Law and You > Criminal Laws > Criminal Jurisprudence > Rights of Accused
In this article, we shall discuss the rights of accused (arrested person).
List of Sub-Topics:
- Introduction
- Presumption of Innocence
- Right to Fair Trial
- Right Against Ex-Post Facto Operation of Criminal Law
- Protection from Double Jeopardy
- Right of Silence and Immunity against Self-Incrimination:
- Rights at the Time of Arrest
- Right to Know the Grounds of Arrest
- Right to be Examined by a Medical Practitioner
- Right to Consult Legal Practitioner
- Information of Right to Release on the Bail
- Right to be Taken Before a Magistrate Without Delay
- Rights at Trial
- Right To A Speedy Trial by the Constitution of India:
- Right of Getting Free Legal aid
An offence is defined as an act or omission made punishable by any law for the time being in force. The term ” accused ” has not been specifically defined in the code but what we generally understand is that the accused means the person charged with an infringement of the law for which he is liable and if convicted then to be punished. In other words, the accused is a person who is charged with the commission of offence. An accused cannot have similar footing with the convicted person. He has certain rights during the course of any investigation; enquiry or trial of offence with which he is charged, and he should be protected against arbitrary or illegal arrest. In this article, we shall discuss rights of an arrested person.
Article 3 of UDHR declares that “Everyone has the right to life, liberty and security of person” The same principle has been reiterated emphatically in Article 21 of the Constitution of India. In this article we will discuss the Constitutional provisions regarding liberty and protection of human rights of the accused. We shall also cover the various rights awarded to the accused persons by the Code of Criminal Procedure, Indian Penal Code and Evidence Act under different heads dealing specifically with the rights at the time of arrest, the post arrest rights, and the right of legal aid and consultation. A number of landmark judgments such as Sunil Batra v. Delhi Administration AIR 1978 SC 1675 and Charles Sobhraj v. Superintendent, Central Jail, Tihar, New Delh AIR 1978 SC 1514, D. K. Basu v. State of West Bengal AIR 1997 SC 610 etc. have further widened the ambit of the rights of the accused.
Constitutional Rights of the Accused:
Presumption of Innocence:
The basic principle of criminal law jurisprudence that an individual is presumed to be innocent till the contrary is proved against him has been enshrined in Article 21 of Indian Constitution along with Article 14(2) of the International Covenant of Civil and Political Rights, 1966. Article 11 of the Universal Declaration of Human Rights declares that Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
Section 101 of the Indian Evidence Act casts a reasonable burden upon the prosecution to prove the case against the accused, as every accused has the right to have the benefit of presumption of innocence till his guilt is proved beyond reasonable doubt.
Right to Fair Trial:
No person shall be deprived of his life and liberty except according to the procedure established by law has been enshrined in Article 21 of the Constitution, whose scope has been extended by judicial interpretation by the Supreme Court. It gives protection not only against executive action but also against legislation.
This principle is also contained in Article 9 of the International Covenant on Civil and Political Rights 1966. Article 21 implies some inalienable rights for all people including the accused and the condemned. To reinforce the effect of Article 21, Article 20 and 22 specifically provide for certain express rights in respect of arrest, detention and conviction for offences.
The European Convention for the Protection of Human Rights and Fundamental Freedoms has incorporated this right as a basic human right and states in Article 6(1) that “every person charged has a right to fair trial” and in Article 6(2) that “everyone charged with a criminal offence will be presumed to be innocent until proven guilty according to law.”
Right Against Ex-Post Facto Operation of Criminal Law:
No person can be accused and convicted of an offence for an act, which was not an offence under the law in force on the date when it was committed. This is a guarantee against ex-post facto operation of Criminal Law. This principle has been enshrined in Article 20(1) of the constitution of India and Article 11(2) of the Universal Declaration of Human Rights which says that “No one shall be held guilty of any penal offence on account of any act or omission, which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”.
Article 20 (1) specifically lays down that no person shall be convicted of an offence which has not been declared so by a law in force, and if a person is convicted of an offence, he cannot be subjected to a more stringent punishment than what has been specified by the law having force at that given time.
Protection Against Double Jeopardy:
No person can be punished for the same offence twice. This has been enshrined in the Indian Constitution in Article 20 (2) which lays down that no person can be prosecuted and convicted for the same offence more than once. This provision also finds mention in the Code of Criminal Procedure (hereinafter referred to as Code) in Section 300, which says that if a person has been either acquitted or convicted by a Court of competent jurisdiction, he cannot be tried for the same offence again, nor for another offence on the same facts. However, if the consequences of the act tried for, constitute a separate and distinct offence, he may be tried for the consequent offence if it be established that the act had not resulted in the consequences at the time when the earlier trial had-taken place, or that the Court trying him of the previous offence was unaware of the consequences of his act.
Right of Silence and Immunity against Self-Incrimination:
The ‘right to silence’ has been derived from common law principles. It means that normally courts or tribunals should not conclude that the person is guilty of any conduct merely because he has not responded to questions which were asked by the police or by the court. As per the law of evidence, any statement or confession made to a police officer is not admissible in a court of law. Right to silence is mainly concerned about confession. The breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement.
According to Article 20(3) of the Constitution of India is fundamental right of an accused to; remain silent to questions relating to the offence alleged against him. This privilege has been conferred upon by the Doctrine of Presumption of Innocence, which is considered as a cardinal principal in the administration of criminal justice in all countries. This principle has been accommodated in the Code under different sections like Section 313(2), which lays down that the accused shall not be administered oath. This provision follows from the principle tenet of criminal law that the burden of proof in all criminal cases is on the prosecution. Hence, the accused cannot be compelled to be a witness against himself. However, if in course of examination, the accused gives some answers which may be used as evidence against him, the prosecution is not barred from using them in course of the trial. Also, there is no bar against compelling the accused to produce documentary or real evidence which may be used against him in course of the trial.
In Nandini Sathpathy v. P. L. Dani, AIR 1978 SC 1025 case the Supreme Court held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation).
The Supreme Court again in the year 2010, held that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India.
Procedural Safeguards under CrPC:
The Criminal Procedure Code (CrPC) lays down a number of provisions relating to the rights of the accused at the time of arrest and during the pendency of the trial. Indian Penal Code (IPC) and Evidence Act also make some provisions in this regard.
At the Time of Arrest:
In Joginder Kumar v. State of U.P. (1994) 4SCC 260 case, the Court held that no arrest can be made because it is lawful for the police officer to do so. The police officer must be able to justify the arrest.
According to Section 41 of CrPC, a Police Officer shall not arrest a person without warrant, unless there is a reasonable satisfaction about the person’s involvement in a cognizable offence
Section 46 of the Code lays down the procedure to be followed to affect the arrest of a person.
- Arrest being a restraint of liberty of a person, it can be effected by actually contacting or touching the body of such person or by his submission to the custody of the person making the arrest.
- In Thanil Victor v. State, 1991 Cri LJ 2416 (Mad) case, the Court held that since in most cases, there is no submission of the arrestee by word or action, actual contact is required to affect an arrest.
- In Bharose Ram Dayal v. Emperor, AIR 1911 Nag 86 case the Court held that where a person confesses to the police officer of having committed an offence it shall amount to a submission to the custody of the police officer by the person and there is no need for touching in such a case.
- Sub-section (2) of the section says that the arresting authority may use all reasonable means to affect such arrest, subject to the condition that he is prohibited to use such force as well cause death to such person, who is not accused of an offence punishable with death or imprisonment for life. Thus, the intention of the framers of the Code is very clear that the amount of force used to affect the arrest should be reasonable, and any deviation from this reasonability test will amount to violation of the law.
- By an amendment to the Code in 2005, a special provision has been laid down to affect the arrest of a woman. Section 6 of the Amendment Act has added an additional clause 4 to Section 46 of the existing Code, which says that “save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the First Class within whose local jurisdiction the offence is committed or the arrest is to be made”. Thus, there is an express bar on the police to affect the arrest of a woman between sunset and sunrise.
According to Section 49 of CrPC, the arrested person cannot be subjected to unreasonable restraint and any restraint in excess of what is required to prevent his escape shall be deemed unlawful.
According to Section 151(1) of CrPC, the police officer shall not arrest a person to prevent the commission of cognizable offence, unless the officer concerned has a knowledge of design of such person to commit any cognizable offence and it appears to such officer that the commission of the offence cannot otherwise be prevented.
According to Section 151(2) of CrPC, when a person is arrested without warrant, the officer may handcuff the accused only if he is satisfied that it is necessary to do so, and he may do so only till the accused is taken to the police station and thereafter his production before the Magistrate. Any use of fetters thereafter can only be under the orders of the Magistrate.
According to Section 58 CrPC, “Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise”.
Right to Know the Grounds of Arrest:
The grounds of arrest should be communicated to the arrested person in a language understood by him; otherwise it would amount to violation of the constitutional norm
As per Section 50(1) of CrPC, every person who is being arrested by any police officer, without any warrant, is entitled to know the full particulars of offence for which he is being arrested, and that the police officer is duty bound to tell the accused such particulars and cannot deny it.
As per Section 55 of CrPC, when any person is being arrested by any police officer, who is deputed by a senior police officer, then such subordinate officer shall before making such arrest, notify the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. If this provision is not complied with, then the arrest would be rendered illegal.
if the person is being arrested under a warrant, then as per Section 75 of CrPC, any person who is executing such warrant must notify the person to be arrested, the particulars of such warrant, or even show such warrant if needed. If the substance of the warrant is not notified, the arrest would be unlawful.
The Constitution of India also confers this right as one of the fundamental rights. Article 22(2) of the constitution provides that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”
Under Section 50A(1) of CrPC, every police officer or other person making any arrest under this Code shall fimmediately give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.
The details regarding the requirements of the section 50A being fulfilled must be maintained in a book which shall be kept in the police station.
In Udayabhan Shukhi v. State of Uttar Pradesh, 1999 Cr LJ 274 (All H.C.) case, the Court observed that the right to be informed of the grounds of arrest is a precious right of the arrested person.
In Satish Chandra Rai v. Jodu Nahdan Singh, ILR 1926 Cal 748 case, the Court held that if the arresting authority does not specify the grounds of such arrest or notify the substance of the warrant under which the arrest has been made, the arrest would be unlawful.
In Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 (Gau H.C.). case, the Court held that violation of this provision shall vitiate the arrest making it illegal.
Right to be Examined by a Medical Practitioner:
According to Section 54 of CrPC, “when a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.”
Right To Consult a Legal Practitioner:
Every person who is arrested has a right to consult a legal practitioner of his own choice. This has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which cannot be denied in any case. Defence by a lawyer of one’s own choice is one of the characteristic features of the adversarial system that is practised in India, without which the ends of natural justice will be frustrated.
Section 50(3) of CrPC also lays down that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice. This starts begins as soon as the person is arrested. The consultation with the lawyer may be in the presence of police officer but not within his hearing.
In Powell v. Alabama, 287 US 45 (1932) case, the American Supreme Court held that the right to be heard would be wasted if it did not comprehend the right to be represented by a counsel. Even an intelligent man is often incapable to understand the intricacies of legal procedure, and hence without the service of a qualified lawyer, he stands the risk of being put on trial without a proper charge, and convicted upon incompetent evidence or evidence irrelevant to the issue. Hence, the right of interview with a qualified legal practitioner is of extreme essence for the ends of justice to be met.
In Kailash Nath v. Emperor, AIR 1947 All 436 case, the Court held that if the accused is in custody, he should have a reasonable opportunity of holding a conversation with his legal adviser for the purpose of his defense.
In D. K. Basu v. State of West Bengal. AIR 1997 SC 610 case, the Court held that the accused may be permitted to meet his lawyer during the investigation though not throughout the interrogation.
In Sunder Singh v. Emperor, 1932 Cri LJ case, the Court held that though there is no express bar on the presence of a police officer at the venue of such interview with the lawyer, it would be unjust to have them within the hearing of the police.
According to Section 126 of the Indian Evidence Act, 1872, the communications between the accused and his lawyer are privileged and confidential, and hence, inadmissible before a Court of law.
Information Regarding the Right to be Released on Bail:
According to Section 50(2) of CrPC, any person who is to be arrested without a warrant and is not accused of a nonbailable offence has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount.[1] This helps persons who are arrested for bailable offences and are not aware of their right to be released on bail.
According to Section 437 of CrPC, even in non-bailable offences, the accused may be released on bail at the discretion of the Court if it is reasonably satisfied that such release will not endanger public peace. Moreover, certain special concessions have been made for women, children and the infirm with regard to their right of acquiring bail in non-bailable offences.
In Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, the Supreme Court held that pre-trial release on personal bond should be allowed where the person to be released on ball is indigent, not having the adequate, means to furnish bond and there is no substantial risk of his absconding.
Section 35 of the 2005 Amendment Act added an explanation Section 436 which says that if an accused is unable to give bail within a period of one week, it shall raise a presumption that such person is indigent for the purpose of the section.
Further, Section 36 of the Amendment Act has provided that no person shall be kept in detention for a period longer than the maximum period provided for the offence charged with. Moreover, it has been provided that if a person has already undergone detention for a period amounting to one-half of the maximum period prescribed for the offence, he shall be released on personal bond with or without security
Right to be Taken Before a Magistrate Without Delay:
Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. Further, the arrested person has to be confined in police station only and nowhere else, before taking him to the Magistrate.
According to Section 56 of CrPC, “Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station”.
According to Section 57 of CrPC, “No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
According to Section 76 of CrPC, “Person arrested to be brought before Court without delay- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person”. Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed 24 hours in any case. While calculating the time period of 24 hours, the time necessary for the journey is to be excluded.
The same has been enumerated in the Constitution as a Fundamental Right under Article 22(2). This right has been created with a view to eliminate the possibility of police officials from extracting confessions or compelling a person to give information. If the police officials fails to produce an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.
Rights at Trial:
Right To a Fair Trial:
The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera.
Fair trial requires that the accused person is given adequate opportunity to defend himself. Sections 228, 240, 246 and 251 of the Code provide in unambiguous terms that when an accused person is brought before the court for trial, the particulars of the offence of which he is accused shall be stated to him. In case of serious offences, the court is required to frame in writing a formal charge and then to read and explain the charge to the accused person.
Right To A Speedy Trial by the Constitution of India:
Though this right has not been specifically mentioned in the Constitution, however, the SC in the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be conducted “as expeditiously as possible.” In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused is arrested, the investigation for the trial has to be completed within the period of six months or stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
Rights Of Free Legal Aid:
In case of an indigent accused who is too poor to afford the services of a lawyer, the Constitution through Article 21 implicitly guarantees the right of free legal aid at the expense of the State. The right of free legal aid commences from the moment the accused is produced before the Magistrate for the first time in accordance with the requirement of Section 57 of the Code.
In Khatri(II) v. the State of Bihar case, the Supreme Court held that the state is under a constitutional obligation to provide free legal aid to an indigent accused person as is implicit in Article 21 of the Constitution. This right does not come into picture only at the time of trial but exists at the time when the accused is produced the first time before the magistrate, as also when remanded from time to time. The Supreme Court further states that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid.
In Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been laid down that this constitutional right cannot be denied if the accused failed to apply for it. It is clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence. The Court observed that this constitutional right has been given practical implication by its inclusion in the Code under Section 304. Such an impoverished accused may apply for this right under that section for the fulfillment of his right. However, it cannot be denied simply because he had failed to apply for it.
In Ranchod Mathur Wasawa v. State of Gujarat, AIR 1974 SC 1143 case, Justice Krishna Iyer in his eloquent style said that it shall be the duty of the Court to ensure that the pleaders so appointed should have the competence to handle complex cases, and this practice of appointing lawyers should not be extended as a patronising gesture to raw entrants at the Bar. He further went on to say that the lawyer so appointed should be given sufficient time and facility to prepare for his defence so that the cause of justice may be served.
Evidence to Be Taken In Presence of Accused:
Section 273 of the Code requires that all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader to ensure fair trial. The right created by the section is further supplemented by S. 278, which inter alia provides that wherever the law requires the evidence of a witness to be read over to him after its completion, the reading shall be done in the presence of the accused, or of his pleader if the accused appears by pleader and in a language understood by the accused person (S. 279 and 317(2) CrPC). Besides section 138 of the Evidence Act gives the accused right to test the evidence by cross examination.
D. K. Basu Case:
In D.K.Basu V State of West Bengal AIR 1997 SC 610 case, the Supreme Court of India has observed that the violation of human rights and irregularity of arrest procedure and in inadequate compensation to the accused person. The custodial torture is the naked violation of human rights and degradation of human dignity. In certain police stations it was observed that the police used to torture and adopt the method third degree to get confession of the accused person. It is agreed that the police has legitimate right to arrest a criminal and to interrogate her/him in the course of investigation. However, the law does not permit the use of third degree methods or torture on an accused person. Actions of the State must be right, just and fair. Torture of accused persons for extracting any kind of confession would neither be right nor just nor fair. In order to avoid such type of violation the Hon’ble Supreme Court of India laid down the following guidelines:
- Use of third degree methods or any form of torture to extract information is not permitted.
- Police personnel carrying out arrest and interrogation must bear accurate, visible and clear identification / name tags with their designations.
- Particulars of all personnel handling interrogation of an arrested person must be recorded in a register.
- A memo of arrest stating the time and place of arrest must be prepared by the police officer carrying out an arrest. It should be attested by at least one witness who is either a family member of the arrested person or a respectable person from the locality where the arrest is made. The memo should also be countersigned by the arrested person.
- The arrested or detained person is entitled to inform a friend, relative or any other person interested in her/ his welfare of him regarding the place of detention and the reason of arrest as soon as practicable. The arrested person must be made aware of this right as soon as s/he is arrested or detained.
- The arrested person may be allowed to meet her/ his lawyer during interrogation but not throughout the interrogation.
- The time, place of arrest and venue of custody of the arrested person must be notified by telegraph to next friend or relative of the arrested person within 812 hours of arrest in case such person lives outside the district or town. The information should be given through the District Legal Aid Organization and police station of the area concerned.
- An entry must be made in the diary at the place of detention in regard to the arrest. The name of the friend/relative of the arrested person who has been informed and the names of the police personnel in whose custody, the arrested person is being kept should be entered in the register.
- The arrested person should be examined by a medical doctor at the time of arrest if s/he so requests. All bodily injuries on the arrested person should be recorded in the inspection memo’ which should be signed by both the arrested person and the police officer making the arrest. A copy of the memo should be provided to the arrested person.
- The arrested person should be subject to a medical examination every 48 hours by a trained doctor who has been approved by the State Health Department.
- Copies of all documents relating to the arrest including the memo of arrest should be sent to the Area Magistrate for her / his record.
- A police control room should be provided at all district and state headquarters where information regarding arrests should be prominently displayed. The police officer making the arrest must inform the police control room within 12 hours of the arrest.
- Departmental action and contempts of court proceedings should be initiated against those who fail to follow above mentioned directives.