RIGHT OF ACCUSED UNDER INDIAN CONSTITUTION

Introduction

A person in custody of the police, an under-trial or a convicted individual does not lose his
human and fundamental rights by virtue of incarceration. The two cardinal principles of
criminal jurisprudence are that the prosecution must prove its charge against the accused
beyond shadow of reasonable doubt and the onus to prove the guilt of the accused to the hilt
is stationary on the prosecution and it never shifts. The prosecution has to stand on its own
legs so as to bring home the guilt of the accused conclusively and affirmatively and it cannot
take advantage of any weakness in the defense version. The intention of the legislature in
laying down these principles has been that hundreds of guilty persons may get scot free but
even one innocent should not be punished. Indian Constitution itself provides some basic
rights/safeguards to the accused persons which are too followed by the authorities during the
process of criminal administration of justice. There is a famous saying in the Criminal Law
jurisprudence,

LET HUNDREDS GO UNPUNISHED, BUT NEVER PUNISH AN INNOCENT

PERSON

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.

Clause (1) of Article 20 of the Indian Constitution says that no person shall be convicted
of any offence except for violation of a 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.

Regarding protection in respect of conviction for offence, Article 20 of the constitution,

following are some important provision creating right a favor of the accused / arrested
person:-

No person shall be convicted of any offence excepts for violation of a law in force at the time
of commission of the act charged as an offence, nor be subjected to a penalty greater the that
which might have been inflicted under the law in force at the time of the commission of the
offence.

No person shall be prosecuted and punished for the same offence more than once.

No person accused of any offence shall be compelled to be a witness against himself.

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Protection against Ex Post-Fact Law [Article20 (1)]

If an act is not an offence at the date of its commission it cannot be an offence at the date
subsequent to its commission. The protection afforded by clause (1) of Article 20 of the
Indian Constitution is available only against conviction or sentence for a criminal offence
under ex post facto law and not against the trial. The second part of clause (1) protects a
person from a penalty greater than that which he might have been subjected to at the time of
the commission of the offence. In Kedar Nath v. State of West Benga. the accused
committed an offence in 1947, which under the Act then in force was punishable by
imprisonment or fine or both. The Act was amended in 1949 which enhanced the punishment
for the same offence by an additional fine equivalent to the amount of money procured by the
accused through the offence. The Supreme Court held that the enhanced punishment could
not be applicable to the act committed by the accused in 1947 and hence, set aside the
additional fine imposed by the amended Act. In the criminal trial, the accused can take
advantage of the beneficial provisions of the ex-post facto law.

Doctrine of Guarantee Against Double Jeopardy [Article 20(2)]

According to this doctrine, if a person is tried and acquitted or convicted of an offence, he

cannot be tried again for the same offence or on the same facts for any other offence. This
doctrine has been substantially incorporated in the Article 20(2) of the Constitution and is
also embodied in Section 300 of the Criminal Procedure Code, 1973[3].When once a person
has been convicted or acquitted of any offence by a competent court, any subsequent trial for
the same offence would certainly put him in jeopardy and in any case would cause him unjust
harassment. The English common law rule is that Nemo Debut Bis Punibi Prouno
Delicto which means that no one should be punished twice for one fault. Such a trial can be
considered anything but fair, and therefore has been prohibited by the Code of Criminal
Procedural as well as by the Constitution[4]. When once a person has been convicted or
acquitted of any offence by a competent court, any subsequent trial for the same offence
would certainly put him in jeopardy and in any case would cause him unjust harassment.
Such a trial can be considered anything but fair, and therefore has been prohibited by the
Code of Criminal Procedural as well as by the Constitution. The Doctrine Of Autrefois
Acquit And Autrefois Convict has been embodied in Section 300 of Criminal Procedure
Code

Prohibition against self-incrimination [Article 20(3)]

A.K.A Right to Silence

No one is bound to criminate himself. Hence although an accused person may of his own
accord make a voluntary statement as to the charge against himself, a justice, before receiving
such statement from him is required to caution him that he is not obliged to say anything and
that what he does say may be given in evidence against himself. hence also arises the rule that
evidence of a confession by the accused is not admissible unless it is proved that such
confession was free and voluntary[5].

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The privilege against self-incrimination thus enables the maintenance of human privacy in the
enforcement of criminal justice. It also goes with the maxim Nemo Tenetur Seipsum
Accusare i.e., No man, not even the accused himself can be compelled to answer any
question, which may tend to prove him guilty of a crime, he has been accused of.[6] If the
confession from the accused is derived from any physical or moral compulsion (be it under
hypnotic state of mind) it should stand to be rejected by the court. The right against forced
self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal
Procedure (CrPC) and the Indian Constitution. In the CrPC, the legislature has guarded a
citizens right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states
that every person is bound to answer truthfully all questions, put to him by [a police] officer,
other than questions the answers to which would have a tendency to expose that person to a
criminal charge, penalty or forfeiture. But where the accused makes a confession without
any inducement, threat or promise art 20(3) does not apply.[7]

Explaining the scope of this clause in M.P. Sharma v. Satish Chandra[8], the Supreme
Court observed that this right embodies the following essentials:

(a) It is a right pertaining to a person who is accused of an offence.

(b) It is a protection against compulsion to be a witness.

(c) It is a protection against such compulsion relating to his giving evidence against
himself.

Right To Know The Grounds of Arrest

2.1) As per Section 50(1) of Cr.P.C., every person who is being arrested by any police
officer, without any warrant, is entitled to know the full particulars of offence for which he is
being arrested, and that the police officer is duty bound to tell the accused such particulars
and cannot deny it.

2.2) As per Section 55 of Cr.P.C., when any person is being arrested by any police officer,
who is deputed by a senior police officer, then such subordinate officer shall before making
such arrest, notify the person to be arrested the substance of the written order given by the
senior police officer specifying the offence or other cause for which the arrest is to be made.
If this provision is not complied with, then the arrest would be rendered illegal.

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2.3) if the person is being arrested under a warrant, then as per Section 75 of Cr.P.C, any
person who is executing such warrant must notify the person to be arrested, the particulars of
such warrant, or even show such warrant if needed. If the substance of the warrant is not
notified, the arrest would be unlawful.

2.4) the Constitution of India also confers this right as one of the fundamental rights. Article
22(2) of the constitution provides that no person who is arrested shall be detained in custody
without being informed as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by a legal practitioner of his choice.

4. Right To Be Taken Before A Magistrate Without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant, the
person who is making such arrest has to bring the arrested person before a judicial officer
without any unnecessary delay. Further, the arrested person has to be confined in police
station only and nowhere else, before taking him to the Magistrate. These matters have been
provided in Cr.P.C. under sections 56 and 76 which are as given below:

Section 56 of Cr.P.C. states that Person arrested to be taken before Magistrate or officer in
charge of police station- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, take or send the
person arrested before a Magistrate having jurisdiction in the case, or before the officer in
charge of a police station.

Section 76 of Cr.P.C. states that Person arrested to be brought before Court without delay-
The police officer or other person executing a warrant of arrest shall (subject to the
provisions of section 71 as to security) without unnecessary delay bring the person arrested
before the Court before which he is required by law to produce such person.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed
24 hours in any case. While calculating the time period of 24 hours, the time necessary for
the journey is to be excluded. The same has been enumerated in the Constitution as a
Fundamental Right under Article 22(2). This right has been created with a view to eliminate
the possibility of police officials from extracting confessions or compelling a person to give
information.

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If the police officials fails to produce an arrested person before a magistrate within 24 hours
of the arrest, the police officials shall be held guilty of wrongful detention.

Right To A Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law. The Code
of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial.
This provision is designed to ensure that convictions are not obtained in secret. In some
exceptional cases the trial may be held in camera.

6.2) Right To A Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however, the SC in
the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be
conducted as expeditiously as possible.

In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused
is arrested, the investigation for the trial has to be completed within the period of six months
or stopped on receiving an order from the Magistrate, unless the Magistrate receives and
accepts, with his reasons in writing, that there is cause to extend the investigation

Right To Be Examined By A Medical Practitioner

Section 54 of Cr.P.C. enumerates this right. It states that:

Section 54 of Cr.P.C:- Examination of arrested person by medical practitioner at the request

of the arrested person- When a person who is arrested, whether on a charge or otherwise,
alleges, at the time when he is produced before a Magistrate or at any time during the period
of his detention in custody that the examination of his body will afford evidence which will
disprove the commission by him of any offence or which will establish the commission by
any other person of any offence against his body, the Magistrate shall, if requested by the
arrested person so to do direct the examination of the body of such person by a registered
medical practitioner unless the Magistrate considers that the request is made for the purpose
of vexation or delay or for defeating the ends of justice.

Important case

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D.K. Basu v. State of W.B

Despite several attempts being made by issuing guidelines in various cases, to eradicate the
possibility of the committing torture by the police officials, there were frequent instances of
police atrocities and custodial deaths. Therefore, the Supreme Court, in this case, issued some
guidelines which were required to be mandatorily followed in all cases of arrest or detention.
Following are some of the important ones-

The person who is going to arrest any accused should bear accurate, visible, and clear
identification along with their name tags with their designation.

The police officer who is arresting the arrestee must prepare a memo of arrest, and it should
be attested by at least one person who may either be a family member of the arrestee or any
other respectable person in the locality. The memo must contain the date and time of arrest
and must also be countersigned by the arrestee.

If the person who has signed the memo of arrest is not a family member, relative or friend of
the arrestee, then the arrestee is entitled to have one friend or relative being informed about
his arrest as soon as possible.

The person arrested must be made aware of this right to have someone informed of his arrest
or detention as soon as he is put under arrest or is detained.

Entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been informed of
the arrest and the names and particulars of the police officials in whose custody the arrestee
is.

The police officer should, on the request of arrestee, record at the time of his arrest major and
minor injuries, if any, present on arrestees body, after subjecting the arrestee to an
examination. The Inspection Memo must be signed both by the arrestee and the police
official making such arrest, and one copy of that memo must be provided to the arrestee.

Copies of all the documents including the memo of arrest, referred to above, should be sent to
illaqa Magistrate for his record.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.

The court also ordered that in every district and state headquarters, a police control room
should be established, wherein every arrest which is being made must be reported by the
police officer making such arrest within 12 hours of such arrest, and it should be displayed on
a conspicuous notice board.

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The Court also emphasized failure to fulfill the given requirements would render the
concerned officer liable for contempt of court along with departmental actions, and such
proceedings can be initiated in any High Court having the territorial jurisdiction over the
matter.

3. Malimath Committee on the rights of the accused

The committee was of the opinion that the rights of the accused include the obligation on the
part of the State to follow the due processes of law, a quick and impartial trial, restraint from
torture and forced testimony, access to legal aid etc.

Before suggesting and recommending certain changes the Committee posed three major
questions:

(i) Should the basic premise of criminal law, namely, proof of guilt beyond reasonable doubt
be dispensed with?

According to the Committee such a presumption is not found in the Evidence Act. And thus
the standard of 'proof beyond reasonable doubt' present followed in criminal cases shall be
done away with. The standard of proof in criminal cases should be higher than the
'preponderance of probabilities'

The extraordinary burden of proof beyond reasonable doubt should be removed subject to
the safeguards available to the accused under the Evidence Act and the Code.

There are three standards of proof: a preponderance, clear and convincing and beyond
a reasonable doubt. The middle course, in our opinion, makes a proper balance between the
rights of the accused on one hand and public interest and rights of the victim on the other.
This standard is just, fair and reasonable. Safety lies in the fact that the accused is assisted by
a lawyer and the Judge is required to give reasons for his findings. This will promote public
confidence and contribute to better quality of justice to victims.

(ii) Should we not as a consequence do away the right of the accused to silence?

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(iii) Should we not as a consequence abolish the right of the accused against self-
incrimination?

Article 14(3) (g) guarantees an accused not to be compelled to testify against himself or to
confess guilt.

If any incriminatory statement is voluntarily made by the accused in answer to the question
put by a police officer, it cannot be regarded as one made under compulsion, vide AIR 1962
SC 1831, R.K. Dalmia Vs. Delhi Administration. In AIR 1965 SC 1251, State of Gujarat Vs.
Shyamlal Mohanlal Choksi the Supreme Court has upheld the validity of Section 27 of the
Evidence Act which renders the portion of the statement of the accused that leads to the
discovery of any fact admissible in evidence.

It cannot be denied that there is no better source of information than the accused himself. The
Committee was thus of the opinion that providing the Right to Silence and Right against self-
incrimination block this source of information and that there should be a way to receive
information from the accused without subjecting him to any duress. Professor Ingraham holds
the view that common sense expects one who is accused of the crime to reply, explain, admit
or exonerate himself and that this does not threaten the privilege from self-incrimination.

The committee after discussing these points in detail suggested that the rights of the accused
recognized by the Supreme Court should be subject to the clarification in Chapter 4 and the
manner of their protection be made statutory, incorporating the same in a schedule to the
Criminal Procedure Code

Conclusion

Human rights as the expression goes, means certain rights which are considered to be very
basic for an individuals full physical, mental and spiritual development. Human rights
encompasses the fundamental principles of humanity and these are the rights which every
human being is entitled to enjoy on the basis of the fact of being born human. Indeed, the
conception of rights, which every human being is entitled to enjoy by virtue of being a
member of human society, has evolved through the history of struggles for the recognition of
these rights. In plain simple words, human rights are the rights which every human being
possesses by virtue of being a human. The dictionary meaning of the word right is a
privilege. But when it is used in the context of human rights it is about something more
basic. Human rights are fundamental to the stability and development of countries all around
the world. Great emphasis has been placed on international conventions and their
implementation in order to ensure adherence to a universal standard of acceptability.

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Without being exhaustive, it has been discussed that some of the essential human rights that
must be guaranteed during pre-trial investigation into criminal activities. These comprise a
number of rights essential to preserving not only a suspects physical and mental integrity,
but also his or her right to secure an effective defence throughout these early proceedings and
subsequently during the trial itself. In order for these rights to be effectively realized, all legal
professions, that is to say, judges, prosecutors and lawyers alike, have an essential role to
play. The police and prosecutorial authorities have a professional duty under law to protect
these rights, as do the domestic judges, who must at all times be alert to any sign that such
important rights as the right to freedom from torture, the right to effective access to legal
counsel, the right not to be compelled to testify against oneself and the right to prepare an
effective defence etc. have not been respected. Add to these rights the basic rights to equality
before the law and to presumption of innocence, and it can be concluded that international
human rights law provides an important foundation for the creation of a judicial system that
will function on the basis of respect for the rule of law and individual rights, for the ultimate
purpose of administering justice fairly and efficiently.

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