Fair Trial

Author: Ritika Sharma



It is rightly said that “Justice should not be done but it should be seen to have been done.” Convicting a wrong person is much more unjust than not convicting anyone at all. In order to remove the discrimination and prejudices while conducting a trial, the concept of “Fair Trial” was included in the laws of India. So what is a fair trial? What are the principal features of a fair trial? What provisions of the Constitution and the Code of Criminal Procedure, 1973 support this concept? Why is it important to conduct a fair trial?

What is a Fair Trial?

According to Merriam Webster’s dictionary, fair trial means, “a trial that is conducted fairly, justly, and with procedural regularity by an impartial judge and in which the defendant is afforded his or her rights under the U.S. Constitution or the appropriate state constitution or other law.”

In Zahira Habibualla H. Sheikh v. State of Gujarat[1], which is commonly known as the best bakery case, the Court said that a fair trial would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm, that in which bias or prejudice for or against the accused, the witnesses or the cause which was being tried, was eliminated. Where the witnesses got threatened or were forced to give false evidence or where material witnesses were not heard, a fair trial would be said to have been denied.[2]

Right to Fair Trial- A Fundamental Right

Right to Fair Trial is a Fundamental Right enshrined under Article 21 of the Constitution of India. It is said that free and fair trial is sine qua non of Article 21. Article 21 says,

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

In Zahira Habibulla H. Sheikh v. State of Gujarat[3], A trial which is primarily aimed at ascertaining the truth, has to be fair to all concerned. Not only the accused be fairly dealt with, but also the victims or their family members and relatives. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.

In Kalyani Baskar v. M.S. Sampoornam[4], the Right to a fair trial which includes fair and proper opportunities allowed by law to prove the innocence of accused, adducing evidence in support of the defense, is a valuable right, denial of that right means denial of a fair trial. It has been held that rules of procedure designed to ensure justice should be scrupulously followed and the Courts should be jealous of seeing that there is no breach of them.

The right to free legal aid which is an integral part of Fair Trial is also ensured by Article 21. The significant case which highlighted the Right to free legal aid was M.H. Hoscot v. State of Maharashtra[5], in which the Supreme Court laid down that providing legal services to the accused who cannot afford it because of poverty and indigence, is the part of a fair and just procedure reflected under Article 21 of the Constitution.

Concept of Fair Trial under the Code of Criminal Procedure, 1973

The concept of a fair trial has permeated every nook and corner of the Criminal Procedure Code. This is what it should be. The major objective of the Code being to provide for a fair trial in the administration of criminal justice, it is but natural that all the provisions of the Code are attuned to this goal.[6]

There are a lot of provisions of the Code which promote the concept of fair trial and aim to eliminate every sort of discrimination which accused might face while being on a trial. The system is the Adversary system of the Code according to which the prosecutor has to face the case against the accused beyond reasonable doubt and sufficient opportunity of being heard is given to the accused.

Sections 211, 212, 213 of the Code ensures that the accused get every information about the alleged offence so that he/she can prepare the defences accordingly. Further, Sections 177 to 189 contain the provisions regarding the venue of the trial so that the parties to the case do not face any inconvenience. According to Section 177, ordinarily, the place of inquiry and trial is conducted by the court in whose local jurisdiction it was committed.

Principal Features of Fair Trial

  • Presumption of innocence

 Every criminal trial begins with the presumption of innocence in favour of the accused. In Babu Singh v. State of Punjab[7], it was observed that the principle that the accused is presumed to be innocent unless his guilt is proved beyond a reasonable doubt, is of cardinal importance in the administration of criminal justice.

  • Unbiased and competent judges

 The appointments of Session Judges and Judicial Magistrates are made by the State Government in consultation with the High Court. In order to have a fair trial, it is necessary that the judges or the Magistrate must not be in any manner connected with the prosecution or interested in the prosecution. Section 479 of the Code of Criminal Procedure, 1973 makes provisions for this. Also, Section 327 contains the provisions for open courts generally accessible to the members of the public.[8] It is very significant that an unbiased and competent judge conducts the trial so that there is no scope of any injustice. Further, Article 50 of the Constitution directs the State to separate the judiciary from the executive so that the laws can be implemented fairly.

  • Right to Free Legal Aid

It is one of the important components of a Fair Trial. Section 304 of the Code of Criminal Procedure makes provision for the legal aid to accused at the expense of the State. Further, in many important cases, this right of the accused was highlighted and was given importance.

In Khatri v. State of Bihar[9], the constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when he is for the first time produced before the Magistrate. That is the stage at which an accused person needs competent legal advice and representation.[10] Similarly in Mohd. Hussain @Julfikar Ali v. Govt. of NCT Delhi[11], it was observed that if any accused is poor and goes through the trial without any legal assistance then it cannot be termed as a Fair Trial. The Right to Free Legal Aid not only flows from the Constitution and Criminal Procedure Code but many International Covenants also provide for this right.

  •  Evidence is to be taken in the presence of the accused

Section 273 of the Criminal Procedure Code says that the evidence is to be taken in the presence of the accused. Section 278 says that if it is necessary, then the evidence of each witness is to be read over to him in the presence of the accused.

  • Accused can cross examine the prosecution witness

In Ajoy Kumar Ghose v. State of Jharkhand[12], Supreme Court emphasized the need for cross-examination of the prosecution witnesses before framing charges. This is to be afforded to the accused so that he may plead for not charging him. He could seek for discharge.

  •  Right of the accused to have an expeditious trial

Section 309(1) has provisions that say that except in some offenses, the inquiry and trial should be completed within a period of two months from the date of filing of the charge sheet. In Hussainara Khatoon v. State of Bihar[13], the Supreme Court considered the problem in all its seriousness and declared that speedy trial is an essential ingredient of “reasonable, fair and just” procedure guaranteed by Article and that it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial to the accused.[14] It is an important feature of a fair trial based on the statement that “Justice delayed is justice denied”.

  • Person once convicted or acquitted not to be tried for same offence

When once a person has been acquitted or convicted of any offence by any competent court, any subsequent trial for the same offence would certainly put him in jeopardy and in any case would cause him unjust harassment.[15] It is based upon the doctrine of autrefois acquit and autrefois convict. Section 300 of the Criminal Procedure Code and Article 20(2) both have led to the applicability of this doctrine in the trials.


If the criminal trial is not fair and not free from bias, the judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system and woe would be the rule of law.[16] In the administration of justice, it is very important that the trials are conducted in the fairest manner and all the rights provided to the accused by the laws of our country are ensured, only then the real accused would be behind the bars and the main purpose of framing of the laws would become successful. Not following the concept of a fair trial would not only be unfair towards the alleged accused but also, it would vitiate the objectives with which the legislators drafted the laws.

[1] AIR 2004 SC 3114

[2] Narendra Kumar Constitutional Law of India 224 (Allahabad Law Agency, Faridabad, 7th Ed./ 2008)

[3] (2006) 3 SCC 374

[4] (2007) 2 SCC 258

[5] AIR 1978 SC 1548

[6] R.V. Kelkar, Criminal Procedure 358 (Eastern Book Company, Lucknow, 6th Ed./2014)

[7] (1964) I Cri Lj 566

[8] Supra note 3 at 349-350

[9] AIR 1981 SC 928

[10] Supra note 3 at 328

[11] (2013) 2 SCR 1003

[12] (2009) 14 SCC 115

[13] (1980) 1 SCC 98

[14] Supra note 3 at 356

[15] Supra note 3 at 357

[16] Supra note 2

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