Special Criminal Laws and Rights of An Accused

As per Article 21 of the Constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India”. It also covers a just and fair trial without any arbitrary procedure, which confers that arrest should not only be legal but also justified. In this context, this article consists of the procedural and constitutional rights of the accused before and after the arrest in India. Except when exceptions are created, the accused person, unless and until provided otherwise, is considered innocent until proven guilty before the court of law.

Rights of an Accused Person

• Rights to Know the Grounds of Arrest

1. Article 22 of the Constitution of India deals with the protection against arrest and detention in certain cases:

• No person who is arrested shall be detained in custody without being informed, as soon as possible, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.

2. Section 50 of the Code of the Criminal procedure (Cr.P.C.) states that the person arrested has to be informed of the grounds of arrest and his right to bail:

• Every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.
• Where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Section 50-A of the Code of the Criminal procedure (Cr.P.C.) talks about the obligation of the police officer making the arrest to inform about the arrest to a nominated person –

• Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person to give such information.

4. Section 55 of the Code of the Criminal procedure (Cr.P.C.) deals with arrests when a police officer deputes a subordinate to arrest the accused without a warrant.

• When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest order in writing, specifying the person to be controlled and the offense or other cause for which the arrest is to be completed and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.

5. Section 75 of the Code of the Criminal procedure (Cr.P.C.) provides that the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.

A landmark judgment of Joginder Kumar v. State it was held that although the police had the absolute legal powers to arrest a person in a criminal case, every arrest had to be justified. Arrests could not be made routinely, merely on an allegation or a suspicion of their involvement in a crime.

Every arrest should be made after the police officer reached a reasonable satisfaction after the Investigation that the complaint was genuine and bona fide, the accused was complicit in the Crime, and the arrest was necessary and justified.

• Right to be Produced before the Magistrate without Unnecessary Delay

1. Article 22 (2) of the Constitution of India provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of detention to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

2. Section 57 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the subject to the terms of the arrest, a police officer who arrests without a warrant should produce the arrested individual without undue delay before the Magistrate with jurisdiction or a police officer in charge of the police station.

3. Section 76 of the Code of the Criminal procedure (Cr.P.C.) states that the person who is arrested is to be brought before Court without delay.

• The police officer or other person executing a warrant of arrest shall without unnecessary delay, bring the person arrested before the Court before which he is required by law to produce such person:

As mentioned in Section 57 that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

• Rights to be Released on Bail

Section 50 (2) of the Code of the Criminal procedure (Cr.P.C.) states that where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

• Right to a Fair and Just Trial

Article 14 of the Constitution of India states that every person is equal before the law means that every person in the dispute shall have equal treatment.

The Supreme Court has held in several judgments that a speedy trial is guaranteed by Article 21 of the Constitution. The right to a speedy trial is first mentioned in that landmark document of English law, the Magna Carta. In the case of Huissainara Khatoon v. Home Secretary, State of Bihar, the Hon’ble court held that the State could not avoid its constitutional obligation to provide a speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure a speedy trial, and whatever is necessary for this purpose must be done by the State.

In Ashim v. National Investigation Agency, Hon’ble Supreme Court held that the deprivation of personal liberty without ensuring a speedy trial is inconsistent with Article 21 of the Constitution of India.

• Right to Consult a Lawyer

1. Article 22 of the Constitution provides that no arrested person shall be denied the right to consult a legal practitioner of his choice.

2. Section 41D of the Code of the Criminal procedure (Cr.P.C.) provides that 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 the interrogation.

3. Section 303 of the Code of the Criminal procedure (Cr.P.C.) deals with the rights of the person against whom proceedings are instituted. Any person accused of an offense before a Criminal Court or against whom proceedings are created under this Code may be defended by a pleader of his choice.

4. Article 39 A of the Constitution of India states that the State shall secure that the operation of the legal system promotes justice based on equal opportunity and 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 because of economic or other disabilities.

In the landmark case of Khatri v. the State of Bihar, Hon’ble Justice P.N. Bhagwati made it mandatory for Session Judges to inform the accused of their rights to free legal aid and to advise individuals if they are unable to retain a counsel to defend themselves caused by poverty or destitution. In Sheela Barse v. Union of India, the Hon’ble Court ruled that a person’s fundamental right to a speedy trial is contained in Article 21 of the Indian Constitution. Also, in the case of Suk Das v. Union Territory of Arunachal Pradesh, Hon’ble Justice P. N. Bhagwati stated that India has many illiterate people unaware of their rights. As a result, it is critical to developing legal literacy and awareness among the general public and is also an essential component of legal aid.

5. Section 304 of the Code of the Criminal procedure (Cr.P.C.) provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.

• Right to Keep Silence

When a confession or statement is made in court, the magistrate must determine whether the announcement was made voluntarily or not. No one can be compelled to speak in court against their will. The right to remain silent is not recognized in any law, but it can be based on constitutional provisions or the Indian Evidence Act. The right to a fair trial is important because it helps ensure that people are treated fairly in court.

Article- 20(2) of the Constitution of India reiterates that no person, whether accused or not, cannot be compelled to be a witness against himself. This act of exposing oneself is the principle of self-incrimination. In the Landmark judgment of Nandini Sathpathy v. P.L. Dani & Others, the Court noted that Article 20(3) existed in the form of general fundamental right protection and was available to every accused person in India. Still, its wording was not very specific about which situations it applied to. Also, no one can forcibly extract statements from the accused, and the accused has the right to keep silent during interrogation.

• Right to be Examined by a Doctor

Section 54 of the Code of the Criminal procedure (Cr.P.C.) stipulates that when a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody, that the examination of his body will afford evidence which will disprove the commission by him of any offense or which will establish the commission by any other person of any crime against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for vexation or delay or for defeating the ends of justice.

• Additional Rights available to an Arrested Person

1. Section 55A of the Code of the Criminal procedure (Cr.P.C.) deals with the health and safety of an arrested person- It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.

2. Section 358 of the Code of the Criminal procedure (Cr.P.C.) deals with the compensation to persons who got arrested groundlessly-

• Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding [one thousand rupees], to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.
• In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding [one thousand rupees], as such Magistrate thinks fit.
• All compensation awarded under this section may be recovered as if it were fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs unless such sum is sooner paid.

3. Section 41A of The Code of the Criminal procedure (Cr.P.C.) provides the notice of appearance of arrested person before a police officer.

• The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offense, to appear before him or at such other place as may be specified in the notice.
• Where such a notice is issued to any person, it shall be that person’s duty to comply with the terms of the notice.
• Where such person complies and continues to adhere to the notice, he shall not be arrested in respect of the offense referred to in the notice unless, for reasons to be recorded, the police officer believes that he should be arrested.
• Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court on this behalf, arrest him for the offense mentioned in the notice.

In Arnesh Kumar v. State of Bihar & Anr, the Supreme Court had inter-alia directed that the notice of appearance in section 41A CrPC should be served on the accused before making the arrest. The Court had issued the direction to prevent unnecessary arrests, which, in the opinion of the Court, bring humiliation, curtail freedom and cast scars forever. The endeavor of the court was to ensure that police officer do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. The Supreme Court also gave the following directions:

• All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;
• All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
• The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the magistrate for further detention;
• The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
• The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
• Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
• Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
• Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The judgment of the Supreme Court in Munawar v. The State of M.P., since the police had failed to issue a notice under Section 41A Cr.P.C., as mandated by the Supreme Court in Arnesh Kumar Vs. the state of Bihar, the applicants ought to have been straightway admitted to interim bail.

4. Section- 46 of the Code of the Criminal procedure (Cr.P.C.) stipulates the mode of arresting an accused person, including submission to the custody by the accused, physically touching the body, or to a body. Except when the person to be arrested is accused of an offense punishable by death or life imprisonment, when the accused person is attempting to resist his arrest by becoming violent and aggressive unnecessarily, or when the accused is trying to flee, the police officer must not cause the death of the accused person while attempting to arrest the person.

5. Section 49 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

In D.K. Basu v. State of West Bengal Supreme Court held that under Section 49, the police are not permitted to use more restraint than is necessary to prevent the person’s escape. The court further stated that the police officer would be held in contempt of court and subject to a departmental inquiry if they could not carry out his duties correctly. Any High Court with jurisdiction over the case above may be approached for such a dispute.

6. Section 41B of the Code of the Criminal procedure (Cr.P.C.) states the arrest procedure and duties of the officer making an arrest. Unless the memorandum is attested by a member of his family, inform the person arrested that he has a right to have a relative or a friend named by him be informed of his arrest.

7. 41D of the Code of the Criminal procedure (Cr.P.C.) stipulates that 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 the interrogation.

Conclusion

Modern constitutional law has come a long way in terms of protecting and safeguarding the rights of persons guilty of crimes. Patrol officers are especially prone to making mistakes since they serve under public scrutiny and are expected to achieve speedy results. India has a significant problem with illegal arrests and custodial deaths, primarily caused by unlawful arrests. According to India’s legal system, which supports the concept of “Innocent until proven guilty,” an accused person has certain rights as an arrested person that are untouched whenever a police officer knocks on his door to make an arrest. The Supreme Court of India in D.K. Basu v. West Bengal is not being effectively implemented. There should be proper execution of provisions and guidelines stated in this case to ultimately assist in decreasing the proportion of illegal arrests and resulting custodial deaths.

Section 313 of the Cr.P.C. gives power to the court to examine the accused

SCOPE & OBJECT OF SECTION 313, Cr.P.C:

The scope and object of examination of the accused under section 313, Cr.P.C. is:

• To establish a direct dialogue between the court and the Accused and to put every important incriminating piece of evidence to the Accused and grant him an opportunity to answer and explain them. (Sanatan Naskar & another v. State of West Bengal; AIR 2010 SC 3507);
• To test the veracity of the prosecution case. The examination of the Accused is not a mere formality, the questions put to the Accused and answers given by him, have great use.
• The scope of section 313 of the Cr.P.C is wide and is not a mere formality.
• The object of recording the statement of the accused under section 313, Cr.P.C. is to put all incriminating evidence to the Accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. (Sanatan Naskar & another v. State of West Bengal; AIR 2010 SC 3507)

PURPOSE OF EXAMINING THE ACCUSED

The purpose of empowering the court to examine the Accused U/s. 313 of Cr.P.C is to meet the requirement of the principle of natural justice Audi Alteram partem (that no one should be condemned unheard). This means that the Accused may be asked to furnish some explanation as regards the incriminating circumstances associated against him and the court must take note of such explanation. In a case of circumstantial evidence, the same is necessary to decide whether or not the chain of circumstances is complete. (Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150)

METHODOLOGY FOR RECORDING THE STATEMENT

In Dharnidhar v. State of U.P. & Others; 2010 AIR SCW 5658, the court held that, the proper methodology to be adopted by the court for recording the statement of the Accused under section 313, Cr.P.C., is to invite attention of the Accused to the incriminating circumstances and evidence and invite his explanation. In other words, it provides an opportunity to the Accused to tell to the court as to what is the truth and what is his defense. 

In the case of Dehal Singh v. State of Himachal Pradesh; AIR 2010 SC 3594, the court held that, “the statement of the accused under section 313, Cr.P.C. is recorded without administering oath. Therefore, it cannot be treated as evidence within the meaning of section 3 of the Evidence Act, 1872.”

Under section 313, Cr.P.C. (1)(b), it is mandatory for the trial Judge to put to the Accused every such piece of evidence which appears incriminating against him and reply of the Accused shall be sought thereto. (State of Nagaland v. Lipok Ao; 2007 Cr.L.J. 3395 (DB) (Ajai Singh v. State of Maharashtra; AIR 2007 SC 2188).

The Accused may or may not avail the opportunity for giving his explanation. (Subhash Chandra v. State of Rajasthan; (2002) 1 SCC 701).

Attention of the accused must specifically be drawn to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. The Court is under legal obligation to put all incriminating circumstances before the Accused to solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the Accused. Circumstances not put to the Accused in his examination under section 313, cannot be used against him. (State of U.P. v. Mohd. Iqram & Anr; AIR 2011 SC 2296)

“EXAMINATION U/S. 313, C.R.PC MORE THAN ONCE”

If examination of the Accused under section 313 has taken place, the court can call the Accused to answer incriminating circumstances again. There is no implied prohibition on calling upon the Accused to again answer questions. However, power to call the Accused to answer questions more than once, after conclusion of the prosecution evidence should not be used in a routine or mechanical manner. (Rajan Dwivedi v. CBI; 2008 Cri.L.J. 1440 (1447) DEL)

313 – POWER TO EXAMINE THE ACCUSED

(1) In every inquiry or trial, for the purpose of enabling the Accused personally to explain any circumstances appearing in the evidence against him, the Court

• may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
• shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub- section (1).

(3) The Accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the Accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The court may take help of Prosecutor and defense Counsel in preparing relevant questions which are to be put to the accused and the court may permit filing of written statement by the accused as sufficient compliance of this section.