Menu

Legal Rights of the Accused Person

Publications, Research paper

1.     Abstract

The INDIAN CONSTITUTION guarantees fundamental and statutory rights to both citizens and non-citizens. The rights which are enforceable as per law and cannot be infringed unless there is an explicit situation and condition mentioned in the law. In the case of the accused person, his legal right cannot be taken away, just because he is accused in a criminal matter. The Indian Judiciary has established the principle of “Presumption of Innocence” i.e., Innocent until proven guilty. Even if the accused is convicted by the court, that does not mean all his legal rights will be completely curtailed. On the other side, legal rights are not absolute, there will be reasonable restrictions as per law. Legal rights include ‘Right to Bail’, ‘Right to Remain Silent’, ‘Right to have self-defence’ etc. Legal rights are not available in isolation, there will be associated legal duties and, the accused person shall abide by them. Lack of awareness about the available legal rights is a challenge, a common man with no knowledge of law is at a losing end. The Malimath Committee formed for reforms in the Criminal Justice system had worked and recommended suggestions for safeguarding the personal liberty of individuals. The Lady of Justice has a blindfold on her eyes which symbolizes everyone equal before the law, holding the scale in one hand which symbolizes equal treatment to both sides and the evolution based on evidence presented before the court to deliver justice as per the severity of crime only if it’s proven beyond reasonable doubt. It is important no criminal shall be spared but at the same time innocent shall not face atrocities and legal rights are the remedy. 

  • 2.     Keywords

Accuse, Legal Rights, Innocent, Bail, Custody, Investigation, Conviction

  • 3.     Introduction

The Indian Penal Code, 1860, No. 45, Act of Parliament1860 (India), (Herein after ref as ‘IPC’) and other specialized statutes define the offences and their punishments. The Criminal Procedure Code, 1973, No. 2, Act of Parliament, 1974(India). (Hereinafter ref as ‘CrPC’) along with the Indian Evidence Act, 1872, No. 1, Act of Parliament, 1872(India), (Herein after ref as ‘IEA’) is used by the courts for adjudicating criminal matters. The First Information Report (herein to ref as ‘FIR’) is the first step in the administration of criminal justice, which police registers on receipt of information of commission of cognizable offence or court direct to register FIR on inquiry report of a complaint. In any case, if a prima facie offence is made out then such a person is booked under relevant sections of criminal law, and such a person is called as an accused. This is a preliminary stage and accused persons  have certain legal rights and have protection by law against any arbitrary action. These research papers have been written to analyse the legal rights of the accused person and the challenges faced.

  • 4.     Research Methodology

The researcher follows a doctrinal method of research which requires gathering relevant data from the specified documents and compiling databases in order to analyse the material and arrive at a more complete understanding and analysis of the legal rights, vested in the accused. Thus, imputes the secondary sources as a method of tool collection. An analysis of reports, documents, and case laws, in reference to the legal rights, and available resources within other Online Library scientific databases, were referred to. 

  • Review of literature

The latest Bare acts of the IPC, CrPC, and IEA referred to understanding the provisions of law in the Criminal Justice system which defines the various procedural aspects, and duties of the State including Police personnel, Investigation Officers and the Judicial officers including advocates representing the accused person or Public Prosecutors. Normally the process moves from different stages FIR – Investigation – Trial – Conviction/Acquittal. The accused person shall face the trial and the court will conclude either acquittal or conviction after a detailed analysis of facts and evidence on the record as per due process set by CrPC. As per the provisions of the law, there are specific rights available to the accused persons. Legal rights are available at every stage, few were already established from the beginning, but few rights are evolved by the judicial precedent set by the Apex Court, and many rights are still under discussion. The United Nations Declaration on Human Rights under Article 1 sets the guidelines for human rights, but again due to different social, and local norms, it is not consistent across nations.

There are many published articles on the internet which speak about the legal rights of accused persons but they are still not able to address the basic question of how there can be a change in the system and the accused person get the actual benefit of it.

  • Analysis

Let us evaluate the legal rights and how those can be exercised by the accused person along with the evolution of rights of the accused person in recent times.

  • 6.1.  Existing lawsSection 41-A

The Apex court has established a process for not to have automatic arrest of accused persons in case of non-serious petty offences having punishment not more than 3 years and  matrimonial matters. Herein police should serve the Notice to the accused person u\s 41-A of CrPC and the accused shall cooperate in the investigation. The rationale of the court is very genuine, in said cases like Arnesh Kumar v. State of Bihar[1], where in u/s 498A of IPC, the offence is non-bailable. But it was the matrimonial dispute, no prima facie reason for the arrest of the accused that to his family members on just the basis of allegations by the complainant. Without prejudice the Apex Court set a clear direction to do an initial investigation and unless a critical case of grave physical abuse or very serious nature of  allegations automatic arrest is against the natural justice. The Apex Court very specifically mentioned abuse of the law for false allegations in cases of matrimonial disputes.

  • 6.1.2.     Section 41-B

The detailed process for arrest as allowed by law in place, along with specific responsibilities of Police, No excessive force, no handcuffing unless very necessary. In the case of Sunil Batra v. Delhi Administration[2], the rule of handcuffs was rejected and only exceptional cases were allowed. It’s not only the dignity of a person but the restriction of his natural movements was restricted. The Apex Court in the case of D. K. Basu v. State of West Bengal[3]. The arrest of the accused is allowed where necessary but police are duty-bound to make sure the accused shall not be subjected to atrocities by authorities.

  • 6.1.3.     Section 41-D

The accused shall be given the access to Advocate of his choice and shall be allowed to consult the Advocate. Also, where relevant Advocate can be present during the interrogation of the accused. The accused person, many times not have a clear knowledge of the law and their own rights. In such cases, the person is behind bars and has no way to understand the consequences of any of their statements or confessions. Any such non-judicial statements or confessions are not admissible in a court of law u/s 161 of CrPC. Here the accused has the protection to consult an advocate and where necessary his advocate can be present during interrogation/investigation to safeguard the accused person’s rights. Even though this is not an absolute right and police have the powers to have put limitations where necessary. Even if a Magistrate is recording any statement u/s 164 of CrPC, he should make sure the consequences of such statement are explained to the accused and make sure such statement is with free consent and without any force, fear, or pressure of whatsoever nature.

  • 6.1.4.     Section 46

Procedure of arrest shall be in a predefined manner and as per law. Very specific provisions for the arrest of women shall only be by a female police officer and shall not be after sunset and before sunrise. In general, a clear memo shall be in place with all details as per the prescribed format notified by the State, along with any material recovered, seized with a sign in the presence of the witness and accused himself with a clear list of those items.

In the case of Bharati S. Khandhar v. Maruti Govind Jadhav, the Hon’ble Bombay High Court observed the violation of section 46(4) where the women accused were arrested after the sunset which was in contravention of the law.

  • 6.1.5.     Section 50

Any accused shall be informed about the grounds of arrest including a section of law and punishment and specifically the bail provisions available to the accused. U/s 50-A, it is mandatory to inform details of the arrest of the relative or the nominated person by an accused.

  • 6.1.6.     Section 54

The medical examination of the accused is mandatory by a medical practitioner immediately after arrest and shall note any injury or specific medical condition and such examination shall be done in a routine manner. Additionally, u/s 55-A of CrPC, health, and safety of accused during any arrest or even custody is the responsibility of police. Recent attacks on accused persons in police custody like Ateeq Ahmed alleged of murder and other offences.  In police custody, when he was on the way to medical examination by three shooters. It raised very serious concerns about the security and safety of the accused in police custody. Arrest and Custody definition explained by Apex court in case of State of Haryana v Dinesh Kumar[4], which should avoid any confusion at any stage of proceeding. Either it is custody or arrest safety of the accused cannot be compromised. Any physical force cannot be applied to get out confessions of statements, such testimony obtained by force will be admissible in court u/s 161 of CrPC.

  • 6.1.7.     Section 56

CrPC has a clear provision, any person arrested by police shall be brought before the local Magistrate within 24 hours, excluding the time of travel. Police are duty bound for the same and it is the right of the accused. This will be a serious violation of fundamental right and the accused can approach the High Court under INDIAN CONST. art. 226 via WRIT Petition either of Habeas Corpus to bring the accused before court or WRIT of Mandamus for bail application. Certain cases of serious violation of law even accused can approach the Supreme Court of India via INDIAN CONST. art. 32.

  • 6.1.8.     Section 482

The High Court have inherent power u/s 482 of CrPC for quashing of chargesheet and FIR where the court has prime facie belief on basis on details on records as per the situation of case, where it is mere abuse of law with mala fide intention to put allegations on accused and such proceeding of false allegations will be grave injustice to the accused. The High Court can quash such chargesheet and FIR as well.

  • 6.2.  Exercise of Legal RightsRight to Remain Silent

The INDIAN CONST. art. 20, § 3 gives safeguard to the accused person by giving any statement against himself. Neither police can force the accused to give any statement of nor such statement will be admissible or considered as proof against accused in alleged offence. In certain offences like MCOCA law in Maharashtra, extra-judicial statements and confessions are admissible as evidence but it is just once of special law. In other offences generic in nature defined in IPC it is not the rule.  

  • 6.2.2.     Right to Bail

In case of offence of bailable nature accused is eligible for the bail and can get bail by applying before the competent court. But in case of non-bailable offence, it is completely discretion of the court whether to grant or reject the bail application. Bail is not a fundamental right; it is just the statutory right of the accused. Indian Judiciary follows the principle ‘Bail is rule and jail is an exception’, where possible bail shall be granted, since proceeding will take its due course and no reason for the accused to remain behind bars which will curtail his personal liberty available under the INDIAN CONST. art. 21.

In specific scenarios, the accused has the right for anticipatory bail u/s 438 of CrPC, where a person has apprehension of arrest. But in case the accused is already arrested, then regular bail u/s 437 of CrPC can be sought in court or in case of rejection can be appealed in higher court in hierarchy. Police has time of 90 days to fill the chargesheet in court. If police fail to do so, the accused will be eligible for the default bail. If accused released on bail, it always conditional. The accused is duty bound to participate in investigation, as and when asked by Investigating Officer. In the case of Kharak Singh v. State of U.P[5], the Apex Court concluded the right to sleep is covered under INDIAN CONST. art. 21 which is the bigger ambit of “Right to Life” and police cannot infringe such right by random or unjustified raids at the accused persons location.

  • 6.2.3.     Indian Legal System and Bail provisions

As per National Crime Bureau Records, Prison Statistics Data 2020[6] (Refer Table 01 below), all the jails in India are over populated and holding the surplus prisoners. Also, overpopulation leads to other issues in giving basic human facilities and normal living environments for inmates. It is a bigger problem and needs permanent fix but at least bail provision is helpful for under trial prisoners and those can be free on bail until trial is concluded.

Table No. 01: Information of Prisons

UTRC[7] from time to time have meetings with District Magistrate as chairman and they review and release the under-trial prisoners on bail. As per the National Crime Bureau Records, 2021[8] many under trial prisoners are released as per the set qualifying criteria.

  Table No. 02: Numbers of UTP recommendation for bail and release

Table 03: Under Trial Prisoners Release Chart

Considering the ground reality and practical approach, giving bail to such under-trial prisoners remains a logical option, particularly when law allows it. This not only allows to safeguard the personal liberty of citizens but also helps in reducing burden on jail infrastructure. No doubt the running cost incurred in maintaining jails is high.

The Supreme Court in case of Arnesh Kumar v. State of Bihar[9], addressed two questions

  1. Rights of accused person before and after arrest
  2. What remedies are available to the accused person if there is false allegation and potential misuse of law?

The Supreme Court granted bail to the accused and the most important court gave direction to all the States and police officers regarding handling of such cases registered under section 498A of IPC. Most importantly no direct arrest of any such accused and set process of section 41-A of CrPC should be followed, unless there is suspicion beyond doubt and any potential risk (assault, risk of life etc. for safety of the complainant or witness.

Accused of bailable offences have no challenges in getting bail but in non-bailable offences as well The Supreme Court has taken a stand and bail can be granted in specific scenarios

  1. Hasan Aziz Irani v. The State of Maharashtra in Criminal Bail Application Number 1822 of 2019, accused was of criminal antecedents cannot be sole ground for rejecting bail.
  2. Kashiram & Ors v. State, AIR 1960[10]

Even if the offence was non-bailable, still persons have right to bail, since time taken by court proceedings are longer and, in such time, accused cannot be kept behind bars.

Courts should not be death in superficial manner, the important things for court are to make sure the accused will not tamper with witnesses in any manner and the accused will be available in court proceeding without risk of absconding. 

  • 6.2.4.     The Criminal Procedure (Identification) Act, 2022

Collection of evidence is a crucial step during investigation, as prescribed by law evidence collection is allowed when it is relevant and necessary for administration of justice and vital for proving or disproving facts in issue. Evidence like figure prints, photographs, other biological samples like heir, blood. Such evidence can be collected only in line with the provisions of The Criminal Procedure (Identification) Act, 2022, also where relevant the consent of the accused is necessary unless law allows such evidence collection or the court has granted permission. The investigating agency shall be reasonable and only with due process such samples can be collected. It is paramount important it is only in reference to such matter for investigation. The evidence cannot be used elsewhere which could potentially breach the privacy of accused persons.

  • 7.     Suggestion

“Justice delayed is justice denied”, if the system is not able to deliver the justice in reasonable time, then it defeats its own purpose. The accused struggles most in such procedural delay. Particularly, the undertrial prisoners where trial takes its due course and in such time without proven guilty, such a person remains behind bars with no option of bail. The case of  Romilly Thapar v. UOI[11], infamously known as Bhima Koregaon case in Maharashtra. The accused persons were booked under Unlawful Activities (Prevention) Control Act, 1967 and put behind bars with no bail options. One of the accused died in jail and unfortunately, he was a super senior citizen and his bail was denied. Courts need to look at the practical approach particularly women, children, and senior citizens. Also, few laws are from colonial err laws still in use but  the relevancy shall be checked with current need of society,

  • 8.     Conclusion

India is a developing country, the specific socio-economic environment and diversity there are challenges and illiteracy is one of the major challenges. The people are not aware of their rights remains the major challenge. Education specifically legal area education remains important, since in vibrant democracy, safeguarded  of people and their rights are most important. Being accused is a social taboo, even whether something proves or not is a later fact. Society has a narrow-minded approach when it comes to crime and accused persons. The accused have the right to live as human and should be treated like one. Another aspect which is far dangerous is media trial, the fourth pillar of democracy but debates with individual opinions and views cannot be concluded for once guilt or innocence, it is area of Judiciary to handle. Any such virtual trial in the media shall not use as character assassination weapon. Legal awareness is one aspect but poor people still have limited access to the legal system, poor financial conditions are at root of problem. Even though Legal Cells are established and the State is under obligation with reference to the INDIAN CONST. art. 39A to make sure weaker sections of society get sufficient help in legal areas, mostly people are unaware of it and cannot get benefits. Indian judiciary is already overloaded with pending cases and the existing capacity has challenges to manage it, along with that the increasing complex legal issues is adding further delay. Its important justice shall be within reasonable time and objective shall be justice delivery.  

The Indian legal system has the legacy of the colonial judicial system, this existing system after the changes brought in by legislature, judicial precedent helped in betterment of judicial administration. No doubt India’s complex social structure, diversity and ever changing socio-economic and cultural changes, no one law in straight jacket formula can help all. The equals shall be treated and unequal unequally, this is the true notion of the INDIAN CONST. art. 14 which means real sense equality. Indian criminal justice system has many challenges only Judiciary or State cannot address all of them, here Non-Government Organizations, private organization are doing good work but still a lot needs to be addressed e.g., person in jail for petty offence but even after getting bail person remains behind bars is unfortunate thing. A person is under trial, locked behind bars and he has already served the punishment which he could probably get if he is convicted but again problem, his trial on-going, no financial capacity for bail.

Written By: Ganesh Dattatray Narke                                                                   Date: 1June 16, 2023

[1] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

[2] Sunil Batra v. Delhi Administration, (1978) 4 SCC 409.

[3] D. K. Basu v. State of West Bengal, (1997) 1 SCC 416.

[4] State of Haryana v Dinesh Kumar, (2008) 3 SCC 222.

[5] Kharak Singh v. State of U.P, 1964 SCR (1) 332.

[6] National Crime Records Bureau, https://ncrb.gov.in/en, Last Visited: June 16, 2023.

[7] UTRC – Under Trial Review Committee, at a district level

[8] National Crime Records Bureau, https://ncrb.gov.in/en, Last Visited: June 16, 2023.

[9] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

[10] Kashiram & Ors v. State, AIR 1960 MP 312.

[11] Romilly Thapar v. UOI, (2018)10 SCC 802.