This article is written by Kartik Bohra, from Symbiosis Law School, Hyderabad. In this article, various legal provisions relating to the legal protection available to an accused person during the trial has been discussed.

Introduction

A person under the custody of the police or under-trial possess does not lose his fundamental rights and human rights merely because of incarceration. This is based on the principle that “hundreds of guilty persons may get scot-free but one innocent should not be punished.” The Criminal jurisprudence provides immense protection to the accused person which is expressly given under the provisions of the Indian Constitution. The accused should be treated as innocent until proven guilty by the prosecution. The legal protection available to the accused person is based on one of the cardinal principles of “presumption of innocence.” The principle provides that there is always a presumption of innocence lie on behalf of the accused person and he is always presumed to be innocent until the prosecution proves his guilt beyond the reasonable doubt. The legal protection is a statutory right of the accused person which is enshrined under the Indian Constitution as well as different provisions of criminal law. These rights are available during the trial, at the time of arrest and at the time of the search, and seizure, etc. These rights should not be prejudiced to protect the rights of the victim.

The Code of Criminal Procedure, 1973 laid down various rules and procedures which needs to be followed by investigating agencies and criminal courts at the time of collection of evidence, interrogation, arrests, the examination of witnesses, method of conviction of the accused and a free and fair trial before the court of law. These procedures have to be taken into consideration by the investigating agencies and criminal courts to uphold the basic human rights and the constitutional rights of the accused person. The accused has a right to be protected against any illegal and arbitrary arrest by a law enforcement body. Police authorities have wide powers granted under criminal law to arrest and investigate the accused person charged under Cognizable offence without producing him before the magistrate. However, the Court should be vigilant at the time of the trial of an accused person so that police have not misused any power for personal benefits. 

Objective

The main intention of the legislature in providing a basic legal right to the accused person is to maintain the human dignity which is available to every citizen of India under the Constitution of India. The accused person should be treated equally like any other human being until proven guilty beyond the reasonable doubt. He should not be denied any legal right merely because he has committed an offence or is in conflict with the law. Therefore, the criminal jurisprudence provides for legal protection to the accused during the investigation and trial before the court of law.            

Who is an accused under Criminal law

The term “accused” has not been defined anywhere in the Code of Criminal Procedure, 1973. However, in general, it can be defined as the person charged with conflict of law or infringement of the law which is enshrined under the criminal law. The accused is liable for such actions and if convicted then to be punished under the relevant provisions of Indian Penal Code, 1860 or any other relevant law for the time being in force. Also, the accused person cannot be said to the convicted person. Thus, the accused has similar rights guaranteed to every citizen of the country except his liberty can be curtailed according to the provisions of law.  

A criminal trial in India

A criminal trial is largely governed by the Code of Criminal Procedure, 1973. The procedure for a criminal trial in India, is primarily, except as otherwise provided, governed by The Code of Criminal Procedure, 1973. The Indian Evidence Act, 1882 also provides various provisions regarding a criminal trial in India. It provides the manner of production of evidence during the trial and evidentiary value of any evidence put forth by the parties before the court of law. Evidence law also prescribes detailed provisions regarding the expert, presumptions and scientific evidence. Further, Indian law follows the adversarial system of trial where the onus or burden is on the State or prosecution to establish the guilt of an accused person beyond the reasonable doubt.

It is observed that India’s criminal jurisprudence has highly developed and consists of various legal provisions which help in a free and fair trial to both the victim and the accused. These provisions are backed by strong legislation and judicial precedents. However, there are certain incidences of extra-judicial acts happening throughout the country which raises a serious question relating to the execution of law by the police and their implementation by the judiciary. A criminal trial in India is well defined under criminal law and provides an effective and efficient mechanism of appeal and review before the court of law. The accused has all the rights guaranteed under criminal law to file an appeal, review or revision against the order passed by the lower court. Therefore, a criminal trial in India is based on the concept of the fair and speedy trial so that the rights of both the accused and victim cannot be prejudiced.   

Legal position in India

The Indian laws are well defined when it comes to the rights of accused during a criminal trial. There are various provisions under criminal law and specific law which deals with the issue of rights of an accused. Several judicial precedents provide effective remedies to the accused person during a criminal trial. The intent of the legislation in providing effective provisions during a criminal trial is that the innocent person should not be punished by the court of law. The Indian courts have also laid down several guidelines and precautions which must be taken by the law enforcement agencies at the time of arrest and during a criminal trial to secure and achieve the principle of fair trial and natural justice. These rights are guaranteed to the accused person to reduce his mental and physical suffering during the trial. The concept of a speedy trial was also introduced in India to protect the rights of both the victim and the accused. Therefore, the rights of an accused person are backed by several provisions of criminal law. 

Protection under the Code of Criminal Procedure, 1973, the Indian Penal code, 1860 and the Indian Evidence Act, 1872

The Code of Criminal Procedure, 1973 provides certain provisions to protect the person from custodial torture. There are various provisions enshrined under CrPC which should be kept in mind by police officials while having custody of the accused or suspected person. The power to arrest any person is given under Section 41 of the Code. This section clearly states that a police officer has the power to arrest any person to investigate the case further, but has no power to use unnecessary force to extract the information from that person. Also, the power given to the police officer is discretionary as the word “may” is used in the section. So, it is his duty to arrest a person according to the facts and circumstances of the case and not otherwise.

In the case of State of Andhra Pradesh v. Venugopal and Ors (1963)., the court held that torture in the custody of the police is a serious crime and punished the perpetrators of the crime with rigorous imprisonment of 5 years. Section 161 of the Code provides for the statement to be recorded with all the facts and circumstances of the case by the police officer. This statement must be distinguished from the information which starts the investigation. Section 161 (2) provides that a person accused must not be bound to answer those questions which would tend to expose him to a criminal charge. Also, Section 164 of the Code provides for the confessional statement. It is observed in this case that a magistrate must take to see the requirements under section 164 are fully satisfied.

Further, certain provisions of the Indian Penal Code also provides for the protection of the accused under the custody of the police. Section 330 and 331 of the Code provides for the protection of the accused from unnecessary harassment in custody as well as to extort information without his will. Also, the code provides that a police officer is liable to be punished if he exercises or abuses his power without any necessity. The accused is also protected under the provisions of the Indian Evidence Act. Section 25 of the Act provides that a confession made to the police cannot be admitted in court. Also, Section 26 of the Act provides that a confession made to the police by the person cannot be proved against such person unless it is made before the magistrate.  

Legal protection under the Constitution of India

The constitution of India is considered as a basic source of fundamental rights and laws which governs the rules and regulations in the country. The all other laws in India must be consistent with the provisions of the constitution. The constitution of India, as well as criminal law,  provides for the protection of rights of accused and convicted persons. The constitution of India provides legal protection to the accused person to uphold the fundamental rights of an individual so that procedure laid down under criminal law should be ‘right, just and fair’ and not in any oppressive and arbitrary manner. It is necessary to provide legal protection to the accused person during the trial to grant him free and fair trial without misuse of powers by the government authorities. 

In the case of Kishore Singh Ravinder Dev v. State of Rajasthan (1981), the court held that the Indian constitution, evidentiary and procedural laws have consist of elaborate provisions regarding the legal protection of the rights of an accused person during the trial and to protect his human dignity and providing him benefits of a just, fair and impartial trial by the court of law.

• Protection against Ex-Post-Facto Law

Article 20 (1) of the Indian Constitution protects an accused person against ex-post-facto law. In simple terms, it means that if an act of the accused person is not an offence at the time of the commission of it cannot be an offence at the time after its commission. The court has no power to hold the accused guilty of any action when he committed was not an offence under IPC or any other specific law. The Universal Declaration of Human Rights, 1948 under Article 11, paragraph 2 also provides freedom from ex-post-facto laws. However, this protection is given to the accused person against conviction or sentence for a criminal offence and not against the trial before the court of law. Thus, if the trial of an accused person is held under a different procedure after the commission of an act cannot be ipso facto be held unconstitutional. 

In the case of Kedar Nath v. State of West Bengal (1954), the accused committed an offence in 1947, where he was punishable for imprisonment or fine or both. However, the Act amended in 1949 which provides punishment of fine equivalent to the amount of money he received by committing that particular offence. The Supreme Court held that the amendment Act of 1949 did not apply to accused as it was considered as the ex-post-facto law. The court also observed that an enhancement in the punishment of an offence cannot be applicable to the accused subsequently and accused can take advantage of the beneficial provisions of the ex-post-facto law.

• Protection against Double Jeopardy

Article 20(2) of the constitution of India protects an accused person against double jeopardy. The concept of double jeopardy is based on the legal maxim “Nemo debut bi’s punibi prouno delicto” which means that no one should be punished twice for the same offence or same fault. The doctrine of double jeopardy explains that if a person is tried for an offence, he cannot be tried for the same cause of action or the same offence before the court of law. According to this principle, if a person has been convicted or acquitted for any offence by the court of competent jurisdiction, any subsequent conviction or acquittal for the same offence would be considered as double jeopardy and violative of Article 20(2) of the Indian Constitution and Section 300 of the Code of Criminal Procedure, 1973.

In the case of Natarajan v. State (2005), the Supreme Court observed that “person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.”

• Prohibition against self-incrimination

Article 20(2) of the Constitution of India provides for the protection against self-incrimination or testimonial compulsion. It states that no person accused of any offence shall be compelled to be a witness against himself. Thus Article 20(3) embodies the general principles of English and American jurisprudence that no one shall be compelled to give testimony which may expose him to prosecution for crime. It is the right of the accused to make any statement or admission voluntary without any coercion during the trial or custody. This right of the accused extends to any person charged for an offence under criminal law and prohibits all kinds of illegal compulsions to make him a witness against himself. 

In the case of M.P. Sharma v. Satish Chandra (1954), the Supreme Court observed the following essentials. (a)  It is a right pertaining to a person who is “accused of an offence” (b)  It is a protection against “compulsion to be a witness”  and (c) It is a protection against such compulsion relating to his giving evidence “against himself.”

In another case of Nandini Satpathy v. P.L Dani (1978), the Supreme Court held that the prohibitive scope of Article 20(3) goes back to the stage of police interrogation not commencing in court only. It extends to and protects the accused regarding other offences-pending or imminent, which may deter him from voluntary disclosure. The phrase compelled testimony must be read as evidence procured not merely by physical threats or violence but by psychic (mental) torture, atmospheric pressure, environmental coercion, tiring interrogatives, proximity, overbearing and intimidatory methods and the like.  

Legal aid to the accused in criminal law

Article 39-A of the Indian Constitution provides for the right to free legal to the accused due to poverty and indigent reasons where he has no means to appoint or engage a counsel for the defence before the court of law. The state is under the constitutional obligation to provide free legal aid to the accused person under Article 21 which is explicit under Article 39-A of the Indian Constitution. 

• In the case of Sukh Das v. Union Territory of Arunachal Pradesh (1986), the Supreme Court held that it is the duty and responsibility of the state to provide free legal to accused if he has no means to engage a counsel to promote a free and fair trial before the court of law and without affecting the principle of natural justice. 
• In the case of Khatri v. State of Bihar (1981), the Supreme Court held that the state is under the constitutional mandate and obligation to provide free legal aid to the poor and indigent person to uphold his basic human rights and the principle of natural justice by giving a free and fair trial. Free legal should not only be provided at the commencement of a trial but also at the time of arrest of an accused when he is for the first time produced before the magistrate. Further, the court observed that providing free legal aid to an accused person has no use if he is not being informed by the authorities about his rights. Therefore, the apex court held that it is the duty of the magistrate and the court to inform a poor or indigent person about his right to get free legal aid from the state.   

Therefore, the right to free legal aid is a basic fundamental right to secure free and fair trial before the court of law and to uphold the principle of natural justice. It is provided by the constitution of India that justice and fair trial should be available to the accused during all the stages of criminal proceedings. Further, it ensures that the right is available to the accused person when they are most vulnerable and lack of access to legal advice. These principles are required under criminal jurisprudence to strengthen the criminal justice system in India. Section 12 of the Legal Service Authorities Act, 1987 also provides for the legal aid services to the accused person during the trial stage. Therefore, it is the responsibility of the state to provide basic legal aid to the accused person during the criminal trial to preserve the principle of natural justice and a free and fair trial. 

• In the case of Sheela Barse v. the State of Maharashtra (1987), the Supreme Court held that whenever a person is arrested by the police and taken to the police lock-up, the police will immediately give an intimation of the fact of such arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps to provide legal assistance to the arrested person at State cost provided he is willing to accept such legal assistance.

Concept of speedy trial

The concept of speedy trial is based on the principle of “justice delayed is justice denied.” speedy trial to an accused person is considered as an integral part of Article 21 of the Constitution of India. It is believed that the state as a guardian of the constitution and fundamental rights of its citizens has the duty to provide the speedy justice to the victim and try unnecessary delays in the criminal cases which led to a miscarriage of justice. Speedy trial is given that much weightage to ensure that the defendant does not suffer from any prejudices such as situations where witnesses die, disappear, or simply become unable to recall events due to the passage of time. Thus, the effort is required to be made to improve the management of the prosecution in order to increase the certainty of conviction and punishment for most serious offenders.

While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition as was stated in the case Mangal Singh v. Kishan Singh (2008), wherein it has been observed that  “any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in a trial does not cause acute suffering and anguish to the victim of the offence. In many cases, the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in a trial to the accused and to completely deny all justice to the victim of the offence.” The societal interest here, not only includes the rights of accused but that of victims also. It is not only the accused who go through a lot of pain, but there are victims also who suffer equal amounts of stress.

In the case of Hussainara Khatoon v. State of Bihar (1979), the Supreme Court held that speedy trial is an essential ingredient of „reasonable, fair and just‟ procedure guaranteed by Article 21 and that it is the constitutional obligation of the state to devise such a procedure as would ensure speedy trial to the accused. The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this court, as the guardians of the fundamental rights of the people, as a sentinel on the qui vie, to enforce the fundamental right of the accused to a speedy trial by issuing necessary directions to the State.

Conclusion

Hence, the author concludes that it is fundamental as well as the human right of the accused to be protected against the illegal actions of the state. The Code of criminal procedure, the Indian Evidence Act and the constitution of India provides the legal protection to the accused person during the trial proceedings before the court of law. nowadays, it has been observed that there is a significant increase in the death and violence of an accused person in the police lock-ups. Many deaths have taken place in the custody of police but no attention has been paid to it by the administration. Custodial deaths are unacceptable in a democratic country like India where each and every citizen of the country has the right to life and personal liberty enshrined under Article 21 of the Constitution of India. Fundamental principles of criminal jurisprudence also provide for the fair and reasonable investigation of the accused.  It is the duty of the state to preserve the constitution of India and make certain amendments to the law which are prima facie in violation of rule of law. 

References

• http://gjar.org/publishpaper/vol2issue9/d317r39.pdf
• https://acadpubl.eu/hub/2018-119-17/1/25.pdf
• https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/the-convention-in-brief.html
• https://lawtimesjournal.in/arrested-persons-rights-under-crpc

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: