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Every civilised country must provide every accused individual, regardless of position, the right to a minimum fair trial as part of its criminal justice administration system.

It is recognised in common law and also adopted by other nations that criminal prosecution begins with the 'presumption of innocence' and that guilt must be proven beyond a reasonable doubt. This article will trace several aspects of fair trial standards under the Indian criminal justice system, and it will also concentrate on the role of the defence counsel in the pursuit of justice, because he is the only person the lonesome accused may put his faith in.

Key words: Fair trial, Indian criminal justice system, defence counsel and justice.


The principle of right to a fair trial is an international human rights law and it is adopted by many countries in their procedural roles.

This principle has been accepted by the countries like U.S.A., Canada, U.K., and India and it is enshrined in their constitution. In many international instruments the right to a fair trial has been defined.

The Universal Declaration of Human Rights' objectives are reaffirmed in Article 14 of the International Covenant on Civil and Political Rights, which also states that “Everyone should have the right to a fair and public hearing before a competent, independent and impartial tribunal established by law”. The presumption of innocence is given under Article 14(2), and sets out a list of minimum fair trial rights in criminal proceedings. Article 14(5) and article 14(7) states that a convicted individual has the right to have a higher court review of the conviction or sentence and prohibits double jeopardy, respectively.

The international promise of fair trial is reflected in the constitutional scheme as well as procedural law of the Indian legal system. In a number of cases, the Indian judiciary has also emphasised how important a fair trial is.It is intended to shield people against the unlawful and arbitrary restriction or deprivation of their fundamental liberties, the right to life and liberty of the person being the most salient examples. The concept of fair trial is based on the basic principles of natural justice.

In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors.[1] The Supreme court of India has stated that “each person has an inherent right to be treated fairly in a criminal trial.

Denial of fair trial is as much injustice to the accused as it to the victim and to society. A fair trial would undoubtedly entail a trial before an unbiased judge, a fair prosecutor, and a peaceful court environment. A fair trial is one in which there is no bias or prejudice for or against the defendant, the witness, or the issue under trial”.

A basic protection to ensure that people are safeguarded from the unlawful or arbitrary deprivation of their human rights and freedoms, especially of the right to liberty and security of person, is a right to a fair trial.



● The adversarial system, based on the accusatorial approach, is the system adopted by the Criminal Procedure Code of 1973. In an adversarial system, the prosecution is responsible for producing evidence, with the judge serving as a neutral referee. This criminal trial method implies that the state, on the one hand, would pursue the offender using its investigation agencies and government counsels, while on the other hand, best counsels will be used to challenge and refute the prosecution's evidence.

● “If a Criminal Court is to be an efficient tool in administering justice, the sitting judge must stop to be a spectator and a mere recording machine,” the Supreme Court stated. And SC also stated that he must participate in the trial by demonstrating intellectual active interest[2].

● The apex court observed in Himanshu Singh Sabharwa v. State of M.P. and Ors.[3] that if the parties do not receive a fair trial as envisaged by the Code, and the court has reason to believe that the prosecuting agency or prosecutor is not acting in the required manner, the court may exercise its power under Section 311 of the Code or Section 165 of the Indian Evidence Act, 1872 to call in the material witness and procure the relevant documents in order to subserve the cause of justice.


● An accused person has the right to be presumed innocent until proven guilty, which is a core aspect of our criminal justice system. It is the state's job or responsibility to prove who is guilty. If an accused remains silent, it should not be used as proof of guilt or as a basis to imprison them before trial.

● This presumption appears to stem from the Latin legal concept ei incumbit probatio qui dicit, non qui negat, which states that the burden of evidence is on the one who claims rather than the person who denies.

● The Supreme Court said in the State of U.P. v. Naresh and Ors.[4] that “every accused is believed to be innocent till his guilt is proven. The right to an innocent presumption is a human right subject to statutory restrictions. The aforementioned premise serves as the foundation of Indian criminal law.”


● The core institutional structure that allows the enjoyment of the right to a fair trial is that criminal procedures must be handled by a competent, independent, and impartial court. Independence is presupposed on a separation of powers in which the judiciary is institutionally shielded from undue influence or intervention by the executive branch. The purpose for this clause is to avoid the arbitrariness and prejudice that may occur if criminal charges were determined by a political or administrative authority.

● The court stated in Shyam Singh v. State of Rajasthan[5], the court stated that the question is whether or not a bias has influenced the judgement. The essential question is whether there is a condition under which a plaintiff may properly conclude that a bias attributed to a judicial officer must have operated against him in the case's final decision.


● According to this idea, if someone is tried and found not guilty of one offence, he cannot be prosecuted again for the same offence or on the same circumstances for the other offence. This doctrine has been given under Article 20(2) of the constitution, and also embodied in Section 300 of the Code. The second or subsequent trial in violation of the higher than this doctrine would constitute undue harassment of the suspect and may be thought as something, however true, that is banned by both the code and the constitution.

● The Supreme Court observed in Kolla Veera Raghav Rao versus Gorantla Venkateswara Rao[6] that Section 300(1) of the Cr.P.C. is broader than Article 20(2) of the Constitution. While Article 20(2) of the Constitution only states that “no one shall be prosecuted and punished for the same offence more than once,” Section 300(1) of the Criminal Procedure Code states that “no one shall be tried and convicted for the same offence or for a different offence but on the same facts.” In the present case, the offences are different but the circumstances are the same. As a result, Section 300(1) of the Cr.P.C. applies. As a result, the prosecution under Section 420 of the IPC was barred by Section 300(1) of the Cr.P.C. The High Court's decision was overturned.



A fair trial necessitates providing the accused with an appropriate opportunity to defend himself. This chance, however, will be meaningless if the accused individual is not notified of the charge levelled against him. Sections 228, 240, 246, 251 of the Code consequently specify plainly that when an accused person is brought before the court for trial, the particulars of the offence of which he is charged should be told to him.


A decision is deemed made public when it is either orally proclaimed in court, published, or made public through a combination of those approaches. Section 327 of the C.R.P.C provides for open courts for public hearings, but it also grants the presiding judge or magistrate discretion to deny access to the court to the general public or any particular person if he believes it is necessary due to the disclosure of indecent matter, the likelihood of a disturbance, or any other reasonable cause.


The necessity of a fair trial has two parts: a) the accused's right to choose his own counsel, and b) the state's obligation to provide counsel to the accused in certain instances. In its 14th Report, the Law Commission of India said that free legal aid to people with limited means is a service that a Welfare State owes to its residents. In India, the right to counsel is recognised as a basic right of an accused person under article 22(1), which states, among other things, that no person should be refused the opportunity to consult with and be defended by a legal practitioner of his choosing. This constitutional requirement is manifested in Sections 303 and 304 of the Code.


A speedy trial is required to restore public trust in the courts. Delays in justice result in unwarranted harassment. Article 21 of the Constitution includes the principle of speedy trial. The right to a speedy trial begins with the physical restriction imposed by arrest and subsequent confinement and continues through all stages, namely investigation, inquiry, trial, appeal, and revision.


Section 50 of C.R.P.C states that anyone detained without a warrant must be notified of the reason for his detention right away.

When the police arrest without a warrant, their role is to be fast to recognise the possibility of criminality, but they must be careful not to mistake the innocent for the guilty. The onus is on the police officer to satisfy to the court before which the arrest is being challenged that he had reasonable grounds for suspicion. Section 57 of Cr.P.C. and Article 22(2) of Constitution provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest.


The presence of the suspect throughout his trial will be understood from the provisions that allow the Court to dispense with the non-public attendance of the suspect under certain circumstances, such as when magistrate issuing summons, a magistrate may dispense with the non-public attendance of the suspect and allow him to look through his advocate (Section 205[7]). Section 317 of C.r.P.C. allows the court to waive the accused’s personal attendance at his trial.


Bail is essentially freedom from confinement, more specifically release from police custody. An order of bail restores the accused's freedom of movement on the condition that he will attend his trial. Section 436 of C.r.P.C. provides that the accused has the right to bail in circumstances where bailable offences are included in the First Schedule to the Code.


The concept of ‘autrefois acquit’ and ‘autrefois convict’ states that once a person is tried and acquitted or convicted of an offence, he cannot be prosecuted for the same offence or on the same circumstances for any subsequent offence. This section incorporates the common law concept of nemo debet vis vexari, which states that no man should face prosecution for the same offence twice.


Clause (3) of Article 20 provides: “No person accused of any offence shall be compelled to be a witness against himself.” This Clause is based on the maxim nemo tenetur prodere accussare seipsum, which means that “no man is bound to accuse himself.



According to Article 20(1), a person can be convicted of an offence only if the act is punished by law. It accords constitutional validity to the norm that no one may be condemned unless they violate an existing law. It states that no one should face a punishment greater than that which may have been imposed under the law in effect at the time the violation was committed. It forbids retroactively increasing the sentence for a crime. However, article 20(1) does not apply in circumstances of preventative detention.


A prisoner does not become a non-person. Prison takes away one's liberty. Even yet, the jail system must strive for change. Treatment in jail must focus on psychological healing, stress release, and self-esteem restoration, in addition to instruction to adjust to life outside of prison.


Section 389(1) of C.R.P.C authorises the appellate court to suspend the execution of a sentence or, if the guilty individual is imprisoned, to grant bail pending an appeal. Before postponing sentencing or releasing on bail, the court is not required to notify the public prosecutor. The existence of an appeal is a prerequisite for obtaining bail. Bail for a guilty individual is not a right, regardless of whether the offence is bailable or non-bailable, and should be granted only when warranted after reading the judgement and hearing the accused.


The warrants for the execution of the sentence of imprisonment must be directed to the in-charge of the jail or to any facility where the accused is to be detained, according to Section 419 of the CrPC. However, if the individual is to be imprisoned, the warrant must be submitted to the jailor.


After evaluating various parts of the Code, it can be said that, while the system adopted by the Indian judicial administration is adversarial in character, the reflections of the inquisitorial system cannot be denied.

While dealing with these two types of systems, the Code has taken a balanced approach. In terms of other essential components of fair trial, adherence to these components may be demonstrated in various provisions of the Code. The true difficulty, however, is the implementations of these regulations or provisions. The function of counsel is an adversary criminal system, which is triangular in nature, and is critical, because the prosecution, which represents the state, is in a stronger position because it has the assistance of investigating agencies. The accused person, on the other hand, may rely entirely on his counsel, who, as his final resort, can save him from the arbitrary and oppressive action.

-- [1] Zahira Habibullah Sheikh and ors v. State of Gujarat and ors. (2006) 3SCC 374 at 395 [2] Ram Chander v. State of Haryana, (1981) 3 SCC 191 [3] Himanshu Singh Sabharwa v. State of M.P. and Ors. MANU/SC/1193/2008 [4] State of U.P. v. Naresh and Ors. (2001) 4 SCC 324 [5] Shyam Singh v. State of Rajasthan, 1973 Cri LJ 441, 443, (Raj.) [6] Kolla Veera Raghav Rao versus Gorantla Venkateswara Rao (2011) 2 SCC 703 [7] The code on Criminal procedure, 1973, Act No. 2 of 1974

This article is written by Chitransh Gupta of Manipal University Jaipur.

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