The above-mentioned quote given by ‘John Garamendi’ lays stress on the importance of free and fair trial in the criminal judicial system of any country.The concept of free and fair trial is a topic which is discussed at length by number of legal scholars and academicians. This is an inalienable right given to the accused in a criminal trial. In the modern world, the importance of this right is so immense that it finds a place in numerous global statutes such as the Article 6 of the ‘European Convention of Human Rights’[1], The International Covenant on Civil and Political Rights, 1966, The Statute of the International Criminal Court (The Rome Statute),[2] 1998 and several others.
Before beginning with the ingredients in the Code of Criminal Procedure, we need to first understand the meaning of the term fair trial? The right to a fair trial relates to the administration of justice in both civil as well as criminal contexts. Hence, in the initial stage itself, it is important to understand that the proper administration of justice has below two aspects,
The principle of fair trial upholds a series of individual rights ensuring the proper administration of justice from the moment of suspicion to the execution of the sentence.
This article is an attempt to critically analyse the right to fair trial with relation to the procedural criminal law of our country – The Code of Criminal Procedure. The author will elucidate upon the same by discussing the object, scope and the extent of the two questions given. Further, emphasis shall also be given to numerous landmark cases related to this noble concept.
Every civilised nation in this world must have one thing common in their criminal justice administration system that is minimum fair trial rights to every accused person irrespective of his or her status. The International Human Rights Law also encompasses the Right of Fair Trial and this has been duly adopted by most of the democracies in the world.
The Criminal Procedure Code is of utmost importance for effective criminal justice delivery and the same is emphasized in Sodawala v. State of Maharashtra,[3] wherein the judge said, “basic importance has to be borne in mind, as it is the procedure that spells the difference between rule of law and rule by whims and caprice”
The 37th Report of the Law Commission stressed in the importance of CrPC as a tool for protection of the victim and below mentioned were few points enshrined in the report: –[4]
Analysis of Fair Trial with Reference to Criminal Procedure Code
It is very interesting to note that Fair Trial and Rule of Law have a very deep connection. The rule of law is more than the formal use of legal instruments, it is also the rule of justice and of protection for all members of society against excessive governmental power. It is worthy to note that in the year 1993, the UN World Conference on Human Rights in Vienna reaffirmed that principle of the rule of law and the protection and promotion of human rights is impossible to separate and thus they go hand in hand.
India as a country follows the adversarial system of criminal justice. And the trial envisaged by the Code is adversary system based on accusatorial system.[5] In such criminal justice system the victim is represented by the state and it is the state who initiates a trial against the accused (the Doctrine of Parens Patriae); and the law requires him to prove his case beyond reasonable doubt.[6] However, it is very important to note that this right is not absolute. The court in order to meet the ends of justice can bend this principle.
In Himanshu Singh Sabharwal v. State of M.P. and Ors.,[7] the apex court observed that if fair trial envisaged under the Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court can exercise its power under section 311 of the Code or under section 165 of the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so as to sub serve the cause of justice.
Presumption of innocence is a very important aspect of Fair Trial and is of cardinal importance in the administration of Justice.[8] Latin legal principle that ei incumbit probatio qui dicit, nonqui negat that is the burden of proof rests on who asserts, not on who denies.[9] The framers of this code have made provisions to safeguard the rights of the accused and it is worth mentioning at this point that the right to fair trial is also considered as part and parcel of Right to life under Article 21 of the Indian Constitution,[10] which is the part of the basic structure doctrine[11].
In State of U.P. v. Naresh and Ors[12], the Supreme Court had rightly observed that the principle of presumption of innocence unless his guilt is proved forms the basis of criminal jurisprudence in India.
“Delayed Justice, is Denied Justice”[13]
This is one of the most important right which ensures the fair trial. Especially in a country like – India where a case continues for an average of 7-8 years. In the landmark case of Hussainara Khatoon v. State of Bihar[14] the Hon’ble apex court held that the right to fair trial also encompasses the right to speedy trial. In this case the court had observed that a delay of 11 years is not reasonable and hence it violates the basic rights enshrined in the Constitution of India.[15] Any sort of undue and unexplained delay violates Article 21 – Right to Life and Liberty.[16]
Delayed justice leads to unnecessary harassment. Section 309(1) of the CrPC gives directions to the courts with a view to have speedy trials and quick disposals. Despite ample of provisions in the penal and procedural law of our country, the biggest problem is its proper implementation. In Motilal Saraf v. State of Jammu & Kashmir,[17] the Supreme Court explained the meaning and relevance of speedy trial and said that the concept of speedy trial is an integral part of article 21 of the Constitution.
Section 327 of the Code of Criminal Procedure makes provision for open courts for public hearing. The main reasoning for such a provision is that an open court instills more confidence in the minds of the public. However, it carries a proviso, which 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.[18] (Politically Sensitive Cases – The Rafale Case)[19].
In the case of Naresh Sridhar Mirajkar v. State of Maharashtra[20] the apex court observed that the public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open court and must permit public admission to the court.
The basic meaning of the term ‘Double Jeopardy’ means, no one can be convicted for the same offence twice. It is based on the doctrine of ‘autrefois acquit’ and ‘autrefois convict’ which mean that if a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence.
Section 300 of the CrPC embodies this principle, which says that persons once convicted or acquitted not to be tried for the same offence or on the same facts for any other offence. This provision embodies the common law rule of ‘nemo debet vis vexari’, which means that no man should be put twice in peril for the same offence.
Article 20(2) of the Indian Constitution also deals with the concept of Double Jeopardy. If one closely analysis both the provisions, one can find that the provision of Section 300 is much wider than compared to Article 20(2).[21] The same has also been laid down in the landmark case of Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao.[22]
Denial of ‘timely justice’ amounts to denial of ‘justice’ itself. Two are integral to each other and thus can be considered as the 2 sides of the same coin. Timely disposal of cases is essential for maintaining the rule of law and providing access to justice, which is a guaranteed fundamental right.
We need to understand that the role of judiciary is not only to settle disputes but also to make sure that the rights of the parties involved in the disputes are duly protected. There are numerous of hurdles in this entire process of effective criminal justice administration. It has been quite some time, we lament about the justice not being properly served. Now time has come to identify such challenges and find a proper workable solution to tackle this situation. Below mentioned are few major challenges that need to be dealt with.
The main reason for failed administration to justice can be attributed to large number of cases which are pending at various levels of judiciary. It will be wrong on our part to blame the judiciary for this. According to me, everyone is responsible for this be it litigants or the lawyers. Litigants, because the lower courts are flooded with petty matters, which can be resolved by mediation or by other ADR Mechanisms.
The present study says, according to data available with the Supreme Court of India the number of pending cases with the Supreme Court is 64,919. The, pending cases in the 24 High Courts of the country were 4,456,232 in which 3,432,493 were civil and 1,023,739 criminals.[23]
The first and the most visible of the challenges is the sheer workload that the justice system has to deal with. The police, which is usually the primary investigative agency in India has a ratio of 138 police personnel per 100,000 citizens. This is much lower than the sanctioned strength of 182 officers per 100,000 citizens. If we compare this data with that of other nations, in the United States, it is at 229 per 100,000 and 505 in Spain.[24] Similarly, courts are massively overworked. This means policing is carried out under a lot of strain.
The Union Home Ministry in the year 2003 had formed a committee under the leadership and guidance of Justice V. S. Mallimath – former Chief Justice of the Karnataka and Kerala High Court. The main task entrusted to the committee was to study the criminal justice system and to give valuable recommendations to improve the administration of justice. The committee had listed points, which were the reasons for a huge backlog of cases in the Indian Judiciary. The points raised by the committee were as below: – [25]
Solution: – The major question is what more can be done to solve this on-going crisis. The most simple and effective solution will be to increase the strength of judges, reducing judicial vacancies, diverting cases from the courts to alternate dispute resolution forums (such as mediation and Lok Adalats) and formation of specialized tribunals.
In proper administration of Justice, the most important priority should be to make sure that the judges are not in constant fear solely because the accused has a high political backing. The author would like to explain this point with the help of a case analysis of State vs. Santosh Kumar Singh[26] (Priyadarshini Matto Gang Rape Case).
Priyadarshini Mattoo was a 25-year-old law student, who was found raped and murdered at her house in New Delhi on 23 January, 1996. She had lodged several complaints of harassment, intimidation and stalking against the accused Santosh Kumar Singh who was also a student of L.L.B. in campus Law Centre, Faculty of Law, University of Delhi.
25 February, 1995 & 16 August, 1995- Two undertakings are given by the accused subsequent to the complaints registered against him by the deceased.
On 30 October, 1995 the anguished accused made frivolous complaints to the authorities at the Delhi University against the deceased that she was concurrently pursuing two courses at the same time.
The result of the deceased was withheld by the university which issued show cause notice to which she was to reply at the earliest.
6 November. 1995-he again tried to harass the deceased at the Campus Law Centre.
A FIR under section 354 of Indian Penal Code (IPC), 1860[27] was lodged against him for which he was arrested and subsequently released on personal bond.
She met the Deputy Commissioner of Police (South West) to whom she complained against the accused upon which, a Personal Security Officer was provided to her
On the fateful day of the murder when the deceased was alone at her residence at B-10/7098, Vasant Kunj the accused came at her house.
On the arrival of the security guard Rajinder Singh at the deceased’s residence it was found that Priyadarshini Mattoo was lying under the double bed and there was no movement of her body.
Though I know he is the man who committed the crime, I acquit him, giving him the benefit of doubt”. [28] This shocking statement of the Additional Sessions Judge, G.P. Thareja in the Ms. Priyadarshini Mattoo case, while acquitting the accused reflects the deplorable state of our criminal justice system. Undoubtedly, this case triggered public frustration over the miscarriage of justice at the instance of high profile and influential accused Santosh Kumar Singh, son of Former Senior IPS Officer J.P. Singh.
It is said, “Power corrupts and absolute power corrupts absolutely.”[29] It is ironical that the Judiciary itself being one of the most potent organs of the government is subdued by the rich and persuasive lot of the society. Sadly, almost all the constitutional safeguards and restraints on judicial misconduct are now dead.
The trial court judge in this case overlooked all the evidences available and acquitted the accused. This case a classic example as to how the judges of our country are unable to deliver judgements free of fear and pressure, and in a result end up falling easy prey to the politically powered group. Failure in proper administration of Criminal Justice System can also be attributed to this factor. It is high time that we start looking at this side of the coin more seriously and thus frame laws which shall protect the judges from such external pressure.
Talking about pendency of cases as a hinderance for judicial administration in India, it becomes very necessary to talk about the problem of granting unnecessary adjournments. A case in India be it civil or criminal lasts for nearly 5-6 years. A panel was formed by the Central Government to review the gravity of this issue. he laid down procedure of allowing a maximum of three adjournments per case is not followed in over 50 per cent of the matters being heard by courts, leading to rising pendency of cases, a government panel has said.[30]
The experts of the formed panel were strongly of the opinion that, the law of maximum 3 adjournments should be strictly followed to reduce, the backlog of cases. India’s judiciary is respected across the world as an upholder of justice for the defenceless. It is also true that our judges are overburdened by the sheer volume of cases. As a consequence, the Indian legal system is marked by long delays. However, if one looks at the practicality of this rule, it can be found that, in a criminal justice system where we follow the principle of ‘Innocent Until Proven Guilty’, the strict rule of giving only 3 adjournments may give rise to more injustice then actually preventing it.
It is rightly said that “It is better late then never”. To improve the present process of administration of justice, it is very important to involve all the facets of our judicial system in the decision-making process and thereby formulating policies for speedy disposal of cases, proper appointment of judges and thereby making the concept of Fair Trial indeed a reality.
“Equality, Justice and Liberty” is considered as the trinity of fair trial recognized in the administration of justice of India, time has come to take concrete steps in this direction and make policies for speedy-effective justice. At this juncture, I find quoting stanzas from Manu Samhita very relevant.
His
lordship Arijit Pasayat in the famous “Best Bakery’s case”[31]
“where in the presence of Judges “dharma” is overcome by “adharma” and “truth”
by “unfounded false hood”, at that place they (the Judges) are destroyed by
sin. In the adharma flowing from wrong decision in a court of law, one fourth
each is attributed to the person committing the adharma, witness, the judges
and the ruler”.
[1] “The European Commission of Human Rights”, https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf, Last Accessed on January 11, 2019.
[2] ‘The Rome Statute’, https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf, Last Accessed on January 11, 2019.
[3] Sodawala v. State of Maharashtra, 1975 3 SCC 140.
[4] “37th Law Commission Report”, http://lawcommissionofindia.nic.in/1-50/Report37.pdf, Last Accessed on January 13, 2019.
[5] Report of the expert Committee on Legal Aid, p.70.
[6] K.N.C. Pillai (ed.), R.V. Kelkar’s Criminal Procedure, at 336 (5th edn.).
[7] Himanshu Singh Sabharwal v. State of M.P. and Ors, MANU/SC/1193/2008.
[8] Babu Singh v. State of Punjab, (1964) 1 Cri. LJ 566 at 572.
[9] Ballentine’s Law Dictionary, https://openjurist.org/law-dictionary/ei-incumbit-probatio-qui-dicit-non-qui-negat, Last Accessed on January 19, 2019.
[10] Maneka Gandhi v. Union of India, 1978 SCR (2) 621.
[11] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
[12] State of U.P. v. Naresh and Ors, (2001) 4 SCC 324.
[13] “Quote by William Ewart Gladstone”, https://www.brainyquote.com/quotes/william_e_gladstone_101551, Last Accessed on January 17, 2019.
[14] Hussainara Khatoon v. State of Bihar, 1979, 1979 AIR 1360, 1980 SCC (1) 81.
[15] Katar Singh v. State of Punjab, 2009 SCC OnLine P&H 5717.
[16] AR Antulay v. RS Nayak, (1984) 2 SCC 183: 1984 SCC (Cri).
[17] Motilal Saraf v. State of Jammu & Kashmir, (2007) 1 SCC (Cri) 180.
[18] Naresh Sridhar Mirajkar Vs. State of Maharashtra, AIR 1967 SC 1
[19] “Rafale Deal – Nine Questions the SC Verdict Fails to answer”, https://thewire.in/government/eight-questions-on-rafale-the-supreme-court-verdict-leaves-unanswered, Last Accessed on January 19, 2019.
[20] Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967SC 1 at 8.
[21] Basu, D.D., Commentary on the Constitution of India, (8th edn.) at 2973.
[22] Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao, (2011) 2 SCC 703.
[23] ‘Law Commission Report – Backlog of Cases”, http://lawcommissionofindia.nic.in/reports/report245.pdf, Last Accessed on January 19, 2019
[24] “Govt. Report – Police Situation in India”, http://ncrb.gov.in/StatPublications/CII/CII2013/Chapters/17-Police%20strength,%20expenditure%20and%20infrastructure.pdf, Last Accessed on January 19, 2019.
[25] “Committee on Reforms of Criminal Justice System”, https://mha.gov.in/sites/default/files/criminal_justice_system.pdf, Last Accessed on January 19, 2019.
[26] Santosh Kumar Singh v. State through CBI (2010) 9 SCC 747.
[27] The Indian Penal Code, 1860, s, 6.
[28] “A shocking acquittal”, http://www.frontline.in/static/html/fl1627/16270340.htm, Accessed on 19 January 2019.
[29] “Quote by Lord Acton”, http://www.acton.org/research/lord-acton-quote-archive, Accessed on 19 January 2019.
[30] “The Rule of Three Adjournments”, https://www.indiatoday.in/pti-feed/story/rule-of-maximum-3-adjournments-not-being-followed-in-over-50percent-940339-2017-06-08, Last Accessed on 20 January, 2019.
[31] Zahira Habibullah Sheikh and others v State of Gujarat, 2006 (3) SCC 374 at 395 Pg.
This article is written by Neel Vasant.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.
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