PRIMARY RIGHTS OF AN ACCUSED PERSON IN A CRIMINAL TRIAL |
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PRIMARY RIGHTS OF AN ACCUSED PERSON IN A CRIMINAL TRIAL

CAW NanakPura, Delhi

We all know that one of the cardinal principles of criminal justice system is that an accused is presumed to be innocent unless proven otherwise. In Indian justice system, it is said, if two views are possible one pointing towards the guilt of the accused and other towards his innocence, the view favorable to the accused should be accepted. Still many people are left wanting when it comes to know about their rights when it comes to criminal trials. Most of us facing Dowry Harassment charges including 498a and other allied offences should be aware of our legal rights at all times, whether the case is at CAW Cell i.e. Crime Against Women Cell or Mahila Thana or Parivar Pramarsh Kendra or after the lodging of the FIR when you go seeking bail or attending Police Station after that.

These are the basic rights of any accused in a criminal trial along with the Section or Article which protects them.

  1. Protection against arbitrary or unlawful arrest (Article 22 of the Constitution and Section 41, 41A, 55 and 151 of Cr.P.C.): Article 22 of the Constitution of India provides protection against arrest and detention in certain cases. It makes it mandatory for an arrested person to be informed about the grounds of arrest and not deny right to consult legal practitioner. The person arrested has to be produced before nearest magistrate within 24 hours. Section 41 CrPC lays down certain conditions which a Police officer must satisfy before making an arrest. Section 41A provides for a Notice of appearance before police officer in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41 {Arnesh Kumar v. State of Bihar and anr}. Section 55 provides for Procedure when police officer deputes subordinate to arrest without warrant. Sub-Section 2 of Section 151 CrPC was introduced in the new code but was not part of the Old code of criminal procedure; it provides procedure for a person believed to have a design to commit a cognizable offence. {Ahmed Noobhai Bhatti v. State of Gujarat, 2005 (2) Crimes 26 (SC)}

 

  1. Protection against arbitrary or unlawful searches (Secs 93, 94, 95, 97, 100(4) to (8). and 165 of Cr.P.C.): Section 93, 94, 95, 97 CrPC provides for searches under warrant from a Magistrate, though disputed questions of fact, for e.g., if the property is istridhan property cannot be decided in the exercise of powers under S. 93 {Shailendrabhai Motilal Mehta v. Krishanbhen Vrajlal Mehta 2001 CrLJ 887(889). It also provides for the condition for issue of warrant and make it must for recording of reasons by the judicial authority. An accused cannot be forced to produce incriminating materials by issuing search warrant {Bimal Kanti v. M. Chandrashekhar 1986 CrLJ 689(Ori). Where the search of a place has to be made, the law requires that it must be made in the presence of two or more independent and respectable witnesses of the locality as u/s100 (4). Marten J. pointed out that the general provisions regarding search and entry are based on the law of England where an Englishman’s house is said to be regarded his castle. Thus a search warrant may be issued by a Magistrate only when they acts as a court and applies judicial mind. {Chiman Lal v Datar Singh (1998) CrLJ 267 Raj}
  2. Protection against “Double Jeopardy” (Article 20(2) of the Constitution and Section 300 of Cr.P.C.): Nemo debetbisvexari – Article 20(2) of Constitution of India bars prosecution and punishment after an earlier punishment for same offence. Where the complaint is permitted to be withdrawn and as a result the accused is acquitted, trial of accused on fresh complaint for the same offence base on the same facts would be barred by section 300 CrPC {Eciyo coconut oils pvt. Ltd. v. State of Kerala, 2002 (2) crimes 147}. Second trial is barred when accused is convicted or acquitted. There is a difference between acquittal and discharge, discharge of the accused doesn’t amount to acquittal and thus no bar on proceedings u/s 300 CrPC {Ranvir Singh v. State of Haryana, 2008 CrLJ 2152(2155)(P&H)}.

 

  1. Protection against conviction or enhanced punishment under ex-past facto law (Article 20(1) of the Constitution): Substantive law imposing liability of penalty cannot be altered to the prejudice of the person supposed to be guilty with retrospective effect {Rao Shiv Bhadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394}

 

  1. Protection against arbitrary or illegal detention in custody (Article 22 of the Constitution and Sees. 56, 57 and 76 of Cr.P.C.): Any person arrested without warrant must be taken before Magistrate having jurisdiction in the case within 24 hours. {Ramgulam v. State of Bihar (2005) (1) East Cri C 133(Pat)}. The rights under A. 22(2) of the Constitution are available only against illegal detention by the police and not against custody in jail {Pragyna Singh Thakur v. State of Maharashtra (2011) 10 SCC 445}

 

  1. Right to be informed of the grounds, immediately after the arrest (Article 22(1) of the Constitution and Section 50 of Cr.P.C. and also S. 55 and S. 75 of Cr.P.C.): Person arrested is to be informed of grounds of arrest and of right of bail in case of a bailable offence. {Gopalan v. State of Madras (1950) SCR 88} The information of grounds of arrest is mandatory and a person arrested without a warrant and communication of particular of the offence, the arrest and detention is illegal {Ajit Kumar Sannah v. State of Assam (1976) CrLJ 1303 (Gau-DB)

 

  1. Right of the arrested person not to be subjected to unnecessary restraint (Section 49 of Cr.P.C.): The person arrested shall not be subjected to more restraint than is necessary to prevent his escape, no unnecessary restrain in required.

 

  1. Right to consult a lawyer of his own choice (Article 22(1) of the Constitution and Section 303 of Cr.P.C.): The accused should be at a liberty to be defended by a pleader at the time the proceedings are actually going on but also implies that he should have a reasonable opportunity if in custody of the police of getting into communication with his legal adviser for the purpose of his defense. {Llewelyn Evans Re (1926) 28 Bombay LR 1043 and Gopalan (1950)}. State is under mandate to provide free legal aid to the accused that is unable to secure legal service on account of indigence. Magistrate is under obligation to inform accused of his right to free legal aid {Moolchand v State, 1990 CrLJ 682(Del)}. In Joginder Kumar v. State of U.P, the Supreme Court held that rightof arrested person upon request, to have someone informed about his arrestand right to consult privately with lawyers are inherent in Articles 21 and 22of the Constitution. The Supreme Court observed that no arrest can be madebecause it is lawful for the Police officer to do so.

 

  1. Right to be produced before a Magistrate within 24 hours of his arrest (Article 22(1) of the Constitution and Sees. 57 and 76 of Cr.P.C.): No police officer shall detain in custody a person arrested withoutwarrant for a longer period than under all the circumstances of the case isreasonable, and such period shall not, in the absence of a special order of aMagistrate under S. 167, exceed twenty-four hours, exclusive of the timenecessary for the journey from the place of arrest to the Magistrate’s Court.While considering whether the protection of Article 22 (1) and (2)extends to both categories of arrests, the Court came to the conclusion thatarrests without warrants issued by a Court call for greater protection than doarrests under such warrants.{Bhim Singh v.State of J. & K}

 

  1. Right to be released on bail, if arrested (Sees. 436, 437 and 439 of Cr.P.C., also Sees. 50, 20 and 167 of Cr.P.C.): Where a police officer arrests a person of a bailable offence, he shall inform the person arrested that he is entitled to be released on bail that he may arrange for sureties on his behalf. The right to bail u/s 167 provisio (a) is absolute. If the investigative agency is unable to file chargesheet before the expiry of 90/60 days, the accused in custody should be released on bail irrespective of the order passed under section 439.

 

  1. Right not to be a witness against himself (Article 20(3) of the Constitution and S.161 (2)): No person accused of any offence shall be compelled to be a witness against himself. The ingredients of A. 20(3) are
  1. That the accused is presumed to be innocent,
  2. That it is for the prosecution to establish his guilt, and
  3. That the accused need not make any statement against his will.
  4. Taking specimen of fingerprints or signatures from accused is not covered under this article but test results of polygraph and brain fingerprinting tests are testimonial compulsions and barred under A. 20(3) {Selvi v. State of Karnataka AIR 2010 SC 1974}

  1. Right to get copies of the documents and statements of witnesses on which the prosecution relies (Sees. 173(7), 207, 208 and 238 of Cr.P.C.): The following documents have to be provided to the accused u/s 207 CrPC for a police instituted case, FIR copy, statements u/s 161 CrPC of the witnesses, confessions or statements by the accused u/s164 CrPC and any other document or extract provided by Police to the Magistrate.  In a complaint case, the accused must be provided with statements recorded u/s 200 or 202 of all persons examined, confessions or statements of the accused u/s 164 CrPC and any other documents which prosecution proposes to rely. The court is justified in directing that the conviction be set aside as a result of failure to supply copies {Noor Khan v. State of Rajasthan AIR 1964 SC 286(1) CrLJ 167(175)}.
  1. Right to have the benefit of the presumption of innocence till guilt is proven beyond reasonable doubt (Sees. 101-104 of Evidence Act): In an accusatory system, such as that prevailing in India, it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence, it is not for the Court to speculate as to how the crime has been committed {Gandapa Bhimana v. State of Hyderabad, ILR (1956) Hyd. 636}. The prosecution has to discharge it onus of proving the case beyond reasonable doubt against accused on basis of acceptable evidence {State v. V.C.Shukla AIR 1980 SC 1382}

 

  1. Right to insist that evidence be recorded in his presence except in some special circumstances (Section 273 of Cr.P.C., also Section 317 Cr.P.C.): It is obligatory in a criminal trial, that the evidence for the prosecution and defense should be taken the presence of the accused. Mere cross-examination in the presence of the accused is not sufficient {Bigan Singh v. Emperor, (1927) 6 Pat 691}. Where evidence of prosecution witnesses is recorded in the absence of accused, the personal appearance of the accused was not dispensed with, trial is vitiated {State of M.P. v. Budhram, 1996CrLJ 46 (MP-DB)}

 

  1. Right to have due notice of the charges (Sees. 218, 228(2), 240(2), etc. of Cr.P.C.): It is mandatory to read out the charge framed to the accused and explain it to him. He shall then be asked whether he pleads guilty to the charge or whether the claims be tried. Mere reading of charges is not sufficient. Where the charges are framed in the absence of the accused, the order of framing charges would be set aside.

 

  1. Right to test the evidence by cross-examination (Section 138 of Evidence Act): The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. The exercise of cross examination is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. The object of cross examination is twofold- to weaken, qualify or destroy the case of the opponent and to establish the party’s own case by means of his opponent’s witnesses. Summary procedure cannot take away the right to cross-examination {Kalpanaben M. Shah v. Navinchandra Jeevanlal Acharya, AIR 1995 Guj 176}

 

  1. Right to have an opportunity for explaining the circumstances appearing in evidence against him at the trial (Section 313 of Cr.P.C.): The object of Section 313 (1)(b) Cr.P.C. is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of accused under Section 313 (1)(b) Cr.P.C. is not a mere formality.{Nar Singh vs State Of Haryana on 11 November, 2014}

 

  1. Right to have himself medically examined for evidence to disprove the commission of offence by him or for establishing commission of offence against his body by any other person (Section 54, 55A of Cr.P.C.): It has been made obligatory for the person having the custody of the accused to take reasonable care of the health and safety of the accused. {Mukesh Kumar v. State, 1990 CrLJ 1923}

 

  1. Right to produce defence witnesses (Section 233, 243 of Cr.P.C.):The trial court cannot deny an accused the right to summon witnesses he/she has cited for examination at any stage of trial, the Supreme Court has held.Fair trial entails the interests of the accused, the victim and of society, and therefore, includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional as well as human right. Adducing evidence in support of defence was a valuable right. Denial of such right would amount to denial of a fair trial.

 

  1. Right to be tried by an independent and impartial Judge (The Scheme of Separate of Judiciary as envisaged in Cr.P.C., also Sees. 479, 327, 191, etc. of Cr.P.C.): No Judge can act in any matter in which he has any pecuniary interest nor where he has an interest though not a pecuniary one suffience to create a real bias {Aloo Nath v. Gagubha Dipsangji (1894) 19 Bom. 608}. If the accused applies for a transfer, the Magistrate must transfer the case. {Emperor v. Chedi (1905) 28 ALL 212}

 

  1. Right to submit written arguments at conclusion of the trial in addition to oral submission (Section 314 of Cr.P.C.): Parties at the end of arguments but before the case is fixed for judgment, submit in writing a memorandum to the court setting forth arguments in support of their case, which would form a part of record {Haradhan Sen v. State, 2004 CrLJ 3881 (Cal-DB)}

 

  1. Right to be heard about the sentence upon conviction (Sections. 235(2) and 248(2) of Cr.P.C.): Hearing the accused on question of sentence is obligatory {Shiv Mohan Singh v. State, 1977 SC 949}. The Judge must make genuine effort to elicit from the accused all information which will eventually bear on the question of sentence.

 

  1. Right to fair and speedy investigation and trial (Section 309 of Cr.P.C.): Giving recognition to the principle of speedy trial §.1 S.309 envisages that when the examination of witnesses has begun, the same shall be continued from day to day, until all the witnesses in attendance have been examined.{Aqnelo v. State, 2002 CrLJ 3007}

 

  1. Right to appeal in case of conviction (Sections. 351, 374, 379, 380 of Cr.P.C. and Articles. 132(1), 134(1) and 136(1) of the Constitution): Not withstanding anything in the Criminal code, appeal to the court to which decrees or orders made in such court are ordinarily appealable. Non-filing of appeal by co-accused cannot be treated as a factor against accused, it would not be in any event take away right of accused to file appeal {Vadamalai v. Syed ThasthaKeet, AIR 2009 SC 1956}

 

  1. Right not to be imprisoned upon conviction in certain circumstances (Section 360 of Cr.P.C., and Section 6 of the Probation of Offenders Act): S. 360 is intended to enable the court to deal leniently with the first offenders and to carry out the object of reformation, this legislation is part of beneficent legislation. The court is obliged to look into the provisions of the Probation of offenders act and S. 360 CrPC while dealing with conviction of the accused persons. {Jagat Pal Singh v. Jatinder Dev Nanda AIR 200 SC 3622(1)}

 

  1. Right to get copy of the judgment when sentenced to imprisonment (Section.363 of Cr.P.C.): While the accused is entitled to free copy of the judgement, his counsel can be supplied with free copy also. Every accused is entitled to free copy of order passed on every bail application the same day the order is passed {Usman v. Sub-Inspector of Police (2003)2}.Any member of the public has a right to obtain copy of a judgement of any criminal court {Ladli Prashad Zutshi (1931) 53 All 724}

 

  1. Right to file appeal against the order of conviction (Sections 372, 373, 374 CrPC and Article 132(1), 134A): The right of appeal is not a natural or inherent, it is a creature of statute {Sajid Ali v. State of NCT, 2007 (2) crimes 268 (Del)}. Right of appeal can neither be interfered with or impaired not it can be subjected to any condition {Dilip S Dhanukar v. Kotak Mahindra Co. Ltd, 2007 CrLJ 2417 (2421) SC}

 

  1. Right to release of appellant on bail pending appeal on conviction (Section 239 CrPC): Where the convicted person satisfies the court by which he is convicted that he intends to present an appeal, the courts orders such person to be released on bail. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody {G. Narasimhulu v. Public Prosecutor, AIR 1978 SC 429

 

  1. Right to be released on probation of good conduct or after admonition (Section 360 CrPC): When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less or when any person under twenty one years or women is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against the offender ,it appear to the court before which he is convicted regard being to age, character or antecedents and to circumstances in which the offence was committed, that it is expedient that the offender must be released on probation for good conduct, the court may instead of sentencing any punishment direct he be released on entering into a bond. {Gulzar v. State of Madhya Pradesh AIR 2008 SC 1298}

 

  1. Right to be released on Parole or Furlough (Sections 5(A) and 5(B) of the Prisons Act, 1894): The parole and furlough rules are part of the penal and prison system with a view to humanise the prison system. All fixed term sentences of imprisonment of above 18 months are subject to release on parole after a third of the period of sentence has been served.It is a provisional release from confinement but is deemed to be a part of the imprisonment.

 

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15 Comments

  1. Narayana June 12, 2017 Reply

    Sir nice article.
    We will be very greatful if you enabke copying optiion so that we can take print out for ference

    • Author
      Shonee Kapoor June 13, 2017 Reply

      Copying option is disabled owing to content being hosted on other websites by copying from here.

  2. Dr S Bhatt May 16, 2017 Reply

    Very Nice and Informative Article
    Let Fellow #Men use this to FIGHT BACK Strong !
    Thanks Shonee ji

  3. Ramesh April 15, 2017 Reply

    Thanks a lot. Nice article, more informative

  4. Bobby Lal March 6, 2017 Reply

    Very good article, SC judgement against use of invasive provisions of CrPC against defendants may be added. Protection in replies etc. may be added.

    • Site Admin April 3, 2017 Reply

      Thanks Bobby for your kind comments, will try to incorporate your feedback.

  5. Chandra Prakash October 8, 2016 Reply

    Thanks for such nice article

  6. Dhruva Verma October 7, 2016 Reply

    Very informative and precise article.Congrats and thanks for the effort . Keep up the good work.

  7. Debasheesh Maitra October 7, 2016 Reply

    Great article! If I had known earlier, I could have unmasked the dirty IO, who detained me at PS where I had gone to file diary against atrocities of the 498a lady, who was backed by her rakhwalas, a police constable (now ASI), a politically equipped dishonest lawyer along with her parents, her 498a sister and a her wife torturing brother.

  8. Vijaykant October 7, 2016 Reply

    Appreciate your efforts sir….

  9. Vijaykant October 7, 2016 Reply

    When CAW cell are involved because currently I am on AB,. When are they involved am I St need to worry

  10. Harish Talwar October 7, 2016 Reply

    Sir,

    How many CAW cells (crime against women) are there in Delhi?

    • External Admin October 7, 2016 Reply

      There are 12 CAW cells

      HEADQUARTER
      Special Police Unit for Women & Children, Nanakpura, Moti Bagh New Delhi

      NORTH DISTRICT
      Crime Against Women Cell
      P.S. Sarai Rohilla, Ist Floor, Delhi-7

      NORTH-WEST DISTRICT
      Crime Against Women Cell P.S. Pitampura, Delhi-52

      NORTH-EAST DISTRICT
      Crime Against Women Cell. Old Building of PS Nand Nagri, Delhi

      CENTRAL DISTRICT
      Crime Against Women Cell
      P.S. Prasad Nagar Delhi.

      NEW DELHI DISTRICT
      Crime Against Women Cell
      Parliament Street, New Delhi-1

      SOUTH DISTRICT
      Crime Against Women Cell,
      Old PS Malviya Nagar Building,
      Behind PVR Saket, New Delhi

      SOUTH – WEST DISTRICT
      Crime Against Women Cell PS Dwarka Sector 9, First Floor, Near ITL Public School, New Delhi

      SOUTH – EAST DISTRICT
      Crime Against Women Cell, PP Sriniwas Puri, New Delhi

      EAST DISTRICT
      Crime Against Women Cell P.S. Krishna Nagar, Delhi

      WEST DISTRICT
      Crime Against Women Cell P.S. Kirti Nagar, New Delhi.

      OUTER DISTRICT
      Crime Against Women Cell, Old Police Station Building, Near JIMS Institute, Sector 3, Rohini, Delhi

  11. Amit October 7, 2016 Reply

    A very good article. (Ekdum Jhakkas)
    Brief at the same time elaborate enough to understand.

    Thank you sir.

    • External Admin October 7, 2016 Reply

      Thank You Amit ji for your kind appreciation.

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