Legal Protection

available to an
accused during
a trial
India Penal Code
Legal Reasoning
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Law Entrance Exam 2021
 Kriti Bhatnagar

● B.A LLB, NLIU Bhopal (2019)

● LLM, GNLU Gujarat (2020)
● Cleared UGC NET (2020)
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Passage 3
The Supreme Court bench headed by Chief Justice of India SA Bobde made some
remarks on a penal provision Section 309 IPC which criminalises the attempt to
commit suicide. The provision reads as follows:
Section 309 of lPC- Attempt to commit suicide- Whoever attempts to commit suicide
and does any act towards the commission of such offence, shall be punished with
simple imprisonment for a term which may extend to one year or with fine, or with
both
Section 306 of IPC Abetment of suicide - if any person commits suicide, whoever
abets the commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.“

The court said that an attempt to commit suicide is a punishable offence under
Section 309 of IPC. But, according to the bench, Section 115 of the Mental
Healthcare Act adversely impacts Section 309 of IPC. Interestingly, these remarks
were made while hearing a petition that sought for directions to ensure the prevention
attempts to commit suicide by persons who threw themselves in animal enclosures in
Zoos.
Section 115(1) of the Mental Healthcare Act, 2017 provides that
"notwithstanding anything contained in section 309 of the Indian
Penal Code any person who attempts to commit suicide shall be
presumed, unless proved otherwise, to have severe stress and
shall not be tried and punished under the said Code. In Gian Kaur
vs The State of Punjab, the Constitution bench of the Supreme
Court headed by Justice JS Verma held that right to die is not
included in the right to life under Article 21 and upheld Sec 309 of
IPC. In Navtej Singh Johar vs. Union of India, Justice RF Narimon
noted, in his concurring opinion, that Section 115 largely does
away with one other outmoded Section of the Indian Penal Code,
namely, Section 309.
Passage
The judge observed thus: "Instead of the inhumane Section 309 which
has remained on the statute book for over 150 years, Section 115
makes it clear that Section 309 is rendered largely ineffective, and on
the contrary, instead of committing a criminal offence, any person who
attempts to commit suicide shall be presumed to have severe stress
and shall not be tried and punished under Section 309 of the Indian
Penal Code. More importantly, the Government has an affirmative duty
to provide care, treatment and rehabilitation to such a person to reduce
the risk of recurrence of that person's attempt to commit suicide. This
parliamentary declaration under Section 115 again is in keeping with
the present constitutional values, making it clear that humane
measures are to be taken by the Government in respect of a person
who attempts to commit suicide instead of prosecuting him for the
offence of attempt to commit suicide.” This is a court’s opinion and this
does not repeal section 309 of IPC.
Question 1
Suppose, Sati system is not penalized in India. A, a lady whose
husband died was forced to be burnt with the husband. Ultimately, A
jumped into the fire. Can a case be filed against the ones who forced
her?
a) No, because sati system is not penalized and they did no wrong.
b) No, because it is a ritual from a long time
c) Yes, because it is abetment to suicide under Section 306.
d) Yes, because A had right to live under Article 21
Question 2
Based on the above passage, suppose who was running towards a
well was stopped by X. A case has been filed against Y. Y pleads that
he is going through a very hard phase of life and is in depression and
therefore, he tried to commit suicide. Decide:
a) Court should not accept the plea because Y has committed an
offence under section 309 of IPC.
b) Court should accept the plea because section 115 of the health care
act overrides section 309 of IPC.
c) Court should accept the plea because right to live includes right to
die.
d) Court should not accept the plea because it was Y's mistake that he
tried to kill himself,
Question 3
In Jainism, there is a tradition of systematic fasting unto death which is
known as Santhara. Santhara has existed since time immemorial and is
considered to be pious and religious act to liberate the soul from the
bondage of the challenged because leads to attempt to suicide Decide:
karma. The goal is to purify and to strive to abandon desire. It is a
voluntary termination of one's life. Santhara was
a) Santhara should not be banned because it is the fundamental right of the
individual to follow his religion underArticle 25.
b) Santhara should not be banned because India is a free Country and
everyone has a right to do whateverwant.
c) Santhara should not be banned because right to life does not include
right to die. they
d) Santhara should be banned because it leads to voluntary death of the
individual and it is a criminal offence under Section 309
Question 4
A, in the state of intoxication took 5 sleeping pills without realizing that
it may cause his death. B, who saw him taking pills, took him to the
hospital and he survived. Later, a case was brought against him under
Section 309.
a) A is not guilty under section 309 because the act was not intentional
as he was intoxicated.
b Ais not guilty under Section 309 because right to life includes right to
die
c) A ls guilty because he tried to kill himself.
d) Ais guilty because he being voluntary intoxicated, should have
controlled himself.
Question 5
M, a 52 year old lady was suffering from incurable cancer. Her face
was swollen and distorted by a rare tumour in her sinues. It was very
painful for her to survive and therefore, requested the doctor to
administer her drugs. The doctor gave her drugs and she died.
a) The doctor is not liable because he administered drug on the
request of M.
b) The doctor is not liable because M would have anyway died within a
week
c) The doctor is liable because he has committed abetment of suicide.
d) The doctor is liable because he did not treat her properly
Introduction

The Criminal jurisprudence provides immense protection

to the accused person which is expressly given under the
provisions of the Indian Constitution. The accused should
be treated as innocent until proven guilty by the
prosecution. The legal protection available to the accused
person is based on one of the cardinal principles of
“presumption of innocence.” The principle provides that
there is always a presumption of innocence lie on behalf of
the accused person and he is always presumed to be
innocent until the prosecution proves his guilt beyond the
reasonable doubt.
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Introduction

The legal protection is a statutory right of the accused

person which is enshrined under the Indian Constitution as
well as different provisions of criminal law. These rights
are available during the trial, at the time of arrest and at
the time of the search, and seizure, etc. These rights
should not be prejudiced to protect the rights of the victim.

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Who is an accused

Is he same as the convict?

Is it defined anywhere?

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Who is an accused

The term “accused” has not been defined anywhere in the

Code of Criminal Procedure, 1973. However, in general, it
can be defined as the person charged with conflict of law
or infringement of the law which is enshrined under the
criminal law. The accused is liable for such actions and if
convicted then to be punished under the relevant
provisions of Indian Penal Code, 1860 or any other
relevant law for the time being in force.

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Cognizable and non-cognizable offences

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Criminal Trial

Indian law follows the adversarial system of trial where the

onus or burden is on the State or prosecution to establish
the guilt of an accused person beyond the reasonable
doubt.

Criminal Procedure Code

Evidence Act

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Constitutional Law

Article 20 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. Thus, accused is given fair
equality as par with other citizen.

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Constitutional Law

Article 22 talks that No person 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 legal practitioner of his choice.

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Criminal Procedure Code
Right to know the grounds of arrest
an accused who is being arrested by any police officer,
without any warrant, has the right to know the full
particulars of offence for which he is being arrested, and
so it’s the undeniable duty of the police officer to inform the
accused of the particulars.
2. Under section 55 of Cr.P.C., it is the right of the accused
to know in case of being arrested, the written order against
him, specifying the offence or other cause for which the
arrest is being made. The arrest will be illegal in case of
non compliance of this provision.
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Criminal Procedure Code

3. In case when the person is being arrested under a

warrant, then according to Section 75 of Cr.P.C, any
person who is executing such warrant must notify the
person who is being arrested, the content of such warrant,
or show the warrant if required. If under any circumstance
the substance of the warrant is not notified, the arrest
would be unlawful.
Section 161 (2) provides that a person accused must not
be bound to answer those questions which would tend to
expose him to a criminal charge.
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Criminal Procedure Code

Section 330 and 331 of the Code provides for the

protection of the accused from unnecessary harassment in
custody as well as to extort information without his will.
Also, the code provides that a police officer is liable to be
punished if he exercises or abuses his power without any
necessity.

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Legal aid to the accused

In the case of Sukh Das v. Union Territory of Arunachal

Pradesh (1986), the Supreme Court held that it is the duty
and responsibility of the state to provide free legal to
accused if he has no means to engage a counsel to
promote a free and fair trial before the court of law and
without affecting the principle of natural justice.

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Right to free legal aid

The Supreme Court held that whenever a person is

arrested by the police and taken to the police lock-up, the
police will immediately give an intimation of the fact of
such arrest to the nearest Legal Aid Committee and such
Legal Aid Committee will take immediate steps to provide
legal assistance to the arrested person at State cost
provided he is willing to accept such legal assistance.

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Right to be taken to magistrate before delay

whether the arrest was made with or without a warrant, the

person who is making such arrest has to bring the arrested
person before a judicial officer without any unnecessary
delay. By Sec 56 and 76 of the code, an accused has to
be produced before a magistrate within the 24 hrs.

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Rights of an accused

Right to Be Examined by a Medical Practitioner:

Section 54 of Cr.P.C. enumerates this right. If requested by the
arrested person so to do direct the examination of the body of such
person by a registered medical practitioner unless the Magistrate
considers that the request is made for the purpose of vexation or delay
or for defeating the ends of justice.

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. The property of an accused cannot
be searched by the police without a search warrant.

Right to be present during trial:

Section 273 of the Code provides that all evidence and statements
must be recorded in presence of the accused or his criminal lawyer.

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Contempt of court

The landmark case of D.K. Basu v/s West Bengal and

Ors. concentrates on “the rights of an arrested person
which further impels the police officer to act in a certain
way”.
The court further observed that if the police official is
unable to perform his duty properly, then he will be
accountable for contempt of court and also for
departmental inquiry. Such dispute can be initiated in any
High Court that has the jurisdiction over the said dispute.

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Arrest manner

Section- 46 of CrPC stipulates the mode of arrest of an

accused person which includes submission to custody by
the accused, physically touching the body, or to a body.
The police official must not cause death of the accused
person while trying to arrest the person except when the
person to be arrested is accused of an offence which is
punishable with death or life imprisonment or when the
accused person is trying to unnecessarily resist his arrest
by turning violent and aggressive or when the accused is
trying to escape.
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SAMEERLIVE
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