any time demand a speedy trial.
• The court has to balance and weigh several relevant factors – balancing test – and determine in each case whether the right to a speedy trial has been denied in a given case.
• Charge or conviction must be quashed if the court comes to the conclusion that the right to a speedy trial of an accused has been infringed. But this is not the only course open. It is open to the court to make any other appropriate order – including an order to conclude the trial within a fixed time period, where the trial is not concluded, or reducing the sentence, where the trial has concluded – as may be deemed just and equitable in the circumstances of the case.
• It is neither advisable nor practicable to fix any time limit for trial of offences.
• An objection based on denial of the right to a speedy trial and for relief on that account should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in cases of grave and exceptional nature. Such proceedings in the High Court must be disposed on a priority basis.

In Ranjan Dwivedi vs C.B.I Tr.Director General, (2012) 8 SCC 495 case, the accused was tried for the assassination of Shri. L.N. Mishra, the then Union Railway Minister. The trial was pending for the past 37 years. In view of the delay in completion of trial for more than 37 years from the date of the trial, the Petitioners presented Writ Petitions praying for quashing of the charges and trial. But it was held that the trial cannot be terminated merely on the ground of delay without considering the reasons thereof. Hence the petition was dismissed.

Right to Equality before the Law and Equal Treatment by the Law:

Article 14 of the Constitution states: “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 15(1) lays down the principle of non-discrimination according to which: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” This right is also available in trial stage and post trial stage.

The right to equality before the law and equal treatment by the law means that discrimination is prohibited throughout the judicial proceedings. Judges and officials may not act in a discriminatory manner when enforcing the laws and they must ensure that the rights of all are equally protected.

In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 case, the Supreme Court explained that the right to equality guaranteed by Article 14 not only prohibits the state from applying the law in a discriminatory manner, but also mandates that the law is not applied unreasonably, arbitrarily, fancifully or oppressively. The Court explained that Article 14 interacts with Article 21, thereby making any unreasonable or arbitrary proceeding a violation of Article 21.

In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 case,  one of the important directions given by the Court was that the Magistrate while authorizing detention should carefully look at the report submitted by the police and make sure that all the requirements laid down by the Supreme Court in that judgment have been complied with. It is only after being fully satisfied that the procedures have been strictly followed and recording this that remand should be granted.

In Motiram v. State of Madhya Pradesh (1978) 4 SCC 47 case, Motiram, a mason, appealed to the Supreme Court that despite being granted bail he was unable to secure his release because the Chief Judicial Magistrate fixed an exorbitant sum of Rs. 10,000 as surety. The Magistrate also rejected the surety offered by his brother because he resided in another district. Motiram wanted the Supreme Court to either reduce his surety amount or release him on personal bond. The Court said that, “it shocks one’s conscience to ask a mason to furnish a surety of Rs. 10,000 for a release on bail.” The Court also expressed anguish that the Magistrate had demanded surety from the appellant’s own district and wondered: “What is a Malayalee, Kannadiga, Tamilian or Andhra to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk?” Directing the release of the petitioner on his own bond for Rs. 1,000 the Court said that bail should be given liberally to poor people simply on a personal bond if reasonable conditions are satisfied. The bail amount should be fixed keeping in mind the financial circumstances of the accused and the accused should not be required to produce a surety from the same district especially when he/she is a native of some other place.

In the next article, we shall discuss the principles of fair trial and provisions of CrPC for the same in the trial stage.

Conclusion:

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. 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. In the pre-trial stage right to know accusations, the right of protection from an illegal arrest, the right to engage counsel, right to open and speedy trials are available.

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