Author: Rushan Salim Suri

Rights of accused persons is an issue that has been deliberated upon since long and continues to be a topic of contention even today. This article is based on the assessment of rights provided by the laws in India to the accused persons. It begins with a brief introduction to rights in general, the constitutional mandate relating to it. The author has then discussed provisions of the Constitution of India, procedural laws like Code of Criminal Procedure (CrPC), Indian Evidence Act. A section is devoted to deliberate on the landmark judgements of the courts dealing with cases of accused persons rights. This article ends with a suggestion of giving due importance to protect the rights and liberties of accused, role of the state and police in safeguarding the same, keeping in mind its impact on society at large.
Rights, Accused, Laws, Arrest, Magistrate.
“It is better that ten guilty persons escape than that one innocent suffer.”(1)
-William Blackstone
Human rights are considered to be sacrosanct, and are available to all humans regardless of their nationality, gender, race, caste, religion. An accused person is one who is accused or charged with the commission of an offence but is not yet convicted for the same. An accused person cannot be denied his rights merely because he is accused of an offence. The Constitution of India envisages a democratic setup governed by the rule of law, where an accused is presumed to be innocent unless proven otherwise beyond reasonable doubt, affirming the view that “fair trial” is a constitutional obligation and thus the concept of “presumption of innocence of accused” is one of the cardinal principles of Indian criminal justice system.
In India, the accused persons have rights under the law, which are discussed as follows:
Rights under Constitution of India, 1950
Rights under Code of Criminal Procedure (CrPC), 1973
Rights under Indian Evidence Act, 1872
Certain rights are provided by the Constitution, and the same are also available to the accused persons, and are as follows:
Right to Equality
Article 14 (2) provides that an accused is entitled to be treated equally before law. It also includes the right to a fair trial, as fairness is an important aspect of equality.
Right to Prospective effect of law
Article 20(1) provides 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 commission of the offence”.(3) It means that an accused cannot be punished for an act which was not an offence at the time of its commission, and cannot be given a penalty greater than what is prescribed under the law.
For example, if A commits theft on 1st May 2021, but the act of theft becomes an offence on 5th May 2021, he cannot be punished for the same since it was not an offence when he committed it.
Right to protection against double jeopardy
Article 20(2) provides that “No person shall be prosecuted and punished for the same offence more than once”.(4) It means that if an accused is punished for an offence, he cannot be punished for it again, the word “same” here relates to the same facts and circumstances for which he was punished.
For example, if A murders B, and is punished with 7 years imprisonment, then he cannot be punished again for the same offence, i.e. murder of B.
Right to protection against self-incrimination
Article 20(3) provides that “No person accused of any offence shall be compelled to be a witness against himself”.(5) It means that at any stage of the criminal trial, an accused person shall not be coerced or forced to give any evidence or testimony that points to his guilt, i.e. self-incrimination.
Right to know grounds of arrest
Article 22(1) provides that “No person who is arrested shall be detained in custody without being informed of the grounds for such arrest”.(6) It means that an accused has a right to know the reasons for his arrest, as soon as possible, either at the time of his arrest or at a subsequent stage.
Right to consult and engage a lawyer
Article 22(1) further provides that “No person who is arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice”.(7) This is an important right provided which entitles an accused to engage a lawyer of his choice to defend himself before a court of law.
Right to be presented before a Magistrate
Article 22(2) provides that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours”.(8) This right ensures that once a person is arrested, the judicial authority takes cognizance of the same, as arresting a person without cause is a violation of his fundamental rights. This right does not extend to “enemy alien” and “persons who are arrested under Preventive Detention laws”.
Right to free legal aid
Article 39A provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. (9) This is essential that even an accused person who cannot afford a lawyer has a right to be legally represented before court of law.
Right to appeal
Article 132(10), 134(11) and 136(12) provides the accused the right to appeal the decision of a High Court in the Supreme Court if he is not satisfied with the decision.
Right to know grounds of arrest
The right under Article 22(1) is also provided by Section 50(1) of CrPC, which states that when a person is arrested without a warrant, he must be informed of the grounds of arrest immediately, and in case warrant is there, the person being arrested must be informed of the particulars of such warrant, and also show him the same if required.(13)
Right to be released on bail
Section 50(2) provides that if a person is arrested for an offence which is bailable, the police officer is duty bound to inform the person that he has a right to be released on bail.(14)
Right to be presented before a Magistrate
The right under Article 22(2) is also provided by Sections 56 and 76, which states that when a person is arrested, he has a right to be produced before a Magistrate without any unnecessary delay. (15)
Right to not being detained for more than 24 hours without judicial intervention
Section 57 provides that the police officer, in absence of reasonable cause, does not have the right to detain a person for more than 24 hours without any judicial intervention, meaning without the order of the Magistrate directing the same. (16)
Right to be examined by a medical practitioner
Section 54 provides that if an arrested person requests a medical examination to disprove the commission of the offence for which he is arrested, he has such a right unless the Magistrate thinks that such a request is made for delay or for defeating the ends of justice. (17)
Right to be discharged
Section 227 provides that when a magistrate is of the opinion that no prima facie case and no sufficient ground for proceeding against the accused is made out, the accused has a right to be discharged. (18)
Right to present evidence
Section 243(1) provides that an accused has the right to present his evidence and defend his case before a court of law, and the law places a duty on the Magistrate to record written statements presented by the accused. (19)
Right to be present during trial
Section 273 provides that it is mandatory that all evidence and statements presented in the criminal trial are done in the presence of the accused or his lawyer, and places a duty on the Magistrate to ensure the same. (20)
Right to be defended and free legal aid
The right under Article 22(1) is also provided by Section 303, which states that an accused is entitled to be defended by a lawyer of his choice. Also, the right under Article 39A is also provided in Section 304, which states that where the accused cannot afford a lawyer to defend himself, the court after having satisfaction of the said fact, assigns a lawyer at the expense of the State. (21)

Right to cross-examination
Section 311 provides that the accused has a right to cross-examine a witness of the prosecution, as a means to defend himself. The application for cross-examining a witness can be made under Section 243(2) by the accused. (22)
Right to presumption of innocence
Section 102 and 105 of Evidence Act provides that an accused is presumed to be innocent unless proven guilty beyond reasonable doubt by the prosecution. The degree required for conviction is very high, since the same relates to the life and liberty of the accused person. (23)
Right to protection against confession made to police
Sections 25 and 26 provides that the confession made by an accused person to a police officer or while in police custody cannot be used as evidence against him in a court of law.(24) (25)
Right to cross-examination
The right under Section 311 of CrPC is also provided by Section 138 of Evidence Act which provides that the right to cross-examine the witness is an essential right of the accused.(26)
An important aspect of rights of accused persons, whose scope of interpretation were broadened by Landmark Judgements, passed by the Supreme Court and High Courts, also known as Judicial Precedents. The first such judgement is that of Hussainara Khatoon(27), where the Supreme Court mandated that an investigation in trial should be held “as expeditiously as possible”, thereby introducing the right to “speedy trial”. In Nandini Sathpathy v. P.L.Dani(28), the Supreme Court held that no one can compel the accused to make a statement, and the accused has the right to remain silent during the investigation. The Supreme Court also laid down guidelines to be followed while arresting a person and failure to follow which will result in declaration of the arrest as unlawful and illegal, which were enumerated in cases such as D.K. Basu v. State of West Bengal(29), Arnesh Kumar v. State of Bihar(30). The Supreme Court in Sunil Batra v. Delhi Administration(31) while interpreting the scope of Article 21 held that beyond the confines of lawful detention, mental torture, physical pressure, and bodily infliction is prohibited under Article 21 which provides for the fundamental right to life and liberty.
It is important that the rights of accused persons are protected and upheld, since the detention of a person directly affects their fundamental right to life and liberty, and that such a right is not violated unreasonably. The Courts have always adopted a humane approach while dealing with their rights. In India, a large section of the prisoners are under-trials who are languishing in jails, awaiting trial and the much awaited justice. At the same time, it is pertinent to mention that a substantial number of prisoners belong to the socially backward classes, like Dalits and Adivasis, in addition to those belonging to religious minorities and financially weaker sections of society.
At the same time, it is necessary that measures for appropriate counselling should be adopted while dealing with those who were acquitted and are to be rehabilitated after spending years in jail. The police officials and the state should uphold law and order, and should not use the state machinery for harassing people by lodging fake cases and false and concocted charges and allegations, and should keep in mind the judgements passed by the Courts in this regard. Protection of liberty, as a right, should be dealt with utmost care and importance as otherwise, it may have a detrimental effect on the society at large.

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