ce for Victims of

Fair Trial and Compensatory Justi

e Constitution
Crime as a Facet of Article 21 of th
Gyandeep Chaudha,y

Introduction
ir Tr ial is a bro ad co nc ep t. Ge ne ral ly, it is a pro ce ss through
Fa
the gu ilt or inn oc en ce of the ac cu se d is decided. It is the
wh ich
n ac cu se d of a cri me should
un ive rsa l pri nc ipl e tha t a pe rso
be en giv en a fai r tri al an d the
no t be pu nis he d un les s he ha s
tio n of fai r tri al incorporated
gu ilt ha s be en pro ve d. Th e no
in the ad mi nis tra tio n of the
fai rne ss an d rea so na ble ne ss
rel ati ve co nc ep t an d therefore
cri mi na l jus tic e. 1 Fa irn ess is a
ss in cri mi na l tri al co uld be me as ur ed on ly in relation to
fai rne
gra vit y of the ac cu sat ion , the tim e an d res ou rce s which the
the
sp en d. 2
soc iet y ca n rea so na bly aff ord to
al is no t a fav ou r aff ord ed to the su pp lic an t at law, but
Fa ir tri ara nte ed by the state
of leg all y en for ce ab le rig hts gu
a bu nd le
te its elf ex ist s. Th e principle of
to its cit ize ns, for wh om the sta
of ce rta in rig hts su ch as the
a fair tri al is pu t in co nc ret e ter ms
iti on of do ub le jeo pa rdy , the
rig ht to rem ain sil en t, the pro hib
to be no tif ied of ch arg es, and
rig ht to legal co un sel , the rig ht
so on .
s to ev ery sin gle ins tan ce and
Th e ap pli ca tio n of fai r tri al no rm
ev ery sta ge of the cri mi na l law is recognized both
at
ern ati on all y an d na tio na lly in Ind ia, as a fun da me nta l right.
int
a leg al du ty on the sta te an d the jud ge to en su re that
It ca st
res pe cte d rea liz ed an d ne ve r vio lat ed . Th e Supreme
the y are
the im po rta nc e of fair trial. In
Co urt in ma ny ca ses hig hli gh ted
te of Gujarat3 the Supreme
Zahira Habibullah Sh eik h v. Sta
e of fai r tri al:
Co urt hig hli gh ted the im po rta nc

ICFAI Foundati~n
d eep Cha udh ary , Ass ista nt Professor, ICFAI Law School.
• Gy~ o , New Delhi.
cation, Hyd era bad and Ph. D. Scholar, Indian Law Institute
tor Higher Edu R) 1966, art. 6,9.
ma tional Cov ena nt on Civil and Political Rights (ICCP 1
~te k Company 5 edn. , 201 ).
1h
2 ste rn Boo
CED URE 335 (Ea ,
3 .V.KELKAR, CRIMINAL PRO
•
2004 4 sec 1sa.

44
Fair Trl•I and Compensatory Justice for Victims of Crime as a Facet of Article
21 of th• Constitution

•The principle of fa!r trial now informs and energizes many

areas of the law. It ts a constant, ongoing development process
continually adopted to new and changing circumstances and
exigencies of the situations, peculiar at times and related to the
nature of crime, person involved, directly or operating behind,
social impart and societal needs and even so many powerful
balancing factors which may come in the way of administration
of criminal justice. "
Denial of fair trial causes grave injustice to the accused as it is
to the victim and to the society.4 The reflection of fair trial can
be seen in number of international instruments. The major
features of fair criminal trial are preserved in Universal
Declaration of Human Rights, 1948.
lnternatlonal Regime on Human Rights
The right to a fair trial is a norm of international human rights
law and also aaopted by many countries in their procedural
law. 5 It is designed to protect individuals from the unlawful
and arbitrary curtailment or deprivation of their basic rights
and freedoms, the most prominent of which are the right to life
and liberty of the person. 6 The concept of fair trial is based on
the principles of natural justice. 7 When the terrorist suspects
face the court, they should be granted to basic procedural
rights.
The Universal Declaration on Human Rights (hereinafter
UDHR) refers to the importance of civil liberties and due
process. It provides that "everyone is entitled in full equality to
fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations of
4
Ibid.
5
Right to Fair Trial and Due Process In the context of Countering Terrorism, CTITF
Publication Series October 2014, available at: <
https://www.ohchr'.org/EN/newyork/Documents/FairTrial pdf> (Last Modified
~ovember 13, 2018).
Ibid.
7
The Principles of Natural Justice _ Origin and Relevance, By Percival Billimoria on
March 28, 2018, available at: . . . . . .
https://corporate.cyrilamarchandblogs.com/2018/03/pnnc1ples-natural-Just1ce-ong1n-
relevance/ (Last Modified November 13, 2018).

45
 La · w· Perspectives on Victim Ju.t1..._
Victim• and crtmlnal ~

• " 8 "Everyone charged With

· st him. d . a
any criminal charge agat_nght to be presu~ale innho_cehnht Until
penal offience has the . ton law in
. a public tn at"9w ic e has
d guilty according for his defense.
prove t es necessary
had all the guaran e Civil and Political Rights
C venant on . .
Th Intemation al ° d n the mirumum requirements
(he~nafter as ICCPR)_ la~:d:;;ntemational law. Article 14 of
of the right to a f8;r ~nal d ublic hearing before a competent,
ICCPR lays down _fair anialp tribunal established ~aw, the ?Y
independent an? impart d process rights, which includes
presumption of mnocence, ue , • choice and effective legal
the right to counsel 0 ~ one sr have ex mined witnesses
t ti to examme o
represen a on, b t . d without undue delay, and to
against the accused, to et_fyneagainst oneself or to confess
not be compelled to tes I
guilt". lo .

We can t h e reflect.10n of the international . code

. . standards m
the Indian Codes also. It can be said that 1t 1s 1n consonance
with the domestic law.
Rights of Victim of Crime
Access to Justice and Fair Treatment
The victim of a crime initiates the criminal justice system by
providing information to the police, who are then expected to
reduce the information to writing. 11 As an informant, the
victim is entitled
12 to a copy of the FIR "immediately and without
charge." If a police station's officer refuses to act on such
information, the victim can write to the Superintendent of
Police, who will13 then be expected to conduct an inquiry into
the complaint. If these methods fail, the victim can file a
complaint with a Magistrate, 14 who would then question the

: Universal Declaration on Human Rights (UDHR) 1948 Art 10

101d. Art. 11. I • •

International Covenant c· •
11 COde of Crim• Ip on IVII and Political Rights (ICCPR), art. 14.
12 COd ~na rocedure. 1973, sec 154(1)

______
13 COde of C~m~nal Procedure. 1973, sec 154(2)
14 COde o~ g~m~nal Procedure. 1973, sec 154(3).

------~:;;_
- e o nmmal Procedure. 1973, sec 190. .

46
fair Trial and Compensatory Justice for Victims of Crl
me as a Facet of Article
21 of the Constitution

h If
complainant. under
. .oath and investigate th e case erse or
1
order a po ice. inquiry
. . before taking cognizance . Th e vic I'
. t·1m
does ~ot partic~pate in the investigation after that, with the
exception °~
6being asked to authenticate the identification of
the accused or the material objects found during the inquiry,
if any• In the pr~cedural legislation, the status of victims who
are women or children has not received the respect it needs.
The judicial response to the demands of rape and other violent
crimes against_ wo~en has been both expected and
inadequate. By 1mpos1ng severe and inadequate consequences
for the offence and shifting the burden of evidence 17 the Act
fails to meet the victim's expectations for dignity, ' long-term
protection against intimidation, easy access to court
proceedings, legal support, and rehabilitation. 18 There is
currently no legislative structure in place to handle the
rehabilitation needs of rape victims. 19
Restitution
The right of a crime victim to reparation has yet to be
recognised by law. In this area, constitutional courts have
tended to consider victims' claims for restoration of damages
sustained during violent episodes like as riots and caste
confrontations. The concept used is "culpable inactivity," in
which the state and its agencies are obliged to foresee losses or
damage to public and private property in situations over which
the prospective victims have no control. The courts have gone
as far as to find the state liable only where a definite failure on
20
its part act has resulted in the loss. The outbreak of riots in
the wake of the assassination of the Prime Minister in October
1984, resulted in large-scale damage to the properties of
members of the Sikh community in several places of the

15
Code of Criminal Procedure. 1973, sec 200, 202.
16
17
Indian Evidence Act, sec 9.
Sakshi v Union of India (2001) 10 sec 732.
18 I )
Code of Criminal Procedure 1973, sec 376(2 •
19
Code of Criminal Procedure. 1973, sec 357(3)- . • f
20 Usha Ramanathan A Criminal Appraisal of the Laws Relating to Compensation or
20_0_1·_ __ __
Personal Injury, thesi~ submitted to Delhi University, Septemb_e_r _

47
 VI tlms and Criminal Law: Perspectives on Victl
C ~
21

~untiy· In R· Ga ndhi v. Union of India,· ·

the Madra8 .
. the report of a comm1ss10ner appointed litDL &1

Cou~e=~t~~! f;sses,directed payment of varyi_ng arnoun~! it

to a t· r. r the losses to property of the Sikh cornrn .of
compensa 10n 10 1
S . Lak h .
• unity
·n
1
Coimbatore. However, in 22 n s m1 Agencies v
Govemmen t of Andhra Pradesh, the
fi
Andhra Pradesh H·tgh
·
C rt declined to accept the prayer or compensation to th
ou of life , inJ·ury , destruction and loss of property as a res,}
Ioss d f . . 4!t
of the violence that followed the mur er ~ a s1tt1n£ tt;~~ber of
the legislative assembly. The court explained that : 1t 18 on}
when the officers of the state do any act positively or fail to aZt
as contemplated under law leading to culpable inaction, that
the state is liable to pay the damages. There should be a direct
nexus for the damage suffered on account of state action and if
that is absent, Article 21 of the Indian Constitution is totally
inapplicable". 24 This is a still evolving area in which the courts
are seen to be treading cautiously. 25
The right of a crime victim to reparation has yet to be
recognised by law. In this area, constitutional courts have
tended to consider victims' claims for restoration of damages
sustained during violent episodes like as riots and caste
confrontations. The concept used is "culpable inactivity," in
which the state and its agencies are obliged to foresee losses or
damage to public and private property in situations over which
the prospective victims have no control.
Compensation and Assistance
E~en under the Code of Criminal Procedure, 1898:!6 , a victim of
cnme . had the right to compensation, but it was onlY
accessible when a substantive sentence of punishment was

21
22
AIR 1989 Mad 205.
23 (1994) 1 Andh LT 341.
24
Id. at 351.
lnder Puri General St u· · Kaur "
Delhi Administration 199o~~~HCnion of India AIR 1992 J&K 11, Smt. BhaJa~ state
,,....~1■1 1 (1997) 1 ciu· LJ 4 5644 , Noor Mohammad Usmanbhai Mansun v
of J&K J 9 ·
of Cri Y· Jeet General Store AIR 1996 J&K 51

------=-==-:.:~~~~~~--------
m1na1 Procedure. 1973, sec 545(1 ). 545(2) and sec 546.

48
fair Trlal and Compensatory Justice for Victims of Crime as a Facet of Article
21 of the Constitution

given, and it w~s restricted to the amount of money actualli?

7
realized. Even if the offender is not condemned to a fine,
compensation may be granted under S.357 (3), Cr. PC 1973.
The courts, on the other hand, only use this provision seldom
28
and inconsistently. The Law Commission's 152nd Report
suggested the establishment of s.357-A, which provides,
among other things, that victims of crime be compensated at
the time of punishment - Rs.25,000 in the case of physical
harm that does not result in death; Rs.1,00,000 in the case of
29
death. The Law Commission of India's 154th Report noted
that the government had still not implemented its prior
recommendatio ns. It went even further, recommending that "a
new s.357-A in the Code to provide for a comprehensive
scheme of payment of compensation for all victims fairly and
adequately by the courts. Heads of compensation are for (i) for
injury, ii) for any loss or damage to the property of the
claimant which occurred in the course of his/ her sustaining
the injury and (iii) in case of death from injury resulting in loss
30
of support to dependents" The administration has likewise
failed to act on this advice.
In the absence of a sustainable, effective statutory
compensation frameworl<, courts exercising constitutional law
jurisdiction have had to devise new methods to wve effect to
the right of crime victims to be compensated. The court
ordered ex gratia payments of Rs.10,000 to each of the vic!,ims
3
in the Delhi Domestic Working Women Forum case. "" In
33
Gudalure M.J. Cherian v. Union of India, the State of Uttar
Pradesh was ordered to pay Rs.2,50,000 / - in damages t o two
sisters who were raped by unidentified perpetrators. In the

27
Code of Criminal Procedure. 1973, sec 357.
Hari Singh v Sukhvir Singh (1998) 4 sec 551 .
28
29 nd
Law Commission of India 152 Report on Custodial Crimes (1994).
30
Law Commission of lndi~, 154th Report on the Code of Criminal Procedure, 1973,
1996.
:: RudaI Shah v. State of Bihar (1983) 4 sec 141 . . . .
Delhi Domestic working Women's Forum v National CommIssIon for Women
{l994) 3 SCALE 11.
(1995) Supp 3 sec 387.
49
.·_ _ _ _ _ __:,Yl:,:c.::;tlm~•;;;...::.:•"-d_C_rt_m_ln_a_l_La_w_:_P_e_rs__
pe_c_t_lv_es_o:..:.:.n Vlett
- ~
case of State of Gujarat v.. H_on 'blefHig.h Couf rt of Gujarat,34 th
iasue of compensating vtchms o cnme rom the Wages e
prison labour was debated. The c.ourt reco~mended that 0f
state enact legislation "to set aside .a portion of the Wa t~e
earned by the prisoners to be paid as compensation g 8
deserving victims of the offence, the commission of wh· tho
entailed the prisoner's sentence of 1mpnsonment,
. . le
either
directly or through a common fund to be created for th.
purpose or in another feasible mode, either directly or throu~
a common fund to be created for this purpose or in another
feasible mode. "35

Rights Available to the Accused Person after Arrest

Hullum Crlmen Sine Lege: Principle of Non-Retroactlvlty
Article 20(1) of the Constitution states: "No person shall be
convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence,
nor 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."
This Article not only prohibits laws purporting to create an ex
post facto application, but also prohibits convictions or
sentences based on laws not yet enacted when the charged
offence occurred. It means that when a newly enacted
sentencing guideline calls for harsher penalties for the same
crime, the court cannot apply these newer penalties to crimes
before they entered into force. However, the courts can still
apply repealed criminal statutes if the accused committed the
crimes prior to such statute's repeal. 36
Right Against Illegal Detention
A police officer making an arrest without a warrant must t~e
or send the arrested person to a Magistrate or an officer in

34
35 (1998) 1 sec 392.
Id.
38
Supra note 2.

50
 fair Trtal and Compensatory Justice for Victims of Crime as• Facet
of Article
21 of the Constitution

charge of a polic e stati on with out undu e delay,a1 but no

later
than 24 hour s. unle ss there is a spec ial orde r
by a
Magistrate. 3s Artic le 22(2) of Cons tituti on prov ides that
"a
pers? n arres ted mus t ~e prod uced befo re a Judi cial Mag
istra te
within 24 hour s of his arres t." In State of Punjab v.
Ajaib
Singh39 the cour t held "tha t arres t with out warr ant call
for
great er prote ction and prod uctio n with in 24 hour s ensu res
the
imm ediat e appl icati on of judic ial mind to the legality
of the
arres t."
When inve stiga tion cann ot be comp leted with in twen
ty-fo ur
hour s and ther e are grou nds for belie ving that the accu
satio n
or infor mati on is well -foun ded, then the officer not below
the
rank of sub- insp ecto r, shal l trans mit to the near est Judi
cial
Mag istrat e a copy of the entri es in the diary and at the
same
time forw ard the accu sed to such Mag istra te. 40 After
the
Mag istrat e may auth orize the dete ntion of the accu sed
in the
custo dy and it shal l not be more than 15 days , whe ther
or not
the Mag istra te is havi ng the juris dicti on or not. No Mag
istra te
shall auth orize the dete ntion of the accu sed pers on in custo
dy
unde r this para grap h for a total perio d exce eding , -
• nine ty days , whe re the inve stiga tion relat es to an offen
ce
puni shab le with deat h, impr ison men t for life
or
impr ison men t for a term of not less than ten year s.
• sixty days , whe re the inve stiga tion relat es to any
othe r
offence, and, on the expi ry of the said perio d of nine
ty
days , or sixty days , as the case may be, the accu sed
pers on shal l be relea sed on bail if he is prepared_ to and
does furn ish bail, and ever y pers on relea sed on brul unde
r
this sub- secti on shal l be deem ed to be so relea sed unde
r
the prov ision s of Chap ter XXXIII for the purp oses of that
Chap ter.
37
The Code of Criminal Procedure, 1973, §56, No 2, Acts
of Parliament, 1974
nd
~ ia).
The Code of Criminal Procedure, 1973, §57, No 2, Acts Of p 1· t 1974
ar,arnen ·
llndia).
!e AIR 1
40 953 SC 10.
The Code of Criminal Procedure, 1973, §167(1), No.2· Acts of Parliament, 1974
(India).

51
 d crlmlnal Law: Perspectives on v1,...
~~~-~-~~·" ~~

.......,-~··
...-
~-"-Incrimination
'd . "No person accused of any offen
~....ade 20 (3) probvt esWl.·tness against himself." This is bace shau
~u ll d to e a sect
le compe e " emo tenetur prodere accussare sei 0n
tbe well-known thnt "NO MAN IS BOUND TO AtcSuU7ti•
.....:. h means a . S l . SE
wauC The Supreme Court in
"41 e Vl v. State
HIMSELkF. 42 held that subjecting a person to narco-ana1y ~f
Karnata a, . rfi •th , sis
t O forcible 1nte erence WI person s rnent--i
amounts
and h ence it violates t h e ng
· ht of pnvacy
· as Well 1.(ij
processes . . d . h . . as
Article 20 (3). This technique 1s not goo 1n ~ e CnrrunaI cases
because it encourages the person to speak 1n a drug induced
state.
Section 313 further protects the right to silence. It protects the
accused from liability for refusing to answer or falselv
answering questions by a judge during a court proceeding. i:
says: "the accused shall not render himself liable to
punishment by refusing to answer such questions, or by giving
false answers to them."
Role of Judiciary and Fair Trial
Adversarial System v. Inquisitorial System
~dian ~~al System is based on the adversary system. In this
J st
e~ it 18 t~e responsibility of the opposing party to produce
be~evidence in hand where the judge is the neutral person
its . een t?e ~arties. In the adversarial system the state uses
mvestigative ag · rill
prosecute th encies and the government counsel w
adversana1 syste ac-cused person ·43 The cnm1n · · al t n'al in the
.
investigative ag e~ assume that the state \\rill use its
the wrongdoer enc1es
d and g
overnmen t counsels to prosecute
beat counsels ~ ci,n
the other side it will take recourse to th;
allenge or counter the evidence produce
,.,,,
41
1 JAGADISH Sw -
1-3). ARUP I CONSTITUTION OF I rd ed"·
2010 SC NOIA 1071 (Thomson Reuters, 3
1974
note 2. .
Fair Trtal and Compensatory Justl
21 of the Constitution ce for Victims of Crim9
- as a Facet of Article

by the prosecution and in th. th .

role similar to that of an ump\sre. 4: Judge will play an impartial
In this system the accused per .
h. ·1 . son is presume d to be innocent
un1ess 1s gu1 t 1s proved It
reasonable doubt, which is 0 ~ 0 f ~u st be proved beyond
of criminal justice administrati~ 45tT~ fundamental principles
criminal cases lies on the pro n. . e burden of proof in the
secution and he re the accused
gets t h e b enefit of doubt if the
the case beyond reasonable griro~ec~~~r is not able to pro~e
18
principle of "ei incumbit probati:n 1·. d. . based on the Latin
burden of the proof lies upon hi~ ~czt, :;;n qui negat" The
denies. w o rrms not he who

Inquisitorialh system. is generally found 1·n F ranee, Germany,

al d
!t y an ot er Continental countries. 46The adversarial system
1s better
. . . compared
as 'al to the inquisitorial in many aspect s. In
~h e 1nqws1ton_ . system the accused is presumed to be
mnocent, and 1t 1s the responsibility of the judge to discover
the truth. The accused person will be in more trouble since it
is not required to proof the case beyond reasonable doubt. It
all depends on the inner satisfaction or conviction of the
Judge. More power is concentrated in the hands of Examining
magistrate and judge. Both are having unchecked power to
investigate and adjudicate the case. When court participates in
the interrogation it may lead to biased attitude. Prosecutor and
police exceed or misuse their power because both are having
separate law to deal with their conduct. No role is played by
the expert in the technical cases. At any rate it is likely to
cause an apprehension in the mind of the accused that he may
not get a fair trial at the hands of such a Judge.
In the Adversarial System, fairness o_f . trial is ade~uately
assured by the Judge maintaining a pos1t10n _of ne~trality and
the parties getting full opportunity of adducing evidence and

1 4 sec 32 4
: Ibid. . .
In State of U.P. v. Naresh and Ors. (200 ) ittee on Reforms of Criminal Justice
46
Government of India, Report of the Comm
System (Ministry of Home Affairs, 2003). _ _ _ _ _ _ _ _ _ _ __ _

53
 cr1m1nal Law: Perspectives on Vlct1
vacttm• and ~

·tnesses.47 Thus _it is seen that fai

examining the Wld . the Adversarial System. mesa
_.. rassure in
ortrial is bette J dgments and the decision must be
.. .......-1nthe u
llll1"ed th t every judgment must be reasoned
'lbe code mandates 01·nats of determination, the decision · It
must men
tion the p f
h t decision. Section 363 o the Code oiv
anct
the reason for t ad person to get t h e copy of h'1s JU
. dgtnentc:,-4aes
right to the accuse ·
of MH. Hoskot v. State of Maharashtra,49 Mr
In the case ' victed and he was sentenced to 3 year ·
Hoskot was con ' bl s
. . t in the year 1973. He was not a e to file an
unpnsonmen . t· t T
al until he had served ~s en ire s~n en_ce_. ~e coun
::i:ed it as the "disturbing episode of pn~on tnJustice". The
rt said that there has to be a prompt delivery of the copy of
:~ judgment, otherwise it will lea~ to the. v_iolation o~ Article
21. The court also said that allowing the Jatlor to deliver the
copies of the judgment is dubious. With this regard the jail
manual must be updated, and punishment must be giving to
the jailor who failed to deliver the copy of the judgment within
time.

Court to be Independent and not to be personally Interested In the

case
It is the fundamental principle of fair trial that the trial should
~ conducted by the judge who is independent, impartial and
. ~~ten~. Independence in the sense means that our
~~diciar_y 18 protected by or interference from the executive
ar:•trati~nale
1 behind this independence is that it should avoid
ranness and bi h
Executive M . asness. Cr.P.C. separates the courts oft e
Magistrates.so ~~~~~tes from the courts of J~1dicinl
sorne prior . Judge has taken part in the proceedmg on
capacity or h h he
_ c as some personal stake 1n t
lbid~--------
•~1

~Code of C · •
lllldia) nm1na1 Procedure 197
•90 AIR.1978 8 ' 3· §354 (1) (b), No.2 Acts of Parliament, 1974
TheCode o7~~~-
nm1na1 Procedure
, .
---- ' 1973, §6, No.2, Acts of Parliament, 1974 (I ndia).
54
fair Trial and Compensatory Juatlce for Victim• of Crl F
21 of th• Constitution me as a acet of Article

proceeding th en it can be :ailed into question. In this regard

section 479 C:.P.C. comes mto picture, which prohibits trial of
8 case. by a Judge ~r magistrate in which he is a party or
otherwtse personally mterestcct.s1
RICht to Open Hearing
Fair trial also includes public hearing in an open court. Article
14( 1) of ICC PR also recognizes open hearing as the essential
element of fair trial. This right is not only available to the
parties but also the general public in a democratic society.
Section 327 Cr.P.C. provides for an open court for public
hearing, but it is not obligatory on part of the judge or
magistrate, if he thinks fit, he can deny the access of the open
court to the general public. 52 It is a general rule that every
offence must be inquired into or tried by a court within whose
local jurisdiction the offence has been committed. It might
cause unnecessary harassment to the accused person if the
place of trial is highly inconvenient to the accused. s3
Pre-Trlal Rights of the Accused
Free Legal Aid
Article 39A54 in the constitution of India was inserted by the
42 nd amendment. 1976. Which provides for equal justice and
free legal aid. In the words of Justice P.N. Bhagwati, "Legal Aid
means providing an arrangement in the society so that the
mission of administration of justice becomes easily accessible
and is not out of reach of those who have to resort to it for
enforcement. .. the poor and illiterate should be able to approach
the courts, and their ignorance and poverty should not be an
impediment in the way of their obtaining justice from the cotats.
Legal aid should be available to the poor and illiterate, who
don't have access to courts. One need not be a litigant to seek

51
The Code of Criminal Procedure, 1973, §479, No 2, Acts of Parliament. 1974
~~nd1a). .
Na1 .,,.t, Sridhar Mirajkar v. State of Mahamshtr,t AIR 196 l SC 1
53
54
Supra rnt~ 2 at 339
The Const1tuuon of India, art 39A,

55
 d crlm lna l Law: Perspectives on Vieu
Vletlm••n ~Ju.u~

legal aid. »55 Two thi ng s are im po rta

.-z n5 if use d pe rso n sho uld ge t the cou nt in
0
nse l f t~e
: 1) th~ :;c sta te to pro vid e a co un sel to
the accu~e h~s
:1:botce, 2~h. is reg ard ed as the fun da
me nta l rig ht / 1n
lt8Jlll case. is nd er Article 22 ( 1) wh ich pro vid es 0
tha t !he
ted peallrsbeond~nied the rig ht to co nsu lt, an d to
.... on sh be defe~ctno
r- · c h 01c
titi one r of his . e. " "T he t t
II, a l ~ pti~acal obligation to pro vid e frees leg a e can no t av ed.
la constitu on al services o1td
im1igent acc use d .. p~ rso ns by p 1 d. fi o
ea ing ina nci al or
administrative inab1hty • 56
In Hu ssa ina ra Khatoon an d Or s. v.S tat
e. of Bihars1 the
Supreme Co urt sai d wi th regard_ to_ the
ng ht _to _free legal
service- "the right to free leg al ser vic e 1s
an ess en tia l ingredient
of reasonable, fair an d jus t pro ced ure for
an acc use d person
and it mu st be hel d to be im pli cit in the
gu ara nte e of Article
21. This is a con stit uti on al rig ht of eve
ry acc use d per son who
is unable to engage a law yer an d
sec ure leg al services on
account of rea son s suc h as po
ver ty, ind ige nce or
incommunicado sit uat ion an d the Sta te
is un de r a ma nd ate to
provide a lawyer to an acc use d if the cir
cu ms tan ces of the case
and the nee ds of jus tic e so req uir ed,
pro vid ed of cou rse the
accused per son doe s no t ob jec t to
lawyer." the pro vis ion of such

In M_ohd. Hu ssa in @ Zul.fikar Ali v. Th e

Sta te (Govt. of NCI')
Delhi., 58 The_ app ell ant wa s an illi ter ate an
d a
who wa~ tne d, convicted an d sen ten ced to for eig n national
de ath by
the trial
court wit hou t ass ign ing him the
op po rtu nit y of having a
~e el of his own choice. He wa s con
.,__,i:? 7 1nd vic ted un de r Section
ian Pen al Co de an d un de r Se cti on
3 of The
m.,_...,~1N!1ve. Su bst anc e Act, 19 08 . Ou t
of 56 wi tne sse s, the
com ~ti ng officer cro ss- exa mi ned on ly
~ . ·. '" i 0
~e th
e for
on e pe rso n in order
mality. Wh en a pe rso n is ch arg
ence he mu st no t be de nie d to his val ed wi
th the
uab le rights.
IIIIQ I. to free legal AID .
Modified on 29t11 o:v~ilable at: http://racolblega al·
l.com/access-to-free-leQ
v. =· of Bihar (1981) 1 °~~g ;11
1.
3860.
 as • Facet of Article
fair Trial and Compensatory Justice for Victims of Crime

-
21 of th• Constitutio
n

He was provide~ with coun sel at the last stag e whic h is inde
ed
the
denial of effective and subs tant ial legal aid. Therefore
'
appellant's conv ictio n and sent ence was set aside.
sed if he
The righ t to free legal aid cann ot be denied to the accu
provide
has fai~ed to appl y f?r it. Unle ss refu sed, failure to
trial,
legal rud to an 1nd1gent accu sed would vitiate the
It has
entailing setti ng asid e the conviction and sent ence .s9
case that
been rule d by the Sup rem e Cou rt in the Ajm al Kasab
his righ t
it is obligatory for the Magistrate to tell the accu sed of
it may
to get free lega l aid. In case he fails in this duty, thou gh
agai nst
not vitiate trial , disc iplin ary actio n may be initi ated
him.60
right to
Person arrested to be informed of grounds of arrest and of
ball
t to be
By virtu e of sect ion 50 pers on arre sted has the righ
accu sed
informed of grou nds of arre st and of right to bail. The
sed is
mus t get every oppo rtun ity to defend himself. If an accu
satio n
not having any knowledge with regard to the accu
hims elf
against him then he will not be able to defend
cour t of
properly. Whe neve r an accu sed is prod uced before the
ces. 61
trial, he mus t be info rmed of the parti cula rs of the offen
In case of serio us offences, the cour t is required to
frame in
ained
writing the formal char ges and it shou ld be read and expl
that he
to the accu sed. He is entit led to be released on bail and
62
may arra nge for sure ties on his behalf.
bail as a
By virtue of Sect ion 436 Cr.P.C. an accu sed can claim
in the
matter of righ t in offences which are shown as bailable
role
First Sche dule of the Code. The bail plays one of the vital
\.\-ith the
in the crim inal justi ce syst em and is in cons onan ce
of the
fundamental prin ciple s ensh rine d in Part s III and IV
s as
Constitution alon g with the protection of hum an right

Das v UT of Arunachal Pradesh, (1986) 2 sec2012

59 401
60 Suk rashtra, ( ) 9 sec 1. .
Ajmal Amir Kasab v. State of Maha
81 Mohd. of Parliament, 1974
lhf; ,:-,.,de of Criminal Procedure, 1973, §50 ( 1), No.2, Acts
~~ndia).
Id. s. 50 (2).
57
 Crlmlnal Law: Perspectives on Victi- J
Victim• and "' UstJee

ernational treaties/ covenants.63 8 .

under In t
•L-..1 t d · ail
.-..IICJ'locu f person from lega1 cus o y, 1t presuppo
1"9 release o a . d ses
•anhs ~ in custody. A Person who is ualn .e~ n~ such restraint
dlat e 18 d bail The Fundament pnnc1ple of our le al
cannot be gr~te . th~t a person should not be deprived off
tnnttem of justice is h f 1 64 If h is
-.,- t for a distinct breac o aw. t ere is no
h1>erty ~alpec. k of the accused fleeing the course of justice
substanti
. ns
reason why he should b e 1mpnsone
· · d during the'
there 1s no .
period of his trial. 65 If the ~irc~ms ~~e
t
:t.
s~igesting the
possibility of his fleeing from ~udstice ho: wWh ingd le co~rse of
justice then bail will be de~1e to 1m. ere e ays 1n the
disposal of criminal proceeding t~e pla~e, the accus~d ought
not to be kept in custody for an 1nord1nately long tune and
must be released on bail except when under extremely rare
circumstances it is not possible to do so. 66 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.
Anticipatory bail is a statutory right, and it does not arise out
of Article 21. 67 Anticipatory bail cannot be granted as a matter
of right as it cannot be granted as a matter of right as it
cannot be considered as an essential ingredient of Article 21. 68
Fair Investigation
The power of the investigating agency is large and expansive
~bd ~e courts have a minimum role in this regard there are
m. uilt
. Provisions
· · · the Code to ensure that
in '
investigation of a
:
1
n1
offence_ is conducted keeping in mind the rights of an
of asePubto1· a fair process of investigation. 69 The primary duty
ic Prosecutor 18 · t0 d ·
Punished h' d . ensure that an accuse 15
, is uties exten d to ensuring fairness 111 · t he
;-;-:-=:------
~ Commissj~n of India, 268th . re
..7Rata'1973-Prov1s1ons Relatin t B ~eport on Amendments to Criminal Procedu
&la n & Dhirajlal The gdo ail, (May 2017) t11
iiibldrged edn., 2013).' co e of Criminal Pr~cedure 1767 (Lexis Nexis, 19
• • I

~lnara Khatoon v Stat

l>ld. of M.P. v Ram KlshnaeB~1!i~ar, AIR 1979 SC 1360.
V.k, Saalkaia th1a AIR 1995 SC 1198.
r - -__ v.~State 2012 9 SCC 771.

58
 al and compensatory Justice for Victims of Crime as a Facet of Article
fair Tri

--
21 of th• constltut1on

roceedings and also to ensur e that all releva nt facts ~nd

p·rcum stance s arc broug ht to the notice of the Cour t for a JUSt
1
~ eterm inatio n of the truth so that due justic e preva
ils. 70
In the case of V.K: S~sikala v. State, the impo rtanc e of fair
investigation was htghh ghted :
"The fairness of the investigative proce ss so as to
maintain the citizens' rights under Articles 19 and 21 and
also the ti.ctive role of the court in a criminal trial have
been exhaustively dealt. It is the responsibility of the
investigating agency as well as that of the courts to
ensure that every investigation is fair and does not erode
the freedom of an individual except in accordance with
law. It was also held that one of the estab lished facet s of
a just, fair and transparent investigation is the right of an
accused to ask for all such documents that he may be
entitled to under the scfteme contemplated by the Code of
Criminal Procedure. "r1
Fair invest igatio n leads to fair trial. It is the first step towar ds
the fair trial. If this is not done prope rly then we canno t
expects fair trial comin g out of unfai r inves tigati on.
Right to Speedy trlal
If the trial of the accus ed perso n is done speed ily then it will
not lead to unnec essar y haras smen t to the accus ed. It will
gain the confid ence of the gener al publi c in the India n
judiciary. The Const itutio nal bench of the Supre me Court in
~he case of Kartar Singh v. State of Punjab 72 has elabo rated the
importance of fair and speed y trial in safeg uardi ng the rights
of the accus e the victim as well. The conce pt of speed y trial is
an essen tial part of the funda menta l right unde r Article 21. In
Hussainara Khatoon v. State of Bthar, 13 it was held "that a
speedy trial is an essen tial ingred ient of fair trial proce dure,
and it is the const itutio nal obliga tion of the State to set up a
70
71
Ibid '
72
1bid.
73 ~ar Singh
v. State of Punjab, (1994) 3 sec 569.
--.1
.979 SC 1360.

59
 and Crlmlnal Law: Perspectives on Vlctlrn J
VIctlma ~

th uld ensure the same." Even the

procedurethat ~tevewryo inquiry 'bl
or trial, the proceeding sha1~0bde
rovides "74 e
P
held as expe ditiously as possi e.
,. ,,
Doctrine of •Autrefols Acquit" and Autrefols Convict
Article 20 (2) of the constitution is based upon the Principle of
the •double jeopardy" clause an~ lays . down that no person
should be put in jeopardy of his _life. or_ liberty more than once.
Secti 300 is more comprehensive in its scope than Article
20
121 _ ~cle 20 (2) bars the retrial of a person for the same
a. ce when he has been convtcted and sentenced
ouen 'all . for the
same offence whereas Section 300 speci Y inco:Porates the
principle which gives effect to the pleas (Autrefois Acquit as
well as Autrefois Convict). It embodies the well-known maxun
"nem.o debet bis vexari pro uno eadem causa ", which means no
person should be twice vexed for the same offence. 75
Plea of double jeopardy is not applicable in case the
proceedings for which the accused is being tried are distinct
and separate from the offence for which the accused has
already been tried and convicted. 76 In Section 300, when an
offence is tried by a competent court and the conviction or
acquittal which is in force then it bars the subsequent trial for
the same offence. Reason for this can be that on the same
facts the trial has been conducted already for the offence then
for the alternative offence also the trial will be done on the
~e facts and thus practically it will be the same trial which
Will be repeated and that is why it not permissible.
"-nee of the accusec1 In the trial when the evidence Is taken
273
~on of CrPC makes it obligatory on the part of the
the&glstthrate
0 to ensure that all evidence taken in the course of
er proceed· h f the
accused or h in~ s all be taken in the presence o .
' w en his personal attendance is dispensed Wlth,
-
74

II The Code Of Criminal p - 1974

,-,:~- J rocedure, 1973, §309 (1 ), No.2, Acts of Parliament.
L-,. aln, Indian Constitur
Roy Frey v. Superinte~~naltla0"'! 1~59 (Lexis Nexis, 4th edn., 1986).
en ' ,stnct Jail, AIR 1958 SC 119.
fair Trill and CompenHtory Juitlce for Victim, of Crime as a Facet of Article

--
21 of tht con1tltutlon - ~ ~ - -~ ~ - - - -

·n the presence of his pleader. 77 This section makes it

~bligatory that e~idence for the prosecution and defense
should be taken m the presence of the accused.78 In his
absence it can prejudice the fairness of the hearing in a grave
manner. It is better that the evidence from the prosecutor and
defense are taken in his presence. Sometimes the trial is also
vitiated by the failure to examine the witness in the presence
of the accused. Mere cross-exam ination in the presence of the
accused is not sufficient. 79
pOST-TRIAL RIGHTS TO THE ACCUSED
Right to Human Treatment
The right to humane treatment in detention requires that
persons deprived of th~ir liberty be treated humanely and with
dignity. 80 It provides prohibition on torture, cruel, inhuman, or
degrading treatment.81 This may amount to a violation of
Article 10 of the Internation al Covenant on Civil and Political
Rights (ICCPR) even if it does not rise to the level of torture or
cruel, inhuman or degrading treatment or punishmen t.s2
It is important that the prisoner is not given any inhuman
treatment. Prison deprives the liberty of the prisoner. The
prison system should try to aim at the reformation of the
prisoner.83 It is the right of every prisoner to have clean
environment, the right to be medically examined on regular
basis by the Doctor, meeting with the family member etc. 84 In

77
The Code of Criminal Procedure, 1973, §273, No.2, Acts of Parliament, 1974
~~ndia).
79
Supra note 2 at 341 .
80
Bigan Singh, 1927 6 Pat 691 .
81
International Covenant on Civil and Political Rights (ICCPR), art. 10(1 )
Right to human treatment in detention, available at· <
https://www.ag.gov.au/RightsAndProtections/HumanRights/Hum an-rights- .
scrutiny/PublicSectorGuidanceSheets/Pages/Righttohumantreatment1ndetent1on.asp
g1What>(accessed on 23rd May 2021 ).
Ibid. .
83
Human Rights and Prisons, United Nations, New York and Geneva, 2005, available
at:< https://www.ohchr.org/Documents/Publicatlons/training 11Add3en pdf'>
~~:•aaed
Id.
on 23rd May 2021 )..

61
 -=~---~Vl:;;c:.:tl::.m:.:.:•:..•:..n_d_C_rl_m_l_n_al_La_w_:_P_ers._...;..p_ec
ii _t...:.lv.:.es=.=on~VI
Ctlrn Ju.~

NHRC in the News Let ter reco mm end

999
~ah ~sh tra Gov ern men t ~o pay Rs 1 lnk h to the
dep:~d the
fan under pris one r who died due to lack of med ical trea
t ents
~ the Nasik Jail.as Rec entl y the Bom bay High Cou rt~nt
di ted the Sta te of Ma har ash tra to pay at leas
t Rs. 2 as
rec mpe nsa tion to Ran jit Sin gh Gill for kee pin 1
as co g him . ~s
three yea rs abo ve his act ual sen ten ce. 86 in Jail
,
Rllht to Rle an Appeal
The cou rt may gra nt rele ase on. bai~ to an ac~ use
d whose trial
for a non -bai labl e offence rem ain s 1nconclus1ve
even after the
expiry of sixt y day s from the firs t dat e fixed
for recordin
evidence. The cou rt is emp owe red to use this
power even i~
favour of convicts, who hav e gon e in app eal
to an appellate
court.87 In suc h cas es the sus pen sio n of
sentence is
technically spe akin g, not an ord er of bai l yet
the use of thi~
power is in kee pin g wit h the prin cipl e of
'presumption of
inno cen ce' whi ch the Ind ian Legal Sys tem acc
epts as an
attr ibu te of fair tria l. 88 Sec tion 389 ( 1) of the cod
e empowers
"the Appellate Cou rt may , for rea son s to be reco
rded by it in
writing, ord er tha t the exe cuti on of the sen tenc
e or order
app eale d aga inst be sus pen ded and , also ,
if he is m
confinement, tha t he be rele ase d on bail , or on
his own bond."
The exis tenc e of an app eal is the pre -co ndi tion
for granting
bail. And bail to a con vict ed per son is not a mat
ter of right
irrespective of the typ e of offence he has com mit
ted. The court
sho uld allow only whe n it is sati sfie d afte r the
reading of the
jud gme nt and hea ring of the acc use d. 89
Proper Execution of Sentence
H':11!1?11 Rights acti vist and lega l exp erts all ove r the coun
try
cnti cize d the han gin g of Afzal Gu ru by say ing
tha t it was an
11
National
at· http·//nh HUf!l~n Righ
·
ts Commission, India Police Custody 1993-2005 aiiable
•·Ranjlt Si~c~ , av
1c.m/cdcases (accessed on 23~d May 2021 ).
11 Indian
:-Jbld.
La! 1;~t!he Sl~te of Maharashtra Criminal, Writ Petition no. ~7 of 20)
4
O·
ute, Right to bail 17 (Indian Law Institute, New Deih 2000
l, ·
~
Code of c· · t 1914
nmmal Procedure, 1973, §436, No.2, Acts of
Parliarnen ,

62
fair Trial and Compensatory Justice for Victims of Crime•• a Facet of Article
21 of the Constitution

inhum ane act ~one by the Gover nmen t of India: 10 In carryi ng

out Afzal Gu1:1 s death senten ce, the gover nmen t deliberately
ignored the vtew_ of the Supre me Court and courts across the
world that hangi ng a perso n after holding him in custod y for
. . h 91 H
years 1s 1n u~an . e was hange d after 7 years after the
supre me Court s prono uncem ent of the death senten ce of him
th
on 4 Augu st, 2005_. The rejection of his petitio n by the
Presid ent afte~ over six years on Febru ary 3, 2013, was kept
secret and delibe rately not comm unica ted to his family . Within
a few days of the reject ion of his mercy petition, the execu tion
was carrie d out in secrec y on Febru ary 9, 2013, at Tihar Jail,
New Delhi. 92
An impre ssion was there amon gst the people that the delay
93
was political. His senten ce had triggered protes t in the
Kashmir. 94 This is a clear-cut case of not getting fair trial after
the sente nce of execu tion.
Role of Defence Counsel and Fair Trial
According to Sectio n 303, "any perso n accus ed of an offence
before a crimi nal court or again st whom proceedings are
institu ted unde r this code, may of right be defended by a
plead er of his choic e."<l" Unlike the other functionaries under
the code the defen s(-> couns el also gets the remun eratio n for
their se~c e from the a~cus ed. 96 They are also the officer of the

90

at: https://www.rediff.com/news/2006/nov/07mter.htm. (accesse on

OJ·
'I don't want a fellow Indian to get the death penalty' , November 200~;";il~b~~
r
2
~ 0 1).
1
• d Feb 19 2013 available at. <
An executio~ most fo~I,_ Thead7~~-~~ecuti~n-m~st-foul/article4428788.ece
https://www.theh1ndu.com1opinion11e >
~cc_essed on 23rd May 2021 ).
Ibid. . .
hanging AfzaI Guru?· , The Times of India, Nov. 30, 2008,
93
Why the delay m
available at: .
http://timesofindia.indiatimes.com/articl_ 13774792 _cms?utm source=contentofin
es~ow t (access ed on 23rd May 2021).
terest&utm medium=text&utm_campaIgn- cpps
: Ibid. -
The Code of Criminal Procedure, 1973· §303 , No.2, Acts of Parliament, 1974
~ndia).
Supra note 2 at 29.

63
 crtmlnal Law: Perspectives on Vlctlrn J
Victim• and ~

. . d'1 pensable if a fair trial is to be give

and are quite in s n to
ctOUrt sed person. 97
Ill atCU . fficer places a very crucial role. tr•
tial element 1n so1v1ng. t h e crime IllS
The invest1ga. ting O 1 .
98
unparoality is the esse:ce of good defense counsel will ~v 1n
this situation ~et~~~ee accused. And when the bail is givinget~
sense of secun~ him confidence to prepare and prepare h'
ed it gives . . 1s
the accus . d conferring with witnesses as well as b
defens~ by l~cating anhich are favoring him. 99 Defense couns{
llecting evidence w gf . . 1
co h It against the wron u 1 convict10n of the
. the last s e er
18 h' c .
It is totally dependent on 1m 1or Justice. To
accused person. d t h I
save him by all necessary means an at any cos s ou d be the
aim of the defense counsel.
A lawyer's assistance in getting a bail for hi~ client will help ~s
t to get liberty as soon as possible. The effective
cIien
participation by counsel in his c11ent · 's case m1g. . ht ~1gn
. ifi1can~y
reduce the drop in the number of false convictions. It will
reduce the trial length, expense, inconvenience and
humiliation faced by his client to minimum level.
Other things are mistake of facts, error in the interpretation
and the application of relevant provision if not done properly
then it will lead to grave injustice. Therefore, the presence of
the defense counsel is necessary in order to save his client
from such errors and biasness of the trial court.
Conclusion
After going through the Code, it can be stated that though the
:Y sten_i adopte? by_ t_he India is adversary
in nature, but the
~~ctions of mqu1s1torial system cannot ignored. Even the
math Committee has recommended to take some of the
adspe_ct~ of. the inquisitorial system. Our criminal justice
a ministration is h · all h b
avmg t e possible protection that can e
87
88
Ibid.
88 1b'd
I •
p~~f. B.N. Choudhary "R . .
Administration of the c •' . ight t? !air trial: An Humanizing Principle in The
~arterty, 2001. nminal Justi ce 217-231, Volume XIV, Central India LaW

64
fair Trial and Compensatory Justice for Victims of Cri F
of the Constitution me as a acet of Article
21

given to th~ accused. But the real problem lies in its

implementatio n of the parts of the provisions. The main task of
the s_tate sho~ld be to restructure the Administration of the
Criminal Justice and the rehabilitation of the offenders should
be the priority of the State.
In order to realize the rights effectively it is important that
jud~es, prose_cutors and lawyers plays their role properly. The
police authonty has a duty to protect the rights of the accused.
At the early stage, if the investigation is done properly then the
case can be disposed speedily. Otherwise, it will lead to
inconvenience and harassment to the accused. It is only when
these rights are strictly adhered to and any breaches checked
at the earliest stages, that a judicial system is created where it
functions for the ultimate purpose of administering justice
fairly and efficiently.
As far as other basic components of fair trial are concerned,
the adherence of these components can be seen in different
provisions of the Code. The prosecuting lawyer is on a good
footing due to the support he gets from the investigating
authority. On the other hand, the accused person has to
totally rely on his counsel, who is the last resort for him. The
effective participation Ly counsel in his client's case might
significantly reduce the drop in the number of false
convictions. It is the duty of the judge to some extent to see
the actions of the prosecutor and defense lawyer.
All the rights given in the Code an? the Co~stitution . are .of
utmost important. We cannot imagine the nght to fru.r tnal
without any of those mentioned in the Code and ~he
Constitution. These rights cab be regarded as the foundauon
of our society.

65