Saturday, September 15, 2012

Rights of an Accused under Indian Laws....

An accused person is entitled to the following protection relating to his arrest and
production before the court and judicial trial if any against him to be launched.

1. A police officer may arrest an accused person without warrant in certain circumstance mention in Section - 41 of the code of criminal procedure 1973, herein referred to as the code in this part–

(a) he has been concerned in any cognizable offence where a reasonable complaint has been made against him, or some credible information has been received against him or a reasonable suspicious exist against him
(b) Who has some implement of house breaking in his possession without

lawful excuse
(c) Who has been proclaimed as an offender under the code or
(d) In whose possession some suspected stolen property is found
(e) Who obstruct a police officer from his duty or who has escape or attempts

to escape from lawful custody
(f) Who is suspected to be deserter from armed forces
(g) Who. If released convicts breaks any condition of his release or requisition
for whose arrest has been made from some other police station.
I.8
Art -11 of the Universal Declaration of Human Rights, 1948 declares that–

(1) 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.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

The main concern is on the constitutional rights as well as the international covenant of the accused regarding freedom from arbitrary and unlawful arrest, detention and torture, right to be informed of grounds of arrest and right to counsel, right to be presumed innocent until proved guilty, right not to be subjected to retrospective punishments (ex post facto), right against double jeopardy, right to bail, right to fair trial and also rights for preserving human dignity and self-pride.

Right to fair Trail and Fair Hearing:
II.1

Articles 10 of the UDHR declares that everyone entitle in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his legal rights and obligation and of any criminal charges against him. Articles 14(1) of the international covenants on civil and political rights provide that all people shall be equal before the court and tribunals. In the determination of any criminal charges against him or of his right and obligation in a suit at law everyone shall be entitle to fair and public hearing by
a competent, independent and impartial tribunal established by law. This right to fair trial will embrace
the following guaranteed rights of accused

Right To Be Presumed Innocent Until Proved Guilty:-
III.1

The presumption of innocence has been accepted as a central safeguard against the exercise of arbitrary power by public authorities. It means the prosecution has the ultimate burden of establishing guilt. If, at the conclusion of the case, there is any reasonable doubt on any element of the offence charged, an accused person must be acquitted. In India, a system of adversarial form of adjudication is followed which is also
known as „accusatorial system? in case of criminal procedure and the underlying principle
of this system is “presumption of innocent until-proved-guilty”. The legal ethics of our criminal
justice system is“let thousand of criminal’s be let out, but a single innocent should not be punished ”

Right To Speedy Trial:-
IV.1
The right to be tried without undue delay has been expressly recognized by all
the above discussed international documents and conventions except the UDHR. “Delay
defeat equity” is a maxim of the law of equity, justice delayed is justice denied is the well known
principles of criminology. The American constitution clearly state that in its sixth
amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense”

Right Of A Person to be produced before the Magistrate:-
V.1

Every accused have the right to produce before a magistrate within twenty four hours of his arrest. Articles 9(3) ICCPR provides that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorize

by law to exercise judicial power and shall be entitle to trial within a reasonable time. In consonance with Section 565 CrPC provide for a person not to be detained more than twenty four hours. It lays down that no police office shall detain a person in custody a person arrested without warrant for a longer period than under all circumstances of the case is reasonable and such period shall not, in absence of a special order of magistrate under Section 167, exceed twenty four hours exclusively of the time necessary for the journey from the place of arrest to the magistrate office.

In the Indian legal system, Article 22(1) of the Constitution of India provides that the arrested person should be informed as soon as possible about the grounds of his arrest and he shall not be denied the right to consult with and to be defended by a legal practitioner of his choice. Article 20(3) of the Constitution of India, which is based on the 5th Amendment of the U.S. Constitution made in 1791 provides that "no person accused of any offense shall be compelled to be a witness against himself."

No confession made to a police officer is valid as evidence. All confessions must be made to a Magistrate not below the rank of Judicial Magistrate. The Magistrate taking the confession must give the accused due time out of the custody of the police, and make an effort to ensure that the accused was not coerced or intimidated in anyway, before receiving the confession. At the bottom of the confession the Magistrate must write out that he has informed the accused that this confession may be used against him and he is not obligated, in any way, to incriminate himself.[6]

Right to Counsel

Article 22 of the Constitution of India guarantees an accused the right to a lawyer. Decisions of the court made without the accused having been provided a lawyer are not valid.[7] Hon'ble Supreme Court in Hussainara Khatton (IV)[8] has held that "?the right to free legal service is clearly an essential ingredient to a reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the status under constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required?"

The right to counsel applies at all custodial interrogations (i.e. the accused has been brought into police custody for questioning) and at all critical stages of a prosecution after formal proceedings have begun. These stages include post-indictment interrogations, arraignment, guilty plea, and trial.[9]

Rights at Trial

The accused is guaranteed a number of rights during a criminal trial.
Right to a Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law.[10]. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial.[11]. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera.[12]

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.[13]
Right to Confront Witnesses

The accused has a right to confront only witnesses.[14].This right ensures that the accused has the opportunity for cross-examination of the adverse witness.

If a witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission. The testimony at a formal trial is one example of prior testimonial statements which can be used as documentary evidence in a subsequent trial.[15]
Right to a Speedy Trial

The Constitution provides an accused the right to a speedy trial. Although this right is not explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of India in the judgment of Hussainara Khatoon.[16]. This judgment mandates that an investigation in trial should be held "as expeditiously as possible".[17]

In all summons trials (cases where the maximum punishment is two years imprisonment) once the accused has been arrested, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.[18]

The accused is not to be detained in police custody for more than 24 hours without being produced before a Magistrate.[19]. An officer not below the rank of sub-inspector is to transfer the accused to a Judicial Magistrate who may allow the accused to be held for up to fifteen days in police custody. If a Judicial Magistrate is not available, an Executive Magistrate so empowered by the High Court may allow for a detention of up to seven days, which a Judicial Magistrate may extend up to not more than fifteen days in total. At the expiration of these fifteen days, if a Magistrate believes adequate grounds exist, he may allow for the suspect to remain in the judicial custody for a period up to ninety days total (including the original fifteen) for a case involving potential punishment of more than ten years imprisonment or up to sixty days for all other cases. The accused has the right to get bail in case the prosecution fails to submit the charge sheet within a period of ninety days of such custody.

In cases involving punishment of more than ten years; the charge sheet has to be submitted within a period of sixty days by the prosecuting agency.[20]

The following factors should be considered in determining whether an accused's right to a fair trial has been compromised: period of the delay, reason for the delay, whether the accused asserted his right, and prejudice to the accused. Loss of evidence, such as the death of a key witness, or the inability of witnesses to testify accurately after a long delay, can be powerful tools for the defense.
Rights while detained

In India, persons accused of committing a crime have a series of rights, some of which are guaranteed by the Indian Constitution and others the result of case law or statutes. When the accused is arrested in warrant cases the Magistrate may notify the accused of his right to bail and prescribe the amount of bail bond on the warrant, at which point the arresting officer will release the accused on execution of bail bond. Likewise, in the cases of bailable offences[21] any officer arresting a suspect without a warrant is obligated to tell them of their right to bail upon arrest. The accused should be advised that he has a right to a legal aid lawyer and that one will be appointed if he cannot afford to pay for the legal services. The arresting officer must, without delay, bring the detained person to the officer-in-charge for all arrests without warrant and the officer-in-charge must report all arrests to the concerned Magistrate.[22]

The accused has the right to have a person of his choosing be informed of his arrest and for that person to be told where the accused is being detained. The opportunity to advise this person of the arrest should be afforded to the accused upon arriving at the police station and shall be communicated by the arresting officer to the person nominated by the accused.[23]

The Hon'ble Supreme Court in "D.K. Basu v. State of West Bengal[24] laid down the following guideline:

1 The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2 That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

3 A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4 The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5 The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6 An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7 The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/ her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and a copy provided to the arrestee.

8 The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a trained doctor on the panel of approved doctors appointed by the Director of Health Services of the concerned State or Union Territory. The Director of Health Services should prepare such a panel for all Tehsils and Districts, as well.

9 Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

10 The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11 A police control room should be provided at all District and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. The accused has the right to be treated decently while he is in custody. He must be provided with food and drink, clothing as necessary as well as sleeping and washing facilities. The accused cannot be "punished" or treated as guilty while he awaits trial. While detained, the accused retains the right to court access and to a legal aid lawyer. That access may be subject to security restrictions typically used in a detention facility.
Right to Appeal against Conviction

Section 374 of the Criminal Procedure Code, 1973 states that any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him, may appeal to the High Court. Any person convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, may appeal to the Court of Session.

Any miscarriage of justice that demonstrates prejudice to the accused is a potential ground of reversal of the trial on appeal.[25] However, any mistake which does not jeopardize the fundamental fairness of the trial is not grounds for reversal on appeal. By way of example, if a case which should have been tried as a warrant case is tried as a summons case (where the standards for recording of evidence are lower) there would be grounds for reversal, but the same would not be true in reverse. It the best practice to bring up irregularities as soon as possible during the case, rather than to present them on appeal. However, an appeal cannot be thrown out only because irregularities were not brought up during the original trial. Finally, a strong case for reversal on appeal would be if police discounted evidence which could have helped exonerate the accused.[26] A full list of irregularities which do or do not overturn a trial on appeal are listed in the Cr.P.C.[27]

If it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing an arrest, the Magistrate may award such compensation, not exceeding one thousand rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.[28] Criminal charges may also be filed on the police for wrongful confinement.

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