ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

CRIMINAL PROCEDURE CODE

GNENERAL CLASS TEST

TOPIC- CONCEPT of FAIR TRIAL under

Criminal Procedure Code

Submitted to Submitted by
Dr. Alinihas .V Sadhvi Singh
Assistant Professor GK7930
Department of law 18BALLB33
Content TS Page No.
TABLE OF
Introduction 03

Meaning of sale 04

Elements of sale 04

Section 55 of transfer of property act 05

Rights and duties and libalites of seller 06

Rights of seller 06

Liabilities of seller 07

Rights of buyer 08

Liabilities of buyer 09

Conclusion 09to10

Bibliography 11
 INTRODUCTION
Everyone is entitled in full equality to a fair and public hearing by
an independent and impartial tribunal, in the determination of …
any criminal charge against him .”

The international community proclaimed the Right to a Fair Trial to be a “foundation of

freedom, justice and peace in the world”.

The Right to a Fair Trial is recognized internationally as a fundamental human right and
countries are required to respect it. Different countries have developed different ways of doing
this, but regardless of how a particular legal system operates, the principles below are core to all
fair justice systems and they all form part of the Right to a Fair Trial.

The right to fair trial is an essential right in all countries respecting the rule of law. The essential
ingredients for a fair and just trial must include a competent , neutral and detached judge ; the
absence of any intimidation of witnesses and equal legal representation , such as a right to
counsel for criminal defendants.

Thus, in a democratic society even the rights of the accused are sacrosanct, though accused of an
offence, he does not become a non-person. In the leading case of Kishore Singh Ravinder Dev
v. State of Rajasthan, it was said that the laws of India i.e. Constitutional, Evidentiary and
procedural have made elaborate provisions for safeguarding the rights of accused with the view
to protect his (accused) dignity as a human being and giving him benefits of a just, fair and
impartial trail.

FAIR TRIAL IN CRIMINAL PROCEDURE CODE OF INDIA

The Criminal procedure code provides that in all criminal prosecutions, the accused has a right
to have the assistance of a counsel and the Criminal procedure also requires the court in all
criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at
the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he
is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in
charge, to see that he is denied no necessary incident of a fair trial. It is equally true that the
absence of fair and proper trial would be violation of fundamental principles of judicial
procedure on account of breach of mandatory provisions of Section 304 of CrPC.
The Supreme Court in Sukh Das v. State of Arunachal Pradesh has held that a conviction of the
accused in a trial in which he was not provided legal aid would be set aside as being violative of
Article 21 of the Constitution.

Section 304 in The Code of Criminal Procedure, 1973 provides Legal aid to accused at State
expense in certain cases-

Where, in a trial before the Court of Session, the accused is not represented by a pleader, and
where it appears to the Court that the accused has not sufficient means to engage a pleader, the
Court shall assign a pleader for his defense at the expense of the State.

The High Court may, with the previous approval of the State Government, make rules providing
for-

The mode of selecting pleaders for defense under sub- section (1);

The facilities to be allowed to such pleaders by the Courts;

© the fees payable to such pleaders by the Government, and generally, for carrying out the
purposes of sub- section (1).

The State Government may, by notification, direct that, as from such date as may be specified in
the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of
trials before other Courts in the State as they apply in relation to trials before Courts of Session.

Section 169 of Code of Criminal Procedure provides that if upon investigation it appears to
office in charge of police station that there is no sufficient evidence is available against the
accused, such officer shall release him by taking bond and when so required present him before
magistrate for the trial.

Section 207 provides supply of copy of police report and other documents to the accused.

Presumption of innocence

“Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to the law.” ICCPR Art. 14(2)
A fundamental element of the right to a fair trial is that every person should be presumed
innocent unless and until proved guilty following a fair trial. This is why the responsibility falls
on the state to prove guilt and to discharge the presumption of innocence.

Due to the presumption of innocence, a person cannot be compelled to confess guilt or give
evidence against him/herself. It is for the state to produce evidence of guilt, not for the defendant
to prove innocence. In general, therefore, a suspect’s silence should not be used as evidence of
guilt.

Because of the serious consequences of conviction, the state must prove guilt to a high standard.
If doubt remains, the defendant must be given the benefit of the doubt and cleared because the
state’s “burden of proof” has not been met.

Given the massive human impact of criminal proceedings on defendants, and the presumption of
innocence, trials should take place without undue delay. It would be unfair to allow states
numerous attempts to try to secure a conviction. If a case goes to trial and guilt is not proved,
unless exceptional circumstances exist, the person should not be tried again. This requires the
state to do the job of prosecution properly in the first instance.

The presumption of innocence is why, before conviction, any restrictions on a suspect’s basic
rights, for example the right to liberty, should only be imposed where absolutely necessary.
People awaiting trial have not been convicted of any offence and many will ultimately be
cleared.

In Kali Ram v. State of H.P . the Supreme Court observed “it is no doubt true that wrongful
acquittals are undesirable and shake the confidence of the people in the judicial system, much
worse; however is the wrongful conviction of an innocent person. The consequences of the
conviction of an innocent person are far more serious and its reverberations cannot be felt in a
civilized society.” It is the duty of the prosecutor and defense.

Open court of Justice

Justice must not only be done, it must also be seen to be done. This is one reason why, except in
rare cases, people are entitled to a public hearing. Open Justice enables the public to see how
justice is administered and by subjecting it to public and press scrutiny, safeguards the fairness
of the trial. This is also why people are entitled to a reasoned judgment which has been made
public.

Open Justice requires people to be informed of the reasons for their arrest and any pretrial
detention (to safeguard Liberty). They must also be given information on their rights as a
suspect. Without this information, conveyed in a language the person understands, rights that
exist in law are illusory in practice.

People should be told what they are being prosecuted for and shown the evidence against them,
in a language they understand. Without this information, a person would not have a Fair Chance
to Present a Defense, for example by gathering evidence to counter claims made against them or
providing alibi evidence.

The Right to a Fair Trial also requires that people charged with offences be allowed to attend
court and to participate effectively in the trial. This enables the court to interact with them and
allows the person to hear and respond to the prtosecution case. Defendants are entitled to give
evidence and, except in exceptional cases, are also entitled to call witnesses and cross-examine
prosecution witnesses.

Section 327 provides Court to be open-

The place in which any Criminal Court is held for the purpose of inquiring into or trying any
offence shall be deemed to be an open court to which the public generally may have access, so
far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any
inquiry into, or trial of, any particular case, that the public generally, or any particular person,
shall not have access to, or be or remain in, the room building used by the court.

Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an
offence under section 376, section 376A, section 376B, section 376C or section 376D of the
Indian Penal Code (45 of 1860) shall be conducted in camera:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the
parties, allow any particular person to have access to, or be or remain in, the room or building
used by the court.
Where any proceedings are held under sub-section (2), it shall not be lawful for any person to
print or publish any matter in relation to any such proceedings, except with the previous
permission of the court.

A fair chance to present a defense

A person charged with a criminal offence faces the overwhelming power of the state. The Right
to a Fair Trial therefore requires that the defendant be given a Fair Chance to Present a Defense
in order to counteract this imbalance. This requirement for “equality of arms” is inherent to the
Presumption of Innocence and the Rule of Law.

Access to a lawyer is crucial to this and this right starts from the point of arrest and through the
trial itself. People need access to legal advice so that they can understand the case against them
and have a Fair Chance to Present a Defense. If a defendant has the means to pay, he/she should
be able to choose their own lawyer. If the person cannot afford to pay for their own lawyer,
where the interests of justice require, the state should provide free legal assistance.

Section 41(D) provides every arrested person has a right to meet an advocate of his choice.

A person facing criminal charges must have the time and facilities to prepare a defense. This
right exists at all stages of the proceedings and encompasses the right to documents, files, and
information as well as a guarantee of confidential communication with counsel (see Open
Justice). Although undue delays in criminal proceedings often contradict the Right to a Fair
Trial, fast-track trials can also deny people a Fair Chance to Present a Defense.

Section 50 provides every arrested person has right to information about grounds of his arrest
and police officer acknowledge him that he has right to bail.

Open Justice and should be given the chance to make a statement. Except in exceptional
circumstances, people must also be given the right to call witnesses and examine or have
examined witnesses in the same manner as the prosecution.

Evidence to be taken in the presence of accused

As a logically corollary of sections 228, 240, 246 and 251 (where the particulars of the offence
have to be explained to the accused person) it is also imperative that in a trial the evidence
should be taken in the presence of the accused person. Section 273 of the Code is significant in
this regard which provides that all evidence taken in the course of the trial shall be taken in the
presence of the accused. This section provides for exception to this rule that if the personal
attendance of the accused is dispensed with the evidence shall be taken in the presence of his
pleader. The right created by this section is further supplemented by section 278, which, inter
alia provides that whenever the law requires the evidence of a witness to be read over to him
after its completion, the reading shall be done in the presence of the accused, or of his pleader.

These provisions enable the accused person to prepare his arguments for rebuttal of such
evidences.

If any evidence is given in a language not understood by the accused person, the object of
section 273 will not be fulfilled; therefore to avoid this difficulty section 279 casts a mandatory
duty on the court that whenever any evidence is given in any language not understood by the
accused, it shall be interpreted to him in open court in a language understood by him. But non-
compliance with this provision will be considered as a mere irregularity not vitiating the trial if
there was no prejudice or injustice caused to the accused person.

Trial in the presence of the accused

The general rule in criminal cases is that all inquiries and trials should be conducted in the
presence of the accused person. The underlying principle behind this is that in a criminal trial the
court should not proceed ex parte against the accused person. It is also necessary for the reason
that it facilitates the accused to understand properly the prosecution case and to know the
witnesses against him so that he can check their truthfulness in a later stage. Though the Code
does not explicitly provide for mandatory presence of the accused in the trial but it can be
indirectly inferred from the provisions which allow the court to dispense with the personal
presence of the accused person under certain circumstances.

In the case of H.R. Industries v. State of Kerala , the Kerala High Court very beautifully stated
that the circumstances in which the personal presence of the accused person could be done away.
It was opined that:

“In cases which are grievous in nature involving moral turpitude, personal attendance is the rule.
But in cases which are technical in nature, which do not involve moral turpitude and where the
sentence is only fine, exemption should be the rule. The courts should insist upon the appearance
of the accused only when it is his interest to appear or when the court feels that his presence is
necessary for effective disposal of the case. When the accused are women labourers, wage
earners and other busy men, court should as a rule grant exemption from personal attendance.
Court should see that undue harassment is not caused to the accused appearing before the court.”

CASE LAWS

D.K.Basu vs. State of West Bengal (1997) 1 SCC 216

In view of the increasing incidence of violence and torture in custody, the Supreme Court of
India has laid down 11 specific requirements and procedures that the police and other agencies
have to follow for the arrest, detention and interrogation of any person. These are:

Police arresting and interrogating suspects should wear “accurate, visible and clear”
identification and name tags, and details of interrogating police officers should be recorded in a
register.

A memo of arrest must be prepared at the time of arrest. This should:

Have the time and date of arrest.

Be attested by at least one witness who may either be a family member of the person arrested or
a respectable person of the locality where the arrest was made.

Be counter-signed by the person arrested.

The person arrested, detained or being interrogated has a right to have a relative, friend or well-
wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the
person to be informed has signed the arrest memo as a witness this is not required.

Where the friend or relative of the person arrested lives outside the district, the time and place of
arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This
should be done by a telegram through the District Legal Aid Authority and the concerned police
station.

The person arrested should be told of the right to have someone informed of the arrest, as soon
as the arrest or detention is made.
An entry must be made in the diary at the place of detention about the arrest, the name of the
person informed and the name and particulars of the police officers in whose custody the person
arrested is.

The person being arrested can request a physical examination at the time of arrest. Minor and
major injuries if any should be recorded. The “Inspection Memo” should be signed by the person
arrested as well as the arresting police officer. A copy of this memo must be given to the person
arrested.

The person arrested must have a medical examination by a qualified doctor every 48 hours
during detention. This should be done by a doctor who is on the panel, which must be constituted
by the Director of Health Services of every State.

Copies of all documents including the arrest memo have to be sent to the Area Magistrate for his
record.

The person arrested has a right to meet a lawyer during the interrogation, although not for the
whole time.

There should be a police control room in every District and State headquarters where
information regarding the arrest and the place of custody of the person arrested must be sent by
the arresting officer. This must be done within 12 hours of the arrest. The control
The right to be presented before a magistrate within 24 hours of the arrest.

The right not to be ill-treated or tortured during arrest or in custody.

Confessions made in police custody cannot be used as evidence against the accused.

room should prominently display the information on a notice board.

These requirements were issued to the Director General of Police and the Home Secretary of
every State. They were obliged to circulate the requirements to every police station under their
charge. Every police station in the country had to display these guidelines prominently. The
judgment also encouraged that the requirements be broadcast through radio and television and
pamphlets in local languages be distributed to spread awareness.
Failure to comply with these requirements would make the concerned official liable for
departmental action. Not following these directions constitutes a contempt of the Supreme Court,
which is a serious offence, punishable by Imprisonment and fine. This contempt of court petition
can be filed in any High Court.

These requirements are in addition to other rights and rules, such as:

The right to be informed at the time of arrest of the offence for which the person is being
arrested.

A boy under 15 years of age and women cannot be called to the police station only for
questioning.

CONCLUSION

Justice and Liberty” is the trinity of fair trial recognised 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. The beauty of the principles enshrined lies in the fact that much matter is decocted into
small words. The thrust is imperative to means (criminal procedures) which must be trustworthy
in order to have just ends.

Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the pleader for the defence
of the accused at the expense of the state provided he is unrepresented and the court is satisfied
that he has no sufficient means to engage a pleader. The selection of such pleader, the facilities
to be given to him by the court and his remuneration are to be governed by the rules that may be
framed by the High Court in this regard with previous approval of the State Government. This
facility also extends to any class of criminal trials before other courts as indicated earlier to try
criminal cases in the State as it applies in relation to trials before Courts of Sessions.