INDIAN INSTITUTE OF LEGAL

STUDIES

Subject – C.R.P.C

TOPIC – RIGHT OF THE ACCUSED UNDER

CRPC AND OTHER STATUE

SUPERVISED BY:
MR. RUPENDRA TAMANG
(ASSISTANT PROF. OF LAW)
SUBMITTED BY
NAME: RAJJAK HOSSEN
ROLLNO: 42; SECTION-A
COURSE: BALLB (6TH SEMESTER)
 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my

sincerest thanks to Assistant Professor in Law, Indian Institute of Legal Studies,
for her invaluable guidance, sound advice and affectionate attitude during the
course of my studies.

I have no hesitation in saying that he/she molded raw clay into whatever I am
through his/her incessant efforts and keen interest shown throughout my
academic pursuit. It is due to his/her patient guidance that I have been able to
complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for
cooperating and making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

Date: RAJJAK HOSSEN

(BALLB 5 YEARS 6TH SEMESTER)

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 TABLE OF CONTENTS
1. Introduction……………………………………………………………………………5

2. Rights of Accused Persons in India…………………………………………………..6

2.1 Protection against Ex-Post Facto Laws………………………………………………..6

2.2 Right against Double Jeopardy……………………………………………………..…7

2.3 Right against Self Incrimination……………………………………………………….8

2.4 Person arrested to be informed of grounds of arrest…………………………………..11

2.5 Right to be defended by a Lawyer……………………………………………………..12

2.6 Person arrested to be produced before the Magistrate………………………………....13

2.7 Person arrested not to be detained for more than twenty-four hours…………….........13

2.8 Information of arrest to a Nominated Person………………………………………….14

2.9 Right to Bail…………………………………………………………………………….15

2.10 Right to Free Legal Aid……………………………………………………………….17

2.11 Evidence to be taken in presence of the accused……………………………………..18

2.12 Right to get copies of Police Report and other documents…………………………...20

2.13 Right to Cross-Examine Prosecution Witnesses and to produce defense evidence…..21

2.14 Right to Speedy Trial………………………………………………………………....22

2.15 Compensation for Wrongful Arrest……………………………………………….….24

2.16 Right of Appeal……………………………………………………………………….25

Conclusion………………………………………………………………………………...26

Bibliography

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 SYNOPSIS
STATEMENT OF PROBLEM: A witness under oath commits perjury by
making a statement in a court or other proceeding that the witness knows is not
true. The statement must be “material” to the subject of the proceeding,
meaning that it must have some relationship to the lawsuit, investigation, or
inquiry of the proceeding.

RESEARCH AIMS & OBJECTIVES: To analyze the concept of Right to a

accused person under C.R.P.C and other statues through the study of various
eminent corporate works on shares related to the said topic.
1.To define and to understand the concept of Interpretation and its principle.

2. To know about the definition and meaning of Interpretation.

3. Lastly, to analyze the project in totality and address the expansive

significance of the interpretation clause.

RESEARCH QUESTIONS

• Q1- What are the principle of interpretation?

• Q2- What is the right to reason of needs of Interpretation?

• Q3- What is the principle of pith and substance?

• Q4- What do you know about article 367?

RESEARCH METHOD

Present project work is based on doctrinal research. The data has been collected
through secondary sources such as books, articles, journals and internet.

MODE OF CITATION

A UNIFORM CODE OF CITATION HAS BEEN FOLLOWED.

1. INTRODUCTION

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The segments of Criminal Justice System i.e., the police, the prosecution, the defense, the
judiciary and the correctional institutions ought to function in harmonious and cohesive
manner. But in practice, we often find that it is not the case. The police, instead of protecting
and promoting human rights, are often found to violate them. The National Human Rights
Commission has been receiving reports of custodial deaths, non-registration of cases,
arbitrary arrests, custodial violence etc. 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 any reasonable doubt and the onus to prove
the guilt of the accused is stationary on the prosecution and it never shifts. 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 to be followed by the
authorities during the process of criminal administration of justice. The Criminal Procedure
Code deals with the procedural aspects of arrest of an accused person and provides various
rights to accused/arrested persons. There are some provisions which expressly and directly
create important rights in favour of the accused/arrested person. This research provides a
comparative analysis of the rights of the accused persons in India, United Sates of America
and United Kingdom.

2. RIGHTS OF ACCUSED PERSONS IN INDIA

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As Indian Constitution is wedded to Democracy and Rule of Law, the concept of free and fair
trial is a constitutional commitment for which the cardinal principle of Criminal Law
revolves around the Natural Justice wherein, even the accused or guilty person is treated with
a human treatment. Every person is entitled to the basic human rights, fundamental rights
under the Indian Constitution and certain legal rights under various laws. These rights are
provided to a person, irrespective of the fact that person is accused of a crime. These rights
are given to an accused in India on the lines that ‘let hundreds go unpunished, but never
punish an innocent person.’

The rights of accused in India are provided at different stages which include right of an
accused before his trial begins, rights of accused during a court trial, and right of an accused
after his trial is completed. Following are some important provisions creating rights in favour
of the accused persons: -

2.1 PROTECTION AGAINST EX-POST FACTO LAWS

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.”1

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. 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 protection of clause (1) of Article 20 cannot be claimed in case of preventive detention,
or demanding security from a person. So, a trial under a procedure different from what it was
at the time of the commission of the offence or by a special court constituted after the
commission of the offence cannot ipso facto be held unconstitutional. 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 Bengal2, 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

1
Constitution of India, Eastern Book Company, 36th Edition, 2014.
2
AIR 1953 SC 404

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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. The rule of beneficial construction requires that ex post facto law should be
applied to mitigate the rigorous (reducing the sentence) of the previous law on the same
subject. Such a law is not affected by Article 20(1) of the Constitution.

2.2 RIGHT AGAINST DOUBLE JEOPARDY- DOCTRINE OF “AUTREFOIS

ACQUIT” AND “AUTREFOIS CONVICT”

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. 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 as follows:

Person once convicted or acquitted not to be tried for same offence –

(1) a person who has once been tried by a Court of competent jurisdiction for an offence and
convicted or acquitted for such offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence, nor on the same facts for any other
offence for which a different charge from the one made against him might have been made
under sub-section (1) of section 221, or for which he might have been convicted under sub-
section (2) thereof.

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The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the
purposes of this section. These rules or pleas are based on the principle that “a man may not
be put twice in jeopardy for the same offence”.

Article 20(2) of the Constitution recognizes the principle as a fundamental right. It says, “no
person shall be prosecuted and punished for the same offence more than once”. While,
Article 20(2) does not in terms maintain a previous acquittal, Section 300 of the Code fully
incorporates the principle and explains in detail the implications of the expression “same
offence”.3

In order to get benefit of the basic rule contained in Sec 300(1) of Criminal Procedure Code it
is necessary for an accused person to establish that he had been tried by a “court of competent
jurisdiction” for an offence. An order of acquittal passed by a court which believes that it has
no jurisdiction to take cognizance of the offence or to try the case, is a nullity and the
subsequent trial for the same offence is not barred by the principle of autrefois acquit. To
operate as a bar the second prosecution and consequential punishment there under, must be
for the “same offence”. The crucial requirement for attracting the basic rule is that the
offences are the same, i.e. they should be identical. It is therefore necessary to analyze and
compare not the allegations in the two complaints but the ingredients of the two offences.
Section 300 of Criminal Procedure Code bars the trial for the same offence and not for
different offences which may result from the commission or omission of the same set of the
act.

2.3 RIGHT 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. Thus Article 20(3) embodies the general principles of English
and American jurisprudence that no one shall be compelled to give testimony which may
expose him to prosecution for crime. The cardinal principle of criminal law which is really
the bed rock of English jurisprudence is that an accused must be presumed to be innocent till
the contrary is proved.4 It is the duty of the prosecution to prove the offence. The accused
need not make any admission or statement against his free will. The guarantee extends to any
3
Natrajan v. State, 1991 Cri LJ 2329 (Mad)
4
Article 11(1) of Universal Declaration of Human Rights, 1948 lays down: “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”.

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person accused of an offence and prohibits all kinds of compulsions to make him a witness
against himself. Explaining the scope of this clause in M.P. Sharma v. Satish Chandra5, 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.”

In Nandini Satpathy v. P.L. Dani 6, the Supreme Court has considerably widened the scope
of clause (3) of Article 20. The Court has held that the prohibitive scope of Article 20(3) goes
back to the stage of police interrogation not commencing in court only. It extends to, and
protects the accused in regard to other offences-pending or imminent, which may deter him
from voluntary disclosure. The phrase “compelled testimony” must be read as evidence
procured not merely by physical threats or violence but by psychic (mental) torture,
atmospheric pressure, environmental coercion, tiring interrogatives, proximity, overbearing
and intimidatory methods and the like.

Right to silence is also available to accused of a criminal offence. Right to silence is a

principle of common law and it means that normally courts should not be encouraged to
conclude, by parties or prosecutors that a suspect or an accused is guilty merely because he
has refused to respond to question put to him by the police or by the Courts. The prohibition
of medical or scientific experimentation without free consent is one of the human rights of
the accused7. In case of Smt. Selvi & Ors. vs. State of Karnataka 8, wherein the question
was- Whether involuntary administration of scientific techniques namely Narcoanalysis,
Polygraph (lie Detector) test and Brain Electrical Activation Profile (BEAP) test violates the ‘
right against self incrimination’ enumerated in Article 20(3) of the Constitution. In answer, it
was held that it is also a reasonable restriction on ‘personal liberty’ as understood in the
context of Article 21 of the Constitution. Following observations were made in this landmark
case:9

5
AIR 1954 SC 300
6
AIR 1978 SC 1025
7
Article 7 of the International Covenant on Civil and Political Rights, 1966
8
(2010) 7 SCC 263
9
http://shodhganga.inflibnet.ac.in/bitstream/10603/39088/9/09_%20chapter%203.pdf

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(i) No individual should be forcibly subjected to any of the techniques in question, whether in
the context of investigation in criminal cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty.
(ii) Section 53, 53-A and 54 of Criminal Procedure Code permits the examination including
examination of blood, blood-stains, semen swabs in case of sexual offences, sputum and
sweat, hair samples and finger nail dipping by the use of modern and scientific techniques
including DNA profiling. But the scientific tests such as Polygraph test, Narcoanalysis and
BEAP do not come within the purview of said provisions.
(iii) It would be unjustified intrusion into mental privacy of individual and also amount to
cruel, inhuman or degrading treatment.
(iv) Voluntary administration of impugned techniques are however permissible subject
following safeguards, but test results by themselves cannot be admitted in evidence.
(a) No Lie Detector Tests should be administered except on the basis of consent of the
accused. An option should be given to the accused whether he wishes to avail such test.
(b) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer
and the physical, emotional and legal implication of such a test should be explained to him by
the police and his lawyer.
(c) The consent should be recorded before a Judicial Magistrate.
(d) During the hearing before the Magistrate, the person alleged to have agreed should be
duly represented by a lawyer.
(e) At the hearing, the person in question should also be told in clear terms that the statement
that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status
of a statement made to the police.
(f) The Magistrate shall consider all factors relating to the detention including the length of
detention and the nature of the interrogation.
(g) The actual recording of the Lie Detector Test shall be done by an independent agency
(such as a hospital) and conducted in the presence of a lawyer.
(h) A full medical and factual narration of the manner of the information received must be
taken on record.

The underlying rationale of right against self incrimination is as follows:

(i) The purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony
considered during trial is reliable. The premise is that involuntary statements are more likely
to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice.

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(ii) The right against self-incrimination’ is a vital safeguard against torture and other ‘third-
degree methods’ that could be used to elicit information.
(iii) The exclusion of compelled testimony is important, otherwise the investigators will be
more inclined to extract information through such compulsion as a matter of course. The
frequent reliance on such ‘short cuts’ will compromise the diligence required for conducting
meaningful investigations.
(iv) During trial stage the onus is on the prosecution to prove the charges leveled against the
defendant and the ‘right against self-incrimination’ is a vital protection to ensure that the
prosecution discharges the said onus.10

2.4 PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST

Article 22 (1) of the Constitution provides that a person arrested for an offence under
ordinary law be informed as soon as may be the grounds of arrest. In addition to the
constitutional provision, Section 50 of Criminal Procedure Code also provides for the same.

(i) According to Section 50(1) of Criminal Procedure Code, every police officer or other
person arresting any person without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds for such arrest.
(ii) When a subordinate officer is deputed by a senior police officer to arrest a person under
Section 55 of Criminal Procedure Code, he shall deliver to the officer required to make the
arrest an order in writing, specifying the person to be arrested and the offence or other cause
for which the arrest is made and the officer so required shall, before making the arrest, notify
to the person to be arrested the substance of the order and, if so required by such person, shall
show him the order. Non compliance with this provision will render the arrest illegal.11
(iii) In case of arrest to be made under a warrant, Section 75 provides that the police officer
or other person executing a warrant of arrest shall notify the substance thereof to the person
to be arrested, and if so required, shall show him the warrant. If the substance of the warrant
is not notified, the arrest would be unlawful.

The right to be informed of the grounds of arrest is a precious right of the arrested person.
The grounds of arrest should be communicated to the arrested person in the language

10
Ibid.
11
Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 (Gau)

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understood by him; otherwise it would not amount to sufficient compliance with
constitutional requirements.

2.5 RIGHT TO BE DEFENDED BY A LAWYER

It is one of the fundamental rights enshrined in our Constitution. Article 22 (1) of the
Constitution 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. The right of the accused to have a
counsel of his choice is fundamental and essential to fair trial. The right is recognized
because of the obvious fact that ordinarily an accused person does not have the knowledge of
law and the professional skill to defend himself before a court of law wherein the prosecution
is conducted by a competent and experienced prosecutor. This has been expressed by the
Supreme Court of America in Powell v. Alabama12. The Court observed that “The right to be
heard would be, in many cases, of little avail if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has small and sometimes no skill in the
science of law. If charged with crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel he may be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks
both the skill and the knowledge adequately to prepare his defence, even though he has a
perfect one. He requires the guiding hand of counsel at every step of the proceeding against
him. Without it, though he be not guilty, he faces the danger of conviction because he does
not know how to establish his innocence. If that be true of men of intelligence, how much
more true is it of the ignorant and illiterate, or those of feeble intellect.”13

The Criminal Procedure Code has specifically recognized the right of a person against whom
proceedings are instituted to be defended by a counsel. According to Section 303 of Criminal
Procedure Code, any person accused of an offence before a criminal court, or against whom
proceedings are instituted, may of right be defended by a pleader of his choice.

In Huassainara Khatoon (IV) v. Home Secretary, State of Bihar 14, the Supreme Court has
explicitly observed as follows:

12
287 US 45 (1932)
13
Ibid.
14
(1980) 1 SCC 98

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 “The right to free legal services is, therefore, clearly an essential ingredient of
‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21. This is a constitutional right of every accused person
who is unable to engage a lawyer and secure legal services on account of reasons such as
poverty, indigence or incommunicado situation and the State is under a mandate to provide a
lawyer to an accused person if the circumstances of the case and the needs of justice so
required, provided of course the accused person does not object to the provision of such
lawyer.

It is now therefore clear that unless refused, failure to provide legal aid to an indigent accused
would vitiate the trial, entailing setting aside of conviction and sentence. 15 The right begins
from the moment of arrest i.e. pre-trial stage. The arrestee can also have consultation with his
friends or relatives.

2.6 PERSON ARRESTED TO BE PRODUCED BEFORE THE MAGISTRATE

Article 22 (2) of the Constitution provides that an arrested person must be taken to the
Magistrate within 24 hours of arrest. Similar provision has been incorporated under Section
56 of Criminal Procedure Code. 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.

2.7 PERSON ARRESTED NOT TO BE DETAINED FOR MORE THAN TWENTY-

FOUR HOURS

Section 57 of Criminal Procedure Code provides that:

“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.”

15
Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401

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The right has been further strengthened by its incorporation in the Constitution as a
fundamental right. Article 22(2) of the Constitution provides:
“Every person who is arrested and detained in custody shall be produced before the
nearest Magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the Magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
Magistrate.”

In case of arrest with a warrant, the proviso to Section 76 of the Criminal Procedure Code
provides a similar rule in substance. This provision contained in section 57 of Criminal
Procedure Code enables the Magistrates to keep a check over the police investigation 16. If a
police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention17.

2.8 INFORMATION OF ARREST TO A NOMINATED PERSON

The rules emerging from decisions such as Joginder Singh v. State of U.P.18 and D.K. Basu
v. State of West Bengal19 have been enacted in Section 50-A20.

Section 50-A of Criminal Procedure Code provides:

(1) Every police officer or other person making any arrest under this code shall
forthwith give the information regarding such arrest and place where the arrested person is
being held to any of his friends, relatives or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving such information.

(2) The Police Officer shall inform the arrested person for the purpose of giving such
information of his right under Sub Section (1) as soon as he is brought to police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall
be in a book to be kept in the police station in such form as may be prescribed in this behalf
by the State Government.

16
Khatri (II) v. state of Bihar, (1981) 1 SCC 627
17
Sharifbai vs. Abdul Razak, AIR 1961 Bom 42
18
(1994) 4 SCC 260
19
(1997) 1 SCC 416
20
Section 50-A inserted in 2005 effective from 23-6-2006.

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 (4) It shall be the duty of Magistrate before whom such arrested person is proceed, to
satisfy himself that the requirement of sub-section (2) and Sub-Section (3) have been
complied with in respect of such arrested person.

These rights are inherent in Article 21 and 22 of the Constitution and are required to be
recognized and scrupulously protected.

2.9 RIGHT TO BAIL

The release on bail is crucial to the accused as the consequences of pre-trial detention are
grave. If release on bail is denied, it would mean that though he is presumed to be innocent
until proven guilty.

Justice Krishna Iyer aptly remarked that “the issue of bail is one of liberty, justice, public
safety and burden of public treasury all of which insist that a developed jurisprudence of bail
is integral to a socially sensitized judicial process”.
Maintaining that bail is the rule and jail an exception 21, the Supreme Court has time and again
said that deprivation of liberty must be considered a punishment.

There is no definition of bail in the Criminal Procedure Code, although the terms ‘bailable
offence’ and ‘non-bailable offence’ have been defined in section 2(a) Cr.P.C. Bail has been
defined in the law lexicon as security for the appearance of the accused person on giving
which he is released pending trial or investigation.

In Hussainara Khatoon v State of Bihar22, Justice Bhagwati found that the unfortunate under
trials languished in prisons not because they were guilty but because they were too poor to
afford bail. He thus ordered the release of persons whose period of imprisonment had
exceeded the period of imprisonment for their offences. He brought into focus the failure of
the Magistrates to respect section 167(2) of the Criminal procedure Code which entitles an
under trial to be released from prison on the expiry of 60 days or 90 days as the case may be.

In Sant Bir v. State of Bihar23, the Court recognised the inequitable operation of the law and
condemned it - "The rule of law does not exist merely for those who have the means to fight
for their rights and very often for perpetuation of status quo but it exists also for the poor and
21
Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240
22
Supra note 13.
23
AIR 1982 SC 1470

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the downtrodden and it is the solemn duty of the Court to protect and uphold the basic human
rights of the weaker sections of society.” In Mantoo Majumdar v. State of Bihar 24 the Apex
Court once again upheld the under trials’ right to personal liberty and ordered the release of
the petitioners on their own bond and without sureties as they had spent six years awaiting
their trial, in prison.

Besides the constitutional provisions, the provisions of Cr.P.C. also need to be discussed for a
better understanding of the bail provisions which are as under:

 Bail in Bailable Cases: Section 436(1) affirms the right of a person accused of a
bailable-offence to be released on bail. The section makes it clear that when any person
accused of a bailable offence is arrested or detained without warrant, and is prepared at
any time while in the custody of such officer or at any stage of the proceeding before such
Court to give bail; such person shall be released on bail.

The words ‘shall be released on bail’ denotes that it is mandatory upon the Magistrate to give
bail. He would have no discretion to impose any conditions, the only discretion that is left in
him is as to the amount of the bond or whether the bail could be on his bond or with sureties.

Besides that the proviso to section 436(1) makes provison for the bail of an indigent person
stating that if such person is indigent and in unable to furnish surety, instead of taking bail
from such person he may, and shall be discharged on his executing a bond without sureties
for his appearance. Moreover for the definition of the term ‘indigent’ the explanation
provides that where a person is unable to give bail within a week of the date of his arrest, it
shall be a sufficient ground for the officer or the Court to presume that he is an indigent
person for the purposes of this proviso.

 Bail in Non-Bailable Cases: Bail, in non-bailable offences, is not a matter of right of the
accused person. Section 437 of the Code of Criminal Procedure envisages the provision
as regards bail in case of non-bailable offences, stating that the Magistrate may release an
accused on bail, if such accused appears before the Magistrate.

The proviso provides for some special considerations while granting bail in such cases like:
24
1980 AIR 847

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 If such person is under the age of sixteen years or;

 Is a woman or is sick or;

 An infirm

The Supreme Court, while dealing with Section 437 of CrPC, is of the view that though this
Section gives special consideration to a woman, it cannot be considered to be a mandatory
provision25.

 Bail on Default: With the incorporation of section 167(2) of Cr.P.C, the investigating
agency is required to complete the job of investigation and file the charge-sheet within the
time limit of either 60 or 90 days as the case may be. In case the above is not completed
within the definite period, the accused is entitled to be released on bail.

The whole object of providing a prescribed time limit under section 167(2) Cr.P.C. to the
investigation agency to complete the investigation is that the accused should receive
expeditious treatments at the hands of the criminal justice system, as it is implicit in Article
21 that every accused has right to an speedy disposal of his case.

2.10. RIGHT TO FREE LEGAL AID

The state is under a constitutional mandate (implicit in Article 21 of the Constitution, explicit
in Article 39-A of the Constitution) to provide free legal aid to indigent accused persons.
Section 304 of the Code of Criminal Procedure also provides such a right to the accused. It
states that:

“(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.
…”

A failure to inform the accused of this right and non compliance with this requirement would
vitiate the trial as held in Sukhdas vs. Union Territory of Arunachal Pradesh.26 In Khatri

25
Gurubaksh Singh Sibba v. State of Punjab, AIR 1980 SC 1632
26
(1986) 2 SCC 401

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(II) vs. State of Bihar27, the Supreme Court has held that the State is under a constitutional
mandate to provide free legal aid to an indigent accused person, and that their constitutional
obligation to provide legal aid does not arise only when the trial commences but also when
the accused is for the first time produced before the Magistrate as also when he is remanded
from time to time. The Apex Court has therefore cast a duty on all Magistrate and courts to
inform the indigent accused about his right to get free legal aid.

In 1987, Legal Services Authorities Act was enacted to give a statutory base to legal aid
programmes throughout the country on a uniform pattern. The National Legal Services
Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to
provide free Legal Services to the weaker sections of the society and to organize Lok Adalats
for amicable settlement of disputes.28

In every State, State Legal Services Authority has been constituted to give effect to the
policies and directions of the NALSA and to give free legal services to the people and
conduct Lok Adalats in the State. The State Legal Services Authority is headed by Hon’ble
the Chief Justice of the respective High Court who is the Patron-in-Chief of the State Legal
Services Authority.29

In every District, District Legal Services Authority has been constituted to implement legal
services programmes in the district. The District Legal Services Authority is situated in the
District Courts Complex in every District and chaired by the District Judge of the respective
district.30 These authorities provides legal aid to the needy persons including accused,
convicts and victims of criminal cases.

2.11. EVIDENCE TO BE TAKEN IN PRESENCE OF THE ACCUSED

The personal presence of the accused throughout the trial would enable him to understand
properly the prosecution case as it is unfolded in the court. This would facilitate in the
making of the preparations for his defence. A criminal trial in the absence of the accused is
unthinkable. A trial and a decision behind the neck of the accused person is not contemplated
by the Code, though no specific provision to that effect is found therein. The requirement of
the presence of the accused during his trial can be implied from the provisions which allow
27
Supra Note 15.
28
J.N. Pandey, Constitutional Law of India, Central Law Agency Allahabad, 51st Edition, 2014.
29
Ibid.
30
Ibid.

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the court to dispense with the personal attendance of the accused person under certain
circumstances.

Section 273 of Criminal Procedure Code requires that the evidence is to be taken in the
presence of the accused person; however, the section allows the same to be taken in the
presence of the accused’s pleader if the personal attendance of the accused person is
dispensed with.

Fair trial requires that the particulars of the offence have to be explained to the accused
person and that the trial is to take place in his presence. Therefore, the section makes it
imperative that all the evidence must be taken in the presence of the accused, failure to do so
would vitiate the trial, and the fact that no objection was taken by the accused is immaterial.

Evidence given by witnesses becomes more reliable if given on oath and tested by cross-
examination. A criminal trial which denies the accused person the right to cross-examine
prosecution witnesses is based on weak foundation, and cannot be considered as a fair trial.31

Though the burden of proving the guilt is entirely on the prosecution and the law does not
require the accused to lead evidence to prove his innocence, yet a criminal trial in which the
accused is not permitted to give evidence to disprove the prosecution case, or to prove any
special defence available to him, cannot be considered as just and fair. The refusal without
any legal justification by a Magistrate to issue process to witnesses named by the accused
person was held enough to vitiate the trial.32

The right created by the section is further supplemented by Section 278 of Criminal
Procedure Code. It provides that wherever the law requires the evidence of a witness to be
read over to him after its completion, the reading shall be done in the presence of the accused,
or of his pleader if the accused appears by pleader, and shall, if necessary, be corrected.

If any evidence is given in a language not understood by the accused person, the bare
compliance with Section 273 of Criminal Procedure Code will not serve its purpose unless
the evidence is interpreted to the accused in a language understood by him. Section 279 of
Criminal Procedure Code provides that:

31
Sukhrah v. State of Rajasthan, AIR 1967 Raj 267
32
Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51

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(1) Whenever any evidence is given in a language not understood by the accused, and he is
present in Court in person, it shall be interpreted to him in open Court in a language
understood by him.

(2) If he appears by pleader and the evidence is given in a language other than the language
of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that
language.

(3) When documents are put for the purpose of formal proof, it shall be in the discretion of
the Court to interpret as much thereof as appears necessary.

However, non-compliance with Section 279(1) of Criminal Procedure Code will be

considered as mere irregularity not vitiating the trial if there was no prejudice or injustice
cause to the accused person.33

2.12. RIGHT TO GET COPIES OF POLICE REPORT AND OTHER DOCUMENTS

According to Section 207 of Criminal Procedure Code the magistrate is under an imperative
duty to furnish to the accused, free of cost, copies of statements made to the police and of
other documents to be relied upon by the prosecution. The object of furnishing the accused
person with copies of the statements and documents as mentioned above is to put him on
notice of what he has to meet at the time of the inquiry or trial and to prepare himself for his
defence.34 The right conferred on the accused is confined to the documents enlisted in the
section and does not extend to other documents.

In cases where cognizance of the offence has been taken otherwise than on a police report,
the case is not ordinarily investigated by the police and naturally there are no statements
recorded by the police. Therefore the valuable right given to the accused by Section 207
Criminal Procedure Code regarding the supply of copies would not be available in such
cases. In the absence of any preliminary inquiry preceding trial, and when no police record is
available to the accused person before his trial, it might cause considerable hardship to the
accused to prepare himself for his defence, particularly when the offence alleged is a serious
one exclusively triable by the court of session. Section 208 of Criminal Procedure Code tried
to remove this hardship and enables the accused to know the case made against him and to
33
Shivanarayan Kabra v. State of Madras, AIR 1967 SC 986
34
Gurbachan Singh v. State of Punjab, AIR 1957 SC 623

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prepare for his defence. Section 207 and 208 of Criminal Procedure Code deals with supply
to the accused of copy of police report and other documents and supply of copies of
statements and documents to accused in other cases triable by Court of Session respectively.

According to Section 238 of Criminal Procedure Code at the time of commencement of the
trial in a warrant case it is the duty of the Magistrate to satisfy himself that he has complied
with the provisions of Section 207 of Criminal Procedure Code However in a summons case
instituted on a police report no such duty has been specifically cast on the Magistrate
conducting the trial. However free copies have to be supplied to the accused in such cases by
the Magistrate in view of the imperative duty created by Section 207 of Criminal Procedure
Code. If the copies of the statements etc. are not supplied to the accused person as required
by Section 207 of Criminal Procedure Code, it is undoubtedly a serious irregularity, however
this irregularity in itself will not vitiate the trial. It will have to see whether the omission to
supply copies has in fact occasioned a prejudice to the accused person in his defence. If it is
found in positive, the conviction of the accused person must be set aside, and a fair retrial
after furnishing to the accused all the copies to which he is entitled must be ordered.35

2.13. RIGHT TO CROSS-EXAMINE PROSECUTION WITNESSES AND TO

PRODUCE DEFENCE EVIDENCE

Evidence given by witnesses may become more reliable if given on oath and tested by cross
examination. A criminal trial which denies the accused person the right to cross-examine
prosecution witnesses is based on weak foundation, and cannot be considered as a fair trial.36
It is mandatory that every accused must have assistance of counsel during the time of
examination of prosecution witnesses.

In Mohd. Hussain @ Julfikare Ali v. The State (Govt. of NCT) Delhi37, it was held that
right to have counsel at the cost of state where accused is unable to engage a counsel is part
of fair trial. The right of a person charged with crime to have the services of a lawyer is
fundamental and essential to fair trial. The right to cross-examine a witness apart from being
a natural right is statutory right.

35
Section 465 of Criminal Procedure Code, 1973
36
Sukanraj v. State of Rajasthan, AIR 1967 Raj 267
37
AIR 2012 SC 750

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In Mohd. Sukur Ali v. State of Assam 38, it was held that a criminal case should not be
decided against accused in the absence of the Counsel. An accused in criminal case should
not suffer for the fault of his counsel and in such a situation appoint another counsel as
amicus curiae to defend the accused.

In A.S. Mohammed Rafi v. State of Tamil Nadu rep. by Home Dept. and others39, it was
held that Professional ethics requires that a lawyer cannot refuse a brief, provided a client is
willing to pay his fee and lawyer is not otherwise engaged. Bar cannot pass a resolution that
none of the lawyer shall appear for a particular person whatsoever heinous crime he has
committed. Chapter II of the rules by Bar council of India states about "standards of
Professional conduct and etiquette."

An advocate is bound to accept any brief in the Court or tribunal or before any of the
authorities in or before which he proposed to practice at a fee consistent with his standing at
the Bar and the nature of the case. Special circumstances may justify his refusal to accept a
particular brief. Though the burden of proving the guilt is entirely on the prosecution and
though the law does not require the accused to lead evidence to prove his innocence, yet a
criminal trial in which the accused is not permitted to give evidence to disprove the
prosecution case, or to prove any special defence available to him, cannot be any standard to
be considered as just and fair. The refusal without any legal justification by a Magistrate to
issue process to witnesses named by the accused person was held enough to vitiate the trial.40
2.14. RIGHT TO SPEEDY TRIAL

Justice delayed is justice denied. This is all the more true in a criminal trial where the accused
is not released on bail during the pendency of the trial and trial is inordinately delayed.
However, the code does not in so many words confer any such right on the accused to have
his case decided expeditiously. Section 437(6) of Criminal Procedure Code provides that if
the accused is in detention and the trial is not completed within 60 days from the first date
fixed for hearing he shall be released on bail. But this only mitigates the hardship of the
accused person but does not give him speedy trial and secondly this rule is applicable only in
case of proceedings before a Magistrate.

38
AIR 2011 SC 1222
39
AIR 2011 SC 308
40
Habeeb Mohd v. State of Hyderabad, AIR 1954 SC 51

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The code has given a more positive direction to courts when it says: in every inquiry or trial
the proceedings shall be held as expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall be continued from day to day until
all the witnesses in attendance have been examined unless the court finds the adjournment of
the same beyond the following day to be necessary for reasons to be recorded 41. A criminal
trial which drags on for unreasonably long time is not a fair trial. Section 309(1) of Criminal
Procedure Code gives directions to the courts with a view to have speedy trials and quick
disposals. The right of the accused in this context has been recognized but the real problem is
how to make it a reality in actual practice. The provisions with regard to limitation help the
accused to certain extent.

In Hussainara Khatoon vs. State of Bihar42, the Supreme Court considered the problem in
all its seriousness and declared that speedy trial is an essential ingredient of ‘reasonable, fair
and just’ procedure guaranteed by Article 21 and that it is the constitutional obligation of the
state of devise such a procedure as would ensure speedy trial to accused. The State cannot
avoid its constitutional obligation to provide speedy trial to the accused by pleading financial
or administrative inability. The State is under a 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,
to enforce the fundamental right of the accused to speedy trial by issuing necessary directions
to the State.43

The right to speedy trial came to receive examination in the Supreme Court in Motilal Saraf
v. State of J&K44. Dismissing a fresh complaint made after 26 years of an earlier complaint
the Supreme Court explained the meaning and relevance of speedy trial right as:
“The concept of speedy trial is read into Article 21 as an essential part of the
fundamental right to life and liberty guaranteed and preserved under our Constitution. The
right to speedy trial begins with actual restraint imposed by arrest and consequent
incarceration, and continues at all stages, namely, the stage of investigation, inquiry, trial,
appeal and revision so that any possible prejudice that may result from impressible and

41
Section 309(1) Criminal Procedure Code, 1973
42
Supra note 13
43
S. Guin v. Grindlays Bank Ltd., (1986) 1 SCC 654
44
(2007) 1 SCC (Cri) 180

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avoidable delay from the time of the commission of the offence will if consummates into a
finality, can be averted.”45

2.15. COMPENSATION FOR WRONGFUL ARREST

The accused persons have a right to compensation for groundless arrest. Section 358 of the
Criminal Procedure Code empowers the court to order any person to pay compensation to
another person for causing a police officer to arrest such other person wrongfully. Usually it
is the police officer who investigates and makes the arrest and the complainant, if at all can
be considered to have a nexus with the arrest, it is rather indirect or remote. For applying
Section 358 some direct and proximate nexus between the complainant and the arrest is
required. It has been held that there should be something to indicate that the informant caused
the arrest of the accused without any sufficient grounds.
In Nilabati Behara v. State of Orissa46, Justice J.S. Verma stressing the right to remedy in
gross violation of fundamental rights and referring to Article 9(5) 47 of the ICCPR held that
anyone who has been victim of an unlawful detention or arrest shall have an enforceable right
to compensation.

In Bhim Singh vs. State of J & K & Ors. 48, the Apex court held that holding illegal detention
in police custody of the petitioner Bhim Singh is violative of his rights under Articles 21 and
22(2) of the Constitution, and in exercise of its power to award compensation under Article
32, directed the State to pay monetary compensation.

In Rudal Shah49case, it was held that a claim for compensation for contravention of human
rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is
an acknowledged remedy for enforcement and protection of such rights, and such a claim is
based on strict liability made by resorting to a constitutional remedy provided for the
enforcement of a fundamental right.

The Supreme Court has held in its various judgments that it is imperative to state that it is the
sacrosanct duty of the police authorities to remember that a citizen while in custody is not

45
Ibid.
46
1993 AIR SC 1960
47
Article 9(5) of International Covenant on Civil and Political Rights: Anyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to compensation.
48
AIR 1986 SC 494
49
Rudal Shah v State of Bihar  1983 AIR 1086

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denuded of his fundamental rights under Article 21 of the constitution. The restrictions
imposed have the sanction of law by which his enjoyment of fundamental right is curtailed
but his basic human rights are not crippled so that the police officers can treat him in an
inhuman manner. On the contrary, they are under obligation to protect his human rights and
prevent all forms of atrocities.

2.16. RIGHT OF APPEAL

The Supreme Court has rightly observed:

“One component of fair procedure is natural justice. Generally speaking and subject
to just exceptions, at least a single right of appeal on facts, where criminal conviction is
fraught with loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure,
natural justice and normative universality save in special cases like the original tribunal
being a high bench sitting on a collegiate basis. In short, a first appeal as provided in the
Criminal Procedure Code, manifests this value upheld in Article 21.”50

Appeal is one of the two important review procedures. An appeal is a complaint to a superior
court of an injustice done or error committed by an inferior one, whose judgment or decision
the court above is called upon to correct or reverse.51 An appeal is a creature of statute and
there can be no inherent right of appeal from any judgment or determination unless an appeal
is expressly provided for by the law itself.

50
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544
51
Black’s Law Dictionary, 4th Ed., p. 124

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CONCLUSION

The aforementioned paragraphs throw light on the collective concern of all the countries in
relation to the preservation of rights of an accused person. Until a crime is proved, the
accused is entitled to the life of an innocent. An accused is someone who’s on the middle
ground, he can’t be left free on the apprehension of him being the actual culprit and he can’t
be given stringent treatment for he can also be an innocent. Hence, the legal system very
cautiously crafts the rights to be associated with an accused. The present paper carries a
comparative study of rights of accused in India,. All these three countries follow the
‘innocent until proven guilty’ rule. Quite interestingly, India has the most vast variety of
protections bestowed to accused persons in comparison to the other two countries. But it
lacks in their implementation. On the contrary, have limited laws to protect the interest of
accused person(s) but their implementation is so strong that it fills the gap for limited laws in
practice. India is deeply affected by its corruption and illiteracy issues, a major part of our
population is unaware of their basic rights let alone even considering that there can be any
rights even for the person accused of a crime. The absence of awareness and presence of
illegal practices has contributed immensely in the deteriorating situation of people under trial.
We are the world’s largest Democracy, our Constitution works on the fundamental principle
of welfare and yet we witness the injustice happening to under trials each day. Our country
should learn how to make the most from the least from USA and UK, only then we can look
forward to a better and less unfortunate future for our under trial persons.

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BIBLIOGRAPHY

[BOOKS]

1. Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 51st Edition, 2014.
2. C.K. Thakker and M.C. Thakker, Criminal Procedure, Lexis Nexis, 4th Edition, 2015.
3. R.V. Kelkar, Lectures On Criminal Procedure, Eastern Book Company, 4th Edition,
2006

[STATUTES]
1. Constitution of India
2. Code of Criminal Procedure, 1973

[WEB SOURCES]
 https://courses.lumenlearning.com/boundless-politicalscience/chapter/the-rights-of-
the-accused/
 https://www.shoneekapoor.com/primary-rights-accused-person-criminal-trial/
 https://www.getlegal.com/legal-info-center/criminal-law/fundamental-rights-of-the-
accused/
 http://www.legalserviceindia.com/legal/article-219-rights-of-accused-persons.html
 https://www.citizensadvice.org.uk/law-and-courts/civil-rights/human-rights/what-
rights-are-protected-under-the-human-rights-act/your-right-to-a-fair-trial/
 https://www.myadvo.in/blog/rights-of-accused-in-india/
 https://www.ohchr.org/Documents/Publications/training9chapter6en.pdf
 http://shodhganga.inflibnet.ac.in/bitstream/10603/39088/9/09_%20chapter%203.pdf

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