TOPIC - 4 FROM TO FINAL JUDGMENT

Sl. No. Officer Name and Designation Page Nos. Sri M. Srikantha Chary, 1. 2 - 7 VII-Add. District Judge, Vijayawada. Smt S. Rajani, 2. Addl. District Judge,-cum- Chairman, 8 - 18 Permanent Lok Adalat, Krishna, Machilipatnam. Sri K. Prabhakara Rao, 3. 19 - 22 Prl. Senior Civil Judge,Gudivada. Smt S.V.P. Suryachandra Kala, 4. 23 - 54 VI-Addl. Senior Civil Judge,Vijayawada. Smt K. Aruna Kumari, 5. 55 - 62 Prl. Junior Civil Judge,Gudivada. Smt N. Anitha Reddy, 6. Judl. of I-Class Special Mobile , 63 - 68 Machilipatnam. Smt M. Anuradha, 7. 69 - 99 Additional Junior Civil Judge, Nandigama. Sri K. Srinivasa Rao, 8. 100 - 104 I-Addl Junior Civil Judge,Nuzvid.

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FAIR TRIAL FROM TRIAL TO FINAL JUDGMENT By Sri M. Srikantha Chary, VII-Add. District Judge, Vijayawada.

The accused have certain rights which need to be nurtured and preserved by the judge who has to maintain a fine balance between the rights of the victim and assurance of fair treatment and due process to the accused.

2. While crime control, of course, is a significant aim, it is also a fundamental rule of justice that the accused must be given adequate opportunity to defend the charges against her/him. The rule of law mandates the observance of due process to the accused, no matter how heinous the offence. Assurance of a fair trial is the first imperative for the dispensation of justice.

3. Fair trial principles have been agreed upon and recognized by the international community of nations. They are a part of international customary law and are embedded in the Universal Declaration of Human

Rights, the International Covenant on Civil and Political Rights and the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They have also been expressly guaranteed by the Constitution

– in the chapter of Fundamental Rights – and are inherent in many of the provisions of the Code of , 1973.

4. The first and foremost principle is that a judge must begin with a premise that the person being charged is innocent. This may be difficult in high profile cases where the accused is often subject to a ‘trial by media’. 3

Judges therefore have to keep themselves aloof from all the media posturing, conjecture and rumours that abound in widely publicized cases. They must personally detach themselves from the nature of charges to prevent personal dislike or aversion vitiating the . To ensure that justice is not only done but is also seen to be done, are conducted publicly unless there are compelling reasons for not doing so. It is the right of citizens to be able to enter a court room anywhere in and observe the proceedings therein. This right derives from the democratic privilege to observe the working of public institutions.

5. Procedural fairness also requires that the accused be given sufficient opportunity of being heard. This can only be done if the accused are formally informed about the nature of charges and given an adequate opportunity to defend themselves in a language they understand. Unfortunately, many court users particularly those belonging to economically and socially weaker section are effectively denied access to information about their case, because the paper work and proceedings are conducted in English. Even if they are conducted in the official language of the State, it may be alien to the accused. A fair hearing is only possible when the complainant and the accused are able to follow the proceedings and progress of the case. It is therefore incumbent on the judge to arrange for an interpreter in case where it is so warranted, and also to see that the defence lawyer is defending the accused properly and not misleading her/him any way.

6. Another area of crucial importance is that of and remand. 4

Mechanical committing of accused persons to police or judicial custody remains one of the biggest obstacles to the realization of the right to life and personal liberty. Even if a person is finally acquitted, she/he has to grapple with the social stigma attached with having had to spend time in custody.

Magisterial and trial must be fully convinced of the necessity to remand a person before denying bail. Even if bail is granted, the poor are especially vulnerable to de-facto denial of bail if the amount fixed is beyond their means; or if they are asked to produce financially sound persons to act as sureties for them; or if they are asked to furnish property as security for the grant of bail.

If at the time of production, it appears to the court that the accused cannot arrange for a lawyer then s/he must be provided with access to competent legal aid by the local legal services authority.

7. The right to obtain legal aid has been upheld by the Supreme Court, which has consistently maintained that those without adequate means to put up a defence must provided with a competent counsel at State expense otherwise the trial and subsequent would be bad in law.

8. Mere provision of an empanelled lawyer from the legal services authority is not enough. S/he must be able to provide an adequate defence to the accused and must be given sufficient time and facility for preparing the defence. In practice, when the defence counsel appears ineffective, the judge may assist during the trial. However, this alone does not guarantee fairness of procedure. An incompetent or ineffective lawyer should be replaced. Such situations can be averted if the district judiciary takes a proactive interest in 5 guaranteeing that well qualified lawyers with human rights leanings are consistently empanelled with the District Legal Services Authority; political appointees are discouraged; and performance is periodically reviewed to weed out those not inclined or capable enough to provide equality legal services to needy persons.

9. Denial of adequate legal representation besides resulting in injustice is also responsible for an individual’s rights against torture and harassment in custody not being enforced.

Admissibility of character and rights of the accused:

10. Article 20(2) of the explicitly states that no person should be prosecuted and convicted of the same offence twice. Punishing an accused by adducing evidence as to his previous misconduct or bad character is tantamount to convicting him of an offence committed in the past and thus, does not only cause unfair prejudice to him but also goes against the protections given by the Constitution of a sovereign State to its citizens.

11. Section 54 of the Indian Evidence Act explicitly bars the admissibility of bad character of the accused as evidence in criminal trials. The position of law is well-settled and has been re-affirmed in various decisions. In Ramlakakhan v. State of UP (AIR 1977 SC 1936) the Supreme Court observed that in the

Indian legal system, there is always a presumption of innocence of the accused, his bad character is not relevant, unless he gives evidence of good character, which can be rebutted or attacked by the prosecution by adducing evidence as to his bad character. The object of the section is to prevent unfair prejudice to 6 the accused by punishing him for his previous crime again and raking up his whole past life.

Self-incriminating evidence and rights of the accused:

12. In India, the right against self incrimination is one of the fundamental rights, enshrined in Article 20(3) of the Constitution. The first important decision related to the rights of the accused against self-incrimination was given in the case of State of Bombay v. Kathi Kalu Oghad (1961 AIR 1808).

The main question before the court in this case was the admissibility of specimen writing and thumb impressions from the accused. The appellants contended that obtaining of evidence in any way of these forms amounted to self-incrimination, testimonial compulsion and a breach of Article 20(3) of the

Constitution. While rejecting the contentions of the accused, the court departed from its earlier decision given in the case of M.P. Sharma v. Satish

Chandra (1954 AIR 300 (SC)) and observed that though the protective umbrella of Article 20(3) of the Constitution extended to oral and written testimonies, both inside and outside of courts, it did not extend to the production of a thing or evidence though other means.

13. This case was instrumental in safeguarding the rights of the accused in two ways. Firstly, it interpreted Article 20(3) to extend its protective umbrella to statements made both in courts and before police officers. Secondly, it extended the protection of Article 20(3) to both oral as well as written testimonies.

14. The most important decision related to the admissibility of evidence 7 obtained by employing scientific techniques and rights against self- incrimination was given in the case of Selvi v. State of Karnataka(AIR 2010

SC 1974(SC)). In this case, the principal question before the court was the admissibility of evidence obtained through scientific modes of investigation including polygraphs, lie detectors and narco tests. The court while holding such evidence to be inadmissible observed that the results of these tests were different from material evidence. Since, under the influence of these tests, the examinee is forced to impart some personal knowledge to the investigation authorities, he is forced to be a witness against himself. Thus the court held these tests and the evidence obtained through them as violative of Article 20(3) of the Constitution, thereby going a long way to safeguard the rights of the accused. The doctrine of excluding the fruits of a prisoners tree has been incorporated.

An analysis of the above case-laws highlights that Article 20 safeguards the rights of the accused during trial upto final judgment.

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FROM TRIAL TO FINAL JUDGMENT By Smt S. Rajani, M.A,M.L, Addl. District Judge,-cum- Chairman, Permanent Lok Adalat, Krishna, Machilipatnam.

A trial is a process by which a court decides on the innocence or guilt of an accused person. The procedure for trial is found in the Code of Criminal Procedure and the Indian Evidence Act. But the entire Trial Process is governed by the Principles laid down in the Constitution of India. The rules that ensure the protection & roles of all Stake holders i.e. the victim, prosecution, accused, defence and other witnesses, are laid down in the Code of Criminal Procedure and Evidence Act. As the Judge has complete control of a case as soon as it comes to court, it is his duty to ensure that fair trial norms, which have been assured by the constitution, are adhered to. Each person has a right to be dealt with fairly in a criminal trial. A trial is primarily aimed at ascertaining truth has to be fair to all the concerned which includes the accused, victims and society at large. Denial of fair trial is nothing but causing injustice not only to the accused and victim, but also to the society at large. Since India is part of the international community of nations it has has to accept international norms and legally bind documents such as The Universal Declaration of Human Rights which were adopted by the United Nations in 1948 and the International Covenant on Civil and Political Rights which is a United Nations Treaty came into force on 23 - 3- 1976 which is moniteered by the Human Rights Committee. India ratified the same in 1979 as such India is committed to uphold all the rights which the ICCPR guarantees. The Universal Declaration of Human lays down the common standard to be met by all nations. As per Article 11 (1) " every one charged with a penal offence has the right to be presumed innocent until proved guilty." The presumption of innocence is a cardinal principle of our Indian Legal system also and it is a basic right of the accused. Judges need to bear in mind 9 that suspicion, however strong it may be, can’t take the place of proof. So in our Indian Jurisprudence, by reason of the presumption of innocence, the burden of proof of the charge, is on the prosecution and the accused gets the benefit of doubt. Strong piece of circumstantial evidence cannot establish guilt unless each piece links to another and every link in the chain is proved. We all know the legal maxim that “The justice must not only be done, but be seen to be done”. That means the judge should conduct the proceedings in a manner which excludes any legitimate doubt as to his/her impartiality. He should not have any personal interest in the case and he should not be biased against any party. If there is any slightest doubt of personal interest, the judge must disclose the same to see that the matter is transferred to another court, which would infuse confidence in the mind of the litigant public. Some of the principles that are to be followed during trial to ensure fair trial I Right of accused to be presumed as innocent All criminal trials based on the principle that the accused is innocent till the guilt is proved. This presumption of innocence is a cardinal principle of our criminal jurisprudence and is a basic right available to the accused. As per Sec 101 of Indian Evidence Act, the prosecution must prove all the ingredients of the offence against the accused. The proof must be beyond reasonable doubt. The long line of judicial pronouncements, recognizing this valuable right of the accused, emphasized the following cardinal rules. 1. The burden of proof rests on the prosecution 2. The prosecution must establish the guilt of accused beyond all reasonable doubts. 3. The benefit of doubt must be in favour of the accused. 4. High probability of grave suspicion is not enough to convict the accused. 5. Strong pieces of circumstantial evidence can’t establish guilt of the accused unless each piece links to another link in the chain is proved. 6. The circumstances should be of a conclusive nature. 10

7. Extraneous factors such as public pressure, media reports, the judge’s opinion or people opinion should not influence the judicial . 8. The decision of the court should be based on the facts and evidence proved before it.

The accused has a right to maintain silence throught the proceedings which is a constituional right. He cannot be compelled to be a witness and to answer a particular circumstnace except where the law provides to do so.

II Right to have An important requirement of a fair trial is the trial without undue delay, in other words speedy trial. Though speedy trail is not specifically mentioned as a fundamental right in the Indian constitution, but is recognized under Article 21 of the constitution, which is now regard as a sine qua-non of Article 21. The provisions relating to investigation and trial proceedings in the Code of Criminal Procedure also re-affirm that the requirement of prompt trail at all stages of criminal proceedings including registration of FIR, investigation, inquiry, trial, appeal, revision and re trial. Particularly during trial when the examination of the witnesses commence, it must continue daily and till the witness present has testified, there should not be any adjournment, unless the court finds it necessary to adjourn the matter for the reasons recorded in writing. So far as the trial of sexual offence against woman, it has to be concluded with in 60 days. In the case of Hussainara khatoon vs Home Secretary, State of Bihar (1980), SCC 107, Honourable Supreme Court held that any accused who is denied this right of speedy trial, is entitled to approach this court for the purpose of enforcing such right and this court in of its constitutional obligation, has the power to give necessary directions to the State Governments and appropriate authorities, for securing this right to the accused. In the case of Common Cause a Registered Society through its Director vs Union of India (1996) 4 SCC 33, the Supreme Court directed 11 the release of the under-trials on bail, if the bail prosess continued to a certain period and the accused were in prison for a certain period of time. And also directed the or discharge of the accused, where trial had not began, even after lapse of the whole or two thirds of the period i.e., prescribed for an offence. Economic offence moral turpitude offence and other sexual offences against women and offences against State ete., are excluded from the application of these guidelines. Later, in the case of Rajiv Guptha vs State of Himachalapradesh 2000 (10) SCC 68, the Supreme Court clarified its order in the above said Common Cause Case and excluded from its application those cases where the pendency of criminal proceedings was wholly or partially attributable to dilatory tactics adopted by the accused or on account of any other action by the accused which resulted in prolonged trail. But in the case of P.Ramachandra Rao vs State of Karnataka AIR 2002 SCC 1856, it was held that “it is not advisable, feasible or judicially permissible to draw or prescribe any outer time limit for conclusion of all criminal proceedings. It further directed that criminal courts should exercise their powers provided under Sections 309 and 311 of the Code of Criminal Procedure to effectuate the right to speedy trail. Recently the Hon’ble Supreme Court issued certain directions regarding adjournments in criminal cases particularly after commencement of trial and to follow Section 309 CrPC without any deviation,not to adjourn the cases unnecessarily Thus the speedy trial is a fundamental right now. The Code of Criminal Procedure safeguards this right of speedy trial through Section 309 CrPC and necessary amendments are made in respect of trial of sexual offences against women and children where trial should be completed within a period of two months.So also Sec 35 of POCSO Act Prescribes 30 days time to record the evidence of the child from the date of taking cognizance and to complete trial one year time is provided. III ****************** 12

III Right to have a public hearing in open court It is well settled that in general, all cases brought before the courts, whether Civil, Criminal or others, must be heard in an open court. It guarantees that the public would be known as to how the justice is administered and decisions are reached by the judicial system. Public can review the legality of the proceedings. It affirms the independence, impartiality and fairness of the courts thereby it increases the general trust of the population in the judicial system. However, the right of the trial in open court has certain exceptions. A judge at his discretion, may order that general public or a particular individual can’t have access to the court at any stage of an enquiry or trial. Trial of certain offences such as Section 376, 376A, 376B or 376D of and sexual offences against children and women and offences under POCSO Act shall be conducted in Camera. Proceedings Under Section 53 of Indian Penal Code which provides that the whole or part of any proceedings may be heard in Camera, if the court thinks fit. Similarly proceedings Under Section 14 of the Official Secrets Act may be conducted in camera. But the sentencing process shall in any case take place in public. Likewise proceedings under Hindu Marriage Act & Family Court Act are also shall be conducted in camera if either party so desires; or if the Court thinks fit to do so. Sec 327 Cr P C Court to be open: [(1)] The place in which any criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court to which the public generally may have access, so far as the same can conveniently contain them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of nay inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court. [(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C [section 376D or section 376E of the Indian Penal Code (45 of 1860)] shall be conducted in camera: Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court: [Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.] (3)Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court:] [Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.] The exception for public trial require the Judge to apply his mind as to 13 whether there is a fit care for excluding the public from the Trial. The Supreme Court in Sakshi Vs Union of India issued the following directions: 1) The provisions of Sec.327(2) of Cr.P.C. shall, in addition to the offences mentioned in sub-section, also apply in inquiry or trial of offences under section 354 and 377 of the IPC. 2) In holding trial of cases of child sex abuse or rape: (i) A screen or some such arrangments may be made when the vicitm or witnesses do not see the body or faceof the accused. (ii) The question put in cross examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embrassing. (iii) The victim of the child abuse or rape while giving testimony in court should be allowed sufficient breaks as and when required. IV Right to have lawyer of his choice:- As per Section 303 Cr.P.C. every accused should have an opportunity to be defended by a pleader of his choice at the time of the proceedings and should have sufficient opportunity with his legal adviser for the purpose of his defence. In relation to the prosecution, the defence must have an equal opportunity to prepare and present a case, and that the prosecution and defence must have an equal position throughout the proceedings. Sec.303 Cr.P.C reads as follows; Right of person against whom proceedings are instituted to be defended:-- Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice. V) Right to have free legal aid:- As per Sec 304 CrPC, when the accused is not represented by an advocate in trial before the court and when the court finds that the accused does not have sufficient means to engage an advocate, the court shall assign a pleader to defend the accused at the State’s expenses. Sec 304 CrPC - Legal aid to accused at State expenses in certain cases.- (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. 14

Apart from Sec.304 Cr.P.C., Section 12 of Legal Services Authority Act also provided free Legal Services to certain people including the accused who are in prison Legal aid is currently viewed as a welfare measure rather than as a non-derogable and enforceable fundamental right on the following aspects:- (1) No accused person who is unable to afford a lawyer goes unrepresented in criminal proceedings. (2) Certain minimum standard of a performance of the assigned lawyers must be insisted (3) Legal aid lawyers fees must to be paid by District Legal Services Authority. (4) In a case where on a conviction at the time of imposing , the Magistrate or Sessions Judge is under obligation to inform the accused about the availability of free legal services at the State expenses to prefer an appeal. If free legal services are not provided to an accused who has no means to engage an advocate, the trial itself would run the risk of being vitiated as contravening Article-21 of the Constitution. As per the settled legal position, when legal aid is provided, the accused can not insist for engagement of advocate of his choice. Only when he engages his counsel on his own, he will have choice of his counsel VI Right to be provided with copies of all the documents relied upon by the prosecution:- Secs.207 and 208 of the Cr.P.C. mandate that in any criminal proceedings instituted upon a police report, the Magistrate must freely furnish the following copies to the accused. 1. Copy of police report. 2. Copy of FIR 3. All the statement of prosecution witnesses. 4. Any recorded confession 5. Any other documents The object behind this is, to give adequate notice to the accused about the material to be used against them so that he is not prejudiced/surprised 15 during trial. It ensured a just and fair trail and to ensure the accused an assessment whether there are real grounds for going forwards and to assist the accused to argue that there is no case to answer. VII Right of accused to be informed of the charges:- Before framing charges against the accused, court shall hear the accused about the accusation/charges to be made against him in writing. A judge may add or alter the charges. When a charge is added, the court shall give opportunity to this accused to re-examine the witnesses. VIII Right of accused to be present at the time of recording evidence:-

As per Section 273 of Cr.P.C. evidence has to be taken in the presence of accused. Section 273 reads as follows:

Sec 273.Evidence to be taken in the presence of accused:-Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader: [Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.] Explanation:-In this section, “accused” “includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code. When the introduction of Video Linking as per the ratio laid down in the decision of “State of Maharashtra Vs. Pruful B Desai AIR 2003 SC 2053, the Supreme Court held that the evidence recorded through Video conference in the presence of the accused or his pleader fully needs the requirements of Section 273 Cr.P.C. When the accused is declared as an absconder the court can proceed with examination of witnesses in the absence of the accused as per the procedure provided Under Sec.299 of Cr.P.C. So also when the defence counsel representing the accused is present in the court and if there is no risk of prejudice to the accused the court can record the evidence of accused, the evidence of witnesses of prosecution in the absence of accused when his personal appearance is dispensed with. The accused must be given free assistance of an interpreter when he does not know the language in which the proceedings are going on. So also the same is applicable in case of victim or other witnesses of prosecution as well as defence. IX Guarantee against :-

The principle of double jeopardy is safeguarded Under Order-20 (2) of the 16

Constitution which prohibits prosecuting or punishing a person for the same offence more than once. Section 300 Code of Criminal Procedure also states that a person acquitted or convicted by a competent court may not be tried again for this same offence. Sec.300 of Cr.P.C. reads as follows: Sec 300 Cr P C, Person once convicted or acquitted not to be tried for same offence:- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offenceconstituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. Explanation:-The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section. This rule of autrefois acquit and autrefois convict is applicable to all criminal trials. To ensure fair trial all the criminal courts have to follow the above rule subjected to the above mentioned exceptions.

X Proecdure at the time of judgment to ensure fair trial

Sec 353 of CrPC mandates that the Judgement must be delivered in open court and operative portion and substance of the Judgement must be readout in the open court in the presence of the accused. Sec 353 and 354 of CrPC together deal with the substantive and procedural requirements that a 17 judge must follow in relation to, as to how a judgment is delivered, its language and contents. It must be a reasoned judgement. After pronouncement of judgment in the event of conviction the court shoud hear the accused about quantum of punishment and other mitigating circumstances which would be a part of fair trial. Sec 363 of CrPC says about the right of acused to have a copy of judgement in case of conviction, free of cost. The accused cannot effectively exercise the right to appeal without a copy of his trial judgement in hand. Apart from that he must be informed of his right to prefer an appeal through free legal aid. If copy of the Judgement is not provided to the accused intime to prefer an appeal, it would amount to violation of Article 21 of the constitution of India. At the time of furnishing copy of judgment, the court should inform the accused about his right of appeal through free legal aid to be provided by the District Legal Services Authority.

Entitlement of compensation by the victim as well as the accused

When the offence is resulted in loss or damage, or where it appears to the court that the victim is entitled for compensation, the court can also consider making a compensation order or refer the matter to legal Services Authority for compensation under Victim Compensation Scheme or any other law for the time being in force. Now Section 357A was incorporated in CrPC for providing compensation to the victim for rehabilitation, where the compensation awarded by the court is not adequate,or where the case ends in acquittal or discharge and the victim has to be rehabilitated or where the offender is not traced or identified, but the victim is identified and no trial takes place. Court can also grant interm compensation to the victim if circumstances so warrant. So also when the accused is groundlessly arrested or false accusation is made without reasonable cause (Sec 358 & 250 CrPC respectively), the accused is also entitled for compensation. Awarding compensation to the victim as well as to the accused is part of fair trial process

Conclusion: The scheme of the Evidence Act and the Code of Criminal Procedure are designed to creat a balance between all the parties including prosecution, victim, accused and witnesses. Before concluding the article, it is necessary to reiterate the legal principle i.e., "Justice must not only be done, but it must be seen to be done". No justifiable doubts must arise on the impartiality of the judge. He must be unbaised which must manifest on the face of the record itself. If the above rights which are available to the accused as well as to the 18 prosecution including the victim which are discussed supra, are followed scrupulously, it would infuse confidence in the mind of the litigant public about the fair trial.

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FROM TRIAL TO JUDGMENT

By Sri K.Prabhakara Rao, Prl. Senior Civil Judge, Gudivada.

INTRODUCTION:- India has a highly developed criminal jurisprudence and prosecution system and it is well supported by judicial precedents for judicial trials and our penal laws are primarily governed by the Code of Criminal Procedure,1973, The Indian Penal Code,1860 and Indian Evidence Act 1872. The basic purpose of the criminal justice system in India among other things, is to ensure fair trial without compromising the rights of the accused. The word 'trial' is not defined anywhere in the Criminal Procedure Code. In common parlance, a trial begins after the framing of charge and ends in either conviction or acquittal. According to Stroud's Judicial Dictionary, Trial means “the conclusion by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal”.

Trial primarily aimed at ascertaining truth which has to be fair to all concerned which includes the accused, the victims and society at large. Denial of a fair trial is as much injustice to the accused as it is to the victim and society. Right to get a fair trial is a basic fundamental/human right under our Constitution and also as per international treaties and conventions . The right to defend himself as a part of his humanright also fundamental right as enshrined under Article 21 of the Constitution of India and even recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure,1973.

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"Fair trial" includes fair and proper opportunities allowed by law to prove innocence. This issue now stands concluded by decision of Ho’nble Apex Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258].

FROM TRIAL TO FINAL JUDGMENT To say in short, a trial of a criminal case is a process by which a Court decides on the innocence or guilt of an accused. The total trial process is governed and underpinned by the principles laid down in the Constitution of India. The duty of a judicial officer is to ensure that witnesses are examined with great care and he has the duty to referee motions, weigh the facts and circumstances, draw logical conclusions and arrive at a reasoned decision about guilt or innocence. DIFFERENT TYPES OF TRAILS 1. Trial before a Court of Session: Chapter XVIII of Cr.P.C., Sections 225 to 227. 2. Trial of Warrant Cases: Sections 238 to 243 provides the procedure for trial of cases instituted on police report. Sections 244 to 247 deals with procedure to be followed for trial of cases instituted otherwise than on police report. Sections 248 to 250 of the code are applicable to both the categories of cases. 3. Trial of Summons cases by : 4. Summary Trial: Sections 260 to 265 and 363(3) of the Code deals with Summary trial. SETTLED PRINCIPLES IN CRIMINAL JUSTICE SYSTEM 1. An accused to be tried before a competent , independent and impartial tribunal/court with presumption that accused is innocent and every accused should be provided the opportunity to be defended by a pleader and free legal aid to be provided in need (Articles 21 and 39A ) especially Under Trial Prisoner. 2. The burden of proof tests on the prosecution and prosecution must establish guilt beyond reasonable doubt. 21

3. High probability is not enough to convict – where there are several possible accounts, the account supporting the accused should be upheld. 4. Accused has a right to remain silent and Judicial Officer must ensure that the prosecution and the defence lawyer are being diligent, honest and learned in their efforts to arrive at the truth. 5. Under section 479 of Cr.P.C, a Judicial Officer may not try or commit to trial any case in which he has a personal interest or financial interest. 6. A significant legal maxim is that ‘’ Justice must not only be done, but be seen to be done.’’ 7. If a criminal court is to be an effective instrument in dispensing justice, the presiding officer must not cease to be a spectator and a mere recording machine and as per section 327 of the Code, trial judges to invariably hold the trial of rape cases in camera, rather than in open court. 8. As seen from section 309 of Cr.P.C, it is known that the Code safeguards the right to a speedy trial and accused should be furnished the copies of Police report and other documents in a criminal case. See. Section 207 of Cr.P.C. 9. Under section 273 of Cr.P.C, evidence to be taken in the presence of the accused. However, in a recent times, it is interpreted that while recording the evidence through video-linkage, physical presence of accused is not necessary. 10. Under the provision of section 243 and 247 of the Code, accused has right to produce witnesses in his defence, and these provisions are applicable equally to cases instituted on a police report or private complaint. Sections 243 and 246 of the Code afford the accused the right to cross-examine the prosecution witnesses. 11. The object of section 311 of the Code is to discover the truth and deliver a just decision. 12. Under section 279 of the Code, whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him. 13. The principle of double jeopardy is a safeguard provided under Article 20 (2) of the Constitution which prohibits prosecution or punishing a person for 22 the same offence more than once. Section 300 of the Code puts forward three exceptions to the double jeopardy prohibition. 14. (a) Section 353 of the Code mandates that judgment must be delivered in an open court; be read out in court; or the operative part of the judgment read out and the substance of the judgment explained and judgments must be reasoned basing on legal evidence, substantive by law and logic without having to resort to speculations or inferences (section 354(1)). (b) When accused is sentenced to imprisonment, free of costs, copy of judgment shall be furnished to him. The Hon'ble Apex Court observed that crime and punishment are two sides of same coin. Punishment must fit to the crime. The notion of “Just Deserts” or a sentence proportionate to the offender's culpability was the principle which became applicable to criminal jurisprudence and Imposition of sentence must commensurate with gravity of offence.” 15. Sections 357, 357A of the Code and Section 5 of of Offenders Act, 1958 empowers the court to provide compensation to the victims of crime. The courts should exercise these powers liberally and award adequate compensation to the victim, particularly when the accused is released on admonition, probation or when the parties enter into a compromise. CONCLUSION:- Indian law is in consonance with the prevailing international legal standards on the right to be tried by a competent and independent and impartial court. All persons must be equal before the court and Every one shall be entitled to a fair trial by an impartial procedure established by law without undue delay.

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FROM TRIAL TO FINAL JUDGMENT

By Smt S.V.P. Suryachandra Kala, VI-Addl. Senior Civil Judge, Vijayawada.

The purpose of investigation as well as trial is to find out the truth and to punish the guilty. So for conducting trial the court has to keep in mind that the trial should be fair. Mere accusation of accused cannot be held as guilty, unless the trial has been conducted in such a manner which enables the court to find out the truth by following the principles of natural justice, as well as the procedure contemplated under criminal procedure code, it cannot be considered as a fair trial. So the will be set into motion by giving a report u/s.154 of Cr.P.C. and any person has knowledge regarding alleged commission of cognizable offence he can give an information either orally or in writing to the Officer-Incharge of Police Station which is called as First

Information Report which is the very basis for investigation basing on which the Criminal Law will be set into motion and the Police Officer on due investigation of cognizable offence when he has reason to believe the accused said to have committed an offence, he will file charge sheet u/s.173 of Cr.P.C.

So it is fundamental cannon of Criminal Law and procedure is that the accused should know the nature of the accusation made against him which may enable him to defend. So framing of charge as contemplated u/ss.211 to 224 of

Cr.P.C. is the basic procedure for commencement of a trial, without framing charge it can not be considered the trial procedure will be commenced. So it is 24 the bounden duty of the court to frame a charge. The defective framing of charge will cause and vitiate the trial. So the great care has to be taken while framing the charges. So a charge can be considered a specific accusation made against a person it can be the subject matter of a trial. The object of the framing of charge is to ensure that the accused has sufficient notice of exect nature of accusation so as to defend himself and to enable the court to keep in view of the real point to be determined, to prove the guilt of the accused by the prosecution beyond all reasonable doubt. So the evidence can be confined to the relevant matter. So framing of charge is the pre-requisite before commencement of trial. As per Sec.211 of Cr.P.C. every charge shall contain the offence with which the accused is charged by its specific name, to give a notice to the accused, the matter with which he is charged, it should specify the law and section of law. The charge shall be written in the language of the court. Section 272 of Cr.P.C. speaks that the charge shall contain the details regarding the time and place of alleged offence as well as the person against whom, or the thing in respect of which it was reasonably said to have committed.

The charge should also contain the manner of committing an offence by virtue of Sec.213 Cr.P.C. and the words used in the charge should be used in the sense attached to them respectively by law under which the offence is punishable. While framing charges errors should be avoided as it may cause in failure of the justice. By virtue of Sec.216 Cr.P.C. the court may alter or add any charge before judgment is pronounced, however, such alteration or 25 addition shall be read and explained to the accused, if such alteration cause prejudice to the accused, the court may either direct a new trial or adjourn the trial for such period as may be necessary. So when a charge has been altered u/s.216 Cr.P.C. or added after commencement of the trial, the Prosecutor and the accused shall be allowed u/s.217 Cr.P.C. to recall or resummon and examine any witness with reference to such alteration or addition. So by virtue of Sec.218 Cr.P.C. for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. However, by virtue of the proviso if an accused person by an application in writing so desires if the court is of the opinion that such person is not likely to be prejudiced, then the Magistrate may try together or of any number of charges framed against such person. By virtue of Sec.219 Cr.P.C. three offences of same kind within one year may be charged together. So offences when they are punishable with the same amount of punishment they can be considered of the same kind. However, in order to invoke Sec.219

Cr.P.C. it has to be considered that if the accused said to have committed more offences than one of the same kind within the span of 12 months from the first to last of such offence, then only said provision can be invoked. By virtue of

Sec.220 Cr.P.C. if any one series of acts so connected together as to form the same transaction more offences than one are committed by the same person may be charged with and tried at one trial for every such offence. If it is doubtful what offence has been committed, the accused may be charged with having committed all or any of such offences and any number of such charges 26 may be tried at once or he may be charged with the alternative by virtue of

Sec.221 Cr.P.C. So by virtue of Sec.222 Cr.P.C. when a person was charged with an offence and facts proved into minor offence the accused person may be convicted of the minor offence though he was not charged with it. U/s.223

Cr.P.C. the persons accused of the same offence committed in the course of same transaction as well as who abetted or attempted to commit such offences when the persons accused of different offences committed in the course of same transaction etc. may be charged jointly.

Fair Trial

Ensuring fair trial to the accused repose confidence in the criminal trial procedure. In the battle against crime and delinquency, state and its officers cannot on any account forsake the decency of state behaviour and have recourse to extra-legal methods for the sake of detention of crimes and even criminals. State should not insist on good behaviour from others when their own behaviour is blameworthy, unjust and illegal. Thus, in a democratic society even the rights of the accused are sacrosanct, though accused of an offence, he does not become a non-person. In the leading case of Kishore Singh

Ravinder Dev v. State of Rajasthan, it was said that the laws of India i.e.

Constitutional, Evidentiary and procedural have made elaborate provisions for safeguarding the rights of accused with the view to protect his (accused) dignity as a human being and giving him benefits of a just, fair and impartial trail.

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Articles 10 of the UDHR declares that everyone entitle in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his legal rights and obligation and of any criminal charges against him. Articles 14(1) of the international covenants on civil and political rights provide that all people shall be equal before the court and tribunals.

There are various facets to the . The Hon’ble Supreme

Court in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat has held that, “the principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices.... fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Most of these safeguards to ensure a fair trial are contained under the Code of Criminal Procedure, 1973 which contains and defines the procedure which has to be followed in criminal cases.

The concept of a fair trial cannot be limited to a statute and the Courts have gradually expanded it to include various aspects of criminal procedure.

For instance the Supreme Court has also in the past transferred cases from one state to another when it is reasonably anticipated that the accused will not 28 be afforded a fair trial or the court process may be interfered with by extraneous considerations.

Right To Free Legal Aid

The right to be defended by a legal practitioner, flowing from Article 22 (1) of the Constitution has further been fortified by the introduction of the Directive

Principles of State Policy embodied in Article 39 A of the Constitution by the

42nd Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the

Constitution and the Code of Criminal Procedure but also by International

Covenants and Human Rights Declarations.

Article 14 (3) (d) of the International Covenant on Civil and Political

Rights entitles the person facing the criminal charge either to defend himself in person or through the assistance of a counsel of his choice and if he does not have legal assistance, to be informed of his right and provide him the legal assistance without payment in case he does not have sufficient means to pay for it.

Every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. 29

In Maneka Gandhi v. Union of India, it has been held by a Constitution

Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. “We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the

Constitution.

Section 304 in The Code Of Criminal Procedure, 1973

Legal aid to accused at State expense in certain cases-

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

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

(a) the mode of selecting pleaders for defence under sub- section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub- section (1). 30

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub- sections (1) and

(2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.

The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of Cr.P.C.

The Supreme Court in Sukh Das v. State of Arunachal Pradesh has held that a conviction of the accused in a trial in which he was not provided legal aid would be set aside as being violative of Article 21 of the Constitution. But where the accused pleads guilty without the assistance of a counsel under the legal aid scheme and was convicted by the Magistrate it was held that the trial and conviction was not vitiated because the Magistrate was fully satisfied that the plea was voluntary, true and genuine. 31

In Ram Awadh v. State of U.P, the Allahabad High Court held:

“The requirement of providing counsel to an accused at the State expense is not an empty formality which may be not by merely appointing a counsel whatever his calibre may be. When the law enjoins appointing a counsel to defend an accused, it means an effective counsel, a counsel in real sense who can safeguard the interest of the accused in best possible manner which is permissible under law. An accused facing charge of murder may be sentenced to death or imprisonment for life and consequently his case should be handled by a competent person and not by a novice or one who has no professional expertise. A duty is cast upon the Judges before whom such indigent accused are facing trial for serious offence and who are not able to engage a counsel, to appoint competent persons for their defence. It is needless to emphasis that a

Judge is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct conclusion. A defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence. The absence of proper cross- examination may at times result in miscarriage of justice and the Court has to guard against such an eventuality. ”

Where in a criminal appeal the council appointed by the Court for the accused does not turn up at the time of hearing and the appeal is disposed of without hearing him, the case rightly deserved to be remanded for fresh hearing of the appeal. 32

Where in a sessions trial the accused made a request for being provided the services of a particular lawyer named by him at the State expenses as envisaged under Section 304 CrPC but the State provided another lawyer to defend him, the High Court of Madhya Pradesh held that it is not denied that an accused has the right to be defended by the lawyer of choice but when it comes to the appointment of lawyer for the defence of accused at State expense, it would be the choice of the Court and not of the accused to provide a lawyer for defending him. The Court is under no obligation to provide to the accused, the lawyer of his choice if he wants to be defended at the expenses of the State Government.

Case: Ramchandra Nivrutti Mulak Vs. The State of Maharashtra

This appeal was based on the fact that the appellant was not represented before the Sessions Court in his original trial under Section 302 of the Indian

Penal Code (Punishment for murder) and other offences. A lawyer had been appointed to represent the appellant but had made an application to withdraw from the case. Despite rejection of this application by the Sessions Judge, the lawyer failed to appear for the trial. The trial proceeded without the appellant being assisted by an advocate or the court informing the appellant that he could avail of the services of a lawyer under the free legal aid scheme. As per their judgement dated 26 June 2008, the learned judges equated the above circumstances to instances where the accused has no representation.

The key issue identified during the appeal was: “If the lawyer appearing for the accused files application for withdrawal, which is rejected by the court, 33 and the lawyer fails to turn up for trial, is a duty cast on the trial court to ask the accused to make alternative arrangement for appearance by lawyer or appoint a lawyer for the accused under legal aid scheme?"

Judgment

Supreme court in Suk Das and another Vs. Union Territory of Arunachal

Pradesh, and Khatri and Others Vs. State of Bihar and Others, held that the conviction of an appellant not represented by a lawyer was clearly in violation of the fundamental rights of the appellant under Article 21 of the Constitution.

The trial was accordingly held to be invalid and the conviction and sentence imposed against the appellant set aside.

Once a lawyer applies to withdraw and chooses not to appear, there is burden cast on the courts to inform the accused either to engage another lawyer or to inform him that he is entitled to free legal aid if he so desires… The trial, therefore in the instant case ought not to have proceeded with in the absence of the accused being informed of his right to be represented by lawyer.

The Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the service of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

A right to a fair trial includes the right for legal assistance. This is part of the right to life enshrined under Article 21 of the Constitution of India. A new trial was ordered and the learned judges reiterated the burden on the courts 34 and the State to provide free legal aid. In doing so, they felt it would be appropriate for the State Government to reconsider rules for grant of legal aid and fix proper remuneration for advocates under the legal aid scheme.

Instructions were given to forward a copy of the judgement dated 26 June 2008 to the Chief Secretary, State of Maharashtra for necessary compliance and to the Registrar General to place the matter before the learned Chief Justice for appropriate directions.

Section 304 of the Code of Criminal Procedure, is a provision providing for legal aid to the accused at State cost in certain cases. The High Court of

Judicature at Bombay made certain rules under Section 304 regarding legal aid for accused without representation before Sessions Courts. These rules came into effect from October 1982 and cast a duty on the Presiding Officer to explain to every accused person without representation the provisions of the rules of Legal Aid as soon as the accused is produced before the Presiding

Officer for the first time. If the accused confirms their income does not exceed

Rs.5,000/- per annum, they shall be asked if they desire to submit an application for Legal Aid.

"Equality, Justice and Liberty" is the trinity of fair trial recognized in the administration of justice of India where the affluent and the "lowly and lost" have the equality of access to justice in the administration of justice in general and the criminal justice system in particular. This fundamental principle of fair trial is the backdrop of the International Covenants, and enjoined in the

Constitution of India as well as the criminal laws devising the criminal justice 35 system of India. The beauty of the principles enshrined lies in the fact that much matter is decocted into small words. The thrust is imperative to means

(criminal procedures) which must be trustworthy in order to have just ends.

The Constitution of India lays down a social policy concerning equal justice and free legal aid "by suitable legislation or schemes or in any other way, to ensure that opportunities securing justice are not denied to any citizen by reason of economic or other disabilities." This social policy aims at:

"Indigence should never be a ground for denying fair trial or equal justice particular attention should be paid to appoint competent advocates, equal to handling complex cases, not patronising gestures to raw entrants at the Bar.

Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the pleader for the defence of the accused at the expense of the state provided he is unrepresented and the court is satisfied that he has no sufficient means to engage a pleader. The selection of such pleader, the facilities to be given to him by the court and his remuneration are to be governed by the rules that may be framed by the High Court in this regard with previous approval of the State

Government. This facility also extends to any class of criminal trials before other courts as indicated earlier to try criminal cases in the State as it applies in relation to trials before Courts of Sessions.

So there are various modes of trials. It can be classified as (i) the trial of warrant cases instituted upon a police report, (ii)as well as trial of warrant cases instituted otherwise than upon a police report. So the trial procedure is contemplated before the Metropolitan Magistrate or Judicial Magistrate of I 36

Class and also two more classes of trials are there such as trial of summons cases and summary trials. A warrant case is defined u/s.2(X) of Code of

Criminal Procedure which is defined as that “a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.” Sec.2(W) defines summons case which means “a case relating to an offence and not being a warrant case.” So basing upon the sentence prescribed by the IPC or any other law, the Magistrate has to decide whether a case has to be tried as a warrant case or summons case. However, the term summary trial was not defined under the code.

Chapter XIX, Section 238 to 243 deal with the procedure, in trial of warrant cases instituted upon a police report. Under Sec.238 Cr.P.C.“when in any warrant case instituted upon a Police Report, when the accused appears or is brought before a Magistrate at the commencement of trial, the Magistrate shall satisfy that the accused has complied with provisions of Sec.207 Cr.P.C. which speaks of supplying of copies of police report and other documents to the accused. So the Magistrate shall satisfy regarding furnishing copies to the accused such as the police report, the copy of FIR, the Statements recorded u/s.161(3) Cr.P.C. the Confessional Statements if any u/s.164 Cr.P.C. and any other documents or extract forwarded to the Magistrate u/s.173(5) of Cr.P.C.

So after furnishing the copies, upon considering the police report as well as the documents sent u/s.173 Cr.P.C. and after making such examination of the accused if the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge 37 against the accused to be groundless, he shall discharge the accused by recording the reasons u/s.239 Cr.P.C. By virtue of Sec.240 Cr.P.C. if the

Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter if the Magistrate is competent to try, he shall frame a charge in writing against the accused, however said charge shall be read over and explained to the accused. If the accused did not pled or claimed to be tried, or he refused to plead guilty, the

Magistrate shall fix a date for examination of witnesses u/s.242 Cr.P.C. by issuing summons to any of the witnesses to procuring their attendance to produce documents or to give evidence and on the date so fixed, the Magistrate shall proceed to take of such evidence as may be produced in support of the prosecution case. If the accused pleads guilty u/s.241 Cr.P.C. the Magistrate by recording the plea, in his discretion convict him thereon. So the trial commences, when the accused had refused to plead guilty.

By virtue of Sec.243 Cr.P.C. the accused can be called upon to enter upon his defence and produce his evidence and if he puts any written statement the same shall be filed with the record. At the request of the accused, the Magistrate shall issue any process for compelling the attendance of any witness for production of any document or thing at the desire of the accused in writing. So such was the procedure contemplated for trial of warrant cases by a Magistrate.

There is a procedure contemplated u/s.244 CR.P.C. with respect to the cases “instituted otherwise than on police report.” When an accused appears 38 or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and on application of prosecution, the Magistrate may issue summons to a witness directing him to attend or to produce any document or thing. If upon taking of evidence u/s.244 Cr.P.C. if the Magistrate considers that no case against accused has been made out, if unrebutted would warrant his conviction, by recording the reasons the accused shall be discharged u/s.245 Cr.P.C. However, even at previous stage also the Magistrate can discharge by recording the reasons if he considers the charge to be groundless.

By virtue of Sec.246 Cr.P.C. it lays down the procedure where the accused is not discharged. If the Magistrate is of the opinion that there is a ground for presuming, the accused has committed an offence of which such Magistrate is competent to try, in his opinion the accused could be adequately punished by him, he shall frame in writing a charge against the accused and charge should be readover and explained to the accused by asking him whether he pleads guilty or he has any defence to make. On pleading guilty by the accused the

Magistrate by recording the plea of guilty may in his discretion convict him thereon u/s.246(3) Cr.P.C. If the accused refuses to plead or claims, to be tried, he shall be required to state at the commencement of next hearing of the case, or if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross examine any of the witness of the prosecution, the witness named by the accused shall be recalled and after cross examination and reexamination if any, they shall be discharged. So the 39 evidence has to be taken for the defence u/s.247 Cr.P.C.by calling upon the accused to enter upon his defence and produce his evidence. By virtue of

Sec.248 Cr.P.C. in any case under this Chapter (XIX) in which a charge has been framed, the Magistrate finds the accused is not guilty by recording reasons shall pass an Order of acquittal u/s.248(1) Cr.P.C. If the Magistrate finds the accused guilty, he shall after hearing the accused on the question of sentence pass sentence upon him according to law u/s.248(2) Cr.P.C. it does not proceed in accordance with provision of section 325 or sec.360 Cr.P.C. So at the conclusion of the trial if the accused is found guilty by recording reasons he shall be convicted after hearing on the quantum of sentence if the provisions of Sec.325 or Sec.360 are not applicable, to release on Probation of

Offenders Act.

Sec.249 Cr.P.C. is an important provision. It empowers a Magistrate to discharge the accused before framing a charge if the complainant is absent when the proceedings have been instituted upon complaint. However in such cases, the offence involved may be an offence which can be lawfully compounded or it should not be a cognizable offence, If the offence involved is not a compoundable offence or if the offence is a cognizable offence, the

Magistrate is not competent to invoke Sec.249 Cr.P.C. and discharge the accused even before charge is framed. After the charge is framed the

Magistrate is not competent to invoke the provisions of Sec.249 Cr.P.C. After the charge is framed even the complainant who lodged the complaint before the court, becomes a mere witness for the prosecution. The Magistrate shall 40 procure attendance of the witnesses and record further evidence from them after the charge is framed.

Sec.250 Cr.P.C. relates to compensation for accusation, without reasonable cause and it applies to warrant cases instituted upon police reports as well as to cases instituted otherwise than on police reports. At the time of discharge or acquitting the accused if the Magistrate is of the opinion that there were no reasonable grounds for making the accusation against the accused he may call upon the complainant or the person who gave the information to the police to show cause, why he should not pay compensation to the accused. After serving the show cause notice and after hearing the complainant or informant if the Magistrate is satisfied that there was no reasonable; ground for making the accusation for the reasons to be recorded by him he can order payment of compensation by the complainant or informant to the accused. It is necessary to note that the compensation amount directed to be paid by the complainant or informant shall not exceed the amount of fine which the Magistrate is empowered to impose. Public Officers are also not exempted from liability to pay the compensation on frivolous and vexatious complaints. A Master who lodges a complaint on behalf of his servant or a servant who acts as mere mouthpiece of a Master can not be ordered to pay compensation. A guardian/a next friend of the minor complainant can not be ordered to pay compensation to the accused. The limit of the compensation amount that can be awarded is in respect of each accused and not aggregated amount of compensation directed to be paid to more than one accused in a 41 case. S.250(6) Cr.P.C. gives a right of appeal to the complainant or informant who was ordered to pay compensation amount. The compensation amount need not be paid before appeal is disposed off. It is also necessary to point out that S.250 Cr.P.C. applies not only to warrant cases but also summons cases as laid down clearly in S.250(8) Cr.P.C. In default of making payment of compensation, the complainant or the person ordered to pay such compensation shall undergo simple imprisonment for a period of not exceeding

30 days.

Chapter XX deals with summons cases triable by the Magistrate. It makes no difference between cases instituted upon a police report and cases instituted otherwise than upon a police report. After taking cognizance of the offence and after appearance of the accused before the court and after furnishing copies of documents as required u/s.207 Cr.P.C. the Magistrate as required u/s.251 Cr.P.C. shall bring particulars of the offence of which the accused is charged to the notice of the accused. There upon he shall be asked whether he pleads guilty or not. It is not necessary to frame a formal charge in writing in summons case. If the charge is not framed in writing while examining the accused u/s.251 Cr.P.C. it must be brought to the notice of the accused the section of law under which the accused committed the offence.

Otherwise the accused may be under an impression that he may be tried for a different offence. To avoid such an ambiguity it is always safe to frame charge in writing even in summons case. If such charge is not framed in writing specific provision shall be brought to the notice of the accused while he is 42 examined u/s.251 Cr.P.C. Then the other provisions regarding convicting the accused when he does not plead guilty, is the same as the procedure prescribed for trial of warrant cases instituted upon a police report.

In trial of summons cases new provision is inserted in Cr.P.C. 1973. The said provision is S.253 Cr.P.C. i.e. conviction on plea of guilty in the absence of accused in petty cases. S.206 Cr.P.C. introduced a new provision for the first time. In petty cases if the Magistrate wants to dispose off the case summarily, he can issue special summons to the accused fixing the amount of fine which the Magistrate wants to impose and without appearing before the court if the accused desires to plead guilty he may plead guilty in writing and transmit that information by post or by messenger to the Magistrate along with the fine amount specified in the summons. There is a limit regarding the fine to be imposed in the summons issued u/s.206 Cr.P.C. The fine amount shall not exceed one thousand rupees by virtue of Act 45/1978 w.e.f. 18.12.1978.

The provision in S.206 is also extended to the trial of summons cases by the

Magistrates. The said provision is S.253 Cr.P.C.

Chapter-XXI deals with summary trials. Any Chief Judicial Magistrate, any Metropolitan Magistrate and any Magistrate of the Ist Class specially empowered by the Hon’ble High Court may try in a summary way any of the offences mentioned in S.260 Cr.P.C. The procedure to be followed in a summary trial is not much different from the procedure to be followed in a summons case. However, it is not necessary for Magistrate to record elaborate evidence. He can give brief reasons for his conclusion when the accused pleads 43 not guilty to the offences of which he was accused Trivial offences alone are to be tried in summary manner. S.262(2) Cr.P.C. imposes a limit regarding the sentence to be imposed in a summary trial. No sentence of imprisonment for a term exceeding three months shall be passed in a case of any conviction under a summary trial. S.263 Cr.P.C. prescribes the particulars to be noted by the

Magistrate in every case tried summarily. It is commonly known as

S.T.C.Register. It is necessary to enter that the plea of the accused, his examination, finding the sentence or final order in S.T.C. register by the

Magistrate in his own hand writing. He can not delegate that work to any of his subordinates.

TRIAL BEFORE COURT OF SESSION:

As per Sec.9 of Criminal Procedure Code the State Government shall establish a court of Session for every Sessions Division which shall be presided over by a Judge to be appointed by the Hon’ble High court and Hon’ble High

Court may also appoint Additional Sessions Judge and Asst.Sessions Judge to exercise the jurisdiction in a court of Session. The Asst. Sessions Court can be established in a particular Sub Division and the presiding Judge shall exercise of powers as entrusted by the Sessions Judge and the Asst.Sessions Judge is sub ordinate to a Sessions Judge in whose court he exercise jurisdiction. The court of Sessions can not directly take cognizance of an offence and there is a bar to the Sessions Court to take cognizance of any case except certain cases which arises under special laws, however by virtue of Sec.199 Cr.P.C. which is an exception to said bar, under which the Sessions Court can take cognizance 44 of offence. During trial or enquiry if it is of the opinion that some more persons are yet to be directed to take trial as provided u/s.319 Cr.P.C. for adding additional accused u/s.319 Cr.P.C. the court can take cognizance against an additional accused and u/s.199(5) no court of Sessions shall take cognizance of an offence. Under Sub-Section 2 unless the complaint is made within six months from the date of which the offence is alleged to have committed. So by virtue of Sec.199(2) when any offence falling under Chapter 21 of IPC is alleged to have been committed against any person who at the time of such commission with the President of India, the Vice President of India, the

Governor of a State, the Administrator of an Union Territory or a Minister of the Union or of a State or of an Union Territory or any other Public Servant employed in connection with the affairs of Union or of a State, in respect of his conduct in the discharge of with public functions, a court of Sessions may take cognizance of such offence without the case being committed to it upon a complaint in writing made by the Public Prosecutor. So u/s.209 Cr.P.C. when an accused appears or is brought before the Magistrate and it appears to the

Magistrate that the offence is triable exclusively by the court of Session, he shall commit u/s.209 Cr.P.C. by furnishing copies u/s.207 Cr.P.C. and 208

Cr.P.C. the case to the court of Session subject to the provisions relating to the bail and remand the accused to the custody only such commitment has been made.

Chapter 18 of the Code of Cr.P.C. deals with the trial before the court of

Session and rule 90 of Criminal Rules of Practice clearly directs a Sessions 45

Judge to give preference or priority to the Sessions work than the Civil work and the Sessions work should never be interrupted.

Sec.225 of Cr.P.C. speaks that “in every trial before court of Session the prosecution shall be conducted by a Public Prosecutor by opening a case u/s.226 Cr.P.C. When the accused appears or is brought before the court of

Sessions in pursuance of committal of the case u/s.209 Cr.P.C. the Prosecutor shall open the case by describing the charge brought against the accused and by stating what evidence he proposes to prove the guilt of the accused. If upon consideration of the record of the case, as well as the documents submitted there with, after hearing submissions of the accused and the prosecution if the

Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused by recording the reasons for doing so.

So said discharge can be made only after considering averments in the charge sheet and the relevant case law. While framing the charge trial court need not

Marshal materials on record. Prima facie consideration is sufficient and

Hon’ble High Courts will not interfere ordinarily with the Order of trial court of framing charge. The court may discharge the accused if two views are possible one giving raise to suggest that view it to suspicion only as distinguished from grave suspicion. By virtue of Sec.301(2) of Cr.P.C. any private persons if instructs a pleader to prosecute any person in any court the Public Prosecutor or Addl.Public Prosecutor Incharge of the case shall conduct the prosecution and the Private Pleader so instructed shall act under the directions of Public

Prosecutor or Addl.Public Prosecutor with the permission of the court. 46

On hearing the accused and the prosecution if the Judge is of the opinion that there is a ground for presuming that the accused has committed an offence, the court shall frame a charge if it is of the opinion that there is a ground for presuming that the accused has committed an offence which is exclusively triable by the court of Sessions it shall frame a charge in writing against the accused. If it is not exclusively triable by the court of Sessions, by order, transfer the case, for trial, to the Chief Judicial Magistrate or any other

Judicial Magistrate of I Class by giving direction to the accused to appear before such Magistrate on such date and direct the respective Chief Judicial

Magistrate or Judicial Magistrate of I Class to try the offence in accordance with the procedure for trial of Warrant Cases instituted on a police report.

When a Sessions Court frames a charge in writing u/s.228(1) (b) Cr.P.C. the charge shall be readover and explained to the accused and it shall be asked whether he pleads guilty of the offence charged or claimed to be tried as per

Sec.248(2) Cr.P.C.

While framing a charge, court is not expected to go deep into the probative value of the materials on record. Reasons to be recorded in case of discharge of an accused, but not in case of framing a charge.

If the accused pleads guilty, the Sessions Judge or Asst.Sessions Judge or Addl.Sessions Judge as the case may be, by recording the plea and may in his discretion convict him u/s.229 Cr.P.C. If the accused refuses to plead guilty, or claims to be tried, if he is not convicted u/s.229 Cr.P.C. the Judge shall fix a date for examination of witness and may on the application of 47 prosecution issue any process for compelling the attendance of any witness or production of any document or thing u/s.230 of Cr.P.C.

So the date will be given for recording prosecution evidence which usually be called fixing of the schedule and on the date fixed the court shall record the evidence of prosecution witnesses incessantly or continuously. The court shall take the evidence of the witness in the presence of accused. By virtue of Sec.272 and 273 Cr.P.C. which speaks of language and mode of taking and recording evidence. All evidence shall be taken during the course of trial or other proceedings in the presence of the accused, if his personal attendance is dispensed with, in the presence of his Pleader. The State

Government may determine the language in which the evidence has to be recorded. By virtue of Sec.303 Cr.P.C. an accused person has right to defend himself by a Pleader of his choice and by virtue of Sec.304 Cr.P.C. legal aid has to be provided at the state expenses where in a trial before the court of

Sessions if the accused is not represented by a Pleader and it appears to the court that the accused has not sufficient means to engage Pleader, the court shall assign a Pleader for his defence at the expenses of the State. So by virtue of Sec.309 Cr.P.C. the proceedings shall be continued from day to day until all the witnesses in attendance have been examined unless the court finds the adjournment of the same beyond the following date to be necessary, however by recording the reasons. So in every enquiry of trial, the proceedings shall be continued incessantly. So expeditious trial is the foremost right of the accused enshrined under article 21 of the Indian Constitution by virtue of Judicial 48 precedents.

RECORDING OF EVIDENCE:

The recording of evidence in warrant cases trial by a Magistrate shall be taken down in writing either by Magistrate himself or by his discretion in open court if he is unable to do so due to physical or other incapacity under his direction and the Superintendence, any Officer of the Court appointed by him can take down and also the evidence of a witness be recorded by audio, video, electronic means in the presence of the advocate of the person. Where a

Magistrate causes the evidence to be taken down he shall record a certificate to that effect and evidence shall ordinarily be taken down in the form of a narrative and in discretion the Magistrate may record the evidence or part of the same with the form of question and answer and the evidence so taken shall be signed by Magistrate and it becomes the part of the record. So this is the procedure contemplated u/s.275 Cr.P.C. to record the evidence in Warrant

Cases and u/s.274 in summons cases and enquiries the Magistrate shall make a memorandum of the substance of his evidence in the language of the court which shall be signed by him, on his inability the same shall be caused to be made in writing in open court, by recording the reasons and causes it to be made by others.

Bs by virtue of Section 276 Cr.P.C. in all trials before court of Session, the evidence of each witness shall be taken down in writing either by Presiding

Judge himself or by his dictation, in open court or under his direction and

Superintendence, by any Officer, the same procedure is contemplated in 49 recording evidence in a warrant case and recording of evidence before court of

Sessions. If the witness gives evidence in the language of the court, it shall be taken down in the said language if he gives in any other language if practicable it can be taken down in the said language and if not practicable with a true translation of the evidence in the language of the court shall be prepared. It shall be signed by the Presiding Judge. So every witness is competent to testify by virtue of Sec.118 of Indian Evidence Act if he is capable of understanding the questions put to him and is able to give rational answers, unless he is prevented by virtue of tender age, unsoundness, infirmity etc.

In a trial before Court of Sessions if the accused pleads guilty the Judge shall record the plea and may in his discretion convict the accused u/s.229

Cr.P.C. So after taking the evidence of prosecution witnesses u/s.230 by fixing the date and u/s.231 of Cr.P.C. after proceeding to take of evidence u/s.231(2)

Cr.P.C. the judge in his discretion permit the cross examination of any witness to be deferred until any other witness have been examined or recall any witness for further cross examination. After taking the evidence of prosecution witnesses and on examining the accused i.e. u/s.313 Cr.P.C. and after hearing the prosecution and the defence on the point, if the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an Order of acquittal u/s.232 of Cr.P.C. If he is not so acquitted u/s.232

Cr.P.C. the accused shall be called upon to enter on his defence and adduce any evidence he may have in support thereof, and if the accused puts in any written statement the Judge shall file it with the record u/s.233 (1)(2) Cr.P.C. 50 respectively. At the request of the accused if he applies for issue of process for compelling of any witness or for production of documents the Judge shall issue process by recording the reasons and can also refuse if it is found said application was vexatious or delaying or defeating the ends of justice.

So on completion of examination of defence witness the Prosecutor shall sum up his case and the accused or his Pleader shall be entitled to reply. So if any point is raised on law by the accused, the prosecution with the permission of the Judge may submit the arguments on such point of law and the court will hear the arguments u/s.234 Cr.P.C. when a case is triable by a court of

Session and the Judge shall give judgment u/s.235(1) Cr.P.C. If the accused is convicted, unless the Judge proceeds in accordance with the provision u/s.360

Cr.P.C., the Judge shall hear the accused on the question of sentence and then pass sentence according to law as contemplated u/s.235(2) Cr.P.C. By virtue of Sec.428 Cr.P.C., the period of detention, undergone by the accused during investigation, inquiry or trial of the same case, and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction.

Chapter 27 of Cr.P.C. speaks of the judgment. The judgment shall be pronounced after termination of trial, after giving notice to the parties/pleaders, in open court by the Presiding Officer by reading the whole or operative part of the judgment and signed the transcript every page. By virtue of section 354 Cr.P.C. the language and contents of the judgment shall be written in the language of the court which shall contain the point for 51 determination, the decision thereon and reasons for the decision. The judgment shall contain the section of law under IPC or other law under which the accused is convicted and the punishment to which he is sentenced. If the accused is acquitted it shall state the offence under which the accused is acquitted. U/s.29 of Cr.P.C. the court of Chief Judicial Magistrate may pass a sentence authorized by law except a sentence of death or imprisonment for life or imprisonment for a term exceeding 7 years. The court of a Magistrate of the

First Class may pass sentence of imprisonment for a term not exceeding 3 years or fine not exceeding Rs.10,000/- or of both. The court of Magistrate of II

Class may pass a sentence of imprisonment for a term not exceeding 1 year or of fine not exceeding Rs.5000/- or of both. The court of a Chief Metropolitan

Magistrate shall have the powers of the court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the court of the Magistrate of the I Class. U/s.30 of Cr.P.C. the sentence of imprisonment is prescribed in default of payment of fine, however it shall not be in excess of the powers of the

Magistrate u/s.29 Cr.P.C. It shall not where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the

Magistrate u/s.29 Cr.P.C.

U/s.355 Cr.P.C. the Metropolitan Magistrate shall record in the 52 judgment the serial number of the case, date of commission of the offence, name of the complainant (if any) and the accused, their parentage, residence, the offence complained of or proved, the plea of accused and his examination, the final order and the date of such order. In every cases tried summarily in which, the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding, as per section 264 of Cr.P.C., and every such record and judgment shall be written in the language of the court by virtue of Sec.265

Cr.P.C.

By virtue of Sec.357 Cr.P.C. when a court imposes a sentence or fine of a sentence of which fine forms a part, the court may when passing judgment,

Order, the whole or any part of the fine recovered to be applied in defraying expenses in incurring the prosecution, in the payment to any person of compensation of any law or injury caused by the offence, etc.

Before conclusion of the trial and before disposal of the appeal, the court, trying the offence or ;the Appellate Court, as the case may be shall require the accused to execute bail bonds with sureties to appear before the higher court, as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and such bail bonds shall be in force for six months u/s.437-A Cr.P.C. and on failure of the accused to appear, the bond stand forfeited.

Under Section 389(3) Cr.P.C., the trial court can suspend the sentence, if the convicted person satisfies the trial court, that he intends to prefer an 53 appeal, provided, if the convicted person is on bail and he is sentenced to imprisonment for a term not exceeding 3 years.

No court once signed in its judgment/original order, shall alter or review the same except to correct a clerical or arithmetical error as contemplated under section 362 of Cr.P.C.

Under Section 363 of Cr.P.C. the copy of the Judgment shall immediately after pronouncement of the judgment, when the accused is sentenced to imprisonment, be given to him free of cost.

As contended under section 365 of Cr.P.C. Court of Session or a Chief

Judicial Magistrate, shall forward copy of finding and sentence(if any) to the

District Magistrate, concerned, when the court of Sessions passes sentence of death, the proceedings shall be submitted to the Hon’ble High Court, under

Sec.366 Cr.P.C.

The court passing the sentence shall commit the convicted person to jail custody under a warrant u/s.366(2) Cr.P.C., as the sentence of death imposed by a court of Session, shall not be executed unless it is confirmed by the

Hon’ble High court.

Under Section 325 of Cr.P.C. when a Magistrate can not pass sentence sufficiently severe, he may record the opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom, he is subordinate.

CONCLUSION:- The accused person should get a fair trial in accordance with the accepted principles of natural justice. The court shall make an endeavour 54 to avoid delay in trial. The Criminal Procedure should ensure fair deal to the weaker sections of the community.

55

FROM TRIAL TO FINAL JUDGMENT

By Smt K. Aruna Kumari, Prl. Junior Civil Judge, Gudivada.

1] All persons must be equal before the court. Every one shall be entitled to a fair trial by an impartial court established by law. A salient requirement of fair trial is one without undue delay. The right to a speedy trial flowing from

Article 21 of the Constitution encompasses all the stages such as investigation, inquiry, trial, appeal, revision and retrial. In a criminal case, a conviction cannot be based on the testimony of witnesses whose examination in chief stands contradicted by their Cross examination. Basic concept behind a fair trial is succinctly explained, in Manu Sharma v. State (NCTof Delhi), (2010) 6

SCC 1. A reasoned judgment diminished the chances of appeal, and reduces the courts overload. Appreciation of evidence must be rational and dispassionate. In every criminal trial the degree of probability of guilt has to be much higher, almost amounting to certainty; and if there is the slightest reasonable or probable chance of innocence of an accused the benefit must be given to him.

2] Recently the in AG.V. Shiv Kumar Yadav another

[2016(1) ALT (Crl.) 167 (SC) =2015 (4) Crimes 1 (SC) held that in administration of justice criminal trial should be fair trail as Article 21 of the constitution of

India emphasizes and when statutory laws are silent Court may evolve a 56 principle to meet situation and statutory Provisions should be interpreted keeping the principle of fair trial in mind and trial should be fair not only from the review point of the accused but also from that of the victim and society.

3] A trial of a criminal case is a process by which a Court decides on the innocence or guilt of an accused. The total trial process is governed and underpinned by the principles laid down in the Constitution of India. Accused is given every opportunity to defend himself. The duty of a judicial officer is to ensure that witnesses are examined with great care and he has the duty to referee motions, weigh the facts and circumstances, draw logical conclusions and arrive at a reasoned decision about guilt or innocence by weighing the facts and circumstances, the evidence produced and the relevant law. In Kali

Ram v. State of H.P., [ (1973) 2 SCC 808]the Supreme Court observed “it is no doubt that wrongful are undesirable and shake the confidence of the people in the judicial system, much worse; however is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot be felt in a civilized society.” In Himanshu Singh Sabharwa v.State of M.P. and Ors.,[

MANU/SC/1193/2008], 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. Settled 57 principles in criminal justice system necessarily to be followed in trial are;-

1. An accused to be tried before a competent, independent and impartial tribunal/court.

2. The burden of proof tests on the prosecution.

3. The prosecution must establish guilt beyond reasonable doubt.

4. High probability is not enough to convict – where there are several possible accounts, the account supporting the accused should be upheld.

5. Accused has a right to remain silent.

6. Judicial Officer must ensure that the prosecution and the defence lawyer – are being diligent, honest and learned in their efforts to arrive at the truth.

7. Under section 479 of Cr.P.C, a judicial officer may not try or commit to trial anycase in which he has a personal interest. The basic principle is such that a judge cannot sit in a case in which he has a financial orother interest.

8. A significant legal maxim is that ‘’ Justice must not only be done, but be seen to be done.’’

9. If a criminal court is to be an effective instrument in dispensing justice, the presiding officer must cease to be a spectator and a mere recording machine.

10. Under section 327 of the Code, trial judges to invariably hold the trial of rape cases in camera, rather than in open court.

11. As seen from section 309 of Cr.P.C, it is known that the Code safeguards the right to a speedy trial.

12. Every accused should be provided the opportunity to be defended by a pleader.

4] Section 309 Cr.P.C. Contemplates that power to postpone or adjourn proceedings:-

(1) In every enquiry and trail the proceeding shall be continued from day-to- 58 day until all witness in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary, for reasons to be recorded:

Provided that when the enquiry or trial relate to an offence Under Section

376-A, Section 376-B, Section 376-C or Section 376-D of the Indian Penal

Code, the enquiry or trial shall, as far as possible be completed within a period of two months from the date of filling of charge-sheet.

(2) If the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone, or adjourn, any enquiry or trial, it may from time to time, for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable and may by warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused persons to custody under this section for a term exceeding 15 days at a time.

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted for special reasons to be recorded in writing.

[Provided also that no adjournment shall be granted for the purpose only of enabling the accused persons to show cause against sentence proposed to be imposed on him].

[Provided also that –

a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of the party;

b) Provided that the pleader of a party is engaged in another court, shall 59 not be a ground for adjournment.

c) where a witness is present in court but a party or his pleader is not present, or the party or his pleader though present in court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination in chief or cross-examination of the witness, as the case may be.

Explanation1:- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is reasonable cause for a remand.

Explanation 2:- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.

A close study of this section unfolds that unfettered powers conferred on courts to check adjournments but it is not being strictly implemented practically. In many cases advocates ask time by representing that they are in other cases. It should be curtailed and junior counsel should be encouraged to commence trials. 5] 13. The State is obliged to provide free legal aid to a prisoner who is indigent or otherwise disable from securing legal assistance where the ends of justice call for such service. Articles 21 and 39A to underline the importance of providing legal aid to accused who have no means to engage a pleader, especially for under trial prisoners. See. Suk Das vs. Union Territory of Arunachala Pradesh, 2 (1986) SCC 401.

14. Accused should be furnished the copies of Police report and other 60 documents in a criminal case. Section 207 of Cr.P.C.

15. Under section 273 of Cr.P.C, evidence to be taken in the presence of the accused. However, in a recent times, it is interpreted that while recording the evidence through video leakage, physical presence of accused is not necessary.

16. Under the provision of section 243 and 247 of the Code, accused has right to produce witnesses in his defence, and these provisions are applicable equally to cases instituted on a police report or private complaint. Sections 243 and 246 of the Code afford the accused the right to cross examine the prosecution witnesses.

17. The object of section 311 of the Code is to discover the truth and deliver a just decision.

18. Under section 279 of the Code, whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him.

19. The principle of double jeopardy is a safeguard provided under Article 20

(2) of the Constitution which prohibits prosecution or punishing a person for the same offence more than once.

20. Section 300 of the Code puts forward three exceptions to the double jeopardy prohibition and provides several illustrations. A person once convicted or acquitted cannot be tried for the same offence. See. State of Andhra Pradesh vs. Kokkiligadda Meerayya and Anr, 1 (1969) SCC 161.

21. Section 353 of the Code mandates that judgment must be delivered in an 61 open court; be read out in court; or the operative part of the judgment read out and the substance of the judgment explained.

22. Section 354 (1) of the Code mandates that judgments must be reasoned.

23. When accused is sentenced to imprisonment, free of copy of judgment shall be furnished to him.

24. Every judgment of a court must be based on legal evidence, substantive by law and logic without having to resort to speculations or inferences.

25. In the operative part of the judgment, the court should state the conviction and the sentence in a specific and clear manner.

26. Benefit of doubt always goes to accused.

6] To meet the present circumstances it is time to discuss about the causes for delay in Indian Courts. One case can be adjourned to any times and the discretion is with the Court according to law. Granting of time should be limited by incorporating law. Delay in disposal create confidence to habitual offenders and disappointment to victims. The crime rate will be deteriorated if cases are disposed in time.

The number of judges has to be increased from trial court to Apex Court.

Approximately 2 years time is taken to select a judge this should be curtailed to fill up existing vacancies. It is better to constitute a special cell with Judges for recruitments for avoiding delay. The consent of Government is also vital aspect on issuing G.Os. and presidential formalities, as early as possible this executive process has to be cleared it will help to fill up vacancies. There is one 62 judge for 10 lakhs people in India so on warfooting basis selections have to be done and new posts have to be created.

The amenities provided in trial courts are very low they have to be improved. Supplying good quality of computers, printers and staff members are necessary. Except in identified and partheared cases the call work of unimportant cases has to be entrusted to the online system for checking of postings and routine steps and through the automatic generated system concerned advocates can get adjournments dates alerts through S.M.S. and emails etc., it will save one hour time in even trial court. The Software technology has to be utilized for effective representations and to avoid clash of date for hearing in different courts by same councils.

63

FROM TRIAL TO FINAL JUDGMENT By Smt N. Anitha Reddy, Judl. Magistrate of I-Class Special Mobile Court, Machilipatnam.

To say in short, a trial of a criminal case is a process by which a Court decides on the innocence or guilt of an accused. The total trial process is governed and underpinned by the principles laid down in the Constitution of India. Accused is given every opportunity to defend himself. The duty of a judicial officer is to ensure that witnesses are examined with great care and he has the duty to referee motions, weigh the facts and circumstances, draw logical conclusions and arrive at a reasoned decision about guilt or innocence by weighing the facts and circumstances, the evidence produced and the relevant law. In Kali Ram v. State of H.P., [ (1973) 2 SCC 808]the Supreme Court observed

“it is no doubt that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse; however is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot be felt in a civilized society.”

In Himanshu Singh Sabharwa v. State of M.P. and Ors.,[ MANU/SC/1193/2008], 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 64

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”.

Settled principles in criminal justice system:-

1. An accused to be tried before a competent, independent and impartial tribunal/court

2. The burden of proof tests on the prosecution.

3. The prosecution must establish guilt beyond reasonable doubt.

4. High probability is not enough to convict – where there are several possible accounts, the account supporting the accused should be upheld.

5. Accused has a right to remain silent.

6. Judicial Officer must ensure that the prosecution and the defence lawyer – are being diligent, honest and learned in their efforts to arrive at the truth.

7. Under section 479 of Cr.P.C, a judicial officer may not try or commit to trial any case in which he has a personal interest. The basic principle is such that a judge 65 cannot sit in a case in which he has a financial or other interest.

8. A significant legal maxim is that ‘’ Justice must not only be done, but be seen to be done.’’

9. If a criminal court is to be an effective instrument in dispensing justice, the presiding officer must cease to be a spectator and a mere recording machine.

10. Under section 327 of the Code, trial judges to invariably hold the trial of rape cases in camera, rather than in open court.

11. As seen from section 309 of Cr.P.C, it is known that the Code safeguards the right to a speedy trial.

12. Every accused sould be provided the opportunity to be defended by a pleader.

13. The State is obliged to provide free legal aid to a prisoner who is indigent or otherwise disable from securing legal assistance where the ends of justice call for such service. Articles 21 and 39A to underline the importance of providing legal aid to accused who have no means to engage a pleader, especially for under trial prisoners. See. Suk Das vs. Union Territory of Arunachala Pradesh, 2 (1986) SCC 401

14. Accused should be furnished the copies of Police report and other documents in a criminal case. See. Section 207 of Cr.P.C.

66

15. Under section 273 of Cr.P.C, evidence to be taken in the presence of the accused. However, in a recent times, it is interpreted that while recording the evidence through video-linkage, physical presence of accused is not necessary.

16. Under the provision of section 243 and 247 of the Code, accused has right to produce witnesses in his defence, and these provisions are applicable equally to cases instituted on a police report or private complaint. Sections 243 ad 246 of the Code afford the accused the right to cross-examine the prosecution witnesses.

17. The object of section 311 of the Code is to discover the truth and deliver a just decision.

18. Under section 279 of the Code, whenever any evidence is given in alanguage not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him.

19. The principle of double jeopardy is a safeguard provided under Article 20 (2) of the Constitution which prohibits prosecution or punishing a person for the same offence more than once.

20. Section 300 of the Code puts forward three exceptions to the double jeopardy prohibition and provides several illustrations. A person once convicted or acquitted cannot be tried for the same offence. See. State of Andhra Pradesh vs. Kokkiligadda Meerayya and Anr, 1 (1969) SCC 161.

21. Section 353 of the Code mandates that judgment must be delivered in an open 67 court; be read out in court; or the operative part of the judgment read out and the substance of the judgment explained.

22. Section 354 (1) of the Code mandates that judgments must be reasoned.

23. When accused is sentenced to imprisonment, free of copy of judgment shall be furnished to him.

24. Every judgment of a court must be based on legal evidence, substantive by law and logic without having to resort to speculations or inferences.

25. In the operative part of the judgment, the court should state the conviction and the sentence in a specific and clear manner.

26. Benefit of doubt always goes to accused.

Conclusion:- Indian law is in consonance with the prevailing international legal standards on the tright o be tried by a competent and independent and impartial court. All persons must be equal before the court. Every one shall be entitled to a fair trial by an impartial court established by law. A salient requirement of fair trial is one without undue delay. The right to a speedy trial flowing from Article 21 of the Constituiton encompasses all the stages such as investigation, inquiry, trial, appeal, revision and re-trial. In a criminal case, a conviction cannot be based on the testimony of witnesses whose examination in chief stands contradicted by their cross-examination. Basic concept behind a fair trial is succinctly explained, . in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1. A reasoned judgment 68 diminished the chances of appeal, and reduces the courts overload. Appreciation of evidence must be rational and dispassionate. In every criminal trial the degree of probability of guilt has to be much higher, almost amounting to certainty; and if there is the slightest reasonable or probable chance of innocence of an accused the benefit must be given to him. As was observed by His Lordship Justice Krishna Iyer, in State of Rajasthan versus Bal Chand, (AIR 1977 SC 2447), “the basic rule perhaps be tersely put as bail not jail, except where there are circumstances, suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the Petitioner who seeks enlargement on bail from the court.’’

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FROM TRIAL TO FINAL JUDGMENT By Smt M. Anuradha, Additional Junior Civil Judge, Nandigama.

“Justice discards party, friendship, and kindred, and is therefore, represented as blind.” - Addison Introduction:- Every Trial is a voyage of discovery in which Truth is the quest. The procedure for trial is found in the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act. But the entire trial process is governed and underpinned by the principles laid down in the Constitution of India. This presentation examines the basic legal rules governing the fair trial proceedings and the relevant case law. It also focuses on the principles ensuring fundamental justice and how a person is treated when accused of a crime and the judicial system in implementation of vital human rights norms. Adversarial System - Trial :- In our system of trial, the prosecution on behalf of the State, accuses the defendant of the commission of a crime and must convince an independent judge of the person’s guilt beyond reasonable doubt. The accused person is given every opportunity to defend himself. The Adversarial system is based on the idea that the truth will emerge from the disputed facts through effective and constant challenges. The judge’s role is to ensure that witnesses are examined with care and he has the duty to referee motions, weigh the facts and the circumstances, draw logical conclusions and arrive at a reasoned decision about guilt or innocence by weighing the facts, the evidence presented and the relevant law. The adversarial nature of our trial system appears to suggest that the judge is a mere umpire of fact and applier of statutory law. However, the Supreme Court has repeatedly urged judges not to limit themselves to being merely observers of the prosecution and defence, but to be conscious that the highest duty of the judge is to arrive at the truth. In the judgment between Ram Chander Vs. State of Haryana reported in AIR 70

1981SC 1036 the Honourable Supreme Court held that “If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth”. It is further held that this must however, be done without unduly trespassing on the functions of the public prosecutor or the defence counsel, without hint of partisanship and without appearing to frighten or bully witnesses. This requires the judge to be aware and active, and more towards a just conclusion by testing, probing and challenging all contentions in his court, thereby arriving at conclusions through rationale and objective thought processes. BASIC LEGAL RULES GOVERNING FAIR TRIAL : - As the judge has complete control of a case as soon as it comes to court, it is his paramount duty to ensure that fair trial norms that have been assured by the Indian Constitution as well as the procedural laws are adhered to. The rules recognized under different provisions of law that ensure fair trial are as follows: 1. Trial by a Competent, Independent & Impartial Tribunal 2. Trial in an Open Court 3. Trial without undue delay 4. Accused Person to be defended by a Lawyer of choice 5. Free Legal aid to the accused 6. Accused to be presumed Innocent until proven guilty 7. Duty of the Court to furnish copies and to explain the accusation/charges to the accused 8. Trial in the presence of the accused 9. Giving adequate opportunity to the accused to examine the witnesses 10. Accused right to remain silent during the trial. 11. Assistance of an Interpreter in certain cases 12. Prohibition of Double Jeopardy 13. Delivering reasoned Judgment and copy of the same to be made available 71

14. Accused to be heard on sentence 1) Trial by a Competent, Independent & Impartial Tribunal :- All major human rights instruments, and our own Constitution and legal system insist on the fundamental human right of an accused to be tried before a competent, independent and impartial tribunal. This is an essential aspect of any fair trial. The independence of the judiciary is one of the pillars of the rule of law. Independence is essential for the protection of fair trial standards. The principle of an independent judiciary requires that a judge can make every decision without the intervention of the government, parliament or administration. Court decisions can be only reviewed by higher courts. The impartiality and independence of the courts may be guaranteed by ensuring that a judge hearing a case has no relationship with either party that may affect the decision making process. Judges are required to view both parties in a fair and equal manner making an objective decision based solely on the facts and evidence of the case. The independence of the judiciary is valued as part of the basic structure of the Constitution. (i)Article 50 of the Constitution:- Article 50 of the Constitution ensures that “the State shall take steps to separate the judiciary from the executive in the public services of the State. In S.P.Gupta Vs. Union of India reported in 1981 (Supp.) SCC 87, pp.221-222 the Honourable Apex Court interpreted independence not merely as non-interference from the executive and other forces, but independence from prejudices: “It is necessary to remind ourselves that the concept of independence of judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong.” (ii) Section 479 of Cr.P.C. - Principle of Audi Alterm pattern :- One of the oldest rules of justice and of common sense is that no man shall act as a judge in a case in which he has a substantial interest. The principle of individual 72 impartiality or the rule that no man can be his own judge or give judgment concerning his own rights is now universal. Apart from being inherent in the constitutional design of our judiciary, it is captured by statute, illustratively under Section 479 of the Code of Criminal Procedure, which states that a judge or magistrate may not try or commit to trial any case in which they have a personal interest or to which they are a party, unless the court to which an appeal lies from their court give its permission.

(iii) Justice must not only be done but be seen to be done_:- This legal maxim, is the other sign of impartiality. This principle was voiced by the Hon’ble Apex Court in the case of Satish Jaggi Vs. State of Chhattisharh & Ors reported in 3 (2007) SCC 62. The transfer of the case was sought on the grounds that the Sessions Judge, an elder brother of a sitting MLA was very close to the father of one of the main accused. The Sessions Judge himself did not indicate his disinclination to hear the matter. The High Court felt that he did this probably because he believed that the mere fact that his brother was known to a political heavyweight would not stand in the way of his discharging his judicial function impartially without fear and favour. The Hon’ble Apex Court however transferred the case to another trial court saying “to ensure that justice is not only done, but also seen to be done and peculiar facts of the case, we feel that it will be appropriate to transfer the case to some other Sessions Court”.

2. Trial in an Open Court:- The right to a public hearing involves the possibility of the general public to attend and observe a trial. It is an important safeguard in the interest of the individual and society at large. It guarantees that the public is informed of how justice administered and decisions are reached by the judicial system. It also constitutes a guarantee to the parties, because the public can review the legality of the proceedings. A public hearing affirms the independence, 73 impartiality and fairness of the courts, thereby increasing the general trust of the population in the judicial system. (i) Section 327 Cr.P.C. – Court to be open:- Section 327 (1) of Cr.P.C. reads as follows: The place in which any Criminal Court is held for the purpose of inquiring into, or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them.

The paramount value of dispensing justice in an open court is affirmed by the Hon’ble Supreme Court in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtraand Anr. reported in AIR 1967 SC 1, in a defamation case instituted against the publisher of an English weekly, the judge made an oral order forbidding the publication of the evidence of a witness. This order was passed to save the witness from risk of excessive publicity. Aggrieved by the order, the petitioners petitioned the High Court against the order. The writ was dismissed on the grounds that the order was a judicial order of the High Court and was not amenable to writ under Article 226. The petitioners then appealed to the Supreme Court under Article 32 for the enforcement of a fundamental right. The Hon’ble Apex Court began its analysis by stressing the historic importance of all cases, whether civil or criminal, being heard in open court, because a public trial “is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. 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 and must permit the public admission to the court room.” (ii) Public Trial- Exceptions:- However, the right to a public trial is qualified by several exceptions. As per the proviso Section 327 (1) of Cr.P.C. , A judge or 74 magistrate, at their discretion, may order that the general public or a particular individual cannot have access to the Court at any stage of an inquiry or trial. As per Section 327 (2) of Cr.P.C., the inquiry into, and trials of, rape or crimes under Sections 376, 376-A, 376-B, 376-C, or 376-D, 376-E of the Indian Penal Code shall beconducted in camera. The Hon’ble Apex Court in State of Punjab Vs. Gurmeet Singh and Ors., reported in 2 (1996) SCC 384 stressed the importance of in-camera trials for sexual offences, stating that “the expression that the inquiry into and trial of rape cases ‘shall be conducted in camera’ is not only significant but very important. It casts a duty on the court to conduct the trial of rape cases invariably ‘in camera’. Courts are obliged to act in furtherance of the intention expressed by the legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327(2) of the Code and hold the trial of rape cases in Camera. The Courts should avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim. Trial of rape case in camera should be the rule and an open trial in such cases, is an exception. As per the proviso Section 327 (3) of Cr.P.C., where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court.

Having settled the principle that the administration of justice demands trials in open courts, the Hon’ble Supreme Court in Naresh Sridhar’s case cited supra also pointed out that this does not mean that there are no exceptions to the rule of openness. “We feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. It is hardly necessary to emphasise that this inherent power must be exercised with great caution and it is only if the Court is satisfied beyond the doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can pass an 75 order to hold the trial in camera. The principle underlying the insistence on hearing cases in open court is to protect and assist fair, impartial and objective administration of justice; but if the requirement of justice itself sometimes dictates the necessity of trying the case in camera, it cannot be said that the said requirement should be sacrificed because of the principle that every trial must be held in open court. In this connection it is essential to remember that public trial of cases is a means, though important and valuable, to ensure fair administration of justice; it is a means, not an end. It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between the fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.”

These exceptions require the judge to apply his mind as to whether there is a fit case for excluding the public from trial, what the level of exclusion should be, what limits to publication of evidence there might be, to decide on the degree of prohibition of reporting, and whether it is to be temporary, for the duration of the trial, for a period after that, or permanent. The paramount purpose of assuring the administration of justice must be shown to be served by the exclusion of the public from the trial. 3. Trial without undue delay:- An important requirement of a fair trial is one without undue delay. A fair trial implies a speedy trial and no procedure can be reasonable, fair or just, if it extends for an unreasonably long time. The requirement of a prompt trial in criminal cases obliges the authorities to ensure that all proceedings from the pretrial stage to the final appeal, are completed, and judgments are issued within a reasonable time. A speedy trial, as such, is not mentioned as a specific fundamental right in the constitution. Quick justice is recognised as implicit in the spectrum of Article 21 of the Constitution and it now regarded as a sine qua non of Article 21.The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which coupled 76 with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21 of our Constitution.

(i) Section 309 (1) Cr.P.C. – Day to day Trial : The design of trial proceedings laid out in the Criminal procedure Code also reaffirms that the requirement of swiftness and promptitude applies to all stages of the criminal process-investigation, inquiry, trial, appeal, revision and retrial. As per section 309(1) in every inquiry or trial, the proceedings should be held “as expeditiously as possible.”Section 309 (1) Cr.P.C. reads as follows: In every inquiry or trial the proceedings shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded: Provided that when the inquiry or trial relates to an offence under Section 376, Section 376A, Section 376 B, Section 376 C or Section 376 D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.

(ii) Sec.309(2) of Cr.P.C. :-After a trial has begun or the court takes notice of an offence, the court may, at its discretion, deem it necessary or advisable to postpone or adjourn the inquiry or trial for a reasonable period of time and may remand the accused to custody by warrant as envisaged under section 309(2) Cr.P.C. When witnesses are in attendance, the court should not postpone or adjourn the proceeding without examining them, unless the court has special reasons for doing so, which it must record in writing as per the proviso to Section 309(2)Cr.P.C.. Costs can be imposed on either party by the court if witnesses are present but are not examined at the request of either the defence or the prosecution as envisaged under Explanation 2 of section 309 (2) of Cr.P.C. (iii) Case law:- The Hon’ble Supreme Court has strongly disapproved of judicial delays. In Michander Vs. State of Hyderabad, reported in AR 1955 77

SC 792, the Court refused to remand the case back to the trial court for a fresh trial because of a delay of five years between the commission of the offence and the final judgment of the Hon’ble Supreme Court. The Hon’ble Apex Court recorded that : “Weare not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty.. we have to draw a balance between conflicting rights and duties... while it is incumbent on us to see that the guilty do not escape, it is even more necessary to see that persons accused of crime are not indefinitely harassed... while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with administration of justice, limits must be placed on the lengths to which they may go.” The Judgment of the Hon’ble Supreme Court in Hussainara Khatoon (1) Vs. Home Secretary, State of Bihar reported in (1980) 1 SC 81 proved to be a high watermark in the development of speedy trial jurisprudence. A writ of habeas corpus was filed on behalf of prisoners languishing in Bihar jails awaiting trials, for periods longer than the maximum sentences for the offences they were charged with. The Court held that undue delay in trial vitiated the guarantee of Article 21 of the Constitution which says no one shall be deprived of his (her) life or personal liberty except according to procedure established by law. The Hon’ble Supreme Court relied on its earlier decision in the Maneka Gandhi Vs. Union of India reported in (1978) 1 SCC 248 case which lays down that “the “procedure” required under Article 21 has to be “fair, just and reasonable” and not “arbitrary, fanciful or oppressive”. In Sheela Barse Vs. Union of India reported in (1986) 3 SCC 632 the Hon’ble Supreme Court addressed the question left unanswered in the Hussainara’s case, about the consequences of delayed trial. The Court held that: “The right to speedy trial is a right would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.” A landmark decision by the Hon’ble Supreme Court in Abdul Rehman Antulay Vs. R.S. Nayak reported in 1992 (SCC) 225 finally 78 adjudicated on questions left open in the Hussainara’scase, such as the scope of the right, the circumstances in which it could be invoked, its consequences, limits, etc. The salient features of the decision were: (a) The right to a speedy trial flowing from Article 21 encompasses all the stages, namely those of investigation, inquiry, trial, appeal, revision and re- trial. (b) In every case, where the right to a speedy trial is alleged to have been infringed, the first question to be put and answered is: who is responsible for the delay? Proceedings by either party in good faith, to vindicate their rights and interests as perceived by them, cannot be taken as delaying tactics; nor can the time taken in pursuing such proceedings be counted towards delay. (c) While determining whether undue delay has occurred, one must take into account all the attendant circumstances including the nature of the offence, the number of accused persons and witnesses, the court’s workload, the prevailing local conditions and so on. (d) Every delay does not necessarily prejudice the accused. However, inordinately long delays may be taken as presumptive proof of prejudice. The prosecution should not be permitted to become a persecution. But when the prosecution becomes a persecution depends on the facts of a given case. (e) An accused’s plea of denial of a speedy trial cannot be defeated by saying that the accused did not at any time demand a speedy trial. (f) The Court has to balance and weigh several relevant facts – balancing test – and determine in each case whether the right to a speedy trial has been denied in a given case. (g) Charge or conviction must be quashed if the court comes to the conclusion that the right to a speedy trial of an accused has been infringed. But this is not the only course open. It is open to the Court to make any other appropriate order - including an order to conclude the trial within a fixed time period, where the trial is not concluded, or reducing the sentence, where the trial has concluded as may be deemed just and equitable in the circumstances of the case. 79

(h) It is neither advisable nor practicable to fix any time limit for trial of offences. Not fixing any such outer limit in effectuates the guarantee of the right to a speedy trial. (i) An objection based on denial of the right to a speedy trial and for relief on that account should first be addressed to the Hon’ble High Court. Even if the Hon’ble High Court entertains such a plea, ordinarily it should not stay the proceedings, except in cases of grave and exceptional nature. Such proceedings in the Hon’ble High Court must be disposed on a priority basis.

The Hon’ble Supreme Court in Kartar Singh Vs. State of Punjab reported in (1994) 3 SCC 569 held that the right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimize anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself, but there is also a societal interest in providing a speedy trial. The Hon’ble Apex Court’s in P.Ramachandra Rao Vs. State of Karnataka reported in AIR 2002 SC 1856 directed the criminal courts to exercise their available powers such as those under sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to a speedy trial.

Moti Lal Saraf Vs. State of Jammu an Kashimir and Anr. 10 (2006) SCC 560 held that “the appellant worked as a manager in the State Bank of India. An F.I.R. under Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act was registered against him, pursuant to which he was arrested on the allegation that he had received a sum o Rs.700/-as a bribe. Over a period of 26years, repeated challans were filed, causing immense mental, physical and emotional stress and harassment to the appellant. In the intervening 26years, not even a single witness was examined by the prosecution. The appellant sought relief on the grounds that it was the right of every citizen to seek a speedy trial and that continuation of further proceedings against him was contrary to the basic spirit of Article 21 of the Constitution. Discharging the appellant, the Court maintained that permitting 80 the state to continue with the prosecution and trial any longer would be a total abuse of the process of law. It also stressed that it is the bounden duty of the court and the prosecution to prevent unreasonable delay. The Hon’ble Apex Court further held “The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch.” In order to make the administration of criminal justice effective, vibrant and meaningful, the Court urged the central and state Governments and all the concerned authorities to take necessary steps to ensure that the constitutional right of the accused to a speedy trial does not remain only on paper.”

(iv) Insertion of Section 436 A to the Code of Criminal Procedure :- The legislation has fixed the maximum period for which an under trial prisoner can be detained by inserting section 436 –A of Cr.P.C. It reads as follows: Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: This section provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

4. Accused Person to be defended by a Lawyer of choice :- Every accused should be provided the opportunity to be defended by a pleader at the time of the proceedings and should have sufficient opportunity of communication with his legal adviser for the purpose of his defence. This right also extends to having all necessary means for the defence which is a well- established principle under law. It means that the accused must have all the elements of evidence at his disposal. This right is derived from the principle of the equality of arms. It means that in relation to the prosecution, the defence must have an equal opportunity to prepare and present a case, and that the prosecution and defence must have an equal position throughout the proceedings. 81

(i) Article 22 of the Constitution & Section 303 of Cr.P.C. – Right of the Accused person to be defended:- Article 22 of the Constitution guarantees that every arrested person has the right to “consult and to be defended by a legal practitioner of his choice.” Section 303 the code of Criminal Procedure reinforces this idea, stating that: “any person accused of an offence before a criminal court, or against whom proceedings are initiated under this Code, may of right be defended by a pleader of his choice.” (ii) Case Law:- In Suk Das Vs. UT of Arunachal Pradesh MANU/SC/0140/1986 (1986) 2 SCC 401) it was held “Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused doe not ask for a lawyer or he remains silent, it is the Constitutional duty of the Court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused”.

In Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid Vs. State of Maharashtra reported in (2012) 8 SCR 295, the appellant/accused was offered a lawyer at the time of his arrest by the Police officer, making the arrest. He declined the offer. He then wrote a letter to the Pakistani High Commission asking to be provided with a lawyer. He made a similar request in a second letter that was handed over to the Additional Chief Metropolitan Magistrate. In the second letter, there is an assertion that he did not want to be represented by an Indian Lawyer. It is thus clear that, in his mind, the Appellant was still at war with India, and he had no use for a lawyer from the enemy country. Moreover, the negative assertion that he did not want an Indian Lawyer itself implies that he had received offers of legal 82 counsel. But those offers were not acceptable to him. The defence counsel argued that the request of the accused to be represented by a Pakistanee lawyer could not be acceded to. On March 23, 2009 the Appellant finally asked for a lawyer, apparently convinced by then that no help would come from Pakistan or anywhere else. He was then immediately provided with a set of two lawyers. In the aforesaid facts, the Hon’ble Supreme Court held “there is no question of any violation of any of the rights of the Appellant under the Indian Constitution. He was offered the services of a lawyer at the time of his arrest and at all relevant stages in the proceedings. We are also clear in our view that the absence of a lawyer at the pre-trial stage was not only as per the wishes of the Appellant himself, but that this absence also did not cause him any prejudice in the trial. The Hon’ble Apex Court further held “failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case.”

5. FreeLegal Aid to the accused:- A procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would therefore have to go through the trial without legal assistance, cannot possibly be regarded as reasonable, fair and just. Thus the state is obliged to provide free legal aid to a person who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. The due process right guaranteed to all individuals in Article 21 of the Constitution requires that an individual has access to free legal counsel if he cannot afford it. 83

(i) Article 39 A of Constitution of India - Equal justice and free Legal Aid:-

The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (ii) Section 304 of Cr.P.C. - Legal Aid to the accused at State Expense in certain cases:- Section 304, the Code of Criminal Procedure makes this right explicit and outlines its implementation. When the accused is not represented by a pleader in a trial before the Court of Session, and when the Court finds that the accused does not have sufficient means to engage a pleader, the Court shall assign a pleader to defend the accused at the state’s expense. With the previous approval of the state Government, the Hon’ble High Court may create a rule to determine the method to select pleaders for defence, the facilities the assigned pleaders will be given, and the fees payable to the pleaders by the Government. The state Government may order that these provisions be made applicable to any class of trials before other courts in the state, as they apply in relation to trials before the Courts of Sessions.

(iii) Legal Services Authorities Act, 1987:- In furtherance to the idea of Article 39-A, Parliament enacted the Legal Services Authorities Act, that came into force from 09.11.1995. Section 12 & Section 13 in Chapter IV of the said Act recognizes certain categories of people for entitlement to legal services. (iv) Case Law:- The Hon’ble Supreme Court in several decisions has referred to both Articles 21 and 39A to underline the importance of providing legal aid to under trials. In Hussainar Khatoon and Ors. V. Home Secretary, State of Bihar, Bihar Patna, (1980) 1 SCC 108 the Supreme Court concluded that the right to free legal service is an essential ingredient of reasonable, fair and 84 just procedure for an accused person and it must be held to be implicit in the guarantee of Article 21. In Kharti (II) Vs. State of Bihar (1981) 1 SCC 627, the Hon’ble Supreme Court also ruled “the state cannot seek to avoid this constitutional obligation by pleading financial or administrative inability” In Kasab’s case reported in (2012) 8 SCR 295 cited supra, the Hon’ble Supreme Court opined: “to deal with one terrorist, we cannot take away the right given to the indigent and under privileged people of this Country by this Court (31) years ago. The right to free legal services is, therefore, clearly an essential ingredient of “reasonable, fair and just”, procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.” Further the Hon’ble Apex Court directed the Magistrates and Sessions Judges in the Country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of State and further make it clear that any failure to fully discharge the duty, would amount to dereliction in duty and would make the concerned Magistrate liable to disciplinary proceedings.

6. Accused to be Presumed Innocent until proven guilty:- “It is better that ten guilty escape than one innocent suffers.” Criminal procedure is built around the principle of “innocent until proven guilty” and is designed to protect this right. When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt lies on the prosecution. Section 101 of the Indian Evidence 85

Act further reinforces this right, by providing that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove those facts. Thus, if the state wishes to convict an individual of an alleged crime, the state carries the burden of firmly establishing and providing the defendant’s guilt. Judges need to bear in mind that suspicion, however grave, cannot take the place of proof, and strong pieces of circumstantial evidence cannot establish guilt unless each piece links to another and every link in the chain is proved. 7. Duty of the Court to furnish copies and to explain the accusation/charges to the accused:- The objective of this provision is to give adequate notice to an accused person of the material to be used against him so that he is njot prejudiced during the trial. It is also to ensure that the trial is just and fair. The right to know what wrongful activity is alleged and the basis of it is vital in order to give the defendant a chance to mount the fullest defence and is a fundamental fair trial requirement. (i) Section 207 of Cr.P.C. - Provide copies of Police Report and other documents to the Accused:-Section 207 of the Code of Criminal Procedure dictates that in any criminal proceedings instituted on the basis of a police report, the Magistrate must freely furnish to the accused: 1. A copy of the police report; 2. A copy of the first information report; 3. The statements of any prosecution witnesses; 4. Any recorded confessions or statements; and 5. Any other documents forwarded to the magistrate by the police.

(ii) Section 208 of Cr.P.C. - Provide copies of other statements and Documents to the accused if the case is Triable by the Court of Sessions: If a matter is triable exclusively by the Court of Sessions, Section 208 of the Code requires that the Magistrate freely furnish to the accused the statements of persons examined by the Magistrate, any statements and confessions, and any documents produce before magistrate on which the prosecution proposes to rely. 86

(iii) Copies of statements of the prosecution witnesses to be furnished to the indigent Accused:- In Gangula Suryanarayana Reddy Vs. State of Andhra Pradesh (2002) Cr.LJ 2472 (AP)the petitioners/accused move an application to secure copies of prosecution witnesses statements free of cost as there were 430 witnesses and the cost of securing them was far beyond their reach. The Hon’ble High Court of A.P. was of the opinion that if a person is unable to obtain the copies because he is not in a position to pay for them, it would lead to adjournment after adjournment because the advocate appearing for him, even if provided by the state, would not be in a position to defend the case. The Hon’ble Court further directed all magistrates and judges that on filing of an application for copies, supported by an affidavit, a copy of the evidence should be furnished to an indigent accused. (iv) Contents of charges to be read over and explained to the accused:- As per Section 211(1) of Cr.P.C. the accused must be given full notice of the offences he is charged with. As per section 211(2) of Cr.P.C., each offence must be described and have the specific name of the offence as stated in the law. As per section 222 of Cr.P.C., the framed charge must state the exact time and place of the alleged offence and the person against whom, or the thing in respect of which, it was committed. The trial Court judge in the magistrate’s court or the Sessions Court has a duty to frame the charges in writing. The judge may add or alter the charges framed by the prosecution. After framing the charges the Court of sessions u/s.228(2) of Cr.P.C. and the Magistrate u/s.240(2) of Cr.P.C. are under obligation to read over and explain the Charges to the accused. (v) Alteration and addition of Charges to be read over to the Accused:- As per Section 216(1) of Cr.P.C, the court has sufficient powers to alter or add to any charges that have been included by the prosecution agency. As per Section 216(2) of Cr.P.C every such alteration or addition shall be read and communicated to the accused. When a charge altered or added by the Court, the prosecutor and the accused will be allowed to recall,, re-summon and examine any witness who may have already been examined by the Court, 87 unless the Court is of the view that the same is being done to defeat the ends of justice. The aid of these provisions is to enable the accused to have a clear idea of what he is being tried for and of the essential facts he has to meet. It is one of the elementary principles of criminal law that an accused person must know the precise accusation against him before he is called on to enter his defence. 8. Trial in the presence of the accused:-

The presence of an accused during his trial is an absolute right. The right to be tried in one’s presence is implicit in the right to adequate defence. Trials in absentia can prejudice the fairness of the hearings in a grave manner. It is obligatory that the evidence from the prosecution and defence should be taken in the presence of the accused. A trial is vitiated by the failure to examine witnesses in the presence of the accused. (i) Section 273 of Cr.P.C. - Evidence to be taken in the presence of the accused:- This principle has been read into Article 21 as being an element of due process and is given clear expression in Section 273 of Cr.P.C. which says: “Except as otherwise expressly provided, all evidence taken in the course of trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.” In State of Maharashtra Vs. Praful B Desai reported in AIR 2003 SC 2053 With the introduction of video linking the Supreme court has held that evidence recorded via video in the presence of the accused or his pleader fully meets the requirements of Section 273. (ii) Exceptions to the said Rule - Sections 205, 299, 317 (1) of Cr.P.C.:- There are some provisions under the law where the Court may record the evidence even in the absence of the accused. Under Section 205 (1) of Cr.P.C. the magistrate may dispense with the personal attendance of the accused and permit him to appear by his pleader. Section 299 of Cr.P.C is another instance when the court can proceed in the absence of the accused, when he is declared as absconder. This provision is in derogation of the normal procedure that 88 evidence in a trial of an accused shall be recorded in his presence. But its justification lies in the accused’s default to take part in the trial. As per Section 317 (1) of Cr.P.C., the right to be in court throughout a trial belongs to the Accused, if there is no risk of prejudice to either side and where the interests of justice remain fully served even in the absence of the accused, the Court may at the request of an accused dispense with his personal appearance and allow the matter to go forward through his representative. Under Rule 37 of Cr.P.C. and Circular Orders, 1990, one of the accused may be permitted to represent the other in any criminal proceedings.

9. Giving adequate opportunity to the accused to examine the witnesses:-

Fair trial includes fair and proper opportunities allowed by the law to prove one innocence. Denial of this right means a denial of fair trial. The right is critical to preserving fairness and ensuring accuracy at trial. The accused cannot adequately present his defence and challenge the prosecution’s case against him unless he has the opportunity to call witnesses on his behalf and cross examine prosecution witnesses. Moreover, the questioning of witnesses by the defence provides the court with an opportunity to arrive at more accurate findings, as questioning witnesses serves the necessary function of scrutinizing the witness’ credibility and reliability. Fair trial includes rules of procedure that are designed to ensure reasonable and adequate opportunities to mount an effective defence. This includes the right of the accused to present evidence on his behalf and challenge evidence put forward by the prosecution. If this is denied to the accused, there is no fair trial. (i) Evidence for the Prosecution:-The charge sheet indicates the facts and circumstance that emerge through the police investigation and form the elements of the crime which the accused must answer. Once that is presented to the accused and he is asked to plead his case, he knows the charges and the basis for these. The prosecution can file further charges if more evidence comes to light or further crimes are indicated. The rules of procedure require 89 that the prosecution presents and completes its case first. It is essential at the very outset of the trial to put before the court all the evidentiary material it intends to rely on to prove its case beyond reasonable doubt. This can include lay and expert witnesses, documents, forensic material and analysis. At the commencement of the trial the prosecution must again indicate the witnesses it has chosen to put in the box. All such witnesses must be present in person, give evidence orally and be available for cross-examination.

The prosecution has to lay before the Court all material evidence available to it to unfold the case. Sections 231, 242, 244 & 254 of the Code afford the opportunity to the prosecution to examine its witnesses and put forth oral or documentary evidence. Every witness must be examined orally. After prosecution witnesses are examined, cross-examination by the accused and re-examination (if any) shall follow immediately as envisaged u/s.138 of Indian Evidence Act. There is no right to reserve cross-examination. Ordinarily, examination and cross-examination are to be a continuous process but sub-section 2 of Section 231 vest the judge with the discretion to permit for sufficient reason, either (i) the cross-examination of any witness to be deferred till any other witnesses or witnesses have been examined, or (i) recall any prosecution witness for further cross-examination. (ii) Section 313 of Cr.P.C. – Duty of the court to explain all incriminating evidence to the accused: Section 313 of Cr.P.C.envisages power of the trial Court to examine the accused to explain the circumstances appearing in the evidence against him. The provision contained in Section 313 is based on one of the most fundamentals to be observed in a criminal trial that the accused should be called upon to explain the evidence against him and should thus be given an opportunity of stating his own case.

InAsraf Ali Vs. State of Assam reported in (2008) 16 SCC 328andin Manu Sao Vs. State of Bihar reported in2010 (12) SCC 310andin Nagesh Vs. State of Karnataka reportedin (2012) 6 SCC 477the Hon’ble Supreme Court explained the object of Section 313 of Cr.P.C. by holding that “the 90 primary purpose is, to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain”. (iii) Evidence for the defence:- Section 233 of Cr.P.C. provides that if the judge does not acquit the accused under section 232 of the Code on the ground that there is no evidence, he shall call the accused to enter his defence and adduce evidence and file with the record any written statement, if put in by the accused. If the accused desires to call any witness and applies for the issue of process to compel the attendance of a witness or the production of any document or item, an adjournment has necessarily to be given for the purpose. The provisions of Section 243 and 247 of the Code granting the right to the accused to produce witnesses in his defence, applies equally to cases instituted on a police report or private complaint. After the examination and cross-examination of all the prosecution witnesses, i.e. after the completion of the prosecution case, the accused is called upon to enter his defence. The provision for the defence’s evidence in warrant cases instituted other than on a police report is contained in Section 247 of the Code of Criminal Procedure which is pari material with Section 243. The provision as contained in Section 254 pertains to the trial of summons cases by a Magistrate. When there is no admission of guilt by the accused and a conviction thereon under section 252, the Magistrate must proceed to hear the case and take evidence adduced by the parties. (iv)Participatory Role of Judge- Section 311 of Cr.P.C. and Section 165 of Indian Evidence Act:- The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, in can control the proceedings 91 effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. The power of the Court under section 165 of the Evidence Act is in a way complementary to its power under section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. In Mohan Lal Vs. Union of India MANU/SC/0318/1991 this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, “any Court”, “at any stage”, or “any enquiry or trial or other proceedings” “any person” and “any such person” clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. 10. Accused right to remain silent during the trial:- It is a generally accepted principle that the suspect/accused cannot be forced to incriminate himself / herself. While the rights of the victim are protected by the state, the accused is often completely dependent on the judge to ensure his rights. Article 20(3) of the Constitution protects the right of the accused to remain silent by providing that: “No person accused of any offence shall be compelled to be a witness against himself.” (i) Further statements of the accused to the Court during the trial :-The Code of Criminal Procedure, Section 313 further protects the right to silent. It 92 protects the accused from liability for refusing to answer or falsely answering questions by a judge during a court proceeding. It says:“ the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.”.

(ii) Accused is competent witness for further defence:-As per Section 315 of Code of Criminal Procedure, 1973, during trial, the accused can be arraigned as a witness for the defence but cannot be called on to give evidence except at his own request. If the accused chooses not to give evidence, the court cannot draw any adverse presumption against him. Section 316 of Code of Criminal Procedure, 1973 provides that except as a condition requisite to a tender of , no influence by means of any promise or threat or otherwise can be used on the accused to induce them to disclose or withhold any matter within their knowledge. Thus, Sections 313, 315 and 316 of the Code raise a presumption against guilt and in favour of innocence, grant a right to silence at the stage of trial and also preclude any party or the court from commenting on the silence. 11. Assistance of an Interpreter in certain cases:- All rights to an adequate defence are useless even if the accused is present, if he lacks the ability to understand the charges brought against him, follow the proceedings or communicate his own defence and challenge properly because he does not understand the proceedings or cannot understand the language. In criminal trials where the consequences of a negative decision carry enormous weight on the future of the individual, it is imperative that the accused can follow the proceedings in detail and can express himself in a language he fully understands, failing which he will be unable to defend himself. (i) Section 279 of Cr.P.C. - Procedure where the accused does not understand the proceedings:- Thorough out the Criminal Procedure Code there are various sections designed with the aim of ensuring that the accused has every opportunity to 93 mount an effective defence. As far as language is concerned, Section 279 of the Code requires that “whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him.” The words of section 279 of the Code: “It shall be interpreted to him in open Court” suggested that the judge has a duty to interpret himself for the person unable to understand the language of the Court, or to ensure that his pleader explains each witness statement and evidentiary document, or to seek the services of an interpreter in order to fulfill the requirements of the Section. In addition, Section 318 of the Criminal Procedure Code recognizes that there may be categories of persons who “cannot be made to understand the proceedings.”. However, in such cases, the Section allows the judge to proceed with the trial even if the accused cannot understand the proceedings, but, if such proceedings result in conviction, the Judge must forward the proceedings to the Honourable High Court along with a report of the circumstances of the case, and the Honourable High Court will then pass such order as it thinks fit.

(ii) Case Law :- Denial of the right to an interpreter violates Articles 21 of the Constitution and requires a re-trial The provision u/s.279 Cr.P.C. is of course intended to “safeguard” defendants’ interests, held in K.M. Subramani Vs. State of A.P. 2003 CriLJ 3526. In the said case, a Tamilian was charged with causing the death of two motor scooter riders when he allegedly drove his lorry negligently through a traffic intersection. The court conducted his entire trial in Telugu, which the appellant did not understand. The Court did not provide the appellant with a Tamil interpretation so that he could comprehend the proceedings. The judge even read the charges against him and questioned the appellant in Telugu. The appellant was convicted and sentenced to one year of rigorous imprisonment and Rs.5000/- fine. On appeal, the Honourable High Court found that the trial court had indulged in a “short cut” by not providing the appellant with the procedural rights that Section 318 and 279 afforded him. Charactering the trial court’s decision to conduct the 94 proceedings in a language not understood by the appellant or provide translation as a “miscarriage of justice”, the Honourable High Court awarded the appellant a fresh trial. Inability to comprehend the language is a major hurdle to assuring a fair trial. When a person is being prosecuted and his individual liberty is at stake, it is the bounden duty of the Magistrate to explain everything in the language understood by the accused, so that the he can raise his pleas and provide proper assistance and guidance to his counsel.

12. Prohibition of Double Jeopardy:- The principle of double jeopardy or ne bis in idem, whereby nobody can be tried or punished twice for the same offence protects against three distinct abuses: 1. A second prosecution for the same offence after final acquittal; 2. A second prosecution for the same offence after final conviction; and 3. Multiple punishments for the same offence.

(i) Guarantee Against Double Jeopardy- Article 20(2) of the Constitution:- The principle of double jeopardy is safeguarded under Article 20(2) of the Constitution which prohibits prosecuting or punishing a person for the same offence more than once. Article 20(2) of Constitution of India provides that “No person shall be prosecuted and punished for the same offence more than once.” (ii) Section 300 of Cr.P.C. - A person Once convicted or Acquitted Cannot Be Tried for the same Offence:-Section 300 of the Cr.P.C. states that a person acquitted or convicted by a competent court may not be tried again for the same offence. However, the dismissal of a complaint or the discharge of the accused does not represent an acquittal for the purposes of Section 300, and a court can retry the accused when the previous proceeding resulted in either dismissal or discharge. (iii) Exceptions under section 300 of Cr.P.C.:- Section 300 of Cr.P.C. also puts forward three exceptions to the double jeopardy prohibition and provides several illustrations. A person convicted of any offence constituted by 95 any act causes consequences which constitute a different offence from the offence which he was convicted, may later be tried for the different offence, if the consequences had not happened or were unknown to the Court at the time when he was convicted. As per section 300(4) of Cr.P.C. a person acquitted or convicted of any offence may be subsequently charged with, and tried for, any other offence arising out of the same set of fact, if the court that first tried him was not competent to try the offence with which he is subsequently charged. Section 258 Cr.P.C.grants the judge the power to stop criminal proceedings at any time and discharge the accused. A person discharged by the Court pursuant to Section 258 of Cr.P.C. cannot be tried again for the same offence unless the Court that issued his discharge consents to the subsequent trial, provide under section 300(5) of the Cr.P.C.. This exception is in line with the rationale that safeguards an individual from state harassment. 13. Delivering reasoned Judgment and copy of the same to be made available:- A reasoned judgment given in public, increases confidence in the judiciary, is considered to be an essential part of the fair administration of justice and a vital parameter of democratic functioning. The right to a reasoned judgment is regarded as part of the elements of natural justice and as a crucial element that grounds an effective appeal. Any decision of the court has to serve justice. For a trial to be considered fair, a judgment must satisfy three elements: it must be public, it must be available to the accused and it must be reasoned. The judgment must be valid in terms of the Constitution and the statutes guiding it. The justification for the reasoning in the judgment must be based on the law and cannot appear to be attributed to personal opinions, prejudices or the socialization of the judge. Since the Mrs.Maneka Gandhi’s case made it explicit, it is well established that the constitutional guarantee that no person shall be deprived of life or personal liberty except according “to procedure established by law”. This implies that the procedure itself has to be fair and reasonable with all the 96 attributes that these words carry as discussed above. This requirement of fairness applies to judgments as much as to every other stage of trial or court proceedings. (i) Judgment Must Be Known- Section 353 & 354 of Cr.P.C. :- Under section 235(1) Cr.P.C., in cases of sessions trial, after hearing arguments and point of law (if any), the judge shall give a judgment in the case. Under Sections 248 Cr.P.C. in warrant cases and under 255 Cr.P.C. in summons cases, on conclusion of the trial, the magistrate shall record an order of either acquittal or conviction. Section 353 & 354 of Cr.P.C. together deal with the substantive and procedural requirements that a judge must ensure and follow. The requirements in relation to how a judgment is delivered, its language and content are not matters of form but are elements of fairness and must be fully met. Section 353 of Cr.P.C. mandates that the judgment must be delivered in an open court; be read out in court; or the operative part of the judgment read out and the substance of the judgment explained. Section 354(1) (b) of Cr.P.C. mandates that judgments must be reasoned. Every judgment must thus contain the points for determination, the decision and the reasons for such decision. (ii) Judgment Copy to be made available:- Section 363 of Cr.P.C. confirms the accused right to get a copy of the judgment. Where the accused is sentenced to imprisonment, the Court must immediately furnish a copy of judgment to him free of cost. On an application for a certified copy of the judgment and if necessary a translation, the Court must furnish the same without delay to the accused. In judgments conferring the death sentence, the court must immediately furnish the accused with a certified copy of the judgment regardless of whether the accused has requested it or not. In M.H.Hoskot Vs. State of Maharashtra reported in AIR 1978 SC 1548 the Hon’ble Apex Court held, “the accused cannot effectively exercise his right to appeal without a copy of his trial judgment in hand. Article 21 is violated if the Court fails to provide the accused with a copy of the judgment in time to file an appeal.” 97

14. Accused to be heard on Sentence:- Every conviction is followed by a sentence. The judge or the magistrate has to keep in his mind the provision of law under which the punishment is prescribed for the offence as also the maximum and minimum sentences permissible under law and between these two extremes he has to fix up somewhere the punishment, which is to be awarded to the accused in the case before him. (i) As per 235 (2) of Cr.P.C. in case of sessions trial, if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 325 Cr.P.C. or under section 360 of Cr.P.C., hear the accused on the question of sentence, and then pass sentence on him according to law. Similar provisions are appended to section 248(2) of Cr.P.C. in warrant cases and Section 255(2) Cr.P.C. in summons cases. In Santa Singh Vs. State of Punjab reported in (1976) 4 SCC 190 the Hon’ble Apex Court held that the provision u/s.235(2) Cr.P.C. is clear and explicit and does not admit of any doubt. It requires that in every trial before a court of sessions, there must first be a decision as to the guilt of the accused. The court must in the first instance, deliver a judgment convicting or acquitting the accused. If the accused is a acquitted, no further question arises. But if he is convicted, then the court has to “hear the accused on the question of sentence, and then pass sentence on him according to law.” When a judgment is rendered convicting the accused, he is, at that state, to be given an opportunity to be heard in regard to the sentence and it is only after hearing him that the court can proceed to pass the sentence.

It is further held this provision is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, care would have to be taken by the Court to see that this hearing on the question of sentence is not abused and turned into 98 an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonized with the requirement of expeditious disposal of proceedings. (ii) Benefit of Probation on Good Conduct:-The provisions under Probation of Offenders Act, 1958 and the Provision under section 360 of Code of Criminal Procedure, 1973 envisages that the Court may Order to release the accused on due admonition or on Probation of Good Conduct in certain cases, instead of sentencing them at once to any punishment. (iii) Benefit of Set Off :-Section 428 of Cr.P.C. envisages that the Period of detention during investigation, enquiry of trial of the case undergone by the accused before the date of such conviction, shall be set off against the term of imprisonment.

Conclusion:- The fair trial for a criminal offence consists not only in technical observance of the frame and forms of the law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. As the judge has complete control of a case as soon as it comes to court, it is his paramount duty to ensure that fair trial norms that have been assured by the Indian Constitution as well as intentionally agreed to are adhered to. Non-compliance with any single norm at any stage can subvert all further proceedings, taint the entire process and gravely impinge on the rights of all parties before the Court. Though the aforesaid rules governing fair trial emphasize the safeguards to the accused, the rights of the victims and protection of witnesses also got paramount importance as considered by the Hon’ble Apex Court in the judgments, Zahira Shikh Vs. State of Gujarat (2006) 3 SCC 374, National Human Rights Commission Vs. State of Gujarat, (2003) 9 Scale 329. A trial primarily aimed at ascertaining truth has to be fair to all concerned which includes the accused, the victims and society at large. Each person has a right to be deal with fairly in a criminal trial. The efforts should be to ensure fair 99 trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this the Trial Courts have a vital role to play. “The judgment is like a pair of scales, and evidence like the weights; but the uill holds the balances in its hands; and even a slight jerk will be sufficient in any case, to make the lighter side appear the heavier.”

- Whately.

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FROM TRIAL TO JUDGMENT By Sri K. Srinivasa Rao, I-Addl Junior Civil Judge, Nuzvid

INTRODUCTORY:-

Article 21 of the Indian Constitution states: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.

India has a highly developed criminal jurisprudence and prosecution system and it is well supported by judicial precedents for judicial trials and our penal laws are primarily governed by the Code of Criminal Procedure,1973, The

Indian Penal Code,1860 and Indian Evidence Act 1872. The basic purpose of the criminal justice system in India is to ensure fair trial without compromising the rights of the accused.

The word 'trial' is not defined anywhere in the Criminal Procedure

Code. A trial is judicial process always ends in either conviction or acquittal. .

In common parlance, trial begins after framing of charge. . "Fair trial" includes fair and proper opportunities allowed by law to prove the innocence by accused in criminal trial. Adducing evidence in support of the defence is a valuable right. Each person has a right to be dealt with fairly in a criminal trial.

Denial of a fair trial is as much injustice to the accused as it is to the victim and society.

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FROM TRIAL TO FINAL JUDGMENT

To say in short, a trial of a criminal case is a process by which a Court decides on the innocence or guilt of an accused. The total trial process is governed and underpinned by the principles laid down in the Constitution of India. The duty of a judicial officer is to ensure that witnesses are examined with great care and he has the duty to referee motions, weigh the facts and circumstances, draw logical conclusions and arrive at a reasoned decision about guilt or innocence .

DIFFERENT TYPES OF TRAILS

1. Trial before a Court of Session:Chapter XVIII of CrPC, sections 225 to 227

2. Trial of Warrant Cases:Sections 238 to 243 provides the procedure for trial of cases instituted on police report. Sections 244 to 247 deals with procedure to be followed for trial of cases instituted otherwise than on police report.

Sections 248 to 250 of the code are applicable to both the categories of cases.

3.Trial of Summons cases by Magistrates:

4.Summary Trial: Sections 260 to 265 and 363(3) of the Code deals with

Summary trial.

SETTLED PRINCIPLES IN CRIMINAL JUSTICE SYSTEM

1. An accused to be tried before a competent , independent and impartial tribunal/court with presumption that accused is innocent and every accused 102 should be provided the opportunity to be defended by a pleader and free legal aid to be provided in need (Articles 21 and 39A ) especially UT prisoner.

2. The burden of proof tests on the prosecution and prosecution must establish guilt beyond reasonable doubt.

3. High probability is not enough to convict – where there are several possible accounts, the account supporting the accused should be upheld.

4. Accused has a right to remain silent and Judicial Officer must ensure that the prosecution and the defence lawyer are being diligent, honest and learned in their efforts to arrive at the truth.

5. Under section 479 of Cr.P.C, a judicial officer may not try or commit to trial any case in which he has a personal interest or financial interest.

6. A significant legal maxim is that ‘’ Justice must not only be done, but be seen to be done.’’

7. If a criminal court is to be an effective instrument in dispensing justice, the presiding officer must cease to be a spectator and a mere recording machine and as per section 327 of the Code, trial judges to invariably hold the trial of rape cases in camera, rather than in open court.

8. As seen from section 309 of Cr.P.C, it is known that the Code safeguards the right to a speedy trial and accused should be furnished the copies of Police report and other documents in a criminal case. See. Section 207 of Cr.P.C. 103

9. Under section 273 of Cr.P.C, evidence to be taken in the presence of the accused. However, in a recent times, it is interpreted that while recording the evidence through video-linkage, physical presence of accused is not necessary.

10 . Under the provision of section 243 and 247 of the Code, accused has right to produce witnesses in his defence, and these provisions are applicable equally to cases instituted on a police report or private complaint. Sections

243 ad 246 of the Code afford the accused the right to cross-examine the prosecution witnesses.

11. The object of section 311 of the Code is to discover the truth and deliver a just decision.

12. Under section 279 of the Code, whenever any evidence is given in a language not understood by the accused, and he is present in court in person, it shall be interpreted to him in open court in a language understood by him.

13. The principle of double jeopardy is a safeguard provided under Article 20

(2) of the Constitution which prohibits prosecution or punishing a person for the same offence more than once. Section 300 of the Code puts forward three exceptions to the double jeopardy prohibition .

14. (a) Section 353 of the Code mandates that judgment must be delivered in an open court; be read out in court; or the operative part of the judgment read out and the substance of the judgment explained and judgments must be 104 reasoned basing on legal evidence, substantive by law and logic without having to resort to speculations or inferences ( section 354(1).

(b) When accused is sentenced to imprisonment, free of copy of judgment shall be furnished to him. The Hon'ble Apex Court observed that crime and punishment are two sides of same coin. Punishment must fit to the crime. The notion of “Just Deserts” or a sentence proportionate to the offender's culpability was the principle which became applicable to criminal jurisprudence and Imposition of sentence must commensurate with gravity of offence.”

15. Sections 357, 357A of the Code and Section 5 of Probation of Offenders

Act,1958 empowers the court to provide compensation to the victims of crime.

The courts should exercise these powers liberally and award adequate compensation to the victim, particularly when the accused is released on admonition , probation or when the parties enter into a compromise.

Conclusion:-

Indian law is in consonance with the prevailing international legal standards on the right to be tried by a competent and independent and impartial court.

All persons must be equal before the court. Every one shall be entitled to a fair trial by an impartial court established by law. A salient requirement of fair trial is one without undue delay. The right to a speedy trial flowing from Article 21 of the Constitution encompasses all the stages such as investigation, inquiry, trial, appeal, revision and re-trial.