INDORE INSTITUTE OF LAW (Affiliated to D.A.V.V. & Bar Council of India)

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B.A.LLB. (HONS.)

Project Subject :  

Project Topic : Submitted to : Submitted by : Avinash Rai

Date-:01/06/2016 Semester : VI CERTIFICATE

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

Faculty Signature :

Date:

ACKNOWLEDGEMENT

It is not possible to prepare a project report without the assistance and

encouragement of other people. This is certainly an exception. On the very outset

of this project I would like to extend our sincere and heartfelt obligation towards

all the personages who have helped me in this endeavor. Without their active

guidance, help, cooperation and encouragement, we would not have made headway

in the project.

I am thankful to Asst. Prof. .for conscientious guidance and

encouragement to accomplish this assignment. I extend my gratitude to INDORE

INSTITUTE OF LAW for giving me this opportunity. I also acknowledge with a

deep sense of reverence, my gratitude towards my friends and members of my

family who have always supported us morally as well as economically.

Thanking You

Avinash Rai

DECLARATION

I hereby declare that the project titled “ ”

is my original work.

I take full responsibility for any kind of plagiarism.

Signature Of Student :

INTRODUCTION

Fair trial is an integral part of Article 21 of the Constitution and rests on the basic principle of presumption of innocence. The research paper focuses on the concept of fair trial in India. International instruments such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights. The right to a fair trial is a norm of international human rights law and also adopted by many countries in their procedural law. Countries like U.S.A., Canada, U.K., and India have adopted this norm and it is enshrined in their Constitution.  The right to a fair trial has been defined in numerous international instruments. The major features of fair criminal trial are preserved in Universal Declaration of Human Rights, 1948.

Article 10(i)- Everyone is entitled in full equality to a fair and public hearing by an independent

and impartial tribunal, in the determination of his rights and obligations and of any criminal

charge against him.

Article 11(ii)- (1) Everyone charged with a penal offence has the right to be presumed innocent

until proved guilty according to law in a public trial at which he has had all the guarantees

necessary for his defense. (2) No one shall be held guilty of any penal offence on account of any

act or omission which did not constitute a penal offence, under national or international law, at

the time when it was committed. Nor shall a heavier penalty be imposed than the one that was

applicable at the time the penal offence was committed.

Article 14 of the International Covenant on Civil and Political Rights reaffirmed the objects of

UDHR and provides that “Everyone shall be entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law. Article 14(2) provides for the presumption

of innocence, and article 14(3) sets out a list of minimum fair trial rights in criminal proceedings.

Article 14(5) establishes the rights of a convicted person to have a higher court review the

conviction or sentence, and article 14(7) prohibits double jeopardy

Section 11 of the Canadian Charter of Rights and Freedoms, protects a person’s basic legal rights

in criminal prosecution.

1

Concept of the fair trail

The concept of fair trial is based on the basic ideology that State and its agencies have the duty to

bring the offenders before the law. In their battle against crime and delinquency, State and its

officers cannot on any account forsake the decency of State behavior and have recourse to extra-

legal methods for the sake of detection of crime and even criminals. Therefore the procedure

adopted by the State must be just, fair and reasonable. The Indian courts have recognized that the

primary object of criminal procedure is to ensure a fair trial of accused persons. Human life

should be valued and a person accused of any offence should not be punished unless he has been

given a fair trial and his guilt has been proved in such trial.

At the present stage of civilization, it has been universally accepted as a human value that a

person accused of any offence should not be punished unless he has been given a fair trial and

his guilt has been proved in such trial. The notion of fair trial, like all other concept incorporating

fairness on reasonableness cannot be explained in absolute terms. Fairness is a relative concept

and therefore fairness in criminal trial could be measured only in relation to the gravity of the

accusation, the time and resources which the society can reasonable afford to spend, the quality

of available resources, the prevailing social values.

1 . S.N. Mishra

Fair Trial Rights

The right to a fair trial has been defined in numerous regional and international human rights instruments. It is one of the most extensive human rights and all international human rights instruments enshrine it in more than one article. The right to a fair trial is one of the most litigated human rights and substantial case law that has been established on the interpretation of this human right. Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms. The aim of the right is to ensure the proper administration of justice. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings.

The right to be heard by a competent, independent and impartial tribunal. The right to a public hearing The right to be heard within a reasonable time The right to counsel The right to interpretation The right to a trial without undue delay

The right to be heard by a competent

Everyone whose rights are affected or who is accused of any wrongdoing has the right to legal

recourse. Such recourse is only useful if the quality of the administration of justice meets

minimum requirements. In this respect the International Covenant on Civil and Political Rights

and the American Convention on Human Rights clearly require a competent, independent and

impartial tribunal. The right to an independent and impartial tribunal established by law contains

both objective and subjective elements. The objective requirements are mainly institutional,

demanding the separation of powers within the constitutional structure of the country. The

subjective element requires that any semblance of dependence must be avoided by the (members

of the) tribunal. They should avoid any act, attitude or comment which may lead to doubts

among litigants as to the independence of the tribunal. Such avoidance is also part of the

necessary impartiality of the judiciary.

The right to a public hearingThe right to a fair trial is fundamental to the rule of law and to democracy itself. The right ap2plies to both criminal and civil cases, although certain specific minimum rights set out in Article 6 apply only in criminal cases. The right to a fair trial is absolute and cannot be limited. It requires a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  The procedural requirements of a fair hearing might differ according to the circumstances of the accused. Article 14(1) of the ICCPR also guarantees the right to a public hearing, as one of the essential elements of the concept of a fair trial. However, it also permits several exceptions to this general rule under specified circumstances.

The right to be heard within a reasonable time

Article 14(1) of the ICCPR also guarantees the right to a public hearing, as one of the essential elements of the concept of a fair trial. However, it also permits several exceptions to this general rule under specified circumstances. The publicity of a trial includes both the public nature of the hearings not, it should be stressed, of other stages in the proceedings and the publicity of the judgment eventually rendered in a case. It is a right belonging to the parties, but also to the general public in a democratic society. The right to a public hearing means that the hearing should as a rule be conducted orally and publicly, without a specific request by the parties to that effect.

The right to counsel

Right to counsel means a defendant has a right to have the assistance of counsel and if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right of trial.

The right to interpretation

The Indian judiciary has time and time again interpreted article 21 of the Indian constitution in new and innovative ways in order to bring relief to the oppressed. However the Supreme Court has started to declare rights which are difficult to enforce and may be only be law for namesake. The Court should take into consideration the enforceability of a right or else it will just remain an empty promise. The fundamental right to life and personal liberty has become a favorite provision for the judiciary to experiment with, to redress a variety of injustices and social wrongs. This has led to some rather impractical rulings by the Supreme Court. Granting a right 2 . www.lawctopus.com

which is never enforced is akin to giving an empty promise. Progress must be tempered with reality.

The right to a trial without undue delay

In the determination of any criminal charge against him/her, everyone shall be entitled to be tried without undue delay Article 14(3)(c). This provision has been interpreted to signify the right to a trial that produces a final judgment and if appropriate a sentence without undue delay. The time limit begins to run when the suspect accused defendant is informed that the authorities are taking specific steps to prosecute him. The assessment of what may be considered undue delay will depend on the circumstances of a case its complexity the conduct of the parties whether the accused is in detention.

Pre-Trial RightsThe Cr. P.C. entitles an accused of certain rights during the course of any investigation, enquiry or trial of an offence with which he is charged.

Right to open trial

Aid of counsel

Expeditious trial

Protection against illegal arrest

Right to bail

Right against self-incrimination

Right to open trial

Fair trial also requires public hearing in an open court. The right to a public hearing means that

the hearing should as a rule is conducted orally and publicly without a specific request by the

parties to that effect. A judgment is considered to have been made public either when it was

orally pronounced in court or when it was published, or when it was made public by a

combination of those methods.

Section 327 of the Code makes provision for open courts for public hearing but it also gives

discretion to the presiding judge or magistrate that if he thinks fit he can deny the access of the

public generally or any particular person to the court during disclosure of indecent matter or

when there is likelihood of a disturbance or for any other reasonable cause.

 Aid of counsel

The requirement of fair trial involves two thing

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

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

The Law Commission of India in its 14th Report has mentioned that free legal aid to persons of

limited means is a service which a Welfare State owes to it citizens. In India right to counsel is

recognized as fundamental right of an arrested person under article 22(1) which provides inter

alia no person shall be denied the right to consult, and to be defended by a legal practitioner of

his choice. Sections 303 and 304 of the Code are manifestation of this constitutional mandate.

Expeditious trial

Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed justice leads

to unnecessary harassment. The concept of speedy trial is an integral part of article 21 of the

Constitution. The right to speedy trial begins with actual restraint imposed by arrest and

consequent incarceration, and continues at all stages namely, the stage of investigation, inquiry,

trial, appeal and revision. Section 309(1) provides in every inquiry or trial, the proceedings shall

be held as expeditiously as possible and in particular when the examination of witnesses has

once begun the same shall be continued from day to day until all the witnesses in attendance

have been examined.

 Protection against illegal arrest

Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick to see the possibility of crime but they ought to be anxious to avoid mistaking the innocent for the guilty. The burden is on the police officer to satisfy the court before which the arrest is challenged that he had reasonable grounds of suspicion.

 Right to bail

By virtue of Section 436 the accused can claim bail as a matter of right in cases which have been shown as boilable offences in the First schedule to the Code. Bail is basically release from restraint more particularly release from custody of the police. An order of bail gives back to the accused freedom of his movement on condition that he will appear to take his trial. If the offence is boilable.

Post-Trial Rights

1. Lawful punishment

Article 20(1) explains that a person can be convicted of an offence only if that act is made

punishable by a law in force. It gives constitutional recognition to the rule that no one can be

convicted except for the violation of a law in force Section 3 of the Criminal Law Amendment

Act 1952 inserted Section 165A in the Indian Penal Code 1860 declaring offering bribe as

punishable. It was held that the accused could not be punished under Section 165A for offering

bribe in 1948. Article 20(1) provides that no person shall be subjected to a penalty greater than

that which might have been inflicted under the law in force at the time of the commission of the

offence. It prohibits the enhancement of punishment for an offence retrospectively. But article

20(1) has no application to cases of preventive detention.

2. Right to human treatment:

A prisoner does not become a non-person. Prison deprives liberty. Even while doing this, prison

system must aim at reformation. In prison treatment must be geared to psychic healing release of

stress restoration of self-respect apart from training to adapt oneself to the life outside. Every

prisoner has the right to a clean and sanitized environment in the jail, right to be medically

examined by the medical officer right to visit and access by family members.

3. Right to file appeal

Section 389(1) empowers the appellate court to suspend execution of sentence owhen the

convicted person I in confinement to grant bail pending any appeal to it. Court need not give

notice to the public prosecutor before suspending sentence or releasing on bail. Existence of an

appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of

right irrespective of whether the offence is boilable or non-boilable and should be allowed only

when after reading the judgment and hearing the accused it is considered justified.

4. Proper execution of sentence

The hanging of Afzal Guru was criticized by human rights activists legal experts all over the

country. In carrying out Afzal Guru’s death sentence the government deliberately ignored the

view of the Supreme Court and courts across the world that hanging a person after holding him

in custody for years is inhuman. Mohammad Afzal Guru was convicted by Indian court for the

December 2001 attack on the Indian Parliament and sentenced to death in 2003 and his appeal

was rejected by the Supreme Court of India in 2005. The sentence was scheduled to be carried

out on 20 October 2006 but Guru was given a stay of execution after protests in Jammu and

Kashmir and remained on death row. On 3 February 2013, his mercy petition was rejected by the

President of India Pranab Mukherjee. He was secretly hanged at Delhi’s Tihar Jail around on 9

February 2013.

Principles Of Fair Trial

There are given principal of fair trial.

Adversary trial systemThe system adopted by the Criminal Procedure Code 1973 is the adversary system based on the accusatorial method. In adversarial system responsibility for the production of evidence is placed on the prosecution with the judge acting as a neutral referee. This system of criminal trial assumes that the state on one hand by using its investigative agencies and government counsels will prosecute the wrongdoer who on the other hand will also take recourse of best counsels to challenge and counter the evidences of the prosecution.

Presumption of innocenceEvery criminal trial begins with the presumption of innocence in favor of the accused. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden the courts cannot record a finding of the guilt of the accused.

 Independent, impartial and competent judgesThe basic principle of the right to a fair trial is that proceedings in any criminal case are to be conducted by a competent independent and impartial court. In a criminal trial as the state is the prosecuting party and the police is also an agency of the state it is important that the judiciary is unchained of all suspicion of executive influence and control direct or indirect. The whole burden of fair and impartial trial thus rests on the shoulders of the judiciary in India.

GENERAL PRINCIPLES APPLICABLE TO ALL LEGAL PROCEEDINGS

1. Fair and Public HearingIn the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body.

2. Fair Hearing

The essential elements of a fair hearing include:

(a) equality of arms between the parties to a proceedings, whether they be administrative, civil, criminal, or military;

(b) equality of all persons before any judicial body without any distinction whatsoever as regards race, color, ethnic origin, sex, gender, age, religion, creed, language, political or other convictions, national or social origin, means, disability, birth, status or other circumstances;

(c) equality of access by women and men to judicial bodies and equality before the law in any legal proceedings;

(d) respect for the inherent dignity of the human persons, especially of women who participate in legal proceedings as complainants, witnesses, victims or accused;

(e) adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence;

(f) an entitlement to consult and be represented by a legal representative or other qualified persons chosen by the party at all stages of the proceedings;

(g) an entitlement to the assistance of an interpreter if he or she cannot understand or speak the language used in or by the judicial body;

(h) an entitlement to have a party’s rights and obligations affected only by a decision based solely on evidence presented to the judicial body;

(i) an entitlement to a determination of their rights and obligations without undue delay and with adequate notice of and reasons for the decisions; and

(j) an entitlement to an appeal to a higher judicial body.

Public hearing:

(a) All the necessary information about the sittings of judicial bodies shall be made available to the public by the judicial body;

(b) A permanent venue for proceedings by judicial bodies shall be established by the State and widely publicized. In the case of ad-hoc judicial bodies, the venue designated for the duration of their proceedings should be made public.

(c) Adequate facilities shall be provided for attendance by interested members of the public;

(d) No limitations shall be placed by the judicial body on the category of people allowed to attend its hearings where the merits of a case are being examined;

(e) Representatives of the media shall be entitled to be present at and report on judicial proceedings except that a judge may restrict or limit the use of cameras during the hearings;(f) The public and the media may not be excluded from hearings before judicial bodies except if it is determined to be1. in the interest of justice for the protection of children, witnesses or the identity of victims of sexual violence2. for reasons of public order or national security in an open and democratic society that respects human rights and the rule of law.

(a) Judicial bodies may take steps or order measures to be taken to protect the identity and dignity of victims of sexual violence, and the identity of witnesses and complainants who may be put at risk by reason of their participation in judicial proceedings.

(b) Judicial bodies may take steps to protect the identity of accused persons, witnesses or complainants where it is in the best interest of a child.

(c) Nothing in these Guidelines shall permit the use of anonymous witnesses, where the judge and the defense is unaware of the witness’ identity at trial.Any judgment rendered in legal proceedings, whether civil or criminal, shall be pronounced in public.

Independent tribunal

(a) The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities.

(b) Judicial bodies shall be established by law to have adjudicative functions to determine matters within their competence on the basis of the rule of law and in accordance with proceedings conducted in the prescribed manner.

(c) The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for decision is within the competence of a judicial body as defined by law.

(d) A judicial body’s jurisdiction may be determined, inter alia, by considering where the events involved in the dispute or offence took place, where the property in dispute is located, the place of residence or domicile of the parties and the consent of the parties.

(e) Military or other special tribunals that do not use the duly established procedure of the legal process shall not be created to displace the jurisdiction belonging to the ordinary judicial bodies.

(f) There shall not be any inappropriate or unwarranted interference with the judicial process nor shall decisions by judicial bodies be subject to revision except through judicial review, or the mitigation or commutation of sentence by competent authorities, in accordance with the law

(g) All judicial bodies shall be independent from the executive branch.

(h) The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.

(i) The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.

(j) Any person who meets the criteria shall be entitled to be considered for judicial office without discrimination on any grounds such as race, color, ethnic origin, language, sex, gender, political or other opinion, religion, creed, disability, national or social origin, birth, economic or other status. However, it shall not be discriminatory for states to:

1. prescribe a minimum age or experience for candidates for judicial office;

2. prescribe a maximum or retirement age or duration of service for judicial officers;

3. prescribe that such maximum or retirement age or duration of service may vary with different level of judges, magistrates or other officers in the judiciary;

4. require that only nationals of the state concerned shall be eligible for appointment to judicial office.

(a) No person shall be appointed to judicial office unless they have the appropriate training or learning that enables them to adequately fulfill their functions.

(b) Judges or members of judicial bodies shall have security of tenure until a mandatory retirement age or the expiry of their term of office.

(c) The tenure, adequate remuneration, pension, housing, transport, conditions of physical and social security, age of retirement, disciplinary and recourse mechanisms and other conditions of service of judicial officers shall be prescribed and guaranteed by law.

(d) Judicial officers shall not be:

1. liable in civil or criminal proceedings for improper acts or omissions in the exercise of their judicial functions;

2. removed from office or subject to other disciplinary or administrative procedures by reason only that their decision has been overturned on appeal or review by a higher judicial body;

3. appointed under a contract for a fixed term.

(a) Promotion of judicial officials shall be based on objective factors, in particular ability, integrity and experience.

(b) Judicial officials may only be removed or suspended from office for gross misconduct incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties.

(c) Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings.

(d) The procedures for complaints against and discipline of judicial officials shall be prescribed by law. Complaints against judicial officers shall be processed promptly, expeditiously and fairly.

(e) Judicial officers are entitled to freedom of expression, belief, association and assembly. In exercising these rights, they shall always conduct themselves in accordance with the law and the recognized standards and ethics of their profession.

(f) Judicial officers shall be free to form and join professional associations or other organizations to represent their interests, to promote their professional training and to protect their status.

(g) States may establish independent or administrative mechanisms for monitoring the performance of judicial officers and public reaction to the justice delivery processes of judicial bodies. Such mechanisms, which shall be constituted in equal part of members the judiciary and representatives of the Ministry responsible for judicial affairs, may include processes for judicial bodies receiving and processing complaints against its officers.

(h) States shall endow judicial bodies with adequate resources for the performance of its their functions. The judiciary shall be consulted regarding the preparation of budget and its implementation.

Impartial Tribunal 

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

RELETED CASE

Himanshu Singh Sabharwal

Vs.

State of M.P

DATE OF JUDGMENT 12/03/2008

CITATION: Transfer Petition 175 of 2007

Fact of this case

Transfer Petition (Crl.) No.175 of 2007 has been filed by one Himanshu Singh Sabharwal who is

the son of late Prof. H.S. Sabharwal. Prof. H.S. Sabharwal was a professor in Government

College, Ujjain, M.P. He was brutally beaten up by certain persons, for taking a rigid stand in the

college union elections. Though the assaults were made in the presence of several police

officials, media persons and members of public, attempt has been made to project as if his death

was as a result of an accident. Initially, First Information Report was lodged and after

investigation charge sheet was filed and charges have been framed against several persons who

are respondents in the Transfer Petition. Grievance of the petitioner is that the witnesses have

been coerced, threatened and ultimately justice is a casualty. Role of the investigating officer

gives ample scope to doubt, impartiality and the sincerity of the investigating agency. Similar is

the position of the public prosecutor. It is also highlighted that the trial Court also did not make a

serious effort to see that justice is done. In this connection it is pointed out that public prosecutor

did not cross-examine the persons who had resided from their statements made during

investigation. This according to the petitioner also shows that the trial Court did not act as is

required under law. By order dated 11.7.2007 the proceedings in the sessions case were stayed.

In pursuance of the notice the respondent- State and accused respondents have appeared.  if any

person is guilty he has to be punished and State never had or has any intention to protect any

guilty person.

Right from the inception of the judicial system it has been accepted that discovery, vindication

and establishment of truth are the main purposes underlying existence of Courts of justice. The

operating principles for a fair trial permeate the common law in both civil and criminal contexts.

Application of these principles involves a delicate judicial balancing of competing interests in a

criminal trial, the interests of the accused and the public and to a great extent that of the victim

have to be weighed not losing sight of the public interest involved in the prosecution of persons

who commit offences. Restraints on the processes for determining the truth are multi-faceted.

They have emerged in numerous different ways, at different times and affect different areas of

the conduct of legal proceedings. By the traditional common law method of induction there has

emerged in our jurisprudence the principle of a fair trial.

The principle of fair trial now informs and energises many areas of the law. It is reflected in

numerous rules and practices. It is a constant, ongoing development process continually adapted

to new and changing circumstances, and exigencies of the situation peculiar at times and related

to the nature of crime, persons involved - directly or operating behind, social impact and societal

needs and even so many powerful balancing factors which may come in the way of

administration of criminal justice system. As will presently appear, the principle of a fair trial

manifests itself in virtually every aspect of our practice and procedure, including the laws of

evidence. It is desirable that the requirement of fairness be separately identified since it

transcends the content of more particularized legal rules and principles and provides the ultimate

rationale and touchstone of the rules and practices which the common law requires to be

observed in the administration of the substantive criminal law.

This Court has often emphasized that in a criminal case the fate of the proceedings cannot always

be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of

public rights and duties, which affect the whole community as a community and harmful to the

society in general. The concept of fair trial entails familiar triangulation of interests of the

accused, the victim and the society and it is the community that acts through the State and

prosecuting agencies. Interests of society is not to be treated completely with disdain and as

persona non grata. Courts have always been considered to have an over-riding duty to maintain

public confidence in the administration of justice often referred to as the duty to vindicate and

uphold the 'majesty of the law'. Due administration of justice has always been viewed as a

continuous process, not confined to determination of the particular case, protecting its ability to

function as a Court of law in the future as in the case before it. If a criminal Court is to be an

effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a

mere recording machine by becoming a participant in the trial evincing intelligence, active

interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out

the truth, and administer justice with fairness and impartiality both to the parties and to the

community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious

or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still

possible, except at the risk of undermining the fair name and standing of the judges as impartial

and independent adjudicators.

The principles of rule of law and due process are closely linked with human rights protection.

Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has

to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be

fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of

the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual

situations with the ultimate object in mind. Whether something that was done or said either

before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice

has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with.

That would be turning Nelson's eyes to the needs of the society at large and the victims or their

family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal

trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.

Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and

atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the

accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get

threatened or are forced to give false evidence that also would not result in a fair trial. The failure

to hear material witnesses is certainly denial of fair trial.

 A fair trial is the first imperative of the dispensation of justice and the central criterion for the

court to consider when a motion for transfer is made is not the hypersensitivity or relative

convenience of a party or easy availability of legal services or like mini-grievances. Something

more substantial, more compelling, more imperilling, from the point of view of public justice

and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This

is the cardinal principle although the circumstances may be myriad and vary from case to case.

We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally

the complainant has the right to choose any court having jurisdiction and the accused cannot

dictate where the case against him should be tried. Even so, the process of justice should not

harass the parties and from that angle the court may weigh the circumstances.

A more serious ground which disturbs us in more ways than one is the alleged absence of

congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our

country that court proceedings are being disturbed by rude hoodlums and unruly crowds,

jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse.

This tendency of toughs and street roughs to violate the serenity of court is obstructive of the

course of justice and must surely be stamped out. Likewise, the safety of the person of an

accused or complainant is an essential condition for participation in a trial and where that is put

in peril by commotion, tumult or threat on account of pathological conditions prevalent in a

particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet

and concern to a court of justice if a person seeking justice is unable to appear, present one's

case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure

propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions

putting the accuser's life in danger or creating chaos inside the court hall may jettison public

justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from

that place may become necessary.

A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a

judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue

and obtain proof of such facts at which the prosecution and the accused have arrived by their

pleadings; the controlling question being the guilt or innocence of the accused. Since the object

is to mete out justice and to convict the guilty and protect the innocent, the trial should be a

search for the truth and not a bout over technicalities, and must be conducted under such rules as

will protect the innocent, and punish the guilty. The proof of charge which has to be beyond

reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and

circumstantial and not by an isolated scrutiny.

Failure to accord fair hearing either to the accused or the prosecution violates even minimum

standards of due process of law. It is inherent in the concept of due process of law, that

condemnation should be rendered only after the trial in which the hearing is a real one, not sham

or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the

process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan

trial. The fair trial for a criminal offence consists not only in technical observance of the frame

and forms of law, but also in recognition and just application of its principles in substance, to

find out the truth and prevent miscarriage of justice.

"Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and

primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes

and ears of justice, the trial gets putrefied and paralyzed, and it no longer can constitute a fair

trial. The incapacitation may be due to several factors like the witness being not in a position for

reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some

corrupt collusion. Time has become ripe to act on account of numerous experiences faced by

Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion,

lures and monetary considerations at the instance of those in power, their henchmen and

hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously

adopted to smoother and stifle truth and realities coming out to surface rendering truth and

justice, to become ultimate casualties. Broader public and societal interests require that the

victims of the crime who are not ordinarily parties to prosecution and the interests of State

represented by their prosecuting agencies do not suffer even in slow process but irreversibly and

irretrievably, which if allowed would undermine and destroy public confidence in the

administration of justice, which may ultimately pave way for anarchy, oppression and injustice

resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and

jealously guarded and protected by the Constitution. There comes the need for protecting the

witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting

witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is

not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start

with at least in sensitive cases involving those in power, who has political patronage and could

wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a

casualty.

Legislative measures to emphasize prohibition against tampering with witness, victim or

informant have become the imminent and inevitable need of the day. Conducts which

illegitimately affect the presentation of evidence in proceedings before the Courts have to be

seriously and sternly dealt with. There should not be any undue anxiety to only protect the

interest of the accused. That would be unfair as noted above to the needs of the society. On the

contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get

a fair deal. Public interest in the proper administration of justice must be given as much

importance if not more, as the interests of the individual accused. In this courts have a vital role

to play.

The Courts have to take a participatory role in a trial. They are not expected to be tape recorders

to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of

the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all

necessary materials by playing an active role in the evidence collecting process. They have to

monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not

unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control

the proceedings effectively so that ultimate objective truth is arrived at. This becomes more

necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is

not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be

blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the

prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the

defense is a liability to the fair judicial system, and Courts could not also play into the hands of

such prosecuting agency showing indifference or adopting an attitude of total aloofness.

Some Fact

The Supreme Court on Friday reserved its judgment on a petition seeking transfer of Professor H

S Sabharwal murder case outside Madhya Pradesh. A bench comprising Justices Arijit Pasayat

and P Sathasivam indicated that the case may be transferred to Nagpur where there is no

Bharatiya Janata Party (BJP) Government and it is also closer to Ujjain. Himanshu Sabharwal,

son of Professor Sabharwal, is seeking transfer of the case outside the state as the accused belong

to the student wing of the ruling BJP in the State and BJP-ruled administration was sparing no

efforts in shielding the culprits. Himanshu is also seeking re-investigation in the case by the

Central Bureau of Investigation (CBI) as he is not satisfied with the shoddy investigation carried

out by the State police. Professor Sabharwal, the head of the political science department of

Ujjain's Madhav College, died on August 26 last year from lung and rib injuries after being

beaten up by Akhil Bharatiya Vidyarthi Parishad (ABVP) activists.

BIBLIOGRAPHY

http://www.oneindia.com/

/indiankanoon.org.

S.N.Mishra