Primary Rights Of An Accused Person In A Criminal Trial

We all know that one of the cardinal principles of the criminal justice system is that an accused is presumed to be innocent unless proven otherwise. In the Indian justice system, it is aid if two views are possible, one pointing towards the guilt of the accused and the other towards his innocence, that favourable favour to the accused should be accepted. This principle underscores the fairness and impartiality of our justice system. However, many people are unaware of their rights when it comes to criminal trials. It is crucial for all of us facing Dowry Harassment charges, including 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) and other allied offences to be fully 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 fundamental 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 protects against arrest and detention in some instances. It makes it mandatory for an arrested person to be informed about the grounds of arrest and not deny the right to consult a legal practitioner. The detained person has to be produced before the nearest magistrate within 24 hours. Section 41 CrPC lists certain conditions a Police officer must satisfy before making an arrest. Section 41A provides for a Notice of appearance before a 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 the Procedure for a police officer deputing a subordinate to arrest without a 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)}
2. 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, e.g., if the property is Istrian 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 the issue of a warrant and makes it a must for the recording of reasons by the judicial authority. An accused cannot be forced to produce incriminating materials by issuing a search warrant {Bimal Kanti v. M. Chandrashekhar 1986 CrLJ 689(Ori). Where the search for a place has to be made, the law requires that it 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 regarded as his castle. Thus, a Magistrate may only issue a search warrant when they act as a court and apply judicial mind. {Chiman Lal v Datar Singh (1998) CrLJ 267 Raj}
3. Protection against “Double Jeopardy” (Article 20(2) of the Constitution and Section 300 of Cr.P.C.): Nemo debetbisvexari –  Article 20(2) of the Constitution of India bars prosecution and punishment after an earlier sentence for the same offence. Where the complaint is permitted to be withdrawn and, as a result, the accused is acquitted, the trial of the accused on the fresh complaint for the same offence based on the same facts would be barred by section 300 CrPC {Eciyo coconut oils Pvt. Ltd. v. State of Kerala, 2002 (2) crimes 147}. The second trial is barred when the 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)}.
4. 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}
5. 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 a warrant must be taken before the 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}
6. 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.): The person arrested is to be informed of the grounds of arrest and the 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)
7. 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 restraint is required.
8. 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 liberty to be defended by a pleader when the proceedings are going on. Still, it also implies that he should have a reasonable opportunity, in the custody of the police, to get into communication with his legal adviser for his defence. {Llewelyn Evans Re (1926) 28 Bombay LR 1043 and Gopalan (1950)}. The state is under a mandate to provide free legal aid to the accused who are unable to secure legal services on account of poverty. The magistrate is under obligation to inform the 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 the right of an arrested person, upon request, to have someone informed about his arrest and the right to consult privately with lawyers is inherent in Articles 21 and 22 of the Constitution. The Supreme Court observed that no arrest can be made because it is lawful for the Police officer to do so.
9. 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 without a warrant for a more extended period than under all the circumstances of the case is reasonable. Such period shall not, in the absence of a particular order of a magistrate under S. 167, exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. While considering whether the protection of Articles 22 (1) and (2)extends to both categories of arrests, the Court concluded that arrests without warrants issued by a Court call for more excellent protection than arrests under such warrants.{Bhim Singh v.State of J. & K}
10. 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 for a bailable offence, he shall inform the person arrested that he is entitled to be released on bail and may arrange for sureties on his behalf. The right to bail u/s 167 provision (a) is absolute. Suppose the investigative agency is unable to file a chargesheet before the expiry of 90/60 days. In that case, the accused in custody should be released on bail irrespective of the order passed under section 439.
11. 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(i) That the accused is presumed to be innocent, (ii) That it is for the prosecution to establish his guilt, and (iii) That the accused need not make any statement against his will. Taking a specimen of fingerprints or signatures from the 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}
12. 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 the prosecution proposes to rely on. 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)}.
13. 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 its onus of proving the case beyond reasonable doubt against the accused based on acceptable evidence {State v. V.C.Shukla AIR 1980 SC 1382}
14. 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.): In a criminal trial, the evidence for the prosecution and defence should be taken in the accused’s presence. 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 the accused, the personal appearance of the accused was not dispensed with; the trial is vitiated {State of M.P. v. Budhram, 1996CrLJ 46 (MP-DB)}
15. 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. A more than mere reading of charges is required. Where the charges are framed in the absence of the accused, the order of framing charges would be set aside.
16. Right to test the evidence by cross-examination (Section 138 of Evidence Act):  The main object of cross-examination is to discover the truth and detect falsehood in human testimony. Cross-examination is one of the most productive tests the law has devised to discover the truth. The object of cross-examination is twofold- to weaken, qualify or destroy the opponent’s case and establish the party’s case using 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}
17. 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 the accusation to the accused to enable the accused to explain every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to allow the accused to describe every circumstance and incriminating evidence against him. The examination of the accused under Section 313 (1)(b) Cr.P.C. is not a mere formality. {Nar Singh vs State Of Haryana on 11 November 2014}
18. 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 custody of the accused to take reasonable care of the health and safety of the accused. {Mukesh Kumar v. State, 1990 CrLJ 1923}
19. 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 society and, therefore, includes granting fair and proper opportunities to the person concerned. The same must be ensured as this is a constitutional and human right. Adducing evidence in support of the defence was a valuable right. Denial of such a right would amount to a denial of a fair tri