Rights of The Accused in India
Author:Prof.(Dr.) Priya SepahaIn India, the rights of the accused are provided only in cases where a warrant is issued. An accused has certain rights during any investigation; enquiry or trial of offence with which he is charged till the time the crime is not proven.
1. Right against wrongful arrest
As per Section 57 of the Criminal procedure Code (hereinafter CrPC) and Article 22(2) of Constitution provides rights of accused in CrPC, that he/she must be produced before a Judicial Magistrate within 24 hours of arrest.
2. Right to a copy of police report and other documents
As per section 207 of CrPC, accused has the right to be furnished with the following in case the proceeding has been initiated on a police report:
· the police report;
· the first information report recorded under section 154;
· the statements recorded under sub-section (3) of section 161;
· the confessions and statements, if any, recorded under section 164;
· any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173.
And as per section 208 of CrPC, when a case not instituted by a police report but when the offence is triable exclusively by the Court of Session:
· the statements recorded under section 200 or section 202, or all persons examined by the Magistrate;
· the statements and confessions, if any, recorded under section 161 or section 164;
· any documents produced before the Magistrate on which the prosecution proposes to rely.
3. Right to accused of 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 right of accused, his/her property cannot be searched by the police without a search warrant.
4. Right to Bail
The right of an accused person allows them 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.
5. Right to be discharged when no sufficient ground
As per section 227 of CrPC, when the judge is convinced that there is no sufficient ground for proceeding against the accused after duly considering the case, it is the right of the accused that he be discharged.
6. Right to present evidence
According to section 243(1) of CrPC, the accused has the right to present his evidence and defend his case. The Magistrate is duty-bound to record written statements put by the accused.
7. Right to be present when evidence is taken
Section 273 of CrPC makes it obligatory on the part of the Magistrate to ensure that all evidence taken in the course of the other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.
8. Right to be defended
Section 303 of CrPC and Article 22(1) of the Constitution of India provides a right to all the accused persons, to be defended by a pleader of his choice.
9. Legal aid at State expense in certain cases
This is not a right available to all the accused but to certain category of accused as a privilege. So where, in a trial before the Court of Session, the accused is not represented by a pleader, and the Court believes that he does not have sufficient means to engage a pleader, it shall assign a pleader for his defence at the expense of the State, under section 304 of CrPC.
10. Right to cross-examination witnesses
Section 311 of CrPC gives the accused (and the prosecution) full right to cross-examine a witness called by the Court.
Under section 243(2) of CrPC, if the accused applies to the Magistrate to issue any process for calling any witness 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 for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing.
Section 138 of Evidence Act says that the right of cross-examination available to the opposite party is a distinct and independent right. When accused declined to cross-examine the witness and thereafter the said witness is not available for cross-examination, the evidence of such witness recorded is admissible in evidence, but that will have to be true to that account.
11. No influence to be used to induce disclosure
As per section 316 of CrPC, the accused shall not be subjected to any sort of influence by means of any promise or threat or otherwise, to induce him to disclose or withhold any matter within his knowledge.
12. Right to life and liberty
As per Article 21 of the Constitution of India, no accused shall be deprived of his life or personal liberty except in accordance with the procedure established law which is just, fair and reasonable. This article also provides that the accused has the right to free and speedy trial.
13. Right against double-jeopardy
As per Article 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once.
14. Right against self-incrimination
As per Article 20(3) of the Constitution of India, no person accused of any offence shall be compelled to be a witness against himself.
15. The Right against the ex-post-facto law
The rights of the accused also give a person the authority where he/she cannot be tried for an offence that was not a crime on the day when it was done. This means that the retrospective effect law is not applicable.
