Rights of accused persons in India. Rights of convicts, Legal provisions, remedies and case laws in India.
Constitution of India guarantees fair trial to an accused. An accused is considered as innocent till proven guilty. The accused has many rights in different stages of investigation, trial and after trial. Every Citizen is entitled to fundamental rights under the Indian Constitution, basic human rights and certain legal rights under various laws. Some rights are available to non citizen of India also.
Author: O. Kuttan, Advocate, Supreme Court of India
Rights of an accused before Trial
An accused has the following rights before commencement of trial of a criminal case:
1. Right to know about the accusations and charges
An accused has the right to know the charges against him and details of
offence under the Criminal Procedure Code (CrPC), 1973.
2. Right against wrongful arrest
Article 22(2) of the Constitution of India is to protect a person against
wrongful arrest. A person arrested should be produced before a Judicial
Magistrate within 24 Hours of Arrest. Section 57 of the CrPC restricts
detention of an accused for more than 24 hours. Section 57 of Criminal
Procedure Code 1973 is as under:
"57. Person arrested not to be detained more than twenty- four hours. No
police officer shall detain in custody a person arrested without warrant for
a longer period than under all the circumstances of the case is reasonable,
and such period shall not, in the absence of a special order of a Magistrate
under section 167, exceed twenty- four hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate's Court."
Supreme Court Judgment and guidelines regarding arrest and Detention of
an accused
In D.K. Basu v. State of West Bengal 1997 (1) SCC 416 AIR 1997 SC
610 the Hon'ble Supreme Court has formed guideline for arrests. In
this case, following important guidelines were issued by the Court as
preventive measures to be followed as requirements in all cases of arrests
and detention:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) 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.
(6) An 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.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
The Supreme Court directed that failure to comply with the above requirements shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
3. Right to privacy and protection against unlawful searches
A valid search warrant is necessary to search in the property of an
accused. The police officials cannot violate the privacy of the accused on a
mere presumption of an offence.
4. Right against double jeopardy
Article 20(2) of the Constitution of India says that person cannot be
prosecuted and punished for the same offence more than once. Article 20(2)
of the Constitution of India is as under:
"(2) No person shall be prosecuted and punished for the same offence more
than once"
5. Right against self-incrimination
Article 20(3) of the Constitution has prevents against compelling a
person to be a witness against himself. Article 20(3) of the Constitution of
India is as under:
"(3) No person accused of any offence shall be compelled to be a witness
against himself"
6. Right against ex-post facto law
Retrospective effect of law cannot be applied against an accused. An act
that was not a crime on the day when it was done cannot be considered as an
offence.
7.Right to Get Bail
An accused person has the right to apply for bail. It may be:
Anticipatory bail- before arrest
Interim bail or bail by bond - After arrest.
8. Right to legal aid
Every accused has the right to get legal help. If an accused person is
not able to afford a lawyer, the State Government has to provide legal aid
to hire an advocate to represent the accused in the court.
9. Right to have a free and expeditious trial
An accused has the right to have an expeditious trial, which is free of
any bias or prejudice.
Rights of the Accused during the Trial
An accused has many rights when the trial is going on in the court. It is the duty of the state to ensure that due process of law is followed, the accused gets a quick and impartial trial, the accused is not subjected to torture or forced to implicate himself.
Rights of accused during trial period include the following:
1. Right of accused to be present in the court during trial
The accused has the right to present in the court during trial. As per
section 273 of Code of Criminal Procedure 1973 all evidence and statements
must be recorded in presence of the accused or his criminal lawyer. Section
273 of CrPC is as under:
"273. Evidence to be taken in presence of accused. Except as otherwise
expressly provided, all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of his pleader."
2. Right of accused to get Copies of Documents
As per Section 207 of the Code of Criminal Procedure, 1973 the accused
person has the right to receive copies of all the documents filed by the
prosecutor in relation to the case. Section 207 of CrPC is as under:
"207. Supply to the accused of copy of police report and other documents.
In any case where the proceeding has been instituted on a police report, the
Magistrate shall without delay furnish to the accused, free of cost, a copy
of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub- section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses, excluding
therefrom any part in regard to which a request for such exclusion has been
made by the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub- section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a
statement as is referred to in clause (iii) and considering the reasons
given by the police officer for the request, direct that a copy of that part
of the statement or of such portion thereof as the Magistrate thinks proper,
shall be furnished to the accused: Provided further that if the Magistrate
is satisfied that any document referred to in clause (v) is voluminous, he
shall, instead of furnishing the accused with a copy thereof, direct that he
will only be allowed to inspect it either personally or through pleader in
Court."
3. Right of accused to be considered Innocent till proven guilty
As per Article 11 of the Universal Declaration of Human Rights,
"Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had
all the guarantees necessary for his defence."
4. Right of accused to be present at the trial
Section 304 of the Code of Criminal Procedure, 1973 has provision for the
right of accused to have a fair trial. Provision under section 304 of CrPC
is as under:
"304. Legal aid to accused at State expense in certain cases.
(1) Where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where it appears to the Court that the accused
has not sufficient means to engage a pleader, the Court shall assign a
pleader for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the State Government,
make rules providing for-
(a) the mode of selecting pleaders for defence under sub- section (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fees payable to such pleaders by the Government, and generally, for
carrying out the purposes of sub- section (1).
(3) The State Government may, by notification, direct that, as from such
date as may be specified in the notification, the provisions of sub-
sections (1) and (2) shall apply in relation to any class of trials before
other Courts in the State as they apply in relation to trials before Courts
of Session."
5. Right of accused for cross-examination
Section 242 of the Code of Criminal Procedure, 1973 has provision to apply
for cross examination of witnesses. The accused also has the right to be
cross-examined by the prosecutor to prove his innocence. Provision under
Section 242 of CrPC is as under:
"242. Evidence for prosecution.
(1) If the accused refuses to plead or does not plead, or claims to be tried
or the Magistrate does not convict the accused under section 241, the
Magistrate shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a
summons to any of its witnesses directing him to attend or to produce any
document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such
evidence as may be produced in support of the prosecution: Provided that the
Magistrate may permit the cross- examination of any witness to be deferred
until any other witness or witnesses have been examined or recall any
witness for further cross- examination."
Rights of the Accused after completion of Trial
The rights of an accused after completion of trial depend upon the
outcome of the trial, i.e. whether he has been acquitted by the court, or he
has been held guilty and arrested by police.
Right of an Accused if declared innocent
If an accused is declared innocent and acquitted by the court, the
following rights are available:
1. Right of acquitted person to get a copy of judgment.
2. Right of acquitted person to receive protection by police if there are
reasons to believe there is a threat to his life post-acquittal.
Rights of an Arrested Person
1. Right of arrested person to file Appeal
Section 372 to section 394 of the Code of Criminal Procedure, 1973 has
provision regarding appeal against order/judgment of a court. An arrested
person has the right to file appeal against order of conviction in a higher
court.
Provision under Section 374 of CrPC for appeal against order is as under:
"374. Appeals from convictions.
(1) Any person convicted on a trial held by a High Court in its
extraordinary original criminal jurisdiction may appeal to the Supreme
Court.
(2) Any person convicted on a trial held by a Sessions Judge or an
Additional Sessions Judge or on a trial held by any other Court in which a
sentence of imprisonment for more than seven years 2 has been passed against
him or against any other person convicted at the same trial], may appeal to
the High Court.
(3) Save as otherwise provided in sub- section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant
Sessions Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate, may appeal to the Court of Session."
As per Section 379 of the Code of Criminal Procedure, 1973 the convict has
the right to file appeal against conviction by High Court in Certain cases.
Provision under section 379 of CrPC is as under:
"379. Appeal against conviction by High Court in certain cases. Where the
High Court has, on appeal, reversed an order of acquittal of an accused
person and convicted him and sentenced him to death or to imprisonment for
life or to imprisonment for a term of ten years or more, he may appeal to
the Supreme Court."
2. Right of arrested persons to Humane Treatment in Prison
Arrested persons have right to Humane Treatment in India as per
provisions in Indian Constitution and various other laws:
A. Rights under Indian Constitution
Article 19 of the Constitution of India guarantees six freedoms to the
all citizens of India. Among these freedoms certain freedoms cannot enjoyed
by the prisoners because of the very nature of these freedoms. But the
"freedom of speech and expression" and "freedom to become member of an
association"
Article 21 of the Constitution of India says that No person shall be
deprived of his life or personal liberty except according to procedure
established by law. This Article stipulates two concepts i.e., right to life
and principle of liberty. By Article 21 of the Indian Constitution it is
clear that it is available not only for free people but also to those people
behind the prison. Following are the rights of prisoners which are
implicitly provided under the Article 21 of the Constitution of India:-
- Right of inmates of protective homes,
- Right to free legal aid,
- Right to speedy trial,
- Right against cruel and unusual punishment,
- Right to fair trial,
- Right against custodial violence and death in police lock-ups or
encounters,
- Right to live with human dignity,
B. Enactments and Rules for the rights of Prisoners:
1. The Prisons Act, 1894:
This act is the first legislation regarding prison regulation in India. The
following are some of the important provisions regarding prisoner's rights:
- Accommodation and sanitary conditions for prisoners.
- Provisions relating to mental and physical state of prisoners.
- Examination of prisoners by qualified medical officer.
- Separation of prisoners for male, female, criminal, civil, convicted and
under trial prisoners.
- Provisions for treatment of under trials, civil prisoners, parole and
temporary release of prisoners.
2. The Prisoners Act, 1990:
- It is the duty of the government for the removal of any prisoner detained
under any order or sentence of any court, which is of unsound mind to a
lunatic asylum and other place where he will be given proper treatment.
- Any court which is a high court may in case in which it has recommended to
government the granting of a free pardon to any prisoner, permit him to be
at liberty on his own cognizance.
3. The Transfer of Prisoners Act, 1950:
This act was enacted for the transfer of prisoners from one state to another
for rehabilitation or vocational training and from over-populated jails to
less congested jails within the state.
4. The Prisoners (Attendance in Courts) ACT, 1955:
This Act contains provisions authorizing the removal of prisoners to a civil
or criminal court for giving evidence or for answering to the charge of an
offence.
The accused has a right to have all his human rights when in prison and be
subjected to humane treatment by the prison authorities.
3. Right to have Family Visits in Jail
Currently, there are no laws in India that expressly allow conjugal visits
to inmates. However, in 2015, Punjab and Haryana High Court, while hearing a
case, allowed conjugal visits and artificial insemination for inmates. The
court had ruled that it will be the sole prerogative of the state to
regulate a legally established procedure for the same. Justice Surya Kant
had held in 2015 that unless reasonably classified, inmates were entitled to
the right to procreate while incarcerated and that it was a fundamental
right.
"Such a right, however, is to be regulated as per the policy established
by the state which may deny the same to a class or category of convicts as
the aforesaid right is not an absolute right and is subject to the penological
interests of the state," Justice Surya Kant had said.
4.Right against solitary confinement.
Section 29 of the Prisons Act 1894 has provision regarding solitary
confinement. The provision is as under:
"29. Solitary confinement.-No cell shall be used for solitary confinement
unless it is furnished with the means of enabling the prisoner to
communicate at any time with an officer of the prison, and every prisoner so
confined in a cell for more than twenty-four hours, whether as a punishment
or otherwise, shall be visited at least once a day by the Medical Officer or
Medical Subordinate.
There are numerous rights of an accused given to him before his trial,
during his trial or after his acquittal or conviction. A person who is
accused of committing a crime must consult a criminal lawyer to file for a
bail application or when his rights are violated at any stage."
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