There is no denial of the fact that fair trial is an insegregable facet of Article 21 of the Constitution. Supreme Court on numerous occasions has emphasised on the fundamental conception of fair trial as the majesty of law so commands.
A three-Judge Bench speaking through Krishna Iyer, J. in Maneka Sanjay Gandhi and another v. Rani Jethmalani, (1979) 4 SCC 167, though in a different context, observed:-
“Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hyperscnahivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer.
This is the cardinal principle although the circumstances may be myriad and vary from case 10 case. We have to lest the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate when- the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.”
The aforesaid principle has been stated in the context of transfer of a case but the Court has laid emphasis on assurance of fair trial. It is worthy to note that in the said case, the Court declined to transfer the case and directed the Magistrate to take measures to enforce conditions where the court functions free and fair and agitational or muscle tactics yield no dividends. However, liberty was granted to the appellant therein to renew prayer under Section 406 Cr.P.C. Stress was laid on tranquil court justice. It was also observed that when the said concept becomes a casualty there is collapse of our constitutional order.
In Ram Chander v. State of Haryana, (1981) 3 SCC 191, while speaking about the presiding judge in a criminal trial, Chinnappa Reddy, J. observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The learned Judge reproduced a passage from Sessions Judge, Nellore v. Intha Ramana Reddy, 1972 Cri LJ 1485 which reads as follows:-
“Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. section 172(2) of the Code of Criminal Procedure enables the court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceedings of the Committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.”
While saying so, it has been further held that the Court may actively participate in the trial to elicit the truth and to protect the weak and the innocent and it must, of course, not assume the role of a prosecutor in putting questions.
In Rattiram and others v. State of Madhya Pradesh, 2012(2) RCR (Criminal) 471 : 2012(2) Recent Apex Judgments (R.A.J.) 99 : (2012) 4 SCC 516 speaking on fair trial the Court opined that:-
“… Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.”
In the said case, it has further been held:-
“60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh v. Kishan Singh, (2009) 17 SCC 303 wherein it has been observed thus: (SCC p. 307, para 14)
“14. … Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.”
61. It is worth noting that the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah, 2005(2) RCR (Criminal) 178 : (2005) 4 SCC 370 (SCC p. 387, para 24) though in a different context, had also observed that delay in the prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost.
62. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused (quaere a victim). Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple-pie order in carrying out the adjective law, would only be sound and fury signifying nothing.
x x x x x
64. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim’s right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.”
In J. Jayalalithaa and others v. State of Karnataka and others, 2013(6) Recent Apex Judgments (R.A.J.) 38 : (2014) 2 SCC 401 it has been ruled that fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. It has further been observed that in all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the “majesty of the law” and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Further, the Court has observed:-
“Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. “No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d’jtre in prescribing the time frame” for conclusion of the trial.”
In Bablu Kumar and others v. State of Bihar and another, 2015(3) RCR (Criminal) 728 : 2015(4) Recent Apex Judgments (R.A.J.) 178 : (2015) 8 SCC 787 the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), 2010(2) RCR (Criminal) 692 : 2010(3) Recent Apex Judgments (R.A.J.) 1 : (2010) 6 SCC 1, Rattiram (supra), J. Jayalalithaa (supra), State of Karnataka v. K. Yarappa Reddy, 1999(4) RCR (Criminal) 508 : (1999) 8 SCC 715 and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one.
It has been further stated that the law does not countenance a “mock trial”. It is a serious concern of society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. We may note with profit though the context was different, yet the message is writ large. The message is – all kinds of individual notions of fair trial have no room.
In State of Haryana v. Ram Mehar and Others (2016), the court held that,
“The decisions of Supreme Court when analysed appositely clearly convey that the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation.
It would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalization but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role.
A plea of fairness cannot be utilised to build Castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. From the aforesaid it may not be understood that it has been impliedly stated that the fair trial should not be kept on its own pedestal.
It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. Be it stated when the process of the court is abused in the name of fair trial at the drop of a hat, there is miscarriage of justice. And, justice, the queen of all virtues, sheds tears. That is not unthinkable and we have no hesitation in saying so.”
Reference
State of Haryana v. Ram Mehar and Others (2016)