B.Com. LL.B. (Five Years) Sem 7 Criminal Law II 2022 Apr (70 marks) Question Paper with Solutions

For full marks, cover: what "free and fair trial" means and where it comes from (articles 14, 20, 21 and 22 of the Constitution); how far the Code of Criminal Procedure, 1973 secures it, stage by stage: a neutral and open court, an accused who knows the case, counsel and legal aid, evidence in his presence and in his language, the right to answer and to defend, finality and speed; the safety valves of transfer and retrial; where the Code falls short; the leading cases (Maneka Gandhi, Zahira Habibulla H. Sheikh, Maneka Sanjay Gandhi v. Rani Jethmalani); the Bharatiya Nagarik Suraksha Sanhita, 2023; a conclusion.

What a free and fair trial means

A trial is free when the accused can defend himself without fear or obstruction. It is fair when an impartial court decides on evidence tested in the open, after he has heard and answered the case against him. The idea is older than the Code. Since Maneka Gandhi, it is part of the right to life and personal liberty in article 21.

3. Counsel and legal aid. Every accused has the right to be defended by a pleader of his choice (section 303). In a trial before the Court of Session, an accused without means must be given a lawyer at the State's expense (section 304). The Supreme Court has read this right into article 21 for every stage where liberty is at risk.

4. Evidence in his presence and his language. All evidence must be taken in the presence of the accused, or of his pleader when his attendance is dispensed with (section 273). Evidence given in a language he does not understand must be interpreted to him in open court (section 279).

5. The right to answer and defend. He may cross-examine every prosecution witness. The court must question him personally to let him explain the circumstances against him (section 313). He may give evidence on oath in his own defence, but cannot be compelled to (section 315). His silence cannot be the subject of comment.

6. Finality and speed. A person once convicted or acquitted cannot be tried again for the same offence (section 300). Proceedings must be held from day to day once the examination of witnesses begins, and adjournments need recorded reasons (section 309).

Facts. In Zahira Habibulla H. Sheikh v. State of Gujarat, decided on 12 April 2004, a mob burnt the Best Bakery at Vadodara and fourteen people died. Witnesses turned hostile and every accused was acquitted. The star witness later said she had been threatened.

Held. The trial was a denial of a fair trial. The Public Prosecutor had not fairly presented the case or protected the witnesses. A retrial was ordered before a court under the Bombay High Court.

Why it bears. Fairness is owed to the victim and society as well as to the accused.

Facts. In Maneka Sanjay Gandhi v. Rani Jethmalani, decided on 23 November 1978, the accused in a defamation case in Bombay sought a transfer to Delhi. She pleaded inconvenience, a hostile atmosphere and difficulty in finding a lawyer.

Held. A fair trial is the first imperative. But a transfer needs something substantial and compelling, not mere convenience. The petition was dismissed.

Why it bears. It sets the test for the transfer power in sections 406 and 407.

Conclusion. The Code goes a long way towards a free and fair trial. It gives the accused notice of the case, counsel, evidence in his presence, a chance to answer and protection from a second trial. Transfer and retrial correct an unfair trial, as Zahira shows. Its weak points are delay and the protection of witnesses. As Maneka Gandhi holds, the measure is always whether the procedure is right, just and fair.