Fair Trial in Criminal Proceedings in India

By Dr. K. L. Bhatia.*

The principles of Rule of Law and Equality are imperative to have a ''fair trial" in criminal proceedings in India, because, "when there is a goose on the trial side there ought not be a fox on the jury." Fair trial in criminal proceedings seems to be a highly intellectual, comprehensive system of thought conveying that the affected person need not carry the impression that he ought to be satisfied with an unjust trial and a fair appeal.(1) Thus, fairness of justice in theory as well as practice is the core of fair trial in criminal justice process inasmuch as that "it is the nature and the gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong . . . . and it should respond to the society's cry for justice against the criminal."1a

I. Fair Trial and Pre-Constitutional Position

The canons of fair trial in criminal proceedings, theoretically as well as functionally, were adequately well recognised as virtues of immutable (Sanatana Dharama) ancient Indian legal system(2) --- pre-Muslim Sultan rule and pre-British rule. Fairness was equally followed in theory and practise. Succinctly, it covered all the aspects of a fair trial known to modern jurisprudence inasmuch as it conveyed that parties to a case were required to adduce evidence. The fact to be established in a case was Sadhya and the means by which the fact was sought to be proved was called Pramana (evidence), and rules governing and regulating trials were specifically laid down. It was a system of open and fair trial. The judges were to be impartial in the administration of justice. A great emphasis was laid on the manner in which the trial was to be conducted which a multo fortiori meant to ensure a fair trial as well as faith and confidence of the public and the litigants in the judicial system; judges were to be desisting from greed and anger, and adhering strictly to the Dharamashastra; judges were never to try cases or hear the parties alone; judges were not to conduct the trial in secret. The ancient Indian legal literature presents five causes which amply a propria vigore give rise to the charge of partiality against a judge, viz., (i) Raga (affection in favour of party), ( ii ) Lobha (greed), (iii) Bhaya (fear), (iv) Dvesha (ill-will against a party) and (v) Vadinoscha rahashrutihi (the judge meeting and hearing a party to a case secretly). Besides, there were well recognised provisions pertaining to fair trial, viz., trial to begin with the party immediately furnishing to the court in writing the evidence (that is list of witnesses and documents) by means of which the party proposed to prove the alleged facts (burden of proof); parties were themselves to produce witnesses, and witnesses who were far removed either by time or by place or who refused to stir out, were made to be present by the order of the judge (summons to witnesses); witnesses who failed to appear before the court to give evidence, without being unwell , or who gave false evidence , were liable for punishment (penalty for failure to give evidence); subsistence allowance to witnesses; witnesses were to be examined in open court; witnesses were to be put under oath; the judges were to impress upon the witnesses the greatness of telling the truth, and the offence they would be committing by giving false evidence (exhortation to the witness); judgments were given in accordance with the statements of a majority of pure and responsible witnesses (appreciation of evidence); offer of bribe, effacing the means of recognition, holding out temptation to the witnesses or judge, or supporting the expression of one's thoughts were sufficient grounds for penalty for attempt to influence judges and their independence.

The above delineation of ancient immutable Indian legal system speaks un-equivocally a volume about the fair trial of the milieu expressed in the modern jurisprudence that "justice should not only be done but it manifestly and undoubtedly seems to have been done."(3) It is not a question of losing or winning a case; it is a question of justice, free, fair and fearless trial(4) of the parties which the parties to a case have a sensitive nerve to feel the pulse of justice inasmuch as that "justice is rooted in confidence, and confidence is destroyed when right-minded people go away thinking 'the Judge was biased.'"(5)

However, courts were ajar to free, fearless and fair trial during alien rule particularly in those cases where there was strong opposition to alien rule in as much as that no charge, no hearing, no right of habeas corpus, no judge, no jury was Muslim Raj's and British Raj's covin method of dealing with those suspected of nationalist involvement.

II. Fair Trial and the Post-Constitutiona Positionl

"Equality, Justice and Liberty" is the trinity of fair trial recognised 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,(6) and enjoined in the Constitution of India(7) as well as the criminal laws devising the criminal justice system of India.(8) 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 Law Commission of India in this perspective has observed:

Equality is the basis of all modern systems of jurisprudence and administration of justice . . . in so far as a person is unable to obtain access to court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal and laws which are meant for his protection have no meaning and to that extent fail in their purpose.(9)

The undermentioned basic considerations form the basis of criminal justice jurisprudence concerning fair trial:

(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;

(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to the society; and

(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.(10)

An overview of these basic considerations unfold the vicissitudes of criminal laws concerning a fair trial in criminal proceedings in as much as that the substantial criminal laws (Indian Penal Code, 1860 and other Special Criminal Laws) lay down the basic rudiments or ingredients of an offence, and the procedural laws (Criminal Procedure Code, 1973, Indian Evidence Act, 1872 and some special criminal laws) lay down the procedure as well as the mechanism of adducing evidence for the holding of the fair trial so that the fair trial seems undoubtedly and manifestly to be transmitted. So, the Code of Criminal Procedure, 1973 lays down the procedure for the trial of all criminal cases under the Indian Penal Code except any special form of procedure prescribed by any other law for the time being in force. For example, the Official Secrets Act, 1923 prescribes the special procedure for holding trial in camera; the Customs Act, 1962 confers special powers on the customs officer to confiscate goods prescribing a special form of procedure therefore,(11) and the power of a High Court or the Supreme Court of India being the Courts of Record(12) has special inherent jurisdiction to institute proceedings for contempt and punish where necessary and the Code of Criminal Procedure excludes special jurisdiction from its scope, and as such higher courts can deal with matters of contempt summarily and adopt its own procedure.

Manifestations of Criminal trial include pre-trial stage (inquiry and investigation,(13) role of the police to apprehend the offender in bailable, non-bailable, cognizable and non-cognizable offences,(14) first information report to the police and their power to investigate,(15) search and seizure,(16) etc.), trial stage (jurisdiction of the criminal courts in inquiries and trials,(17) framing of charges,(18) trial before the court of sessions,(19) trial of warrant cases by the Magistrates in cases instituted on police report and cases instituted other than on police report,(20) trial of summons cases by Magistrates,(21) summary trials,(22) mode of taking and recording evidence and commissions for the examination of witnesses,(23) Legal aid,(24) the judgement,(25) submission of death sentence for the confirmation by the High Court,(26) trial by a High Court),(27) post-trial stage (Appeal, Review, etc.(28)).

A. Classes of Criminal Courts

Supreme Court of India

High Courts (States)

Subordinate Courts


Judicial Magistrates Executive Magistrates

(Under the control of State Government)






Public Prosecutor Assistant Public Prosecutor

Besides the Supreme Court of India and the State High Courts exercising appellate or otherwise criminal jurisdiction amongst other matters as assigned to them under the Constitution of India and the criminal laws, this chart only gives the description of classes of criminal courts as spelled out in the Code of Criminal Procedure, 1973.(29) In addition there may be established special criminal courts to deal with criminal cases stipulated in those special criminal laws, e.g. TADA courts established under the Terrorist and Disruptive Activities (Prevention) Act, 1987. Classification of criminal courts stated in the chart tells about the criminal courts by which offences are triable; the sentences which these courts can pass including passing of sentence in case of conviction of several offences at one trial; jurisdiction in the case of juveniles; and, the powers of Judges and Magistrates. The classification of courts demonstrates that there is a unification of judiciary in India with the Supreme Court as the Apex Court followed by the High Court(s) and a chain of subordinate criminal courts, viz., Court of Sessions, Chief Judicial Magistrate, Additional Chief Judicial Magistrate, Sub-divisional Judicial Magistrate, Judicial Magistrate and Judicial Magistrate for Metropolitan areas. The division of Magistrates in two categories, viz., Judicial Magistrates and Executive Magistrates, intends to bring about the separation of Judiciary from the Executive--independence of judiciary. The functions which are essentially judicial are the concern of the Judicial Magistrates, while functions which are police or administrative in nature are the concern of the Executive Magistrates. Prosecution of criminal cases in subordinate courts and appeals or other proceedings in High Courts shall be conducted by the Public Prosecutors, Additional Public Prosecutors, as the nature of the case may be, who shall be appointed by the Central (Federal) Government or the State Government in consultation with the High Court as the case may be. However, the District Magistrate in consultation with the Sessions Judge prepares a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutor or Additional Public Prosecutor for the District unless his name appears in the panel of names prepared by the District Magistrate. To be eligible to be appointed as a Public Prosecutor or Additional Public Prosecutor, a person must have been in practice at the Bar as an advocate for not less than seven years. The classes of public prosecutors are:

1. Public prosecutors and special public prosecutors appointed by the Central Government;

2. Public prosecutors, Additional public prosecutors and special public prosecutors appointed by the State Government; and

3. Panel of names for public prosecutors to be prepared by the District Magistrate in consultation with the Sessions Judge.

The process of a fair and impartial trial does not only depend on the impartiality of the court, but it also unequivocally depends on the integrity of the person in charge of the prosecution, viz., the public prosecutor, who is not a protagonist of any party. He stands for the State in whose name all prosecutions are conducted as all offences affect the public as well as the individual injured, and as such in all prosecutions the State is the prosecutor. The State either proceeds itself, or lends the sanction of its name. The offence is dealt with as an invasion of the public peace, and not a mere contention between the complainant and the accused. The purpose of a criminal trial is not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of a Public Prosecutor is to represent not the police, but the state and his duty should be discharged by him fairly and fearlessly, and with a full sense of the responsibility that attaches to his position. The counsel for the prosecution a multo fortiori should not by statement aggravate the case against the prisoners or keep back a witness because his evidence may weaken the case of the prosecution; his only objective is to aid the court in discovering truth, and, therefore, must avoid any proceeding likely to intimidate or unduly influence a witness on either side; there must not be on his part unseemly eagerness for, or grasping at, conviction; the ideal Public Prosecutor is not concerned with securing convictions, or with satisfying departments of the State Government with which he has to be in contact, rather he must consider himself as an agent of justice.(30)

B. Fair Trial: Constitutional and Legal Provisions

Articles 20 and 22 of the Constitution of India provide certain safeguards to the persons accused of crimes. Article 20 secures the protection of the accused persons, in respect of conviction for offences, from

(i) ex post facto laws,

(ii) double jeopardy, and

(iii) prohibition against self incrimination.

It has been a multo fortiori expressed by the Supreme Court of India that "there can be no doubt as to the paramount importance of the principle that such ex post facto laws which retrospectively create offences and punish them are bad being highly inequitable and unjust."(31) Protection from double jeopardy is secured on the ground of nemo debet bis vexari (a man should not be brought into danger for one and the same offence more than once), and, if perchance charged again for the same offence, he can take the plea of autrefois acquit or autrefois convict (former acquittal or former conviction). This principle has been recognised in the existing criminal law delineating the process of criminal trials, etc.(32) The Supreme Court of India has stated the philosophy of the protection from double jeopardy in these words:

The Constitutional right guaranteed by Art. 20(2) against double jeopardy can be successfully invoked only where the prior proceedings on which reliance is placed are of a criminal nature instituted before a court of law or a tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.(33)

The prohibition against self-incrimination consists of three components, viz.,

(1) it is a right protecting a person accused of an offence;

(2) it is a protection against compulsion to be a witness; and

(3) it is a protection against compulsion resulting in his giving evidence against himself.

Thus, mutatis mutandi, it also includes the right to remain silent, and his silence obviously cannot be used against him. "Compulsion resulting in his giving evidence against himself" conveys that the accused is compelled or forced including by threat, beating, or threat of being killed or suffering from grievous bodily harm or being unlawfully imprisoned or imprisoning of the wife, parent or child of a person, to make the statement having a material bearing on the criminality of the maker.(34)

However, the information furnished by an accused person after his arrest to the investigating officer which leads to the discovery of articles under Section 27 of the Evidence Act is admissible in evidence and does not in any way offend the Constitutional guarantee of prohibition against self-incrimination, because an accused person cannot be said to have been compelled or forced to be a witness against himself simply because he made a statement while in police custody, without anything more.(35) Nevertheless, search of the premises occupied by the accused does not amount to compulsion on him to give evidence against himself and, therefore, such an action is not violative of the prohibition against self-incrimination.(36)

Article 21 of the Constitution of India ensures protection of life and personal liberty. It reads: "No person shall be deprived of his right to life and personal liberty except according to procedure established by law." The protection to life, limb and personal liberty is inasmuch as of the accused/offender/convict is under trial as that of an ordinary person.(37) A person's life, limb and liberty may be affected in cases of preventive detention under the preventive detention laws.(38) As such, Constitutional protection against arrest and detention is ensured under Article 22 of the Constitution of India. The rights of an arrested person under this Constitutional guarantee are:

(1) he shall not be detained in custody without being informed, as soon as possible, of the grounds of his arrest/detention,viz.,the arrested person has to be told the reasons of his arrest;(39)

(2) he shall have the right to consult and to be represented by a lawyer of his choice;(40)

(3) every person who has been arrested has the right to be produced before the nearest Magistrate within 24 hours of his arrest excluding the time spent in journey from the place of his arrest to the court of the Magistrate;(41)

(4) he is not to be detained in custody beyond the said period of 24 hours without the authority of the court.(42)

However, these four safeguards would not be available to enemy aliens, and to persons arrested or detained under any law providing for preventive detention . Be that as it may, the imperatives of preventive detention laws have been explained by the Supreme Court thus:

This sinister-looking feature, so strangely out of place in a democratic Constitution, which invests personal liberty with the sacrosanctity of a Fundamental Right, and so incompatible with the promises of its preamble, is doubtless designed to prevent the abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant republic.(43)

Though the necessity of preventive detention laws has been recognised Constitutionally, nevertheless, the Constitution Article 22(2) to (7) also provides the undermentioned safeguards to the detenee:

(i) Review by Advisory Board

In order to provide safeguards against arbitrary detention, Article 22(4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than 3 months unless an Advisory Board constituted of the persons who are, or have been, or are qualified to be High Court Judges has reported before the expiration of the said period of 3 months that there is, in its opinion, sufficient cause for such detention. It may proprio vigore be stated that the Advisory Board is not a Judicial body nor is it to follow stricto senso judicial procedure; it is in fact in the nature of a body charged with the responsibilty of advising the executive government in regard to cases of preventive detention where it is intended that such detention shall last for more than 3 months.

(ii) Grounds of detention and representation

Art. 22(5) gives two fundamental rights to a detenee. First he has the right to be communicated the grounds on which the order of detention has been made against him and that is to be done "as soon as possible." Communication or imparting of the grounds of detention to the detenee conveys that sufficient knowledge of all the grounds of detention which are in the nature of charges against him, should be afforded the earliest oppurtunity of making a representation against the order.(44) The right would be illusory or a mere teasing illusion if the detenee does not get the grounds of his arrest\detention sufficient to make represention.(45) The information as to the grounds of detention must be reasonably definite grounds and not vague or irrelevant grounds.(46) If the detention is proved to be malafide the detenee will be entitled to release.(47)

(iii)Procedure of Advisory Board

Art. 22(7) empowers the Parliament to prescribe the procedure to be followed by the Advisory Board in an enquiry. The procedure prescribed in Parliamentary legislation will override the procedure established by a State law. The procedure must not be hazardous and unjust but it must be just,fair and reasonable.

C. Hearing and Public Trial

An offence under the Indian Penal Code and under any other penal law may be tried by the High Court, or the court of sessions,or any other court by which such offence is to be triable.(48)

According to section 327 of Cr.P.C,1973 the place in which a criminal trial shall be held shall be deemed to be an "open court" to which the public may have access subject to the orders of the trial Magistrate in a particular case that the public or a particular person shall not have access thereto. The law empowers the Magistrate to exclude the public generally or any particular person from the court room. The court has to exercise its discretion in proceedings in such method as ought to be conducted in private. The court also has the power to conduct the proceedings in camera such as enquiry into and trial of a rape case or an offence under sections 376, 376A, 376B, 376C, 376D of the Indian Penal Code, and the power of the court to hold such trials in camera is inevitably associated with the administration of justice.(49)

There is no provision of law which permits the filming by way of television, etc. of the proceedings of the trial or appeal. However, reporting the proceedings through press media or other means of media is not prohibited provided nothing appears to be contemptuous.

D. Right to Habeas Corpus

The right to seek a Constitutional remedy by way of Habeas Corpus is a right guaranteed to a detenee who has been detained or arrested/confined illegally or without any justification.(50) It is a non-derogable right inasmuch as that it shall not be suspended unless otherwise provided. The courts, therefore, shall have to play the role of a "sentinel on the Qui Vive"(51) (guard on the alert), and as such it must always be regarded as the solemn duty of the courts to protect it "zealously and vigilantly."(52) It can, therefore, a fortiorari be appropriately described "as the corner stone of the democratic edifice raised by the Constitution. That is why it is natural for the Supreme Court to regard itself as the protector and guarantor of fundamental rights and why it cannot, consistent with the responsibility laid upon it, refuse to entertain applications seeking protection against infringement of such rights.(53) Its characteristic features as recognised judicially are:

(i) It is a process by which a person who is confined without legal justification may secure a release from his confinement.

(ii) The writ is, in form, an order issued by the High Court calling upon the person by whom a prisoner is alleged to be kept in confinement to bring such person before, to let the court know on what grounds the prisoner is confined. If there is no legal justification for the detention, the party is ordered to be released. The "production of the body of the person alleged to be wrongfully detained is ancillary to the main purpose of the writ in securing the liberty of the subject illegally detained. The most characteristic element of the writ is its peremptoriness, that is, a speedy and effective remedy for having the legality of detention of the person, enquired and determined by the court."(54)

(iii) An application for Habeas Corpus can be made by any person on behalf of the detainee or the detainee himself.

(iv) Every application for the writ of Habeas Corpus has to be accompanied by an affidavit stating the nature and circumstances of the restraint.

(v) On an application for the writ the usual procedure is that if the court considers that a prima-facie case for granting the prayer has been made out, it issues a rule nisi (a rule which will become imperative and final unless cause be shown against it). This rule commands the party to show cause why he should not be compelled to do the act required, or why the object of the rule should not be enforced, calling upon the opposite party to show cause why an order granting the writ should not be made. If it is disclosed that the detention is unjustified, it makes the rule nisi absolute and orders for the immediate release of the detained person; if the detention is justified, the rule nisi shall be discharged.

(vi) A detention is not prima facie illegal if the detention should be in accordance with the procedure established by law ;if it does not infringe any of the conditions laid down in Article 22 mentioned above, the legislature must have legislative power under Art. 246 of the Constitution of India depriving a person of his life, limb and personal liberty.

(vii) A person is not entitled to be released on a petition of Habeas Corpus if there is no illegal restraint.

(viii) A writ of Habeas Corpus will lie if the mala fides of the detaining authority are established.

(ix) No Habeas Corpus shall lie in regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial on the ground of the erroneousness of the conviction.(55)

(x) A person has no right to present successive applications for Habeus Corpus to different judges of the same court.(56)

(xi) An appeal can be preferred to the Supreme Court under Articles 132, 133, 134 or 136 against an order granting or rejecting the application for the issue of the writ.

(xii) It is an effective means of immediate release from unlawful detetion, whether in prison or private custody; physical confinement is not necessary to constitute detention; control and custody are sufficient.

(xiii) Presidential order under Art.359 does not debar the consideration of the preliminary question as to whether or not the detention in a particular case relates to the preventive detention law or the rules made thereunder.(57)

(xiv) If an application is made to the High Court for the issue of the writ of Habeas Corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no justification to entertain the application because the detention is by an order of the House.(58)

In case a National emergency is caused by war or imminent danger of war or threat of war or external aggression or an imminent danger of external aggression or threat of external aggression or armed rebellion or imminent danger of armed rebellion or threat of armed rebellion,(59) the President of India has been empowered to suspend the enforcement of any of the fundamental rights (except Articles 20 & 21) as may be mentioned in the Presidential order and such order shall be operative until it is revoked.(60) It may be discerned from the experiences of the National emergencies of 1962, 1965, 1971 and1975 that the Constitutional guarantee to a Constitutional remedy under Art .32, already discussed above, has never been suspended. However, there is only one singular case in the judicial history of India, viz., A. D. M. Jabalpur v. Shivkant Shukla, during the emergency of 1975-77 when the judiciary appeared to have become dormant, and the Apex Court refused to issue the writ of Habeas Corpus concerning the detention of political offenders. The case,however,has been conceded to be black lung law,(61) as the court refused to answer the casus belli (act or situation justifying or precipitating) of the emergency as well as detention of political detainees.

E. Right to Free Legal Aid

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."(62) 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. Sufficient time and complete papers should also be made available, so that the advocate chosen may serve the cause of justice."(63) It should not be conceded as a charity of access to justice. The directions contained in this social policy have been achieved by translating it into a general law, namely, Legal Services Act , 1987, and, the schemes incorporated in Committee for Implementing Legal Aid Schemes (CILAS), CILAS provides the mechanism for the implementation of legal aid schemes by creating Central Legal Aid Board, State Legal Aid Boards, and District Legal Aid Boards. CILAS functions under the Chairmanship of a Judge of the Supreme Court of India. Budgetary allocations are provided by the Centre and the States for the vigorous implementation of legal aid programmes. So far as the criminal proceedings are concerned, Section 304 of the CrPc, 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. It may be interesting to note that the obligation to provide legal aid to the indigent accused does not arise only when the trial commences but arises as soon as the accused is produced before the nearest magistrate as required by Section 57 of the Cr.P.C., 1973 and Art. 22 of the Constitution of India.(64) However, the accused cannot obtain a Writ of Mandamus for enforcing this obligation; he must apply for it under Section 304 of the Cr.P.C.(65) Nevertheless, conviction of an accused given in a trial in which the accused was not provided legal aid would be set aside as being in violation of Article 21 of the Constitution of India,(66) viz., denial of the right to legal aid amounts to denial of equal justice and access to justice and obviously denial of the right to life and personal liberty provided in Article 21 of the Constitution (that is reading Art. 39A in Art. 21).

F. Judicial Activism and Fair Trial vis-a-vis the Criminal Justice System

This is the most important and fascinating area in regard to fair, just and reasonable trials in criminal proceedings. The activist role of the judiciary has not only expanded the horizons of the criminal justice system but also infused a new leaf of life as well as confidence in the judicial system. The story of judicial activism in this perspective has an interseting as well as fascinating narration of instances which may be stirring. The matters pertaining to undertrials languishing in jails for a period more than the period of conviction had such undertrials been tried and convicted; and, their maltreatment such as blinding, were brought to the knowledge of the Supreme Court of India by public-spirited individuals, journalists or social action groups through letters or pro bono publico for the redress of grievances of the prisoners/undertrials languishing in jails without being charged under the criminal law. Herein, the judiciary considered these matters conceding as its "epistolary jurisdiction," relaxing or rather expanding "locus standi" to pro bono publico through PIL/SAL/PAL giving popularity to actio popularis to providing equal access to justice to have-nots, economically weaker, underprivileged, deprived, destitute, etc.

So, prisoners and undertrials if not put to trial in a criminal proceeding and not informed of any charge against them would mean that the fiat of right to life,limb and liberty has been violated and the procedure followed in detaining such undertrials would be unjust,unfair and unreasonable. "A just, fair and reasonable procedure implies right to a speedy trial, free legal services where the accused cannot avail them and humane conditions of detention,preventive or punitive."(67) Similarly, a letter written by a woman journalist to a Supreme Court Judge containing allegations of torture and ill-treatment in police lock-ups to women suspects was treated as a writ petition and consequently the appropriate directions were issued by the Supreme Court to the State Government:

Female suspects should not be kept in the same police lock-ups in which male accused are detained. For this four or five police lock-ups should be set up in reasonably good localities exclusively for female suspects and those lock-ups should be guarded by female constables. Interrogation of females should be carried out only in the presence of female police officers. As soon as a person is arrested, he must be apprised of his right to apply for bail and where the arrest is without warrants, grounds of his arrest must immediately be made known to him the Magistrate before whom an arrested person is produced shall enquire from him whether he has any complaint of torture or maltreatment in police custody and inform him that he has a right under Section 54 of Cr.P.C., to be medically examined.(68)

It is also within the domain of law that citizens are entitled to conduct such interviews of the prisoners in order to ensure availability of right to life, limb and personal liberty (Art. 21) to the prisoners; special permission should be obtained for the tape recording staements of the prisoners; interviews ,of course, should be subject to reasonable restriction and reasonableness of restrictions is open to judicial review.(69)

When a person is remanded by a competent court, that person comes within the judicial custody of the court and taking of that person from a prison to the court or back by the (police) escort party is only under the judicial orders of the court; and even if extreme circumstances necessitate the (police) escort party to bind the prisoners in fetters (handcuffed), the (police) escort party should record the reasons for doing so in writing and intimate this to the court so that in considering the circumstances the court can either approve or disapprove the action of the (police) escort party and issue necessary directions.(70)

The blinding of undertrials /prisoners languishing in jails for several years amounts to a flagrant violation of fundamental rights in Articles 19 & 21.(71)

Detaining a person for three years without trial, though several serious cases are alleged to a pending against him but there is no charge-sheet, amounts to a casual and cavalier manner of State action where liberty of person is involved.(72)

Issuance of a writ of mandamus against inaction of the authority is called for when release of a prisoner is delayed for apparently not very sound reason.(73)

Where undertrials languished in jails for about 30 years or so without chargesheets and put on trial, authorities were warned against misuse of Section 144 of Cr.P.C., 1973 (viz., accused charged with offences involving sentence of imprisonement for 7 years or so, and others against whom trial had already started, or no proceedings were taken within 3 years or no chargesheet was submitted, nor investigation completed within 3 years).(74)

The right to speedy investigation and trial, inordinate delay in execution of death sentence, delay in investigation and trial,compensation to undertrials, etc. are within the concept of fairness of trial in Art.21 and these objectives have been achieved by the process of judicial activism.(75) While a speedy trial is an implied ingredient of a fair trial guaranteed under Art. 21, the converse is not necessarily true. Whether a conviction should be quashed on the ground of delayed trial depends upon the facts and circumstances of the case . Unless the circumstances raise a presumption as to prejudice and denial of oppurtunity to defend the accused, a delayed trial would not amount to an unfair trial violative of Art. 21 where the offence is of a serious nature such as affecting the country's economy, and the court would not sympathise with the accused merely on the ground of delayed trial.(76)

However, the liberalisation of standing would be permissible in cases where conviction and sentence of a regular criminal court is challenged.(77)

G. Independence and Impartiality of Judiciary

The independence of judiciary is a basic and essential feature of the Constitution. It is an integral part of our Constitutional system and without it the Rule of Law would become a testing illusion and a promise of unreality.(78) The Constitution of India while recognising independence and impartiality of judiciary exerts that "the State shall take steps to separate the judiciary from the executive in the public services of the state."(79) Broadly stated this provision unequivocally provides that there shall be a separate judicial service free from executive control.(80)

As already stated above, there is a complete separation of Judicial Magistrate and Executive Magistrate with distinct powers enjoined on them. The international standards of independence as well as impartiality of judiciary indeed are the bases of Indian Judicial System inasmuch as that trial in ordinary cases and trial of assassins of VVIPs get equal treatement without fear, favour or prejudices.(81) This judicial process inevitably spells out the judicial role which is not jus dicere; judges are not passionless instruments that weigh on inanimate and impartial scales of legal judgement, the evidence and the arguments presented on each side of the case.(82) However, in this process, judicial discipline is as necessary to the orderly administration of justice as it is to the effectiveness of the army; judicial discipline may be called judicial respect by the judiciary to the independence of judiciary, to the brethern judges, to those who come before the court (advocates as well as the clients) as well as to other coordinate branches of the State, the executive and the legislature.(83)

The standards of independence and impartiality of judiciary are concerned not only with the role and conduct of the trial judge but with the roles and conduct of all participants at the trial since the heart of the criminal process is the trial. Although the trial courts or subordinate courts in dense centres of population are plagued with ever-mounting case loads, inadequate as well as deteriorating physical facilities and insufficient personnel, no courts seem to compare in importance with them from the standpoint of inculcating confidence in the judicial system for Indian citizens. The trial is based essentially on an adversary system of procedure which heavily suffers from the virus of technicalities, obscurities, and interstices, and this is owing to the legacy of the English common law system from whence it came. Be that as it may, the interest of society in the impartial administration of criminal justice presupposes the dignified, orderly and effective conduct of the trial vis-a-vis the behaviour expected of the judge and all other participants in this process. The interlock between the social interest and the obligation to do exact justice according to law, the judge is expected to be a neutral factor in the interplay of adversary forces. Though the judge is an impartial arbiter, according to Indian criminal law, and there is, of course, a contest between the parties, the criminal trial is not thereby reduced to a test of strength between the prosecutor and the accused. It may be interesting to note that the interest of the prosecution is not that it shall win the case, but that it shall bring forth the true facts surrounding the commission of the crime so that justice shall be done; the role of defense counsel is not only to prevent conviction of the innocent, but to represent his client diligently and skillfully, wether he is innocent or guilty, using all legitimate forensic means to obtain an acquittal. As the central figure at the trial mantled with neutrality, it is the judge's responsibility to direct and guide the course of the trial in such manner as to give fair opportunity in the opposing actions of the parties to reach not only an impartial result but to reach just ends by just means on the issue of guilt. This judicial role of the trial judge, nevertheless, is imperative in order that independent courts be maintained for the rational enforcement of rights of free man . Thus, trial judge's (impartial, independent, free, fair) performance as well as respect for the law by his judicial conduct, behaviour and utterances in the court room to a great degree moulds the public's impression of justice, and influences the measure of public respect accorded both the judiciary and the law. Impartiality in judicial conduct is, of course, the desideratum. Judges remain circumscribed by limitation of human nature--likes dislikes and prejudices--after they put on their judicial robes. Judge Cardozo's deeper insights "in the long run there is no guarantee of justice except the personality of the judge," and Addison's words that "to the utmost of our abilities, is the glory of a man," can alone bring glory to the court room .

H. Juvenile Justice System

The Juvenile Justice Act, 1986 while replacing the Children Act, ,1960 aims at bringing uniformity as well as monitoring to the juvenile justice system. This piece of legislation is an innovative step in this perspective inasmuch as that it provides for the care, protection, treatment, development and rehabiliation of neglected or delinquent juveniles, and also lays down the mechanism for adjudicating certain matters relating to delinquent juveniles; it does away with the preceding "system-defect"contained in the Children Act, 1960 (Federal as well as States). The repealed children laws were defective in the sense that they provided variations in age groups, amongst others, for children and as such could not improve the juvenile justice system. The law under discussion, therefore, endeavours to remove the "system-defects" by exerting that "juvenile means a boy who has not attained the age of eighteen years;" the words "treatment, development and rehabiliation of juveniles," "juvenile homes," "Juvenile Courts," "Special Homes," and "Observation Homes" seem to emphasise treatment of juvenile delinquents as well as monitoring the juvenile justice system vide Article 21 of the Constitution of India which is the soul of the fundamental rights as "no person shall be deprived of his right to life and personal liberty."(84) Hence, lodging delinquent children in regular jails alongwith adult criminals as well as charging or trying juveniles for any offence together with a person who is not a juvenile would be defaulting the juvenile justice system.(85) Besides, Sections 27, 360-361 of the Code of Criminal Procedure, 1973 read with Sections 4-63 of Juvenile Justice Act, 1986 as well as Borstal Schools Acts prescribe modes and manners of trial of juvenile offence(s) cases as well as after-care programmes. The provisions contained in both the laws relate to the establishment, Constitution, functions, powers, duties and procedure to be followed by Juvenile Welfare Boards, Juvenile Courts, Juvenile Homes, Special Homes, Observation Homes, Probation Officers, and After-care Organisations concerning the juvenile delinquents, neglected juveniles, uncontrollable juveniles, etc.

I. Death Penalty

The Indian Criminal Justice System provides both deterrent and reformative punishments.(86) A sentence of death can only be awarded in the "rarest of rare" cases.(87) It may thus seem that the normal sentence for murder or culpable homicide amounting to murder is no longer a sentence of death but imprisonment for life. In choosing between the sentence of death and life imprisonment, the court must show the high degree of concern and sensitivity, that is only for special reasons to be recorded in the judgement, can a sentence of death be awarded and this is 'in rarest of the rare cases.'(88) It is conceded that the death penalty is barbaric, cruel, inhuman and opposed to civilized social norms and values,(89) and it is disproportionately excessive and therefore violative of principles of equality,(90) freedom(91) and right to life and personal liberty.(92) The Supreme Court of India has unequivocally handed down some questions to be asked and answered when awarding a sentence of death, viz.;

(a) is there something uncommon about the crime which rendered a sentence of imprisonment for life inadequate and gave cause for the death sentence;

(b) are the circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weight to the mitigating circumstances which speak in favour of the offender?(93)

The legal approach in India thus seems to be more reformative than deterrent punishment. In recent times there have been consistent endeavours to provide orientation programmes to the convicts in the jails thus enabling them to rehabilitate or resocialise themselves after completing the conviction period.

J. Right to Seek Amnesty, Clemency, Pardon, Commutation

Article 72 of the Constitution of India creates mercy jurisdiction of the Executive Head, that is the President of India, to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence or punishment is by a Court Martial, or where the sentence is a sentence of death. Similar powers are conferred on the Governor of a State which extend to matters with respect to which the Legislature of the State has powers to make laws.(94) It may be mutatis mutandi clear that the President of India alone has the Executive powers to grant pardons, reprieves, and respites in all cases where the sentence is a sentence of death and both the President and the Governor have concurrent powers in respect of suspensions, remission and commutation of the sentence of death. It may be made clear that powers conferred on the Executive Heads are not judicial in nature but they are to be exercised in the exercise of executive functions. A pardon is an act of grace and it cannot be demanded as a matter of right.

The effect of a pradon is to clear the convict of infamy. It is a power of executive character and the convict has no right to insist on an oral hearing before the President.(95) However, the scope of pardoning power is judicially determinable when the Executive Head rejects the mercy petition on the ground that he could not go into the merits of the conviction granted by the courts.(96) Chief Justice, R. S. Pathak stated, "We are of opinion that the President is entitled to go in to the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this court."(97) It may thus seem that the President of India has to give reasons if he refuses to entertain a pardon petition otherwise such action of Executive Head would be subject to judicial review.

K. Bail

Provisions as regard bail are contained in Sections 436-450 of Cr.P.C., 1973. The bail provisions aim at securing the release of a person who has been put behind bars as an undertrial or charged with some bailable and non-bailable offences. The purpose is that a person need not be kept in the police lock-ups without being charged with any offence under the Criminal law. There are no hard and fast rules regarding grant or refusal of bail. Each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the courts. Where the offence is of a serious nature the court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of the offence, the character of evidence, circumstances that are peculiar to the accused, reasonable possibility of presence of the accused not being secured at the trial, the reasonable apprehension of a witness being tampered with, the larger interest of the public or such similar other considerations.(98) In the bailable cases, the grant of bail is a matter of course. It may be given either by the police officer in-charge of the police station having the accused in his custody or by the court. The release may be ordered on the accused executing a bond and even without surety. In non-bailable cases, the accused may be released on bail either by the court or a police officer, but no bail can be granted where the accused appears on reasonable grounds to be guilty of an offence punishable either with death or with imprisonment for life. This rule does not apply to a person under 16 years of age, a woman, or a sick or infirm person. No doubt, liberty of a person must be zealously safeguarded by the court, nonetheless, when a person is accused of a serious offence like murder, and his successive bail applications are rejected on merit there being prima-facie material, the prosecution is entitled to place correct facts before the court; liberty of the accused on bail should not be construed as the sole concern of the court.(99) The Supreme Court of India has, however, held that though a person accused of a bailable offence is entitled to be released on bail pending his trial, if his conduct subsequent to his release is found to be prejudicial to a fair trial, he forefeits his right to be released on bail and such forefeiture can be made effective by invoking the inherent powers of the High Court under Section 482 of the Cr.P.C.(100)

Besides bail in cases of bailable and non-bailable offences,Section 438 of Cr.P.C.,1973 provides a unique provision for grant of "anticipatory bail." This unique provision has made an inroad in the criminal justice system in India on the recommendations of the Law Commission of India, viz., "the necessity for granting anticipatory bail arises mainly because sometimes influential persons tried to implicate their rivals in false cases for the purpose of disgracing or for other purposes by getting detained in jails for some days. Apart . . . from false cases where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."(101)

Direction for grant of bail to persons pending arrest has to be exercised sparingly and in the exceptional cases as anticipatory bail to some extent intrudes in the fair investigation of crimes and the court must be conscious and circumspect in exercising such powers of a discretionary nature.(102) When any person has reason to believe that he may be arrested on an accusation of having commited a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction that in the event of such arrest he shall be released on bail and the court order granting anticipatory bail may include such conditions in the light of the facts of the particular case as it may think fit.

Relevant considerations governing the court's decisions in granting anticipatory bail are materially different from those governing an application for bail by a person who is arrested in the course of investigation and also by a person who is convicted and seeking release while awaiting a decision on appeal. Some of the relevant considerations for granting anticipatory bail are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the person's presence not being secured at the trial, a reasonable fear that witnesses will be tampered with and the larger interest of the public or the State. Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail.(103) However, grant of anticipatory bail by the courts on irrelevant or extraneous grounds or miscarriage of justice may be some of the factors for cancellation of anticipatory bail.(104)

L. Appeal, Reference, Review and Revision

The criminal justice system provides measures for preferring appeal, reference, review or revision in order to avoid miscarriage of justice.(105) If the finding reached by the trial court is based on plausible reasons or the trial court's findings cannot be said to be unreasonable, the appellate court should be slow in disturbing the trial court's finding of fact even if it was possible to reach a different conclusion on the record because the trial judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal.(106) The Constitution of India also provides that an appeal shall lie to the Supreme Court for any judgement,or final order of the high court in a criminal proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.(107) However, where the High Court refuses to give such a certificate, the Supreme Court may, on being satisfied that the case involves a substantial question of law as to the interpretation of the Constitution, grant special leave to appeal from such judgement, or final order or determination or sentence.(108) It further states that an appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court, if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or (b) has withdrawn for trials before itself any case from any court subordinate to its authority and has on such trials convicted the accused person and sentenced him to death or (c) certifies that the case is a fit one for appeal to the Supreme Court.(109)

Referance jurisdiction can be invoked either by any court or a Metropolitan Magistrate. The referance can be made only on the validity of any act or any provision thereof, or on a question of law must arise in the hearing of a case. The revisional jurisdiction can be exercised by the High Court and also the Session Judge. The record of the case is called for with a view to order further inquiry. However, re-trial may be ordered if the record of the entire case is missing or when there is patent illegality or grave miscarriage of justice. The High Court can interfere at any stage with the proceedings of a Magistrate in a pending trial where there is some manifest and patent injustice apparent on the face of the proceedings and calling for prompt redress. There is another source of jurisdiction which the High Court has over the criminal court besides its appellate jurisdiction,and it is the power of superintendence which arises under Art. 227 of the Constitution of India. The Cr.P.C. also contains provisions concerning transfer of cases or appeals from one state to another,from one court to another.

M. Jury

The jury system no longer exists in India under the criminal justice system. It was abandoned long ago after acquiring infamy because of its notoriety.(110)

N. Fair Hearing and Public Hearing

The import of Article 21 of the Constitution of India and the provisions of Cr.P.C. unequivocally indicate that there must be a fair hearing and public hearing unless provision exists to conduct the proceedings in camera. Of course, there is no provision for the filming of court proceedings either under the criminal law or the Constitutional Law of India or Cinematography Act. However, the mass media is allowed to report the correct version of the criminal proceedings.

O. Language

All proceedings in the Supreme Court and in every High Court are in English language.(111) However, the proceedings in subordinate or trial courts can be conducted in the regional language of the state.(112)

P. Rehabilitation or Resocialisation

Rehabilitation or resocialisation is outside the judicial perview. It is nonetheless a problem of the society requiring State funded institutions or private funded institutions for the rehabilitation or resocialisation of the victims of the crime.

III. Pre-Trial

It is the statutory right of the police to carry out the investigation of a crime before a prosecution is launched, and it cannot be interfered with by the courts.(113) It may be observed that the functions of the judiciary and of the police are complimentary, not overlapping; the court's function begins when a charge is preferred before it and not until then. The accused person may be kept in the custody of the police for a period of 15 days, thus enabling the police to complete the investigation of the crime. However, a total period of the custody may be up to 60 days when the investigation relates to a serious offence or 90 days when the investigation relates to an offence punishable with death or imprisonment for life or imprisonment for a term of not less than 10 years,and such period shall be construed judicial custody and not police custody. If the police cannot complete the investigation within 90 days then the accused person shall be released on bail.

The investigation process begins on an information given to a police officer and such information is known as the First Information Report. The First Information Report is an important document in a criminal trial and may be put in evidence to support or contradict the evidence of the person who gave the information. The objective of the First Information Report is to set the criminal law in motion and from the point of view of the investigating agency to obtain information about the alleged criminal activities so as to be able to take suitable steps to trace and to bring to book the guilty.

The criminal trial process makes it clear that trial should be fair and as such it has been emphasised that confession made to police shall be non-admissible; confession extracted by torture or third degree method can be pleaded at trial. Confession as to the commission of an offence must be voluntary and recorded before a Magistrate or a respectable person. The Cr.P.C, and Indian Evidence Act a proprio vigro state that a confession made by an accused person to a police officer is inadmissible in evidence; if a person in police custody desires to make a confession he must do so in the presence of a Magistrate. A Magistrate shall record the confession if he is satisfied that it is voluntary.

An accused kept either in the custody of police or judicial custody has to be provided with humane and hygienic living conditions during lock-ups. This is so because the accused is presumed to be innocent unless proved guilty. Jail Manuals prescribe that there ought not be overcrowdedness in the cells; the undertrials should be provided with recreational facilities.

IV. Trial Stage

A criminal trial begins with the filing of a case. The Cr.P.C, states that "no court shall take cognizance of an offence after the expiry of the period of limitation and the period of limitation shall be:

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years;

(d) the period of limitation in relation to offences which are punishable with more severe punishment shall be determined by the court if the offence is punishable with imprisonment exceeding three years or severe punishments.(114)

The object is to prevent the parties from filing cases after a long time as a result of which material evidence may vanish and also to prevent the filing of vexations and belated prosecutions.

Every trial begins with the charges and every charge shall state the offence with which the accused is charged.(115) The charge shall give the accused full notice of the offence charged against him. The purpose of the charge is to tell the accused person as precisely and concisely as possible of the matter with which he is charged and must convey to him with sufficient clarity and certainty what the prosecution intends to prove against him and of which he has to clear himself.

A criminal trial may take place either before a Magistrate or Court of Sessions as the nature of the case may be.(116)

A. Mode of Taking and Recording Evidence

It is obligatory that evidence for prosecution and defence should be taken in the presence of the accused.(117) A trial is vitiated by failure to examine the witnesses in the presence of the accused; mere cross examination in the presence of the accused is not sufficient.

B. Speedy Trials

It is imperative that every criminal trial should be completed speedily, expeditiously and efficiently. The Supreme Court of India in August 1996 has expressed that the trial court should not waste its time when it is fairly satisfied that there is no prospect of the case ending in conviction. If the trial court judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time, it is advisable to truncate or snip the proceedings at the stage of framing the charge under relevant provisions of the Cr.P.C., and discharge the accused.(118)

Though it is imperative to complete the trial speedily, expeditiously and efficiently yet there are irritations with the criminal trial process during pre-trial as well as trial stages. For instance, the police which are to complete the investigation of crime within the prescribed time limits consume much more time than prescribed by law. This results in the languishing of the undertrials in jails for a longer period than the period of the conviction. The adversary procedure is also responsible for the delayed trials and there are studies which tell that delay is a riddle wrapped in mystery inside an enigma.(119) Indecisiveness is the cause of both delay and unpleasantness. It could be avoided if detention on false grounds is eased; adjournments just on demands are discouraged; strike and cessation by an advocate is given a full stop.

C. Special Courts

India has military courts in which Court Martial are empowered to try Defence Personnel and not civilians under Army, Navy and Air-force Acts.

Special Courts may be created provided such legislative action does not offend the principle of equality. For example, TADA Courts were established under the Terrorist Disruptive Activities Act.

IV. Legal Education

Legal education imparted in the country is mostly non-practical. Clinical legal education exists through legal aid clinics which have twin purposes: to train law students in the rudiments of practicle training and to give legal aid to poor undertrials, and the underprivileged. Yet the practical aspect in the legal education has not been result oriented. Of course, some law schools have started courses like Procedure and Practice in Constitutional cases, etc., but in a majority of law schools the theoretical part in legal education is mostly imparted and the practical aspect is seldom followed.


In order to have adequate insights into fair trial functionally rather than structurally it is imperative to have an indepth study of trial courts. Such a study would dispel the complaint against the judicial system of the country. As such complaints are based on facts that, "higher courts are right because they are superior, not superior because they are right." The trial judge, in fact, handles the bulk of judicial business. It may however, be not conceived that the justices do not want the people to understand the judicial function; unfortunately, there are relatively few people to understand, interpret and explain the court's role in wider terms. In a sense people know less about the case than they do about the Parliament or the political parties. Trial judges handle the bulk of judicial business because they preside over trials among other things including management of case processing, approval of plea bargaining, supervision of the settlement process, monitoring remedial decrees--they as such experience the drama of the adversary process. This inevitably influences judicial decision-making and behaviour. A trial judge is not a mechanical scale or computer but is a human being. So the trial judges vary in their respective qualities of intelligence, perspective, attentiveness and other mental and emotional characteristics of operation while they are listenining to and observing witnesses. Fatigue of the trial judge, that is, after how many cases the trial judge cannot function at ease and the cases heard and tried in fatigue may hamper or affect the fair trial, may be one assumption amongst others to make an indepth study of trial courts in order to have an assesment of fair trial in criminal proceedings that is functional.

1. * B.A. (Hons.); LL.M; Ph.D (Poona), Professor of Law, Faculty of Law, University of Jammu, Jammu. 180004 J&K India.

1 See Leary v. National Union of Vehicle Builders, (1971) Ch. 34, p. 49.

1 a. See Ravji v. State of Rajasthan, (1996) 2 SCC 175.

2. 2 Only English translation from the Sanskrit literature is presented herein. For original Sanskrit versions refer to Shukra Niti, Manu Smriti, Narada smriti, Kautalaya's Arathashastra, and P.V. Kane's History of Dharamasastra, Bhrispati Smriti, and Vacaspiti Misra's Vayavaharacintamani (translated by Dr. Ludo Rocher, 1956), M. Rama Jois's Legal and Constitutional History of India, 1984, Vol. I. pp.539-552, N.S.Sen Gupta, Evolution of Ancient Indian Law (Tagore Law Lectures, 1950), 1953, pp. 37-81.

3. 3 Per Lord Hewert, C.J. in R. v. Sussex Justices exp. McCarthy, (1924) 1KB 256, p. 259.

4. 4 See S. L. Kapoor v. Jagmohan, A.I.R 1981 S.C.136, p. 146.

5. 5 Per Lord Denning, M. R., Metropolitan Properties Ltd. v. Lannon, (1968) 3All E. R. 304.

6. 6 Art.18 of the Universal Declaration of Human Rights (UDHR); Arts. 14 and 15 of the International Covenant of Civil and Political Rights (ICCPR), 1966.

7. 7 Articles 20, 21, 22, 32, 226, 359.

8. 8 Cr. P. C., 1973; Indian Evidence Act, 1872; I.P.C., 1860; Special Acts dealing with economic offences and offences relating to fair sex such as Dowry Prohibition Act, 1961; Drugs and Cosmetics Act of 1940; F.E.R.A, 1947 and 1973; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; T.A.D.A, 1987; N.S.A, 1980; Children Act, 1960; Juvenile Justice Act, 1986; Borstal Schools Acts; Prevention of Immoral Traffic Act; Prevention of Corruption Act, 1947; The Protection of Human Rights Act, 1993, etc.

9. 9 Law Commission of India, 14th Report on Reforms of Judicial Administration, p. 587; Law Commission of India, 127th Report on Resource Allocation for Infra-structural Services in Judicial Administration, p.1; Law Commission of India, 120th Report Manpower Planning in Judiciary: A Blueprint, pp.1 and 3; Law Commission of India 41st Report on the Criminal Procedure Code, vols. I & II.

10. 10 Statement of objects and reasons of the Criminal Procedure Code, 1973, Gazette of India, Extraordinary, Part II, Section 2, pp.1309-1310.

11. 11 Sections 4 & 5 of Criminal Procedure Code, 1973; R. S. Nayak v. A. R. Antulay, (1984) 3 SCC 86.

12. 12 Arts. 129 & 215 of the Constitution of India.

13. 13 200-210, 300-327, 36-90, 190-199, of Cr.P.C., 1973.

14. 14 149-153, Cr.P.C., 1973.

15. 15 154-176, Cr.P.C., 1973.

16. 16 91-92, 93-98, 99-101, 102-105, Cr.P.C.,1973.

17. 17 177-189, Cr.P.C., 1973.

18. 18 211-224, Cr.P.C., 1973.

19. 19 225-237, Cr.P.C., 1973.

20. 20 238-250, Cr.P.C., 1973.

21. 21 251-259, Cr.P.C., 1973.

22. 22 260-265, Cr.P.C., 1973.

23. 23 272-299,Cr.P.C.,1973.

24. 24 304, Cr.P.C., 1973.

25. 25 353-365, Cr.P.C., 1973.

26. 26 366-371, Cr.P.C., 1973.

27. 27 474-484, Cr.P.C., 1973.

28. 28 372-394, 395-405, 406-412, 413-435, 436-450 (Bail), 328-339, Cr.P.C., 1973 (Trial of Accused person and unsound mind).

29. 29 Articles 134, 134A, 136 ,225, 228 of the Indian Constitution; 6-25 of the Code of Criminal Procedure, 1973.

30. 30 Vide Chief Justice Anantanarayanan in Mohambaram v. Jayavelu,1970 Cr.L.J.241, p. 245; see also V. K. Godwani, A.I.R 1965 cal 79; Pukh Raj, A.I.R. 1965 Rajn. 196; A. R. Antulay, (1984) 3 SCC500; R. S .Nayak v. A .R. Antulay, (1984) 3SCC86.

31. 31 Per Jagannathdass, J. in Rao Shiva Bhadur Singh v. State of V.P., A.I.R. 1953 SC 394, p. 398.

32. 32 Section 300 of the Criminal Procedure Code, 1973 which stipulates that a person once convicted or acquitted cannot be tried for the same offence; and section 264 of the General Clauses Act, 1897 also interalia provides that the offender shall not be liable to be punished twice for the same offence.

33. 33 Per Justice P. B. Gajendragadkar in Raja Narayanlal Bansilal v. M.P.Mistry, A.I.R 1961 SC 29 p.38.

34. 34 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.

35. 35 Id., section 27 of the Indian Evidence Act, 1872 concerns how much information received from the accused may be proved and reads as "when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

36. 36 Section 93 of the CrPc, 1973; and see also V.S.Kuttar Pillai v. Ramakrishna, AIR 1980 SC 185.

37. 37 Sunil Batra v. Delhi Admn.; Hussainara Khatoon v. State of Bihar.

38. 38 List of preventive detention laws includes Defence of India Act (Repeal); Maintenance of Internal Security Act, 1970 (Repealed); National Security Act, 1980; Terrorist and Disruptive Activities (Prevention) Act, 1987.

39. 39 If there is a delay in the communication of the information or the grounds, it must be reasonably justified by the circumstances. See Tarapada De v. State of WB, AIR1951 SC 174.

40. 40 This right is not lost if he is released on bail. The existing Law is contained in section 303 of the CrPc, 1973 which reads: "Any person accused of an offence before a criminal court, or against whom proceedings are instituted under this court, may of right be defended by a pleader of his choice.

41. 41 State of MP v. Shobharam, AIR 1966 SC 1910.

42. 42 Saptawana v. State of Assam, AIR 1971 SC813; See H.Khatoon v. State of Bihar.

43. 43 Per Patanjali Sastri, J. in A.K.Gopalan v. State of Madras, AIR 1950 SC27.

44. 44 See Harikrishan v. State of Maharashtra, AIR 1962SC911; Durga Pada Ghosh v. State of WB(1972) 2SCC656; Shiban Lal Saxena v. State of UP AIR 1954 SC 179.

45. 45 Shiban Lal Saxena v. State of UP, Id.; State of Bombay v. Atma Ram Sridhar Vaidya, AIR 1951 SC 157; Ranjit Dam v. State of WB, (1972) 2SCC516.

46. 46 State of Bombay v. Atma Ram Sridhar Vaidya, Id.; Lawrence J. Joseph D'souza v. State of Bombay AIR 1956 SC 531; Anant Mukhi v. State of WB, (1972) 1SCC 580; Babul Mitra v. WB, (1973) 1SCC393; P. L. Lakhanpal v. UOI, AIR 1958 SC 163; Sodhi Shamser Singh v. Pepsu, AIR 1954 SC 276.

47. 47 Ashutosh Lahiry v. Delhi, AIR 1953 SC451; Ram Singh v. Delhi, AIR 1951 SC270.

48. 48 4 and 26 of the CrPc, 1973, and first schedule annexed to the code shows the list of offences which are triable by High Court, the Court of Session,or any other Court.

49. 49 See Section 53 of Divorce Act, 1869, Section 14 of Official Secrets Act, 1923, Section 22(1)of the Hindu Marriage Act, 1955.

50. 50 Articles 32 & 226 of the Indian Constitution.

51. 51 Vide State of Madras v. V.G.Row, AIR 1952 SC 196, p.199.

52. 52 Vide Daryao v. State of UP, AIR 1961 SC 574, p.582.


54. 54 Per P. N. Bhagwati, J., in Kanu Sanyal v. D.M.Darjeeling, (1973) 2SCC674.

55. 55 Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217.

56. 56 P. L. Lakhanpal v. UOI, AIR 1967 SC 908; In re Prahalad Krishana, AIR 1951 BOM 25.

57. 57 Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.

58. 58 In re Powers, privileges and Immunities of the States Legislatures, AIR 1966 SC 745.

59. 59 Art.352.

60. 60 Art.359.

61. 61 H. M. Seervai Emergency, future safeguards and the Habeas Corpus. A criticism, 1978.

62. 62 Art. 39A.

63. 63 Per V. R. Krishna Iyer, J., in R.M.Waswa, AIR 1974 SC 1143.

64. 64 Above note 40; and see Khatri v. State of Bihar, 1981 Cr.L.J. 470 (S.C.)

65. 65 Ranjit Dwivedi v. UOI, 1983 Cr.L.J. 1052 (S.C.).

66. 66 Sukh Dass v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401.

67. 67 Vide T. V. Vatheeswaran v. State of TN, (1983)2 SCC 68 pp.78-79.

68. 68 Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, pp.102-104.

69. 69 Sheela Barse v. State of Maharashtra, (1987) 4 SCC 373; Prabha Dutt v. UOI, (1982)1 SCC 1; Sunil Batra v. Delhi Admn.(1978) 4SCC 494; Francis Coralie Mullin v. Administrator, UT of Delhi, (1981) SCC 608; A.K.Roy v. UOI, (1982)1 SCC 27.

70. 70 Sunil Gupta v. State of MP, (1990)3 SCC 119, pp. 129-130.

71. 71 Khatri (II) v. State of Bihar (1981) 1 SCC 635; Anil Yadav v. Bihar (1981) 1 SCC 622.

72. 72 Mohd. Salim Khan v. State of UP, (1982) 2 SCC 347.

73. 73 Yogendra Kumar v. Delhi Admn., (1982) 3 SCC 506.

74. 74 Mathew Areeparnatil v. State of Bihar (1985) 2 SCC 102A; Acharya Jagdishwaranand v. Commr. of Police, (1983) 4 SCC 522; Hussain Ara Khatoon v. State of Bihar (1979) SCC; State of Bihar v. K. K. Mishra (1969) 3 SCC 337.

75. 75 Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 pp. 493-495; Madhu Mehta v. UOI, (1989) 4 SCC 62, p. 69; R.S.Nayak v. A.R.Antulay, op. cit.; Kadra Pahadiya v. State of Bihar, (1983) 2 SCC 104, p.107; Shri Nivas Gopal v. UT of Arunachal Pradesh, (1988) SCC 36, pp. 41-42; State of Punjab v. Sarwan Singh, (1981) 3 SCC 34; Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609, p.639;Rudul Shah v. State of Bihar,Mangi Lal Vayas v. State of Rajasthan, (1990) Supp.SCC21.

76. 76 State of Maharashtra v. Champa Lal Punjaji Shah, (1981) 3 SCC 610, pp. 613 and 616.

77. 77 Simran Jeet Singh Mann v. UOI, (1992) 4 SCC 653.

78. 78 See S. P. Sampat Kumar v. UOI, (1987) 1 SCC 124, pp. 128-129.

79. 79 Art. 50.

80. 80 Chandra Mohan v. State of UP AIR.1966 sc 1987.

81. 81 Kehar Singh v. Delhi Admn., (1988) 3 SCC609; Kehar Singh v.UOI, (1989) 1 SCC204.

82. 82 Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

83. 83 A. M. Mathur v. Parmod Kumar Gupta, (1990) 2 SCC 533.

84. 84 See, Supreme Court Legal Aid Committee v. UOI, (1984) 4 SCC 738.

85. 85 See, Sheela Barse v. UOI, 25 ACC 370; Sec. 223 of Code of Criminal Procedure, 1973 read with Sec. 24 of the Juvenile Justice Act, 1986 which states what persons may be charged with, when they may be tried together, and that there is no joint trial of a juvenile and a person not a juvenile.

86. 86 See Section 302 IPC, 1860; Sections 354, 361-368, 413-416 of CrPc, 1973.

87. 87 Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

88. 88 Allauddin Mian v. State of Bihar, (1989) 3 SCC 5.

89. 89 See note 87 above.

90. 90 Id.; see Art. 14 of the Constitution of India.

91. 91 Id.; see Art. 19 of the Constitution of India.

92. 92 Id.; see Art. 21 of the Constitution of India

93. 93 Above notes 87, 88; see also, Machhi Singh v. State of Punjab, (1983) 3 SCC 470; Triveni ben v. State of Gujrat, (1989) 1 SCC 678; Lichhamadey v. Rajasthan (1988) 4 SCC 456.

94. 94 See Art. 161 of the Indian Constution; 432-435 of CrPc, 1973.

95. 95 Kehar Singh v. UOI, (1989)1 SCC 204, p.217.

96. 96 Id.

97. 97 Id., p.214; see also, Kuljit Singh v. Delhi, (1982) 1 SCC 417; Kehar Singh v. State, (1988) 3 SCC 609; Moru Ram v. UOI, (1981) 1 SCC 107.

98. 98 State of Maharastra v . Anand Chintaman Deghe, (1989) 1 SCC 397; State v. Jaspal Singh Gill, (1984) 3 SCC 555; Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684.

99. 99 Shahzad Hasan Khan v. Ishtiaq Hasan Khan, note 97.

100. 100 Talab Haji Hussain v. Madukar Purshottum Mondkar, (1958) SCR 1226.

101. 101 See 41st report of the Law Commission of India.

102. 102 Pokur Ram v. State of Rajasthan, (1985) 2 SCC 597, pp.602-604.

103. 103 Id.

104. 104 Id.

105. 105 374-412 of CrPc, 1973.

106. 106 Babu v.State of UP, (1983) 2 SCC 21.

107. 107 Art. 132 of the Constitution of India.

108. 108 Art. 136 of the Constitution of India.

109. 109 Art. 134 of Constitution of India.

110. 110 See in particular, K. M. Nanawati v. State of Bombay, AIR 1961 SC 112.

111. 111 Art. 348 of the Constitution of India.

112. 112 211, 265, 272, 277, 281 and 354 of CrPc, 1973.

113. 113 154-176 of CrPc, 1973.

114. 114 See 468 of the CrPc, 1973.

115. 115 211-224 of CrPc, 1973.

116. 116 225-265 of CrPc, 1973.

117. 117 272-299 of CrPc, 1973.

118. 118 See, The Hindustan Times, New Delhi, August 5, 1996, p.9.

119. 119 See K. L. Bhatia, Gurdeep Singh and Jagmohan Singh, "Delay: A Riddle Wrapped in a Mystery Inside An Enigma.," Journal of Indian Law Institute, 1995, pp. 42-72.