# Sunita Devi v. The State of Bihar & Anr

- **Citation:** 2024 INSC 448
- **Court:** Supreme Court of India
- **Decided:** 2024-05-17
- **Case number:** Criminal Appeal No. 3924 of 2023
- **Bench:** M.M. Sundresh, S.V.N. Bhatti
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunita-devi-v-the-state-of-bihar-anr-37674
- **Pages:** 101

## Headnote

Need for a comprehensive sentencing policy. Trial against the
accused under Protection of Children from Sexual Offences Act,
2012 was conducted by the judicial officer in utmost haste and the
accused was denied due opportunity to defend himself. Conviction
and death sentence awarded was set aside by the High Court and
a de novo trial was ordered, making certain observations against
the Special Judge. Criminal Appeal Nos.3925-3927 of 2023 filed
by the judicial officer. Criminal Appeal No.3924 of 2023 filed by the
informant against the order of remittal for de novo trial. On facts,
in Criminal Appeal No.3925 of 2023, the trial had commenced and
concluded in a single day wherein the aforesaid judicial officer
rendered a similar conviction however, the accused was sentenced
to life imprisonment.
Headnotes†
Sentencing - Lack of policy/legislation - Disparities in
awarding sentence - Need for sentencing policy - Constitution
of India - Articles 14, 21:
Held: Hearing the accused on sentence is a valuable right conferred
on the accused - The real importance lies only with the sentence,
as against the conviction - Unfortunately, there is no clear policy
or legislation when it comes to sentencing - Over the years, it has
become judge-centric and there are admitted disparities in awarding
a sentence - When it comes to sentencing, there are various
factors such as age, sex, education, home life, social background,
emotional and mental conditions, caste, religion and community that
constitute aggravating and mitigating circumstances - A decision of
a Judge in sentencing, would vary from person to person and also
from stage to stage - It is controlled by the mind - The environment
and the upbringing of a Judge would become the ultimate arbiter
in deciding the sentence - A Judge from an affluent background
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might have a different mindset as against a Judge from a humble
one - A female Judge might look at it differently, when compared
to her male counterpart - An Appellate Court might tinker with
the sentence due to its experience, and the external factors like
institutional constraints might come into play - There is a crying need
for a clear sentencing policy, which should never be judge-centric
as the society has to know the basis of a sentence - Sentencing
shall not be a mere lottery - It shall also not be an outcome of a
knee-jerk reaction - This is a very important part of the Fundamental
Rights conferred under Articles 14 and 21 - Various elements such
as deterrence, incapacitation and reformation should form part
of sentencing - The need for adequate guidelines for exercising
sentencing discretion, avoiding unwanted disparity, is of utmost
importance - Courts do take into consideration the mitigating and
aggravating circumstances - However, no research has been
undertaken for constituting what are aggravating and mitigating
circumstances - Suggestions made - Department of Justice, Ministry
of Law and Justice, Government of India to consider introducing
a comprehensive policy, possibly by way of getting an appropriate
report from a duly constituted Sentencing Commission consisting
of experts in different fields for the purpose of having a distinct
sentencing policy - Government of India to file an affidavit on the
feasibility of introducing a comprehensive sentencing policy and a
report thereon, within six months. [Paras 29, 30, 32-36, 37, 40, 58]
Administration of Criminal Justice - Denial of due opportunity
to defend and hearing - Trial against the accused under
POCSO Act was conducted by appellant-judicial officer in
utmost haste - At every stage, the accused was denied due
opportunity to defend himself - High Court set aside the
conviction and the death sentence and a de novo trial was
ordered - In Criminal Appeal No.3925 of 2023 filed by the very
same judicial officer, a similar conviction was rendered in the
trial which was concluded in a single day and the accused
was sentenced t

## Text

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* Author
[2024] 5 S.C.R. 629 : 2024 INSC 448
Sunita Devi
v.
The State of Bihar & Anr.
(Criminal Appeal No. 3924 of 2023)
17 May 2024
[M.M. Sundresh* and S.V.N. Bhatti, JJ.]
Issue for Consideration
Need for a comprehensive sentencing policy. Trial against the
accused under Protection of Children from Sexual Offences Act,
2012 was conducted by the judicial officer in utmost haste and the
accused was denied due opportunity to defend himself. Conviction
and death sentence awarded was set aside by the High Court and
a de novo trial was ordered, making certain observations against
the Special Judge. Criminal Appeal Nos.3925-3927 of 2023 filed
by the judicial officer. Criminal Appeal No.3924 of 2023 filed by the
informant against the order of remittal for de novo trial. On facts,
in Criminal Appeal No.3925 of 2023, the trial had commenced and
concluded in a single day wherein the aforesaid judicial officer
rendered a similar conviction however, the accused was sentenced
to life imprisonment.
Headnotes†
Sentencing - Lack of policy/legislation - Disparities in
awarding sentence - Need for sentencing policy - Constitution
of India - Articles 14, 21:
Held: Hearing the accused on sentence is a valuable right conferred
on the accused - The real importance lies only with the sentence,
as against the conviction - Unfortunately, there is no clear policy
or legislation when it comes to sentencing - Over the years, it has
become judge-centric and there are admitted disparities in awarding
a sentence - When it comes to sentencing, there are various
factors such as age, sex, education, home life, social background,
emotional and mental conditions, caste, religion and community that
constitute aggravating and mitigating circumstances - A decision of
a Judge in sentencing, would vary from person to person and also
from stage to stage - It is controlled by the mind - The environment
and the upbringing of a Judge would become the ultimate arbiter
in deciding the sentence - A Judge from an affluent background
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might have a different mindset as against a Judge from a humble
one - A female Judge might look at it differently, when compared
to her male counterpart - An Appellate Court might tinker with
the sentence due to its experience, and the external factors like
institutional constraints might come into play - There is a crying need
for a clear sentencing policy, which should never be judge-centric
as the society has to know the basis of a sentence - Sentencing
shall not be a mere lottery - It shall also not be an outcome of a
knee-jerk reaction - This is a very important part of the Fundamental
Rights conferred under Articles 14 and 21 - Various elements such
as deterrence, incapacitation and reformation should form part
of sentencing - The need for adequate guidelines for exercising
sentencing discretion, avoiding unwanted disparity, is of utmost
importance - Courts do take into consideration the mitigating and
aggravating circumstances - However, no research has been
undertaken for constituting what are aggravating and mitigating
circumstances - Suggestions made - Department of Justice, Ministry
of Law and Justice, Government of India to consider introducing
a comprehensive policy, possibly by way of getting an appropriate
report from a duly constituted Sentencing Commission consisting
of experts in different fields for the purpose of having a distinct
sentencing policy - Government of India to file an affidavit on the
feasibility of introducing a comprehensive sentencing policy and a
report thereon, within six months. [Paras 29, 30, 32-36, 37, 40, 58]
Administration of Criminal Justice - Denial of due opportunity
to defend and hearing - Trial against the accused under
POCSO Act was conducted by appellant-judicial officer in
utmost haste - At every stage, the accused was denied due
opportunity to defend himself - High Court set aside the
conviction and the death sentence and a de novo trial was
ordered - In Criminal Appeal No.3925 of 2023 filed by the very
same judicial officer, a similar conviction was rendered in the
trial which was concluded in a single day and the accused
was sentenced to life imprisonment:
Held: High Court while passing both the impugned judgments not
only called for the records and rendered findings of fact, but also
considered them in detail - At every stage, the accused was denied
due opportunity to defend himself - The appellant was acting in
utmost haste - It would be humanly impossible to deliver the judgment
within half an hour's time running into 27 pages consisting of 59
paragraphs in the first case and similarly in the other - At every
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Sunita Devi v. The State of Bihar & Anr.
stage, including framing of charges, there was a constant denial
of due opportunity and hearing - Accused was not able to consult
his lawyer - He was not even served with the copies, though his
lawyer received the same before framing of the charges - Receiving
of documents by his lawyer would not be sufficient compliance,
unless there was sufficient time given for him to peruse them and
thereafter have a consultation - Admittedly, neither the provisions of
the Witness Protection Scheme, 2018 were invoked nor the Rules
for Video Conferencing for Courts, 2020 were followed - Further,
the appellant was fortunate that no action was taken against him
thus, in the absence of any proposed action, there is no question of
hearing him - Trial court to keep in mind the mandate of POCSO
Act, 2012 while recording the evidence of the victim and to conduct
and complete the trial expeditiously. [Paras 32, 55, 56, 58]
Code of Criminal Procedure, 1973 - s.360 - Probation of
Offenders Act, 1958 - ss.3, 4, 6:
Held: Section 360 speaks of releasing a convict on probation of
good conduct or after admonition - Before passing the sentence
on a convict, after rendering conviction, the Judge shall consider
the feasibility of proceeding in accordance with this provision -
Being a beneficial provision dealing with a reformative aspect,
it is the bounden duty of the Judge to consider the application
of this provision before proceeding to hear the accused on
sentence - While doing so, the Judge has to hear the accused
and the prosecution - Similarly, the Court has to apply the salient
provisions contained under Sections 3, 4 and 6 of the Probation
of Offenders Act, 1958 - A trial court is duty bound to comply with
the mandate of Section 360 of the CrPC, 1973 read with Sections
3, 4 and 6 of the Act, 1958 before embarking into the question of
sentence. [Para 28]
Administration of Justice - Administration of Criminal Justice -
Conduct of a fair trial - Constitution of India - Articles 14,
21 - Absence of a fair trial violates fundamental rights:
Held: A fair trial would include due compliance of the procedure
with adequate opportunities for all the stakeholders - Such
procedural safeguards and compliance are to be kept in mind by
the Court, as any deviation might either impact the prosecution
or the defence in a given case - A fair trial is the heart and soul
of criminal jurisprudence - It is not only a statutory right, but also
a human right, which would be violated when the safeguards
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provided under the Statute are not followed - The absence of a
fair trial would seriously impair and violate the fundamental rights
guaranteed under Articles 14 and 21 - The right to fair hearing is
a part of Article 21 - A trial should be a real one and, therefore,
not a mere pretence - There shall never be an impression over
the decision of a Court that it has predetermined and pre-judged a
case even before starting a trial, or else, such a trial would become
an empty formality - Principle of presumption of innocence and
concept of speedy trial, discussed. [Paras 7, 9, 10]
Code of Criminal Procedure, 1973 - ss.238, 207:
Held: Section 238 mandates that while dealing with a warrant case
instituted on a police report, the Magistrate shall satisfy himself that
he has complied with the provisions of Section 207 - In all these
cases, due compliance is to be done when the accused is produced
or appears before the Magistrate - Therefore, Section 238 reiterates
the bounden duty of a Magistrate and, if not done, to be complied with
at the time of commencement of the trial - Such a reiteration would
only reinforce a renewed emphasis on due compliance being a facet
of fair play - An accused shall be put to notice on the incriminating
materials leading to the charges framed against him - The obligation
so imposed is not only on the supply of the relevant documents,
but such compliance should be at the appropriate stage so that it
does not brook any delay - The idea is to enable an accused to
face the trial by thoroughly understanding the case stated against
him - However, a mere non-supply of a part of the documents would
not lead to the trial being vitiated, unless an accused substantiates
before the Court that it has caused prejudice to him - It is ultimately
for the Court to come to an appropriate conclusion by an adequate
assessment of facts placed before it. [Para 16]
Code of Criminal Procedure, 1973 - s.465 - Rigour of, when
not applicable:
Held: If the Appellate Court is of the view that there is a continued
non-compliance of the substantial provisions of the CrPC, 1973
then the rigour of Section 465 of the CrPC, 1973 would not apply
and, in that case, an order of remand would be justified - This
provision is meant to uphold the decision of the trial court, even
in a case where there is an apparent irregularity in procedure - If
the evidence available has been duly taken note of by the Court,
then such a decision cannot be reversed on account of a mere
technical error - This is based on the principle that a procedural
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Sunita Devi v. The State of Bihar & Anr.
law is the handmaid of justice - However, the ultimate issue is as
to whether such an error or omission has constituted a failure of
justice, which is one of fact, to be decided on the touchstone of
prejudice. [Para 25]
Code of Criminal Procedure, 1973 - ss.227, 228 - Discharge -
Framing of charge - Constitution of India - Article 22:
Held: Before the stage of framing of charges, the Judge is expected
to discharge an accused, if he is of the considered view that there
is no sufficient ground to proceed against the accused - This being
a judicial exercise, his discretion must be supported by adequate
reasons - In discharge of his powers, he has to consider the
records and documents submitted by the prosecution vis-à -vis the
arguments adduced by both sides - The words "after hearing the
submissions of the accused" would imply an effective and meaningful
hearing - It is not a mere procedural compliance - The duty of
the Court is to see as to whether the materials produced by the
prosecution are reasonably related to the offence attributed against
the accused - What is to be seen is the existence of a prima facie
case - The case is at a pre-framing stage and therefore, it cannot
be a full-fledged pre-trial - Adequacy and sufficiency are the relevant
factors to be seen - The test is one of the degree of probability -
Section 227 gives effect to Article 22 of the Constitution - The
right of an accused to be heard is inalienable - For exercising
this right, there has to be due consultation - It is the duty of the
court to ensure that the accused is given sufficient opportunities
to consult his lawyer - Under sub-section (2) of Section 228 of the
CrPC, 1973, the Judge, while framing any charge, is ordained to
read and explain it to the accused - Thereafter, the accused shall
be asked as to whether he pleads guilty of the offence charged or
claims to be tried - This is an occasion where the Judge avoids
the lawyer and keeps in touch with the accused directly - Unless a
situation so warrants otherwise, the presence of the accused shall
be ensured. [Paras 18-21]
Code of Criminal Procedure, 1973 - ss.230, 231, 233, 309:
Held: Sections 230, 231 are to be read in consonance with
each other - At this stage, the Court is concerned only with
the prosecution's evidence - To ensure fair play, as a normal
practice, the Court has to fix a date for the examination of the
witnesses - The idea is to complete the examination-in-chief
and cross examination, both at the same time - While fixing the
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date, the Court is expected to take into consideration the relative
convenience of the parties, though the discretion lies with it - A
balance has to be struck between the competing interests -
Further, when an application is moved invoking Section 233, the
Judge is duty bound to issue process, unless he is satisfied on
the existence of the three elements, as stated - Any denial would
be an affront to the concept of a fair trial - Section 309 places
emphasis on the continuation of the trial as any obstruction and
delay would hamper the process of justice - Despite a bar under
the second and fourth proviso to Section 309, an adjournment
can be granted, provided the party who seeks so, satisfies the
court. [Paras 22-24]
Code of Criminal Procedure, 1973 - s.386 - Powers of the
Appellate Court - Re-trial:
Held: An Appellate Court has got ample power to direct re-trial -
However, such a power is to be exercised in exceptional cases -
The irregularities found must be so material that a re-trial is the
only option. [Para 27]
Sentencing - Sentencing policy - Sentencing policy adopted
in countries like Israel, Canada, New Zealand and UK -
Discussed. [Paras 38-40]
Case Law Cited
Mohd. Hussain v. State (Govt. of NCT of Delhi) [2012] 10 SCR
480 : (2012) 9 SCC 408; State of Haryana v. Ram Mehar [2016]
5 SCR 172 : (2016) 8 SCC 762; Talab Haji Hussain v. Madhukar
Purshottam Mondkar [1958] 1 SCR 1226; Naresh Kumar Yadav
v. Ravindra Kumar [2007] 11 SCR 615 : (2008) 1 SCC 632; P.
Gopalkrishnan v. State of Kerala [2019] 17 SCR 422 : (2020) 9
SCC 161; Anokhilal v. State of M.P. [2019] 18 SCR 1196 : (2019)
20 SCC 196; Kewal Krishan v. Suraj Bhan 1980 (Supp.) SCC
499; Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014)
3 SCC 92; Sajjan Kumar v. CBI [2010] 11 SCR 669 : (2010) 9
SCC 368; Mohd. Ajmal Amir Kasab v. State of Maharashtra [2012]
8 SCR 295 : (2012) 9 SCC 1; State of Kerala v. Rasheed [2018]
13 SCR 587 : (2019) 13 SCC 297; State of UP v. Shambu Nath
Singh [2001] 2 SCR 854 : (2001) 4 SCC 667; State of M.P. v.
Bhooraji [2001] Supp. 2 SCR 128 : (2001) 7 SCC 679; Darbara
Singh v. State of Punjab [2012] 7 SCR 541 : (2012) 10 SCC 476;
[2024] 5 S.C.R.
635
Sunita Devi v. The State of Bihar & Anr.
Kottayya v. Emperor, AIR (34) 1947 Privy Council 67; Nasib Singh
v. State of Punjab [2021] 13 SCR 566 : (2022) 2 SCC 89; Manoj v.
State of M.P. [2023] 11 SCR 246 : (2023) 2 SCC 353; Dhananjoy
Chatterjee v. State of W.B. [1994] 1 SCR 37 : (1994) 2 SCC 220;
Swamy Shraddananda (2) v. State of Karnataka [2008] 11 SCR
93 : (2008) 13 SCC 767; Soman v. State of Kerala [2012] 11 SCR
1155 : (2013) 11 SCC 382 - referred to.
Munna Pandey v. State of Bihar [2023] 11 SCR 1005 : AIR 2023
SUPREME COURT 5709; Akil v. State (NCT of Delhi) [2012] 13
SCR 659 : (2013) 7 SCC 125; Sakshi v. Union of India [2004]
2 Suppl. SCR 723 : (2004) 5 SCC 518; State of Maharashtra v.
Mahesh Kariman Tirki (2022) 10 SCC 207; Pradeep S. Wodeyar
v. State of Karnataka [2021] 11 SCR 985 : (2021) 19 SCC 62 -
held inapplicable.
Books and Periodicals Cited
"Discretion, Discrimination and the Rule of Law, Reforming
Sentencing in India", authored by Mr. Mrinal Satish, published by
the Cambridge University Press, (2017); 47th Report of the Law
Commission of India, Report by the Committee on Reforms of
Criminal Justice, Chaired by Dr. Justice V.S. Malimath, (2003), Report
by the Committee on Draft National Policy on Criminal Justice,
Chaired by Dr. N.R. Madhava Menon - referred to.
List of Acts
Code of Criminal Procedure, 1973; Probation of Offenders Act, 1958;
Code of Criminal Procedure, 1898; Rules for Video Conferencing
for Courts, 2020; Witness Protection Scheme, 2018; Criminal
Code (Canada); Sentencing Act 2002, New Zealand; Coroners
and Justice Act, 2009 (UK); Sentencing Act 2020 (UK).
List of Keywords
Sentencing; Sentencing policy; Need for sentencing policy;
Comprehensive sentencing policy; Disparities in awarding sentence;
Denial of due opportunity to defend; Death sentence; de novo trial;
Principle of presumption of innocence; Fair trial; Absence of a
fair trial; Right to fair hearing; Article 21; Speedy trial; Sentencing
discretion; Aggravating and mitigating circumstances; Lack of policy/
legislation on sentencing; Judge-centric sentencing; Deterrence;
Incapacitation; Reformation; Sentencing Commission; Examination
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of the witnesses; Witness Protection Scheme; Examination-in-chief;
Cross examination; prima facie case; Video Conferencing; Preframing stage; Full-fledged pre-trial; Supply of relevant documents;
Non-compliance of mandatory provisions; Discharge; Framing of
charge; Effective and meaningful hearing; Right of an accused
to be heard; Re-trial; Sentencing policy in Israel, Canada, New
Zealand, UK.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3924
of 2023
From the Judgment and Order dated 16.08.2022 of the High Court
of Judicature at Patna in CRADB No. 203 of 2022
With
Criminal Appeal Nos. 3926-3927 and 3925 of 2023
Appearances for Parties
Vikas Singh, Sr. Adv., Ms. Deepeika Kalia, Satwik Misra, Ms. Gunjan
Dogra, Ms. Devashree, Keshav Khandelwal, Ms. Vasudha Singh,
Ms. Udita Singh, Mrityunjai Singh, Advs. for the Appellant.
Chander Uday Singh, Sr. Adv., Gautam Narayan, Ms. Asmita Singh,
Harshit Goel, Samir Ali Khan, Pranjal Sharma, Abhimanyu Jhamba,
Nishesh Sharma, Ms. Prerna Singh , Anil Kumar, Sidharth Sarthi,
Shantanu Sagar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1.
Criminal Appeal No.3924 of 2023 has been filed by the informant,
against the order of remittal passed by the Division Bench of the Patna
High Court directing the Trial Court to conduct a de novo trial, while
making certain observations against the Special Judge, disapproving
his approach in the conduct of the trial. Criminal Appeal Nos.3926-3927
of 2023 have been filed by the learned Special Judge who conducted
the trial and thereafter delivered the judgment. Criminal Appeal No.3925
of 2023 has been filed by the very same learned Judge, aggrieved
over the remarks once again made by the High Court in an order of
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Sunita Devi v. The State of Bihar & Anr.
remittal, requesting the Hon'ble Chief Justice of the Patna High Court
to consider whether the Judicial Officer should be assigned the function
of holding sessions trial which have far reaching consequences, while
sending him for fresh training to the State Judicial Academy.
2.
Heard Learned Senior Counsel Mr. Vikas Singh for the appellant and
Learned Senior Counsel Mr. C. U. Singh for the respondents. We
have perused the documents filed along with the written submissions
made by the parties.
3.
Before going into the submissions on merit, we shall first deal with
the provisions governing the legal position in conducting a trial.
VIDEO CONFERENCING
Rule 6 of the Rule for Video Conferencing for Courts, 2020
"6. Application for Appearance, Evidence and
Submission by Video Conferencing:
6.1 Any party to the proceeding or witness, save and
except where proceedings are initiated at the instance of
the Court, may move a request for video conferencing. A
party or witness seeking a video conferencing proceeding
shall do so by making a request in the form prescribed
in Schedule II.
6.2 Any proposal to move a request to for video
conferencing should first be discussed with the other
party or parties to the proceeding, except where it is not
possible or inappropriate, for example in cases such as
urgent applications.
6.3 On receipt of such a request and upon hearing all
concerned persons, the Court will pass an appropriate order
after ascertaining that the application is not filed with an
intention to impede a fair trial or to delay the proceedings.
6.4 While allowing a request for video conferencing, the
Court may also fix the schedule for convening the video
conferencing.
6.5 In case the video conferencing event is convened
for making oral submissions, the order may require the
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Advocate or party in person to submit written arguments
and precedents, if any, in advance on the official email ID
of the concerned Court.
6.6 Costs, if directed to be paid, shall be deposited
within the prescribed time, commencing from the date
on which the order convening proceedings through video
conferencing is received."
Rule 8 of the Rule for Video Conferencing for Courts, 2020
"8. Examination of persons.-
8.3 Where the person being examined, or the accused
to be tried, is in custody, the statement or, as the
case may be, the testimony may be recorded through
video conferencing. The Court shall provide adequate
opportunity to the under-trial prisoner to consult in privacy
with their counsel before, during and after the video
conferencing."
Rule 11 of the Rule for Video Conferencing for Courts, 2020
"11. Judicial remand, framing of charge, examination
of accused and Proceedings under Section 164 of
the CrPC.-
11.1 The Court may, at its discretion, authorize detention
of an accused, frame charges in a criminal trial under the
CrPC by video conferencing. However, ordinarily judicial
remand in the first instance or police remand shall not be
granted through video conferencing save and except in
exceptional circumstances for reasons to be recorded in
writing.
11.2 The Court may, in exceptional circumstances, for
reasons to be recorded in writing, examine a witness or
an accused under Section 164 of the CrPC or record the
statement of the accused under Section 313 CrPC through
video conferencing, while observing all due precautions to
ensure that the witness or the accused as the case maybe
is free of any form of coercion, threat or undue influence.
The Court shall ensure compliance with Section 26 of the
Evidence Act."
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Sunita Devi v. The State of Bihar & Anr.
4.
The High Court of Patna, in exercise of the powers conferred under
Articles 225 and 227 of the Constitution of India, 1950, framed rules
and procedures relating to the use of video conferencing for Courts.
This was done with the concurrence of the State Government. "Rules
for Video Conferencing for Courts, 2020" delineate the general
principles governing video conferencing. Rule 6 provides for an
application seeking video conferencing. When such an application is
made, it has to be put to the other party followed by an appropriate
order by the court indicating its satisfaction for granting approval. As
per Rule 8, when the testimony of a person being examined is to
be recorded through video conferencing, the court shall provide an
adequate opportunity to the undertrial prisoner to consult in privacy
with his counsel at different stages - before, during and after. Under
Rule 11, an act of securing the presence of an accused through
video conferencing at the time of judicial remand for the first time
or police remand, is not a matter of course and, therefore, it is to
be exercised only in exceptional circumstances for the reasons
to be recorded in writing. Similar is the case qua recording of the
statement of an accused under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the "CrPC, 1973"), in
which case, it is obligatory on the part of the Court to make sure
that the accused is free from any form of coercion, threat or undue
influence.
5.
On a conjoint reading of the aforesaid rules, it is only appropriate
that the accused has to be produced before the Court, rather than
marking his appearance through video conferencing, the latter being
an exception. While applying its mind, the Court has to rule out the
possibility of any misuse.
WITNESS PROTECTION SCHEME, 2018
6.
Witness Protection Scheme, 2018 has been introduced in the interest
of the administration of justice, while enforcing a criminal law. It is
meant to take care of a situation where the witnesses are made
to depose before the Court by completely abandoning the case of
the prosecution, either by fear or favour. The scheme provides for
a competent authority which is the Standing Committee headed
by a District and Sessions Judge with the head of the Police in
the District as a Member and the head of the Prosecution as its
Member Secretary. A witness is at liberty to seek protection before
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the competent authority. The head of the police is expected to place
before the competent authority a "Threat Analysis Report". The
Scheme lays down in detail, the action proposed to be taken, once
such an application is filed.
FAIR TRIAL
7.
A fair trial would include due compliance of the procedure with
adequate opportunities for all the stakeholders. Such procedural
safeguards and compliance are to be kept in mind by the Court, as
any deviation might either impact the prosecution or the defence
in a given case. In an adversarial system of criminal law, which is
being followed in India, when an accused is prosecuted on behalf
of the State, the interest of a victim cannot be ignored. An offence
is presumed to be against societal values and, therefore, any crime
would constitute a deviant act by the accused.
8.
Every trial is a march towards the truth. It is the primary duty of
the Court to search for the truth using the procedural law as its
tool. Such a procedural law may have a substantive part extending
certain inalienable rights to both, the accused and the victim. By
non-compliance of the procedural law, justice cannot be allowed
to derail. Anyone, who complains of an unfair trial, is duty bound
to satisfy the Court that he stands prejudiced by it. This does not
mean that a Court can be lackadaisical in following the rules and
procedures meant to ensure justice.
9.
A fair trial is the heart and soul of criminal jurisprudence. The principle
of democracy lies in a fair trial. It is not only a statutory right, but
also a human right, which would be violated when the safeguards
provided under the Statute are not followed. The absence of a fair trial
would seriously impair and violate the fundamental rights guaranteed
under Articles 14 and 21 of the Constitution of India, 1950. What is
important to be seen is the existence of a failure of justice, which
is obviously one of fact. A mere violation per se would not vitiate
the trial, especially when the degree of substantivity exhibited in a
statute is minimal.
10. The right to fair hearing is a part of Article 21 of the Constitution of
India, 1950. A trial should be a real one and, therefore, not a mere
pretence. There shall never be an impression over the decision
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of a Court that it has pre-determined and pre-judged a case even
before starting a trial, or else, such a trial would become an empty
formality.
Precedents
J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401
"28. 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. 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.
29. 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 a bout 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
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lethargy of the prosecuting agency or the State machinery
and that is the raison d'être in prescribing the time frame"
for conclusion of the trial."
(emphasis supplied)
Rattiram v. State of M.P., (2012) 4 SCC 516
"39. The question posed by us fundamentally relates to
the non-compliance with such interdict. The crux of the
matter is whether it is such a substantial interdict
which impinges upon the fate of the trial beyond any
redemption or, for that matter it is such an omission
or it is such an act that defeats the basic conception
of fair trial. 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.
40. In Kalyani Baskar v. M.S. Sampoornam [(2007) 2
SCC 258 : (2007) 1 SCC (Cri) 577] it has been laid down
that "fair trial" includes fair and proper opportunities
allowed by law to the accused to prove innocence and,
therefore, adducing evidence in support of the defence
is a valuable right and denial of that right means denial
of fair trial. It is essential that the rules of procedure
designed to ensure justice should be scrupulously
followed and the courts should be zealous in seeing
that there is no breach of them.
41. In this regard, we may fruitfully reproduce the
observations from Manu Sharma v. State (NCT of Delhi)
[(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] wherein it has
been so stated : (SCC pp. 79-80, para 197)
"197. In the Indian criminal jurisprudence, the
accused is placed in a somewhat advantageous
position than under different jurisprudence of
some of the countries in the world. The criminal
justice administration system in India places
human rights and dignity for human life at a much
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higher pedestal. In our jurisprudence an accused
is presumed to be innocent till proved guilty, the
alleged accused is entitled to fairness and true
investigation and fair trial and the prosecution
is expected to play balanced role in the trial of
a crime. The investigation should be judicious,
fair, transparent and expeditious to ensure
compliance with the basic rule of law. These
are the fundamental canons of our criminal
jurisprudence and they are quite in conformity
with the constitutional mandate contained in
Articles 20 and 21 of the Constitution of India."
(emphasis supplied)
42. It would not be an exaggeration if it is stated that a
"fair trial" is the heart of criminal jurisprudence and, in
a way, an important facet of a democratic polity that is
governed by rule of law. Denial of "fair trial" is crucifixion
of human rights. It is ingrained in the concept of due
process of law. While emphasising the principle of "fair
trial" and the practice of the same in the course of
trial, it is obligatory on the part of the courts to see
whether in an individual case or category of cases,
because of non-compliance with a certain provision,
reversion of judgment of conviction is inevitable or it
is dependent on arriving at an indubitable conclusion
that substantial injustice has in fact occurred."
(emphasis supplied)
Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158
"35. This Court has often emphasised that in a criminal
case the fate of the proceedings cannot always be left
entirely in the hands of the parties, crimes being public
wrongs in breach and violation of public rights and duties,
which affect the whole community as a community and
are harmful to the society in general. The concept of
fair trial entails familiar triangulation of interests
of the accused, the victim and the society and it
is the community that acts through the State and
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prosecuting agencies. Interests of society are not to
be treated completely with disdain and as persona
non grata. Courts have always been considered to
have an overriding duty to maintain public confidence
in the administration of justice - often referred to
as the duty to vindicate and uphold the "majesty of
the law". Due administration of justice has always
been viewed as a continuous process, not confined
to determination of the particular case, protecting
its ability to function as a court of law in the future
as in the case before it. 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 by becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find
out the truth, and administer justice with fairness and
impartiality both to the parties and to the community it
serves. Courts administering criminal justice cannot turn
a blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name
and standing of the judges as impartial and independent
adjudicators.
xxx xxx xxx
39. Failure to accord fair hearing either to the accused
or the prosecution violates even minimum standards
of due process of law. It is inherent in the concept
of due process of law, that condemnation should be
rendered only after the trial in which the hearing is a
real one, not sham or a mere farce and pretence. Since
the fair hearing requires an opportunity to preserve
the process, it may be vitiated and violated by an
overhasty, stage-managed, tailored and partisan trial.
xxx xxx xxx
54. Though justice is depicted to be blindfolded, as
popularly said, it is only a veil not to see who the party
before it is while pronouncing judgment on the cause
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brought before it by enforcing law and administer
justice and not to ignore or turn the mind/attention
of the court away from the truth of the cause or lis
before it, in disregard of its duty to prevent miscarriage
of justice. When an ordinary citizen makes a grievance
against the mighty administration, any indifference, inaction
or lethargy shown in protecting his right guaranteed in
law will tend to paralyse by such inaction or lethargic
action of courts and erode in stages the faith inbuilt in
the judicial system ultimately destroying the very justicedelivery system of the country itself. Doing justice is
the paramount consideration and that duty cannot
be abdicated or diluted and diverted by manipulative
red herrings."
(emphasis supplied)
PRESUMPTION OF INNOCENCE AND SPEEDY TRIAL
11. Unless a statute indicates otherwise, a criminal trial would commence
with the presumption of innocence. This principle is of utmost
importance as the Court embarks upon a trial in its quest for the
truth. Though an accused is charged with an offence, it is the Court
which has to satisfy its conscience, upon the prosecution proving
the charges levelled beyond reasonable doubt. For the aforesaid
purpose, an accused will have to be given a decent setting to prove
his innocence. Compliance with the procedural safeguard is meant
for the aforesaid purpose. However, such procedural safeguards
would not only ensure a fair trial, but also help the prosecution in
confirming that it did its part fairly.
12. The concept of fair trial is not a vague idea, but a decisive one. While
a speedy trial is in the best interest of everyone, including the society,
the pace can only be set through the procedural mechanism, and it
cannot be done at the mere dictate of the Court in ignorance of the
procedural law. At the same time, care has to be taken with the aid of
the law, to prevent the miscarriage of justice, when the delay is caused
on purpose. Thus, a speedy trial, being a facet of fair trial, cannot be
permitted to destroy the latter by its recklessness. Any anxiety on the
part of the Court, either to expedite the trial in contravention of law, or
delay it unnecessarily, would seriously impede fair trial. In such a case,
either the prosecution or the defence would bear the consequences.
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Precedents
Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408
"40. "Speedy trial" and "fair trial" to a person accused
of a crime are integral part of Article 21. There is,
however, qualitative difference between the right to
speedy trial and the accused's right of fair trial. Unlike
the accused's right of fair trial, deprivation of the right
to speedy trial does not per se prejudice the accused in
defending himself. The right to speedy trial is in its very
nature relative. It depends upon diverse circumstances.
Each case of delay in conclusion of a criminal trial has
to be seen in the facts and circumstances of such case.
Mere lapse of several years since the commencement of
prosecution by itself may not justify the discontinuance
of prosecution or dismissal of indictment. The factors
concerning the accused's right to speedy trial have
to be weighed vis-à-vis the impact of the crime on
society and the confidence of the people in judicial
system. Speedy trial secures rights to an accused but
it does not preclude the rights of public justice. The
nature and gravity of crime, persons involved, social
impact and societal needs must be weighed along
with the right of the accused to speedy trial and if the
balance tilts in favour of the former the long delay in
conclusion of criminal trial should not operate against
the continuation of prosecution and if the right of the
accused in the facts and circumstances of the case
and exigencies of situation tilts the balance in his
favour, the prosecution may be brought to an end.
These principles must apply as well when the appeal
court is confronted with the question whether or not
retrial of an accused should be ordered."
(emphasis supplied)
State of Haryana v. Ram Mehar, (2016) 8 SCC 762
"24. The decisions of this 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
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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.