Rights of Accused

Introduction:

As the Indian constitution is wedded to Democracy and Rule of Law, the

concept of free and fair trial is a constitutional commitment for which the
cardinal principle of Criminal Law revolves around the Natural Justice
wherein, even the accused or guilty person is treated with a human
treatment. 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, a person who
is charged with the commission of offence. An offence is defined as an act or
omission made punishable by any law for the time being in force. The
accused persons are also granted certain rights, the most basic of which are
found in the Indian Constitution. An accused 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.

Body:

All legal systems provide, at least on paper, guarantees that insure certain
basic rights of the accused. These include right to trial by jury (unless jury
trial is waived), to representation by counsel (at least when he is accused of
a serious crime), to present witnesses and evidence that will enable him to
prove his innocence, and to confront (i.e., cross-examine) his accusers, as
well as freedom from unreasonable searches and seizures and freedom from
double jeopardy. Currently, in many countries with a democratic system
and the rule of law, criminal procedure puts the burden of proof on the
prosecution – that is, it is up to the prosecution to prove that the defendant
is guilty beyond any reasonable doubt, as opposed to having the defendant
prove that s/he is innocent; any doubt is resolved in favour of the
defendant. Similarly, all such jurisdictions allow the defendant the right to
legal counsel and provide any defendant who cannot afford their own lawyer
with a lawyer paid for at the public expense (which is in some countries
called a “court-appointed lawyer”). First-generation human rights, often
called “blue” rights, deal essentially with liberty and participation in political
life. They are fundamentally civil and political in nature, as well as strongly
individualistic: They serve negatively to protect the individual from the
excesses of the state. First-generation rights include, among other things,
freedom of speech, the right to a fair trial, freedom of religion and voting
rights. Civil and political rights form the original and main part of
international human rights. They comprise the first portion of the 1948
Universal Declaration of Human Rights (with economic, social and cultural
rights comprising the second portion). The theory of three generations of
human rights considers this group of rights to be “first-generation rights”,
and the theory of negative and positive rights considers them to be generally
negative rights.

Laws:

1. Under Constitutional Law:

Our constitution is based on fundamental that "Let Hundreds Go
Unpunished, But Never Punish an Innocent Person" Right to get a fair
representation in a criminal procedure is a facet of Right to Equality
(Article 14). Article 20 says that "no person shall be convicted of any
offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the
law in force at the time of the commission of the offence. Thus,
accused is given fair equality as par with other citizen. Also by the
judicial voice, a wider ambit has been given to right to life and liberty
and thus accused are given a human treatment in jails fulfilling
reformative approach (Article 21). Article 22 talks that No person 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, legal practitioner of his choice. The exception
to the right is that it is not to be applied on alien. Thereby, these
rights under constitution are inherent rights and cannot be altered or
changed.
2. Under Criminal Law
 Presumption of Innocence: In Blackstone’s famous words, "it is
better that ten guilty persons escape than that one innocent
suffer". The essence of criminal trial lies in that the accused is to
be presuming innocent until a charge is proved against him
without any reasonable doubt.

 Right To Know The Grounds of Arrest: As per Section 50(1) of

Cr.P.C., where a person arrested without warrant is entitled to
know the full particulars of offence for which he is being arrested
and where a person is arrested with warrant, he must be notified
the particulars of such warrant, or even show such warrant if
needed. Sec. 75 of Cr.P.C.
 Right to have Bail: Any person who is arrested without a warrant
and is accused of a bailable offence has to be informed by the
police officer that he is entitled to be released on bail on payment
of the surety amount.

 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. By Sec 56 and 76 of the code, an accused has to be
produced before a magistrate within the 24 hrs.

 Right to free, fair and speedy trial: As justice delayed is justice

denied, the concept of speedy and expeditious trial was
introduced by which the accused person is given fair and
impartial justice quickly.

 Right to Consult a Legal Practitioner: This has been enshrined as

a fundamental right in Article 22(1) of the Constitution of India,
which cannot be denied in any case. Section 50(3) of the Code
also lays down that the person against whom proceedings are
initiated has a right to be defended by a pleader of his choice.

 Right of Free Legal Aid: A duty is imposed on all magistrates and

courts to inform the indigent accused of his right to get free legal
aid. 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.

 Right to Be Examined by a Medical Practitioner: Section 54 of

Cr.P.C. enumerates this right. 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 privacy and protection against unlawful searches : The

police officials cannot violate the privacy of the accused on a mere
presumption of an offence. The property of an accused cannot be
searched by the police without a search warrant.
  Right to be present during trial: Section 273 of the Code provides
that all evidence and statements must be recorded in presence of
the accused or his criminal lawyer.

 Right to get Copies of Documents: The accused has the right to

receive copies of all the documents filed by the prosecutor in
relation to the case.

 Right to be present at the trial: The accused person has the right
to be present during his trial and have testimony presented in
front of him.

 Right to cross-examination: The accused has the right to be

cross-examined by the prosecutor to prove his innocence.

 Right to Appeal: The rights of arrested persons include the right

to file an appeal against his conviction in a higher court.

 Right to Humane Treatment in Prison: The accused has a right to

have all his human rights when in prison and be subjected to
humane treatment by the prison authorities.
Case laws:
1. In Joginder Kumar vs. State of U.P. & Ors. (1994 SCC 260):
The Hon’ble Supreme Court gave the guidelines what should be the
basis of arrest are as follows:
 Arrest are not be made in a routine manner. The officer making
the arrest must be able to justify its necessity on the basis of some
preliminary Investigation.
 An arrested person should be allowed to inform a friend or relative
about the arrest and where s/he is being held. The arresting
officer must inform the arrested person when s/he is brought to
the police station and is required to make an entry in the diary as
to whom the information was given.
 It is the duty of the magistrate before whom the arrested person is
produced to satisfy her / him that the above requirements have
been complied with.
2. In Prem Shankar Sukla Vs. Delhi Administration (1980 SCC 526):
The Hon’ble Supreme Court observed that using handcuffs
and fetters (chains) on prisoners violates the guarantee of basic
human dignity, which is part of our constitutional culture. This
practice does not stand the test of articles 14 (Equality before law),
19 (Fundamental Freedoms) and 21 (Right to Life and Personal
 Liberty). In the said case, the following directives were given in
respect of Handcuffing:
 Handcuffs are to be used only if a person is :
a) Involved in serious nonbailable offences, has been previously
convicted of a crime
b) Is of desperate character violent, disorderly or obstructive
c) is likely to commit suicide
d) is likely to attempt escape.
 The reasons why handcuffs have been used must be
clearly mentioned in the Daily Diary Report. They must also be
shown to the court.
 Once an arrested person is produced before the court, the
escorting officer must take the court’s permission before
handcuffing her/him to and fro from the court to the place of
custody.
 The magistrate before whom an arrested person is produced must
inquire whether handcuffs or fetters have been used. If the answer
is yes, the officer concerned must give an explanation.
3. In D.K.Basu V State of West Bengal (AIR 1997 SC 610); The Hon’ble
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 not 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.
 The arrested person may be allowed to meet her/ his lawyer
during interrogation but not throughout the interrogation.
  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.
 Departmental action and contempt’s of court proceedings
should be initiated against those who fail to follow
abovementioned directives.
4. In Ajmal Keshab’s case, the Hon’ble Supreme Court of India interalia
directed the magistrate to inquire/ asked the accused about the
injury if any and to appoint the Lawyer for the accused who cannot
engage any Advocate to defend his/her rights/case on the day of
production.
Footnotes:
 https://legalserviceindia.com/legal/article-219-rights-of-accused-
persons.html
 https://www.britannica.com/topic/rights-of-accused
 https://www.scribd.com/document/361624513/RIGHTS-OF-
ACCUSED-IN-CONEXT-OF-CRIMINAL-JURISPRUDENCE-IN-INDIA-
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