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TABLE OF CONTENTS

Acknowledgments 2

Declaration 3

INTRODUCTION................................................................................................................................. 2
OBJECTIVE OF STUDY .................................................................................................................... 3
SCOPE OF THE STUDY ..................................................................................................................... 3
RESEARCH METHODOLOGY ........................................................................................................ 3
RIGHTS OF ACCUSED UNDER THE CONSTITUTION OF INDIA .......................................... 4
RIGHTS OF ACCUSED UNDER THE CODE OF CRIMINAL PROCEDURE .......................... 7
RIGHTS OF THE ACCUSED IN INDIAN CRIMINAL TRIAL .................................................... 8
CONCLUSION ..................................................................................................................................... 9
REFERENCES .................................................................................................................................... 10
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INTRODUCTION

The term "accused" has not been specifically defined in the code but what we generally
understand is that the accused means the person charged with an infringement of the law for
which he is liable and if convicted then to be punished. In other words, an accused is a person
who is charged with the commission of offence. The Oxford Dictionary defines accused as, a
person or group of people who are charged with or on trial for a crime. An offence is defined
as an act or omission made punishable by any law for the time being in force.

An accused cannot have similar footing with the convicted person. In the Bill of Rights
Ordinance, 1991 affirms that every accused has a right to be presumed innocent until his guilt
is proved. Thus, the accused person has every right like other citizen of the country except his
curtailment of person liberty in conformity with laws. The basic difference is that an accusation
has been made against the accused person for violation of law or offence prevalent in the
country. The rights of the accused person are of much concern today. Belatedly though, it has
been observed the blatant and flagrant violation of their rights in different stages. The
implication of Article 21 of the Constitution of India is that a person could be deprived of his
life or personal liberty only in accordance with procedure established by law. As per Article 22
of Constitution of India, a person who is arrested for whatever reason gets three independent
rights. The first is the right to be told or informed the reasons for the arrest as soon as an arrest
is made, the second is the right to be produced before a Magistrate within 24 hours and the
third is the right to be defended by an advocate of his choice.

The Third Report of the National Police Commission identifies the wrongful use of arrest
powers as one of the chief sources of corruption in the police and that nearly 60% arrests made
by police officers are unnecessary and unjustified. The said report strongly opposed the practice
of carrying out indiscriminate arrests. The Honble Supreme Court of India said that an arrest
cannot be made simply because it is lawful for a police officer to do so. Arrest and detention
in police lock up can cause incalculable harm to the reputation and self-esteem of a person.
Therefore, arrest should not be made in a routine manner on mere allegation that a person has
committed an offence.
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OBJECTIVE OF STUDY

The objective of the researchers study on this topic is to dissect and give a holistic analysis of
the various aspects of the Rights of Accused in the Context of Criminal Jurisprudence in India.
This project analysis various provisions related to this aspect, under the Indian Constitution
and the procedural law.

SCOPE OF THE STUDY

The scope of this study has been to throw light on the Rights of Accused in India. The
researchers have analysed the relevant provisions in Constitution of India, 1950 and the Code
of Criminal Procedure, 1973

RESEARCH METHODOLOGY

The nature of research methodology adopted by the researcher for this particular topic is purely
doctrinal. The researcher has used resources available at the library of HNLU and the World
Wide Web. Thus, the researcher of this project has used secondary data for the successful
completion of this project. No primary data has been included.
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RIGHTS OF ACCUSED UNDER THE CONSTITUTION OF INDIA

The meaning of the term accused and the basis of the recognition of various human rights to
an accused have been discussed. It has been observed that the concept of the rights of an
accused person is mainly based on principles of natural justice and thus is time immemorial
but it had assumed much importance at the international level from 1948 onwards due to
Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political
Rights, 1966 and many other international documents and at the national level due to the
various fundamental rights guaranteed under the Constitution of India.

Rights of Accused recognised and guaranteed by the Constitution of India:

The Universal Declaration of Human Rights, 1948, recognised certain human rights of an
individual, including an accused. The Code of Criminal Procedure enacted in 1898 (as amended
in 1973) also contained many provisions giving various rights to an accused. The Indian
Constitution, in tune with the International endeavours, provided four basic principles to
govern the criminal justice system, viz, (i) presumption of innocence, (ii) prevention of ex-post
facto operation of criminal law, (iii) protection against double jeopardy and (iv) due process
concept. Over and above, the right of equality and equal protection of laws, has been
guaranteed to every citizen as a fundamental right. The main rights of an accused which have
been recognised and guaranteed by the Constitution may be stated as under:

1. Right of equality and equal protection of laws


2. Right against ex-post facto operation of law
3. Protection against double jeopardy
4. Protection against self-incrimination
5. Right to have freedom from unwanted arrest and matters incidental thereto
6. Right to legal defence
7. Right to have public and speedy trial
8. Right relating to pre-trial detention and matters incidental thereto
9. Right to approach higher judicial authority for filing appeal, etc.

Right of equality and equal protection of laws

The concept of equality as enshrined in Article 14 of the Constitution of India prohibits the
state from denying equality before the law or the equal protection of the laws to any person on
the ground of caste, creed, faith, race, religion, birth and place. The effective derivative source
of the doctrine in the criminal justice is Article 21 of the Constitution of India which provides
that: No person shall be deprived of his life or personal liberty except according to the
procedure established by law. In a criminal trial, there are two parties: the state and the
individual. However, both the parties are unmatching in their strength and resourcefulness, in
which the individual, i.e., accused, is placed in a disadvantageous position. The role of the
doctrine of equality becomes more significant in the context of the rights of a person who
happens to be an accused of having committed a crime. This doctrine aims to achieve equality
amongst unequal in prohibiting every kind of unjust, undeserved and unjustified inequalities in
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the administration of justice. As the right of equality and the equal protection of laws are
to be secured through the instrumentalities of the state, the possible state actions do not conflict
with the fundamental right of quality guaranteed against the state.

Protection against Ex-post Facto operation of Criminal Laws

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. Clause (1) of the Article 20 imposes a limitation
on the law-making power of the legislature and prohibits the legislature to make retrospective
criminal laws. However, it does not prohibit the imposition of civil liability retrospectively,
i.e., with the effect from past date. Article 20(1) runs as under:

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.

Protection against Double Jeopardy

Clause (2) of article 20 of the Constitution recognises another important Human Right as a
fundamental right of every citizen when it provides that: No person shall be prosecuted and
punished for the same offence more than once. This clause embodies the common law rule of
nemo debt visvexaria which means no man could be put twice in peril for the same offence.
If he is prosecute again for the same offence for which he has already been prosecuted he can
take complete defence of his former conviction. This right is also provided in the CrPC,1973.

Protection 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. In other words, this Article prohibits all kinds of compulsions
to make a person accused of an offence a witness against himself.

Right to have freedom from unwanted Arrest and matters incidental thereto

The arrest of a person has serious implications as it amounts to depriving him of his personal
liberty. Protection of personal liberty of an individual is his basic human right and, thus, in
order to protect his human right relating to dignity of a person while arrest, the Supreme Court
has interpreted Article 21 of the Constitution in favour of the accused. In India, arrest can be
made with a warrant or without one. In the former case, there is already application of mind by
judicial authority, while in the latter case; such arrested person is required to be brought within
24 hours of arrest before the judicial authority
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Right to be produced before a Magistrate

Clause (1) of Article 2 of the constitution also provides that the arrested person must be
produced before the Magistrate within 24 hours of his arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate. The time can be extended
beyond 24 hours only under the judicial custody. It affords a possibility, if not an opportunity,
for immediate release in case the arrest is not justified.

No detention beyond 24 hours except by order of the Magistrate

It is also provided that if there is a necessity of detention beyond 24 hours, it is only possible
under judicial custody. The expressions arrest and detention in Articles 22(1) and (2) were
held non applicable to a person arrested under a warrant issued by the court on a criminal or
quasi-criminal complaint or under security proceedings. Article 22 is not designed to give
protection against the act of the executive or order of non-judicial authorities but applies to a
person who has been accused of a crime or offence of criminal or quasi-criminal nature or of
some act prejudicial to the state or public interest. Exception to the clause (3) of Article 22
provides two exceptions to the rule contained in clause (1) and (2) and rights mentioned above
are not available to an enemy, alien and a person arrested and detained under Preventive
Detention Law.

Right to have Legal Defence

No person who is arrested shall be denied the right to consult and to be defended by a legal
practitioner of his choice is the mandate enshrined in Article 22(1) of the Constitution. This
right is also granted by section 303 of the Code of Criminal Procedure, 1973. It has been held
by the courts that this right to have a lawyer of his choice accrues to the arrested person from
the time of his arrest. The accused may refuse to have a lawyer but the court has to provide an
amicus curie to defend him in serious cases.

Right to Approach Higher Judicial Authority by way of filing Appeal, etc.

The Constitution of India has envisaged an appeal to the Supreme Court in Criminal matters.
Articles 132 and 134 of the Constitution provide for an appeal to the Supreme Court on the
certificate of fitness granted by the high courts and also for an appeal to the Supreme Court
by special leave granted by it under Article 136 of the Constitution; but the appeal by special
leave may be filed only when certificate applied for filing an appeal has been refused by the
High Court.
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RIGHTS OF ACCUSED UNDER THE CODE OF CRIMINAL PROCEDURE

Observing the trend of judiciary, it can be said that in most of the judgments of 1990s, between
the rights of accused and justice to victim, the pendulum shifted to the rights of accused and
now it is being balanced.

The aim of criminal law is to protect the right of individuals and the state against the intentional
invasion by others, to protect the weak against the strong; the law abiding against the lawless.
To ensure free and fair trial so that an innocent person may not be victimized, an accused person
is entitled to certain basic rights and privileges to defend himself and prove his innocence
before he is condemned and punished. The three basic principles of criminal law are:

Firstly, that every person is presumed to be innocent until proven guilty,


Secondly, that the burden of proving the guilt of the accused lies heavily on the
prosecution and it must be discharged beyond reasonable doubt; and
Thirdly, the benefit of doubt is accorded to the accused coupled with the privilege of
silence.

Hence, the rights of the accused are given utmost importance and are sacrosanct. Along with
the provisions of our Constitution and the Code of Criminal Procedure, several leading cases
have laid down the basic rights of the accused. Though, the basic human rights of the accused
ought to be given important, the balance between them and the rights of the victims need to be
maintained.

DUTY OF THE MAGISTRATE WHEN THE ACCUSED IS PRODUCED

When the arrested person is produced before the Magistrate, he has a duty to enquire
with the accused as to when he was arrested and the treatment meted out to him
including subjecting him to third degree methods, and about the injuries if any on his
body.
Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the course
of an investigation under this Chapter or under any other law for the time in force, or at
any time afterwards before the commencement of the inquiry or trial: Provided that any
confession or statement made under this subsection may be also recorded audio-video
electronic means in the presence of the advocate of the person accused of an offence:
Provided further that no confession shall be recorded by the police officer on whom
any power of a Magistrate has been conferred under any law for the time being in force.
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The Magistrate shall, before recording any such confession, explain to the person
making it that he is not bound to make a confession and that, if he does so, it may be
used as evidence against him; and the Magistrate shall not record any such confession
unless, upon questioning the person making it, he has reason to believe that it is being
made voluntarily.
If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall not
authorize the detention of such person in police custody.
Any such confession shall be recorded in the manner provided in Section 281 for
recording the examination of an accused person and shall be signed by the person
making the confession; and the Magistrate shall make a memorandum at the foot of
such record
Any statement (other than a confession) made under sub-section (1) shall be recorded
in such manner hereinafter provided for the recording of evidence as is, in the opinion
of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall
have power to administer oath to the person whose statement is so recorded.
The Magistrate recording a confession or statement under this section shall forward it
to the magistrate by whom the case is to be inquired into or tried.

RIGHTS OF THE ACCUSED IN INDIAN CRIMINAL TRIAL

1. Right to a copy of police report and other documents.


2. Right to be discharged when no sufficient ground.
3. Right to present evidence
4. Right to be present when evidence is taken
5. Right to be defended
6. Legal aid at State expense in certain cases
7. Right to cross-examination witnesses
8. No influence to be used to induce disclosure
9. Natural Justice and the Rights of the accused:
No man shall be Judge in his own cause;
Both sides shall be heard, or audialterampartem
Right to cross-examine;
Right to legal representation;
The parties to a proceedings must have due notice of when the Court / Tribunal will
proceed;
The Court / Tribunal must act honestly and impartially.
10. Fair Trial: Public trial and speedy justice
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CONCLUSION

The present Code contains rules whose aim is that no innocent person is convicted and that
perpetrator of criminal offences are sanctioned in accordance with requirements provided by
the Criminal Code and based on the lawfully conducted proceedings. Prior to rendering a final
judgment or ruling on punishment, the rights of the accused person and his freedom may be
limited only under conditions stipulated by this Code which are-

1. To be informed about the offence with which he is charged, as soon as possible and no
later than at the first interrogation, in detail and in a language he understands, about the
nature and grounds for the accusation and the evidence collected against him;
2. To defend him, alone or with the professional assistance of a defence counsel of his
own choosing from list of lawyers.
3. To have his defence counsel present at his interrogation;
4. To be brought before the court as soon as possible and tried in an impartial and fair
manner and within a reasonable period of time.
5. To be provided enough time and facilities to prepare his defence;
6. To declare himself on all the facts and evidence against him and to present facts and
evidence in his favour, either alone or through his counsel, to question prosecution
witnesses and request that defence witnesses are questioned under the same conditions
as the prosecution witnesses, in his presence.
7. To be provided with a translator and interpreter if he does not understand and speak the
language used in the proceedings.

There is imminent need to bring in changes in Criminal Justice Administration so that state
should recognize that its primary duty is not to punish, but to socialize and reform the
wrongdoer and above all it should be clearly understood that socialization is not identical with
punishment, for its comprises prevention, education, care and rehabilitation within the
framework of social defence. Thus, in the end we find that Rule of law regulates the functionary
of every organ of the state machinery, including the agency responsible for conducting
prosecution and investigation which must confine themselves within the four corners of the
law.
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REFERENCES
A.N. CHATURVEDI, RIGHTS OF ACCUSED UNDER INDIANCONSTITUTION 61 (1st
ed. 1984).

J. N. PANDEY, CONSTITUTION LAW OF INDIA 158 (27th ed. 1994).

K. D. GAUR, A TEXTBOOK ON THE INDIAN PENAL CODE 368 (3rd ed. 2004).

THE OXFORD ENGLISH DICTIONARY (1997).

VIVEK JAIN, RIGHT OF THE ACCUSED,


HTTP://WWW.MIGHTYLAWS.IN/511/RIGHTS-ACCUSED, (LAST UPDATED
AUGUST 1, 2012).

YASH VIJAY, THE ADVERSARIAL SYSTEM IN INDIA: ASSESSING CHALLENGES


AND ALTERNATIVES, SOCIAL SCIENCE RESEARCH NETWORK, (OCTOBER 29,
2013)

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