Dr. B.R.
Ambedkar National Law University,
Rai, Haryana
Criminal Law-II Assignment
RIGHTS OF ACCUSED PERSON UNDER CRIMINAL
JURISPRUDENCE
Submitted to:
Dr. Amit Kamboj
Registrar, DBRANLU
Submitted by:
Chander Dev Sudhir
Section A
Enrollment no. 1901028
ACKNOWLEDGEMENT
On completion of this project, it is my present privilege to acknowledge my
heartfelt gratitude and indebtedness towards my teachers for their valuable
suggestion and constructive criticism. Their precious guidance and
unrelenting support kept me on the right path throughout the whole project
and very much thankful to my teacher in charge and project coordinators for
giving me this relevant and knowledgeable topic.
I wish to express my sincere gratitude to my teacher Prof. Amit Kamboj for
their guidance and encouragement in carrying out this project work.
I also wish to express my thanks to my group members and my friends for
their ideas because of which this project became more captivating. I am also
thankful to my institution library for providing a broad range of books to learn
more.
INTRODUCTION:
As per the legal principle, one is considered innocent until proven guilty.
The legal maxim reads out - "ei incumbit probatio qui dicit, non qui negat". This
translates to - the burden of proof is on the one who declares, not on the one
who denies.
This is what appropriately defines why it's necessary for having the rights of
accused persons. Definition under various laws, suggests that each person has
basic human rights.
There are certain fundamental rights of an accused person under the
constitution of India. These rights are given to all, irrespective of the fact if a
person is accused of a crime. Section 46 of CrPC 1states the mode of the arrest.
In order to make an arrest, the officer is bound to actually confine the body of
the person who is to be arrested until and unless there is submission to the
custody by actions or words. The officer can only use force if the person to be
arrested shows some resistance or tries to escape.
Therefore, till the time the crime isn't proven, there are certain rights of
persons accused of crimes. In India, these rights to the accused are given on
the lines of - ‘Let hundreds go unpunished, but never punish an innocent
person’.
Who is Accused Person?
“Webster Law Dictionary”
Person or Persons against whom a charge or crime or misbehaviour is brought.
“Black Law Dictionary”
Person who has been blamed for wrongdoing specially a person who has been
subjected to actual restraints on liberty through an arrest or a person against
whom a formal indictment or information has been retuned.
1
Indian Kanoon, The Code Of Criminal Procedure, 1973
https://indiankanoon.org/doc/706971/
“Sec.24 Indian Evidence Act, 1872”
Against whom evidence sought to be led in a criminal proceeding.
What is Right?
“According to Salmond”: Right is an interest recognized and protected by
moral or legal rules. It is an interest violation of which would be a legal wrong.
Respect for such interest would be a legal duty.
Indian Legislation and Right of Accused
Constitutional Law of India.
Indian penal Code, 1860.
Criminal Procedure Code, 1973.
Indian Evidence Act, 1872
Constitutional Law of India
The Constitution of India in its part-iii guarantees Fundamental Right to
citizens. Some of these Fundamental Rights are also available to accused,
under-trial and suspected persons. These persons are also entitled to benefits
of Art. 32 & 226 of Constitution.
Right against Handcuffing
With emerging trends of human rights the general rule is handcuffing of
accused is violation of Art. 14,19,21 of Constitution, But it is permitted
under exceptional cases and special reason should be recorded when
handcuffing is permitted. In Prem Shankar Shukla’s2 case SC laid down
that handcuffing is not permitted.
Right to Life
It is guaranteed under Art.21 of the Constitution. It is a Fundamental
right as well as Natural right. “No one shall deprive of his life and
personal liberty except according to procedure established by law.”
Babu Singh v/s State of UP3 Supreme Court declares refusal to grant bail
in murder case without reasonable case would amount to denial of
personal liberty.
2
Prem Shankar Shukla’s AIR 1980 SC 1535
3
Babu Singh v/s State of UP AIR 1978 SCR(2) 777
Right to Fair Trial
This right is enshrined by all democratic countries as basic human right.
This right is basically deals with administration of justice, because
without proper administration of law there is no benefit of just and fair
laws. Scope of this right comes under Art. 21 of Constitution. In
landmark case of Maneka Gandhi 4Supreme Court held that procedure
establish by law means right, just and fair procedure that embodies the
principles of natural justice. Rattiram v/s State of M.P5 entrenched in the
concept of due process of law which is bedrock of Art.21 of Constitution.
Right to Speedy Trial
Speedy trial is one of essential ingredient of the right to fair trial and Art
21 of Constitution. Delayed trials of under-trial prisoners’ means justice
denied to them. Hussainara Khatoon v/s State of Bihar AIR 1979 SC 1379
case SC held that speedy trial is part of fundamental right to life and
personal liberty. Kadra Pahadiya v/s State of Bihar AIR 1981 SCC 671 SC
enunciated speedy trial is fundamental right and commented against the
cases of several under-trial prisoners who were in jail without proper
trial.
Right to Counsel
Accused have a right to defend himself by a counsel. It is an essential
feature or integral part of Art. 21 of Constitution and Sec.303 of Cr.P.C
Right to have Lawyer of his choice, that the person should be given a
reasonable opportunity of hearing and proves him self innocent. The
International Commission of Jurist met in Delhi in 959 stressing the
importance of legal representation on behalf of accused.6
Right to Free Legal Aid
Art 39-A of Constitution provide legal aid to protect poor accused or
under-trial prisoners against injustice and to secure to them their
Constitutional and Statutory rights. Suk Das v/s UT of AP 7Apex Court
held that failure to apply free legal aid to accused at State’s cost would
vitiate the trial. If accused not provided with legal aid within reasonable
time this is violation of Art-21 of Constitution.
Right against Retrospective application of Penal Law
4
Maneka Gandhi AIR 1978 SCR (2) 621
5
Rattiram v/s State of M.P (2012) 4 SCC 516 SC
6
D.K. Basu vs. State of West Bengal 1997 (1) SCC 416)
7
Suk Das v/s UT of AP AIR 1986 SC 991
Nullius crimen sine lege and Nullium poena sine lege are two maxims
deals with this right which means there is no crime without law and
there is no punishment without law respectively. Art.20(1) of
Constitution prohibit only conviction or sentence not trial.
Right against Double jeopardy
Nemo debet Proeadem Causa bis Vexari: A man can not be put twice for
jeopardy for same offence. Autrefois acquit or Autrefois convict:
Previous acquittal or previous conviction. SC declares “No one can be
tried and convicted for the same or even for different offence but on
same facts”. Art. 20(2) of Constitution “No one can be prosecuted for
same offence”.
Right against self-incrimination
Nandini Satpathi vs. P.L.Dani AIR 1978 SC 1025 SC upheld the right
against self-incrimination. Authority can not compel the accused for
given any testimony. Art 20(3) of Constitution declares that no one can
be compelled to be witness against himself. Section 161(2) of Cr.P.C.
1973 also provides protection against self incrimination. SC held that
protection under 161(2) is wider than 20(3). Under Sec. 132 of Indian
Evidence Act, 1872 witness is not excused from answering on the ground
that answer will incriminate him. The object of this sec is to secure the
evidence from whatever sources it is available for doing complete
justice.
Right against Third-degree methods
In India physical or mental torture including use of third degree methods
during investigation or otherwise has been prohibited by law. Because it
is violation of Right to Life Guaranteed under Art. 21 of Constitution.
Landmark judgements of D.K. Basu vs. State of WB8 where Supreme
Court give guidelines relating to arrest and detention.
Right to Fair Treatment
Fair treatment is essential and integral feature of Art. 21 of Constitution.
Administrative and judicial actions are taken against the police in cases
of custodial death of accused if the police are found guilty of committing
unlawful acts. Bhagawati J. held that Police have duty to give fair
treatment to the accused in police custody.
Presumption of Innocence
8
D.K.Basu vs. State of WB 1997 CrLJ 743 (SC)
Indian legal system is adversary criminal justice system where every
accused of offence shall presumed innocent. Section 113-B and 114-A of
the Indian Evidence Act, 1872 incorporate provisions regarding
presumption of culpable mental state with respect to the offence of
Dowry Death under Sec.304-B and custodial rape under Sec.376(2) of
the IPC respectively. According to Mohmd. Hussain @ Julfikar Ali vs.
State (Govt. of Nct) Delhi AIR 2012 SC 3860 case presumption of
innocence is human right of accused.
Right under Criminal Procedure Code
Criminal Procedure Code, 1973 provides some rights and safeguards to
accused person which are necessary for just and fair trial and treatment of
accused person.
Right to Grounds of Accusation
Section 50(1) of Cr.P.C and Art. 22(1) of Constitution deals with this
right, that no one can be detained in custody without being informed
the grounds of such arrest. Section 41-B of Cr.P.C mandates the arresting
police officer to prepare a memorandum of arrest which shall be
attested by a family member or respectable member of locality.
landmark case on violation of this right where the SC awarded rupees
three lakhs as compensation for violation of directions of law for making
arrest.
Right to Silence
Under Sec. 313 of Cr.P.C accused have right to remain silence. SC
declares that collective effect of reading of the provision of Art 20(B) of
the Constitution with the Sec. 161[20,313(3), 315(b)] remains that in
India law provides for the rule against from the adverse inference of
silence of the accused.
Right to have Copy of FIR
Section 207 of Cr.P.C provides for supply of FIR to accused comes into
operation after submission of charge sheet by the police before the
Magistrate. Art. 22(1) of Constitution read with Sec 41B, 50A of Cr.P.C SC
in a case accused has right to get copy of FIR at earlier stage as possible.
Right to have Public Trial
Sec. 327 of the Cr.P.C provides for holding of trial in open court subject
to certain exceptions given in sub-section (2) of said section. In a case
even if the trial is shift to private house or jail it remains open court.
Right to Bail
Sec. 436-439 of Cr.P.C deals with bail. Bail is available in bail able and
non-bail able offences. Sec. 50(2) of the Cr.P.C mandates the Police
officer making the arrest to inform the arrested person of his right to
bail. SC declares right to claim bail guaranteed by sec 436 of code is in
bail able offences is an absolute and indefeasible right. Indigent person
has right to release on personal bound instead of taking bail. Sec. 167(2)
of Cr.P.C guarantee right to accused to get bail if investigation is not
completed within 90 days for an offence punishable with death or life
imprisonment or imprisonment for a term not less than ten years.
Right to Evidence Recorded in Presence of Accused
Sec. 273 of the Cr.P.C mandate all evidence in the course of trial shall be
taken in presence of accused to understand the case against him and
prepare his defence. SC held that if criminal case is decided against
accused in the absence of his counsel then there will be violation of Art
21 of Constitution.
Right to be Heard on question of Sentence
Sec. 235(2) and 248(2) of Cr.P.C confer right on accused found guilty of
offence by court to be heard on question of sentence. SC enunciated
when no opportunity has been provided to accused to produce material
and make submission in regard to the sentence to be imposed on him,
failure of justice is implicit and therefore the defect of non-compliance
with Sec. 235(2) of Cr.P.C is not curable by Sec. 465 of Cr.P.C.
Right under Evidence Act
Right of Accused to Examine Witnesses
Sec 137-166 of IEA, 1872 deals with examination of witness among those
Sec 137 of IEA, 1872 deals with Examination in Chief, Cross-examination
and Re-examination. During Cross-examination leading question can be
asked and when can not be asked mentioned in sec 143 of IEA, 1872.
Right of Accused related to confession of a crime
If accused confessed his guilt on his own record it can be treated as an
effective evidence of his guilt. SC expounded if confession of guilt is not
on his own desire and has been given under some threat then such
evidence is not acceptable. In relation to Sec 24 of IEA, 1872, Secs 153,
154, 281, 463 are made under Cr.P.C, it is the duty of the code to ensure
that all these rights are available to accused.
Right of Accused for Information
Sec. 65 of IEA, 1872 makes it clear that certified copy permitted under
IEA, 1872; Right to information under RTI Act, 2005 falls under this
ambit. Law provides privacy to the communication between certain
people keeping in view the relationship between the people keeping in
view the relationship between the people. Those persons who are
marries can not be forced to divulge the communication between them.
These are two exceptions in this provisions.
Right of Accused under IPC
Sec. 96-106 of IPC, 1860 deals with private defence, which could be physical or
for property. It is natural to help one self and protect self and own property
which is self defence in criminal law.
Miscellaneous
Reasonable Doubt
The prosecution must prove its case by adducing credible evidence and
not by raising suspicion as however grave the suspicion may be it can
not take the place of proof. Sc expounded that prejudice to accused or
failure of justice has to be examined with the reference to these aspects.
Benefit of Doubt
Sec. 105 of IEA, 1872 burden of proof. Reasonable doubt does not mean
any doubt but only that doubt for which reasons can be given.
Prosecution must prove its case beyond reasonable doubt and the
benefit is given to the accused. The doubt of reasonable, astute and
alert mind arrived at after due application of mind to every relevant
circumstances of the case appearing from the evidence.
Right to Reasoned Judgement
Accused have right to be reasoned judgement which is based on logical
conclusion and not on surmises and conjectures, it is the basic feature of
fair trial. SC expounded the conclusion about guilt or innocence of the
accused should be based on evidence.
There are a few extra rights provided to women
accused. They are as follows –
1. No women can be arrested before sunrise or after sunset.
2. Whenever it is necessary to cause a female to be searched, the
search must be made by another female with regard to decency.
3. Whenever a female is to be examined, the examination shall only be
conducted under the supervision of a registered female medical
practitioner.
4. Female accused should be guarded by women constable and shall be
questioned in the presence of women constables.
5. Female suspects must be kept in a separate locker room.
6. No women under 15 age shall be required to attend at any place
other than the place in which she resides.
7. Women have the right to file a Zero FIR (an FIR that can be filed in
any police station regardless of the place of incidence or jurisdiction).
8. Women have the right not to be handcuffed while arrest.
Conclusion
Emerging trend of human right tends that accused get his basic human right at
every stage of fair trial. Fair trial being heart of the criminal jurisprudence and
Indian legal system adopt and coordinate with International Conventions
which work for development of human rights. There are also provisions for
indigent person such as free legal aid, bail on security bond etc. So the system
is improving with emerging trends of modern and developed society.
References-
http://www.legalservicesindia.com/article/1635/Rights-of-
Arrested-Person.html
http://lawtimesjournal.in/arrested-persons-rights-under-crpc/
https://www.google.com/search?
q=indian+kanoon&rlz=1C1CHBD_enIN814IN814&oq=indian
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=chrome&ie=UTF-8
