CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

PROJECT WORK
CRIMINOLOGY AND CRIMINAL JUSTICE
ADMINISTRATION
“PRINCIPLE FEATURE OF FAIR TRAIL”

Submitted to Dr. P K Mishra

By- Swati Kumari

L.L.M

1st semester

CUSB1913131035

CUSB, Gaya

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 CONTENTS

SR.NO. TITLE PAGE NO.

04. PRIVATE LAW REVIEW 6

05. INJUNCTION 7-10

06. DECLARATION 11-13

07. DAMAGES 14-15

08. CONCLUSION 17

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 ACKNOWLEDGMENT

During the course of writing this project, I have received the help, encouragement and assistance from my teacher,
colleagues, friends, library staff and other. I am thankful to all of them.

I am very thankful to my teacher, Dr. P K Mishra for encouragement and support that he provided during the
preparation of the project.

I am deeply indebted to the works of eminent legal experts and law scholars and other scholars of repute, whose
valuable work has been highly useful in writing this project.

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Statement of the Problem

 The sole aim of law is to provide justice, equity and assurance of fair trial which is the first requirement of
disposal of justice.
 The denial of fair trial is the denial of justice.
 One of the content of natural justice is the guarantee of fair trial to the accused. In the criminal justice
system of every civilized nation the minimum fair trail is given to every accused person irrespective of his
cast or stature in society. One of the most valuable right of every accused is to get a fair and impartial trial
free from an atmosphere of prejudice
Hypothesis/Hypotheses

1. Fair trial is the cornerstone of the democracy. The sole aim of law is to provide justice, equity and
assurance of fair trial which is the first requirement of disposal of justice.
2. To protect the rights of accused of fair trail there are have various provisions in Indian Constitution dealing
with it.

Objectives of the Study.

The methodology adopted under this project work is totally based on Doctrinal Research.
Scope and Limitations of the Study

Because of paucity of time the study made under this work is purely relied on library, research article and internet.

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INTRODUCTION

The sole aim of law is to provide justice, equity and assurance of fair trial which is the first requirement of disposal
of justice. The denial of fair trial is the denial of justice. One of the content of natural justice is the guarantee of fair
trial to the accused. In the criminal justice system of every civilized nation the minimum fair trail is given to every
accused person irrespective of his cast or stature in society. One of the most valuable right of every accused is to get
a fair and impartial trial free from an atmosphere of prejudice 1. This right flows from article 21 of the Indian
Constitution which makes it obligatory upon states not to deprive any person of his life or personal liberty except
according to the procedure established by the law. The concept of fair trail is deep rooted in the history, enshrined in
the constitution, sanctified by religious philosophy and juristic doctrines and embodied in the statute intended to
regulate the course of a criminal trial. When a citizen has apprehension based on some fact, that he would not get a
fair trial in a court of law, then it’s the duty of the said court to remove the apprehension and provide him fair trial
and protect his right and enunciated under the provisions of article 21 of the constitution of India. The formal
concept of fair trial has been accepted as human rights jurisprudence in the Universal declaration of human rights
hereinafter referred as UDHR, 1948.Article 10 of Universal declaration of Human rights 1948 provides:

“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 14(1) of the International Covenant on Civil and Political Rights 1966, which India ratified on 10 April
1979 [hereinafter called as ICCPR] provides:

“All the persons shall be equal before the courts and tribunals. in the determination of any criminal charge against
him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing, by a
competent, independent and impartial tribunal established by the law….’’

Article 6 of the European Convention of Human Rights provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

As far as the Indian legal jurisprudence is concerned, the international promise of fair trial is very much concerned
and reflected in the constitution and also in the procedural law like CRPC. The Indian judiciary also highlighted the
need and importance of the fair trial in number of cases.

In ZAHIRA HABIBULLAH SHEIKH AND ORS V STATE OF GUJRAT 2(also known as the Best Bakery Case),
observed that the fair trail obviously would mean a trail before an impartial judge, a fair prosecutor and also an
atmosphere of judicial calm. Fair trial means a trial in which biasness or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. If the witness gets threatened or are forced to give false
evidences that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair
trial. The court also observed that the principles of fair trail now informs and energizes many areas of the law. It
reflected in numerous rules and practices.

1
Dr. Showkat Ahmad Bhat, “Fair Trail in Criminal Procedure: Notes towards evaluation of the Judicial Role” 25
Journal of Indian Law Institute 211 (1983).
2
(2006) 3 SCC 374 at 395

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The Supreme Court of India in the case of Willie (Williams) Slaney v State of Madhya Pradesh,3 observed that the
object of CRPC is to provide justice, and ensure the full and fair trial to the accused, along with well-established
principles of natural justice.

Fair trial is the cornerstone of the democracy. A fair trial is the heart of the criminal jurisprudence and important
facet of democratic polity that is governed by rule of law. Conducting a fair trial is beneficial to the accused and as
well as to the society. A conviction resulting from an unfair trail is contrary to our concept of justice. The assurance
of fair trial, is the first imperative of disposal of justice. The concept of fair trial is designed to protect the right to
life and personal liberty from arbitrary power of arrest.

In the case of T.H.Hussain v M.P.Mondkar, the Supreme Court has summarized concept of fair trial in the
following words.

It is obvious that the primary object of criminal procedure is to ensure a fair trial of the accused person. Every trail
begins with the presumption of innocence in favour of the accused; and the provisions are so framed that a criminal
trial should begin with and be throughout governed by this essential presumption, but a fair trial has naturally two
objects in view, it must be fair to the accused and it must also be fair to the prosecution. The test of fairness in a
criminal trial must be judged from this dual point of view.it is therefore, of the utmost importance that, in criminal
trial, witness should be able to give evidence without any inducement or threat either from the prosecution or the
defence. A criminal trial never be so conducted by the prosecution as would lead to a conviction of an innocent
person similarly and guilty person should not be leaved unpunished...

R.V.Kelkar in his 'Criminal Procedure' retreats the concept and need of fair-trial as….

One of the principle object of criminal law is to protect the entire society by punishing the offenders. However,
justice and fair play requires that no one should be punished without a fair trial. A person might be under a thick
cloud of suspicion of guilt and he might have been even caught red-handed, and yet he is not to be punished unless
and until he is tired or adjudged to be guilty by a competent court. In the administration of justice, it is of prime
importance that justice should not only be done but also seen to have been done. Further it is one of the cardinal
principal of criminal law that everyone is shed. The acquittal of innocen person and conviction of guilty person are
the objectives of criminal trial.

ARTICLE 21 OF THE INDIAN CONSTITUTION

Article 21 of the constitution is sometimes called as a “mini constitution”. It is one of the most important article in
the Indian constitution. Article 21 provides that, ‘no person shall be deprived of his life or personal liberty except
according to procedure established by the law’. The rights guaranteed under article 21 is available to citizens as well
as non-citizens. The supreme court of India in the case of Rattiaram v. State of Madhya Pradesh, observed that
the fair trial is the heart of the criminal jurisprudence. Fair trial is a fundamental right which flows from article 21 of
the Indian Constitution. The Denial of fair trial is the denial of human rights. Every person has a right to fair trial by
a competent court in the spirit of the right to life and personal liberty. In India, the term “Due Process” was avoided
and the term procedure established by law was adopted. However, by way of judicial interpretation the meaning is
same. Justice Krishna Ayer in the case of Sunil Batra v. Delhi Administration made the following observation:

Truly our constitution has no due process clause as the 8 th amendment of the US constitution but in this branch of
law after Maneka Gandhi and R.C. Cooper case the effect is the same.

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American constitution and fair trial:

 5th Amendment

American constitution, 1791 provides, "no person shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty or property without due process of law."

 6th Amendment

American constitution, 1791 states that, “in all criminal prosecution the accused shall enjoy the right to a speedy and
public trial by an impartial jury and to be informed of the nature and cause of the accusation to be confronted with
the witnesses against him, to have compulsory process for obtaining witnesses in his favour and have to assistance a
counsel for his defence.”

 8 th Amendment

American constitution of 1791, says that “excessive bail shall not be required nor excessive fine can be imposed, nor
shall cruel and unusual punishment be inflicted,”.

In USA the important facet of fair trial is the Due process clause. The due process is not defined anywhere but it is
explained as the procedure which is just, fair and reasonable. Due process has also been defined as a controlling
element for the legislature. The French declaration of 1789 makes a reference to due process clause under article 7
which reads as:

No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by
law.

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FAIR TRAIL

The concept of fair trial is based on basic ideology that State and its agencies have a duty to bring offenders before
the court of law. In their fight against crime and delinquency, State and its officers cannot forsake the decency of
State behavior on any ground and have recourse to other extra-legal methods for the sake of detection suspection of
crime and even criminals. For how can they demand for good behavior from others when their own behavior is
blameworthy, unjust and illegal? 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 offense should not be punished unless he has
been given a fair trial and his guilt has been proved in such trial.

In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors.

The Supreme Court of India observed that every individual has inherited the right of fair trial in criminal cases and if
their right is violated it is grave injustice to accused as well as to victim and society. Fair trial would definitely mean
a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial which
is free from any kind of biasness or prejudice.

The right to a fair trial is a fundamental safeguard and protection to ensure that individuals are protected from
unlawful or arbitrary deprivation of their human rights and freedoms, and most importantly of the right to liberty and
security of person.

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ESSENTIAL FEATURES OF FAIR TRAIL UNDER ADVERSARY SYSTEM
All over the world there are two types of criminal justice system one is adversely system and another is inquisitorial
system. India follows the adversely system where two parties contest each other and judge works as a neutral
umpire. The burden of proof is on prosecution to prove the guilt of accused beyond reasonable doubt. In Himanshu
Singh Sabharwal v State of M.P, the court observed that the fair trail envisaged under this code is not imparted to
the parties and the court has reason to believe that the prosecuting agencies or prosecutor is not acting in the
requisite manner the court can exercise its power under 311 of the code or under 165 of the Indian Evidence Act
1872 to call in for a material evidence’s and call for a relevant document as to sub serve the cause of justice.

The essential features of fair trail is as follows:

 Presumption of innocence

 Independent, impartial and competent judge

 Expeditious trail

 Hearing should be in open court

 Knowledge of accusation and Adequate opportunity to defend himself

 Trial in presence of accused.

 Evidences to be taken in presence of accused

 Cross examination of prosecution witnesses.

 Prohibition of double jeopardy

 Legal aid.

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BASIC FAIR TRIAL CRITERIA
The standards against which a trial is to be assessed in terms of fairness are numerous, complex, and constantly
changing. They may constitute binding obligations that are included in human rights treaties to which the state is a
party. But, they may also be found in documents which, though not formally binding, can be taken to express the
direction in which the law is gradually changing. In order to avoid possible challenges to the legal nature of the
standards employed in evaluating the fairness of a trial, monitors should refer to norms of undisputedly legal origin.
These are:

(i) the laws of the country in which the trial is being held;
(ii) the human rights treaties to which that country is a party, and
(iii) norms of customary international law.

Before observing a trial, a monitor should read relevant materials pertaining to domestic legislation. Due to the
various legal systems and legal orders involved, as well as the differing stages of their development, it is not
possible to devise a comprehensive list of essential texts. A minimum list would comprise:

i) a state Constitution, especially its provisions on human rights and the judicial system;
ii) its Criminal Code and Code of Criminal Procedure; statutes on the establishment and jurisdiction of
the courts and on the public prosecutor's office, and
iii) Landmark court decisions pertaining to human rights, particularly in common law countries. The aim
of an observer at this level of examination is to assess whether the applicable provisions of domestic
law guaranteeing a fair trial have been implemented and, if so, to what extent. It is well known that
while constitutions and statutes generally provide for some measure of fairness in criminal
proceedings, implementation by the courts is often not adequate. Before undertaking a trial observation
mission, a monitor should find out to which human rights treaties the respective state is a party. The
most important of these is the ICCPR, which contains several relevant articles in assessing the fairness
of a trial.

The right to a fair trial on a criminal charge is considered to start running not “only upon the formal lodging of a
charge but rather on the date on which State activities substantially affect the situation of the person concerned.”
This could obviously coincide with the moment of arrest, depending on the circumstances and situation of the case.
Fair trial must be observed from the moment from when the investigation against the accused commences until the
criminal proceedings, including any appeal, have been completed. The distinction between pre-trial procedures, the
actual tria procedure and post-trial procedures is sometimes blurred in fact, and the violation of rights during one
stage may have an effect on another stage. However the most relevant articles of the ICCPR can be loosely
segregated into three categories and the segregation is sometimes beneficial for the purposes of identifying which
issues will be of which particular interest during different time periods of the trial process.

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1. Adversary trial system:

The system adopted by the Criminal Procedure Code, 1973 is the adversary system based on the accusatorial
method. In this system responsibility for the production of evidence and testimonials 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.

Supreme Court has 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. and Ors., the apex court observed that if fair trial envisaged under
the Code is not imparted to the parties of the case and court has genuine reasons to believe that prosecuting agency
or prosecutor is not acting in the prescribed 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 produce the relevant
documents so as to sub serve the cause of justice.

2. Presumption of innocence:

Every criminal trial starts with the presumption of innocence in favour of the accused. The burden of proving the
guilt of the accused lies upon the prosecution and unless and until 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 maxim
principles ei incumbit probatio qui dicit, non qui negat, that is, the burden of proof rests on who asserts, not on who
denies.

In State of U.P. v. Naresh and Ors., Supreme Court observed that every accused in eyes of law is presumed to be
innocent unless and until he/she is proved to be guilty. The presumption of innonence is a human right which is
subject to some statutory exceptions and this said principle is the basis of criminal jurisprudence in India.

In Kali Ram v. State of H.P., the honorable Supreme Court observed that it is beyond doubt that wrongful acquittals
are not desirable and it shakes the confidence of the people in the judicial system. And the situation get much worse
when there is wrongful conviction of an innocent person. The consequences of the conviction of an innocent person
are far more serious than wrongful acquittal and its reverberations cannot be felt in a civilized society.

It is the duty of the prosecutor and defense counsel as well as all public authorities involved in a case to maintain the
presumption of innocence by refraining from pre-judging the outcome of the trial.

3. Independent, impartial and competent judges:

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.

The primary principle is that no man shall be judge in his own cause. Section 479 of the Criminal Procedure Code,
prohibits trial of a case by a judge or magistrate in which he is a party or otherwise personally interested. This
disqualification can be removed by obtaining the permission of the appellate court.

In Shyam Singh v. State of Rajasthan, the honorable court observed that the question is not whether biasness or
prejudice has actually affected the judgement. The real test is whether there exists a circumstance according to
which a litigant could reasonably apprehend that a biasness and prejudice attributable to a judicial officer must have
operated against him in the final decision of the case.

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In this regard section 6 of the Code is relevant which separates courts of Executive Magistrates from the courts of
Judicial Magistrates. Article 50 of the Indian Constitution also imposes similar duty on the state to take steps to
separate the judiciary from the executive.

4. Autrefois Acquit and Autrefois Convict:

According to this doctrine, if a person is tried and acquitted or convicted for any offence he cannot be tried again for
the same offence or on the same facts for any other offence. This doctrine has been substantially incorporated in
the article 20(2) of the Constitution and is also embodied in section 300 of the Cr. P.C.

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao, the honorable Supreme Court observed that Section
300(1) of Cr.P.C. is broader than Article 20(2) of the Constitution. While Article 20(2) of the Indian Constitution
only states that ‘no person can be prosecuted and punished for the same offence more than once’ whereas Section
300(1) of Cr.P.C. states that no person can be tried and convicted for the same offence or even for a different
offence but on the same facts. In the present case, although the offences are different but the facts of the case are
same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred
by Section 300(1) of Cr.P.C. The impugned judgment of the High Court was set aside.

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Pre-Trial Rights

The Cr. P.C. entitles an accused of certain rights during the course of any investigation, enquiry or trial of an offense
with which he is charged.

1. Knowledge of the 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. The Code therefore 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 offense of which he is accused shall be stated to him.

In case of serious offenses, 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 abstract, but a concrete accusation of an offense
alleged to have been committed by a person. The right to have precise and specific accusation is contained
in section 211, Cr. P.C.

2. 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.

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

In State of Punjab v. Gurmit, the honorable court held that the undue publicity of victims of rape is evidently
harmful to the unfortunate women victims of rape and other sexual offenses. Such publicity would badly affect their
future in many ways which can make their life miserable in society. Section 327(2) provides that the inquiry into the
matter of rape and trial of rape or an offense under Section 376, 376-A, 376-B, 376-C or 376-D of the Indian Penal
Code shall be conducted in camera.

3. Aid of counsel:

The requirement of fair trial involves two things:

a) an opportunity to the accused to secure a counsel of his own choice, and

b) the duty of the state to provide a counsel to the accused in certain cases.

The 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.

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In Khatri v. State of Bihar, the court held that the accused is entitled to free legal aid and free legal services not only
at the stage of trial but also when the case is first produced before the Magistrate and also when remanded.

Further, Article 39-A was also inserted in the Constitution as per the 42 nd Amendment, 1976, which requires that the
state should pass suitable legislation for promoting and providing free legal aid and services. To fulfill this
requirement Parliament enacted Legal Services Authorities Act, 1987. Section 12 of the Act provides legal
services to the persons specified in it.

In Suk Das and Ors. v. Union Territory of Arunachal Pradesh, the court strengthened the need and importance for
legal aid and held that free legal aid at state cost is a fundamental right of a person accused of an offense which may
involve jeopardy to his life or personal liberty. The exercise of this fundamental right is not conditional upon the
accused applying for free legal help so that if he does not make an application for free legal aid the trial may
lawfully proceed without adequate legal representation being afforded to him/her. On the other hand, the Magistrate
or the Sessions Judge is also under obligation to inform the accused about free legal aid if he is unable to hire a
lawyer for him/her.

In Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi, in this case the appellant is an illiterate
foreign national who was tried, convicted and sentenced to death by the trial court without assignment of counsel for
his defense. Such a result is confirmed by the High Court. The convict is charged, convicted and sentenced
under Sections 302/307 of Indian Penal Code and also under Section 3 of The Explosive Substances Act, 1908.
Fifty-six witnesses and investigating officer were examined without appellant having a counsel and none were cross-
examined by appellant. Only one witness cross-examined to complete the formality of this case.

Therefore 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 provided with legal aid/counsel at the last stage which amounted to a
denial of effective and substantial aid. Hence the appellant’s conviction and sentence was set aside. Section
304 does not confer any right upon the accused to have a pleader of his own choice for his defense at State expenses.
If, however. He objects to the lawyer assigned to him, he must be left to defend himself at his own expense.

4. 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, unless the Court finds the adjournment of the same beyond the
following day to be necessary for reasons to be recorded.

In Hussainara Khatoon v. State of Bihar the Supreme Court declared that speedy trial is an essential ingredient of
reasonable, just and fair trail guaranteed by article 21 of Indian Constitution and it is the constitutional obligation of
the state to set up such a procedure which would ensure speedy trial to the accused. The state has no option to avoid
its constitutional obligation by pleading financial or administrative inadequacy.

The Supreme Court in A.R. Antulay v. R.S. Nayak, issued guidelines for the time period during which different
classes of cases are to be concluded. It was held that it is neither advisable nor feasible to draw or prescribe an outer
time limit for conclusion of any criminal proceedings. While determining the alleged delay, the court has to decide
each and every case on its facts having regard to all attending circumstances including nature of offence, number of
accused and number of witnesses, the workload of the court concerned, prevailing local conditions etc.- what is
called systematic delay.” The aforesaid decision came up for consideration in the case of P. Ramachandra Rao and
was upheld and reaffirmed.

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

5. Protection against illegal arrest:

Section 50 of Cr.P.C 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.

In Pranab Chatterjee v. State of Bihar, the court held that Section 50 of Cr.P.C is mandatory. If all or any
particulars of offence are not communicated to an arrested person then his arrest and detention are illegal. The
grounds of arrest can be communicated to the accused orally or even impliedly by conduct.

Section 57 of Cr.P.C. and Article 22(2) of Indian Constitution provides that a person arrested under charge of any
criminal offence must be produced within 24 hours of arrest before a Judicial Magistrate. In State of Punjab v. Ajaib
Singh, the court held that arrest of a person without any warrant, call for a greater protection and production of
accused before magistrate within 24 hours ensures the immediate application of judicial mind to the legality of the
arrest.

The decisions of the Supreme Court in Joginder Kumar v. State of Uttar Pradesh and D.K. Basu v. State of West
Bengal, were enacted in Section 50-A making it compulsory on the part of the police officer to inform the friend or
relatives 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 matters of arrest. Section 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) of Cr.P.C provides that no woman shall be arrested after the sunset and before sunrise,
except only in exceptional situation and if any of such exceptional circumstances arises then it is the duty of
woman police officer to obtain the prior permission in written of the Judicial Magistrate of the first class within
whose local jurisdiction the offence is committed or the arrest is to be made.

6. Proceedings in the presence of the accused:

For the conduct of a fair trial, it is very necessary that all proceedings related to the case should take place in the
presence of the accused or in presence of his counsel. The underlying principle behind this is that in a criminal trial
the court should not proceed ex parte decision against the accused person. It is also necessary that it should
facilitates the accused to understand properly about the prosecution case and also to know about the witnesses
against him so that he can prepare for his defense.

The Code does not explicitly provide for compulsory presence of the accused in the trial. As section 317 of
Cr.P.C provides that a magistrate may dispense the trail with the attendance of accused and proceed with the trial if
personal presence of the accused is not necessary in the interests of justice if the accused persistently disturbs the
proceedings in court. The courts should insist upon the appearance of the accused only when it is in his interest to
appear before the court or when the court feels that his presence is necessary for effective disposal of the case.
Court should check that undue harassment is not caused to the accused person appearing before them. Section
273 of the Code provides that all evidences should be taken in the course of the trial shall in the presence of the
accused or if the personal attendance of the accused is not possible then the evidence shall be taken in the presence
of his/her pleader.

For the fair trial it is very necessary that the accused person has been given full opportunity to defend himself. This
is only possible when he/she is supplied with all the copies of the charge sheet, all necessary documents pertaining
to the investigation and the statements of the witnesses called by the police at the time of investigation. Section

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238 makes it obligatory on the part of Magistrate to supply all such copies of these documents to the accused free of
cost.

Article 14 of the Indian Constitution ensures that the parties to case should be treated equally with respect to the
introduction of evidences by means of interrogation of witnesses. The prosecution must inform the defense about the
witnesses it intends to call at trial within a reasonable time before the trial so that the defendant may have sufficient
time to prepare for his/her defense. In fairness to the accused, he/she or his/her counsel must be given full
opportunity to cross-examine the witness of the prosecution.

In Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delh.it was held by honorable court that every
person has a right to have a fair trial. A person who is accused of any serious charges must not be denied of this
valuable right. Here in this case the Appellant was not provided an opportunity to cross-examine the fifty-six
witnesses. Out of fifty- six witnesses only one witness was cross-examined to complete the formality of the
case. Hence the conviction and sentence of appellant was set aside.

In Badri v. State of Rajasthan, the honorable court held that where a prosecution witness was not allowed to be
cross-examined by the defense on a material point with reference to his earlier statement made before the police, his
evidence stands untested by cross-examination and cannot be accepted as corroborating his previous statement.

7. Right to bail:

By virtue of Section 436 of Cr.P.C the accused has right to claim bail as a matter of right in cases which are of
bailable nature in the First Schedule to the Code. Bail is basically release of person from any kind of physical
restraint, more particularly, release of person from custody of the police. An order of bail gives back the accused
freedom of his movement on condition that he/she will appear to take his trial or whenever called upon by the Court.
If the offense is bailable, bail will be granted without more ado. But bail under Section 389(1) after conviction is not
a matter of right whether the offense is bailable or non-bailable.[xxvii] If no charge -sheet is filed before the expiry
of 60/90 days as the case may be; the accused in custody has a right to be released on bail. In non-bailable offenses,
the Magistrate has the power to release on bail without notice to the other side if charge sheet is not filed within a
period of sixty days. The provision of bail to women, sick and old age persons is given priority subject to the nature
of the offense.

8. Prohibition on double jeopardy:

The concept of double jeopardy is based on the doctrine of ‘autrefois acquit’ and ‘autrefois convict’ which means
that if a person is tried and acquitted or convicted of any offense he cannot be tried again for the same offense or on
the same facts for any other offense. This clause embodies the common law rule of nemo debet vis vexari which
means that no man should be sentenced twice or sent in peril twice for the same offense.

Section 300 of the Cr.P.C, provides that persons once convicted or acquitted for any offense he shall not be liabe to
be tried again for the same offence or on the same facts for any other offense. Plea of double jeopardy is not
applicable in cases where the proceedings for which the accused is being tried are distinct and separate from the
offenses for which the accused has already been tried and convicted.

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao, the Supreme Court differentiated between Section
300(1) of Cr. P.C. and article 20(2) of the Indian Constitution. While, Article 20(2) of the Constitution only states
that ‘no one can be prosecuted and punished for the same offense more than once wheras, Section 300(1) of Cr.P.C.
states that no one can be tried and convicted for the same offense or even for a different offense on the same facts.
Therefore the second prosecution would be barred by Section 300(1) of Cr.P.C.

In S.A. Venkataraman v. Union of India, the appellant was dismissed from service as a result of an inquiry under
the Public Servants (Inquiries) Act of 1960. After the proceedings was before the Enquiry Commissioner, the
appellant was prosecuted before the Court for having committed offense under the Indian Penal Code, and the
Prevention of Corruption Act. The Supreme Court held that the proceeding taken before the Enquiry Commissioner

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did not amount to a prosecution for an offense. It was in the nature of a fact-finding to advise the Government for
disciplinary action against the appellant. It cannot be said that the person has been prosecuted for the offence.

In Leo Roy Frey v. Superintendent, District Jail, the accused was prosecuted and punished under the Sea Customs
Act, 1878. Later on, he was prosecuted under Section 120 of the Indian Penal Code, 1860 for conspiracy to commit
the act for which he was already convicted under the Sea Customs Act, 1878. It was held that the second prosecution
was not barred by Article 20(2), since it was not for the same offense. Committing an offense and conspiracy to
commit that offense has been held to be two distinct nature of offences. They both are not of same nature.

9. Right against self-incrimination:

Clause (3) of Article 20 of Indian Constitution 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 accussare seipsum, which
means that “no man is bound to accuse himself.

In State of Bombay vs. Kathi Kalu, the Supreme Court held that “to be a witness” is not equivalent to “furnishing
evidence”. Self-incrimination must mean conveying the information which is based upon the personal knowledge of
the person giving the information and cannot merely include the mechanical process of producing documents in
Court which may throw a light on any points which is in the controversy, but which do not contain any statement of
the accused based on his/her personal knowledge. Compulsion means duress which includes threatening, beating or
imprisoning the wife, parent or child of a person. Thus where the accused makes a confession without any
inducement, coercion, threat or promise article 20(3) does not apply.

The Apex Court in Selvi v. State of Karnataka, drew following conclusions:

 The taking and retention of DNA samples which are in the nature of physical evidence does not face any
constitutional hurdles in the Indian context.
 Subjecting person to narco- analysis, Polygraphy and Brain fingerprinting tests involuntarily, amounts to
forcible interference with person’s mental process, and hence it violates the right of privacy as well as
provisions of Article 20(3).
 A person administering the narco-analysis technique is encouraged to speak in a drug-induced State and
there is no sufficient reason as to why such act should be treated differently from any verbal answers during
an ordinary interrogation.

In Dinesh Dalmia v. State of Madras, the honorable court held that the scientific tests resorted to by the
investigating officer does not amount to testimonial compulsion. Hence, the petition was dismissed.

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Post-Trial Rights
1. Lawful punishment:

Article 20(1) of Indian Constitution talks about Ex-Post facto law, which means that a person can be convicted of an
offense only if that act is made punishable by a law in force at that very point of time. It gives constitutional
recognition to the rule that no one can be convicted except for the violation of a law in force. In Om Prakash v.
State of Uttar Pradesh, offering bribe was not an offense in 1948. Section 3 of the Criminal Law (Amendment) Act,
1952 inserted Section 165A in the Indian Penal Code, 1860, declaring offering bribe as punishable offence under
the eyes of law. 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 offense. It prohibits the enhancement of
punishment for any offense 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. They are still person and living being. And prisoners must also be dealt
properly in a reformative way. Prison deprives liberty. Even while doing this, prison system must aim at reformation
and rehabilitation. In the prison or remand homes, prisoners must be treated with the process geared to psychic
healing of prisoners, release of stress, restoration of self-respect apart from training to adapt oneself to the life
outside the jail. Every prisoner has the right to a safe, clean and sanitized environment in the jail, right to be
medically examined by the medical officer, right to visit and access by their family members, etc. Recognizing the
right to medical facilities, the National Human Rights Commission recommended the award of Rs. 1 Lakh to be
paid as compensation by the Govt. of Maharashtra to the dependents of an under trial prisoner who died in the Nasik
Road Prison due to lack of any medical treatment.

3. Right to file appeal:

Section 389(1) of Cr.P.C empowers the appellate court to suspend execution of sentence, or when the convicted
person is in confinement then to grant bail pending any appeal to it. Court need not require to give any notice to the
public prosecutor before suspending sentence or releasing the prisoner 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
bailable or non-bailable and should be allowed only when reading the judgment and hearing the accused is
considered to be justified.

4. Proper execution of sentence:

The hanging of Afzal Guru was criticized by many human rights activists, legal experts all over the country. In
carrying out Afzal Guru’s death sentence, the government intentionally and deliberately ignored all the view of the
Supreme Court and the other courts across the world that hanging a person after holding him in custody for many
years is inhuman. Mohammad Afzal Guru was convicted by Indian court for attacking on the Indian Parliament in
the year December 2001, and was 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. His mercy petition was rejected by the
President of India, Pranab Mukherjee on 3 February 2013. He was secretly hanged at Delhi’s Tihar Jail around on 9
February 2013.

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CONCLUSION
At last I would conclude my project by saying that India is a democratic country where every person or every
individuals has been given numerous numbers of rights and liberties. Indian is a country with lengthiest constitution
which recognizes the maximum number of rights to its citizen as well as non- citizens also. There are various rights
which are given to the individual soon after his birth and even before birth after the forming of fetus in the mother’s
womb. There are some inherent right inherited soon after an individual has came into the existence such as
Fundamental Rights, Human Rights, Natural Rights e.t.c.. A part from these, there are various codification as well as
codification which deals with rights of people. People also here includes prisoners, accused e.t.c..

The sole aim of law is to provide justice, equity and assurance of fair trial which is the first requirement of disposal
of justice. The denial of fair trial is the denial of justice. One of the content of natural justice is the guarantee of fair
trial to the accused. In the criminal justice system of every civilized nation the minimum fair trail is given to every
accused person irrespective of his cast or stature in society. One of the most valuable right of every accused is to get
a fair and impartial trial free from an atmosphere of prejudice. This right flows from article 21 of the Indian
Constitution which makes it obligatory upon states not to deprive any person of his life or personal liberty except
according to the procedure established by the law. The concept of fair trail is deep rooted in the history, enshrined in
the constitution, sanctified by religious philosophy and juristic doctrines and embodied in the statute intended to
regulate the course of a criminal trial.

The judge is not to draw any inferences against the accused from the fact that he has been charged with a crime. He
must decide the case solely on the evidence presented during the trial. It is well settled that while dealing with a
judgment of acquittal, an appellate court must consider the entire evidence on record so as to arrive at a finding as to
whether the views of the trial court were perverse or otherwise unsustainable. “Equality, Justice and Liberty” is the
trinity of fair trial recognized in the administration of justice of India where the affluent and the “lowly and lost”
have the equality of access to justice in the administration of justice in general and the criminal justice system in
particular. This fundamental principle of fair trial is the backdrop of the International Covenants, and enjoined in the
Constitution of India as well as the criminal laws devising the criminal justice system of India.

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REFERENCES

1. Indian Penal Code (With the Criminal Law (Amendment) Act, 2018.

2. Civil Procedure (CPC) with Limitation Act, 1963.

3. Criminal Procedure Code, Ratan Lal and Dhiraj Lal.

4. Manupatra.

5. Basu, D.D. (2013). Introduction to the Constitution of India, (LexisNexis, Haryana, 2013 (p.30).

6. Constitution of India (1950), as amended in 2007, Government of India, Ministry of Law and
Justice; http://lawmin.nic.in/coi/coiason29july08.pdf

7. jstor

8. Legal serviceindia.com.

9. Lectures on criminal procedure,R.V.Kelkar.

10. criminal procedure code, 1973.

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11. Singh, Mahendra P. (2010). Constitution of India, Eastern Book Company, New Delhi,
2010 (p. 363, 914).

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