G. C. GUPTA, J. ( 1 ) BY this application filed under section 378 (4) Cr. P. C. , the applicant seeks special leave to appeal against the judgment of acquittal dated 31st March, 1984. I passed by Judicial Magistrate, Class I, Sakti. ( 2 ) THE facts of the case relevant for consideration of this application are that non-applicant Radharaman Agarwal is the owner of a rice mill situated within the territorial jurisdiction of the applicant Krishi Upaj Mandi Samiti. For purpose of his business, the (non-applicant Purchases rice from time to time. In accordance with the provisions of M. P. Krishi Upaj Mandi Adhiniyam, 1972 and rules made there under, the said non-applicant is required to obtain a licence for purchasing rice. It appears that he had obtained a licence for this purpose, but since the applicant Mandi Samiti found him responsible for breach of condition of licence, the said licence, was cancelled by order dated 3-3-1979 (Ex. P-i ). This order is said to have been despatched to the non-applicant by post vide receipt (Ex. P-2 ). As a. result of this order, the licence held by the non-applicant stood cancelled and he no longer remained entitled to carry on business of purchasing rice. Is appears that the applicant felt that the non-applicant was carrying on business even after cancellation of his licence. It filed the complaint against the non-applicant alleging breach of section-31 read with section 48 of the aforesaid Act. The said complaint has been ultimately dismissed by the orderimpugned and non-applicant acquitted. ( 3 ) A perusal of the impugned order indicates that the acquittal of the non-applicant is based on the sole finding that cancellation of licence was illegal as section 33 (4) of Krishi Upaj Mandi Adhiniyam, 1972 was not complied with. Whether the aforesaid provision was complied with or not as not the real issue before the learned Magistrate. The learned Magistrate was required to consider if the respondent from applicant was carrying on business without a valid licence in his possession. A licence which remains cancelled by an order passed in accordance with law could not have been revived in these criminal proceedings. In case the non-applicant felt aggrieved by the aforesaid order cancelling his licence, be could have challenged the same by preferring an appeal in accordance with the Act. A licence which remains cancelled by an order passed in accordance with law could not have been revived in these criminal proceedings. In case the non-applicant felt aggrieved by the aforesaid order cancelling his licence, be could have challenged the same by preferring an appeal in accordance with the Act. Even if be had not been served with the order immediately, he had learnt about the same during the course of these proceedings. It is however, nobodys case that the said order has been set-aside by any competent authority acting in accordance with law. As long as the said order had not been set-aside in appropriate proceedings, the non-applicant could not be said to be holding a valid licence. The learned Magistrate could not have set aside the order cancelling licence collaterally in these proceedings. Under the circumstances, the acquittal of the respondent/non-applicant, in so far as it is based on the aforesaid finding cannot be sustained. ( 4 ) INSPITE of the aforesaid, there appears to be no basis for the prosecution of the non- applicant. It cannot be seriously denied that the applicant would not succeed unless it is able to establish that the non-applicant had carried on business of purchase and sale of rice after cancellation of his licence. The licence was cancelled by order dated 2-3-1979 and hence it will be required to be established if the non-applicant had carried any such business after this date. The non-applicant had denied having purchased any paddy when examined by the learned Magistrate and hence, the burden of establishing business by the non-applicant was on the applicant. The applicant has examined Jeewanram (P. W. 1) as the only witness and filed three documents. Documentary evidence consists of order of cancellation oflicence (Ex. P1) which was despatched by post (Ex. P 2) and letter dated 19-4-1979 paying mandi fee (Ex. P 3 ). From document (Ex. P 3), it does appear that the applicant has paid the amount mentioned therein on account of purchase of paddy by it from 1-11-1978 to 18-4-1979, i. e. , upto date. This letter, however, cannot be accepted as admission of the non-applicant that he made these purchase even after 2-3-1979. This letter by itself would therefore, not be sufficient to base the non-applicants conviction. Oral evidence of Jeewanlal (P. W. 1) unfortunately proves nothing. This letter, however, cannot be accepted as admission of the non-applicant that he made these purchase even after 2-3-1979. This letter by itself would therefore, not be sufficient to base the non-applicants conviction. Oral evidence of Jeewanlal (P. W. 1) unfortunately proves nothing. Indeed, it appears that this witness knows nothing about the purchase of paddy by the non-applicant and was examined only to prove tile three documents. His evidence, therefore, does not support the applicants case that the non- applicant had included in business even after cancellation of his licence. ( 5 ) SINCE the crux of the matter is unlicensed purchase by the non-applicant and since the name has not been established, it must be held that acquittal of the non- applicant was fully justified. Under circumstances, no case for grant of leave to appeal is made out. Application fails and is dismissed. CONCEPT OF FAIR TRIAL By Surendra Prakash Tyagi (U. P. Judicial Service) Author of: Criminal Procedure Code, 1973 (In three Volumes), Prevention of Food Adulteration Act and Rules and Principles of Remand, Bails and Habeas Corpus. Assurance of a fair trial is the first imperative of the dispensation of Justice. 1 It cannot be denied that one of the most valuable rights of our citizens is to get a fair and impartial trial free from an atmosphere of prejudice. This right Bows necessarily from Article 21 of the Constitution which makes it obligatory upon the State not to deprive any person of his life or personal liberty except according to the procedures established by law. It is, therefore, obligatory on all the citizens that while exercising their right they must keep in view the obligations cast upon them. If accused have a right to a fair trial then it necessarily follows that they have a right to be tried in an atmosphere free from prejudice or else the trial may be vitiated on this ground alone. 2 The concept of a fair trial has a very impressive ancestory, is rooted in history, enshrined in the Constitution, sanctified by religious philosophy and Juristic doctrines and embodied in the statutes intended to regulate the course of a Criminal trial. Its broad features and ingredients have, in course of time, been concretized into well recognised principles, eyen though there are gray areas, which call for further legal thought and research. Its broad features and ingredients have, in course of time, been concretized into well recognised principles, eyen though there are gray areas, which call for further legal thought and research. 3 In law the expression Justice comprehends not merely a just decision but also a fair trial. A denial of fair trial is denial of Justice. One of the contents of natural Justice, which is much valued, is the guarantee of a fair trial to an accused person. A fair trial is as important as a just decision. Neither the one nor the other can be sacrificed. The two are closely interlinked. The way to justice, on occasions, may be long and laborious. But we have to go all that way. Because that is the only surest way. Shortcuts to Justice, though quite tempting, are full or dangerous possibilities. Judges know by experience that the first impression may not always be right impression and truth may be hidden behind imposing facades. In courts of law nothing can or should be taken for granted. Every thing must be tested-tested by the laws of the land which are the quintessence of experience of life; if it is oral evidence it must be tested by cross-examination and if it is a question of probabilities, it must be tested by comparing the various versions put forward by the concerned parties, which means that those parties should have had reasonable opportunity to put forward their versions. In short fair trial which is not the same thing as a trial strictly in accordance with the rules of procedure is a must. A denial of fair trial is a denial of Justice In other words the mode and the manner in which accused is to be tried shall not occasion a failure of Justice4. Procedure established by lawt are words of deep meaning for all lovers of liberty and Judicial sentinels. Amplified, activist fashion, procedure means fair and reasonable procedure which comports with civilisednorms like natural justice rooted firm in community consciousness not primitive processual barbarity nor legislated normative mockery. 5 In a land-mark case Mrs. Procedure established by lawt are words of deep meaning for all lovers of liberty and Judicial sentinels. Amplified, activist fashion, procedure means fair and reasonable procedure which comports with civilisednorms like natural justice rooted firm in community consciousness not primitive processual barbarity nor legislated normative mockery. 5 In a land-mark case Mrs. Maneka Gandhi v. Union of India6 the Supreme Court explained: Procedure established by law, with its lethal potentiality, will reduce life and liberty to a precarious play-thing if we do not exnecessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus understood, Procedure must rule out any thing arbitrary freakish or bizarre. A valuable constitutional right can be canalised only by civilized process. It has further been observed in the case7 that the principle oft reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirment of Article 21 would not be satisfied; Article 21 of the Constitution conferred a fundamental right upon every person not to be deprived of his life or liberty except in accordance with due procedure prescribed under law and it is not enough to constitute compliance with the requirements of that article that some semblance of a procedure should be prescribed by law but procedure should be reasonable, fair and just, if a person is deprived of his liberty under a procedure which is not reasonable, fair and just, such deprivation would be violative of his fundamental rights under Article 21 and he would be entitled to enforce such fundamental right and secure his releases8. The tribunals (and Courts also) should follow law of natural justice and the law of natural justice requires that a party should have opportunity of adducing all relevant evidence on which he relies. Evidence should be taken in the presence of the parties and opportunity to cross- examination be given. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence has not strictly been followed9. A calm and detached atmosphere is the basic and fundamental requirement of a fair trial and when the calm detached atmosphere of fair and impartial judicial trial would be wanting, the case should be transferred, as even if justice were done it would not be seen to be done10. To sum up, Proceduret in Article 21 means fair, not formal procedure. 11 One of the components of fair procedure in the administration of criminal justice is that the accused have the opportunity of making his defence by a legal practitioner of his choice. This is his constitutional rights, under Article 22 of the Constitution, and in order to give effect to this constitutional right, it has now been embodied in the Directive Principles of State Policy as provided under Article 39a of the Constitution, that the State shall secure equal Justice and free legal aid by a suitable legislation or scheme or any other way to ensure that the opportunities for securing justice are not denied to any citizens by reason of economic or other disabilities. That right has also been statutorily accepted and incorporated in section 303 of Criminal Procedure Code, 1973 which provides that any person accused of an offence before a Criminal Court or against whom the proceedings are initiated under this Code may have his right to defend by a pleader of his choice. That right, therefore, should not be interfered with. 12 Free legal13 aid and speedy trial14 are two basic requirements, preconditions and essential ingredients of a fair, just and reasonable criminal trial. The concept of a fair trial has not been static but has been a dynamic one, which has been evolving and has grown over the years. That right, therefore, should not be interfered with. 12 Free legal13 aid and speedy trial14 are two basic requirements, preconditions and essential ingredients of a fair, just and reasonable criminal trial. The concept of a fair trial has not been static but has been a dynamic one, which has been evolving and has grown over the years. A fair trial in modern parlance must be a trial, based on an equally fair investigation on the basis of material which is beforehand disclosed to the accused, in a public place, exposed to public gaze, by a Judge, who is bound by oath to do justice without fear, favour, ill-will or affection, in an environment which is free from hostility or bias, by judicial vision which is not clouded by elements that may sully the judicial steam, such as pre-conceived notions, religious, parochial, ideal ideological, communal, caste, class or politicalcommitments or affiliations, on the basis of evidence of witnesses, who are truthful, and in a manner which guarantees to the person accused the essential procedural safeguards such as the right to cross- examine right to counsel of his choice, if necessary, at State expense, right to produce witnesses, as also other material, and generally the right to be fully heard. It must above all be a speedy trial without being a rushed one. A delayed or a rushed trial equally suffer from the vice of denial of Justice. A facet of the fair trial is, and this is the crowning glory of the judicial system, that the trial must not only be fair but must also appear to be so. The appearance facet of the trial is as important as the reality of it and in a Sence, even more important so that if an impartial observer of the scene honestly felt or reasonably believed that the accused was not being fairly tried there would be denial of a fair trial. This principle is at times stretched further. If the accused himself came out of the court room and reasonably believed that he had been unfairly dealt with, there was perhaps no fair trial. The fair trial is a concept which is not merely confined to the procedural safeguards but must extend also to the substantive content of the trial. This principle is at times stretched further. If the accused himself came out of the court room and reasonably believed that he had been unfairly dealt with, there was perhaps no fair trial. The fair trial is a concept which is not merely confined to the procedural safeguards but must extend also to the substantive content of the trial. In this wider meaning the concept could encompass not only the manner of the trial but also the ultimate decision at the trial. This is important because a fair trial would cease to be a fair trial if it led to an unfair conclusion. Thus the conviction of an innocent person at a trial, which otherwise satisfied all the requirements of a fair trial, would be a negation of a fair trial. Similarly, a fair conclusion may be arrived at even in a trial which was not fair. There are various components of the judicial process. It involves the executive wing of the State, the judicial wing of the State, as indeed the legislative wing of the State. In every trial all these are on trial along with the accused. Was the trial based on a just and fair and truthful investigation? This would be trial of the investigational limb of the State. Was the prosecuting branch of the State acting in a last and fair manner in the conduct of the trial? Were the witnesses true to the oath by which they bound themselves? Each of them are also on the trial So is the presiding officer at every trial. Was he just and fair in the way he conducted the trial and ruled on that conclusion of it? In a sense the entire system is on trial15. It has further been observed in this case16 that access to justice and the consequential right to a fair trial, though part of the fundamental human rights, guaranteed by the Constitution; and incorporated in the statute regulating the procedure for the conduct of a trial and sought to be reinforced by high sounding principles of fair play is, however, by no means easy and does not necessarily have a smooth or straight course. The course of justice add fair trial are beset with numerous impediments which tend to sully the course of justice and put obstructions in the path of a fair trial. These impediments stem both from internal and external sources. The course of justice add fair trial are beset with numerous impediments which tend to sully the course of justice and put obstructions in the path of a fair trial. These impediments stem both from internal and external sources. There are internal obstacles which flow from the surroundings the infrastructure, as also the laws, rules, procedure, the practice and the conventions, all of which collectively from part of the justice system. The defective laws, dilatory procedures, improper and illegal practices, corruption of the court system the incompetence or lack of probity of the Judicial and other ,court personnel, the bias, the prejudice that they, may nurture the ill-will or affection, for one side or the other, that they nurse, the hostility against or the tilt for one or the other of the parties, based on improper motivations, whether of political affiliation, religious, communal, regional, caste or other affinities, tend to subvert the system. The internal factors take myriad forms, which vary from class, caste and cousint psychosis to transfer of Judges, officials, cases, changes of roster, and tampering with the system of listing, for ulterior objects, unconnected with the exigencies of administration of Justice. Some times, the caste or class composition of Judges determines for the litigants the section of the bar which would be best suited to be entrusted with the brief before such judges Courts. presided over by a certain Judges come, in course of time, to acquire an association with certain tilts, preferences and prejudices having regard to the background and known attitudes of Judges to men and matters. In their anxiety to serve the interest of the clients by means, fair or foul, unscrupulous members of the bar adopt Ingenious methods to make sure that their cases are listed before Judges of their choice. There are then external factors, which tend to disturb the course of justice. There are compulsions flowing from those in Authority or centres of power, pressures from influential quarters, mild friendly suggestions based either on veiled threats of reprisal or tacit promise of a reward. Some of these incentives, compulsions, and pressures are obvious, while there are others, which are more sophisticated and almost indiscernible, some times too subtle to be perceived, much less detected. Some of these incentives, compulsions, and pressures are obvious, while there are others, which are more sophisticated and almost indiscernible, some times too subtle to be perceived, much less detected. The institution of an independent Judiciary is no doubt a great bulwark against both internal and external pressure and, therefore, a built in safeguard that Justice would be administered without a fear or favour, ill will or affection. Unfortunately, however, there has been a growing realisation in practically all democratic systems, governed by the rule of law, that the independence of Judiciary may perhaps be a myth rather than a reality. There are, it is said, independent and fearless Judges, but there has been no dear to of Judges, who are neither independent nor fearless. There may be these who still are afraid of the stick and lured by the Tcarrot. It is nevertheless a beautiful myth because it sustains the democratic system and maintains faith of the people in the institution, which, if shaken, may induce the people to take to the streets for justice. The assumption that holding a trial in public is a, fundamental right and a direction for holding it in a jail is violative of that, stands negatived by Naresh v. State of Maharashtra17 which though recognises the importance of the public trial nevertheless recognises that even in the interest of justice, total unrestricted public trial cannot always be insisted. Of course such power is to be exercised sparingly and with caution. But the broad proposition that the mere holding of a trial in Jail is violative of fundamental right must be rejected. It should be borne in mind that vary rarely does the High Court exercise to direct any particular case to be tried in hit. When it does so it is done only because of overwhelming consideration of public order, internal security and a realisation that holding of trial outside Jail may be held in such a surcharged atmosphere as to completely spoil and vitiate the court atmosphere where it will not be possible to have a calm, detached and fair trial. 18 Lower Courts should not adopt casual approach to custodial torture meted out to the accused on the ground that the complaints as to such torture are made by habitual offenders only. 18 Lower Courts should not adopt casual approach to custodial torture meted out to the accused on the ground that the complaints as to such torture are made by habitual offenders only. When Judiciary is assigned the task of protecting the basic rights of citizens and provision is made to check CUSTODIAL violence by police, slackness and/or casual approach in such matters by lower courts can never be tolerated. To do so would amount to becoming a party to the most debased and inhuman form of punishment in the shape of inflicting torture on a person while in custody. It must be recognised by all concerned that under our Constitution and in our system of administration of justice, torture in any form, for the purpose of investigation in to crime is not justified and in no case the same can be looked at with a sympathetic eye. Therefore, it is necessary that all concerned must shun the notion that torture or ill treatment of persons in custody as justifiable. It is barbarous inhuman. It is something which has got to be eliminated and therefore can never be tolerated. 19 In T. H. Hussain v. M. P. Mondkar. 2 Their Lordships of the Supreme Court have summarised the principle of law in the following succinct and felicitous language in dealing with the concept of fair Trial. It is obvious that the primary object of Criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused; and provisions are so framed that a criminal trial should begin with and be through out governed by this essential presumption, but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. Thetest of fairness in a Criminal trial must be judged from this dual point of view. It is therefore, of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial never be so conducted by the prosecution as would lead to a conviction of an innocent person. Similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. A criminal trial never be so conducted by the prosecution as would lead to a conviction of an innocent person. Similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of the accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent power of the High Courts to secure the ends of justice. In a similar tone their Lordships of Delhi High Court21 have observed that a fair trial does not necessarily mean that it must be fair only to the accused. It must be fair to the victim also. It must be fair for all. A fair trial is a concept which is much higher than the claims or ends of parties to it. If the accused has a right to counsel of his choice why should not the victims of the crime be entitled to a say in the matter of representation of the state at the trial. The motive of the State and of the victim may be different but the object is common. Further in appreciating the concept of fair trial in real sense and correct perspective courts should remember Upanishads mandate that law is the king of king, far more powerful than the king. Nothing can be mightier than law by whose strength weak may prevail over the strong. No one is a beggar before law. But all are equal. 22 To make the concept of fair trial as a reality the courts should always regard the poor and the less- disadvantageously placed as entitled to preferential consideration rather than the rich, the affluent and the big industrialists. 23 1. Mrs. Maneka Saniay Gandhi v. Miss Rani Jethamalani, 1979 Cri. U 458: AIR 1979 SC 468 . 2. Subhash Chand v. S. M. Aggarwal, 1984 Cri. U 481 (486-487 ). 3. Aay Kumar v. State, 1986 Cri. U 932 (938 ). 4. C. N. Krishna Murthy v. Abdul Subban, 1965 (1) Cri. U 565 5. Madhav Haskot v. State of Maharashtra, AIR 1978 SC 1548 (1553 ). 6. AIR 1978 SC 597 (658 ). 7. Mrs. 2. Subhash Chand v. S. M. Aggarwal, 1984 Cri. U 481 (486-487 ). 3. Aay Kumar v. State, 1986 Cri. U 932 (938 ). 4. C. N. Krishna Murthy v. Abdul Subban, 1965 (1) Cri. U 565 5. Madhav Haskot v. State of Maharashtra, AIR 1978 SC 1548 (1553 ). 6. AIR 1978 SC 597 (658 ). 7. Mrs. Maneka Gandhi v. Union of India, AIR 1978 SC 597 . 8. Nathu v The State of UP. , 1987 (2) Crimes S64 (S6s ). 9. Union of India v T. R. Verma, AIR 19s7 SC 882. 10. G X. Francis v. Banke Bihari Singh, AIR 1958 SC; 309; 1958 Cri. Li. 569. 11. Madhav Hoskot v State of Maharashtra, AIR 1978 SC 1548 (1554 ). 12. Somappa Hanamantappa Chouraddi v. State of Karnataka, 1986 Cr1. L. J 1201 (1202 ). 13. Sukdas v. Union of India, 1986 Cri. L. J 1084: AIR 1986 SC 991 : 1986 (2) Crimes 40; M. H. Hoskot v State of Maharashtra, AIR 1978 SC 1548 ; Ranchod Mathur Wasawa v State of Gujarat, AIR 1974 SC 1143 : 1974 Cri. L. J. 799; Arjun Karmakar v. State of Assam, 1987 (1) Crimes 133 (134/35 ). 14. Hussainara Khatoon v. State of Bihar, 1979 Cri. L. J 1045: AIR 1979 SC 1369 ; Ajay Kumar v. State, 1986 Cri. L. J. 932 (919); Sheela Barse v. Union of India, 1986 Cri. Li. 1736 SC ; Sita Ram v State of U. P. , 1987 (1) Crimes 139 ; Hussainara Khatoon v. State of Bihar, 1979 Cri. Li. 1036 SC ; Nathu v. State of U. P. 1987 (2) Crimes 564; Madeshwardhari v State of Bihar, 1986 Cri. L. J. 1771 (F. B.) ; PM. Sunny v. State of Kerala, 1986 Cri. L. J. 1517 (1520) ; The State v Maksudan, 1985 Cri L. J. 1782 (1788) lb. Patna; State of Bihar v Ramdarash Ahir, 1985 Cri. L. J. 584; State of Maharashtra v Champa Lal, 1981 Cri. L. J. 1273 SC; Raghubir Singh v. State of Bihar, 1987 Cri. L. J 157 SC. 15. Ajay Kumar v. State, 1986 Cr1. L. J. 932 (938-939 ). 16. 1936 Cr1. L. J. 932 (940-941) 17. AIR 1967 SC 1 18. Raniit Singh v Chief Justice 1986 Cri. Li. 632 (635): 1985 (1) Crimes 1122. 19. Di. Vaghela v. Kanti Bhai, 1985 Cri. Li. 974 (77-978 ). 20. L. J 157 SC. 15. Ajay Kumar v. State, 1986 Cr1. L. J. 932 (938-939 ). 16. 1936 Cr1. L. J. 932 (940-941) 17. AIR 1967 SC 1 18. Raniit Singh v Chief Justice 1986 Cri. Li. 632 (635): 1985 (1) Crimes 1122. 19. Di. Vaghela v. Kanti Bhai, 1985 Cri. Li. 974 (77-978 ). 20. 1958 Cr1. L. i 701; AIR 1958 SC 376 (379 ). 21. Aiay Kumar v. State, 1986 Cri. Li. 932 (942 ). 22. Quoted with approved in Adam Hash v. State of Kerala, 1975 Cri. Li. 744. 23. Bihar legal Support Society v. Chief Justice of India, MR 1987 SC 38. .