BAIL JURISDICTION AND RIGHTS OF ACCUSED

Project Report Submitted in Partial Fulfilment of B.A. LL.B (Hons.) Seventh

Semester.

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

PATIALA

SUBMITTED ON: 6TH OCTOBER , 2016

SUBMITTED TO: SUBMITTED BY:

ADV. GURJIT SINGH JYOTSNA SANDHI

(PROF. OF LAW) ROLL NO.-131152

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 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PATIALA-147001
PUNJAB

SUPERVISORS CERTIFICATE

This is to certify that the Project Report entitled: Bail Jurisdiction and Rights of Accused,
submitted to the Rajiv Gandhi National University of Law, Punjab in partial fulfilment of the
requirements for B.A. LL.B (Hons.), seventh semester is an original and bona-fide research work
carried out by Jyotsna sandhi, under my supervision and guidance. No part of this study has
been submitted to any University for evaluation.

______________________
(Adv. Gurjit singh)

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 PREFACE

This project is intended to carry out an extensive research on the given topic by the supervisor.
The research and analysis conducted by the researchers are bona-fide and purely for academic
purposes. The borrowed facts, data and opinions presented are appropriately cited using
Bluebook 19th Ed. style of citing borrowed works.
Every effort is made to keep the project error free. We would gratefully acknowledge the
suggestions to improve the project to make it more useful.

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 ACKNOWLEDGMENT

Our Respected Assistant Professor Adv. Gurjit singh helped us all through in the
accomplishment of this project. I sincerely thank him who helped me throughout the project.
I, also thank the members of the library staff and computer section for the cooperation in making
available the books and accessing the Internet even during their free time.

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TABLE OF CONTENTS

List of Cases........................................................................................................................... 6
CHAPTER 1 ............................................................................................................................ 7
Introduction .......................................................................................................................... 7
1.1 Objective of study.....................................................................................................................7
1.2 Research Methodology .............................................................................................................7
1.3 Formatting Methodology ..........................................................................................................7
1.4 Scope of the study ....................................................................................................................7
1.5 Chapterisation ..........................................................................................................................7
1.6 Limitation of the Study .............................................................................................................8

CHAPTER 2 .......................................................................................................................... 11
Rights Of Accused Under The Constitution Of India .............................................................. 11
2.1 Rights Of Accused Recognised And Guaranteed By The Constitution Of India ........................... 11
2.1.1 Right of equality and equal protection of laws .......................................................................... 12
2.1.2 Protection against Ex-post Facto operation of Criminal Laws ................................................... 12
2.1.3 Protection against Double Jeopardy .......................................................................................... 13
2.1.4 Protection against Self-Incrimination ........................................................................................ 13
2.1.5 Right to have freedom from unwanted Arrest and matters incidental thereto ........................ 14
2.1.6 Right to have Legal Defence....................................................................................................... 15

CHAPTER 3 .......................................................................................................................... 19
Rights Of Accused Under The Code of Criminal Procedure .................................................... 19
3.1 Rights of Accused .............................................................................................................................. 20
3.2 Bail ......................................................................................................................................... 20

CHAPTER 4 .......................................................................................................................... 28
Conclusion And Suggestions ................................................................................................ 28
Bibliography ........................................................................................................................ 31

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 LIST OF CASES

1. Dharmu v. Rabindranath, 1978 Cr LJ 864 (Ori HC)..

2. D.K. Basu v. State of West Bengal, AIR 1997 SC 610
3. Haji Mohd. Wasim v. State of U.P. 1992 Cri LJ 1299 (ALL HC).
4. Hathi Singh Manufacturing Co. v. Union of India, AIR 1960 SC 923.
5. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98, 107: 1980 SCC (Cri) 40, 49:
1979 CrLJ 1045, 1051.
6. Iqbal Ismail Sodawala v. State of Maharastra, (1975) 3 SCC 140: 1974 SCC (Cri) 764,
770: 1974 Cri LJ 1291.
7. Joginder Kumar v. State of U.P., (1994) 2 SCALE Vol. II No. 7. 662.
8. Kishore Singh Ravinder Dev v. State of Rajasthan, 1981 AIR 625, 1981 SCR (1) 995..
9. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
10. Madheshwardhari Singh v. State of Bihar, 1986 Cri LJ 1771 (Pat);
11. Maneka Gandhi (Smt.) v. Union of India, AIR 1978 SC 597
12. Mihir Kumar Ghosh v. State of West Bengal, 1990 Cri LJ 26 (Cal).
13. Mohd. Tariq v. Union of India, 1990 Cri LJ 474 (ALL HC).
14. Moti Ram v. State of M.P. (1978) 4 SCC 47
15. Prem Shankar Sukla v. Delhi Administration,1980, 1980 AIR 1535, 1980 SCR (3) 855.
16. S. Guin v. Grindlay Bank Ltd., 1986 SCC (Cri) 64: (1986) 1 SCC 654: 1986 Cri LJ 255;
17. State of M.P. v. Shobharam, AIR 1966 SC 1910.
18. Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401.
19. Sunil Batra v. Delhi Administration, 1980 AIR 1579, 1980 SCR (2) 557.
20. Talab Haji Hussain v. Madhukar Purshottam Mondkhar, AIR 1958 SC 376: 1958 Cri LJ
701, 704;

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 CHAPTER 1
INTRODUCTION
1.1 OBJECTIVE OF STUDY
The objective of the researchers study on this topic is to dissect and give a holistic analysis of
the various aspects of the Rights of Accused and Bail Jurisdiction in the Context of Criminal
Jurisprudence in India. This project analysis various provisions related to this aspect, under the
Indian Constitution and the procedural law.
1.2 RESEARCH METHODOLOGY
The nature of research methodology adopted by the researcher for this particular topic is purely
doctrinal. The researcher has used resources available at the library of RGNUL and the World
Wide Web. Thus, the researcher of this project has used secondary data for the successful
completion of this project. No primary data has been included.
1.3 FORMATTING METHODOLOGY
The project is in Times New Roman, font Size 14 for the main headings and 12 for other parts of
the study with 1.5 spacing. The footnotes are of font size 10 with a line spacing of 1.0. Uniform
method of footnoting has been followed.
1.4 SCOPE OF THE STUDY
The scope of this study has been to throw light on the Rights of Accused and Bail Jurisdiction in
India. The researchers have analysed the relevant provisions in Constitution of India, 1950 and
the Code of Criminal Procedure, 1973.
1.5 CHAPTER SCHEME
In the first chapter, the researcher has discussed the objective of the study, research
methodology, and scope of the study, chapter scheme and the limitation of the study in this
chapter. The researcher has also discussed the meaning of the rights provided to the accused.
Also, the researcher has studied the gradual development of the law relating to this aspect.
In the second chapter, the Rights of Accused in the Constitution of India have been discussed,
with regard to the constitutional provisions in the light of natural justice and equality. The
chapter specifically throws light on the Articles 20 and 21 of the Constitution.
In the third chapter, titled Rights of Accused under the Code, the researcher has discussed in
detail the rights given to the accused in the Criminal Procedure Code of India. The chapter deals

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with the provisions related to the arrested person, duty of the magistrate, confession, handcuffing
and bail under the code. The chapter deals with bail jurisdiction and right of bail of accused
In the Last chapter, brief deductions have been made along with discussion of the rights of the
accused in the Indian Laws and some suggestions have also been forwarded, in light of the
Malimath Committee Report.
1.6 LIMITATION OF THE STUDY
Due to paucity of time and lack of resources, the researcher could not undertake a complete
comparative study with law prevalent in other nations. However an exhaustive use of the Internet
and library resources for the successful completion of this project has been done.
1.7 ACCUSED
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, an accused is a person
who is charged with the commission of offence. The Oxford Dictionary defines accused as, a
person or group of people who are charged with or on trial for a crime. 1 An offence is defined
as an act or omission made punishable by any law for the time being in force.
1.8 MEANING: RIGHTS OF ACCUSED/FAIRNESS TO ACCUSED
An accused cannot have similar footing with the convicted person. In the Bill of Rights
Ordinance, 1991 affirms that every accused has a right to be presumed innocent until his guilt is
proved. Thus, the accused person has every right like other citizen of the country except his
curtailment of person liberty in conformity with laws. The basic difference is that an accusation
has been made against the accused person for violation of law or offence prevalent in the
country. The rights of the accused person are of much concern today. Belatedly though, it has
been observed the blatant and flagrant violation of their rights in different stages. The
implication of Article 21 of the Constitution of India is that a person could be deprived of his life
or personal liberty only in accordance with procedure established by law. As per Article 22 of
Constitution of India, a person who is arrested for whatever reason gets three independent rights.
The first is the right to be told or informed the reasons for the arrest as soon as an arrest is made,
the second is the right to be produced before a Magistrate within 24 hours and the third is the
right to be defended by an advocate of his choice.

1
THE OXFORD ENGLISH DICTIONARY (1997).

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The Third Report of the National Police Commission identifies the wrongful use of arrest powers
as one of the chief sources of corruption in the police and that nearly 60% arrests made by police
officers are unnecessary and unjustified. The said report strongly opposed the practice of
carrying out indiscriminate arrests. The Honble Supreme Court of India said that an arrest
cannot be made simply because it is lawful for a police officer to do so. Arrest and detention in
police lock up can cause incalculable harm to the reputation and self-esteem of a person.
Therefore, arrest should not be made in a routine manner on mere allegation that a person has
committed an offence.2
1.9 DEVELOPMENT OF THE LAW
Rights of accused, in law, the rights and privileges of a person accused of a crime, guaranteeing
him a fair trial. These rights were initially (generally from the 18th century on) confined
primarily to the actual trial itself, but in the second half of the 20th century many countries began
to extend them to the periods before and after the trial. 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.3 At the present stage of civilization it has been
widely accepted as human value that a person accused of any offence should not be punished
unless he has been given far trail and this guilt has been prove in such trail. The notion of fair
trail, like all other concept incorporating fairness and reasonableness, cannot be explained in
absolute terms. Fairness is relative concept and therefore fairness in criminal trial could be
measure only in relation to the gravity of the accusation, time and resources which society can
reasonably afford to speed, the quality of the available resource, and prevailing social value etc.
The major attributes of fair criminal trial are enshrined in Articles 10 of the Universal
Declaration of Human Rights.4 These Articles provide:

2
Sri Nogen Se nabaya Deori, Rights of Acussed at Pre-Trial Stage, (February 24, 2016),
tinsukiajudiciary.gov.in/source/misnotice/Rights%20of%20Accused.pdf.
3
The Encyclopedia Britannica, Rights of Accused, (February 24, 2016),
www.britannica.com/EBchecked/topic/3114/rights-of-accused.
4
Art 10 of Universal Declaration of Human Rights, December 10, 1948.

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 1) Everyone in entitled in full equality to fir and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations of any criminal
charge against him. (Article 100)
2) Everyone charge with penal offence has the right to be presumed innocent until proved
guilty according to the law in public trial at which he has had all the guarantees necessary
for his defense. (Article 11)
Our courts have recognized that the primary object of the criminal procedure is to ensure a fair
trial of accused persons,5 and the Law Commission Report has accepted the view that
requirements of a fair trial, speaking broadly, relate to the character of the court, the venue, the
mode of conducting the trial (particularly trial in public), the rights of the accused and other
rights.6

5
Talab Haji Hussain v. Madhukar Purshottam Mondkhar, AIR 1958 SC 376: 1958 Cri LJ 701, 704; Iqbal Ismail
Sodawala v. State of Maharastra, (1975) 3 SCC 140: 1974 SCC (Cri) 764, 770: 1974 Cri LJ 1291.
6
LAW COMMISSION OF INDIA, 37TH LAW COMMISSION REPORT ON THE CODE OF CRIMINAL PROCEDURE, 1889
(1967).

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 CHAPTER 2

RIGHTS OF ACCUSED UNDER THE CONSTITUTION OF INDIA

The meaning of the term accused and the basis of the recognition of various human rights to an
accused have been discussed. It has been observed that the concept of the rights of an accused
person is mainly based on principles of natural justice and thus is time immemorial but it had
assumed much importance at the international level from 1948 onwards due to Universal
Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966
and many other international documents and at the national level due to the various fundamental
rights guaranteed under the Constitution of India. Thus, before examining the various human
rights of an accused in detail, it would be useful to discuss in brief evolution of such rights.
Which is proposed to be subject matter of this chapter. The discussion of the evolution of the
rights of accused may be made in five parts:
1. Rights of accused recognised under Hindu Legal System in Ancient India
2. Rights of accused granted under Muslim Legal System
3. Rights of accused recognised during British Period
4. Rights of accused recognised at International Level
5. Rights of accused recognised and guaranteed at National Level by the Constitution of
India
2.1 RIGHTS OF ACCUSED RECOGNISED AND GUARANTEED BY THE CONSTITUTION OF INDIA
The Universal Declaration of Human Rights, 1948, recognised certain human rights of an
individual, including an accused. The Code of Criminal Procedure enacted in 1898 (as amended
in 1973) also contained many provisions giving various rights to an accused. The Indian
Constitution, in tune with the International endeavours, provided four basic principles to govern
the criminal justice system, viz, (i) presumption of innocence, (ii) prevention of ex-post facto
operation of criminal law, (iii) protection against double jeopardy and (iv) due process concept.
Over and above, the right of equality and equal protection of laws, has been guaranteed to
every citizen as a fundamental right.7 The main rights of an accused which have been recognised
and guaranteed by the Constitution may be stated as under:
(i) Right of equality and equal protection of laws;

7
CONSTITUTION OF INDIA, 1950, Art. 14: the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.

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(ii) Right against ex-post facto operation of law;
(iii) Protection against double jeopardy;
(iv) Protection against self-incrimination;
(v) Right to have freedom from unwanted arrest and matters incidental thereto;
(vi) Right to legal defense;
(vii) Right to have public and speedy trial;
(viii) Right relating to pre-trial detention and matters incidental thereto; and
(ix) Right to approach higher judicial authority for filing appeal, etc.

2.1.1 Right of equality and equal protection of laws

The concept of equality as enshrined in Article 14 of the Constitution of India,1950 prohibits
the state from denying equality before the law or the equal protection of the laws to any person
on the ground of caste, creed, faith, race, religion, birth and place. The effective derivative
source of the doctrine in the criminal justice is Article 21 of the Constitution of India, 1950
which provides that: No person shall be deprived of his life or personal liberty except according
to the procedure established by law. In a criminal trial, there are two parties: the state and the
individual. However, both the parties are unmatching in their strength and resourcefulness, in
which the individual, i.e., accused, is placed in a disadvantageous position. The role of the
doctrine of equality becomes more significant in the context of the rights of a person who
happens to be an accused of having committed a crime. This doctrine aims to achieve equality
amongst unequal in prohibiting every kind of unjust, undeserved and unjustified inequalities in
the administration of justice.8 As the right of equality and the equal protection of laws are to
be secured through the instrumentalities of the state, the possible state actions do not conflict
with the fundamental right of quality guaranteed against the state.9

2.1.2 Protection against Ex-post Facto operation of Criminal Laws

An ex-post Facto law is a law, which imposes penalties retrospectively, i.e., on acts already
done, and increases the penalty for such acts.10 Clause (1) of the Article 20 imposes a limitation
on the law-making power of the legislature and prohibits the legislature to make retrospective

8
A. N. CHATRUVEDI, RIGHTS OF ACCUSED UNDER INDIAN CONSTITUTION 61 (1st Ed. 1984).
9
Ibid, at p.60.
10
Hathi Singh Manufacturing Co. v. Union of India, AIR 1960 SC 923.

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criminal laws. However, it does not prohibit the imposition of civil liability retrospectively, i.e.,
with the effect from past date.11 Article 20(1) runs as under:
No person shall be convicted of any offence except for violation of the 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.

2.1.3 Protection against Double Jeopardy

Clause (2) of Article 20 of the Constitution of India, 1950 recognises another important Human
Right as a fundamental right of every citizen when it provides that: No person shall be
prosecuted and punished for the same offence more than once. This clause embodies the
common law rule of nemo debt vis vexaria which means no man could be put twice in peril for
the same offence. If he is prosecute again for the same offence for which he has already been
prosecuted he can take complete defence of his former conviction.12 This right is also provided in
the Code of Criminal Procedure, 1973.

2.1.4 Protection against Self-Incrimination

Clause (3) of Article 20 provides that No person accused of any offence shall be compelled to
be a witness against himself. In other words, this Article prohibits all kinds of compulsions to
make a person accused of an offence a witness against himself.13 In this context, Supreme Court
in the case of M.P. Sharma v. Satish Chandra14, had observed that this right embodies three
essentials, viz., (a) it is a right pertaining to a person who is accused of an offence; (b) it is a
protection against compulsion to be witness; and (c) it is a protection against such compulsion
relating to his giving evidence against himself. This right can also be said to be the right to
silence. It may be mentioned that while the CrPC enjoins an accused person to answer truthfully
the questions put to him by an investigating officer, Article 20(2) gives him protection against
self-incrimination. This principle is also contained in Article 14(g) of the International Covenant
on Civil and Political Rights, 1966.

11
J. N. PANDEY, CONSTITUTION LAW OF INDIA 158 (27th ed. 1994).
12
Ibid, at 159-160.
13
Ibid, at 161.
14
AIR 1954 SC 300.

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2.1.5 Right to have freedom from unwanted Arrest and matters incidental thereto
The arrest of a person has serious implications as it amounts to depriving him of his personal
liberty. Protection of personal liberty of an individual is his basic human right and, thus, in
order to protect his human right relating to dignity of a person while arrest, the Supreme Court
has interpreted Article 21 of the Constitution of India, 1950 in favour of the accused. In India,
arrest can be made with a warrant or without one. In the former case, there is already application
of mind by judicial authority, while in the latter case; such arrested person is required to be
brought within 24 hours of arrest before the judicial authority. Clause (1) and (2) of the A rticle
22 guarantee the following rights to the persons who are arrested under an ordinary law:
1. The right to be informed, as soon as may be, of the ground of arrest;
2. the right to be produced before the magistrate within 24 hours;
3. Freedom from detention beyond the said period except by the order of magistrate.15
1. The right to be informed of the grounds of arrest
This right guaranteed by the constitution to an accused to know the grounds of his arrest enables
him to prepare for his defence. The delay in informing the grounds of arrest must be justified by
reasonable circumstances. The Supreme Court in the case of State of M.P. v. Shobharam,16 has
held that this right cannot be dispensed with by offering to make bail to the arrested person.
Further, Supreme Court by its two leading judgements given in the cases of Joginder Kumar v.
State of U.P.,17 and D.K. Basu v. State of West Bengal18, have laid down certain guidelines
which should be invariably followed by the police and other officers arresting a person during
investigation. These guidelines are proposed to be discussed in detail later on.
2. Right to be produced before a Magistrate
Clause (1) of Article 2 of the constitution also provides that the arrested person must be produced
before the Magistrate within 24 hours of his arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate. The time can be extended beyond 24 hours
only under the judicial custody. It affords a possibility, if not an opportunity, for immediate
release in case the arrest is not justified.19
3. No detention beyond 24 hours except by order of the Magistrate

15
J. N. PANDEY, CONSTITUTION LAW OF INDIA 192-193 (27th ed. 1994).
16
AIR 1966 SC 1910.
17
(1994) 2 SCALE Vol. II No. 7. 662.
18
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
19
J. N. PANDEY, CONSTITUTION LAW OF INDIA 93 (27th ed. 1994).

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It is also provided that if there is a necessity of detention beyond 24 hours, it is only possible
under judicial custody. The expressions arrest and detention in Articles 22(1) and (2) were
held non applicable to a person arrested under a warrant issued by the court on a criminal or
quasi-criminal complaint or under security proceedings.20 Article 22 is not designed to give
protection against the act of the executive or order of non-judicial authorities but applies to a
person who has been accused of a crime or offence of criminal or quasi-criminal nature or of
some act prejudicial to the state or public interest.21 Exception to the clause (3) of Article 22
provides two exceptions to the rule contained in clause (1) and (2) and rights mentioned above
are not available to an enemy, alien and a person arrested and detained under Preventive
Detention Law.

2.1.6 Right to have Legal Defence

No person who is arrested shall be denied the right to consult and to be defended by a legal
practitioner of his choice is the mandate enshrined in Article 22(1) of the Constitution. This
right is also granted by section 303 of the Code of Criminal Procedure, 1973. It has been held by
the courts that this right to have a lawyer of his choice accrues to the arrested person from the
time of his arrest. The accused may refuse to have a lawyer but the court has to provide an
amicus curie to defend him in serious cases.

2.1.6.1 Hussainara Khatoon, Sunil Batra and other cases

1) Hussainara Khatoon Case:
In Hussainara Khatoon v. State of Bihar,22 the Supreme Court considered the problem in all its
seriousness and declared that speedy trial is the essential ingredient of reasonable, fair and just
procedure guaranteed by the Article 21 and it is the Constitutional obligation of the State to
devise such a procedure as would ensure speedy trial to the accused. The Court observed: The
State cannot avoid its Constitutional obligation to provide speedy trail to the accused by pleading
financial or administrative inability. The State is under the Constitutional mandate to ensure
speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the
Constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as
a sentinel on the qui vie, to enforce the fundamental right of the accused to speedy trial by

20
Ibid.
21
Ibid.
22
(1980) 1 SCC 98, 107: 1980 SCC (Cri) 40, 49: 1979 CrLJ 1045, 1051.

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issuing necessary directions to the State which may include taking positive action, such as
augmenting and strengthening the investigative machinery, setting up new courts, building new
court- houses, providing more staff and equipment to the courts, appointment of additional
judges and other measures calculated to ensure speedy trial.23
2) Sunil Batra Case:
In Sunil Batra v. Delhi Administration (I) the practice of keeping undertrials with convicts in jail
was regarded by the Supreme Court as inhuman. The Court held that it offended the test of
reasonableness in Article 19 and fairness in Article 21.
The punishment of solitary confinement like Shobraj case was regarded as violative of Article 21
of the Constitution by stating that liberty to move, mix, mingle, talk, Share Company with co-
prisoners, if substantially curtailed by keeping a prisoner in solitary confinement, would be
violative of Article 21, unless the curtailment has the backing of law. The Court also held that
bar-fetters make a serious inroad on the limited personal liberty which a prisoner is left with and
therefore before such erosion can be justified it must have the authority of law.
In furtherance of Prison reforms, the Judges set out guidelines to be prescribed and followed
which were as follows:
The State shall take early steps to prepare in Hindi; a Prisoners Handbook and circulates
copies to bring legal awareness home to the inmates. Periodical jail bulletins stating how
improvements and habilitative programmes are brought into the prison may create a
fellowship which will ease tensions. A prisoners wall paper, which will freely ventilate
grievances, will also reduce stress. All these are implementary of Section 61 of the Prisons
Act.
The State shall take steps to keep up to the Standard Minimum Rules for Treatment of
Prisoners recommended by the United Nations, especially those relating to work and wages,
treatment with dignity, community contact and correctional strategies. In this latter aspect,
the observations we have made of holistic development of personality shall be kept in view.
The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the model
manual being out of focus with healing goals. A correctional-cum-orientation course is

23
S. Guin v. Grindlay Bank Ltd., 1986 SCC (Cri) 64: (1986) 1 SCC 654: 1986 Cri LJ 255; Madheshwardhari Singh
v. State of Bihar, 1986 Cri LJ 1771 (Pat); Mihir Kumar Ghosh v. State of West Bengal, 1990 Cri LJ 26 (Cal).

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 necessitous for the prison staff inculcating the constitutional values, therapeutic approaches
and tension-free management.
The prisoners' rights shall be protected by the court by its writ jurisdiction plus contempt
power. To make this jurisdiction viable, free legal services to the prisoner programmes shall
be promoted by professional organizations recognized by the court such as Free Legal Aid
(Supreme Court) Society. The District Bar shall, we recommend, keep a cell for prisoner
relief.24
3) Joginder Kumar Case:
In Joginder Kumar v. State of U.P. & Ors.25, the Honble 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
or him that the above requirements have been complied with.
4) Prem Shankar Sukla v. Delhi Administration:
In Prem Shankar Sukla v. Delhi Administration,26 the Honble 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), Article 19 (Fundamental Freedoms) and Article 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 non-bailable offences, has been previously convicted of a crime:
and /or
b) is of desperate character violent, disorderly or obstructive: and /or

24
1980 AIR 1579, 1980 SCR (2) 557.
25
1994SCC 260.
26
1980, 1980 AIR 1535, 1980 SCR (3) 855.

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 c) is likely to commit suicide: and /or
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
courts permission before handcuffing her/him to and 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.
Article 39-A was added in the Directive Principle of State policy by the 42 nd Constitution
Amendment Act, 1976, and a duty was imposed upon the state to ensure that the operation of the
legal system promote justice on a basis of equal opportunities and the state shall, in particular,
provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other
disability. The Supreme Court of India has declared now the Right to Free Legal Aid and
Right to Speedy Trial as Fundamental Rights guaranteed under Article 21 of the Constitution of
India. The accused need not apply for the same and the right to legal aid is implicit in the
requirement of reasonable, fair, and just procedure prescribed by Article 21; the failure to
provide free legal aid to an accused at the state cost, unless refused by the accused, would vitiate
the trial.27 In order to fulfil the obligation imposed by the Article 39-A, in the year 1987, the
Legal Services Authorities Act, 1987, was enacted under which provisions were made to
establish legal aid and services authorities at District, State and National levels for the purposes
of providing legal aid and services. However, the government did not frame the necessary rules
and the implementation of the act was delayed for a decade and the same could be implemented
throughout India only in the year 1997.

27
Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401.

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 CHAPTER 3
RIGHTS OF ACCUSED UNDER THE CODE OF CRIMINAL PROCEDURE

This chapter includes detailed discussion of rights of the accused in Indian Criminal
Jurisprudence. Observing the trend of judiciary, it can be said that in most of the judgments of
1990s, between the rights of accused and justice to victim, the pendulum shifted to the rights of
accused and now it is being balanced.
The aim of criminal law is to protect the right of individuals and the state against the intentional
invasion by others, to protect the weak against the strong; the law abiding against the lawless. To
ensure free and fair trial so that an innocent person may not be victimized, an accused person is
entitled to certain basic rights and privileges to defend himself and prove his innocence before he
is condemned and punished. The three basic principles of criminal law are:
(i) Firstly, that every person is presumed to be innocent until proven guilty,
(ii) Secondly, that the burden of proving the guilt of the accused lies heavily on the
prosecution and it must be discharged beyond reasonable doubt; and
(iii) Thirdly, the benefit of doubt is accorded to the accused coupled with the privilege of
silence.
Hence, the rights of the accused are given utmost importance and are sacrosanct. Along with
the provisions of our Constitution and the Code of Criminal Procedure, several leading cases
have laid down the basic rights of the accused. Though, the basic human rights of the accused
ought to be given important, the balance between them and the rights of the victims need to be
maintained. In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan28, it was
said that the laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate
provisions for safeguarding the rights of accused with the view to protect his (accused) dignity as
a human being and giving him benefits of a just, fair and impartial trail. However in another
leading case of Maneka Gandhi (Smt.) v. Union of India29 it was interpreted that the procedure
adopted by the state must, therefore, be just, fair and reasonable.30

28
1981 AIR 625, 1981 SCR (1) 995.
29
AIR 1978 SC 597.
30
Vivek Jain, Right of the Accused, http://www.mightylaws.in/511/rights-accused, (last updated August 1, 2012).

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The following are the rights available to the accused in Indian Criminal Jurisprudence:
3.1 RIGHTS OF ACCUSED: INNOCENT UNTIL PROVEN GUILTY
One of the basic tenets of our legal system is the benefit of the presumption of innocence of the
accused till he is found guilty at the end of a trial on legal evidence. The presumption of
innocence has been accepted as a central safeguard against the exercise of arbitrary power by
public authorities. It means the prosecution has the ultimate burden of establishing guilt. If, at the
conclusion of the case, there is any reasonable doubt on any element of the offence charged, an
accused person must be acquitted. In India, a system of adversarial form of adjudication is
followed which is also known as accusatorial system in case of criminal procedure and the
underlying principle of this system is presumption of innocence until-proved-guilty. The
legal ethics of our criminal justice system is let thousand of criminals be let out, but a single
innocent should not be punished.
3.2 BAIL
The object of arrest and detention of the accused person is primarily to secure his appearance at
the time of trial and to ensure that in case he is found guilty he is available to receive the
sentence. If his presence at the time of the trial could be reasonably ensured otherwise than by
his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during
the pendency of the criminal proceeding against him.31 The provisions regarding the issue of
summons or those relating to the release of the arrest of the accused person under a warrant or
without a warrant or those accused person on bail, are all aimed at ensuring the presence of the
accused at his trial but without unreasonably and unjustifiably interfering with his liberty.

The release on bail is crucial to the accused as the consequences of pre-trial detention are given.
If release on bail is denied to the accused, it would mean that though he is presumed to be
innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the
psychological and physical deprivations of jail life. The jailed accused loses his job and is
prevented from contributing effectively to the preparation of his defence. Equally important, the
burden of his detention frequently falls heavily on the innocent members of his family.32

31
DR. K N CHANDRASEKHARAN PILLAI, R.V. KELKARS CRIMINAL PROCEDURE 282 (5TH ED., 2008).
32
Moti Ram v. State of M.P. (1978) 4 SCC 47 [Hereinafter referred as Moti Ram].

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 3.2.1 What are Bailable and Non- bailable offences?

The Code has classified all offences into "bailable" and "non- bailable" offences. According to
Section 2(a), "bailable offence" means an offence which is shown as bailable in the first
Schedule, or which is made bailable by any other law for the time being in force; and "non-
bailable offence", means any other offence.

3.2.2 Circumstances in which bail is imperative

Following are the cases when granting a bail becomes mandatory

1) Where the arrestee is not accused of a non-bailable offence:

Where a person who is not accused of a non-bailable offence is arrested or detained without a
warrant, and he is prepared to give bail, the police officer or the court having custody of such
person is required to release him on bail. The police officer or court, instead of taking bail from
such person may even release him on executing a bond without sureties. 33 The above rule covers
all cases of persons accused of bailable offences, cases of persons though not accused of any
offence but against whom security proceedings have been initiated under Chapter VIII of the
Code, and all other cases of arrest and detention which are not in respect of any non-bailable
offence.

Where a person, released under the above rule contained in Section436 (1) has failed to comply
with the conditions of the bail as regards the time and place of attendance, the court may refuse
to release him on bail, when on a subsequent occasion on the same case he appears or id brought
in custody before the court [Section 436(2)].

A person who has been released on bail by the police should seek fresh bail from the court.34 The
right to be released on bail under the above rule i.e. Section 436(1) cannot be nullified indirectly
by fixing too high the amount of bond or bail bond to be furnished by the person seeking
release.35 Inability of the accused to seek surety for a week could be a ground to presume that he
is an indigent. This explanation inserted by Act 25 of 2005 would help the court to release the

33
See, 436(1)
34
Haji Mohd. Wasim v. State of U.P. 1992 Cri LJ 1299 (ALL HC).
35
Mohd. Tariq v. Union of India, 1990 Cri LJ 474 (ALL HC).

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accused without surety.36." Section 440(1) specifically provides that the amount of every such
bond shall be fixed with due regard to the circumstances of the case and shall not be excessive.
Further, Section 440(2) empowers the High Court and the Court of Sessions to direct that the bail
required by the police officer or magistrate be reduced. Though there is no specific provision for
appeal against refusal to grant bail under Section 436 (1), the High Court or Court of Sessions
can be moved for bail under Section 439. Moreover, refusal to grant bail in contravention of
Section 436 will make the detention illegal and the police officer causing such detention may be
held guilty of wrongful confinement under Section 342 of the IPC.37

A new section has been enacted as Section 436-A by Act 25 of 2005 stipulating that a person not
accused of an offence carrying death penalty, who has undergonc detention for a period
extending upto one half of the period of imprisonment prescribed for that offence could be
released on his personal bond with or without surety.

The public prosecutor has been given audience. The court can order extending the imprisonment
or release him on bail. Indeed if the delsy was caused by the accused ,he will not get the benefit
of this provision.38

2) Where the investigation is not completed within the time prescribed:

A person arrested without a warrant cannot be detained by the Police for more than the period of
24 hours.39 If the police officer considers it necessary to detain such person longer period for the
purposes of investigation, he can do so only after obtaining a special order of a magistrate under
Section167. According to Section 167(2), the total period of detention of the accused which a
magistrate can authorize shall not exceed
(i) Ninety days, where the investigation relates to an offence punishable with death,
imprisonment of life or imprisonment for a term not less than ten years. And
(ii) Sixety days, where the investigation relates to anyother offence.
On expiry of the said period of ninety days or sixety days as the case may be, the accused person
shall be released on bail if he is prepared to and does furnish bail; and every person so released
on bail shall be deemed to be so released under Chapter XXXIII of the Code.
36
See 35 of Act 25 of 2005.
37
Dharmu v. Rabindranath, 1978 Cr LJ 864 (Ori HC)..
38
See 36 of Act 25 of 2005.
39
See, 57.

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 (3) Where no reasonable grounds exist for believing the accused guilty of bailable
offence:
Where any person accused of or suspected of the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station or appears or is
brought before a court, and if it appears that such officer or court at any stage of the
investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for
believing that the accused committed a non-bailable offence, but there are sufficient grounds for
further inquiry into his guilt, then, according to Section 437(2), the accused shall, pending such
inquiry, be released on bail, or, at the discretion of such officer or court on execution by him of a
bond without sureties for his appearance. An officer of court releasing any person on bail under
this provision is required to record his reason for so doing. [ Section 437 (4)].

(4) Where trial before magistrate not concluded within 60 days:

If in any case triable by a magistrate, the trial of a person accused of any non-bailable offence is
not concluded within a period of sixty days from the first date fixed for evidence in the case,
such person shall, if he is in custody during the whole of said period, be released on bail to the
satisfaction of the magistrate, unless, its reasons to be recorded in writing the magistrate
otherwise directs. [Section 437 (6)]. It may be noted that this provision does not apply in cases
triable by a Court of Sessions.

(5) Where no reasonable grounds exist for believing the accused guilty after conclusion
of trial but before judgment:
If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and
before judgement is delivered before the court is of opinion that there are reasonable grounds for
believing that the accused is not guilty of any such offence, it shall release the accused, if he is in
custody, on the execution by him of a bond without sureties for his appearance to hear judgement
delivered. [Section 437 (7)].

3.2.3 Section 436 and Section 437- Difference in code of Criminal Procedure

Under Section 436 of Cr.P.C that is in bailable offences there is no question of discretion in
granting bail as the words of Section 436, are imperative. In such cases the criminal court has no
discretion while granting bail to impose any condition except to demand security with sureties or

23 | P a g e
may take recognizance for personal appearance. The only condition contemplated by Section 441
of Cr.P.C is the attendance of the accused in court on a fixed day and continued to attendance
until otherwise directed. Moreover bail granted under Section 436 cannot be cancelled except the
offence becoming non-bailable punishable with transportation for life, due to the development of
the condition of the injured party, or his absence hindering the case from being, proceeded with.

Under Section 437 of Cr.P.C i.e. in non-bailable cases, bail may be cancelled under Section 5 of
that section. Moreover, in the case of a non-bailable offence, granting bail is a concession
allowed to an accused person.40 The power are still restricted where the offence is punishable
with death or transportation for life in which case a police officer is not at all empowered to
release a person accused of such offence, while the court is so empowered provided the person is
under the age of sixteen, or is a sick or infirm person, or is a woman. So, a person accused of a
non- bailable offence should not be released on bail as a rule, but they may be so released. if
there are reasons for believing that the case against them is such that it is not likely to succeed, or
there are special circumstances justifying, bail.41

Unlike bailable cases, for non-bailable offences the court may impose conciliations other than
fixing the bail for the attendance of the accused and such a condition is not illegal.42

3.2.4 JUDICIAL DISCRETION IN GRANTING BAIL-

Discretion to refuse Bail to persons under 16 years of age and women - Section 437, Proviso (1),
Whether mandatory or directory

A perusal of the judgement of the learned single judge in Sakuntala Devi v. State, indicates that
the primary reason for the first proviso to s. 437 of the new Code was held to be mandatory was
that the said proviso was a beneficial provision.

The learned judge placed reliance on a paragraph in R v. Bishop of Oxford,43 to the effect that so
long as a statute authorises the doing of the things for the sake of justice, for doing that things the
word may will mean shall.

40
DR. K N CHANDRASEKHARAN PILLAI, R.V. KELKARS LECTURES ON CRIMINAL PROCEDURE 124 (4TH ED., 2006).
41
Mata Palat v. Emperor AIR 1923 All 479.
42
Re Saradamma AIR 1965 AP 444.
43
[1879] 4 QBD 245

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The judge further relied on State of Uttar Pradesh v. Joginder Singh,44 where it was held that the
word may is capable of meaning may or shall in light of context. Sometimes the legislature
used the word out of deference to the high status of the authority on whom the powers and the
obligations are to be imposed.

It is remarkable that Section 437 (1), the enacting section, itself uses the word may. This is the
provision that confers power on a magistrate to exercise his discretion in granting bail. But, su-ss
(2), (6) and (7) use the word shall, carrying the legislative mandate that in cases covered by the
said three sub-sections the magistrate shall grant bail (subject to the restrictions therein stated).
Therefore, it cannot but be held that the legislature has consciously made a distinction in
choosing the respective verbs in the various provisions i.e. shall where it has deemed it to be
mandatory and may where is has wished for it to be left to judicial discretion. However this
finds no mention in the case of Shakuntala Devi v. State.45

Further, it is mandatory (4) that in case bail is granted under (1) or (2) then the magistrate will
have to state the reasons for using his discretion in granting of bail and the same has to be
recorded.

In Gurcharan Singh v. State,46 the following observation lays down the legal position:

The principle underlying section 437 is towards granting of bail except in cases where there
appear to be reasonable grounds for believing that the accused has been guilty of an offence
punishable with death or imprisonment for life and also when there are other valid reasons to
justify the refusal of bail.

It was in the same case that the Supreme Court had upheld the order of the High Court cancelling
the bail granted by the Sessions Judge. Thus it can be said to be but obvious that the power
emanating from (1) is discretionary in nature.

This view is fortified by the decisions of the Supreme Court in RN Sons v. ACST47 and Abdul
Jabbar v. State of Jammu and Kashmir48. Therefore, unable to hold that proviso 1 of sub-s (1) of
s. 437 of the new Code confers more power upon the magistrate than the sub-section itself.

44
AIR 1963 SC 1618
45
1986 Cr. LJ 365 (All)
46
1978 Cr. LJ 129 (SC), paras 20 and 22

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Their Lordships concluded as follows:

In view of the aforesaid discussion, we regret that we are unable to agree with the view of the
learned single judge in Shakuntala Devi v. State49 that the first proviso in sub- section (1) is
mandatory. We accordingly overrule the view that all women, children up to sixteen years of
age, sick or infirm who appear or are brought before a magistrate on being arrested concerning
cases covered by clauses (1) and (2) of sub-section (1) of section 437 of the new Code must have
to be released on bail by the magistrate. But according to us, the judicial discretion of magistrate
conferred by the said sub-section which stands excluded regarding person falling within its
clauses (1) and (2) has been restored concerning only the said four categories of persons covered
by the first proviso.50

On a true construction of first proviso to s. 437(1) of the CrPC, it would appear that it is not
every sickness that entitles an accused to the grant of bail. There should be a pertinenet danger to
the life of the accused.51 Further, when a medical certificate is produced in support of the
evidence, it becomes a valid ground of bail.52

In Emperor v. Rani Abhairaj Kunwar,53 where it was proved by medical evidence that the
accused who was 60 years old was suffering from heart trouble, cough and diabetes, she was
released on bail.

When any person accused of or suspected of the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station or appears or is
brought before a court, other than the High Court or Court of Session, he may be released on bail
[Section 437 (1)]. The word may in the above provision clearly indicates that the police officer
of the court has got discretion in granting bail. However, there are certain principles which
should guide the police officers and the courts in the exercise of this discretion. It should be

47
AIR 1955 SC 765
48
AIR 1957 SC 281: 1957 Cr LJ 404
49
AIR 1957 SC 281: 1957 Cr LJ 404
50
Pramod Kumar Manglik v. Sadhna Rani 1986 Cr. LJ 1777-1780 (All)
51
State v. Sardool Singh 1975 Cr. LJ 1348 (All)
52
Kagas Khan v. Heera Devi 1977 Cr.LJ 1235
53
1984 Cr. LJ 1076

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noted at the outset that the object of detention pending criminal proceedings, is not punishment
an that the law favours allowance of bail, which is the rule, and refusal is the exception.54

54
Rao Harnarain Singh v. State, AIR 1958 Punj 123: 1958 Cri LJ 563. 566; Sagri Bhagat v. State of Bihar AIR 1951
Pat 497, 499: 52 Cri LJ 657; See also Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240: 1978 SCC
(Cri) 115, 118: 1978 Cri LJ 502 , 504; Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118: 1978
SCC (Cri) 41, 48: 1978 Cri LJ 129, 134

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 CHAPTER 4

CONCLUSION AND SUGGESTIONS

The present Code contains rules whose aim is that no innocent person is convicted and that
perpetrator of criminal offences are sanctioned in accordance with requirements provided by the
Criminal Code and based on the lawfully conducted proceedings. Prior to rendering a final
judgment or ruling on punishment, the rights of the accused person and his freedom may be
limited only under conditions stipulated by this Code.
The Chapter 1 Basic Principles of the General Provisions Part 1 of the Code of Criminal
Procedure Code, the article deals with the entitlement of an accused person or suspects.
To be informed about the offence with which he is charged, as soon as possible and no later
than at the first interrogation, in detail and in a language he understands, about the nature and
grounds for the accusation and the evidence collected against him;
To defend him, alone or with the professional assistance of a defense counsel of his own
choosing from list of lawyers.
To have his defense counsel present at his interrogation;
To be brought before the court as soon as possible and tried in an impartial and fair manner
and within a reasonable period of time.
To be provided enough time and facilities to prepare his defense;
To declare himself on all the facts and evidence against him and to present facts and evidence
in his favor, either alone or through his counsel, to question prosecution witnesses and
request that defense witnesses are questioned under the same conditions as the prosecution
witnesses, in his presence.
To be provided with a translator and interpreter if he does not understand and speak the
language used in the proceedings.
Suggestions of the Malimath committee
The bulk of the Malimath Committee recommendations revolve around the idea that whittling
down the rights of the accused and increasing the rate of convictions will help tackle crime.
"Everything has been said already, but as no one listens, we must always begin again."
The Committee, headed by Justice V.S. Malimath, former Chief Justice of the Karnataka and
Kerala High Courts, had the task of examining the fundamental principles of criminal law so as

28 | P a g e
to restore confidence in the criminal justice system. This involved reviewing the Code of
Criminal Procedure (CrPC), 1973, the Indian Evidence Act, 1872, and the Indian Penal Code
(IPC), 1860.
One of the first responses to the Report was a conference in Delhi held jointly by the
International Commission of Jurists and the Human Rights Law Network. Said Colin Gonsalves,
a lawyer from the Human Rights Law Network: "The recommendations are like a sugar-coated
pill. Though there are a few welcome changes, the core recommendations are dangerous and will
lead to reconstructing criminal law. The report has not been circulated and most of the
participants in the conference, including senior Judges and lawyers, have not been able to get
hold of a copy."
The Committee has suggested that Section 25 of the Indian Evidence Act be amended to bring it
in line with Section 32 of POTA, which makes confessions to a police officer admissible as
evidence subject to the accused being informed of the right to consult a lawyer.
The committee has suggested that specific provisions be incorporated in the CrPC and the Indian
Evidence Act to enable a magistrate to order an accused to give samples of handwriting,
fingerprints and footprints for purposes of scientific examination. It also provides for provisions
similar to those in POTA to intercept electronic or oral communication.
The committee has addressed the issues of compensation to victims, something the Supreme
Court has been talking of for a while now. It mentions the need for a Victim Support Service
Coordinator to work closely with the police and courts to ensure delivery of justice during the
pendency of the case. It also talks of economic crimes and organised crime, but only in passing.
As a result of the study, we seek conclusion that there is imminent need to bring in changes in
Criminal Justice Administration so that state should recognize that its primary duty is not to
punish, but to socialize and reform the wrongdoer and above all it should be clearly understood
that socialization is not identical with punishment, for its comprises prevention, education, care
and rehabilitation within the framework of social defence. Thus, in the end we find that Rule of
law regulates the functionary of every organ of the state machinery, including the agency
responsible for conducting prosecution and investigation which must confine themselves within
the four corners of the law.

29 | P a g e
We have discussed the various rights provided to the accused during trial in India. The
hypothesis of the paper as earlier put is that the rights provided to the accused in a criminal trial
owe their existence to the Natural Justice. The second element of Natural Justice i.e. both sides
shall be heard, or audi alteram partem and the right of the accused to cross-examine the
witnesses and his right to legal representation are comparable. Another significant right would be
the Rule against bias, a person cannot be a judge in his own cause. This is an elementary
Natural Justice principle which is also the right of the accused in the present days criminal
justice system.

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 BIBLIOGRAPHY

BOOKS REFERRED:

1. A. N. CHATURVEDI, RIGHTS OF ACCUSED UNDER INDIAN CONSTITUTION 61 (1st Ed. 1984).

2. J. N. PANDEY, CONSTITUTION LAW OF INDIA 158 (27th ed. 1994).
3. K. D. GAUR, A TEXTBOOK ON THE INDIAN PENAL CODE 368 (3rd ed. 2004).
4. THE OXFORD ENGLISH DICTIONARY (1997).

ARTICLES REFERRED:
1. LAW COMMISSION OF INDIA, 37TH LAW COMMISSION REPORT ON THE CODE OF CRIMINAL
PROCEDURE, 1889 (1967).
2. MONICA SAKHRANI, CITIZENS GUIDE TO CRIMINAL LAW 167 (2009).

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