Rights of Accused in India with special reference to Rights of Female Accused
The Constitution of India and the Code of Criminal Procedure have provided various laws and are highly concerned about the safety, security, welfare and maintenance of women outside and inside the jail.
A country should not be judged by how it treats its highest citizens but by its lowest ones. It is very well said by former President Nelson Mandela that "No one truly knows a nation until one has been inside its prisons."
Every citizen of India has been provided with equal remedies against violating his/her fundamental rights. Similarly, in India, the law has also provided rights for those accused of a crime. Jail is supposed to be a place for the reform of criminals. The Constitution of India, 1950, as well as The Code of Criminal Procedure, 1973, has provided various provisions for protecting the accused's rights. But in India, there are various cases where the rights of the accused have been violated, and they were not even provided with basic facilities. Female accused are also provided with special provisions for the protection of their rights, but all these provisions have been ignored by police officials as well as prison staff.
There are various cases where the Code of Criminal Procedure provisions have been completely ignored during the arrest of female accused. Female accused who are lodged in jails are also facing various problems. The Commonwealth Human Rights Initiative (CHRI) has revealed the poor infrastructure in female facilities. The female prisoners have also told the CHRI that, during the menstruation period, they were not provided with sanitary napkins, and they had to buy them from canteens. Most of the time, they have to depend on family members to get sanitary napkins. Even the children who are lodged in jails with their parents are not getting proper care and attention.
Custodial torture and custodial violence have become serious issues. The Hon'ble former Chief Justice of India NV Ramana has expressed serious concern over the violation of human rights and custodial torture. During an event organised by NALSA, CJI said that "the threat to human rights and bodily integrity are the highest in the police stations, and the custodial torture by the police is a serious problem that still exists in our society." The rights of accused and convicted persons.
The term 'Accused' is derived from the Latin word 'Accusare', which means 'to charge (someone) with a fault or offence'. An accused is a person who is responsible or suspects in the commission of a crime. In common words, the accused is a person who has done something wrong which is against society and prohibited in the eyes of the law. The term "accused" is not defined clearly anywhere. However, generally accused may be defined as a person who has been charged with violations of the law which is prohibited and punishable under criminal law.
The concept of the rights of the accused is not a new phenomenon. 'Human rights' is a term which was mainly used in the 20th century, but its origin is as old as human civilisation. It has gone through different stages of development and has taken a long period to become the concept of the present time. All these rights have a place in all old societies, though referred to by various names. [Dr S. Subramanian, Human Rights International Challenges Vol.1 3 (Manas Publication, New Delhi, 1997).]
The protection of the dignity of a human being is very important for harmony in society. Its violation can result in an impact on an individual in particular as well as society in general. Each individual is entitled to enjoy some rights which are necessary to human existence. Such rights cannot be violated by anyone on the grounds of gender, colour, caste, social status, religion etc. These rights are called human rights because they are necessary for living.
Human rights are also known as basic rights. Human rights are universal. These rights start from the birth of a human being and last till his death. Human rights are important for living with dignity and without any kind of discrimination. Human rights and legal rights both are equally important for individuals. Legal rights protect a person from illegal detention, malicious prosecution etc. Currently, in many countries, criminal procedure laws put the burden of proof on the prosecution, and then it is up to the prosecution side to prove that defendant is actually guilty beyond any reasonable doubt. The prosecution is duty-bound to prove the guilt of the accused, and the burden to prove guilty always rests on the prosecution's side from the beginning of the trial to the conclusion of the trial. [Bhikari v. State of U.P, AIR 1966 SC 1 1 1965 SCR (3) 194]
II. Meaning and definition of the term 'Accused':
The term "accused" is not defined clearly anywhere in the Code of Criminal Procedure, 1973. "However, generally accused can be defined as a person charged with conflict or violations of the law which is enshrined under the criminal law." In other words, a person who has been charged with the commission of an offence is called an accused.
a) According to Oxford University Press, "A person who is charged with an offence or against whom criminal proceedings have been commenced in some other way by judicial directions."
b) According to Collins English Dictionary, "The term accused can be used to refer to a person or group of people charged with a crime or on trial for it."
c) According to Merriam-Webster Dictionary, "Accused is a person who has charged with an offence and who is especially defendant in a criminal case."
III. Rights of accused in India
The Constitution of India is the supreme law in our country. The Constitution of India was adopted by the Constituent Assembly on 26 November 1949. It came into force on 26 January 1950. According to the Constitution, President is the first member of the state. The Constitution of India is called a protector of human rights as well as the rights of the accused in India. The key feature of any Constitution is the promotion, protection and respect of the rights of humans. There are certain rights provided to the accused in Indian Constitution to protect them. The main theory behind these provisions is to protect accused persons from misuse of power given by the government to govt officers like the Police. An accused person has various rights at the stage of enquiry, investigation and trial.
IV. Rights of the accused in the Indian Constitution
As per Indian Constitution, all citizens are equal and granted similar rights. An accused also has some equal rights like equality before the law, humane treatment etc. These rights cannot be taken away despite the fact that she/he is an accused or suspected of a crime.
Article 14: Equality before the law: All the citizens of India are equal within the eyes of the law. All humans shall be treated with equality before the Court or tribunal. No person shall be treated in a different manner on the basis of sex, caste, religion, race, language, colour etc. within the territory of India.
Article 20: Protection in respect of conviction for offences: (1) No person shall be convicted for an offence which was not a crime when it was committed. Similarly, no person shall be convicted with heavier punishment for an offence for which less punishment was prescribed when it was committed.
(2) No person shall be prosecuted and sentenced more than once for the same crime or offence.
(3) No person shall be compelled or forced to give a statement against himself or to be a witness against himself.
Article 21: Protection of life and liberty: No person shall be deprived of his life and liberty by any action of the state or another person. A person can be deprived of his life and liberty only after following the procedure in accordance with the law.
Article 22: Protection against arrest and detention in certain cases: (1) No person shall be arrested without being informed about charges against him. He shall not be denied consulting with a lawyer or advocate.
(2) Arrested or detained person shall be produced before a magistrate within 24 hours of such arrest.
Article 39 (a): Free legal aid: This article provides free-of-cost legal aid for the poor and weaker sections in society to ensure justice for everyone. In every state, the state legal service authority and in every High Court, the High Court legal service authority has been constituted in compliance with this article.
V. Legal Rights of accused in India
The Code of Criminal Procedure, 1973 provide various rights to the accused. These rights are provided to protect the accused against illegal actions by the Police or investigating authorities. The rights of the accused can be traced at different stages:
1. Pre-arrest rights of accused.
2. Post-arrest rights of accused.
3. Post-trial rights of accused.
1. Pre-arrest rights of accused
The Code of Criminal Procedure, 1973 provides and guarantees an accused of certain rights during the investigation and enquiry or proceedings of an offence with which he/she has been charged.
a) Right to know about the ground of arrest
The meaning of fair trial is that an accused of any crime should be given a chance to defend himself. To invoke the concept of fair trial, an accused be informed regarding charges or accusations against him. It is provided in Section 50 (1) of the Code of Criminal Procedure 1973 that when any accused is put forward before the Court for commencement of trial, then he should be informed about the offence against him in which he is being charged.
b) Right to privacy and right against unlawful search
Just because of suspicion, a police officer cannot violate the right of privacy of any individual. As per law in India, the property of any person or person himself (whether he is accused or not) cannot be searched by any officer without a warrant. For example, as provisions prescribed in Narcotic Drugs and Psychotropic Substances Act 1985, A person must be searched in the presence of a magistrate or gazetted officer. In Justice K.S. Puttaswamy (Retd.) & Another. v. Union of India & Others, it was held by the Supreme Court that the right to privacy is a fundamental right under Indian Constitution. [ AIR 2017 SC 4161]
c) Right against double jeopardy:
Double jeopardy is defined under the Constitution of India, Article 20 (2) and Section 300 of the Code of Criminal Procedure 1973. In common words, double jeopardy means that a person cannot be punished twice for the same crime. According to this provision, a person who has been arrested for the commission or suspicion of commission of a crime shall not be given punishment twice for a crime committed by him.
d) Right to get anticipatory bail:
Bail means the conditional release of an accused of a crime by furnishing bail bonds and surety bonds when the trial is pending in Court. Getting bail is the right of the accused in both cases of civil and criminal nature. "Bail is a conditional release."
Anticipatory bail is granted to a person before his arrest. If any person who is apprehending his arrest can file an application for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973, before Sessions Court and High Court. On acting upon his application, the Court may, if thinks fit, give directions to release the such person in event of his arrest. [The Code of Criminal Procedure 1973, Section 438]
Or Court can pass an interim protection order in favour of the accused to protect him from arrest. The Court can grant anticipatory bail by putting some conditions upon an accused person, like, the accused will remain present before the investigation officer whenever required and help the IO in the investigation. He will not leave the station or state without prior permission of the Court. In some cases, the Police can take the passport of the accused by order of the Court if Police think that the accused can leave the country if he gets anticipatory bail from the Court. Under provisions of anticipatory bail, the police officers are at liberty to arrest an accused person during the pendency of the bail application if there is no interim order passed by the Court in favour of the accused person to protect him from arrest.
e) Right against the ex-post-facto laws
According to this right, an individual cannot be punished for any crime, at the time of commission, was not considered or charged as a crime, and there was no punishment for the such act at the time when it was committed. This right seeks protection and safeguards the rights of the individual who is accused of commissioning of such crimes. Article 20 (1) of the Indian Constitution is a bar to imposing enhanced punishment. Enhanced punishment cannot be imposed on any individual. But provisions of article 20 (1) don't impose any restriction on the reduction of punishment.
In case of Rattan Lal v. State of Punjab, [AIR 1965 SC 444], the age of the accused was 16 years, and he was charged with offences of house tress and outraging the modesty of a girl child of 7 years of age. The Magistrate awarded 6 months of rigorous imprisonment with fine. Subsequently, in 1958, "The Probation of Offenders Act" The Probation of Offenders Act 1958. (Act no. 20 of 1958) came into being. According to the Act, a person below 17 years should not be sent to jail. Thereafter accused appealed for protection under this Act. In this case, Supreme Court held that the Act or law which is beneficial for the accused, Rattan Lal did not fall under the provisions prescribed in Article 20 (1) of the Constitution.
2. Post-arrest rights of accused
Post-arrest rights protect the accused from manhandling, and torture in police custody. These rights start from the arrest of a person who has been detained in relation to commission of a crime. The Code of Criminal procedure, 1973 has provided various rights for the protection of accused:
a) Right against illegal arrest
An accused person should be produced before Magistrate without unnecessary delay. It is the duty of the arresting officer to ensure this right. After getting remanded from Magistrate, arresting officer can proceed further with an investigation regarding the offence. Section 56 of the Code of Criminal Procedure provided that any police personnel arresting any person without warrant shall be produced before Magistrate without unnecessary delay.
A person has the right to stand against illegal arrest by Police or other govt officials. Under Section 57 of Code of Criminal Procedure, 1973, an accused person (he/she) arrested by the Police, within 24 hours must be produced before the judicial Magistrate. This right is also provided under Article 22 (2) of the Constitution of India.
b) Right to give information of arrest to family members:
Section 50A of Code provides that, every police personnel who is arresting any person under the Code of Criminal Procedure, shall inform about arrest of person and place (where an arrested person is detained) to any member of his family, relative or friend or any other person whose identity was disclosed by the arrested person. When accused person will be produced before the Magistrate, then it is the duty of Magistrate to satisfy himself that the information of arrest of person has been given to person nominated by arrested person as required in the law.
c) Right against self-incrimination
The right to keep silent is a legal provision guaranteed by the Constitution of India to any individual to refuse, to give answers to the queries of any judicial officer as well as Police. According to Article 20 (3) of the Constitution of India, no person can be pressurised by any officer to be a witness against herself/himself. In the case of Nandini Sathpathy v. P.L. Dani, [1978 SCR (3) 608], it was held by the Supreme Court that no judicial or Police officer could extract information forcefully from any accused and an accused person has a right to maintain silence during the course of the investigation. No police officer can force any accused or person to give confession or statement.
In case of Selvi v. State of Karnataka, the Supreme Court in Criminal Appeal No. 1267 of 2004, decided on 5 May, 2010, that subjecting any individual to narco-analysis, Brain fingerprinting tests, and polygraph test involuntarily is a forcible interference with an individual's mind as well mental health. Hence it is a violation of the right of privacy and Article 20(3) of the Constitution of India.
d) Right of not being remained in custody for more than 24 hours without the order of the Magistrate
An accused person has a right not to remain in illegal detention for more than 24 hours. And in case police officials fails to produce him before Magistrate within 24 hours, then police officials will be held guilty for illegal detention. There are settled provisions against illegal detention in various Codes. It is the legal right of a person as well as the accused, to raise their voice against illegal detention. If in case of the passage of 24 hours in custody, the accused can raise his voice and can take action against such police officers for not forwarding him before Magistrate within 24 hours of said arrest. [Section 55 of Code of Criminal Procedure, 1973.]
e) Right to be discharged when no sufficient ground of arrest is found
When a police officer arrests a person who is directly or indirectly related to the commission of an offence, then within 24 hours he should be presented before Magistrate for confirmation of his actual role in crime. If nothing is found regarding the role of the accused in said commission of crime, then the Magistrate by order can release him from jail. According to Section 227 of the Code of Criminal Procedure, If the judge is convinced after perusing all the records and material submitted by the Police against the accused, there is nothing on record for initiate criminal proceedings against him. The judge can order for release of such person by recording the fact that there is no reasonable ground to proceed against the accused. Article 22 (2) of Indian Constitution also provides that an arrested person should be produced before the nearest Magistrate within twenty-four hours.
f) Right to consult a lawyer of choice
After the arrest of an accused, during the interrogation, an accused person has a right to meet his lawyer during the interrogation. But there are some limitations imposed by the law on the lawyer that, the lawyer of the accused cannot remain present throughout the process of interrogation. Because it can affect the interrogation as well as police officials to get or collect information of incident happened. The accused or arrested person has the right to choose a lawyer of his choice who will defend him.
g) Right to be considered innocent until convicted by Court
Right to be considered innocent until proven guilty is a principle of law. If that principle is violated then it will only lead to injustice or miscarriage of justice. In the case of Noor Aga v. State of Punjab and Another [2008 16 SCC 417], it was held by the Supreme Court that, though it is not clear cut mentioned in the Constitution of India, the presumption of innocence until guilty is a strong background for justice. It is also important in preserving confidence in the security of a legal system. The right to be considered innocent until guilty is not clearly mentioned in the Constitution or in any other codes, but it is a basic concept for providing justice and to make people believe in our judicial system.
h) Right to remain present during proceedings of trial
An accused has a right to remain present during the proceeding of the trial in which he is arrested. Section 273 of the Code of Criminal Procedure, the evidence related to the case to be taken or presented in the presence of an accused person. In the case where accused cannot remain present for any reason then the evidence to be presented in the presence of the advocate of the accused. The presence of the accused can be exempted by order of the Court in certain cases. In that situation, the right to remain present during the evidence lies with the advocate of the Petitioner. In the majority of the case the accused person remains present during the trial of offence committed by him/her.
i) Right to get copies of documents
Right to get copies of documents is a legal right of every accused person in India. It is further written in detail in the Code of Criminal Procedure, 1973, under Section 207. This Section talks about the forwarding of documents to the accused person to prepare his defence and to remain up to date with the facts of the case. According to this Section, the accused person be provided with copies of documents like FIR under Section 154 CrPC statement as well as confessions under Section 164 CrPC, evidence, etc. All these documents to be provided free of cost to the accused person by the concerned authorities or Magistrate.
j) Right to be examined by a registered medical practitioner
Any person who is arrested by the Police in a charge or otherwise alleges, the police officials who arrested the said person are bound to produce him before the Magistrate. At the time when accused person is produced/forwarded before Magistrate, or during the time of his custody/detention, the examination of the accused is essential evidence which prove or disprove the commission of an offence.
If an accused makes a request to the Magistrate to get his body examined, the Magistrate will direct to conduct the medical examination of the body of accused or arrested person by a medical practitioner (registered). If a Magistrate gets convinced that the medical examination is just to delay the case or delay the delivery of justice, that in such situations Magistrate can cancel such requests. Section 54 of the Code of Criminal Procedure clearly says about the right to get examined by a registered medical practitioner.
k) Right to fair and speedy trial
Free and fair trial is an important part of Art 21 of the Constitution of India. The right to fair and free trial is a norm of the International Human Rights law acquired by various states in the world in their procedural laws. Various countries like Canada, USA and India have acquired these norms and preserved them in their Constitution. Legal aid is also considered in fair trial. According to the right to legal aid, every individual has the right granted by the Constitution of India, to a fair trial in the Court of law. The objective and main purpose of providing legal aid is to give fair chance to accused to defend himself.
Fair and speedy trial is the legal right of an accused person. In Hussainara Khatoon v. State of Bihar [1979 AIR 1360, 1980 SCC (1) 81], it was held by the Court that delay leads to mental anguish. It was further declared in Kartar Singh vs State of Punjab [1994 SCC (3) 569], that the right of speedy trial is an important and essential part of right to life and liberty guaranteed by the Constitution of India.
l) Right of accused to produce evidence
According to Section 243 (1) of Code of Criminal Procedure 1973, the accused person has the right to present the evidence related to his/her innocence in the Court of law and to defend himself/herself. If an accused gives any written statement in a court of Magistrate, then it is the duty of Magistrate to file it with the records of the case. This right is considered as an important right to the accused to prove his innocence and to lead any evidence in his defence. Accused can avail this right at any stage of trial and prove his innocence.
An accused person is guaranteed by the Code of Criminal Procedure to prove his innocence. He can produce evidence, statements, records to get justice for himself.
m) Right to cross-examination
Cross-examination consists of an examination of the witnesses of the opposite party. The main purpose and object of cross-examination is to check the reliability and authenticity of the witnesses and to verify the facts disclosed by the witnesses. The accused person has a right to cross-examine the witnesses called by the Court. Section 311 of the Code of Criminal Procedure, 1973 provides full right to the accused person to cross-examine the witnesses called by the Court of law.
In the case of Santokh Singh and Another v. State of Punjab, the Punjab and Haryana High Court observed that the right of the accused to cross-examine the witnesses called by the Court cannot be diluted. In another case of Sunil Mehta and Another v. State of Gujrat and Another, the Supreme Court has recognised the right of an accused to cross-examine the witnesses as a statutory right.
n) Accused person as a competent witness
As it is stated in Section 118 of Evidence Act 1872, every person is a competent witness if he/she can understand the questions put to him/her, and he/she gives correct and genuine answers to such questions. Therefore, according to Evidence Act 1872, an accused person is a competent witness. All the persons are competent witnesses unless the Court of law considered that they are unable to understand the questions put before them. For example, a lunatic or person of unsound mind is not a competent witness because lunacy prevents him from understanding questions put to him by the Court of law.
Under Section 315 of Code of Criminal Procedure, 1973, Any accused person before a court of law will be a competent witness for his defence and can give evidence on oath to prove his innocence and disproof the charges labelled against him or any other co-accused in the same case/trial. An accused can only be called for witness only on his written request before Court of law. [DD Basu, Criminal procedure (6th ed. 2017)].
Right of the accused person as a competent witness cannot be denied because it is a legal right clearly written in the Code of Criminal Procedure and Evidence Act.
o) Right to get humane treatment in prison
The Constitution of India provides that each human whether he is accused or not, have the right to live his life with dignity. Right to humane treatment in the prison or detention means no such act will be taken which results to deprivation of liberty of prisoners. Accused persons are also human beings.
On the international level the UN has established minimum standards in various matters like, living conditions of accused, food, cleaning of cells of prisoners, facilities for hygiene of prisoners, medical facilities etc. Prisoners are also provided with books which helps them to connect with the outer world. It is the legal right of every accused to be protected against inhuman treatment and any other type of cruelty. The Supreme Court of India have observed in various matters about the harsh and cruel treatment faced by the prisoners, and many time Supreme Court has directed the state to look into the matters and check the same.
In the case of Kadra Pehadiya v. State of Bihar [AIR 1981 SC 959], the Court expressed its anger after seeing four accused, who were waiting for their trial, were kept in leg irons (chains). The Court said that such acts of Police is total violations of all prison rule and regulations and also the violation of the guidelines set by the Court in the case of Sunil Batra v. Delhi administration And Others [1978 AIR 1675].
Thereafter the Court directed the Superintendent of Police to remove the leg irons along with chains from the feet of all four petitioners immediately. The Court further directed the Superintendent that no accused/undertrial prisoner will be kept in chain and leg irons.
p) Right against solitary confinement:
Solitary confinement means the confinement or a prisoner in which he kept away from communication with other prisoners. It is a type of punishment in which a prisoner is isolated from any kind of human contact. In Kishor Singh Ravinder Dev v. State of Rajasthan, [AIR 1981 SC 625] the Apex Court defines solitary confinement as confinement in which a prisoner is completely isolated from other prisoners as well as isolated from the outside world. Solitary confinement can only be given in rarest of rare cases otherwise it would violate Article 21 of the Constitution of India.
In, State of Uttrakhand v. Mehtab and Others, [Criminal Reference No. 1 of 2014 on 27 April, 2018], the High Court held that keeping a convict in custodial solitary confinement is unconstitutional. The act of keeping capital punishment accused in isolation just after the announcement of sentence is unconstitutional and a violation of Article 21. The High Court of Uttarakhand has declared solitary confinement/isolation as a remorseless practice which leads to anxiety, agony to prisoners. The High Court has made the observation that solitary confinement violates the Article 21 of Constitution of India which guarantees protection of life and liberty.
q) Right to apply for regular bail
A regular bail can be granted to an accused who has been arrested by the Police or is in custody of Police. An accused can file an application for grant of regular bail under Section 437 and 439 of the Code of Criminal Procedure. Regular bail can be filed in Sessions Court as well as High Court. During the time of deciding bail application, the Court can impose some conditions on the accused person and can also direct to file surety bond. The Court also has power under Section 435 (5) and 439 (2) to cancel the bail granted to the accused. The Court can cancel the bail and direct the Police to arrest the accused person.
"Bail is a rule and jail is an exception" is a legal doctrine, laid down by the SC in a landmark judgement of State of Rajasthan v. Bal Chand @ Baliey. [1977 AIR 2447]
Bail simply means the release of an accused person on his own bond with sureties or without sureties. Every accused has the right to presume innocent until proven guilty. Granting bail to the accused doesn't mean that the accused person has set free, but to release him from jail on bail bonds.
r) Safe custody of articles seized from arrested person:
When Police arrest a person in connection with the commission of an offence, then Police conduct the search of said person according to established procedure. A police officer can seize articles from the arrested person except cloth worn by the arrested person. It is also mandatory for the police official to give the receipt of seized articles to the arrested person. Seized articles to be put in safe custody by order of a court of law.
s) Right to free legal aid:
The right to free legal aid is a fundamental right provided in Constitution. Apart from Constitutional provisions, there is a separate provision in the Code of Criminal Procedure, 1973, u/s 304 (1). The right to defend by an advocate of the accused's choice is provided under Article 22 (1) of Constitution of India. An accused person has a right to consult an advocate of his choice before arrest. He can consult any legal practitioner of his choice to get remedies against his arrest. The main objective and aim of free legal aid are to provide free legal services to needy and poor people who cannot wear the costs of legal services and fees of advocates for any trial before a court of law to get justice.
In the case of Hussainara Khatoon v. State of Bihar, [1979 AIR 1369], it was held by the Apex Court that if any accused who is not able to wear the costs of legal services, then it is the duty of the state to provide him legal service at the cost of the state. It is also a right of the accused to get free legal aid. If any accused is not able to afford the legal expenses, then he has a right to get free legal aid at the cost of the state.
In the case of Khatri v. State of Bihar [1981 SCR (2) 408], the right to free legal aid is an important ingredient of a fair trial, and it is guaranteed in the Constitution itself. State is bound to provide an advocate or lawyer free of cost to an accused person if the need of justice requires the same. The state should provide free legal aid to an accused person who is unable to wear the costs of legal expenses due to his financial condition. The state is duty bound to provide free legal aid to the arrested person not at the stage of the trial, but also when he is first time produced in front of Magistrate.
In, Sukh Das v. Union Territory of Arunachal Pradesh, [1986 AIR 991], the Court held that the conviction of the accused person in a trial would be liable to be set aside in which legal aid was not provided to him, a result of the violation of Art 21 of Indian Constitution. Legal aid shall be provided by the Court of law on the expenses of the state.
t) Right to be released on bail if investigation is not completed within the prescribed period
Default bail u/s 167(2) of Code of Criminal Procedure is a fundamental right guaranteed by the Constitution of India. When Police arrest a person then charge sheet/challan is to be filled within 60 days (where the minimum sentence for the crime is not prescribed/specified) from the date of the arrest. In the case where the sentence for the crime committed is death or life imprisonment, then the charge sheet is to be filed within 90 days from the date of the arrest.
If the chargesheet is not filed within 60 or 90 days as prescribed, then the indefensible right accrues in the favour of the accused, and he/she will be released on bail. Default bail is the right of every accused. In some of the cases, after considering all the facts, the Court can extend the date of filling of charge sheet.
Hon'ble Apex Court in Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453], while elaborating and discussing the rights of the accused who is in the custody of the Police. Where in the case, the investigation was not completed within the prescribed period under Sec 167 (2) of Code of Criminal Procedure 1973. The Apex Court, in this case, held that after the expiry of the prescribed time limit of 90 days or 60 days, (as case may be), an indefeasible right comes in the favour of accused for being released on the bail by the Investigating Agency in non-completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if accused is prepared to and ready to furnish the bail, as directed by the Magistrate concerned.
In the case of Sanjay Dutt v. State through CBI, Bombay [(1994) 5 SCC 410], the Apex Court laid down some guidelines in respect of sec 167 CrPC.
The guidelines specifically cleared that the completion of 60 or 90 days (as the case may be), accrues an indefeasible right in favour of the accused to grant the concession of bail. This right of the accused arises from the failure of the Police or investigative agencies to complete investigations as well as file the challan within the prescribed time of 60 or 90 days.
3. Post-trial Rights of accused
Post-trial rights of an accused person depend upon the result/outcome of the trial. If the accused is convicted, then there are some rights like challenging the said judgement of conviction etc. And if the accused in acquitted by the Court of law, then he has the right to get a copy of the said order, and he also has the right to get protection from the Court if he thinks that his life will be in danger outside the jail.
Post-trial rights of accused depend upon the outcome of trial: -.
A. If the accused is acquitted by the Court of law.
B. If the accused is convicted by the Court of law.
A) If the accused is acquitted by the Court
If the outcome of the trial or the case comes in favour of the accused and Court acquits him from all the charges then he has rights to get the copy of judgement and obtain security from Police if he thinks that his life will be in danger outside the prison, etc.
a) Right to get copy of the judgement
In India, if the Court of law acquits a person from all the charges, then he has the right to get the copy of the judgement of acquittal and there after he be set free by the jail authority, and he will be free to live his life as a normal person. The Court is also duty bound to give information to the victim about the acquittal of accused persons. The Bombay High Court has directed all the trial courts to provide as well as give information of acquittal of accused person, to the victim so they (victim) can exercise their right to appeal against said judgement of acquittal. [Chaudhari, Kanchan. "Tell victims about acquittal of accused." Hindustan Times, 19 July 2020.]
b) Right to obtain protection from Police
After getting released from prison, an acquitted person has a right to obtain protection from the Police if the acquitted person thinks that his life will be in danger outside the Court. In such case, acquitted person can avail remedies by moving an application before the Court by filing prescribed fee or can avail remedy under Section 482 of Code of Criminal Procedure,1973, and can get police protection order from High Court.
B) If accused is convicted by the Court
If the outcome of the trial comes against the accused person, then he has rights to get lawful sentence, right to appeal against the judgement of conviction, right to get humane treatment, and to proper execution of sentence, etc.
a) Right to get human treatment
A convicted person is a human being, he does not become a non-person. Prison can restrict the liberty of a person. A prisoner or convicted person has a right to get humane treatment. In jail for the healing of prisoners, some kind of treatment like, psychic healing, stress buster techniques, and restoration of self-respect should be given to prisoners. Cruelty free living is the right of convicted persons. The Supreme Court of India have observed in various matters about the harsh and cruel treatment faced by the prisoners, and many time Supreme Court has directed the state to look into the matters and check the same.
Every convicted person has a right to live in a sanitised, clear and safe atmosphere in prison. A convicted also has the right to get physically examined by a registered medical practitioner. He/she also has the right to meet his family members.
While recognising the right of accused to get medical facilities, The National Human Rights Commission recommended the compensation/award of 1 lakh rupees (which to be paid by government of Maharashtra in shape of compensation) to the family of deceased, who was a undertrial prisoner and who died in jail (Nasik-road prison) due to unavailability or medicines and medical treatment as well. [NHRC Newsletter, September, 1999.]
b) Right to file an appeal against conviction
The word appeal is not defined in the Code of Criminal Procedure, 1973. Appeal can be described as the examination of a judicial order passed by a court of law. The appeal is an examination of the lower Court's order, by the High Court or examination of the High Court's order by the Supreme Court. It is a review of the judgement of the lower Court.
Section 389 (1) of Code of Criminal Procedure 1973, empowers the Court to suspend the sentence of convicted or when the convict is in jail then grant him bail during the pendency of appeal. While suspending the sentence of a convicted person, an opportunity will be given by the Court to the public prosecutor for showing cause in writing. Suspension of sentence should be allowed only after going through the order of conviction and hearing the accused person. It is not a matter of right.
c) Right to get lawful sentence
If an accused gets convicted by the Court of law, then it is the right of accused that he be convicted according to the nature of the crime or accused be punished with punishment prescribed by the law. Article 20 (1) of the Constitution of India clearly explains that an accused/person can be convicted only for the offence if the act committed by him is punishable by a law in force. No person can be convicted except for breach of a law in force.
In Om Parkash v. State of Uttar Pradesh [AIR 1960 SC 409], the appellant who has been convicted by a learned special judge under Section 6 of the Prevention of Corruption act, 1947, and under Section 165A of the Indian Penal Code, and was sentenced to undergo rigorous imprisonment of 1 year. The appellant was also charged u/s 468 read with Section 109 Indian Penal Code. But later on, he has been acquitted from said offence. In said case offering bribe was not an offence in year 1948. Section 3 of the Criminal Law (amendment) Act, 1952 has inserted Section 165A in Indian Penal Code, 1860. After this amendment offering bribe was declared an offence and prescribed punishment. It was held by the Court that appellant could not be punished u/s 165-A for giving bribe in 1948.
Article 20(1) of the Constitution provides that no person shall be punished with a penalty greater than the penalty prescribed in the law in force at the time of commission of offence. This article prohibits the enhancement of the sentence for an offence retrospectively.
d) Right to get proper execution of sentence
In 2013, the hanging of Indian Parliament blast convict Afzal Guru was criticised by the various human rights activists and legal experts all over the country. During carrying out the execution of death sentence of Afzal Guru, the government have ignored the view of Apex Court. According to various human rights activist, the hanging of Afzal Guru after holding him in jail for years is inhuman. Terrorist Afzal Guru was convicted and sentenced in 2003 by the Court for attacking Indian Parliament in 2001.
Thereafter his appeal was dismissed by the Supreme Court in year 2005. The execution of death sentence was scheduled for 20 October 2006, but after protest in J&K, stay on conviction was given by considering tension in Kashmir valley, and Guru was remained on death row. His mercy petition before the President of India got rejected on 3 February 2013. Subsequently, he was secretly hanged on 9 February 2013 at Delhi's Tihar jail, and his body was not given to the family members and buried inside the jail premises as per Muslim rights.
After the execution of Guru, his family members claimed that they were not informed by the jail authorities about the execution, and the government refused to give the body of the Afzal Guru.
In an interview, Afzal Guru's cousin Yaseen Guru told that, "We were not informed by govt or jail authorities about the execution of Afzal Guru. We came to know about execution from media. At least on humanitarian ground family should have been informed and allowed to meet him and find out if he has any last wish. It is really unfortunate." [Mukherjee. Ashish, "Afzal Guru's family counters Govt, says not informed about execution", NDTV, 10 February 2013.]
After the execution of death sentence, the relatives of the executed person can claim his body for last rights. [Clause 11.67 of Model Prison Manual]
It was also said by the family of the Afzal Guru that the body of Guru after his execution was not given to family for his last rights. But the jail official said that the body of the Afzal Guru was buried in the jail premises as per Muslim rights in presence of Maulvi.
VI. Rights of female Accused in India
The Constitution of India and the Code of Criminal Procedure have provided various laws and is highly concerned about the safety, security, welfare and maintenance of women outside and inside the jail. Such laws have laid down special provisions for the safety of women from various atrocities of criminal nature during and after her arrest. For example, Section 51(2) of Code of Criminal Procedure, 1973 provides search of an arrested female can only be conducted by a lady officer. In the 21st century, women have achieved great heights in various sectors and also achieved equality with men. Being a soft target, women are subjected to serious crimes in male dominated society, such heinous crimes like outraging their modesty in police custody too. In order to protect women from all the crimes, various laws like the Code of Criminal Procedure have played an important role. Chapter V of the Code of Criminal Procedure, 1973 laid down the procedure for arrest of person involved in a crime or suspected.
If any person in a society commits a crime, he/she does not become inhuman. Thus, all the fundamental rights belong to him/her. Plea of innocence is also there. It is clearly described in our laws that an accused is innocent until proven guilty. To run society smoothly, there are various laws which provide punishment as well as fine or both to the offender to restrict criminal activities. The main aim and motive of our prison system are to reform and rehabilitate of prisoners. Also, the main motive of the criminal justice system is to restrict an accused from future criminal activities. If an individual was once a criminal, it does not mean that for his lifetime he will remain a criminal. There is a famous quote of Mahatma Gandhi, "hate the crime, not the criminal."
The involvement of women in crimes is less in comparison to male accused, but with the passage of time, the number of female accused are increasing gradually. According to the data of PSI, till 31 December 2020, there are 4.1% of females were in jails.
Source: Prison Statistic India, 2010 & 2020.
Female accused have been given a handful of provisions against breach of their rights during arrest by police officials. Both male and female accused have been given equal rights, but in the case of women, by looking seriousness, our laws have protected female accused from maltreatment during their arrest and in prison also. These rights protect a female from her arrest till the result of the trial. Even after trial, right to appeal is also there in case if the convicted is not satisfied with the decision of the Court. Rights of female accused in India can be classified into three categories, i.e.:
A. Rights of female accused during arrest.
1. Post-arrest rights of female accused.
2. Post-trial rights of female accused.
1. Rights of female accused during arrest
These rights can be availed by a female before her arrest. Arrest is the first step of a criminal trial. If any woman who is suspected or accused of any crime, then police officials have to follow the procedure prescribed by the Code of Criminal Procedure. In case of violation of such procedure, the aggrieved female can raise voice against such violation by availing her rights under Constitution of India and under CrPC. The procedure to arrest a female is prescribed in the Code.
a) Right to no arrest
There are lots of cases in India where women were harassed by the police officials at wee hours. But all these situations can be avoided and denied by the female accused by exercising their right of being present at police station only in daytime. Even if police party comes along with lady police, then they cannot arrest a lady at night. In case of serious crime committed by a female, then Police will inform the concerned Magistrate about the situation and explain that why the arrest of female is necessary during night-time.
Section 46 (4) of Code of Criminal Procedure describes that a female shall not be arrested after sunset and before sunrise. If the arrest of a female is necessary in prohibited time (after sunset and before sunrise) then a lady police official by making a written application (narrating the necessity of arrest) to the Judicial Magistrate of first Class of concerned area or in whose jurisdiction the crime was committed. After looking into the matter, the Judicial Magistrate first Class of concerned area will give his content in written. After the order of arrest from Magistrate the arrest of a female can be conducted.
In Kavita Manikikar v. CBI Mumbai [2018 SCC Online Bom 1095], the Petitioner (female) was accused in the famous case of 'Punjab national bank scam'. Petitioner contended that respondent CBI called her for investigation in said case, and she duly co-operated with CBI in the investigation. Thereafter Petitioner was arrested at 8 p.m. and was produced before the special judge. The Petitioner, before the special judge pointed out about her illegal arrest as it violates sec 46 (4) of Code of Criminal Procedure. But the special judge ignored her illegal arrest and gave her custody to the respondent CBI. Where she remained for a period of 14 days in CBI's custody. Thereafter, Petitioner filed a writ petition in nature of mandamus. Therefore, the two-judge bench of Bombay High Court recorded the contentions of the Petitioner and gave a brief about the right to life and liberty. Court has also concluded by saying that the procedure adopted by the CBI to arrest the Petitioner liable to be declared as illegal. The Court further held that the officers who violated the procedure of arrest under Section 46 (4) of CrPC for arresting the Petitioner after sunset at 8 p.m., are liable for disciplinary action/proceedings. Court has also imposed a fine of Rs. 50,000 on concerned CBI officials, which will be paid to the Petitioner.
In another case of Mrs. Bharati S. Khandhar v. Shri. Maruti Govind Jadhav [2012 SCC Online Bom 1901], the petitioner lady, was arrested by the Sub-Inspector around 05:30 p.m. During her arrest the SI violates the provision of Section 46(4) of CrPC. Even the Petitioner asked him about the ground of her arrest, but respondent SI did not inform about the ground of her arrest and took her to the police station. The sister of petition was accompanied with Petitioner. On repeated asking by the sister of the Petitioner about the ground of arrest, the SI told her that, the Allahabad High Court has issued non-bailable warrants against Petitioner. There after Petitioner was produced before Judicial Magistrate and was granted bail. Against her illegal arrest, she filed a writ petition in nature of mandamus to direct respondent to pay the compensation and action against him, on account of violation of sec 46 (4) of CrPC. The Court held that the arrest of the Petitioner was illegal, and the Court directed the respondent to pay compensation of Rs. 5000 and also initiated an inquiry against respondent Sub-Inspector.
b) Right to be searched by a lady officer
A woman can only be searched by a lady police officer. A female has the right to deny, if the search is conducted by a male officer. Any search beyond this refusal is considered as sexual harassment. A female has also right to refuse and take action against such male officer if a male officer conducts her search.
c) During the arrest relatives/friends can accompany a female to the police station
At the time of arrest of a female, the family members, friends and relatives can accompany her to the police station. Police cannot deny this right of a female. It is just for the safety of a woman and her dignity. In many cases, we have witnessed the manhandling of female by the Police. If the family member or relative accompany the arrested female to the police station, then there are few chances of manhandling.
d) Right to not being called to the police station
U/s 160 of Code of Criminal Procedure, 1973, Police cannot call a female to the police station for interrogation as well as inquiry. This law provides the right to a female for not being physically present for interrogation in the police station. The Police can interrogate a female at her home in the presence of her family members or friends. A lady police should be there for her interrogation. This law prevents women from harassment in the name of interrogation. During queries a female should be guarded by a lady constable or any other lady police officer. She must be questioned in the presence of female Police as well as in the presence of her relative or family members.
2. Post-arrest rights of female accused
Post-arrest rights, protect a female from maltreatment after arrest and these rights give her guarantee to be treated according to law. In India female accused have been facing so many problems during the undertrial period in prisons. They were not provided with needed facilities. In India there are few female prisons. Women are kept in male prisons in separate cells. Right to privacy is also there. A female has a right to live with dignity and respect in a separate cell when she is in custody. Right against manhandling is also there, which she can avail if arresting party does inhuman treatment with her or use any kind of force during her arrest as well as in prison.
a) Right to be medically examined by a registered female medical practitioner
A female has the right to decency and dignity. In case where medical procedure needs to be conducted on a female arrested, such procedure should be performed/conducted by a registered female medical practitioner, or under the supervision of a female doctor. This procedure should be performed in the presence of a policewoman. In various cases, the medical examination of a female was not conducted by a female doctor. This law clearly bars a male official to conduct medical examination of a female. Female has a right to refuse if her medical examination is being conducted by a male police official.
b) Right against manhandling
The provision of S. 46(1) of Code of Criminal Procedure,1973 establishes that while executing the arrest of an accused female, female's submission to custody on oral information her arrest will be presumed. Moreover, in case if touching of female's body is needed to execute her arrest, the procedure should be followed by a female police official. If during the arrest of a female accused, if she resists/refuses her arrest or try to evade the arrest and if there is a situation of use of force, then all the procedure of handling an accused female shall be carried out by a female constable or police official.
c) Right to be informed regarding grounds of arrest and right to bail
According to Section 50 (1), Code of Criminal Procedure, the arrested person has right to obtain information regarding the grounds of her/his arrest, and the police officer or the person who is executing the arrest, is duty bound to give information about ground of arrest of such person. The officer shall communicate the same to him. This right is exercisable by both male and female accused.
Further, U/s 50(2) of Code of Criminal Procedure, 1983, after the arrest of a female in an offence or any other offence other than non bailable, the Police is duty bound to give information. Arrested female shall be informed about her right to release on bail after the arrangement of the sureties on her behalf. Police is duty bound to give information about rights to a female accused because in majority of times women are not aware about their legal rights during or after the arrest.
d) Right to be kept in a prison along with female accused
After the arrest of a female, she has a right to live separate from male fellow prisoners and live with females. An arrested female has the right to live apart from her male counterparts, in a jail where male and female both kept together. According to prison act, arrested female should be kept in a separate building or separate section/cell in same building. The main purpose of this is to protect the dignity of a female and protect her from harassment. Another purpose behind the separation of male and female prisoner is to prevent both of them from seeing each other, converse or have sexual relation/contact with each other. [ Section 27 (1) of Prison Act, 1894.]
In, Sheela Barse v. State of Maharashtra, [1983 AIR 378, 1983 SCR (2) 337], the Supreme Court of India had laid down some guidelines for the women in custody. It was held by the Court that the separation of females from males in the jail is necessary, and it must be the duty of police officers to segregate them. In those prisons where there is no separate cell for female accused, a separate room should be provided to the female accused. Any interrogation of female accused should be conducted in the presence of female constables. If a woman in custody is pregnant, then the safety of the lady as well as the foetus should be the priority of the Police or officials concerned. Pregnant female prisoners should be provided with necessary pre-natal and post-natal care facilities. During the process of the arrest of a pregnant lady, no force or coercive steps should be taken, or it should be used as a last option.
e) Right to meaningful and gainful employment: -
This right provides that no accused or prisoner in jail shall be forced to perform beggar and labour, which is prohibited by the law. Right against exploitation is guaranteed under Indian Constitution. If any undertrial accused volunteers themselves to do work, then they may be provided with suitable work and payment should be given to such undertrials.
No prisoner shall be allowed to do domestic work with prison officials. Such kind of work will be considered as a violation of fundamental rights, and guilty police officials would be liable to pay monetary compensation. Any accused in jail shall not be put into any kind of work which directly related to the private entrepreneur or is managed, controlled or supervised by the private entrepreneur for his profit. But in the case of open jails and camps, this rule with remain silent. [Model Prison Manual.]
f) Right of female accused to keep children in jail: -
A female accused/prisoner has the right to keep her children till they turn six years of age. But there are strict provisions that no child will be allowed to stay in jail if he/she is above the age of six years. Till attaining the age of six, all the expenses of the children of prisoners will be given by the state government. She/he will be provided with compulsory education. Crèche facility should be provided in jail premises for the age group of 3-6 years. In case of both parents are in jail, then the dependent child/children will be provided with a scholarship. This provision may vary from state to state.
3. Rights of female accused after completion of trial
The rights of the accused after the outcome of the trial of the case are the same for both males and females. Both have similar rights like the right to get a lawful sentence, the right to appeal against the order of conviction, proper execution of sentence etc. But in the case of a female accused, execution of the death sentence is illegal if a female is found pregnant at the time of execution.
a) Postponement of execution of capital punishment awarded to pregnant convict: -
If a woman is held guilty and awarded capital punishment by the Court of law, and if it is found that the convicted woman is pregnant, then the High Court shall postpone the death sentence of the pregnant woman. The Court also has the power to commute the death sentence to life imprisonment. [Section 416 of Code of Criminal Procedure, 1973.]
The High Court can postpone the sentence of a pregnant female after a written application from concerned jail officials. The High Court may also take a lenient view and commute capital punishment to life imprisonment.
Being an accused does not convert a person into a non-person. Basic human rights cannot be denied merely because of criminal charges against him. Every country has its own criminal laws to deal with criminals, and the need for the protection of the human rights of the accused on an international level was felt. The conditions of the accused are getting worse day by day. Human rights are also known as natural rights. These rights are available for every person throughout the world from his birth, and these rights last till his/her death. The Indian Constitution is widely known as the protector of human rights. It protects the rights of a common person as well as accused of suspected of a crime. Our Constitution mainly focuses on the right of equality before the law and the right to life and liberty.
The Code of Criminal Procedure is a set of rules and regulations which allows Police to arrest a person who is involved or believed to be involved in the commission of a crime. In the Code of Criminal Procedure, there is an established procedure for the arrest of a person still his conviction or acquittal. But in many cases, we have seen that the procedure prescribed by the code is not followed during the arrest of a person. Arrested persons were not informed about their legal rights during arrest and after arrest. The majority of the persons were not even aware of their legal rights, and according to the Code of Criminal Procedure, police officers are duty-bound to give information about the legal rights of the arrested person.
Indian laws and legal systems protect women very well. The rights of females during arrest should be known by every female. It is said that a person who knows the law, does not need any other weapon because the law itself is a weapon. If you are aware of your rights, then you can fight against injustice. Women should know about their legal rights. There are rules and regulations for the protection of females in jail. But the only question is whether women prisoners are getting such rights as prescribed in law?
Women have faced discrimination in society at each stage of life. But when she becomes an accused in the commission of a crime, then her position becomes worse. Our Constitution and various other laws have prescribed procedures to safeguard the rights of accused and undertrials. But due to a lack of awareness and knowledge among the accused persons, these rights remain untouched. In some of the cases, the Police, as well as prison staff, don't give information to the accused about their rights and, sometimes accused remains unaware of his legal rights due to illiteracy. The government is organising various legal awareness programmes to create awareness among the common people of the country about their legal as well as constitutional rights.