CRIMINAL PROCEDURE CODE – PROJECT SUBMISSION

A SPECIAL PROJECT ON

Rights of Accused under Criminal Procedure Code

Submitted To: Submitted By:

Dr. Debarati Halder Krapanshu Rathi
(Faculty of Law) Riya Mourya
Semester 4

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 CERTIFICATE OF DECLARATION

We hereby declare that the project work entitled “Rights of Accused under Criminal
Procedure Code” submitted to Karnavati University, is record of an original work and not
plagiarized except acknowledged in the text and clearly mentioned where I have used the
published work. We have provided the source of such work and project was done by me under
the supervision of Dr. Debarati Halder, Faculty Member, and Karnavati University (UWSL).

Krapanshu Rathi

Riya Mourya

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 ACKNOWLEDGEMENT

This is not just a customary acknowledgement of help that we received but a sincere expression
of gratitude to all those who have helped me to complete this project and made it seem
apparently more readable than otherwise it would have been.

We are in debt to my faculty advisor Dr. Debarati Halder for giving such an opportunity to such
an interesting topic “Rights of Accused Under Criminal Procedure Code” and who has been
extremely kind to make space for all my enthusiasm & endeavors and making it seem easy by
clearly explaining its various aspects.

We are also grateful to all my friends and seniors who have given their valuable suggestions
pertaining to the topic and have been a constant source of help and support.

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 TABLE OF CONTENT

 Table of cases………………………………………………………………..5
 Research Title………………………………………………………………..6
 Area and Subject of study…………………………………………………...6
 Scope and Limitation……………………………...…………………….…..6
 Research Objective…….……………...……………………………….…….6
 Research Question……………………………………………………….…..6
 Hypothesis………………………………………………..………………….6
 CHAPTERISATION
Introduction……………………………………………………………….....7
Rights of Accused……………………………………………………………
Rights of Accused under Criminal Procedure Code………………………
Rights of Accused under Constitution of India……………………………
 Conclusion………………………………………………………..…..…….22
 References……………………………………………………………….…23

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 TABLE OF CASES

S. No Name of Cases

Joginder Kumar Vs. State of U.P & Ors

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

12.

13.

14.

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 RESEARCH METHODOLOGY

Research Title:

Rights of Accused under Criminal Procedure Code

Area and Subject of study:

Criminal Law

Scope and Limitation:

This research paper is an attempt to critically analyze the rights of accused and claim before the
court.

Research Objective:

Main objective of this paper is to understand the rights of accused.

Research Question:

This study was conducted with:

1. What all rights does the accused person have?

2. Whether the rights of accused are same as rights of an arrested person?
3. What suggestions can be suggested various reforms for solving the issues and challenges?
4. Which statutes sustain the rights of an accused?

Hypothesis:

The above objectives can be realized by empirically testing the following hypothesis:

1. The violent sphere that focus many to accept infancy.

2. There is a significant increase in infancy crime rates even after the legislation of infancy
prohibition laws

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 INTRODUCTION

Each individual must be treated as an individual first, regardless of the way that such individual
is a criminal. Indeed, even so the blamed is viewed as honest till proven guilty by a courtroom. It
is characteristic of our democratic society that even the privileges of the accused are considered
to be sacrosanct, despite the fact that he is accused of an offense. In a democracy and under the
Indian Constitution, the police as representative of a state whose sovereignty lies in the Indian
people are public servants and the police station public property. The conduct within it needs to
conform to law, needs to respect basic human freedoms to ensure a basic confidence between the
people of a city, state or region and the wings of the state, the law and order machinery the
police.1

The constitution of India and criminal system code gives some fundamental rights to the
individual being captured. One of the fundamental precepts of our legitimate framework is the
advantage of the assumption of guiltlessness of the charged till he is discovered blameworthy.
Any offence should not be punished in such trial. Fairness is a relative concept and therefore
fairness in criminal trial could be measured only in relation to the gravity of the accusation, the
time and resources which the society can reasonably afford to spend, the quality of available
resources, the prevailing social values etc. Our courts have recognized that the primary objects of
Criminal Procedure is to ensure human treatment to arrested person, and the law commission has
accepted the view that requirement of human treatment, speaking broadly, relate to the character
of the court, the venue, the mode of conducting the trial, rights of the arrested person in relation
to defense and other right.

The meaning of the term “accused” and the basis of the recognition of various human rights to an
accused have been discussed. It has been observed that the concept of the rights of an accused
person is mainly based on principles of natural justice and thus is time immemorial but it had
assumed much importance at the international level from 1948 onwards due to Universal
Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966
and many other international documents and at the national level due to the various fundamental
1
Dr.B.Hyder Vali book titled ‘rights of accused in criminal trail published by Gogia law Agency, Hyderabad, (2004)

7
rights guaranteed under the Constitution of India. It has not been specifically defined in the code
but what we generally understand is that the accused means the person charged with an
infringement of the law for which he is liable and if convicted then to be punished. In other
words, a person who is charged with the commission of offence.

An accused cannot have similar footing with the convicted person. In the Bill of Rights
Ordinance, 1991 affirms that every accused has a right to be presumed innocent until his guilt is
proven. Thus, the accused person has every right like other citizen of the county except his
curtailment of person liberty in conformity with law. The basic difference is that an accusation
has been made against the accused person for violation of law or offence prevalent in the
country.

In a democratic society even the rights of the accused are sacrosanct, though accused of an
offence, he does not become a non-person. Rights of the accused include the rights of the
accused at the time of arrest, at the time of search and seizure, during the process of trial and the
like. Whereby an Arrest is an act of taking a person into custody as he/she may be suspected of a
crime or an offence. It is done because a person is apprehended for doing something wrong.
After arresting a person further procedure like interrogation and investigation is done. It is part of
the Criminal Justice System. Our statute is quite careful towards anyone’s “personal liberty” and
hence doesn’t permit the detention of any person without proper legal sanction. It is provided by
the article 21 of our constitution that there will be no person who shall be deprived of his life or
personal liberty except according to procedure. The power of arrest is the most important source
of corruption and extortion by the police officers. From the moment, a case is registered by the
Police on a cognizable complaint, they get the power to arrest any person who may be
‘concerned in that offence’, either on the basis of the complaint itself or on credible information
otherwise received. The procedure laid down by Article 21 must be followed in a ‘right, just and
fair’ and not in any arbitrary, fanciful or oppressive manner. It is expected that the arrest should
not only be legal but justified also. Even the Constitution of India, recognizes the rights of
arrested person under the Fundamental Rights. Hence, the accused has been provided with
certain rights under the law.

8
 RIGTHS OF ACCUSED

As Indian constitution is wedded to Democracy and Rule of Law, the concept of free and fair
trial is a constitutional commitment for which the cardinal principle of Criminal Law revolves
around the Natural Justice wherein, even the accused or guilty person is treated with a human
treatment. 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. The accused persons are also
granted certain rights, the most basic of which are found in the Indian Constitution. An accused
has certain rights during the course of any investigation; enquiry or trial of offence with which he
is charged, and he should be protected against arbitrary or illegal arrest.

The rights of the accused person are of much concern today. Belatedly though, it has been
observed that blatant and flagrant violation of their rights in different stages. The implication of
article 21 of the Constitution of India is that a person could be deprived of his life or personal
liberty only in accordance with procedure established by law.

Rights were initially (generally from the 18th century on) confined primarily to the actual trial
itself, but in the second half of the 20th century many countries began to extend them to the
periods before and after the trial. All legal systems provide, at least on paper, guarantees that
insure certain basic rights of the accused. The most important right has been the right to be
represented by counsel. During the second half of the 20th century this right was extended to
cover the time when a person is arrested until final appeal. Different countries set different times
at which an accused must be provided with counsel as well as different types of crimes for which
counsel must be provided if the accused is indigent. 

Over and above, the ‘right of equality and equal protection of laws’ 2, has been guaranteed to
every citizen as a fundamental right. The question whether the person is under arrest or not
depends on the legality of the arrest, on whether he has been deprived of his personal liberty to
go where he pleases. When used in the legal sense in the procedure connected with the criminal
offences, an arrest consists in the taking into custody of another person under authority
empowered by law for the purpose of holding or detaining him to answer a criminal charge or of

2
The Constitution of India, Art 14.

9
preventing the commission of the criminal offence. The Hon’ble Supreme Court of India said
that an arrest cannot be made simply because it is lawful for a police officer to do so. Arrest and
detention in police lock up can cause incalculable harm to the reputation and self-esteem of a
person. Therefore, arrest should not be made in a routine manner on mere allegation that a person
has committed an offence. In Joginder Kumar Vs. State of U.P & Ors., the Hon’ble Supreme
Court gave the guidelines on what basis should be the basis of arrest.3

There are certain fundamental rights of an accused person under the constitution of India. These
rights are given to all, irrespective of the fact if a person is accused of a crime. Therefore, till the
time the crime isn't proven, there are certain rights of persons accused of crimes. In India, these
rights to the accused are given on the lines of – 
‘Let hundreds go unpunished, but never punish an innocent person’.

The Universal Declaration of Human Rights, 1948 4, recognised certain human rights of an
individual, including an accused. The Code5 enacted in 1898 (as amended in 1973) also
contained many provisions giving various rights to an accused. The Indian Constitution, in tune
with the International endeavours, provided four basic principles to govern the criminal justice
system, viz,

(i) presumption of innocence,

(ii) prevention of ex-post facto operation of criminal law,
(iii) protection against double jeopardy and
(iv) due process concept.

The main rights of an accused have been recognised and guaranteed by either stated as under:

1. The Constitution of India or

2. Criminal Procedure Code

3
Joginder Kumar Vs. State of U.P & Ors , 1994SCC 260
4
Universal Declaration of Human Rights, 1948 (art 11)
5
Code of Criminal Procedure, 1973

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 RIGTHS OF ACCUSED UNDER CODE

This chapter includes detailed discussion of rights of the accused in Indian Criminal
Jurisprudence. Observing the trend of judiciary, it can be said that in most of the judgments of
1990s, between the rights of accused and justice to victim, the pendulum shifted to the rights of
accused and now it is being balanced.
The aim of criminal law is to protect the right of individuals and the state against the intentional
invasion by others, to protect the weak against the strong; the law abiding against the lawless. To
ensure free and fair trial so that an innocent person may not be victimized, an accused person is
entitled to certain basic rights and privileges to defend himself and prove his innocence before he
is condemned and punished. The three basic principles of criminal law are:
(i)  Firstly, that every person is presumed to be innocent until proven guilty,
(ii)  Secondly, that the burden of proving the guilt of the accused lies heavily on the prosecution
and it must be discharged beyond reasonable doubt; and
(iii)  Thirdly, the benefit of doubt is accorded to the accused coupled with the privilege of
silence.
Hence, the rights of the accused are given utmost importance and are “sacrosanct”.  Along with
the provisions of our Constitution and the Code of Criminal Procedure, several leading cases
have laid down the basic rights of the accused. Though, the basic human rights of the accused
ought to be given important, the balance between them and the rights of the victims need to be
maintained.
In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan 6 , it was said that the
laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for
safeguarding the rights of accused with the view to protect his (accused) dignity as a human
being and giving him benefits of a just, fair and impartial trail. However in another leading case
of Meneka Gandhi (Smt.) v. Union of India 7  it was interpreted that the procedure adopted by the
state must, therefore, be just, fair and reasonable.

6
Kishore Singh Ravinder Dev v. State of Rajasthan, 1981 AIR 625
7
Meneka Gandhi (Smt.) v. Union of India ,AIR 1978 SC 597.
11
The following are the rights available to the accused in Indian Criminal Jurisprudence:
1. RIGHTS OF ACCUSED: INNOCENT UNTIL PROVEN GUILTY
2. RIGHT OF THE ACCUSED TO PRODUCE AN EVIDENCE
3. RIGHT OF NOT BEING DETAINED FOR MORE THAN 24 HOURS WITHOUT
JUDICIAL SCRUTINY
4. RIGHT AT TRIAL
5. RIGHTS OF FREE LEGAL AID
6. RIGHT TO SILENT
7. RIGHTS OF ARRESTED PERSON

1. RIGHTS OF ACCUSED: INNOCENT UNTIL PROVEN GUILTY

One of the basic tenets of our legal system is the benefit of the presumption of innocence of the
accused till he is found guilty at the end of a trial on legal evidence. 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. The underlying principle of this system is “presumption of
innocent until-proved-guilty”. The legal ethics of our criminal justice system is “let thousands of
criminal’s be let out, but a single innocent should not be punished”.

2. RIGHT OF THE ACCUSED TO PRODUCE AN EVIDENCE

The accused even has right to produce witness in his defense in case of police report or private
defense. After the Examination and cross examination of all prosecution witness i.e. after the
completion of the prosecution case the accused shall be called upon to enter upon his defense and
any written statement put in shall be filled with the record. He may even call further for cross
examination. The judge shall go on recording the evidence of prosecution witness till the
prosecution closes its evidence. The accused in order to test the veracity of the testimony of a
prosecution witness has the right to cross-examine him. Section 138 of Indian Evidence Act,
1872 gives accused has a right to confront only witnesses. This right ensures that the accused has
the opportunity for cross-examination of the adverse witness. Section 33 of Indian Evidence Act
tells when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed

12
by issuing commission.

3. RIGHT OF NOT BEING DETAINED FOR MORE THAN 24 HOURS WITHOUT

JUDICIAL SCRUTINY

Whether the arrest is without warrant or under a warrant, the arrested person must be brought
before the magistrate or court within 24 hours. Section 57 provides as follows: “No police officer
shall detain in custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not, in the absence of a special
order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Court.” This right has been
further strengthened by its incorporation in the Constitution as a fundamental right. Article 22(2)
of the Constitution proves that “Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said period without the
authority of a magistrate.”

In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the state and
its police authorities to ensure that this constitutional and legal requirement to produce an
arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously
observed.
If police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention.

4. RIGHT AT TRIAL

(i) Right to a fair trial: The Constitution under Article 14 guarantees the right to equality before
the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an
open court trial. This provision is designed to ensure that convictions are not obtained in
secret. In some exceptional cases the trial may be held in camera. Every accused is entitled to

13
 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. . In the recent case titled as
8
Dr. Rajesh Talwar and another v. C.B., and another the Supreme Court observed that
Article 12 of the universal declaration of Human Rights provides for the right to a fair trial
what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of
Criminal jurisprudence
(ii) 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 9. This judgment
mandates that an investigation in trial should be held “as expeditiously as possible”. 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. Raj Deo Sharma v. State of
Bihar10 wherein the court ordered to close the prosecution cases, if the trial had been delayed
beyond a certain period in specified cases involving serious offences. The right to speedy
trial came to receive examination in the Supreme Court in Motilal Saraf v. State of J&K. 11
Dismissing a fresh complaint made after 26 years of an earlier complaint the Supreme Court
explained the meaning and relevance of speedy trial.

5. RIGHTS OF FREE LEGAL AID

In Khatri(II) v. State of Bihar12, the Supreme Court has held that the state is under a
constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused
person, an and the constitutional obligation to provide free legal aid does not arise only when the
trial commences but also attaches when the accused is for the first time produced before the
magistrate, as also when remanded from time to time. However this constitutional right of an
8
Dr. Rajesh Talwar and anr v. C.B., and anr, 2013 (4) R.C.R.(Criminal) 687
9
Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar
10
Raj Deo Sharma v. State of Bihar, 1998 SCC(Cri) 1692
11
Motilal Saraf v. State of J&K (2007) 1 SCC (Cri) 180
12
1981 SCR (2) 408
14
indigent accused to get free legal aid may prove to be illusory unless he is promptly and duly
informed about it by the court when he is produced before it. The Supreme Court has therefore
cast a duty on all magistrates and courts to inform the indigent accused about his right to get free
legal aid. Constitutional right cannot be denied if the accused failed to apply for it. Unless
refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing
setting aside of the conviction and sentence.13

6. RIGHT TO SILENT

The right to keep quiet does not have any mention in any Indian Law; however, its authority can
be derived from Code14 as well as the Indian Evidence Act. The right to stay silent is principally
related to the statement and confession made by the accused person in the court. In addition to
this, it is the responsibility of the magistrate to perceive if any statement or confession made by
the accused person was voluntarily or was after the use of force and manipulation. Therefore,
police or any other authority for that matter is not allowed to compel an accused person to speak
anything in the court. Article- 20(2) additionally, reiterates that no person whether accused or not
cannot be compelled to be a witness against himself. This act of exposing oneself is the principle
of self- incrimination. This principle was affirmed in the case of Nandini Satpathy v/s P.L.
Dani15, where the court held that no one can forcibly extract statements from the accused and that
the accused has the right to keep silent during the course of interrogation (investigation).
7. RIGHTS OF ARRESTED PERSON

The 2008 Act has brought a considerable change in laws relating to arrest. The original section
41 of the Criminal Procedure Code gave power to the police to arrest any person without warrant
who has been suspected of having committed any cognizable offence or against whom a
reasonable complaint has been made. The 2008 Act has inserted new sections 41A, 41B, 41C
and 41D. Section 41A requires the police to issue a notice to appear if the arrest of the person is
not required under the provisions of sub-section 1 of section 41. Section 41B lays down the
requirements to be followed by the police officer while making arrest. Section 41D gives the

13
Suk Das v. Union Territory of Arunachal Pradesh
14
Criminal Procedure Code, 1973
15
Nandini Sathpathy v. P.L.Dani 1978 SCR (3) 608

15
statutory right to arrested person to meet an advocate of his choice during interrogation. Broadly
speaking, the rights of an arrested person can be listed as the following:

 RIGHT TO BE PRESENTED BEFORE THE MAGISTRATE WITHIN 24 HOURS

OF ARREST (S. 56, 57, Cr.P.C)

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. Sec. 56 provides that a police officer making
an arrest without warrant shall, without unnecessary delay and subject to the provisions herein
contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in
the case, or before the officer in charge of a police station.
In consonance, Section 57, Cr.P.C provides 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 Hariharnand v. Jailor, the court been held that the arrested person will be
entitled to be released, If twenty four hours passed and the person arrested has not been produced
before Magistrate. The magistrate before whom the arrested person is presented is required to
apply his judicial mind to determine be whether the arrest is regular and in accordance with
law.16

 RIGHT TO KNOW THE GROUNDS OF ARREST (S.50(1), Cr.P.C)

Persons arrested must be informed of the full particulars of the offence committed and the
grounds for arrest. (Sec.50 Cr. P.C. & Art 22 (1) - Constitution of India)

 RIGHT TO INFORM A FRIEND/FAMILY OF ARREST (S.50-A, Cr.P.C.)

Sec. 50-A was incorporated in the Cr.P.C, An arrested person being held in custody is entitled, if
he desires, to have one friend, relative or other person, who is known to him or likely to take an

16
Hariharnand v. Jailor ; 1954 CriLJ 1317
16
interest in his welfare, told as far as practicable that he has been arrested and where he is being
detained. The police officer shall inform the arrested person when he is brought to the police
station of this right. The entry shall be required to be made in the diary as to who was informed
of the arrest.17  Some guidelines were issued required to be mandatorily followed in all cases of
arrest or detention which include, the arresting authority should bear accurate, visible, and clear
identification along with their name tags with their designation, the memo be signed by the
arrestee and family member, the family or the friend must be told about the arrest of the accused,
The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation and many other.18
 RIGHT TO HAVE A LAWYER PRESENT AT THE TIME OF
INTERROGATION (S. 41-D, Cr.P.C)

When any person is arrested and interrogated by the police, he shall be entitled to meet an
advocate of his choice during interrogation, though not throughout interrogation. The right of an
arrested person to consult his lawyer begins from the moment of his arrest. The consultation with
the lawyer may be in the presence of police officer but not within his hearing.

 RIGHT TO BE RELEASED ON BAIL IN CASE OF NON-BAILABLE OFFENCE

(S. 50(2), Cr.P.C)

Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any person
other than a person accused of a non- bailable offence, he shall inform the person arrested that he
is entitled to be released in bail that he may arrange for sureties on his.” This will certainly be of
help to persons who may not know about their rights to be released on bail in case of bailable
offences. As a consequence, this provision may in some small measures, improve the relations of
the people with the police and reduce discontent against them. It is the duty of the police officer
incharge to intimate this.  Bail not Jail is the Rule of Law. Similarly, persons accused of non-
bailable offence may be granted bail at the discretion of Court, on application.

 RIGHT TO BE MEDICALLY EXAMINED (S. 53, 54, 53-A, 164-A, 55-A)

17
JoginderSingh v. State of U.P
18
D.K. Basu v. State of W.B  (1997) 1 SCC 416

17
The person arrested, has a right to be examined by a registered medical practitioner (Sec.54) to
disprove, the commission of Offence or to prove the ill-treatment of the police or any other
suitable reason. (S.54 Cr. P.C). In the case of a woman the medical examination has to be made
only by a female registered medical practitioner.
 RIGHT AGAINST SOLITARY CONFINEMENT
Although, one of the mode of punishment is solitary confinement, but certain restrictions have
imposed on the type of punishment to protect the right of convict to mingle with other convicts.
In Sunil Batra (1) v. Delhi Administration 19, it was held 'if by imposing solitary confinement
there is total deprivation of camaraderie (friendship) among co prisoners commingling and
talking and being talked to, it would offend Article 21 of the Constitution. The liberty to move,
mix mingle, talk, share company with co-prisoners if substantially curtailed would be violative
of Article 21 unless curtailment has the backing the law. The Court held that continuously
keeping a prisoner in fetters day and night reduces the prisoners from a human being to an
animal and that this treatment was cruel and unusual that the use of bar fetters was against the
spirit of the Constitution.
 RIGHT AGAINST INHUMAN TREATMENT
The accused and convict in criminal system of the country have the rights to live with
dignity. Therefore, they should not be subjected to the inhuman treatment. In Kishore
Singh v. State of Rajasthan20 the Supreme Court held that the use of third degree method
by police is violative of Article 21 and directed the Government to take necessary steps to
educate the police so as to inculcate a respect for the human person. The Court also held
that punishment of solitary confinement for a long period from 8 to 11 months and
putting bar fetters on the prisoners in jail for several days on flimsy ground like loitering
in the prison, behaving insolently and in an uncivilized manner

 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.

19
Sunil Batra (1) v. Delhi Administration , AIR 1978 SC 1575.
20
Kishore Singh v. State of Rajasthan , AIR 1981 SC 625
18
  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.

 RIGHT TO GET COPIES OF DOCUMENTS:

The accused has the right to receive copies of all the documents filed by the prosecutor in
relation to the case.

 RIGHT TO CROSS-EXAMINATION:
 The accused has the right to be cross-examined by the prosecutor to prove his innocence.

19
 RIGHTS OF ACCUSED UNDER CONSTITUTION

The main rights of an accused which have been recognised and guaranteed by the Constitution
may be stated as under:
 Right of equality and equal protection of laws;
 Right against ex-post facto operation of law;
 Protection against double jeopardy;
 Protection against self-incrimination;
 Right to have freedom from unwanted arrest and matters incidental thereto;
 Right relating to pre-trial detention and matters incidental thereto; and
 Right to approach higher judicial authority for filing appeal, etc.

1. Right of equality and equal protection of laws         

Fundamental Rights have been declared essential rights" in order that 21 “human liberty may be
preserved, human personality developed and an effective social and democratic life promoted” 22
The ‘concept of equality’ as enshrined in Article 14 of the Constitution of India prohibits the
state from denying equality before the law or the equal protection of the laws to any person on
the ground of caste, creed, faith, race, religion, birth and place. The effective derivative source of
the doctrine in the criminal justice is Article 21 of the Constitution of India which provides that:
“No person shall be deprived of his life or personal liberty except according to the procedure
established by law.” The role of the doctrine of equality becomes more significant in the context
of the rights of a person who happens to be an accused of having committed a crime. This
doctrine aims to achieve equality amongst unequal in prohibiting every kind of unjust,
undeserved and unjustified inequalities in the administration of justice. 

2. Protection against Ex-post Facto operation of Criminal Laws              

An ex-post Facto law is a law, which imposes penalties retrospectively, i.e., on acts already
done, and increases the penalty for such acts.  Clause (1) of the Article 20 imposes a limitation
on the law-making power of the legislature and prohibits the legislature to make retrospective
21
Kumar, Narender, Constitutional Law of India Delhi (1997), p.50.
22
Jain 457 Quoted by Kumar Narender,op.cit.

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criminal laws. However, it does not prohibit the imposition of civil liability retrospectively, i.e.,
with the effect from past date.  Article 20(1) runs as under:
“No person shall be convicted of any offence except for violation of the 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.” The second part of clause (1) protects a person from „a penalty greater than that which
he might have been subjected to at the time of the commission of the offence.‟ In Kedar Nath v.
State of West Bengal,23 the accused committed an offence in 1947, which under the Act then in
force was punishable by imprisonment or fine or both.

3. Protection against Double Jeopardy

Clause (2) of article 20 of the Constitution recognises another important Human Right as a
fundamental right of every citizen when it provides that: “No person shall be prosecuted and
punished for the same offence more than once”. This clause embodies the common law rule of
‘nemo debt visvexaria’ which means ‘no man could be put twice in peril for the same offence’. if
a person is tried and acquitted or convicted of an offence, he cannot be tried again for the same
offence or on the same facts for any other offence. This doctrine has been substantially
incorporated in the Article 20(2) of the Constitution and is also embodied in Section 300 of the
Criminal Procedure Code, 1973.24 If he is prosecute again for the same offence for which he has
already been prosecuted he can take complete defence of his former conviction.  This right is
also provided in the CrPC,1973.

4. Protection against Self-Incrimination

Clause (3) of Article 20 provides that “No person accused of any offence shall be compelled to
be a witness against himself.” In other words, this Article prohibits all kinds of compulsions to
make a person accused of an offence a witness against himself.  In this context, Supreme Court
in the case of M.P. Sharma v. Satish Chandra25 , had observed that this right embodies three
essentials, viz., (a) it is a right pertaining to a person who is “accused of an offence”; (b) it is a
protection against “compulsion to be witness”; and (c) it is a protection against such compulsion

23
Kedar Nath v. State of West Bengal; AIR 1953 SC 404
24
Natrajan v. State, 1991; Cri LJ 2329 (Mad).
25
M.P. Sharma v. Satish Chandra ; AIR 1954 SC 300

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relating to his giving evidence “against himself”. This right can also be said to be the ‘right to
silence’. It may be mentioned that while the CrPC enjoins an accused person to answer truthfully
the questions put to him by an investigating officer, Article 20(2) gives him protection against
self-incrimination. In Nandini Satpathy v. P.L. Dani26 , the Supreme Court has considerably
widened the scope of clause (3) of Article 20.

5. Right to have freedom from unwanted Arrest and matters incidental thereto
The arrest of a person has serious implications as it amounts to depriving him of his personal
liberty. Protection of ‘personal liberty of an individual’ is his basic human right and, thus, in
order to protect his human right relating to dignity of a person while arrest, the Supreme Court
has interpreted Article 21 of the Constitution in favour of the accused. In India, arrest can be
made with a warrant or without one. In the former case, there is already application of mind by
judicial authority, while in the latter case; such arrested person is required to be brought within
24 hours of arrest before the judicial authority. Clause (1) and (2) of the article 22 guarantee the
following rights to the persons who are arrested under an ordinary law:
1. The right to be informed, as soon as may be, of the ground of arrest;
2. the right to be produced before the magistrate within 24 hours;
3. Freedom from detention beyond the said period except by the order of magistrate.
The delay in informing the grounds of arrest must be justified by reasonable circumstances. The
Supreme Court in the case of State of M.P. v. Shobharam27, has held that ‘this right cannot be
dispensed with by offering to make bail to the arrested person’. Further, Supreme Court by its
two leading judgements given in the cases of Joginder Kumar v. State of U.P.28, and  D.K. Basu
v. State of West Bengal29 , have laid down certain guidelines which should be invariably
followed by the police and other officers arresting a person during investigation.

26
Nandini Satpathy v. P.L. Dani, AIR 1954 SC 300
27
State of M.P. v. Shobharam , AIR 1966 SC 1910
28
Joginder Kumar v. State of U.P. ,(1994) 2 SCALE Vol. II No. 7. 662.
29
D.K. Basu v. State of West Bengal , AIR 1997 SC 610.

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 6. Rights relating to Pre-Trial Detention and Incidental Matters

Many rights of an accused during custody- police or judicial- during trial have been recognised
by the Supreme Court as implicit in the Article 21 of the Constitution. An accused person is also
a human being and, therefore, when he is in custody, during trial or awaiting for trial for any
reason, his human dignity should be protected. In the case of Sunil Batra (No.2) v. Delhi
Administration30 the learned Justice Krishna Iyer, delivering the majority judgement, has held
that the ‘integrity of physical person and his mental personality is an important right of a
prisoner, and must be protected from all kinds of atrocities’. It was opined that ‘under trials were
presumably innocent until convicted and the practice of keeping under trials with convicts in jails
offended the test of reasonableness in Article 19 and fairness in Article 21 of the constitution’. It
was also held that ‘the accused persons, in pre-trial or during trial detention, are entitled to fair
and decent treatment by way of comforts, medical attention, etc., so that their humanity is not
degraded and dignity is not offended.
The Supreme Court in appropriate cases has also awarded the monetary compensation where
there have been violations of the constitutional rights of accused or convicts.  By the landmark
judgment delivered in Nilebati Behera v. State of Orissa31, compensation of Rs. 1,50,000 was
awarded by the Supreme Court to the mother of the accused who died in police custodydue to
beating. In D.K. Basu v. State of West Bengal 32, the Supreme Court while pronouncing a
landmark judgment on ‘rights of an arrestee’, ’duties of police at the time of arrest’, ‘custodial
deaths’ and ‘powers of courts in the matter of torture to arrestee’ had declared that the court is
empowered to award monetary compensation to an arrestee for the torture during the period of
detention.

7. Right to Approach Higher Judicial Authority by way of filing Appeal, etc

The Constitution of India has envisaged an appeal to the Supreme Court in Criminal matters.
Articles 132 and 134 of the Constitution provide for an appeal to the Supreme Court on the
‘certificate of fitness’ granted by the high courts and also for an appeal to the Supreme Court by
special leave granted by it under Article 136 of the Constitution; but the appeal by special leave

30
Sunil Batra (No.2) v. Delhi Administration ,1980 AIR 1579
31
Nilebati Behera v. State of Orissa , (1993) 2 SCC 746.
32
D.K. Basu v. State of West Bengal ,AIR 1997 SC 610.

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may be filed only when certificate applied for filing an appeal has been refused by the High
Court.

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 CONCLUSION

The Code of Criminal Procedure, 1973 and Constitution of India provides certain Various
safeguards but till date the power of arrest given to the police is being misused.  It is believed till
today that the police use authority in order to threaten arrested people and extort money from
them. There have been reports that the police fail to inform the arrested people against the
charges against them and do not provide them with adequate means of representation they should
get. India faces a huge problem of illegal arrests as well as custodial deaths which are majorly
caused due to illegal arrests. Thus it is very important to bring changes in Criminal Justice
Administration so that the State knows that its primary duty is to seize and reform the wrongdoer
and not just punish him. All of the proceedings go according to the Rule of Law which regulates
functions of all organs of the State’s Machinery. These problems undermine the essence
of Article- 21 of the Indian Constitution as well as the fundamental human rights that are
available to everyone under the Universal Declaration of Human Rights. So the Indian
Constitution recognizes the right to personal liberty under Article 21 and also provides that it can
be violated only by a fair and reasonable procedure established by law. Thus, personal liberty
being the cornerstone of our social structure, the concept of arrest and legal provisions related to
it have special significance.

It is to the first and foremost duty of the police to protect all individuals and their rights in
society which also includes the arrested people. Thus, it is the duty of the police to also protect
the rights of the accused and make sure that they are treated fairly according to the proceedings
established by law and not harassed unnecessarily.

The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated
that the accused has the right to know the rights given to him under law and how to enforce such
rights. There have also been criticisms that the police fail to inform the persons arrested of the
charge against them and hence, let the arrested persons flounder in custody, in complete
ignorance of their alleged crimes. This has been attributed to the Colonial nature of our Criminal
Justice System where the duty of arrest was thrust upon the Indian officers while the Britishers

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drew up the charge against the accused. Thus, it is entirely possible that the English origins of
the Indian Criminal Justice system may have resulted unwittingly in the rights of the arrested
persons falling through the cracks.

There is imminent need to bring in changes in Criminal Justice Administration so that state
should recognize that its primary duty is not to punish, but to socialize and reform the wrongdoer
and above all it should be clearly understood that socialization is not identical with punishment,
for its comprises prevention, education, care and rehabilitation within the framework of social
defence. Thus, in the end we find that Rule of law regulates the functionary of every organ of the
state machinery, including the agency responsible for conducting prosecution and investigation
which must confine themselves within the four corners of the law.

It is the duty of the police to protect the rights of society. It must be remembered that this society
includes all people, including the arrested. Thus, it is still the police’s duty to protect the rights of
the accused person. Hence, in light of the discussed provisions, a police officer must make sure
that handcuffs are not used unnecessarily, that the accused is not harassed needlessly, that the
arrested person is made aware of the grounds of his arrest, informed whether he is entitled to bail
and of course, produced before a Magistrate within twenty-four hours of his arrest.

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 BIBLIOGRAPHY

BOOKS:

1. Pandey, J. N., Constitutional Law of India, (Allahabad: Central Law Agency, 2003).
2. Ratanlal and Dhirajlal's the Code of Criminal Procedure (Act II of 1974)

LEGISLATIONS:

1. THE CONSTITUTION OF INDIA, 1950

2. CRIMINAL PROCEDURE CODE, 1973

WEBSITES:

https://lawschoolnotes.wordpress.com/2017/08/18/provisions-relating-to-arrest-under-crpc/

http://lawtimesjournal.in/arrested-persons-rights-under-crpc/

http://www.legalservicesindia.com/article/1635/Rights-of-Arrested-Person.html

https://www.myadvo.in/blog/rights-of-accused-in-india/

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