From Arrest to Trial: Safeguarding the Rights of the Accused in India

written by King Stubb & Kasiva | May 31, 2023

In India, the rights of an accused person encompass several fundamental

principles, such as the right to a fair trial, the right to obtain bail, the
right to engage a criminal lawyer, and the right to free legal aid, among
others. The country upholds the principle of "innocent until proven guilty,"
underscoring the significance of ensuring the rights of the accused.
Consequently, until the guilt of an individual is established, certain rights
are afforded to them. Moreover, an accused person is also entitled to "The
Right to Humane Treatment in Prison," ensuring the preservation of all human
rights while incarcerated.
The initial phase of a trial is known as the pre-trial stage, during which an
individual possesses "The Right against Wrongful Arrest." These rights are
applicable in cases where a warrant has been issued. Additionally,
individuals benefit from the "Right against Self-Incrimination," as
stipulated by Article 20 (3) of the Indian Constitution[1]. This
constitutional right prohibits compelling a person to testify against
themselves. The aforementioned examples highlight some of the rights that an
accused person is entitled to both before and after arrest. This article aims
to delve into several important rights of the accused in India.
Rights Before Trial
The rights of the accused before trial in India are safeguarded by the
constitution and the Code of Criminal Procedure (CrPC). Section 60A[2] of the
CrPC explicitly mandates that arrests must adhere strictly to the provisions
outlined in the Code.
This provision emphasizes the importance of conducting arrests within the
framework of established legal procedures and ensures that the rights of the
accused are respected during the pretrial phase.
Rights Before Trial
Right against Self Incrimination
Key features of Article 20(3) include:
Right against Ex-Post Facto Law
Bail as a Right of the Accused in India
Rights During The Trial
Post-Trial Rights of the Accused
Conclusion
FAQs
What is the significance of the right against self-incrimination?
Can an accused person choose their own lawyer during the trial?
Are there any restrictions on the right to appeal after conviction?
Right against Self Incrimination
The right against self-incrimination encompasses the accused's entitlement to
refuse to testify or respond to any questions that may incriminate them.
Prior to questioning, defendants must be made aware of their rights. Direct
self-incrimination involves interrogation or disclosure of self-incriminating
information. It is important to note that the European Union also has its own
laws concerning self-incrimination.
Under Article 20(3) of the Indian Constitution, the protection against self-
incrimination includes the following:
Defendants must be informed of their rights before making any self-
incriminating statements.
Defendants cannot be compelled to provide any statements.
Statements made under compulsion of a self-incriminating nature are not
admissible in court.
The right to remain silent must be clearly asserted by the accused unless an
object or document has been seized from their possession.
In the case of Balasaheb vs. the State of Maharashtra[3], it was determined
that the accused cannot claim absolute immunity under Article 20(3) when they
are both a witness and the accused in the incident. Immunity can only be
claimed against questions that may incriminate them.
Key features of Article 20(3) include:
The accusation of an offense: The protection applies to individuals who have
been accused of an offense, and a formal charge is typically filed upon
lodging an FIR.
Prohibition of compelling self-incrimination: Compelling someone to testify
against themselves is considered duress, and any statement made under duress
is inadmissible in court. Such acts are prohibited under Article 20(3).
However, if a person voluntarily confesses without any threat, inducement, or
promise, Article 20(3) does not apply. It is important that an accused cannot
be tortured or coerced into giving a confession.
In a recent case, Das@Anu vs. the State of Kerala[4]; the Kerala High Court
declared in November 2022 that collecting a blood sample from the accused for
evidential purposes, particularly in cases involving sexual offenses, does
not amount to self-incrimination or compel the accused to be a witness
against themselves. The court emphasized that the police already possess the
authority to send an accused person for medical examination under Section 53A
of the Code of Criminal Procedure (CrPC).
Right against Ex-Post Facto Law
The rights of the accused in India include protection against being tried for
an act that was not considered a crime when it was committed but has been
classified as one subsequently.
Bail as a Right of the Accused in India
In India, a bail application for regular bail can only be filed for offenses
that are categorized as bailable.
The Obligation of the Police to Inform Nominated Persons about Arrest
According to Section 50A of the Code of Criminal Procedure (CrPC), a police
officer is required to inform a nominated person about the arrest of the
accused. The nominated person can be a friend, relative, or any individual
disclosed or nominated by the arrested person to receive such information.
This provision is outlined in Section 50A(1)[5]. Additionally, Section
50A(2)[6] stipulates that the police officer must inform the arrested person
about their rights under subsection (1) as soon as they are brought to the
police station.
Arrest Without Warrant, Notice of Appearance, and Duties of Police Officers
Section 41 of the CrPC provides the conditions under which an arrest can be
made without a warrant, while Section 41A deals with the issuance of a notice
of appearance before a police officer. Furthermore, Section 41B of the CrPC
outlines the procedure to be followed during arrest and the responsibilities
of the police officers involved.
Right of the Arrested Person to Consult with Chosen Advocate
Under Section 41D of the CrPC, an arrested person has the right to consult
with an advocate of their choice during interrogation. The provision states
that during the interrogation, the arrested person is entitled to meet their
chosen advocate, although not necessarily throughout the entire process.
Right to Privacy: No Touching by Male Police Officer:
Section 46(1) of the Code of Criminal Procedure (CrPC) stipulates that upon
the intimation of arrest and the custody of a woman accused, the arrest shall
be considered valid. It further specifies that a male police officer must not
touch the person of the accused, and the presence of a female police officer
is necessary for such procedures.
Right to Minimal Restraint:
Section 49 of the CrPC emphasizes that individuals should not be subjected to
more restraint than what is necessary to prevent their escape. It states:
"The person arrested shall not be subjected to more restraint than is
necessary to prevent his escape."
Right to Receipt of Seized Articles:
According to Section 51 of the CrPC, an accused person has the right to
receive a receipt for any articles seized from their person during the
arrest. This section applies when a person is arrested under a warrant that
does not allow for bail or when bail cannot be furnished. The police officer
making the arrest, or the officer to whom the person is handed over if
arrested by a private individual, may search the person and place any
articles, except necessary apparel, found in safe custody. A receipt must be
provided to the accused for any seized articles.
Right of a Woman Accused to be Examined by a Female Medical Practitioner
Section 53 of the CrPC establishes that when a female accused requires a
medical examination, it must be conducted by a female medical practitioner.
This provision is further clarified in the proviso of Section 54, which
mandates that the examination of a female accused must be performed by a
female medical officer or, in the absence of one, by a female medical
 practitioner under the supervision of a female medical officer.
Right to Prompt Production before the Magistrate
According to Section 55 of the Code of Criminal Procedure (CrPC), when a
person is arrested without a warrant, it is imperative that the accused be
presented before the magistrate with jurisdiction or the police officer in
charge of the police station without any unnecessary delay. This provision
ensures that the accused is brought before the appropriate authority promptly
after their arrest.
Rights During The Trial
During the course of a trial, an accused person is entitled to various
rights, including the right to obtain copies of the documents filed against
them and the right to a fair and impartial trial.
Right to Obtain Copies of the Documents:
As part of the accused person's rights in criminal cases, they have the right
to receive copies of all the documents filed against them by the prosecutor.
This ensures transparency and enables the accused to properly understand the
case and prepare their defense.
Right to a Fair and Impartial Trial
Article 14 of the Constitution of India guarantees equality before the law,
emphasizing that every person involved in a dispute should be treated
equally. This includes the right of the accused to a fair and just trial.
Additionally, the Right to Speedy Trial has been recognized as a fundamental
right under Article 21 of the Indian Constitution. In the case of Huissainara
Khatoon vs. Home Secretary, State of Bihar[7]; it was established that the
State has a constitutional obligation to ensure a speedy trial for the
accused.
Post-Trial Rights of the Accused
After the conclusion of a trial, the accused person retains certain rights.
The post-trial stage, although not explicitly mentioned in the Code of
Criminal Procedure 1973 (CrPC), is recognized as the third stage in criminal
law. One of the most significant rights at this stage is the right to appeal.
Right to Appeal
According to the legal definition provided by Merriam-Webster, an appeal is a
legal process through which a case is brought before a higher court for a
review of the lower court's decision. There are two types of appeals:
Appeal on behalf of the victim
Appeal on behalf of the accused.
As per Section 374(1) of the CrPC 1973, if the High Court convicts the
accused, the convict has the right to file an appeal before the Supreme Court
of India under extraordinary original criminal jurisdiction.
Furthermore, Section 380 of the CrPC 1973 states that if there is more than
one accused and all of them have been convicted by the lower court, then even
if an appealable order has been passed against one of them, all of them can
challenge the decision before a higher authority. However, it's important to
note that appeals are not allowed in petty cases as specified in Section 376
of the CrPC[8].
The grounds for not allowing an appeal in such cases are as follows:
1. When the High Court has sentenced the convicted person to imprisonment not
exceeding 6 months and a fine not exceeding Rs 1000, or both.
2. When the Sessions Court or the Metropolitan Magistrate has imposed a sentence
of imprisonment not exceeding 6 months and a fine not exceeding Rs 200, or
 both.
3. When the Magistrate of the first class has imposed a fine not exceeding Rs
100.
4. When, in a summary trial, the Magistrate has imposed a fine not exceeding Rs
200.
Furthermore, an appeal cannot be made against a judgment delivered under
Section 265G of the CrPC 1973, except through a Special Leave Petition under
Article 136 of the Indian Constitution or through writ petitions under
Articles 226 and 227 of the Indian Constitution.
Conclusion
The rights discussed above, along with a few others, are provided to the
accused person because, according to the law, they are considered innocent
until proven guilty in a court of law. These rights are crucial in ensuring
that the dignity of the accused is safeguarded, as the law recognizes the
right to live a life of dignity and not mere animal existence under Article
21.
In the 1981 case of Francis Coralie Mullin vs. The Administrator (1981 AIR
746)[9], the Supreme Court emphasized that the Right to Life encompasses the
right to live with dignity. Therefore, the aforementioned rights serve to
protect the dignity of the accused, as the legal system upholds the
presumption of innocence until guilt is proven.
By upholding these rights, the criminal justice system aims to strike a
balance between the interests of the accused and the need to ensure a fair
and just trial. It is through the recognition and protection of these rights
that the principles of justice, fairness, and equality are upheld in the
legal proceedings concerning the accused.
FAQs
What is the significance of the right against self-incrimination?
The right against self-incrimination ensures that an accused person cannot be
compelled to be a witness against themselves. It protects individuals from
being forced to make statements or provide evidence that may incriminate them
in a court of law.
Can an accused person choose their own lawyer during the trial?
Yes, an accused person has the right to choose and hire their own lawyer to
represent them during the trial. This ensures that they have proper legal
representation and can present their case effectively.
Are there any restrictions on the right to appeal after conviction?
While the right to appeal exists, there are certain limitations. Appeals may
not be allowed in petty cases or if the sentence imposed by the lower court
is below a certain threshold. However, in more serious cases, the accused has
the right to file an appeal before a higher court for a review of the
decision.
[1]INDIA CONST. art. 20 (3)
[2]The Code of Criminal Procedure, 1973; Sec. 60 A, No. 2, Acts of
Parliament, 1974 (India)
[3]Balasaheb vs. State of Maharashtra; 1994 CriLJ 3044
[4]Das@Anu vs. the State of Kerela; CRL MC NO. 8065 of 2018
[5]The Code of Criminal Procedure, 1973; Sec. 53 A (1), No. 2, Acts of
Parliament, 1974 (India)
[6]The Code of Criminal Procedure, 1973; Sec. 53 A (2), No. 2, Acts of
Parliament, 1974 (India)
[7]Huissainara Khatoon vs. Home Secretary, State of Bihar; 1979 AIR 1369
[8]The Code of Criminal Procedure, 1973; Sec. 376, No. 2, Acts of Parliament,
1974 (India)
[9]Francis Coralie Mullin vs. The Administrator 1981 AIR 746
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