The concept of ‘fair trial’ permeates in every nook and corner of criminal proceedings be it, substantial criminal laws (Indian Penal Code, 1860 and other Special Criminal Laws) and the procedural laws (Criminal Procedure Code, 1973, Indian Evidence Act, 1872 and some special criminal laws). The procedure and mechanism of adducing evidence are so made as to ensure the fair trial. Fair Trial is such concept that cannot be explained in absolute terms rather it is a relative concept just like other notions incorporating the idea of fairness or reasonableness. Courts in India have recognized that one of the objects that governs the criminal procedure is ensuring fair trial of accused persons.[1] In the case of Moti Lal Saraf v. Union of India[2], the court observed that the concept of a fair trial is an integral part of article 21 of the Constitution. The Law Commission has also accepted the view that fair trial is closely governed by the character of court, the venue, the mode of conducting, the trial (particularly trial in public), rights of the accused in relation to the defence and other rights. Further in this article, I would be discussing about different attributes of fair trial in India.


Adversarial system

It is to note that the adversarial system of trial in India is essentially an important component of fair trial. It talks about the prosecutor representing the state (or the people) accuses the defendant (the accused person) of the commission of crime for which he has to prove his case beyond reasonable doubt. Though law requires a fair opportunity to be provided to the accused to defend himself but practically it functions in harsh and unequal manner, adversely affecting the poor indigent accused person who are not able to arrange a competent or efficient lawyer for their defence. [3]This system thus confers on the accused not only a right to be defended by a lawyer of their choice but also confers on the indigent accused person to avail a right to free legal aid. Supreme Court has held that unless refused, failure to grant free legal aid to the indigent accused person would vitiate the trial, thus setting aside of conviction and sentence. Further, the code has ensured that judges not act as mere empire in cases but play an active and positive role in discharging justice or protecting interests of public as well as individual interest of the accused.


Presumption of innocence

The principle that innocent until proven guilty or say accused person is presumed to be innocent unless his guilt is proved beyond reasonable doubt, is of cardinal importance in the administration of criminal justice. Infact, every criminal trial begins with this presumption. This principle has been originated from a Latin maxim, ‘eiincumbitprobatio qui dicit, non quinegat’, which means the burden of proof rests on the one who asserts and not on the one who denies. The rationale behind this is that “no doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, but much worse would be the situation if an innocent is wrongfully convicted as its consequences are far more serious and also its reverberations could be felt in any civilized society.”[4] It also prevent the accused from any kind of arbitrariness. Miscarriage of justice still happens when accused gets benefit of doubt or specially when a weak and incompetent judge applies and misuses it.[5]


Independent, impartial and competent judges

Undoubtedly, the most important condition that gives soul to fair criminal trial is an independent, impartial and competent judge to conduct the trial in addition with strict adherence to laws of natural justice. It is necessary that judges or Magistrate must not be in any manner be connected or interested in prosecution. [6]Impartiality demarcates such conduct of the Judges, who are supposed to conduct the trial, give the decision of acquittal or conviction without any biases or predetermined opinion towards the accused or the victim. Section 479 of the CrPC further prohibits to entertain any appeal from any order or judgment made by biased judge. Fair trial also requires public hearing in an open court which is generally accessible to the public.[7]


Speedy Trial

It is well considered fact justice if delayed is actually justice denied. This is the reason why speedy trial is to be understood as important facet of fair trial. Unnecessary delays, pendency of appeals, long time in disposal of cases, postponed pronouncement of final judgment all of which contributes to the harassment of the accused or appellant. The apex court in the landmark case of Husianara Khatoon v. State of Bihar, 1979 held that speedy trial, being an essential ingredient of Article 21 of the Constitution of India, is the constitutional duty of the state to set up such procedure which would ensure speedy trial of the accused.[8]


Venue of the Trial

Right to open court is imperative as fairness in trial is more actualized by openness in court. It is necessary that the place of inquiry or trial is not highly inconvenient to the accused or cause any impediment in the defence preparation, as trial at such place would not constitute fair trial. It sometimes may cause hardship to the parties to produce evidences thus it would be convenient to conduct trial at by a court within whose jurisdiction the crime has been committed. In exceptional cases like rape, Sec-327(2) provides for the conducting criminal trials in camera[9] with the discretion to the presiding Magistrate of giving access to the court to a particular person who filed an application before the court. High Court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part of its proceedings. Similar provisions of conducting a trial in camera are also found in sec-53 of Indian Divorce Act, 1869, sec-14 of Indian Official Secrets Act, 1923, sec-22(1) of Hindu Marriage Act, 1955, etc.


Right to know about accusation

Fair trial mandates that adequate opportunity be given to the accused person to defend himself which would be no importance if the accused is not informed of the accusations against him. He is to be told about all the particulars of the offence for which he has been charged which he is brought before the court for trial.[10] In serious offences, court is also required to frame in writing a formal charge and then to read and explain the charge to the accused person. It is also a constitutional mandate as Article 22(1) renders right to be informed about the grounds of arrest as a fundamental right. These grounds must be communicated to accused in the language which he or she understands. Section 211 of Cr.P.C incorporates the right to have a precise and specific accusation.


Accused person to be tried in his presence

The general rule in criminal cases is that all the inquiries and trial be conducted in the presence of the accused, the underlying principle being that the in a criminal trial the court should not proceed ex parte against the accused person. All the proceedings of a criminal trial should be conducted in the presence of the accused since it gives accused an opportunity to prepare his defence which is possible only if he properly understands the case from the prosecution side. A criminal trial in the absence of the accused is not supported by the principles of natural justice. The court before dispensing with the attendance of the accused must be satisfied that such attendance is not necessary in the interest of justice or that the accused persistently disturbs the court proceedings. However, it is required to be represented by lawyer in such cases. Further court is to also record the reasons for such order.[11]


Evidence to be taken in the presence of the accused

Fair trial necessitates that evidences in the trial to be taken in the presence of the accused. Failure to do so would vitiate the trial and the fact that no objection was taken by the accused is immaterial. This is however subject to certain exceptions. This right is further supplemented by Section 278 which provides that where ever the law requires the evidence of the witness to be read over to him after its completion, the reading shall be done in the presence of the accused, of his pleader if the accused appears by the pleader in such language as can be understood by the accused.[12] The court in the case of State of Maharashtra v. P.B.desai, held that section 273 CRPC provides for dispensation from personal attendance. In such cases, evidence can be recorded in the presence of pleader. The presence of pleader is thus, deemed to be a presence of accused.  Therefore, actual presence is not necessary, a constructive presence is also enough.

Accused need not to worry as far as his rights are concerned even when accused does not understand proceedings, he is to be acquainted with the prosecution case and to facilitate his preparations for defence, he would be supplied with copies of police report, statements before police and other documents over which prosecution could rely on, or with a copy of the complaint, etc. It is based on the idea that difficulties should nowhere cause reduction in applications of provisions and principles which envisages fair trial.


Cross-examination of prosecution witnesses

A criminal trial which denies the accused person the right to cross examine prosecution witnesses is based on weak foundation and thus cannot be considered as fair trial.[13] Cross-examination is necessary to check the credibility of the witnesses. The prosecution should inform in advance of the witnesses he intends to produce in the court so that equal and fair chance to both the parties is given by means of interrogation of witnesses. The accused should not be denied to examine the prosecution of witnesses.[14]

In Badri v. State of Rajasthan, 1976[15] the apex court held that where a prosecution witness was not allowed to be cross-examined on a material point with reference to his earlier statement made before the police, his evidence stands untested by cross-examination and cannot be accepted as validating his previous statement.


Prohibition of double jeopardy

This principle of Double jeopardy, which states that ‘no person shall be prosecuted and punished for the same offence more than once,’ is also a fundamental right protected by the constitution of India under Article 20(2) of the Constitution. [16]It is based on the rule of ‘nemo debet vis vexari’. The principle is further based on the doctrine of autrefois convict and autrefois acquit which  implies that if a person is prosecuted and convicted or acquitted cannot be prosecuted again for the same offence or for any other offence on the same facts. Article 20(2) of the Constitution and section 300(1) differs from each despite the fact that their meaning is the same. The Supreme Court in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao[17], differentiated between article 20(2) of the Constitution and section 300(1) of Cr.P.C. While, Article 20(2) of the Constitution only states that ‘no one can be prosecuted and punished for the same offence more than once’, Section 300(1) of Cr.P.C states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. Therefore, the second prosecution would be barred by Section 300(1) of Cr.P.C. In S.A. Venkataraman v. Union of India[18] the appellant was dismissed from service as a result of an inquiry under the Public Servants (Inquiries) Act, 1960 after the proceedings were before the Enquiry Commissioner. Thereafter, he was prosecuted before the Court for having committed offences under the Indian Penal Code, and the Prevention of Corruption Act. The Supreme Court held that the proceeding taken before the Enquiry Commissioner did not amount to a prosecution for an offence. It was in the nature of fact-finding to advise the Government for disciplinary action against the appellant. It cannot be said that the person has been prosecuted.[19]


Right to fair trial is an all pervasive concept which has permeated every nook and corner of the Code of Criminal Procedure. It also flows from Article 21 of the Constitution. As per article 21, right to fair trial is the part of the right to life and personal liberty. Fair Trial is also recognized as one of the human rights. There are several provisions under Indian Constitution which secure the right to a fair trial. Under the Adversarial system followed in India, it is the prosecution who has to prove the guilt of the accused beyond a reasonable doubt. The criminal justice system of India follows some principles to ensure fair trial but still, India lags behind in the Rule of Law Index.


[1] Fair trial under section 304, available at: (last visited on April 29, 2021)

[2] 2007 1 SCC [cri] 180

[3] Dr. K. N. Chandrasekharan Pillai, R. V. Kelkar’s Criminal Procedure 51-59 (Eastern Book Company, Lucknow, 6th edn., 2014)

[4] Kali Ram v. State of H.P. (1973) 2 SCC 808

[5] Supra note 3

[6] Fair Trial and its principles, available at: (last visited on April 20, 2021)

[7] Section 327 of CrPC, 1860

[8] 1980 1 SCC 98

[9] In closed chamber

[10] Supra note 6

[11] Concept of Fair Trial, available at: (last visited on April 29, 2021)

[12] Code of Criminal Procedure, No. 2, Act of Parliament, §273, 1973 (India).

[13] Sukanraj v. State of Rajasthan, 1967 Cri L J 1702

[14] The concept of Fair Trial – In reference to CrpC, available at; concept-of-fair-trial-in-reference-to-crpc/ (last visited on April 29, 2021)

[15] 1976 SCR (2) 339

[16] Ratanlal & Dhirajlal, “Commentary on the Code of Criminal Procedure” 101 (18th ed. 2006).

[17] (2011) 2 SCC 703

[18] 1954 AIR 375

[19] Supra note 16.

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