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Author: Sheriyar Patel



(or How to Apply the Presumption of Innocence in Practice)

(Criminal Law for non-Lawyers)


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Sheriyar Patel

Criminal Defence Advocate


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Salman Khan, one of India’s most famous Bollywood actors, was charged with various criminal offences over a car accident in 2002, which the media have dubbed as 'hit-and-run' case, where one person died and others were injured. This case has been eagerly followed by lawyers in India. The Sessions Court trial judgment and the Bombay High Court appeal judgment, both of which are posted online, have been read by many.


One issue that occurs to me is the presumption of innocence and how it applies generally to criminal cases and to this case in particular. The media commonly talk about Salman Khan being on trial. But is it really the Defendant who is on trial in a criminal case?


When a ‘Defendant goes on trial’ for an alleged criminal offence it is to decide his guilt or innocence, right? Wrong. Well, mostly wrong, I would say. By lodging a criminal case in court, the Prosecution and Police say that a Defendant is guilty of a crime and should be punished accordingly. What is the safeguard to the individual against arbitrary punishment? The safeguard is that the individual, as against the State, is allowed to say that I am innocent, I am not guilty and I wish to put your case, the State’s case, to the test, in open court, in full view of the public and on the record.


The whole purpose of a criminal trial, the only purpose of a criminal trial perhaps, is to allow the individual to challenge and test the State’s case and evidence in public. It is not the Defendant that is on trial in a criminal case. That is the wrong way to look at it. It is the Prosecution case that is on trial.


Once a criminal case is lodged in court, it is not the Judge, Police or the Prosecution who decide whether a not a trial takes place. It is the Defendant alone who causes a trial to take place by pleading not guilty. If a Defendant pleads guilty there is no trial and the judge then considers sentence. By pleading not guilty, the Defendant is forcing (as his his/her right) the Prosecution to attend court and produce their witnesses and evidence to be tested and tried. If the Defendant pleads not guilty the Prosecution, Police and the Court have no option but to hold a trial. A Defendant is not asking for a trial to see if he is innocent or guilty, but because he says he is innocent and wants to challenge the Prosecution case and put it to the test in open court. This is the Defendant’s fundamental protection.


The Defendant is innocent until proved guilty and has a right to silence. It is the State’s case and evidence that is on trial in any criminal proceedings – not the Defendant. A criminal trial is for the benefit and protection of the Defendant against the State. If you lose sight of this basic principal then you are in trouble.


If you think of a criminal trial as being a test of the Defendant and whether he is innocent or guilty, I would submit that you can’t then properly or adequately presume the Defendant to be innocent at the same time. If you begin a trial thinking that it is the Defendant who is on trial, then I would submit that you cannot apply, or adequately apply, the presumption of innocence (or give adequate weight to the right to silence) as you are considering that the trial is a test of the Defendant and what he/she has to say to the allegations being put forward by the Prosecution. In effect the tribunal of fact are presuming the Prosecution case/allegations to be true and testing what the accused has to say to such allegations.


Whereas, if you consider a criminal trial to be a test of the Prosecution case/evidence then the tribunal of fact can test the Prosecution case/evidence in court during the trial while presuming the Defendant to be innocent in the meanwhile. The trial, at least initially, should be more focused and its emphasis should be more about what the Prosecution has to say about the Defendant rather than what the Defendant has to say about the Prosecution allegations, as Defendant also has right to silence.


In a case where you have a judge and jury or judge alone, if the judge uses phrases like “the Defendant is on trial for …” or “trial is to see if Defendant is innocent or guilty of…” or any words that suggest it is the Defendant who is being tested against the allegations being put forward by the Prosecution, then the tribunal of fact is starting off on the wrong foot and, I submit, erring in law as it cannot then apply, or adequately apply, the presumption of innocence (even though the judge may give lip service to presumption of innocence in the judgment or direction to the jury).


In the Judgment dated 6th May 2015 in Sessions Case No.240 of 2013 (Salman Khan’s case), the Hon’ble Judge begins with “Accused Salman Salim Khan, famous cine actor, faced trial …..”. I submit that this may amount to an error in law as once the Hon’ble Judge starts the trial process and his judgment on the basis that it is the Accused who is facing trial then he cannot apply, or adequately apply, the presumption of innocence to which the Accused is entitled.


The above is perhaps an over-simplified way of looking at a trial but a lot of lip-service is given to the presumption of innocence without actually applying it properly in practice.

(Warning: this eArticle does not constitute legal advice. If you have a legal problem, you should always seek professional advice tailored to your situation).