Section 89 of IPC
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This article is written by Soumali Roy who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.


One of the cardinal principles of the criminal justice system in India is that an accused is surmised to be innocent unless proven guilty beyond a reasonable doubt. In Indian system, it is said, if there are two views: one pointing towards the guilt of the accused and other towards his innocence, the view pointing towards his innocence should be affirmed. J J Krishna Iyer has expressed “Every saint has a past, every sinner has a future” and K. T. Thomas J has said, “Theory of reformation through punishment is grounded on the sublime philosophy that every man is born good, but circumstances transform him into a criminal”. For the process of criminal justice, the Criminal Procedure Code prescribes to the adversarial system based on accusatorial methods.

The adversarial structure of trial in India follows an indispensable cornerstone that is “presumption of innocence” of the accused. The accused does not have to demonstrate that he is NOT guilty, the burden of proving the accused guilty is on the party that undertakes to formulate his guilt. The judge serves as an unbiased arbiter between the opposing parties. He bears to oversee the prosecution, justify their case beyond reasonable doubt against the accused. Here the phrase “beyond reasonable doubt” means that there has to be a tether of evidence by the parties, so complete as to establish that in all human probability the accused has performed the act.

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Why does an accused need statutory protection during a criminal trial?

It is a component of our democratic society that indeed the rights of the accused are believed to be sacrosanct and venerated even though he is charged with an offence, however, that does not portray him as a non-person.  Our statute is fairly careful towards everybody’s “personal liberty” and hence doesn’t endorse the incarceration of any person without precise legal sanction.

An individual in custody of the police, an under-trial or an imprisoned individual does not lose his human and fundamental rights by virtue of confinement. The two cardinal precepts of criminal jurisprudence are that the prosecution must prove its charge against the accused beyond the dimmer of reasonable doubt, and the onus to substantiate the guilt of the accused to the shaft is parked on the prosecution and it never shifts.

The prosecution has to stand on its own legs to bring home the culpability of the accused conclusively and affirmatively, and it cannot take advantage of any vulnerability in the defense version. The aim of the legislature in casting down these principles has been that hundreds of guilty persons may go scot free, but even one innocent should not be punished. Indian Constitution itself furnishes some essential rights/safeguards to the accused persons which are too followed by the authorities during the process of criminal administration of justice. There are some provisions which categorically and directly create important rights in favour of the accused/arrested individual.

Article 21 of our Constitution provides that there will be no person who shall be deprived of his life or personal liberty except according to procedure established by law. The procedure laid down by this article must be followed in a ‘legitimate, just and impartial’ manner and not in any arbitrary, whimsical or tyrannical fashion. It is foreseen that the arrest should not solely be legal but justified as well. Even the Constitution of India recognizes the rights of an incarcerated person under the Fundamental Rights.

Hence, the accused has been handed over with numerous rights under the law and the general motive behind these rights is that the government has provided enormous resources for the prosecution of individuals’, and thus accused are warranted to some safeguard from mistreatment of those powers by the government.

Consequently, the accused has bestowed in him various rights during any investigation; enquiry or trial of an offence with which he is charged and hence, he should be protected against any form of frivolous or unlawful arrest. It is to be mentioned that no arrest can be formed on the basis of mere suspicion or information. No matter how much the level of suspicion is or however reprehensible it is, no private person is allowed to seek and arrest a person on the statement of another private person.

Protection available to the accused under the Code of Criminal Procedure, 1973 (the Code)

Right to be discharged when there are no sufficient grounds- Section 227 of the Code

If the judge finds out that there are no satisfactory grounds for advancing against the Accused after examining the record of the case, the documents submitted, and after hearing the submission of both the parties (the Accused and the Prosecution), he has to discharge the accused after opening his reasons for doing so. This provision is beneficial for the accused to spare him from prolonged harassment, because of protracted trial.

Right to present evidence- Section 243(1) the Code

After the fulfillment of the Prosecution evidence, the submission of the Prosecution arguments, and the examination of the accused person, the accused receives the right to enter his defense and present his evidence. The accused may call any witness after applying to the Magistrate to promulgate any process for compelling the attendance of a witness for examination or cross-examination, or the production of any document or thing. The court cannot rebuff the application to compel the attendance of a witness unless it encounters that the application is vexatious or for defeating the ends of justice.

Right to be present when evidence is taken-Section 273 of the Code 

The accused has the right to be present when evidence is taken in the course of the trial or other proceeding if the accused’s personal appearance is dispensed with, evidence shall be taken in the presence of his pleader.

Right to be defended-Section 303 of the Code

A person accused of any criminal offence has the right to be defended by a pleader of his choice, as provided by section 303 of the Code and Article 22(1) of the Indian Constitution.

Right to get bail-Section 437-439 of the Code

Every accused has the right to bail in the event of bailable offences. Any person accused of a bailable offence will be given bail as a matter of right, it can’t be denied. In case of non-bailable offences the discretion remains with the Court whether the accused shall be given bail or not. In case of non-bailable offences, the accused does not get bail as a matter of right. The Court might grant him bail on certain conditions like, he admits to show up and coordinate for investigation by the police as and when compelled, he shall not make any intimidation to any person acquainted with the facts of the case so as to deter him from disclosing such facts, he cannot leave the country without the permission of the Court, etc.

Right to request for Anticipatory Bail-Section 438 of the Code

When an individual apprehends that he might get arrested on an accusation of having committed a non-bailable offence, he has the right to apply for Anticipatory Bail before the High Court or the Court of Sessions and such court can grant him bail with the direction that if he is arrested then he shall be promptly released on bail. The Court grants an Anticipatory Bail on the following considerations:

  1. The nature and gravity of the offence the person applying for Anticipatory bail has been accused of.
  2. Whether the person has any previous criminal antecedents of committing any cognizable offence and undergone imprisonment on conviction for such offence.
  3. The possibility of the applicant to flee from justice.
  4. Whether the accusation has been made just to harass and humiliate the Applicant by getting him arrested.

If the Court agrees to grant Anticipatory Bail to the Applicant, it may include certain conditions which he has to comply. The conditions are akin to the grant of bail in case of non-bailable offences like he has to make himself available for interrogation as and when required, he shall not flee from the country without permission and so on.

Protection available to the accused under the Constitution of India, 1950

Protection against Ex-post facto law-Article 20(1)

An Ex post facto law is a law which inflicts penalties retrospectively, which means on acts which have previously been done. A Legislature can make prospective as well as retrospective laws. But Article 20(1) constrains the Legislature to make retrospective criminal laws. It says that a person cannot be convicted for an offence, which was not an offence at the date of its commission. The protection under this section is available only against conviction or sentence for a criminal offence under ex post facto law and not against the trial. In the case of Pareed Lubha v. Nilambaram, AIR 1967 Ker 1955, it was held that non-payment of panchayat tax was not an offence on the date it became due, so the defaulter cannot be convicted for the omission to pay under a law passed subsequently which made it an offence.

Protection against double jeopardy-Article 20(2)

Article 20(2) of the Constitution of India says that “no person shall be prosecuted and punished for the same offence more than once”. This clause embodies the common law rule of “nemo debet vis vexari” which means no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction.

In Maqbool Hussain vs State of Bombay AIR 1953 SC 131, the Appellant was confiscated by the Custom Authorities under the Sea Customs Act, 1878 for bringing some gold into India without informing them about it. He was later convicted under the Foreign Exchange Regulations Act, 1973 for committing an offence. The Appellant contended that the second prosecution violates Article 20(2) as it was for the same offence. The Court held that the Sea Customs Authority is not a Court or a Tribunal, their confiscation does not constitute a judgement of judicial character necessary to take the plea of double jeopardy. Therefore, he is not barred from being prosecuted under the Foreign Exchange Regulations Act,1973.

Prohibition against self-incrimination-Article 20(3)

‘No person accused of an offence shall be compelled to be a witness against himself’. It is based on the legal maxim “nemo teneteur prodre accussare seipsum”, which means “No man is gratified to be a witness against himself.”. General principles of English and American jurisprudence have been embodied under article 20(3) of the Indian Constitution which means that no accused can be necessitated to testify anything which may run against him or expose him to prosecution of crime.

In the case of M.P. Sharma v Satish Chandra 1954 SCR 1077 the Supreme Court interpreted the term “to be a witness” to include oral, documentary and testimonial evidence. Article 20(3) is not narrowed to only testimonial evidence. In the noted case of Kishore Singh Ravinder Dev vs. State of Rajasthan 1981 AIR 625, it was asserted that in India the constitutional, evidentiary and procedural laws have made elaborate provisions in regard to protecting the rights of accused and with a view to protect his dignity as a human.

Protection available to the accused under the Indian Evidence Act,1872 (the IEA)

Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding-Section 24 of the IEA

Section 24 of the IEA says that if the Court finds out that the confession made by the accused in criminal proceedings has been caused by any inducement, threat or promise, induced by a person in authority and in the Court’s opinion that threat has given fair grounds to the accused to believe that he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, then that confession is meaningless.

In the case of Emperor vs Cunna on 21 March (1920) 22 BOMLR 1247, the Bombay High Court stated that “It is clearly established that the accused made the statement entirely under the influence of the investigating Sub-Inspector, who undoubtedly had offered him inducement to make it; and that is enough to make the confession irrelevant under the provisions of Section 24 of the Indian Evidence Act.” 

Confession to police officer not to be proved & Confession by accused while in custody of police not to be proved against him-Sections 25 & 26 of the IEA

Any statement made by the accused while in the custody of police is not admissible in the Court. In the case of Madhu v. State of Kerala (2012) 2 SCC 399, the Supreme Court has stated that Section 25 of the Indian Evidence Act postulates that a confession made by an accused to a police officer cannot be proved against him. Additionally, Section 26 of the Indian Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him.” 


The intent of the legislature in implementing effective provisions during a criminal trial is that the innocent person should not be punished by the court of law. The Indian courts have likewise laid down several guidelines and safeguards 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. Further the accused is also protected from custodial torture in the police station. The Code provides that a police officer is liable to be punished if he exercises or abuses his power without any necessity.






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