Examining the legal protection available to defendants in criminal trials and significance of due

process under Crpc

Fair Trial?
Benjamin Franklin once said that “It is better that ten guilty escape than one innocent suffers”. The
concept of fair trial is quite ancient and the first traces can be found in 1215, Magna Carta, which
gave, all freemen the right to fair trial by jury. According to Black Law’s Dictionary, the term Fair
Trial means the trial in the presence of an impartial judge and jury. Every person has a right to fair
trial, which is considered as a fundamental right in the eyes of the law, every person has a right to
defend himself (Sub-section (2) of Section 243 of the CrPC, 1973 recognises the right to defend
oneself and to adduce evidence) and the denial of that right means denial of fair trial
The system adopted by the Criminal Procedure Code, 1973 is Adversary System based on the
Accusatorial Method which involves accusation by a prosecutor and a verdict reached by an impartial
judge. In Himanshu Singh Sabharwa v. State of M.P. and Ors.,[3] the apex court held that if the court
has reasons to believe that the prosecuting agency or prosecutor is not acting in accordance with
procedure of fair trial as laid down under the code the court can exercise its power under Section 311
of the code or under Section 165 of the Indian Evidence Act, 1872 so as to subserve the cause of
justice.
The accused is presumed to be innocent until proved guilty.[4]This principle has been derived from
the Latin maxim “eiincumbitprobatio qui dicit, non quinegar”. This is considered as the most
important principle of fair trial and is must in a trial in order to protect the accused from arbitrary and
wrongful conviction. As per Section 228 of Criminal Procedure Code if the judge is of the opinion
that there is ground for presuming that the accused has committed an offence, he shall frame in
writing a charge against the accused. The burden of proving the guilt of the accused is upon the
prosecution unless proved the accused cannot be considered as guilty.

(3) The proceedings are to be conducted by a competent, independent and impartial court/judge. This
principle has been derived from the Latin maxim “nemo judex in causa sua” which means no one can
be a judge in his own cause. Section 479 of the code explicitly prohibits any judge or magistrate to
trial any case in which he is a party or personally interested.

(4) Principle of Double Jeopardy. Section 300 of the CrPC talks about principle of Double Jeopardy
which says that if a person is tried and acquitted or convicted of an offence he cannot be tried again.
This doctrine is also incorporated in Article 20(3) of the Constitution of India. Section 300(1) of CrPC
is wider than Article 20(2) of the Constitution.[5]

(5) Place of Trial- according to Section 177 of the CrPC, every offence shall ordinarily be inquired
into and tried by a court within whose local jurisdiction it was committed. In Rajendra Ram Chandra
Kavalekar v State of Maharashtra[6], it was observed that the territorial jurisdiction of a court with
regard to criminal offence would be decided on the basis where the incident has occurred. The
provisions of section 179 to 189 are made to facilitate fair trial.

Pre-Trial Rights Available to an Accused

I. Protection against illegal arrest – Section 50 provides that any person arrested without a warrant
shall be informed of the grounds of his arrest in a language, which he understands and if the offence is
bailable, he shall be informed of his right to be released on bail. Section 50 is mandatory.[7]The
grounds can be communicated orally or even impliedly by conduct. This provision is in conformity
with Article 22 of the Indian Constitution. The Allahabad High Court in Udayabhan Shuki v. State of
U.P., held that the right to be informed the grounds of arrest is a precious right of the arrested person
as it enables him to move the proper Court for bail, or to make expeditious arrangements for his
defence.
Knowledge of the Accusation- The accused is informed of the accusations against him in the form of
‘charge’. A charge should be so framed as to refer to the section of the IPC under which the offence is
punishable. Section 211 of CrPC contains the right to know the grounds of accusation. It is a right to
have a precise and specific accusation. Further section 228,240,246,251 of the code provides that the
particulars of the offence of which he is accused shall be stated to him.

III. Production of accused before a judicial magistrate within 24 hours of arrest- Section 57,CrPC
provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of
arrest. Where a police officer fails to produce an arrested person before a Magistrate within 24 hours
of the arrest, he shall be held guilty of the offence of wrongful detention.

Where the investigation cannot be completed within 24 hours then the magistrate after the accused has
been produced within 24 hours can order to detain him for a period of 15 days (not exceeding that)
under section 167 of CrPC. In Kultej Singh v Circle Inspector of Police[8], the accused was produced
before the magistrate much beyond the period of 24 hours, the police offered their explanation and
stated that delay was caused because of the urgency to go elsewhere in connection with communal
riots. It was accepted by the court.

IV. Arrest of accused to be informed to his friend or relative– In Joginder Kumar v State of Uttar
Pradesh[9], it was held that it is the duty of the police officer to inform the friend or relative of the
arrested person about his arrest and to make an entry in the register maintained by the police.
V. Right to Open Trial- This encompasses public hearing in an open court. Section 327 of the code
makes provision for open courts for public hearing. In Naresh Sridhar Mirajkar v. State of
Maharashtra[10], the Supreme Court observed that right to open trial must not be denied except in
exceptional cases.

VI. Right to Fair Trial/Right to Free Legal Aid– It consists of two things first an opportunity to the
accused to secure a counsel of his own choice and secondly it is the duty of the state to provide a
counsel to the accused. This is given under sections 303 and 304 of the Code. Every person has a right
to a fair trial by a competent court in the spirit of the right to life and personal liberty. The objective
behind this is to make sure that the accused gets free and fair trial of charge in a criminal case. In
Khatri v. State of Bihar[11], the court held that the accused is entitled to free legal services not only at
the stage of the trial but also when first produced before the Magistrate and also when remanded. In
the leading case of Ramchandra Nivrutti Mulak v State of Maharashtra, the apex court held that the
conviction of an appellant not represented by a lawyer was clearly in violation of the fundamental
right. A right to fair trial includes the right for legal assistance. In the recent case of Reena Hazarika v
State of Assam,[12] the Supreme Court threw light on the law pertaining to Section 313 of CrPC. The
court was of the view this section cannot be seen simply as a part of Audi Alteram Partem. It confers a
valuable right upon an accused to establish his innocence and can well be considered beyond a
statutory right as a Constitutional right to fair trial under Article 21 of the Constitution.

VII. Right to Speedy Trial- It is given under section 309(1) of the code. It is considered as essential
ingredient of “reasonable just and fair” procedure.[13]It is based on the maxim “justice delayed is
justice denied”. This right comes from Article 21 of the constitution. In Moti Lal Saraf v. Union of
India[14], the court held that the concept of fair and speedy trial is an integral part of article 21 of the
constitution.

VIII. Proceedings in the Presence of the Accused– The underlying principle behind this right is that
the court should not proceed ex parte against the accused person. Section 317 of the code provides
that a magistrate may proceed with the trial if the presence of the accused is not necessary. Section
273 provides that all evidence taken in the course of the trial shall be taken in the presence of the
accused. Section 238 makes it obligatory on the Magistrate to supply copies of these documents to the
accused free of cost so that the accused person is given full opportunity to defend himself.

IX. Right to bail- Section 436 provides that the accused can claim bail as a matter of right. If the
offence is bailable, bail will be granted without more ado. In non-bailable offences, the Magistrate has
power to release the accused on bail without notice to the other party.

X. Evidence to be taken in the Presence of Accused-Section 273 of the code provides that all the
evidence and the proceedings should take place in the presence of accused and the accused will
appear through his counsel. In State of Maharashtra v. P.B. Desai[15], court held that Section 273 of
CrPC provides for dispensation from personal attendance.

XI. Right against self-incrimination- This is mentioned under Article 20(3) of the Constitution of
India. The right has been provided to ensure that an accused do not make any statement due to
threatening, influence or any other compulsion.[16]

Post-trial rights available to an accused

I. Lawful Punishment– Article 20(1) of the Constitution of India explains that a person can be
convicted of an offence if the act is made punishable by a law in force. It prohibits the enhancement
of punishment for an offence retrospectively.

II. Right to Human Treatment- Every prisoner has right to clean and sanitized environment in the jail,
proper medical facilities, right to visit and access by family members etc.
III. Right to File Appeal- Section 374 of the CrPC provides right to appeal against convictions to
Supreme Court, High Court and Sessions Court. Section 389 of CrPC empowers the appellate court to
suspend the execution of sentence or to release the appellant on bail
issues and challenges in Criminal Justice System in India?
The Criminal Justice System in India is considered as the best example of the phrase “Justice delayed,
Justice denied”. The potency of any justice system can be judged by the speed at which the cases are
disposed of. Right to Speedy Trial is given under Section 309 of CrPC and it is considered as a
Constitutional right of every accused. Generally delay in Speedy trial is because either of delay in
investigation of crimes or the negligent way in which a case is investigated. This this inordinate delay
in litigation is leading to huge pendency in courts. According to a data approximately 30 million cases
are pending in various courts.

Many of these cases consist a story of an innocent man who are in jail as an under trial prisoners for
decades. In Akshardham Terror Attack case, the accused Mufti Abdul spent 12 years in jail. On 16
May 2014, a Supreme Court bench composed of Justices A K Patnaik and Venkate Gopala Gowda
acquitted all six persons, including those awarded the death penalty. The Supreme Court slammed the
Gujarat Police for the incompetence with which it investigated the case. The bench gave the decision
holding that the prosecution failed to establish the guilt of the accused. In 2012 Delhi gang rape case
the Supreme Court took 7 years to pass the verdict. In India there are 10 judges per million people as
compared to 107 in England. This figure needs to be increased to ensure that the case are disposed of
on time.

Section 437(6) of Criminal Procedure Code was enacted to prevent a prisoner who has been charged
of a non-bailable offence but was made to stay in jail because of delayed trial to be released on bail
where the trial has not concluded within the 60 days from the first date fixed for taking evidence. In
Puran V. Rambilas and Anr.[19], it was held that that while dealing with an application for bail, the
Court should indicate in its order, reasons for prima facie concluding why bail was being granted
particularly where an accused was charged of having committed a serious offence. In State of
Maharashtra v. Anant Chintaman Dighe[20], the accused was granted bail because he was a
prominent leader of a political party and there was no possibility of his committing any offence in
future. But after his release on bail, he was found to threaten prosecution witnesses of committing
their murder and giving lectures inciting violence.
The Apex Court therefore, held that the cancellation of bail of the accused was proper and hence
needed no interference by the Court. The system responded to this situation by enacting Section 436-
A80 which spells out the right of an under trial prisoner to apply for bail once she/he has served one
half of the maximum term of sentence she/he would have served had she/he been convicted.

Secondly, the workload that the justice system has to bear with is huge. The police is considered as
the Chief Investigating agency in India and it has a ratio of 138 police personnel per 1,00,000 citizens.
Other countries like United States and Spain have 229 and 505 per 1,00,000 respectively. Section
155(2) of CrPC states that a magistrate can give an order to police to investigate a non-cognizable
offence. Under Section 156 of CrPC the police has power to investigate in a cognizable offence. It is
true that improper investigation by police can change the course of the case.
The Aarushi Talwar murder case the much talked about case in history of crime and punishment. In
this case from investigation to follow up everything went wrong. Moreover, the crime scene
investigation by the police was so bad and unprofessional. In addition to all of this there was media
trial of the Accused which worsened the situation. Most, tragically, the manner in which the trial
proceeded and concluded are a shocking testimony to our less than adequate criminal justice system.
The accused spent nine years in jail.

Disorganised investigation is mainly because lack of professionalism and competence in crime

investigation. A proper investigation includes professional skills and patience. In a recent judgment of
Neelam v State of Haryana[21], the High Court held that the completion of investigation without
considering outcome of forensic science laboratory couldn’t be considered as a fair investigation.
Because of inordinate and improper investigation many prisoners rot in jail. However, this problem
can be solved by proper enforcement of Section 167 of CrPC.

This section provides the procedure to be followed when the investigation cannot be completed in
twenty four hours. This provision shields the accused from suffering incarceration on account of the
inability of investigating agency to wind up its investigation. Sub-clause (b) of this section extends to
allowing the person bail if there isn’t sufficient cause to hold him in custody. It was observes in
Laxmi Narain Gupta V. State[22], that along with the present petition there were 20 other cases
pending, where the accused is in judicial custody, either because they are poor or they are unaware of
their rights. Section 167 must be expanded so that remedies are available for past illegal detentions or
arrest even if in the present case custody it is legal. Also, the executive must also play a role by
ensuring that more and more people are aware of their rights.

In addition to this people have no fear of police in India and as compared to countries like Singapore,
China and japan where spitting in public, smoking in public, wearing the wrong dress when going out
will directly land you jail. Stricter laws should be implemented so that the people have in their minds
before committing any offence.

People are losing faith in criminal justice in India because of low conviction rate. In India only about
16 out of 100 people are booked for criminal offences which results in a big problem and this is
causing inefficiency in the justice system.

Next impediment in Justice System is caused because of the time consuming and expensive legal
process. The justice system is considered as expensive because the people who have money and
power use it against the victims and second reason why the criminal justice system is expensive is
because of the non- accountability of bar. The bar council of India is not able accountable and there is
no discipline in the fraternity of advocates. A advocate charges high fees even for consultation.
There is lack of Coordination between the police and prosecution. Even if the police does its work
well the outcome depends upon the prosecution because it is in his hands how he is going to collect he
evidence and present it in court in an effective manner.

67% of the prisoners are under trial because of which there is heavy bulk of India’s prison population.
[23] This overcrowding of jails lead to greater risks such as difficulties in surveillance, risk of disease
etc.

The Indian judicial system like any other government institution is highly corrupted. The famous
scams like CWG scam, 2G scam, Adarsh Society Scam are examples to it. Further there is no
provision in law against a judge taking bribes.

Right of accused to be produced before a judicial magistrate within 24 hours of arrest (Section 57,
CrPC):
Section 57 mandates the prompt production of arrested individuals before a magistrate, preventing
prolonged detention without judicial oversight. This protects against arbitrary arrest and ensures due
process.
https://lawbhoomi.com/fair-trial-and-issues-challenges-in-criminal-justice-administration-in-india/
#:~:text=Every%20person%20has%20a%20right%20to%20fair%20trial%2C,that%20right%20means
%20denial%20of%20fair%20trial.%20
https://lawwatch.in/medical-examination-of-an-accused-under-crpc/

Keikar Crpc

Mohd. Suleman v. King Emperor, (1925-26) 30 CWN 985

Khatri (2) v. State of Bihar, (1981) 1 SCC 627
Sharifbai v. Abdul Razak, AIR 1961 Bom 42
Poovan v. Sub-Inspector of Police, 1993 Cri LJ 2183 (Ker)
Mukesh Kumar v. State, 1990 Cri LJ 1923 (Del)
Suk Das v. UT ofArunachal Pradesh, (1986) 2 SCC 401: 1986 SCC (Cri)
166: Mohd. AjmalAmir Kasab v. State ofMaharashtra