Dr.

Ram Manohar Lohiya National Law University,

Lucknow

ACADEMIC SESSION: 2017-18

CRIMINAL PROCEDURE CODE
FINAL DRAFT
RIGHTS OF ACCUSED IN CONEXT OF CRIMINAL
JURISPRUDENCE IN INDIA: COMMENT

SUBMITTED TO: SUBMITTED BY:

Dr. PREM KUMAR SIR SAURAVSINGH

ASST. PROFESSOR (LAW) B.A LL.B (Hons.)
DR. RAM MANOHAR LOHIYA 5th SEMESTER
NATIONAL LAW UNIVERSITY. ROLL NO: 122

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 ACKNOWLEDGEMENT

A major research project like this is never the work of anyone alone. Firstly, I would like to
Thank respected Asst. Professor Prem Kumar Gautam, for giving me such a golden
opportunity to show my skills and capability through this project.

This project is the result of the extensive ultrapure study, hard work and labour, put into to
make it worth reading. This project has been completed through the generous co-operation of
various persons, especially my seniors, who, in their different potentials helped me a lot in
giving the finishing touch to the project.

This project couldnt be completed without the help of my universitys library Dr. Madhu
Limaye Library and its internet facility.

I am glad to have made it

Thanking You........

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 CONTENTS

1. RIGHTS OF ACCUSED UNDER THE CONSTITUTION OF INDIA

RIGHTS OF ACCUSED RECOGNISED AND GUARANTEED BY THE
CONSTITUTION OF INDIA
LEGITIMACY OF NARCO-ANALYSIS
2. RIGHTS OF ACCUSED UNDER THE CODE
RIGHTS OF ACCUSED: INNOCENT UNTIL PROVEN GUILTY
RIGHTS OF ARRESTED PERSON
SUPREME COURT GUIDELINES FOR ARREST: D.K. BASU CASE
DUTY OF THE MAGISTRATE WHEN THE ACCUSED IS PRODUCED
HANDCUFFING OF ACCUSED: CITIZENS FOR DEMOCRACY V.
STATE OF ASSAM
INTERROGATION
BAIL
RIGHTS OF THE ACCUSED IN INDIAN CRIMINAL TRIAL

3. CRITICAL ANALYSIS
ADVERSARIAL SYSTEM
INQUISITORIAL SYSTEM
INDIAN SYSTEM: INCLINED TOWARDS ACCUSED?

4. CONCLUSION AND SUGGESTIONS

5. BIBLIOGRAPHY

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 RIGHTS OF ACCUSED UNDER THE CONSTITUTION OF INDIA

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 rights guaranteed under the Constitution of India. Thus, before
examining the various human rights of an accused in detail, it would be useful to discuss in
brief evolution of such rights. Which is proposed to be subject matter of this chapter. The
discussion of the evolution of the rights of accused may be made in five parts:
Rights of accused recognised under Hindu Legal System in Ancient India
Rights of accused granted under Muslim Legal System
Rights of accused recognised during British Period
Rights of accused recognised at International Level
Rights of accused recognised and guaranteed at National Level by the Constitution of
India

RIGHTS OF ACCUSED RECOGNISED AND GUARANTEED BY THE

CONSTITUTION OF INDIA
The Universal Declaration of Human Rights, 1948, recognised certain human rights of an
individual, including an accused. The Code of Criminal Procedure 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. Over and above, the right of equality and equal protection of laws, has
been guaranteed to every citizen as a fundamental right. 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 to legal defense;
Right to have public and speedy trial;
Right relating to pre-trial detention and matters incidental thereto; and
Right to approach higher judicial authority for filing appeal, etc.

Right of equality and equal protection of laws

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. In a criminal trial, there are two parties: the state and the
individual. However, both the parties are unmatching in their strength and resourcefulness, in

4
which the individual, i.e., accused, is placed in a disadvantageous position. 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. As the right of equality and the equal
protection of laws are to be secured through the instrumentalities of the state, the possible
state actions do not conflict with the fundamental right of quality guaranteed against the state.

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 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.

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 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.

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 Chandra1 , 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 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. This principle is also
contained in Article 14(g) of the International Covenant on Civil and Political Rights, 1966.

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

1
AIR 1954 SC 300

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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.
1. The right to be informed of the grounds of arrest
This right guaranteed by the constitution to an accused to know the grounds of his arrest
enables him to prepare for his defence. 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.
Shobharam2, 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.3, and D.K. Basu v. State of West Bengal4 , have laid down
certain guidelines which should be invariably followed by the police and other officers
arresting a person during investigation. These guidelines are proposed to be discussed in
detail later on.
2. Right to be produced before a Magistrate
Clause (1) of Article 2 of the constitution also provides that the arrested person must be
produced before the Magistrate within 24 hours of his arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate. The time can be extended
beyond 24 hours only under the judicial custody. It affords a possibility, if not an opportunity,
for immediate release in case the arrest is not justified.
3. No detention beyond 24 hours except by order of the Magistrate
It is also provided that if there is a necessity of detention beyond 24 hours, it is only possible
under judicial custody. The expressions arrest and detention in Articles 22(1) and (2) were
held non applicable to a person arrested under a warrant issued by the court on a criminal or
quasi-criminal complaint or under security proceedings. Article 22 is not designed to give
protection against the act of the executive or order of non-judicial authorities but applies to a
person who has been accused of a crime or offence of criminal or quasi-criminal nature or of
some act prejudicial to the state or public interest. Exception to the clause (3) of Article 22
provides two exceptions to the rule contained in clause (1) and (2) and rights mentioned
above are not available to an enemy, alien and a person arrested and detained under
Preventive Detention Law.

Right to have Legal Defence

No person who is arrested shall be denied the right to consult and to be defended by a legal
practitioner of his choice is the mandate enshrined in Article 22(1) of the Constitution. This
right is also granted by section 303 of the Code of Criminal Procedure, 1973. It has been held
by the courts that this right to have a lawyer of his choice accrues to the arrested person from
the time of his arrest. The accused may refuse to have a lawyer but the court has to provide an
amicus curie to defend him in serious cases.
1) Hussainara Khatoon Case:
In Hussainara Khatoon v. State of Bihar5, the Supreme Court considered the problem in all
its seriousness and declared that speedy trial is the essential ingredient of reasonable, fair

2
AIR 1966 SC 1910
3
(1994) 2 SCALE Vol. II No. 7. 662.
4
AIR 1997 SC 610.
5
(1980) 1 SCC 98, 107: 1980 SCC (Cri) 40, 49: 1979 CrLJ 1045, 1051.

6
and just procedure guaranteed by the Article 21 and it is the Constitutional obligation of the
State to devise such a procedure as would ensure speedy trial to the accused. The Court
observed: The State cannot avoid its Constitutional obligation to provide speedy trail to the
accused by pleading financial or administrative inability. The State is under the
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 guardian
of the fundamental rights of the people, as a sentinel on the qui vie, to enforce the
fundamental right of the accused to speedy trial by issuing necessary directions to the State
which may include taking positive action, such as augmenting and strengthening the
investigative machinery, setting up new courts, building new court- houses, providing more
staff and equipment to the courts, appointment of additional judges and other measures
calculated to ensure speedy trial.

2) Sunil Batra Case:

In Sunil Batra v. Delhi Administration (I)6 the practice of keeping undertrials with convicts in
jail was regarded by the Supreme Court as inhuman. The Court held that it offended the test
of reasonableness in Article 19 and fairness in Article 21.
The punishment of solitary confinement like Shobraj case was regarded as violative of
Article 21 of the Constitution by stating that liberty to move, mix, mingle, talk, Share
Company with co-prisoners, if substantially curtailed by keeping a prisoner in solitary
confinement, would be violative of Article 21, unless the curtailment has the backing of law.
The Court also held that bar-fetters make a serious inroad on the limited personal liberty
which a prisoner is left with and therefore before such erosion can be justified it must have
the authority of law.
In furtherance of Prison reforms, the Judges set out guidelines to be prescribed and followed
which were as follows:
The State shall take early steps to prepare in Hindi; a Prisoners Handbook and
circulates copies to bring legal awareness home to the inmates. Periodical jail
bulletins stating how improvements and habilitative programmes are brought into the
prison may create a fellowship which will ease tensions. A prisoners wall paper,
which will freely ventilate grievances, will also reduce stress. All these are
implementary of Section 61 of the Prisons Act.
The State shall take steps to keep up to the Standard Minimum Rules for Treatment of
Prisoners recommended by the United Nations, especially those relating to work
and wages, treatment with dignity, community contact and correctional strategies. In
this latter aspect, the observations we have made of holistic development of
personality shall be kept in view.
The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the
model manual being out of focus with healing goals. A correctional-cum-orientation
course is necessitous for the prison staff inculcating the constitutional values,
therapeutic approaches and tension-free management.
The prisoners' rights shall be protected by the court by its writ jurisdiction plus
contempt power. To make this jurisdiction viable, free legal services to the prisoner
programmes shall be promoted by professional organizations recognized by the court
such as Free Legal Aid (Supreme Court) Society. The District Bar shall, we
recommend, keep a cell for prisoner relief.

6
1980 AIR 1579, 1980 SCR (2) 557.

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3) Joginder Kumar Case:
In Joginder Kumar v. State of U.P. &Ors.7 , the Honble Supreme Court gave the guidelines
what should be the basis of arrest are as follows:
Arrest are not be made in a routine manner. The officer making the arrest must be
able to justify its necessity on the basis of some preliminary investigation.
An arrested person should be allowed to inform a friend or relative about the arrest
and where s/he is being held. The arresting officer must inform the arrested person when s/he
is brought to the police station and is required to make an entry in the diary as to whom the
information was given.
It is the duty of the magistrate before whom the arrested person is produced to
satisfy her or him that the above requirements have been complied with.
4) Prem Shankar Sukla v.Delhi Administration:
In Prem Shankar Sukla v. Delhi Administration8, the Honble Supreme Court observed that
using handcuffs and fetters (chains) on prisoners violates the guarantee of basic human
dignity, which is part of our constitutional culture. This practice does not stand the test of
Articles 14 (Equality before law), Article 19 (Fundamental Freedoms) and Article 21 (Right
to Life and Personal Liberty). In the said case, the following directives were given in respect
of Handcuffing:
Handcuffs are to be used only if a person is :
a) involved in serious non-bailable offences, has been previously convicted of a crime: and
/or
b) is of desperate character violent, disorderly or obstructive: and /or
c) is likely to commit suicide: and /or
d) is likely to attempt escape.
The reasons why handcuffs have been used must be clearly mentioned in the Daily
Diary Report. They must also be shown to the court.
Once an arrested person is produced before the court, the escorting officer must take
the courts permission before handcuffing her/him to and from the court to the place
of custody.
The magistrate before whom an arrested person is produced must inquire whether
handcuffs or fetters have been used. If the answer is yes, the officer concerned must
give an explanation.
Article 39-A was added in the Directive Principle of State policy by the 42ndConstitution
Amendment Act, 1976, and a duty was imposed upon the state to ensure that the operation of
the legal system promote justice on a basis of equal opportunities and the state shall, in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disability. The Supreme Court of India has declared now the Right to
Free Legal Aid and Right to Speedy Trial as Fundamental Rights guaranteed under Article
21 of the Constitution of India. The accused need not apply for the same and the right to legal
aid is implicit in the requirement of reasonable, fair, and just procedure prescribed by Article
21; the failure to provide free legal aid to an accused at the state cost, unless refused by the
accused, would vitiate the trial. In order to fulfil the obligation imposed by the Article 39-A,
in the year 1987, the Legal Services Authorities Act, 1987, was enacted under which
provisions were made to establish legal aid and services authorities at District, State and
National levels for the purposes of providing legal aid and services. However, the

7
(1994) 2 SCALE Vol. II No. 7. 662.
8
1980 AIR 1535, 1980 SCR (3) 855.

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government did not frame the necessary rules and the implementation of the act was delayed
for a decade and the same could be implemented throughout India only in the year 1997.

Right to have a Public and Speedy Trial

The principles of openness of judicial proceedings acts as a check against caprice or vagaries
and builds up confidence of the public in judicial administration. The right to have public trial
is implicit in Articles 14, 19(1)(a) and 21 of the Constitution and in the CrPC.
It is rightly said that justice delayed is justice denied. Though there are no specific
provisions either in the constitution or in the Code of Criminal Procedure for ensuring a
speedy trial, the Supreme Court o India has held that this right is implicit under the Article 21
of the Constitution. Firstly, in the famous case concerning the trial of juvenile delinquents,
namely, Sheela Barse v. Union of India9, the Supreme Court announced the time schedule for
the conclusion of a criminal trial of a juvenile accused. At that time, the Supreme Court
showed his unwillingness to fix any time schedule for the conclusion of the trial of an adult
accused. Later on, in a significant judgement delivered in Abdul Rehman Antuley v. R.S.
Nayak10, the detailed guidelines for speedy trial of an accused in a criminal case were laid
down by the Supreme Court but the Supreme Court declined to fix any time limit for
conclusion of a trial of offences. However, later on, the Supreme Court after four years,
deviating from its old stand that it was not practical to fix any time limit, had laid down in
the case of Common Cause v. Union of India11, certain guidelines providing the time limit for
conclusion of the criminal trial of an adult accused in specified cases. The right to speedy
trial encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal,
revision and re-trial.

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 Administration12 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 had also granted to an accused an important right against handcuffing; the
learned Justice Krishna Iyer opined in the case of Prem Shanker v. Delhi Administration, that
handcuffing is prima facie inhuman and, therefore, unreasonable, is overharsh and at the
first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict irons is to
resort to zoological strategies repugnant to Article 21. Further, in the case of Kishore Singh
v. State of Rajasthan13, the Supreme Court has held that the use of third degree method by
police is violative of Article 21 and directed the government to take necessary steps to
9
AIR 1986 SC 1773.
10
AIR 1992 SC 1630.
11
(1996) 6 SCC 775.
12
1980 AIR 1579, 1980 SCR (2) 557.
13
1981 AIR 625, 1981 SCR (1) 995.

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educate the police so as to inculcate a respect for human person. Similarly, torture and ill
treatment of women suspects in police lock up have also been held to be violative of Article
21. 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 Orissa14, 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 Bengal15, 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.

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

LEGITIMACY OF NARCO-ANALYSIS
Narco-analysis poses several questions at the intersection of law, medicine and ethics. The
procedure for narco-analysis is violative of the rights against self-incrimination, guaranteed
under Article 20 (3) of Constitution or not is the question that has to be still answered as there
have been major developments in the past and the validity of it is still to proved. This has
become a debatable topic over the years and figured prominently in the news recently when it
became eye of storm and sparked off the debate when media played tapes of Telgi, accused
subjected to Narco-analysis procedure. The court may, however, grant limited admissibility
after considering the circumstances under which the test was obtained. The petitioners in one
of the case said courts could not direct the prosecution to hold Narco analysis, brain mapping
and lie detector tests against the will of the accused as it would be violative of Article 20 (3)
of the Constitution.
The main provision regarding crime investigation and trial in the Indian Constitution is Art.
20(3). It deals with the privilege against self-incrimination. The privilege against self-
incrimination is a fundamental canon of Common law criminal jurisprudence. Art. 20(3)
which embody this privilege read, No person accused of any offence shall be compelled to
be a witness against himself. Subjecting the accused to undergo the test, as has been done
by the investigative agencies in India, is considered by many as a blatant violation of Art.
20(3) it was held that to attract of Constitution.
Justice Majage of the Karnataka High Court in the case of Selvi Murugeshan v. State of
Karnataka16 held that beyond a doubt an accused in the custody of the police and being
interrogated was no doubt being a witness but the real question was whether the procedure of
Narcoanalysis amounted to compulsion. Compulsion has been clearly defined in the case of
State of Bombay v. Kathi Kalu Oghad17 as

14
(1993) 2 SCC 746.
15
AIR 1997 SC 610.
16
AIR 2010 SC 1974.
17
AIR 1961 Cri LJ ,Vol 2, 2007.

10
. Thus compulsion in this sense is a physical objective act and not the state of mind of
the person making the statement, except where the mind has been so conditioned by
extraneous process to render the making of the statement involuntary, therefore extorted
After reviewing the available evidence Justice Majage drew the inference from S.53(1) of
Cr.PC which permitted use of reasonable force in order to ascertain those facts which may
afford any evidence. Narco-analysis he suggested thus came under the purview of this section
also and conducting it was justified. He also said,
This examination has to be carried out by a registered medical practioner or any person
acting in good faith in his aid and under the direction. It can therefore be said that merely
because some pain or discomfort is caused, such a procedure should not be permitted
In addition to the fact that Narco-analysis was under the purview of reasonable force, the
Honble Judge also added another dimension by mentioning the case of Nandini Satpathy v.
P.L.Dhani18, to draw light to S.161 of the Cr.PC which permitted interrogation of witnesses
under custody.
In case of State of Bombay v. Kathikalu, it must be shown that the accused was compelled to
make statement likely to be incriminative of himself. Compulsion means duress, which
includes threatening, beating or imprisonment of wife, parent or child of person. Thus where
the accused makes a confession without any inducement, threat or promise art 20(3) does not
apply. This has been a controversial topic eversince , take the examples of the recent Narco
analysis performed on Abu Salem and Ajmal Kasab the court has refused to accept the
confessions made under heavy dose of sedatives and called it infringement of fundamental
rights guaranteed under the constitution. Further, it has been established that Right to remain
silence is present to the accused by virtue of the pronouncement in the case of Nandini
Sathpathy v. P.L.Dani19. This in a way implied that the accused can remain silent in the
course of the investigation and this has been also incorporated in Narco analysis as the person
in that time is not willingly saying those words and it infringes his right to remain silent.
It was again in the news in the Telgi stamp paper scam when Abdul Karim Telgi was taken to
the test in December 2003. Though in the case of Telgi, immense amount of information was
yielded, but doubts were raised about its value as evidence. The Bombay High Court, in a
significant verdict in the case of Ramchandra Reddy and Others v. State of Maharashtra ,
upheld the legality of the use of P300 or Brain Mapping and narco analysis test. The court
also said that evidence procured under the effect of narco analysis test is also admissible.
However, defence lawyers and human rights activists viewed that narco analysis test was a
very primitive form of investigation and third degree treatment, and there were legal lapses in
the interrogation with the aid of drugs. Narco analysis is in the limelight in the context
ofinfamous Nithari village (Noida) serial killings. The two main accused in the Nithari serial
killings Mohinder Singh Pandher and Surendra Kohli have undergone narcoanalysis tests in
Gandhinagar in Gujarat.
However, the final judicial pronouncement on the constitutional status of narcoanalysis is yet
to come, but it seems in the offing, as in 2006 the Supreme Court of India stayed the order of
a metropolitan judge to conduct narcoanalysis on K. Venkateswara Rao in the Krushi
Cooperative Urban Bank case. The issue required to be settled by a court decision because
Mr. Rao refused to sign the consent form and the Forensic Science Laboratory at
Gandhinagar declined to conduct a narco-analysis test with a duly filled and signed consent
form. The Supreme Court verdict is awaited.

18
AIR 1978 SC 1025.
19
AIR 1978 SC 1025.

11
 RIGHTS OF ACCUSED UNDER THE 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
Rajasthan20 , 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
India21 it was interpreted that the procedure adopted by the state must, therefore, be just, fair
and reasonable.

The following are the rights available to the accused in Indian Criminal Jurisprudence:

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. In India, a system of adversarial form of
adjudication is followed which is also known as accusatorial system in case of criminal
procedure and the underlying principle of this system is presumption of innocent until-
proved-guilty. The legal ethics of our criminal justice system is let thousand of criminals
be let out, but a single innocent should not be punished

2. RIGHTS OF ARRESTED PERSON

The 2008 Act has brought a considerable change in laws relating to arrest. The original
section 41 of the Cr.P.C 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

20
1981 AIR 625, 1981 SCR (1) 995.
21
AIR 1978 SC 597.

12
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
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.
An officer not below the rank of sub-inspector is to transfer the accused to a Judicial
Magistrate who may allow the accused to be held for up to fifteen days in police custody. If a
Judicial Magistrate is not available, an Executive Magistrate so empowered by the High
Court may allow for a detention of up to seven days, which a Judicial Magistrate may extend
up to not more than fifteen days in total. At the expiration of these fifteen days, if a
Magistrate believes adequate grounds exist, he may allow for the suspect to remain in the
judicial custody for a period up to ninety days total (including the original fifteen) for a case
involving potential punishment of more than ten years imprisonment or up to sixty days for
all other cases. The accused has the right to get bail in case the prosecution fails to submit the
charge sheet within a period of ninety days of such custody. In cases involving punishment of
more than ten years; the charge sheet has to be submitted within a period of sixty days by the
prosecuting agency.
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, post- JoginderSingh v. State of U.P. 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 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.
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.
Right to be released on bail in case of non-bailable offence (S. 50(2), Cr.P.C)

13
Person accused of a bailable offence has right to be released on bail. 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)
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.

3. SUPREME COURT GUIDELINES FOR ARREST: D.K. BASU CASE

The Hon'ble Supreme Court in D.K. Basu v. State of West Bengal22, laid down the following
guideline:
1) The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.
2) That the police officer carrying out the arrest of the arrestee shall prepare a memo
of arrest at the time of arrest and such memo shall be attested by at least one witness, who
may be either a member of the family of the arrestee or a respectable person of the locality
from where the arrest is made. It shall also be counter signed by the arrestee and shall contain
the time and date of arrest.
3) A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or relative
or other person known to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the particular place, unless the
attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4) The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organization in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.
5) The person arrested must be made aware of this right to have someone informed of
his arrest or detention as soon as he is put under arrest or is detained.
6) An entry must be made in the diary at the place of detention regarding the arrest of
the person which shall also disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the police officials in whose custody
the arrestee is.
7) The arrestee should, where he so requests, be also examined at the time of his arrest
and major and minor injuries, if any present on his/ her body, must be recorded at that time.
The "Inspection Memo" must be signed both by the arrestee and the police officer affecting
the arrest and a copy provided to the arrestee.
8) The arrestee should be subjected to medical examination every 48 hours during his
detention in custody by a trained doctor on the panel of approved doctors appointed by the
Director of Health Services of the concerned State or Union Territory. The Director of Health
Services should prepare such a panel for all Tehsils and Districts, as well.
9) Copies of all the documents including the memo of arrest, referred to above, should
be sent to the Illaqa Magistrate for his record.
10) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

22
AIR 1997 SC 610.

14
11) A police control room should be provided at all District and State Headquarters,
where information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at
the police control room it should be displayed on a conspicuous notice board. The accused
has the right to be treated decently while he is in custody. He must be provided with food and
drink, clothing as necessary as well as sleeping and washing facilities. The accused cannot be
"punished" or treated as guilty while he awaits trial. While detained, the accused retains the
right to court access and to a legal aid lawyer. That access may be subject to security
restrictions typically used in a detention facility.

4. DUTY OF THE MAGISTRATE WHEN THE ACCUSED IS PRODUCED

When the arrested person is produced before the Magistrate, he has a duty to enquire with the
accused as to when he was arrested and the treatment meted out to him including subjecting
him to third degree methods, and about the injuries if any on his body.
Confession by Accused
When in the course of investigation an accused or any other person desiring to make any
statement is brought to a magistrate so that any confession or statement that he may be
deposed to make of his free will is record. Confession statements by accused to the police are
absolutely excluded under section 25, evidence Act. No confession made to a police officer is
valid as evidence. All confessions must be made to a Magistrate not below the rank of
Judicial Magistrate. The Magistrate taking the confession must give the accused due time out
of the custody of the police, and make an effort to ensure that the accused was not coerced or
intimidated in anyway, before receiving the confession. At the bottom of the confession the
Magistrate must write out that he has informed the accused that this confession may be used
against him and he is not obligated, in any way, to incriminate him.
Section 164 of Cr.PC provides for the recording of confessions and statements-
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the course of an
investigation under this Chapter or under any other law for the time in force, or at any time
afterwards before the commencement of the inquiry or trial:
Provided that any confession or statement made under this subsection may be also
recorded audio-video electronic means in the presence of the advocate of the person accused
of an offence:
Provided further that no confession shall be recorded by the police officer on whom
any power of a Magistrate has been conferred under any law for the time being in force.]
(2) The Magistrate shall, before recording any such confession, explain to the person making
it that he is not bound to make a confession and that, if he does so, it may be used as evidence
against him; and the Magistrate shall not record any such confession unless, upon questioning
the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall not
authorize the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in Section 281 for
recording the examination of an accused person and shall be signed by the person making the
confession; and the Magistrate shall make a memorandum at the foot of such record to the
following effect :-
I have explained to (name) that he is not bound to make a confession and that, if he does so,
any confession he may make be used as evidence against him and I believe that this
confession was voluntarily made. It was taken in my presence and hearing, and was read over

15
to the person making it and admitted by him to be correct, and it contains a full and true
account of the statement made by him.
Magistrate(
Sign.)
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in
such manner hereinafter provided for the recording of evidence as is, in the opinion of the
Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power
to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to
the magistrate by whom the case is to be inquired into or tried.
Principles Regarding Confession in Rabindra Kumar Pal Alias Dara Singh Case
The SC gave the principles with regard to confession in the case of Rabindra Kumar Pal
Alias Dara Singh v. Republic Of India23
Facts: Graham Stuart Staines, a Christian Missionary from Australia, was working among the
tribal people especially lepers of the State of Orissa. His two minor sons, namely, Philip
Staines and Timothy Staines were burnt to death along with their father in the midnight of
22.01.1999/23.01.1999. The deceased-Graham Staines was engaged in propagating and
preaching Christianity in the tribal area of interior Orissa. In the mid-night of 22.01.1999, a
mob of 60-70 people came to the spot and set fire to the vehicle in which Graham Staines was
sleeping along with his two minor sons. The mob prevented the deceased to get themselves
out of the vehicle as a result of which all the three persons got burnt in the vehicle.
Judgement: In a charge sheet filed by CBI 14 accused persons were put to trial. Apart from
these accused, one minor was tried by Juvenile Court. By a common judgment and order
Sessions Judge, Khurda convicted all the accused and sentenced them for offences punishable
under various sections. The death sentence was passed against Dara Singh- and others were
awarded sentence of life imprisonment.
Modification of Death sentence into life imprisonment by the High Court - The death
reference and the appeals filed by the convicted persons were heard together by the High
Court of Orissa and were disposed of by common judgment concluding that the witnesses
were not trustworthy and no credence should be given to their statements and confessional
statements were procured by the investigating agency under threat and coercion. The High
Court, by the impugned judgment, modified the death sentence awarded to Dara Singh into
life imprisonment and confirmed the life imprisonment imposed on Mahendra Hembram and
acquitted all the other accused persons. Special Leave Petitions were filed by Rabindra
Kumar Pal @ Dara Singh, Mahendra Hembram challenging the sentences awarded by the
High Court.
Principles with regard to Confession:
The provisions of Section 164 Cr.P.C. must be complied with not only in form, but
also in essence.
Before proceeding to record the confessional statement, a searching enquiry must be
made from the accused as to the custody from which he was produced and the treatment he
had been receiving in such custody in order to ensure that there is no scope for doubt of any
sort of extraneous influence proceeding from a source interested in the prosecution.
A Magistrate should ask the accused as to why he wants to make a statement that
surely shall go against his interest in the trial.
The maker should be granted sufficient time for reflection.
He should be assured of protection from any sort of apprehended torture or pressure
from the police in case he declines to make a confessional statement.

23
[2011) 2 SCC 490]

16
 A judicial confession not given voluntarily is unreliable, more so, when such a
confession is retracted, the conviction cannot be based on such retracted judicial confession.
Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrates
jurisdiction to record the confession and renders the confession unworthy of credence.
During the time of reflection, the accused should be completely out of police
influence. The judicial officer, who is entrusted with the duty of recording confession, must
apply his judicial mind to ascertain and satisfy his conscience that the statement of the
accused is not on account of any extraneous influence on him.
At the time of recording the statement of the accused, no police or police official
shall be present in the open court.
Confession of a co-accused is a weak type of evidence.
Usually the Court requires some corroboration from the confessional statement before
convicting the accused person on such a statement.

5. HANDCUFFING OF ACCUSED: CITIZENS FOR DEMOCRACY V. STATE

OF ASSAM
The Supreme Court in the case of Citizens for Democracy v. State of Assam24, has given the
following rules pertaining to handcuffing of the accused:
(i) As a rule handcuffs or other fetters shall not be forced on prisoners convicted or under-
trial while lodged in a Jail anywhere in the country or while transporting or in transit from
one Jail to another or from Jail to Court or back. The Police and the Jail authorities, on their
own, shall have no authority to direct the handcuffing of any inmate of the Jail in the country
or during transport from one Jail to another or from Jail to Court or back.
(ii) Where the Police or the Jail authorities have well-grounded basis for drawing a strong
inference that a particular prisoner is likely to jump Jail or break out of the custody then the
said prisoner be produced before the Magistrate concerned and a prayer for permission to
handcuff the prisoner be made before the said Magistrate. In rare cases of concrete proof
regarding proneness of the prisoner to violence, his tendency to escape, he being too
dangerous / desperate and finding no other practical way of forbidding escape is available,
the Magistrate may grant permission to handcuff the prisoner.
(iii) In all the cases where a person arrested by Police, is produced before the Magistrate and
remand-judicial or non-judicial- is given by the Magistrate, the person concerned shall not be
handcuffed unless special orders in that respect is obtained from the Magistrate at the time of
the grant of the remand.
(iv) When the Police arrests a person in execution of a warrant of arrest obtained from a
Magistrate, the person arrested shall not be handcuffed unless the police has also obtained
orders from the Magistrate for the handcuffing of the person to be so arrested. Where a
person is arrested by the Police without warrant, the Police Officer concerned may if he is
satisfied, on the basis of the guidelines given by the Supreme Court, that it is necessary to
handcuff such person, he may do so till the time he is taken to the Police Station and
thereafter his production before the Magistrate.
In most countries handcuffing is permitted as a rule. The above restrictions on the right of
the police to handcuff the accused have created lot of practical difficulties. It is not always
easy to prevent the accused from escaping. At the same time it is necessary to ensure that this
power is not misused. As now-a-days accused are becoming more daring and are even
prepared to risk their life to escape, it may be necessary in larger public interest to remove the
onerous restrictions now placed on the right of the Police Officer to handcuff the suspect.

24
(1995) 3 SCC 743.

17
 6. INTERROGATION
The suspect has a right to counsel during interrogation and should be allowed to meet his
counsel; but the counsel need not be present throughout the interrogation; where necessary,
he is entitled to free legal aid and enjoys the right to remain silent. A woman or a child below
16 years of age cannot be taken to a police station for interrogation, the same is done at their
home or place of convenience. This should apply equally to those who have serious physical
or mental problems. Though this does not apply to the suspect/accused, it may be necessary
to introduce this change.

7. BAIL
Person accused of a bailable offence has right to be released on bail. 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.
The main purpose behind the denial of bail is that the person can help the police during
investigation and not tamper evidence, threaten the witness or impede the course of justice.
The bail may be granted at the discretion of the Court depending on the charge against the
person and progress of the case. A person seeking bail must furnish bond of necessary value
before he is released. He is granted bail on the condition that he presents himself as and when
required by the investigating authority and not leave the Country till the trial is complete. The
amount of bail should be reasonable and not excessive.
A person who has reason to believe that he may be arrested in future for a non bailable
offence, may apply to the competent Court for grant of anticipatory bail. The Court
considering the circumstances of the case may grant anticipatory bail so that in the event of
arrest, he shall be released on bail.
An accused person surrendering before the Magistrate has a right to bail or demand judicial
custody. The provision of bail to women, sick and old age persons is given priority subject to
the nature of the offence. Once the accused is granted bail by invoking Sec. 205 Cr.P.C. he
need not attend the court (unless it is a condition of bail) before charge sheet is filed and
process issued . If no charge-sheet is filed before the expiry of 60/90 days as the case may be,
the accused in custody has a right to be released on bail. If the arrested person is remanded to
judicial custody by the Magistrate on Sundays or holidays, the bail application should be
considered on the Sunday or the holiday itself. In non-bailable offences, the Magistrate has
the power to release on bail without notice to the other side if charge sheet is not filed within
a period of sixty days.

8. RIGHTS OF THE ACCUSED IN INDIAN CRIMINAL TRIAL

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 Sessions. 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.

18
 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.
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.
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.
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.
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.
Right to cross-examination witnesses: 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 by issuing commission. The
testimony at a formal trial is one example of prior testimonial statements which can be
used as documentary evidence in a subsequent trial.
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 opposite party is a distinct and independent right.
When accused declined to cross-examine 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.
No influence to be used to induce disclosure: As per section 316, 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.
Natural Justice and the Rights of the accused: Some of the basic elements of Natural
Justice are as follows:
No man shall be Judge in his own cause;
Both sides shall be heard, or audialterampartem;
Right to cross-examine;
Right to legal representation;
The parties to a proceedings must have due notice of when the Court / Tribunal will
proceed;

19
 The Court / Tribunal must act honestly and impartially.
The above principles of Natural Justice and the rights available to the accused during
trial Seem a striking resemblance and thus one cannot refute that natural Justice may
have stirred the development of todays rights of the accused. The elementary
principle of Natural Justice, audialterampartem or right to be heard which include
right to cross-examine and right to legal representation form the fundamental structure
of right available to the accused in the Indian criminal justice system.
Fair Trial: Public trial and speedy justice:
Every accused is entitled to 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.
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. 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.

20
 CRITICAL ANALYSIS
There are basically two types of justice delivery systems which are followed round the globe
i.e. the Adversarial System and the Inquisitorial System. The adversarial system (or adversary
system) of law is the system of law that relies on the contest between each advocate
representing his or her party's positions and involves an impartial person or group of people,
usually a jury or judge, trying to determine the truth of the case. As opposed to that, the
inquisitorial system has a judge (or a group of judges who work together) whose task is to
investigate the case.
The adversarial system is generally adopted in common law countries. An exception, for
instance in the U.S., may be made for minor violations, such as traffic offences. On the
continent of Europe among some civil law systems (i.e. those deriving from Roman law or
the Napoleonic Code) the inquisitorial system may be used for some types of cases.
The adversarial system is the two-sided structure under which criminal trial courts operate
that pits the prosecution against the defense. Justice is done when the most effective
adversary is able to convince the judge or jury that his or her perspective on the case is the
correct one.

ADVERSARIAL SYSTEM
The legal system practised in India is known as an adversary system. In this system, the
parties to a controversy develop and present their arguments, gather and submit evidence, call
and question witnesses, and, within the confines of certain rules, control the process. The fact
finder, usually a judge or jury, remains neutral and passive throughout the proceeding.
Role of Judges in an Adversarial System
Judges in an adversarial system are impartial in ensuring the fair play of due process or
fundamental justice. Such judges decide, often when called upon by counsel rather than of
their own motion, what evidence is to be admitted when there is a dispute; though in some
common law jurisdictions judges play more of a role in deciding what evidence to admit into
the record or reject. At worst, abusing judicial discretion would actually pave the way to a
biased decision rendering obsolete the judicial process in questionrule of law being illicitly
subordinated by rule of man under such discriminating circumstances.
Our system of justice is based on the adversarial model. The adversarial system implies that
two parties assume opposite positions in debating the guilt or innocence of an individual. In
this scenario, the judge is required to be neutral at the contest unfolding before him or
her. The role of the judge in this arrangement is to ensure the trial proceeds according to the
procedural rules of trial or due process of law and that evidence entered is done so according
to established rules and guidelines.
The basis of this approach is in the criminal matters in which two sides engage in debate and
battle about the guilt or innocence of an accused and since each side wants to win, then the
debate will foster a critical look at the issues and the calling of evidence to be examined by
both parties. By engaging in this discourse, the truth should emerge as the judge watches on.
This means that the roles played by the various court officers are very distinct.
The defence counsel, as one adversarial party gathers the arguments to defend the client and
attacks the credibility and worthiness of the evidence presented by the crown. The crown
prosecutor puts forth the arguments on behalf of the crown or state and gathers and presents
the evidence pointing that the accused has committed an offence. The judge is the referee and
arbitrator on issues related to clarifying what the law is. The judge does not intervene on any
side except where procedural fairness is jeopardized by either party.
The evidence and witnesses that are called are left up to the two arguing parties, the defence
counsel and the crown. The judge is not involved in what is presented to the court. If the

21
crown wishes not to call certain evidence or individuals as witnesses even though it may help
shed light on the case, the judge cannot intervene. This leaves the two parties in charge of the
case and the direction it takes.
The advantages of the adversarial system include.
The judges reserve their comments until all evidences from both parties are heard.
This makes the judges appear more neutral since the judgement must be reserved
until all the evidence is heard
The disadvantages of the adversarial system include
The finding of evidence rests on the resources of the two parties which may be
unequal
Parties only provide evidence favourable to their arguments

INQUISITORIAL SYSTEM
The inquisitorial system is the common procedural approach in most civil law jurisdictions.
In an inquisitorial system, a judge is involved in the preparation of evidence along with the
police and in how the various parties are to present their case at the trial. The judge questions
witnesses in depth and can even call witnesses to appear while prosecution and defense
parties can ask follow up questions.
The judge plays the central role in finding the truth and all the evidence that either proves the
innocence or guilt of the accused before the court. The judge takes on the role of prosecutor
and judge in the inquisitorial system. Some other major distinctions is that there are no jury
trials in an inquisitorial system and a judge can compel an accused to make statements and
answer questions. This differs dramatically from the common law and adversarial right not to
take the stand in one's own defense.
An inquisitorial system, common in civil law countries, is an alternative model to the
adversarial system used in common law countries including New Zealand. The inquisitorial
system is generally described as a system that aims to get to the truth of the matter through
extensive investigation and examination of all evidence. The adversarial system aims to get to
the truth through the open competition between the prosecution and the defence to make the
most compelling argument for their case.
Critics of the adversarial approach argue that the pursuit of winning often overshadows the
search for truth. The inquisitorial system applies to questions of criminal procedure as
opposed to questions of substantive law; in other words, it determines how criminal enquiries
and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the
sentences that they carry.
In an inquisitorial system, a judge is involved in the preparation of evidence along with the
police and in how the various parties are to present their case at the trial. The judge questions
witnesses in depth and can even call witnesses to appear while prosecution and defence
parties can ask follow up questions. The judge plays the central role in finding the truth and
all the evidence that either proves the innocence or guilt of the accused before the court. The
judge takes on the role of prosecutor and judge in the inquisitorial system.
Arguably, the most important aspect of the inquisitorial system in France is the function of
the examining or investigating judge (juge d'instruction).
Judges are appointed by the president for three-year terms (which are renewable)
upon the recommendation of the Ministry of Justice.
The juge dinstruction handles a case only if ordered to do so by the procureur
(public prosecutor), or private citizen.
Once the juge dinstruction investigation has begun, the accused must be supplied
with counsel, who must be given access to all documents and evidence.

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 In conducting the hearing, the Judge instruction has a wide range of powers
available. He may issue warrants allowing the authorities to search the accusers residence
and seize necessary evidence. He also may issue warrants requiring other people to appear as
witnesses, or he may request experts to testify.

INDIAN SYSTEM: INCLINED TOWARDS ACCUSED?

It is often argued that the Indian system of justice is inclined towards the accused as it is
similar to the Reformative Theory of Punishment. In India, the main aim of the legal system
is not to remove the criminals, but to remove the crime. Severe penalty is something which
comes into picture under rarest of the rare cases. In addition to this, due to a colossal number
of cases in the various courts over the country, the cases keep lingering on and on for a lot of
time.
The inclination of the Indian legal system towards the accused can be rightly proved by
having a look on the statistics of the conviction rate. According to the National Crime Record
Bureau (NCRB), the rate of conviction in the rape cases has dwindled drastically from 40.8%
in 2001 to 24.2% in 2012 . Similarly, the conviction rate in the crime of murder is around
38% . In case of the crimes against women, the rate is just 21.3%, which means out of every
5 accused, 4 walk out free. Moreover, the overall rate of conviction in India, for all the IPC
crimes, is 38.5%.
The above statistics clearly suggest that the Criminal Justice system in India is not free from
flaws and needs serious reconstructions and developments for a better justice system.

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 CONCLUSION AND SUGGESTIONS
The present Code contains rules whose aim is that no innocent person is convicted and that
perpetrator of criminal offences are sanctioned in accordance with requirements provided by
the Criminal Code and based on the lawfully conducted proceedings. Prior to rendering a
final judgment or ruling on punishment, the rights of the accused person and his freedom may
be limited only under conditions stipulated by this Code.
The Chapter 1 Basic Principles of the General Provisions Part 1 of the Code of Criminal
Procedure Code, the article deals with the entitlement of an accused person or suspects.

o To be informed about the offence with which he is charged, as soon as

possible and no later than at the first interrogation, in detail and in a language
he understands, about the nature and grounds for the accusation and the
evidence collected against him;

o To defend him, alone or with the professional assistance of a defense counsel

of his own choosing from list of lawyers.

o To have his defense counsel present at his interrogation;

o To be brought before the court as soon as possible and tried in an impartial

and fair manner and within a reasonable period of time.

o To be provided enough time and facilities to prepare his defense;

o To declare himself on all the facts and evidence against him and to present
facts and evidence in his favour, either alone or through his counsel, to
question prosecution witnesses and request that defense witnesses are
questioned under the same conditions as the prosecution witnesses, in his
presence.

o To be provided with a translator and interpreter if he does not understand and

speak the language used in the proceedings.

Suggestions of the Malimath committee-

The bulk of the Malimath Committee recommendations revolve around the idea that whittling
down the rights of the accused and increasing the rate of convictions will help tackle crime.
"Everything has been said already, but as no one listens, we must always begin again."
The Committee, headed by Justice V.S. Malimath, former Chief Justice of the Karnataka and
Kerala High Courts, had the task of examining the fundamental principles of criminal law so
as to restore confidence in the criminal justice system. This involved reviewing the Code of
Criminal Procedure (CrPC), 1973, the Indian Evidence Act, 1872, and the Indian Penal Code
(IPC), 1860.
One of the first responses to the Report was a conference in Delhi held jointly by the
International Commission of Jurists and the Human Rights Law Network. Said Colin
Gonsalves, a lawyer from the Human Rights Law Network: "The recommendations are like a
sugar-coated pill. Though there are a few welcome changes, the core recommendations are
dangerous and will lead to reconstructing criminal law. The report has not been circulated

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and most of the participants in the conference, including senior Judges and lawyers, have not
been able to get hold of a copy."
The Committee has suggested that Section 25 of the Indian Evidence Act be amended to
bring it in line with Section 32 of POTA, which makes confessions to a police officer
admissible as evidence subject to the accused being informed of the right to consult a lawyer.
The committee has suggested that specific provisions be incorporated in the CrPC and the
Indian Evidence Act to enable a magistrate to order an accused to give samples of
handwriting, fingerprints and footprints for purposes of scientific examination. It also
provides for provisions similar to those in POTA to intercept electronic or oral
communication.
The committee has addressed the issues of compensation to victims, something the Supreme
Court has been talking of for a while now. It mentions the need for a Victim Support Service
Coordinator to work closely with the police and courts to ensure delivery of justice during the
pendency of the case. It also talks of economic crimes and organised crime, but only in
passing.
As a result of the study, we seeks conclusion that 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.

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 BIBLIOGRAPHY

Books referred-

Constitutional law of India

K.D. Gaur, Indian penal code
Article referred-

Law commission of India, 37th Law Commission report on the Code of Criminal Procedure,
1889 (1967).

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