Legal Rights of an accused person.

An accused person has the following rights that are guaranteed by the law:

  • Right of protection against ex post facto law

An ‘ex-post facto law’ is a law which has been enacted subsequent to the occurrence of any act/omission. The Article 20(1) of the constitution  guarantees the protection to an accused against such ex post facto law. If a person does any act/ omits to do any act which is not an offence in the eyes of law at the time of  omission/commission of such act then the person shall not be punished for it if such act/omission is declared to be an offence subsequent to the omission/commission of such act.

  • Right of protection against Double Jeopardy

Enshrined under Article 20(2) of the constitution , this principle ensures that no person shall be prosecuted or punished for the same offence more than once.

  • Right of protection against forced self-incrimination

As per the Article 20(3) of the constitution,  No accused person shall be compelled to be a witness against himself/herself. In other words no person shall be forced to incriminate himself/herself.

  • Right of an accused female while arrest is made

As per Section 46 of the Cr.P.C, whenever a woman has to be arrested, she cannot be touched unless the officer arresting her is a female. Secondly, no woman can be arrested after sunset and before sunrise except in cases of exceptional circumstances. Where such exceptional circumstances exist, the woman police officer shall make a written report and obtain the prior permission of the Judicial Magistrate of the first call within whose local jurisdiction the offence is committed or the arrest is made.

  • Right of a person while arrest is made

As per the provisions of Section 46 of the Cr.P.C, no police officer has a right to cause death of the accused if the person is not accused of an offence punishable with death or with imprisonment for life. As per Section 49 of the Cr.P.C, the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

  • Right of an arrested accused female when medical examination is carried out

As per Section 53, 54 of the Cr.P.C, if an accused female has to be medically examined, then it shall only be done by or under the supervision of a female registered medical practitioner.

  • Right of an arrested accused person to get a copy of medical examination report

As per the Section 54 of the Cr.P.C, whenever anyone is arrested, he/she shall be examined by a medical officer in the service of Central/State Government, and in case where medical officer is not available, by a registered medical practitioner. The report of such medical examination shall contain information about injuries/marks of violence upon the person arrested, and the approximate time when such injuries/marks have been inflicted. Section 54 also makes it mandatory that a copy of the report of such examination shall be furnished by the medical officer/registered medical practitioner to the arrested person or the person nominated by such arrested person.

  • Right to have knowledge of the grounds of arrest

Article 22(1) 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.

According to Section 50(1) of the Cr.P.C whenever a person is arrested without warrant, he/she shall be informed about the grounds of arrest/full particulars of the offence for which he/she is arrested.

In case, where a subordinate officer is deputed by a senior police officer to arrest a person, such subordinate officer shall, before making the arrest, notify to 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 such subordinate officer does not comply with this provision then the arrest is rendered illegal. (Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 [Gau])

According to Section 75 of the Cr.P.C, in case of arrest to be made under a warrant, the police officer or other person executing a warrant of arrest shall notify the substance of the warrant to the person to be arrested, and if so required, the warrant shall also be shown. If the substance of the warrant is not notified, the arrest would be unlawful. (Satish Chandra Rai v. Jodu Nandan Singh, ILR (1899) 26 Cal 748)

The grounds of arrest should be communicated to the arrested person in the language understood by him/her. ( Harikisan v. State of Maharashtra, (1962) 1 Cri LJ 797: AIR 1962 SC 911, 914)

  • Right to be defended by a lawyer

Article 22(1) of the constitution provides that an arrested person shall not be denied the right to consult and to be defended by a legal practitioner of his/her choice.

Section 303 of the Cr.P.C provides that any person accused of an offence before a criminal court, or against whom proceedings are instituted, may of right be defended by a pleader of his/her choice.

  • Right of an arrested person to be taken before a magistrate without delay

Article 22(2) of the constitution provides that an arrested person should be taken to the magistrate within 24 hours of arrest.

As per Section 56 and 76 of the Cr.P.C, the arrested person has a right to be produced before the magistrate without unnecessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he/she is taken to the magistrate.

  • Right to information regarding the right be released on bail

As per Section 50(2), where police officer arrests without warrant, any person not accused of a bailable offence, it shall be mandatory for the police officer to inform the person arrested that he is entitled to be released on bail and that he may arrange sureties on his behalf.

  • Right of arrested person to not to be detained for more than 24 hours without judicial scrutiny

According to Section 57 of the Cr.P.C, 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.

  • Right of an arrested indigent person to free legal aid and to be informed about it

In Khatri (2) v. State of Bihar ((1981) 1 SCC 627), the Supreme Court held that the State is under a constitutional mandate (implicit in Art. 21) to provide free legal aid to an indigent accused person, and that this constitutional obligation to provide legal aid does not arise only when the trial commences but also when the accused is for the first time produced before the Magistrate as also when he/she is remanded from time to time. However, this constitutional right of an indigent accused to get free legal and may prove to be illusory unless he/she is promptly and duly informed about it by the court when he/she is produced before it. The Supreme Court has therefore cast a duty on all Magistrates and courts to inform the indigent accused about his right to get free legal aid. (Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1) The Apex Court in Suk Das v. UT of Arunachal Pradesh ((1986) 2 SCC 401) held that this constitutional right to provide legal aid cannot be denied if the accused failed to apply for it and 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 of Information of arrest to a nominated person

According to Section 50-A of the Cr.P.C, it is mandatory for a police officer not only to inform the friend or relative of the arrested person about his arrest, but also to make an entry in a register maintained by the police. The magistrate is also under an obligation to satisfy himself/herself about the compliance of the police in this regard.

  • Right to receive the copy of the receipt after search

Power to search under Section 51 of Cr.P.C is available only if the arrested person is not released on-bail. After search all the articles other than necessary wearing apparel found upon the arrested person are to be seized, and it has been made obligatory to give to the arrested person a receipt showing the articles taken in possession by the police, This would ensure that the articles seized are properly accounted for. In case the arrested person is a woman the search can be made only by a female with strict regard to decency.

  • Right to know of the accusation

Charge is the foundation of every criminal trial. According to Section 218 of Cr.P.C, for every distinct offence there shall be a separate charge. Fair trial requires that the accused person is given adequate opportunity to defend himself/herself. Such opportunity will have little meaning, or such an opportunity will in substance be the very negation of it, if the accused is not informed of the accusations against him/her The Cr.P.C therefore in Sections 228, 240, 246, 251 provides in unambiguous terms that when an accused person is brought before the court for trial, the particulars of the offence of which he/she is accused shall be stated to him/her. As per Sections 228,240,246 of Cr. P.C,  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. Details provisions have been made in the Code in Sections 211-224 of Criminal Procedure Code regarding the form of charge, and the joinder of charges.

  • Right to be present at trial

Section 273 of Cr.P.C requires that the evidence is to be taken in the presence of the accused person; however, the Section allows the same to be taken in the presence of the  pleader of the accused if the personal attendance of the accused person is dispensed with. Fair trial requires that the particulars of the offence have to be explained to the accused person and that the trial is to take place in his presence.

  • Right of properly understanding the evidence

Section 279 of Cr.P.C provides that whenever any evidence is given in a language not understood by the accused, and he/she is present in Court in person, it shall be interpreted to him/her in open Court in a language understood by him/her. If he/she appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be  interpreted to such pleader in that language. When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary. However, non-compliance with Section 279(1) of Criminal Procedure Code will be considered as more irregularity not vitiating the trial if there was no prejudice or injustice cause to the accused person. (Shivanarayan Kabra v. State of Madras, AIR 1967 SC 986, 990: 1967 Cri LJ 946.)

  • Right to get copies of police report and other documents

According to Section 207 of Criminal Procedure Code the magistrate is under an imperative duty to furnish to the accused, free of cost, copies of statements made to the police and of other documents to be relied upon by the prosecution. The object of furnishing the accused person with copies of the statements and documents as mentioned above is to put him on notice of what he/she has to meet at the time of the inquiry or trial and to prepare himself/herself for his/her defence. The right conferred on the accused is confined to the documents enlisted in the Section and does not extend to other documents.Free copies have to be supplied to the accused in such cases by the magistrate in view of the imperative duty created by Section 207. Similarly, in a case exclusively triable by a Court of Session-such a duty is not imposed by any express provision in the Code on the Court of Session. However if such a duty is implied in a summons case, a fortiori, it is very much implied in a case exclusively triable by a Court of Session. According to Section 238 of Criminal Procedure Code, at the time commencement of the trial in a warrant case it is the duty of the Magistrate to satisfy himself/herself  that he has complied with the provisions of Section 207 of Criminal Procedure Code. However in a summons case instituted on a police report no such duty has been specifically cast on the Magistrate conducting the trial. However, free copies have to be supplied to the accused in such cases by the Magistrate in view of the imperative duty created by Section 207 of Criminal Procedure Code. Where the copies of the statements are not supplied to the accused person, as required by Section 207 Criminal Procedure Code it is undoubtedly a serious irregularity. However, this irregularity in itself will not vitiate the trial. lt will have to see whether the omission to supply copies has in fact occasioned a prejudice to the accused person in his/her defence. It is found in positive, the conviction of the accused person must be set aside, and a fair retrial after furnishing to the accused all the copies to which he/she is entitled must be ordered. (Section 465 of Cr.P.C)

  • Right to cross-examine prosecution witnesses and to produce defense evidence

Though the burden of proving the guilt is entirely on the prosecution and though the law does not require the accused to lead evidence to prove his/her innocence, yet a criminal trial in which the accused is not permitted to give evidence to disprove the prosecution case, or to prove any special defence available to him/her, cannot be any standard to be considered as just and fair. The refusal without any legal justification by a Magistrate to issue process to witnesses named by the accused person was held enough to vitiate the trial. (Habib Mohd. V. State of Hyderabad, AIR 1954 SC 51: 1954 Cri LJ 338, 348.)

  • Right to get properly/fairly examined by the court

With a view to give an opportunity to the accused person to explain the circumstances appearing in evidence against him/her, Section 313 of Cr.P.C provides for the examination of the accused by the court. This is of immense help to the accused person, particularly when he/she is undefended. Section 313 requires the courts to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet, and thereby an opportunity is given to the accused to explain any such point (Parichhat v. State of M.P., (1972) 4 SCC 694: 1972 Cri LJ 322, 326)

  • Right of accused person to be a competent witness

According to provisions of Section 315 of Cr.P.C, the accused can be a competent witness for defence and can give evidence in disproof of the charges made against him/her or against his/her co-accused. He/She may give evidence on oath in disproof of the charges made against him/her or any person charged together with him/her at the same trial but he/she shall not be called as a witness except on his/her own request in writing and his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself/herself or any person charged together with him/her at the same trial.

  • Right to be released on bail if investigation is not completed within the prescribed number of days

Whenever an accused person is arrested and detained in custody by the police during investigation and it appears that the investigation cannot be completed within 24 hours as fixed by Section 57, the accused person must be forwarded to a Judicial Magistrate. The Magistrate to whom the accused is so forwarded may from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole. There is, however, no obligation on the part of the Magistrate to grant remand as a matter of course. The police has to make out a case for that. It is also not proper for the court to extend the period of judicial custody without insisting on the production of the accused. It has been ruled by the Hon’ble Courts  that request for remand can be opposed by an application and prayer for bail instantly even when some application for bail moved earlier is pending and posted for a future date. If further detention of the accused person becomes necessary for the completion of the investigation, the Magistrate may authorise the detention of the accused person otherwise than in custody of the police. But the total period of detention in such a case (including the abovementioned period of 15 days) shall not exceed 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of 10 years or more; and such period of detention shall not exceed 60 days where the investigation relates to any other offence. On expiry of this period of 90 days or 60 days, as the case may be, the accused person shall be released on bail if he/she is prepared to and does furnish bail. This provision is applicable irrespective of the fact that the offence of which the detained person is accused of is non-bailable or the case is such that it involves any serious or ghastly crime.

  • Right of compensation for wrongful arrest

Section 358 Criminal Procedure Code empowers the court to order a person to pay compensation to another person for causing a police officer to arrest such other person wrongfully. Usually it is the police officer who investigates and makes the arrest and the complainant, if at all can be considered to have a nexus with the arrest, it is rather indirect or remote. For applying Section 358 some direct and proximate nexus between the complainant and the arrest is required. lt has been held that there should be something to indicate that the informant caused the arrest of the accused without any sufficient grounds. The Section does not make any express provision for giving an opportunity to the complainant or other concerned person to show that there was sufficient ground for causing the arrest to be made or to show cause as to why an order to pay compensation under this Section should not be passed against him. However, looking to the consequences which are likely to follow from the order of payment of compensation, the principles of natural justice would require that such an opportunity should be given to the complainant or other concerned person .

  • Right against solitary confinement

Although, one of the mode of punishment is solitary confinement, but certain restrictions have imposed on the type of punishment to protect the right of convict to mingle with other convicts. In Sunil Batra (1) v. Delhi Administration (AIR 1978 SC 1575), it was held ‘if by imposing solitary confinement there is total deprivation of camaraderie (friendship) among co prisoners commingling and talking and being talked to, it would offend Article 21 of the Constitution. The liberty to move, mix mingle, talk, share company with co-prisoners if substantially curtailed would be violative of Article 21 unless curtailment has the backing the law. The Court held that continuously keeping a prisoner in fetters day and night reduces the prisoners from a human being to an animal and that this treatment was cruel and unusual that the use of bar fetters was against the spirit of the Constitution .

  • Right against inhuman treatment

In Kishore Singh v. State of Rajasthan (AIR 1981 SC 625), the Supreme Court held that the use of third degree method by police is violative of Article 21 and directed the Government to take necessary steps to educate the police so as to inculcate a respect for the human person. The Court also held that punishment of solitary confinement for a long period from 8 to 11 months and putting bar fetters on the prisoners in jail for several days on flimsy ground like loitering in the prison, behaving insolently and in an uncivilized manner, tearing of his history ticket must be regarded as barbarous and against human dignity and hence violative of Articles 21, 19 and 14 of the Constitution.

  • Right to obtain information under the RTI Act, 2005

Even when a person is convicted and deprived of his liberty in accordance with the procedure established by law, a prisoner still retains the residue of constitutional rights. Articles 14, 19 and 21 are available to prisoners as well as freemen. Prison walls do not keep out Fundamental Rights. The arrestee has a right to submit an application through Superintendent Jail for receipt of documents/information as permissible under the Right to Information Act, 2005.

-Tushar Kaushik

2 thoughts on “Legal Rights of an accused person.”

  1. well written Tushar and suggested you that highlight the key finding of research ur paper and make suggestion for the same also

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