 isn't it that we always want to understand what are the principles for a fair trial? And once you have an eminent speaker like Dr. A. Vijilakshmi, who is teaching in the School of Excellence in Law, the Tamil Nadu Dr. Maitkar Law University, Chennai, there couldn't be a better enlightenment and that too on a Saturday. Even though she had an appointment with the doctor, but her passion to pay back to the society made her change the schedule and here she is with us to share the knowledge sharing with us. Over to you ma'am and thank you for accepting our invitation. Thank you. Thank you so much, sir. It's always my pleasure and privilege to be part of Vikasar's program and platform. And as I said, although I am having some health issues, but always been academics relating to the academic discussion, we should come across all the ailment. And though it is an online, it will be so comfort for me doing that. And I'm so sorry, sir, because I pre-pwned the session from 6 o'clock to 5 o'clock due to some other appointment. Thank you so much. And good evening to all those who present today through this virtual platform. And I think most of us from a different Tamil Nadu and other state are being facing a lot of notifications regarding this CJ exams, judicial magistrates exam, another thing. So most of the people are being in the presentation or preparation of this exams. And I hope that this class to some extent will cater your needs. And it will be helpful for you for the preparation of it may be the academic exams or for this judiciary exams or for the competitive exams. So as said by sir, today we are going to discuss about the principles of fair trial. So this is what we are going to discuss today. So whether my screen is available to everyone? Yes, ma'am. Thank you, sir. So with respect to these principles of fair trial, because trial is the process because usually we had some confusion regarding three terms. One is investigation, inquiry and trial. Sometimes we interchangeably use the term inquiry when we have to use the term investigation. And sometimes we use the term investigation where we have to use the term inquiry or inquire. But these three terms are not synonyms which cannot be used synonymally or it cannot be used interchangeably. So investigation is a process which is purely meant for collection of evidence and this should be only handled by the investigating officer that is the police. We all know that it comes under section 154 to 176 of the CRPC which speaks about the investigation process. So it has five steps, collection of evidence and according of statements, collection of material documents, arrest, preparation of final report and everything. But this investigation report or the final report which has been filed by the investigating officer after the end of the investigation under section 173 of CRPC is going to play a role in the second category or the second phase of a criminal case that is the during the course of trial. So we all know that criminal justice system either it may be the Indian criminal justice system or it may be the international criminal justice system. The principle of natural justice somehow had an interplay with the principle of fair trial or fair trial principles. Not all natural justice principles will be equally applicable in the fair trial principles. But fair trial principles are the inclusive part of this natural justice principle. So trial then what is a trial? What do you mean by this trial? So trial is nothing but a judicial proceedings about determination of guilt or innocent of a person. So it is a judicial interpretation and this interpretation or determination is for either guilt or innocent of the person. So we all know very well that usually our general principle or a golden principle of Indian criminal justice system is presumption of innocence. So a person who has been produced before the court or who is standing before a court shall be presumed to be innocent beyond until the state has proved the case beyond all reasonable doubt. So they are been giving the entire burden of proving the case on the state or the prosecution side. So the accused is being presumed to be innocent. In such a case there are some principles that has to be adhered or to be followed throughout the trial procedure. It may be the warrant trial procedure or someone's trial procedure or a summary trial procedure or it may be the procedure relating to any other special law. So it may be the penal law or any other special or supplementary law relating to criminal justice system. So this fair trial protects the three aspects of the accused. One is human rights, fundamental rights and third one is the rights guaranteed under the CRPC. So these three rights are being either fulfilled or being safeguarded or guaranteed by way of proper invoking of this fair trial principle. So here you could see the two contradictory, one is trial, another one is fair trial. So what is the how we can differentiate between the trial and the fair trial? So trial means it would be in a process where you can go according to the law what it says black and white, what the law says in the book or what the law says in the CRPC. But fair trial speaks about the procedures to be followed or it becomes an obligation of both the judiciary and the organs of the judiciary like the prosecution office, the investigating office, even the defense counsel to be followed till the conclusion of the trial. So we are having 9 to 10 or 11 fair trial principles to be followed and let us discuss about this fair trial principles in this particular session. So the foremost principles of the fair trial is that separation of power will come the second. The first one would be the adversary system of criminal law. So we are following the Indian criminal justice system is following the adversary system of criminal law. We all know very well that there are two types of criminal justice system, one is adversary system of criminal law, another one is incisitorial system of criminal law. So countries like common law countries or English country are following the incisitorial system and we are following the adversary system of criminal law. So what is this adversary system of criminal law? So adversary system of criminal law is the process where we are following as the presumption of innocence which means the burden of proof is on the state. So because the state only converting a person into an accused. So till the completion of the trial or till the completion of the trial or till the case has been proved beyond all reasonable doubt the person should not be termed or should not be called as either criminal or offender or an convict person. So till the trial has been concluded till the state proved the case beyond all reasonable doubt the status given to the person who is standing before the court is accused. So he has been accused by the state accused alleging the person that he has committed so also. So then the law put the burden on the state the prosecution to prove the case beyond all reasonable doubt. So the burden of proving the case is on the accused side this is adversary system of criminal law that is what we are following. So that is what the entire CRPC and the Indian Evidence Act supporting the accused. So you could see in the Indian Evidence Act in a particular chapter in this presumption you could see the burden of proof or owners of proof from section 101 to 11 or even till 114 a also which includes the shall and may presumption papers. So it says that who is having the burden of proving the case it may be the civil or it may be the criminal the burden of proving the case is on the person who is instituting the case in the nature of civil you could see that the petitioner or the person who is expecting the remedy from the court and in case of criminal law or criminal justice system it is on the polis or it is on the state or the prosecution to prove the case. So what do you mean by proving the case? So proving the case is establishing the prima facie or establishing the elements of the charges made out against the person in the charge sheet. So each and every charge has to be established or to be properly proved by the state. So the element approving of the elements of the crime is the adversary system it is by the state. So for example if a person has been charged for the offense of this we could take an example of murder section 300. So it is their duty or it is the obligation of the state according to the adversary system of criminal law to justify or to establish the elements of murder under section 300 which means by what act the death has been happened the nature of injury and the consequence of death whether it has a direct link between the injury and the death whether the accused is having the high degree of knowledge or or intention for committing the crime whether the injury cost is the direct cost of death. So these are all the elements of section 300 this has to be proved by the state this is adversary system of criminal if it is an inquisitorial system of criminal law the burden will be shift to the difference which means the accused side. So the accused has to come and prove his innocence there is always a difference between proving guilty and proving innocence. So proving guilty is establishing the prima facie proving innocence is that you have to establish your innocence by establishing that somebody would have committed not by the person who has been standing before the court. So the adversary system of criminal law is moving or evading out or washing out this burden on the accused and we are following this adversary system of criminal law where the entire burden is on the state only to prove. But in limited circumstances in limited situation this burden of proof shift from the state to the accused side and we are all know very well the burden of proof or the Indian evidence that when a person avails or the moment he wants to apply any exemption it may be the general exception or it may be the private exception or private difference. So from section 75 to 106 if any one of the exception if the person wants to avail in his case that is the moment the burden of proving the situation shift from the state to the accused to prove his defense. Other than that the entire burden of proving the case is on the accused this is adversary system of criminal law. But in some special cases in some special supplementary laws or a special law like POXO protection of children from sexual offenses the owners of proof is on the accused. So if a child make any complaint about the sexual assault or aggravated sexual offense committed by any person sometimes it may be in an aggravated form which means the person who committed the offense against a child comes within a any authoritative position. It gives more and more stronger obligation or the burden on the accused to prove the case that he haven't committed the offense with an intention of that. And a second example for shifting of burden of proof is NDPS Act. If I am in the possession of narcotic drug or psychotropic substances with proper license or authority or permission or if I am in transporting or if I am caught hold while consuming. So there the culpable mental state is that the court shall presume that the act has been committed with intention unless the contrary is proved. So the interpretation of the phrase unless the contrary is proved is nothing but shifting of burden of proof from state to the accused. So only with like these principles like these areas limitedly the burden of proof has been shifted from the accused state to the accused. Other than that the foremost thing is that the state is responsible to prove the case beyond all reasonable doubt either proving innocence or proving guilty of the person. So this is the first principle. The second principle about this fire trial is that independent competent and impartial judiciary. So what is this independent competent and impartial judiciary? So we can in other you can otherwise call it as separation of powers for independent judiciary. So according to the constitution we are having three wing executive legislature and judiciary. So if you want to commit a case if you want to conduct a trial the judiciary should be given a full and fair freedom to conduct the trial without the intervention of either the legislature or the executive. So separation of judiciary from the legislature and executive will give the power and scope to the judiciary to conduct the trial without any interference and with a free mind and impartiality. So the independent functioning of judiciary without any intervention or without having any influence or force or pressure into it. So it gives more and more interpretation that was article 15 of the constitution says that there must not be any intervention between this. And the second regarding to this independent judiciary with some limited exception the higher judiciary should not interfere with the lower judiciary. So the lower judiciary which means the magistrate court is having their own jurisdiction powers and functions and the higher judiciary is also having their own jurisdiction powers and functions. With the limited thing the higher judiciary should involve within the lower functions of the lower judiciary. So the higher judiciary must be the a monitoring in such a capacity should observe should supervise whether the due process of law or the fair justice has been awarded. Instead of that they should not interfere or they should not intervene within the powers and functions of the lower judiciary. Involvement or the intercession of this executive or legislative to the judiciary during the course of trial. So what I am discussing about here regarding the separation of powers or independent judiciary is that only limited to the during the course of trial. So when there are some cases where you cannot any government government order or any anything may interfere into this trial procedure unless it comes from the judiciary, not from the executive or from the judiciary or from the legislature. So in such a case each and every judicial hierarchy with respect to this criminal justice system from the lower most for example judicial magistrate, chief judicial magistrate at assistant session judge, session judge then high court. So chief judicial magistrate will come under the control of CJM or chief judicial magistrate. This CJM and JM will be been monitored by the sessions court. This sessions court CJM magistrate court will be monitored by the high court. So this is the hierarchy it comes to the judiciary. There may be the interlink and there may be the pausing of orders between these judiciary but not by the external powers which cause any disturbance or any abuse between the proceedings of the trial. So again and again stressing regarding the trial principle there must be the independence of judiciary in conducting the trial. So that's what we are coming it could come across where it intrigue orders if I want to get an injunction to stop the proceedings for that that should be done only by the judiciary not by the legislature or not by the executive. If I want to get any remedy between return of property in case of any trial is going on and my vehicle has been seized as because my vehicle has been misused or abused by my friend for the commission of the crime and I want to get back my vehicle I will approach only the judiciary not the executive or not the legislature. So in such a case there must be the interplay or there must be the interaction between the higher judiciary and lower judiciary but not the involvement of this executive or legislature and the second thing independent judiciary is that any order passed by the lower judiciary unless otherwise it involves possible ratification or ratification of error the order shall not be modified or it shall be modified when there is only the question of law which already we just speak about this what to say appeal or revision or review or other things. So other than that the orders shall not be and we come across various judgment and we are all very the very interpretative judgment passed two years back I think three years back on this FOXO act where a judgment passed by the high court of one of the state where it has been questioned by the attorney general of India as we move to the supreme court where the supreme court in turn changed or reversed the judgment passed by the high court where the original judgment is has been retained by the supreme court in such a case only there will be a modification of orders otherwise then the legislature shall not pass any order with respect to trial and the executive should not pass any government order or any interim relating to this judicial process and with respect to the second one regarding this impartial impartial judiciary. So impartial judiciary speaks about the powers or functions within the judiciary. So impartial judiciary you all know we are all very well about to the maxim Nemo dudek stasa improprio accio which means no person shall be the judge of his own case. I shall not be the judge of my own case. So this is impartial judiciary. So last week also one of the judge in the supreme court has rescued himself from the case as because he was one of the advisor when he was an advocate. So this shows the impartiality in the judiciary. If I am having any personal interest in a particular case and if there is a possibility of showing any injustice or partiality towards the case I should be rescued from the case by myself. So I should not involve in that case that is impartiality. So another thing that either the witness should not be interested witness either the party should not be the interested party either the case should not be the interested case. So in any of these matters or sometimes some judges who are very particular about this impartial judges if any judgment passed by them and their voices the lawyer judiciary and if the case came before him come before him when he was any higher court judiciary he will not take the case as because there may be a possibility of impartiality that was judgment passed by me how could I myself will change my own judgment. So in such a case there are some judges where they are showing that as this judgment passed by me I should not that is what the judgment passed by the judge shall not be placed before the same judge in way of appeal or reaction it should be go before the some other judge very limited in in cases like the second bail or third bail only they gave the judgments that the second bail application or third bail application should be placed before the judge who dismissed the earlier one. So that is what we are reviling the appeal before the division bench if any single bench has passed the judgment. So this is the impartiality and the third one is competent judges. So what is this competent judges? So this was I told you the hierarchy the section 6 to 21 of the CRPC speaks about the classes of criminal court under the CRPC from JM of first class JM of second class CJM or CMM as principal additional sessions court then then then principal sessions court. So this is the four classification and in between we come across this executive magistrate or sometimes special division magistrate but this is the four or the basic classification of court each and every court had its own jurisdiction. So though JM of second class or MM of second class is still in the CRPC in a black and white but practically we are not practicing JM of second class we are having only the judicial magistrate or metropolitan magistrate. So the powers of judicial JM or MM is three years of imprisonment and final rupees 10,000. So this was the jurisdiction of the magistrate court. So in such a case a magistrate shall not eligible to conduct trial of a case which is punishable more than three years. If there is a series of charges for example in a single case a final report has been filed a charge sheet has been filed and in the charge sheet it has three charges and one charge is punishable with two years one charge is punishable with three years and one charge is punishable with seven years. So where one charge even a single charge comes with the punishment which has been prescribed by either the IPC or any special law which goes beyond three years but immediately the magistrate has to commit the case to the appropriate or competent court. He is not competent to conduct trial on that. This is competence of a competent judicial. So if next one is from three years to seven years it should be before the Chief Judicial Magistrate or CMR. More from seven years to 10 years it is additional sessions or assistant sessions. More than 10 years before the sessions court from 10 years to death sentence and with respect to this death sentence according to the procedure laid down by the law it has to be referred to the high court through this referred trial RT cases for the confirmation of this death sentence. So this is competent judiciary. So the competent judiciary is that if I am being a Chief Judicial Magistrate if any trial or if any final report comes to me which is punishable more than seven years I should not handle the case. I have to commit the case to the concerned or competent judiciary. I cannot come and justify that even two charges are punishable only below three years. No, if any one charge crosses this three years or seven years it should go before the competent judiciary. So this is competent judiciary. So the second principle is impartial, competent and independent judiciary. So the first one is adversary system and the second one is competent impartial and separation of powers. And the third one is the transparency regarding the proceedings or we can call it as courts must be open. So everyone must know what is happening. Everyone must know the about the proceedings of the case. That's what usually a general practice that courts must be open. Anybody can go and witness the case or anybody can go and see what is the status of the proceedings provided. Some cases where it is being prescribed that it should be conducted only in camera procedures. So for example cases like sexual assault or cases against children or cases relating to integrity of any person. So then other than those cases other cases should be conducted in an open court. Court must be open. So what is the interpretation of this category that court must be open. So what is this thing you can say that the court must be open. The court must be open in such a case what it says that that must be the open proceedings. Any proceedings should be in the open court, which means both the parties should present and any orders that can be passed should be in the open. That's what you could see the pass on the date of judgment as per the CRPC both the parties should present and the presenting officer will read over the operative portion of the judgment. So it is there in the CRPC. I think most of you would have come across this procedure in the trial court. You could see the judge will read the operative portion of the judgment. It may be the magistrate or it may be the sessions. So the operative portion is whether the person is found guilty or not on each and every charge. So whether the person has been convicted or not. If it is convicted what is the sentence. What are the terms of sentence and if any fine has been imposed. So this has to be openly read out and openly informed that everyone should be given and that it should be an open message. Everyone that the case has been tried in front of everyone taking evidence or arguments or cross examination. That's what some of the seniors would encourage the juniors if any particular trial is going on they will send the juniors to the particular court you go and observe that today the trial is going on. Today they are going to take the chief examination. Today there is a cross examination by the senior counsel. My senior used to send me to a particular case you go and observe. Today the senior counsel has come to Madras High Court and they are going to argue on these cases. So it gives an independence and the transparency of the court which gives the fair hearing, fair hearing and the fair proceedings about the case and the objectivity of this thing. And to section 327 of the CRPC speaks about the venue of the trial. So the venue of the trial is not within this principle of fair trial. But if the venue of the trial somehow it speaks about the to get the proper justice. So it may be in the common features of trial, but we cannot come within this fair principles of trial. So usually the venue of trial would be the place where the offense has been happened. Sometimes they will argue that the accused is not possible to come to the court or the victim is facing some threat if he comes to the particular court. That is the exception where they will change the venue of trial. Other than that they will not change the venue of trial. And the most important thing with respect to the principle this competency is that regarding passing of sometimes with respect to this bail jurisdiction, there may be the contradiction or there may be that some people will overcome the principles of this competency. For example, if it is an offense punishable death sentence, we all know very well that according to the investigating process till the completion of investigation till the filing of final report, the case will be arrested before the magistrate court only. And according to 167, if the investigation not completed within 24 hours and subclass 2 gives a mandatory bail provision. So sometimes what the advocates or sometimes what the counsels will do with that will directly file a bail application before the high court. For example, if the case being in 302 for moderate case. So that time if suppose I am being advocate who is presenting my bail application before the high court for an offense of section 302 by stating that he was inside that he was in the prison as a remand prisoner. But still the investigation is going on. The final report has started filed. So expecting a bail from the consent court. So that time the high court will refer the bail application to the magistrate court according to section 167 subclass 2. Though the magistrate is not empowered to enlarge or to proceed with the bail application where the offense is punishable more than three years. But these provisions, these reservations and these concessions gives me to go or to extend the boundaries of competency of court. So this is simply an example where I can approach the magistrate court even the offense is punishable more than three years according to section 167 provided when investigation is still going on and no bail application is filed. Then the bail would be the mandatory if the investigation is continuing for more than 90 days. So these are all the aspects and these are all the procedures which comes within this competence. And the next one is about the independent on the the next one is about the represented through proper person or right to defend himself according to section 302. I think everyone very well know very well about it. So this was the one of the natural justice principle and as well as fat trial principle. So no one should go unheard principle of RD-Algerman pattern. So they should hear both the side. So as because my case has been committed from magistrate court to the sessions court, for example my case is the 302. And till the committal proceedings my client haven't appointed any advocate or the advocate appointed is only meant for the lower court not for the sessions court. So once the case has been committed to the court of session on the date of opening of the case the court should ask do you have your advocate on your own or you are expecting this court to appoint an advocate. So this is every person should have right to defend himself through a competent person. So this competent person according to system is a defense counsel. Already defense counsel is coming under this coming under whom this function of the judiciary sorry CRPC. The CRPCs have five main functionary, one is police, prosecutor, defense counsel, criminal courts and correctional procedure, correctional institution. So under this defense counsel is also part and parcel of the duty of the CRPC. And this is a defense counsel is a person who is a competent person to defend the case on behalf of the accused. So when a person who is not in a position to assess or to appoint an advocate on his own then the court on its own the court should appoint a person through free legal aid. So continue towards this to defend the case by a competent person is this free legal aid. It's an intellect, it's a go hand in hand there the person who is an indigeneous or a person not in a position to appoint a private advocate then he has to present his request before the court. But as I told you when the judge asked the accused do you have an advocate on your own or if you want the court to appoint anyone. So suppose if the person says no I am not that much of a rich enough to appoint a person on my own will you please appoint an advocate from the legal aid. So this is the thing which satisfies section renaught of the CRPC where defending a case through proper defense counsel or competent person and this has been enshrined in the constitution also. So this fact trial this particular point is satisfying natural justice human rights and fundamental rights. So it's one of the aspects of human rights also in the UDHR it says that everyone should be heard properly so everyone should have the right to present or submit his own case. So in such a case this defending through a competent advocate is inclusive of free legal aid also. So this free legal aid where it under Article 39 A of the constitution which gives you the right to get a free legal aid service from at the cost of the state. So defending. So what is the role of the defense what the defense will the defense advocate will do during the course of a trial. So the defense advocate will simply defend the case. What do you mean by defend the case? So what the defense will do he will simply refuse the allegation that is the defense. So it is not his duty to go and search the actual person who committed the crime. So his duty is to break all the allegation placed by the state against the accused by way of breaking such an allegation creating a doubt in the minds of the court and try to get the benefit of doubt to the accused and get the acquittal for the accused. So defending a case or a defense advocate must be a competent person to defend his case and he should have the ethics to present himself in a proper manner to defend the case. So defend the case is that only to break the allegation by way of creating that's what we used to say cross examination is an art. Chief examination is not an art. Chief examination is only the reciprocal or repetition of 161 statement. 161 is a class 3 statement but cross examination is an art. So this cross examination only going to break the allegation or going to create the doubt in the minds of the court where the doubt is so strong when the doubt is so voluminous then the benefit will be given to the accused to present and the accused will do and the second part of this to be defended to be a competent advocate which includes to assess the public prosecutor also. So where go I am victim. So already I think I have whether I don't know whether I have talked about this in this platform the concept of victims or the replacement of victim in the criminal trial. So when we are talking about the fat trial principle we are entirely talking about only the accused but very limitedly we can talk about the victim. So in this fat trial principle involves the rights of the victim also. So the competent advocate for the victim is the state it is the prosecution in spite of that if I want to appoint any person to assess the prosecution that is also permitted by the CRPC. So there I am in a position or if I want to appoint or if I want to submit the petition before the court where the trial is going on requesting the court to permit the person to assess the prosecutor by appointing an advocate at a section three not one of the CRPC. So and the third one is that the court must be in a position to be heard both the same. So when I think some of you or most of you or maybe all of you become a judicial officer when you are going and occupying the dials or searching the court please be like a blank paper please be an open minded and don't go to the court with any predetermination or detrimental status that the person might be a person who has been committed to the crime or he might be then it is said. So the arguments and the evidence and the witnesses only going to write the judgment not our own perception so that is the role of this thing where the evidence or the witnesses should be taken in the presence of both the person which means accused and as well as the victim and without the presence of either party the trial should not be conducted provided again if there is any excuse dispense with the person appearance of accused or dispense with appearance of the victim then if after complainant the case can be conducted other than that it should be conducted in the presence of both the party. So other than the prosecutor or the assisting the prosecutor or the defense counsel no person shall be permitted to get into the trial procedure. So what is the possibility of the another person may get into the trial procedure so either the expert or the inspector or the investigating officer or any person from other than these three categories prosecutor and the defense counsel and the assisting prosecutor also comes within the prosecution itself. So other than that no person should be comes within the trial procedure and regarding this accused person so accused person with respect to this he may be sometimes maybe the person who is a normal status and sometimes maybe the person of differently able. So in case of differently able the person as because he is not in a position to present his case in a proper manner and in a blanketly you cannot appoint any advocate as a legal counsel you should keep in mind the challenge it has been facing by the differently able to person and such an competent and expert must be appointed as a person where who is in a position to convey the trial matters to the accused or to the person who is standing in front of the court. So for example so because after this rights of the right person differently abled and as well as the UDHR we are being prevented and banned from using the term like a deaf, deaf, blind, other thing so we have to use a term like visually challenged or differently able to hearing impaired or visually impaired and intellectually challenged. So for example a person who is being and having the speaking disability or hearing impaired so you must have the person when you are appointing the case you have to appoint a person who is having the special educator towards them who can convey the matters between the state and to the court to the concerned person so this is also a thing which comes in the to defend the case by a proper and competent person. So competent person includes these type of interpretation and not just like that you have to go and appoint a person to go to go and get the legal aid from that. So there are some cases where more particularly relating to this boxer cases why again and again I am giving example for the boxer cases is that which is more fragile and which is more sensitive and the victim in the boxer cases sometimes are differently able to children due to their vulnerability and due to their status they are being easily been targeted by the perpetrators. So sometimes we used to get case ready from the judges who has taken care of the cases they will say that most of the time we used to face the this challenge is that when the victim being differently able to children more particularly intellectually challenge the children or the children who is having this other kind of possibility. So by the time we are expecting the court to give more and more training or the awareness or the special capability to handle the children. So these are all things comes within this to defend the case enough by competent person and with respect to this legal aid again there was one misconception when legal aid will commence. When I am having the right to try to defend my case with the competent person what is the interpretation of the term to defend the case with the competent advocate whether it is only the trial but the Supreme Court says the question of legal aid arises or initiated from the moment the person got arrested. So that's what is immediately after us with the person being produced before the magistrate under section 53 and 54 of the CRPC. The magistrate should ascertain whether the fair justice or the natural justice has been or the constitutional fundamental rights has been informed to the accused in the time of arrest. So the foremost question is that have you informed about right to bail and right to free legal aid. So that is the moment where they write to free legal aid arises. So there was a case passed by a lot of cases like Kastri case or Hussar case. So that was the case where the Supreme Court says that the moment the person got arrested that is the moment the execution of free legal aid will start. So we cannot state that the free legal aid is only for the trial. It is for the bail also or sometimes it is for the appearance of the person also protection, surrender of the person also. So in such a case the free legal aid and you can again have taken example of this Ajmal Kasab case also. So in Ajmal Kasab case relating to this Mumbai charge attack where everyone where been prevented says no but it is the principle of a trial. Whoever the accused may be, he should not go unheard. So the Supreme Court has appointed legal aid advocate to defend Ajmal Kasab and even in India's case the Supreme Court, the court appointed legal aid counsel to appear and behalf of the five accused, five accused person though we all know very well that they have committed the offense brutally, though we all know very well that Ajmal Kasab has committed the offense brutally. So sometimes some cases may be argued by the person by themselves that is party in person but if the person who asked for this free legal aid, he should be in a position to give the to get the free legal aid and the next one is a free speedy trial. So what is this speedy trial? So as because the case has not been conducted or the case has not been concluded because of the investigation process, how long the person would be languished in prison? So who is responsible for at whose cause the person should be languished in prison? Again I am coming to the first point presumption of innocence. Till the case has been proved beyond all reasonable doubt, the person should be presumed to be innocent. So when a court and judiciary proceed the person as innocent as because the judiciary or the investigating agency is delaying the process, why should the person should be languished in prison? So in the proceedings of these things, speedy trial comes in different. I think we all know very well about Shila Masi case, again Menaka Gandhi's case and Nandini Sapati's case, a lot of cases are there regarding the speedy trial and which includes other provisions also. So for the speedy trial, we are having the limitation of taking cognizance of the case and the 167 class 2 again. The 167 class 2 comes within the investigation stage and section 449 I think so I am not clear, if it I am clear, limitation of taking cognizance what is the time period for taking cognizance of the case. So this is all the process which gives you the principle that speedy trial but every time even the higher judiciary, the apex judiciary express its concern there is a long pending of cases, long pending of trial, long pending of under trial prisoners, long pending of remand prisoners also which means the investigation is still going on. So in such a case, in such a case as because excuse me just two minutes I. Then we will have to unmute yourself. Sorry, yes. Yeah. So the speedy trial is also one of the major concern not only the Indian perspective internationally, speedy trial is one of the major concern which speaks about the because a person who is languished in prison in turn it affect the principle or the concept of this personal liberty. So arrest is nothing but prevention of personal liberty by the established procedure of law as because the law permit me to prevail or curtail or go beyond this violation of this personal liberty, I cannot take it as granted simply keep on extending the investigating process by keeping a person inside the prison. It may be the bail application or it may be the trial procedure. So on the trial procedure there are limitations if the case is punishable with one year then the case should be initiated from the date of arrest within six months. If it is more than one year within two years limitation is one year. If it is more than two year within three years it is two years. So the limitation is being prescribed by the code itself from the date of arrest not from the date of filing of final report. So in such a case it protect the fire trial. If you delay the panic or the another dangerous situation in delayed the proceedings or delay the trial is that the way awaiting a way of my memory. Suppose I am being one of the witness. If you are calling me to sudden come and witness after three years of a case. Totally I would have blank about what happened on the day what color of dress he wore on the day what was what he actually communicated or the terms uttered by him on the day of commission of the offense what type of weapon he used to cause the injury. So evading of my memory is also one of the danger for this delaying the trial. And the third one is delayed trial or delayed justice is denied justice. Again we are not worried about this concept. So speed trial is one of the concept where it comes in the fact trial again it's satisfying the fundamental rights and as well as the battle justice principle and the human rights. And that's what now we are being gradually coming into the hybrid mode of judiciary both online and offline. So hereafter I think the thanks to the lockdown thanks to the COVID for this particular aspect that even if any casualty anything happened we are not bothered about when the court will open when the justice will be delivered. So now we are being used to do this type of platform where the trial or any process should not be denied or delayed. So now everyone has used to do. So this is the thing how we are continually converting ourselves from this process to the next process. So this is the principle of a speedy trial. Then the third and the next one is about transfer of cases. So transfer of cases is that it's one of the principle which gives the rights to both accused and as well as the complainant or the de facto complainant. Most of the time we blanketly or blindfoldedly or stereotypically apply these principles only to the accused but the concept or the chapter does not say this in such a way. It says principles of fact trial. Trial is for both the accused as well as the victim. The victim is expecting the justice on the hands of the court. Accus is expecting to prove that he is innocent to come out of the catches of law. So in case of this transfer of cases it says transfer can be asked by the accused and as well as the victim or the de facto complainant. So the accused can ask for transfer of the case by presenting his case before the court by stating that he will not expect the proper justice as because the court become biased or the court is not confident to hear the case or the court is not purposefully delaying the case again violation of speedy trial principle. So I can file a petition to transfer the case from one JM court to another JM court, one MM court to another MM court, one CJM to another CJM from one sessions to another session from one hypo to another hypo. I think so far we have came across a lot of incidents and a lot of examples for this transfer of cases. There are two subs oneness if the victim or the de facto complainant feel not safe in the place where the case is being conducted. Second one in the perspective in the view of the accused, where the accused feels that he is not getting the proper justice continuously as in the court is being on one sided. So the court is not ready to hear on his side. Then I have to file a petition to transfer the case from one court to another case. So I have mentioned only some of the example like Zahira case in Gujarat, West Bakery, Burn case and as well as Unbedaghan case which relates to the state of Tamil Nadu and there are a lot of cases also where sometimes how the de facto complainant asks for the transfer of cases. Suppose the case is instituted against a person who is influential or who is in power or the person who holds the executive mechanism and if the de facto complainant felt that if the case would have been conducted on the same place there is a possibility of influence of the accused either to tamper the evidence or to inquires or threaten the witnesses so he will not get proper justice. So if it has been justifiable, if it has been acceptable by the court so if I want to transfer my case from one JM to another JM I have to file the transfer petition to the sessions court. So I want, if I want to transfer the case from one sessions to another session I have to file a petition before the high court to transfer the court pending before the sessions and if I want to transfer the case is pending before the one high court and I have to file the petition the Supreme Court. So the next apex court or the appropriate court to give orders to transfer the case from one case to another one court to another court or from one state to another state. For example, in Tamil Nadu, I could give example, one session trial has been transferred from Chennai to Bangalore. And in another case, one case, a murder case has been transferred from Tamil Nadu to Pondicherry. So in such a case, the state, the particular commandant also asked for this transfer. And this one regarding, sorry, so I think I already covered this represented by the competent person. These are all the thing, private complaint. And this one, if it is in a case of private complaint at a section 200, the complainant or the accused is the, for example, if it has been a check-bound case, usually in magistrate court, most of the case comes under section 138, written section either 406 or 405 or 420 IPC. And very rarely some other cases will come. So in cases of such a nature, both the parties are private persons, not the public prosecutor. So if I am being the person who affected because of the check-bounds or the default of payment of any amount, I will find the complaint against the person who defaulted the payment. So at the cases, the petitioner and the respondent are the private parties. So there you cannot expect that representation of prosecution there. Both the councils are the councils for the same, which what it says, the petitioner and the respondent. And the venue of trial, I told you from section 177 to 189, that is local jurisdiction, where the offense happened, that is the venue of trial. But the exception to the rule of section 167, there are some exceptions like continuing offense, got injured in one place, treatment in another place, that in another place. So this is where you can choose any of the jurisdiction. And the third one is a concert in one place, committed in another place. And the next one is action in one place, consequence in another place. For example, kidnapping, abduction, it is a continuing offense. So in these cases, when you are prior cannot be fixed, there can be a hard and fast too. So if the place which seems to be inconvenient or unsafe either to the accused or the defector complainant, it can be changed with the permission of the court. And the presumption of innocence and I already discussed with you, rights of the accused person. This already comes within this thing. So again, there are, there is always a confusion regarding rights. Rights of arrested person is something different. Rights of person facing trial is something different. So because rights of the arrested person falls or constrained only during the course of trial and trial procedure. But rights of the person who is facing trial is something where the person is eligible to enjoy the rights during the course of trial, because that is the crucial stage where he is facing, where he is expecting to get either acquittal or this conviction. So the first foremost thing is that the person should be known about the accusation. So how this will break it out? How the accused person will know about the accusation? So during the course of these committal proceedings. So for example, it is a 302 case and today the investigating officers are submitting the final report through the Assympathic Prosecutor under section 173 and the magistrate is taking covenants of the case into his hand under section 191 to 199. So after the verification of the documents, I mean he comes to the conclusion, he is not competent to try the case, then he should commit the case to the competent court. While committing the case to the competent court, he should serve the copy, entire copy of the case document to the accused at a free of cost. So here another interpretation come. What do you mean by this copies of the document right from complaint till the last paper in the final report in the charge sheet? So what are all the documents collected by the investigating officer and submitted to the court as a charge sheet? The entire document should be given at a free of cost to the accused person. And it is immaterial how many accused are there, each and every accused is eligible to get the copies at a free of cost. And the second one is suppose I am not familiar with the language that is mentioned in the documents, what I can do. So for example, if any person who has been charged in Tamil Nadu who doesn't know Tamil or English to read or to speak or to write Tamil, but the documents are entirely in Tamil or in English. So the translation or the interpreter must be there to read over and explain the materials or the content of the documents in the particular subject in the particular document. So section 200 to 220 speaks about the capital proceedings. So after this taking cognizance going through the materials, 220 to 210, 210 speaks about his company proceedings, going through the material submitted before him, justifying the charges has been properly made out. And coming to the conclusion he is not competent to try the case, committing the case to the competent court by serving the copies at a free of cost. So through this, when I'm being presenting my accused to the kind to the next competent court, I'll be ready with my submission, with my defense. So this is to make the defense to make his own defense and submission. And before opening of the case, so before getting the framing of charges, the charges should be read over and explained to the accused person which comes in the trial procedure. So opening of the case, explaining the charges, discharge, framing of charge. When discharge is not there, framing of charge and explaining the charge to the accused. So it is a duty of the court to explain the charges and possible of the punishment that can be or that may be imposed the case would have been proved against him. So this is the thing explaining the charges or content to the accused person before getting into this, taking off evidence chief or across or whatever it may be. And then you can come to this pleading guilty, that is a secondary, but pleading guilty is not a mandatory thing. And if it is a warrant case, and if it is not a case of someone's case before the magistrate court or summary proceedings, if it is a warrant cases, it should be, the charges should be framed in writing. So after explaining the charges to the accused, it should be read over and return and should be make it as a writing form and should be signed and sealed by the presiding, that is the sessions before that. And as I told that, the trial should be conducted in the presence of both the party. So in the absence of either party, if any examination has happened, that is a possibility for initiating where I can ask for the initiating trial or I can challenge this in my appeal. So as because I am losing my opportunity to cross or to get a losing opportunity for the effective cross examination. If I am not present on the date of chief examination, and I am not in a position to understand what he has actually presented through his deposition, I only got the paper and I am not sure whether this was the statement given by the accused during his chief examination. But if I were being present, I would have been understand and I would make my cross examination or effective cross examination in the during the course of this trial. And the next one is that this this is being excused. This can be accepted from the from the what to say personal dispensate appearance of the person. So dispensate appearance of the person by both the factor complainant and as well as the accused. So the usually the dispensate shall not be permitted during the time of taking evidence and the date of pronouncing judgment. So on these two dates, the court shall not allow the dispensate appearance. But other than that, the court will normally dispense the appearance of the accused person. And as I told you, the dispensate shall not be happened at the time of taking evidence. And I told you about this interpretation. I must be informed to the language. So I told you about the reading over the content of the document and this one is during the course of trial. Suppose I am a person who knows only Tamil. I does not know either Bihari or Maharashtra or other language or he saw or Punjabi the thing. So if a person who is giving evidence in his own vernacular or his own mother tongue language, if I'm not in a position to understand the content, I should be appointed with the translator or the interpreter. So he must be the person who is bridging the gap between the victim or the witness and the evidence to the court. So he has to interpret and he has to convey the message to the court. And second thing is, if my client being a differently able to person, special educators should present in the court to convey the thing. So as I told you, this would be very pathetic. If you witness any trial in Paksa court, particularly the child being and a differently able to child differently will understand the concept of this interpreter and how the child is being giving his own version through the special educator. Sometimes the children will be more affectionated and more trustworthy to a special educator than their parents. So we have come across such a case and the accused must be given the right to cross-examine. The accused should not deny the right of cross-examination because cross-examination, I told you, it's an art. Examination is not an art. Cross-examination is an art. That's what the evidence has given a lot of instruction regarding the examination. No leading question, no impeachment of the character. Don't bother about the previous character. No question that caused any damage to the integrity of the witness. So these protections, this is called the witness protection. But in our criminal justice system is lacking in this witness protection thing. I think the bill is pending before the parliament. We are expecting this witness protection unit, a witness protection system for the Indian criminal justice system. But in turn, if you go and see the international criminal justice system, there are following a very excellent and very remarkable, phenomenal witness protection unit and even an international criminal court and Rome statute is having a separate organ, separate authority by name called witness protection unit, where it is only working for the protection, safeguard and the interest of the witnesses only. So if I don't want to view the accused person, the steps will be taken. If I don't want to disclose myself, my identity will be disclosed. So we are following these principles only with some limited cases like offenses against women and children and integrity. But this has to be followed uniformly everywhere so that people will come out to give evidence against the case or evidence relating to the case. That is the only thing which bothers me that what would happen to myself if I come and give an event before the court. So this cross examination should not be denied and the person should be given rights to the cross-examine. Sometimes if it is a case of party in person, the person he himself cross-examined the witnesses by a cross-examine by the defense council to the prosecution witness and cross-examination by the prosecution to the defense witness. So it's mutually interchangeable and the protection of witness through the burden of proving the guilt is entirely on the prosecution. Yes, it has been told that. But accused need not to prove his innocence. Yes, what I am telling. So the accused, the duty of the accused is to break the allegation by way of creating doubt, by way of disproving the allegation. So what is the disproving allegation? For example, alibi or for example, medical evidence or for example, contradiction in the 161 statement and in the deposition. So that's what we are following substantive evidence and the corroborative evidence. So corroborative evidence sometimes will act as a substantive evidence when there is a substantive evidence. That's what the circumstantial evidence. So this cross-examination or the defense council by doing so has to corroborate and contradict the evidence by way of disproving the charges. And the person denies without any legal cause by the court to issue process, nothing but calling any person. Suppose I am filing a 91 CRPC petition or 311 CRPC petition. 91 CRPC petition is summoning certain documents and 311 petition is recalling the witness or calling any witness or the team. Suppose I am filing a petition at a section 91 CRPC or 311 CRPC because the ambit of section 91 CRPC and 311 CRPC is at any stage of the case before pronouncement of judgment. I can invoke section 91 and I can invoke section 311 at any stage of the case before pronouncement of judgment and this should not be denied by the judiciary and should not be objected. Even if it is objected, it shall not be denied by the court. And if the case entered in maybe the conviction or acutely, it must be with a proper reason. So that is what judgment. What do you mean by judgment? This is something different from civil jurisdiction. In civil jurisdiction, we are talking about order and degree. And as well as in criminal jurisdiction, we call it as judgment and sentence. So judgment is the finality of a case, finality of a criminal trial, whether the person find guilty or not is judgment. If a person find guilty, it is judgment. What is the sentence? Conviction is a sentence. And what is the punishment? Imprisonment is the punishment and how the punishment should be served to impre-sentence to imprisonment for a term of so and so. So these three are the technical terms or technical aspect comes within the judgment. Found guilty or not. Conviction, sentence undergo and the fourth one is imprisonment. Either imprisonment or fine or content to death until hand by neck until death. So whatever it may be depending upon the thing. So each and every charge should be given proper reason, either for conviction or for acutely. So at the end of the judgment, the operative question judgment would read, for example, the trial is going on for section 326 and section 506 part 2 or section 307 also. So as the state has proved beyond all reasonable doubt against the accused A1 here in for the offense of voluntarily causing grievance of the deadly weapon which is punishable with the of IPC and he's convicted and sentenced to undergo the sentence of imprisonment and for section 506 part 2. The state failed to prove the charge beyond all reasonable doubt for the offense of criminal intimidation punishable at a section 506 part 2. The accused A1 here is acutely from the charge and 307 the same thing. So whatever the charges has been returned, whatever the charges has been framed, whatever the charges based on which trial has been conducted that that thing should be effected with the proper reason in the decision. So this is judgment and no person should be punished twice, or defies acute or or defies convict. No to acutely and no to convict. So either you can correlate this with this article 20 subclass to double geo party, no person shall be punished twice for the same cause of action. So this is the thing, same cause of action is a thing, not of some some other thing. So if a person who has been already where he has been tried convicted and sentenced to imprisonment, he shall not be charged again for the same cause of action. The charge may be the same, but not the cause of action. A person can be charged for 379, twice, thrice or four times, but not on the same cause of action. So that's what we can see that this is acutely and not defies convict. So when this will effect, how this effected in the trial procedure, after the completion of prosecution witness and if the prosecution witness failed to prove still the doubt is there, that is the moment where the court can pass acutely, but still the court need the particular aspect means then they'll go for this defense witness. After the completion of defense witness and after the completion of arguments, before going for passing judgment, the gap between completion, closing of argument and the date fixed for the judgment is this ascertaining about this, artifact is convict or artifact is accused, sorry, acutely. So the person who has been already convicted for the same nature, for example, this is the third case coming against the same accused person for the same charge of 379 for different occasion, for different cause of action. Twice the court has convicted him with the lesser punishment of two years and one year. So this shows the habituality and this time he shall be given with the maximum punishment. This will not affect the artifact is convict or artifact is acutely. This is not artifact, it's an artifact is convict. Already he has been convicted on the same cause of action, this cannot be happened. So and this can be counted as article 20 sub plus two and section 300 of the CRPC. And the subsequent trial in violation of the EBO, which means the, suppose if it is not been given in the, which has not been known to the court or something has been suppressed by the accused or by the defense or by suppressing that and if you would have been filed the case without mentioning that if you would have been convict, there is a possibility of expecting compensation from the court also. And this one I told you the speedy trial expeditious trial should be done as early as possible, expeditiously as possible and there shall not be any long gap between examination of witnesses. That is the very crucial stage where you have to think about not on the argument stage or not on the before commencement stage. The crucial stage is taking examination of witnesses. It has to go immediately one another, so that I'm also keeping in mind, the other person also keep in mind to keep meeting. And they have both in this expeditious trial is not a single handed or a single persons which means which is lies only on the prosecution side. No, it is lies on both the side. It is the obligation of defense counsel and as well as the prosecution to avoid unwanted adjournments, unwanted personal dispense with appearance of this case and unwanted prolong the proceedings of the case. In some cases, for example cases relating to this NDPS, obviously the case will be delayed because you cannot get the proper expert appearance from the forensic. You have to wait for the report from the forensic. Sometimes this may delay the process, but usually this should not happen and more particularly that's what in the Capoxo and as well as in other special court it says that you should not go beyond more than 90 days or one year with respect to this trial. So, which gives justification regarding this trial and if there is any delay in trial, you cannot call the trial as fair trial unless otherwise if it is because of the prosecution. So, if it is because of the defense, then the burden is on the defense too because why they have tried and as I told you section 91 CRPC and section 311 CRPC is a tool, is a weapon to delay the trial procedure. If I want to delay the trial procedure legally, I can file 91 CRPC petition as to summon certain document. If the document is allowed, the oppressed party will go for appeal before the high court. If the high court reverse the order, the another party will go before the Supreme Court. So, till the completion of 91 CRPC petition finality, the original case will be pending before the lower court. Same thing for 311, recalling the witness. If it is permitted, appeal and revision. If it is not permitted, again appeal and revision. So, these are all some of the aspects where you can proceed legally, but they should not be unless it is mandatory and speedy trial as I told you was in Rakathun, Sheila Barsee and Shukumar case. There are a lot of cases which speaks about this and so these are all the things where comes within this principles of fair trial. Other than these, other than these aspects, you can ask about this mandatory bail provision is also principle of fair trial because there is a difference between remand prisoner and under trial prisoner. So, remand prisoner is a person who is inside the prison without the completion of investigation simply because of the delayed investigating process he is languishing in prison. Underly prisoner is because of the delayed process of the judicial he is languishing prison. So, sometimes under trial prisoners, remand prisoners what they will do to close the doors of 161s up to 2 to prevent the mandatory bail what they will do they will submit the preliminary final report before the court which means under section 173 they will file the preliminary final report then they will come up with another petition under section 173 subclass 5 to go for further investigation. So, 161 subclass 2 doesn't bother whether it is a preliminary report or final report for it is 173. If 173 is a CRPC has been filed it will close the 161 subclass 2. So, this is one aspect and during the course of trial as I told you 91 CRPC and 31 CRPC are the tool and other thing where 80% can go for if you decide to go for the extending the extension of delaying the prisoners. So, whatever it may be both the party either party is expecting justice from the hands of the court and both the party is rely or depending on the either party to complete the case. So, in between there are a lot of due to hastiness due to for example the influence of the influence of the in outer pressure. So, in the recent time the judiciary facing the biggest challenges media trial if any sensitive thing happened on the first hand information comes from the media. Parallel media start to conduct their own investigation publishing their own perspective declaring their own result. So, when actually after conducting the trial of the court come to the conclusion and passing the judgment we start to come and criticize the judgment because we already been trained and been inserted and been taught by these media that this is true whatever things come is not a true. So, media trial is a because the threat and challenge and nowadays it is social media taking the law into his own course without having proper knowledge without having a proper training or without having interpreting the law they are simply passing comments and making own judgmental opinion expression in the social media which made us to believe that this is happened. If the court actually gives anything we are not ready to for a best example is Snopul Talwar case even today we does not know what happened but we are being influenced by the media it is an honor killing the parents of the murders in the CBI court passes judgment that they are innocent we are ready to accept it and Monika Bedi's case I can give lot of cases even in Tamil Nadu also I can give lot of cases where the law the thing. So, these are the threat for the trial CRPC is there law is there justice system is there justice administration is there they are going according to the procedure if you are facing any abuse of due process of law you are having a strong hold of section 4 into CRPC to question it inherent powers of the high court where you can question the possible the abuse of due process of law to the concern court you can challenge it but do not go according to the views and the film the whims and fancies of the thing what is coming on the social media or the printed media so apply interpret a lot I give one of the example when Justice Banumati madam when she was the session judge in in a Pudukota sessions court I think most of you heard about the John David murder case when Madam Justice Banumati pronounced judgment of a double life imprisonment some terms of imprisonment to run consecutively everyone start to criticize how can this life sentence can be run consecutively where life means a life how can a person will run the sentence a full life sentence and whether he will come birth again and he will run the sentence twice how it is possible to run consecutively the same person from legal because I was in the secondary when this judgment has been passed by the session school then only my professor and other thing academicians give me the clue idea that go and read section 57 of IPC fraction of imprisonment for life it says one life means 20 years two life means 40 years three life means 60 years yes any person can run 20 or 40 or 16 inside the prison if it is to run consecutively so everyone must need this clarity need this clarification so please be read read the law in between the lines in between the words CRPC is an ocean it is not something which comes to your control on a single when a single day or a month or six months no it is not possible it's an ocean you have to swim yourself it will observe you once you get into CRPC so such a thing is that so there are a lot of things when you are going for practice and if you are going to occupy the position of public prosecutors or going to occupy the position of a judicial officer so kindly be keeping in mind that at the end of the day we are there to give justice to the person who is expecting something from our hands so thank you so much for your patience and thank you so much everyone for your patient observation thank you so much sir because sir for giving me this opportunity and if any question I'll just accused placed audio recording and transcription held between victim and accused proving accused innocence but the victim filed application for removing recording as same while he writes on the file so without the fat rail of accused or write up paper no with respect to this accused to placed audio recording and transcription which has happened between the victim and the accused when they were in a normal period when they were in a very close or casual period so we can take this for example consensual relationship I think today also there was a judgment which says that promise to marry and having sexual intercourse and fail to marry shall not concentrate so by the time that's what sometimes if you want to invoke this either was a virus of CRPC such in 354 C of IPC virus which means recording of this providing yes I'm having the right to prove and this cannot be challenged as the against the privacy what would happen if the girl submits any photograph or videograph that happened between herself and the accused when they were in the normal course of time so for protection if it has been permitted it is the hands of the court to decide whether to accept it or not but it has to be within the in-camera proceedings too for analyzing the scene that was the only question ma'am and thank you for sharing your knowledge and tomorrow do connect with us on a fascinating topic at 6 p.m do with us on the social media platform of linkedin thank you everyone stay safe stay blessed thank you