“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”
-Charles Louis in ‘The Spirit of the Laws’
A person holding the formal allegation of a recognized offence in a certified (written) document charged with the commission of the crime is termed as an accused.The process of arresting an accused follows a standardized enforcement of law. He or she cannot be declared as a convict until proven guilty.
The largest written Constitution in the legal world, Indian Constitution can be gauged from the very fact that it is wedded to the principles of natural justice, democracy and rule of law. Grant of free and fair trial is a part and parcel of the constitutional commitment towards maintaining an equilibrium in the society. Even an accused or guilty person is vented with the rules of natural justice, equating him with similar opportunities to hear and to be heard. The law of the land requires the prosecution to stand at its own legs and to prove the guilt of the accused beyond the shadow of a reasonable doubt.
An accused possesses certain rights during the course of the entire perusal, investigation, enquiry, charges. It is important to ensure that he or she faces a non-arbitrary trial, unmounted by illegality or tantamount process. Fundamentality lies in the say that “Let hundreds go unpunished, but never punish an innocent person.”
Fundamental Rights are guaranteed to every citizen on this mainland.[i] It is based on the foundational strength that right is guaranteed to get a fair representation and witness the facets of Right to Equality.[ii]Article 20 provides for protection in respect of conviction and prohibits stances of offences convicting person of crimes other than those whose laws were not present at the time of commission of the act. Penalty cannot be subjected greater than what is inflicted at the time of the enforcing law. Thereby, accused is given fair equality as par with other citizen. Going by the judicial voice, vast ambit has been provided to Right to Life and Liberty,[iii] thus, respecting the accused’s humanly treatment for reformative approach. Article 22 condemns jeopardizing the rights of accused i.e. no one will be detained without being informed, accused possesses a right to be consulted and be defended by a practitioner of his own choice. Double jeopardy is highly avoided so as to not convict the same for the same person twice. These rights, under the Constitution, are inherent and cannot be altered or changed.
Rights under code of criminal procedure
Blackstone has opined, “It is better that ten guilty persons escape than that one innocent suffer“The essence of criminal trial lies in that the accused is to be presume innocent until the charges are proved against him beyond any reasonable doubt.
- A person arrested without warrant is entitled to know the intricacies and particulars of his arrest of the alleged offence for which he is being arrested.[iv] On the second not, a person being arrested with warrant must be notified of the particulars of such warrant and even possesses the right to examine the warrant personally.[v]
- Anyone accused of bailable offence has to be informed about the details of his release on the payment of the surety amount by the police.
- The arresting authority must bear the accurate, visible and clear identification of the accused along with the name tags with their designation. The family or the close friend must be informed about the arrest.[vi]
- Irrespective of the arrest being warranted or unwarranted, an accused has to be brought before a Judicial Magistrate without any unnecessary delay. The Code limits the time within 24 hours. [vii]
- Justice delayed is justice denied!Fair and expeditious trials are ensured to provide an impartial and speedy delivery of justice.
- Right to consult a legal practitioner has also been enshrined in the Code for guaranteeing the rights of being defended by the pleader of his choice.[viii]All evidences and statements must be recorded in the presence of his counsel.[ix]
- Free Legal Aidis an impeccable wing of the Constitution, obligating all magistrates and courts of Law to inform the indigent accused of his rights. Unless refused, failure towards this part vitiates the trial, thus, frustrating the purpose of theprocedure.
- If requested by the accused, he can be examined by a medical practitioner if necessity arises.[x]
- The accused can file an appeal against the conviction order in a higher court/bench.
- Humanitarian rules crystallizes humane treatment of accused in prisons. He must be subjected to benevolence by the authorities.
- The accused is entitled with the right to remain silent during the course of interrogation and no one can forcibly extract statements/evidence from him.[xi]
- Scientific tests and protecting the rights of the accused: High profile probes have witnessed the in growth of a new investigating tool in India- Narco analysis, Polygraph and Brain mapping. Touted as a ‘third degree’ interrogation, the test remains a debatable question of law on its veracity.[xii] Though its legal standpoint remains to be certain in India, it is highly detested for constitutionally invalidating Article 20(3) and 21 as well as statutory sanctions of the Code.
Malimath Committee opined that it the responsibility of the State to ensure that due process of law, quick and impartial trial, and access to legal aid must be guaranteed in such sensitive issue of convicting accuses.
“The views of the authors are personal“
[i]India Const., Chapter III.
[ii]India Const., Article 14.
[iii]India Const., Article 21.
[iv]Code of Criminal Procedure, 1973, § 50(1), No. 2, Acts of Parliament, 1973 (India).
[v]Code of Criminal Procedure, 1973, § 75, No. 2, Acts of Parliament, 1973 (India).
[vi] D K Basu v. State of West Bengal, 1997 1 SCC 416 (India).
[vii]Code of Criminal Procedure, 1973, § 56 & 76, No. 2, Acts of Parliament, 1973 (India).
[viii]Code of Criminal Procedure, 1973, § 50(3), No. 2, Acts of Parliament, 1973 (India).
[ix]Code of Criminal Procedure, 1973, § 273, No. 2, Acts of Parliament, 1973 (India).
[x]Code of Criminal Procedure, 1973, § 54, No. 2, Acts of Parliament, 1973 (India).
[xi]Nandini Satpathy v. PL Dani, 1978 SCR 3 608 (India).
[xii] Selvi & Ors. v. State of Karnataka & Anr.,, Cri. Appeal No. 1267/2004 (India).