RIGHTS OF ACCUSED: Aishwarya Katkar

The basic structure of the Indian constitution is the concept of a free and fair trial is the constitutional commitment drafted in our preamble and so it is considered as natural justice, even the accused or guilty person is treated with humane treatment. Since every person is treated equally the prosecution must prove the allegations of the accused beyond the reasonable doubt, and so accused are granted certain rights under the constitution and under other laws. The accused must be protected against the arbitrary and illegal arrest.

Rights of the accused are divided into two categories:
1. Rights under constitution
2. Rights under other laws
I] Rights under the constitution
a) Rights to a fair trial: Article 14 of the Constitution, guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. Every accused is entitled to be informed by the court before taking the evidence that he is entitled to have his case tried by another court and if the accused subsequently moves such application for transfer of his case to another court the same must be transferred. However, the accused has no right to select or determine by which other court the case is to be tried.
b) Right against self-incrimination: The fundamental principle of our law is let the hundreds go unpunished but never punish an innocent, Article 20 of the Indian Constitution is based on the same, it gives, Protection in respect of conviction for offences. It further provides;
(1) No person shall be convicted of any offence except for violation of the 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.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
II] Rights of accused under other laws

The essential ingredient of criminal trial says, until and unless the charge is proved against the accused without any reasonable doubt he is considered as innocent. Every person is entitled to basic human rights, the fundamental rights under the Indian Constitution and under various laws are also provided to the accused. Rights are given to all, irrespective if a person is accused of a crime. The rights of the accused in India includes the rights of an arrested person before his/her trial begins, rights of accused during a court trial, and the rights of an arrested person in India after his/her trial is completed.

A. Pre-trial rights of accused: The initial stage of a trial is an FIR is filed on the basis of which the police arrests a person, searches his property. The stage prior to the commencement of a court trial is critical and any person accused of a crime must be granted the following rights:

1. Right to information (accusations and charges): The rights of an arrested person under Cr.P.C. include to know the details of the offence and the charges filed against him/her. Where a person arrested without a warrant has the right to know full particulars of the offence for which he is arrested. In the case where accused is arrested with a warrant must be notified about the offence and warrant must be shown if needed. The Constitution of India also confers this right as one of the fundamental rights. Article 22(2) of the constitution provides that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”

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

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

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

2. Right against wrongful arrest: The rights of the accused in India are provided only in cases where a warrant is issued. Section 57 of Cr.P.C. and Article 22(2) of Constitution provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest.

3. Right to privacy and protection against unlawful searches: The police officials cannot violate the privacy of the accused on a mere presumption of an offence. As per rights of the accused, his/her property cannot be searched by the police without a search warrant.

4. Right against double jeopardy: A person cannot be prosecuted and punished for the same offence more than once as per Article 20(2) of the Constitution.

5. Right against the ex-post facto law: The rights of the accused also gives a person the authority where he/she cannot be tried for an offence that was earlier a crime and now is not. This means that retrospective effect a law is not applicable. An act that was not a crime on the day when it was done, cannot be considered as an offence.

6. Bail: An accused person has the right to file a bail application to be released from jail custody. There are three kinds of bail under Indian law- anticipatory bail, interim bail and bail by a bond. A bail application for normal bail can be filed only in case of bailable offences. However, a person can also file an anticipatory bail through his criminal lawyer, before his arrest. A person who is arrested without a warrant and is accused of a bailable offence has to be informed by the police officer that he is entitled to be released on bail on payment surety amount. Any person who is to be arrested without a warrant and is not accused of a non-bail able offence has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount. This helps persons who are arrested for bailable offences and are not aware of their right to be released on bail.

7. Right to legal aid: The right of the accused person allows him/her to hire a lawyer to defend him and in case, he is not able to afford a lawyer, the State has to provide free legal aid to him for his representation in court. It is an obligatory statement on all magistrate and courts to inform to the accused of his free legal aid.
In Khatri(II) v. the State of Bihar, SC has held that the state is under a constitutional obligation (implicit in Article 21) to provide free legal aid to an indigent accused person as is implicit in Article 21 of the Constitution. This right does not come into picture only at the time of trial but exists at the time when the accused is produced the first time before the magistrate, as also when remanded from time to time. The Supreme Court further states that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid.

8. Right to a free and expeditious trial: The rights of the accused includes to have an expeditious trial, which is free of any bias or prejudice. Justice delayed is justice denied hence, this right was introduced. Though this right has not been specifically mentioned in the Constitution, however, the SC in the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be conducted “as expeditiously as possible.” In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused is arrested, the investigation for the trial has to be completed within the period of six months or stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.

B. Rights of accused during the trial: There are many rights of the accused provided for the time period when his trial is ongoing in the court. It has been observed that the State has 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. The rights of the accused during the trial include the following:
1. Right to be present during the trial: Section 273 of the Code provides that all evidence and statements must be recorded in presence of the accused or his criminal lawyer. This section states the accused person has the right to be present during the trial and have testimony presented in front of him.
2. Right to get Copies of Documents: The accused has the right to receive copies of all the documents filed by the prosecutor in relation to the case.
3. Right to cross-examination: The accused has the right to be cross-examined by the prosecutor to prove his innocence. Section 311 of Cr.P.C gives the accused and the prosecution full right u/s 243(2) of Cr.P.C If the accused applies to magistrate to issue any process for calling for the purpose of examination or cross-examination or the production of any document or other thing, the magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made on purpose of vexation or delay such ground shall be recorded by him in writing.
C. Post-trial rights of accused:
An accused person also has certain rights once his trial is over. These rights of the accused depend upon the outcome of his trial, i.e. whether he has been acquitted by the court, or he has been held guilty and arrested by police. When a person is declared innocent and acquitted by the court, the following rights are given to him:
1. Right to get a copy of the judgment.
2. Right to receive protection from police if there are reasons to believe there is a threat to his life post-acquittal.
3. The rights of arrested persons include the right to file an appeal against his conviction in a higher court.
4. The accused has a right to have all his human rights when in prison and be subjected to humane treatment by the prison authorities.
5. Right to have Family Visits in Jail
6. Right against solitary confinement.

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