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The Rights of an Accused Person in India

An Analysis Of The Legal Rights Provided To An Accused Person In India And The Usefulness Of It

Indian Judiciary believes in having fair trials. The not guilty until proven is the foremost approach expected to be made towards every alleged person in the court of law. The purpose of this research is to study and analyse all the rights given to a person who is accused of a charge in India. Detailed study of the rights of an accused while in an ongoing trial is covered in this work. The research focuses on finding out to what extent are those provided rights needed.

The research examines the prominence and necessity of the rights provided to every accused person whatever their charges might me. The research, questions if, the rights that are provided to the accused should be restrained in some specific special cases or not. It is hypothesized that the rights given to every accused, regardless of their charges, is sometimes, in very specific cases, disturbs the collective mental consciousness of the society and is not fair for the same. The research looks forward to be conducted in empirical or non-doctrinal method, mostly via participant’s interviews and observations.

Every human being has basic human rights, including accused person or proved criminals. As defined in the blog Equality and Human Rights Commission[1], Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. These basic rights are based on shared values like dignity, fairness, equality, respect and independence. These values are defined and protected by law.

An accused is a person who is charged with a crime or on trial for a crime but not yet proven a criminal. India is a democratic country and so the concept of fair trial is a constitutional obligation. In Indian courts, an accused person is not guilty until proven beyond reasonable doubt. The rights of an accused can be categorised into rights before trial, rights during trial and rights after trial. Accused rights includes fair trial, getting bail, hiring a criminal lawyer and free legal advice, etc.

The most basic rights of an accused are the rights of any normal Indian citizen, like right to equality before law and protection of law[2] written in the Indian Constitution itself. Other rights fall under Criminal Law and the Indian Evidence Act,1872.

Review Of Literature
A number of researches have taken place specifically talking about what rights an accused person has in an Indian judiciary system. The provisions under which the laws are scripted are also mentioned in the research articles and journals. In an article in Legal Service India by Gursimran Kaur[3], provisions from CRPC and Constitutional Law which covers the right of accused is provided.

An unlawful arrest of an individual can violate the article 21 of the Indian Constitution that states:
No human shall be denied of his right to life and personal liberty except if established by law which says that the process and trial should be absolutely fair and not prejudiced or oppressive (Legal Solutions Worldwide)[4].

Each accused person should be given a chance to have their innocence or guilt determined by a fair and effective legal process. Without fair trials victims will end up having no confidence whatsoever on the justice system and the rule of law will collapse (The Right to a Fair Trail)[5]. There are legal protections provided to the accused during a criminal trial mentioned under the Code of Criminal Procedure,1974[6].

If the proceeding of a case has been initiated by on a police report then the accused or the arrested person has the right to know what is in the police report, the informant report, the statement recorded or any other relevant document (as suggested by Anubha Shrivastava)[7].

The arrested person has a right to know the charges pressed against him or the grounds of arrest as per section 50(1) of CrPC. Where the person is being arrested by a warrant, he must be provided such warrant as per section 75 of CrPC. A nominated person who can be a friend or a family member or anyone known to the person being arrested must be provided with information from the police about where the arrest and where the person is being held, as per section 50(A) of the CrPC (Suggested by Naveen Kumar)[8].

A person who is arrested without warrant and is charged under a bailable offence is entitled to be released on bail by paying the surety amount (suggested by Gursimran Kaur)[9]. An accused also has the right to privacy and protection against unlawful searches; a search warrant has to be provided by the police in order to conduct search in any private property of the accused (suggested by Swati Salini)[10]. The Indian Penal Code by B.M. Gandhi extends this field to rights of accused after trial, when proven guilty.

Prisoners do have certain rights while serving their sentences in jails. Such rights include right to have free legal aid, right to equality, right to basic human conditions and etc (B.M Gandhi, Indian Penal Code,1996)[11]. A lot detailed study informing all the laws and provisions for an accused person’s rights are available in the mentioned articles, journals and books.

Research Problem
Indian constitution is wedded to democracy and hence fair trial is a commitment. In order to uphold the impartiality of court verdicts every accused is given certain rights by the law. But that may not always be ethically correct and the collective mental conscious of the society can be disturbed too. This research focuses on the contradiction whether every accused should be provided with the same set of privileges of law or the laws should be restrained.

Research Objectives and Significance
This research aims:
  • To study all the rights and privileges of the accused provided in different acts and provisions in our legal system.
  • To examine the prominence of the rights provided to an accused.
  • To analyse which rights should be constrained or restrained from the accused, in specific cases.
This research aims to evaluate the extent of necessity of the rights provided to the accused in Indian jurisprudence.

Research Question &/or Hypothesis
It is hypothesized that the current law of providing rights to every accused in a trial, sometimes, in specific cases, are irrelevant and unsatisfactory or objectionable by the society. Therefore, the research intends to find answers to the following questions;
  1. What are the rights of an accused which are provided in Indian jurisprudence?
  2. How much are the rights provided to the accused relevant and to what extent are the rights needed?
  3. Should the privileges provided be restrained from accused?

Research Method
A Phenomenologist’s approach will be used for conducting this research as the research questions cannot be answered by hard data, surveys or by analysing numbers. The non-doctrinal or empirical method will be used for conducting this research.

Data Collection
Data will mainly be collected via interviews and participant’s observation. Primary data collection like conducting field research and observing the reactions of respondents via interviews will be the source of data collection for this research.

Rights Of An Accused

Chapter I: Constitutional Rights

The Constitution of India itself provides certain basic fundamental rights to every citizen of the country. An accused person also is supposed to enjoy those rights.
  • Right to equality before law and equal protection of law (Article 14)[12] is one of such rights that are provided to the citizens by the Constitution of India. Every person in the country should be treated equally despite being an accused criminal.
  • Protection against retrospective provisions of an Act {Article 20(1)}:
    No person shall be convicted of any offence except for violation of a 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 commission of the offence. [13] The crime of a person can only be judged by the law that is in force. This means a person cannot be punished for an act which was not a crime when it was committed but which became one after it was committed.
  • Right to protection against double jeopardy {Article 20(2)}:
    No person shall be prosecuted and punished for the same offence for more than once. This is a restriction on enforcement of criminal law. By undergoing trial, the accused has cleared his debt to society and he cannot be prosecuted twice even though he is in fact guilty.
  • Right to protection against self-incrimination {Article 20(3)}:
    No person accused of any offence shall be compelled to be a witness against himself. In Selvi v. State of Karnataka[14] the Supreme Court has held that the protection against self-incrimination is a broad protection that extends to stage of investigation. Therefore, the right of self-incrimination protects persons who have been formally accused as well as those who are examined as suspects in criminal case. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated[15].
  • Right to be released on bail:
    Bail is the rule and jail exception. The Supreme court has aptly said that the primary purpose of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping him, pending the trial, at the same time, to keep the accused constructively in the custody of court, weather before or after the conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required[16]. Also, undertrial prisoners have a right to legal aid for the purpose of applying for bail[17].
  • Right to know the reason of arrest. {Article 22(1)}:
    No person who is arrested shall be detained in custody without being informed, as soon as may be, 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[18]. A person who is said to have been involved in a crime has a right to know the reason of his arrest.
  • Right to engage an advocate {Article 22(1):
    Accused or arrested person has the right to consult and to be defended by a legal practitioner of his choice. This is a fundamental right[19].
  • Right to free legal aid {Article 39-A:
    In M.H. Hoskot v State of Maharashtra[20] the Supreme court stated that if a prisoner is disabled from engaging a lawyer on reasonable grounds such as indigence, on in communicate situation, a court shall, if the circumstances of the case, the gravity of the sentence and the ends of justice so require, assign a competent council for the person’s defence, provided the party does not object to that lawyer.
  • Right to be presented before the Magistrate {Article 22(2)}:
    Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. This is a fundamental right which puts restrictions to police power. Arrest and detention should be according to the law and as prescribed by the law. Section 56 and 57 of the CrPC also make such provisions. Therefore, this right is not only constitutional but also a statutory right.
  • Right to appeal {Article 132, 134 and 136}:
    Right to appeal is a constitutional right and a statutory right[21].
  • Right to be free from torture and maltreatment {Article 21}:
    In Sunil Batra (2) v. Delhi Admn[22], the Supreme court held that Article 21 prohibited mental torture, physical pressure and physical infliction and torture beyond the limits of lawful imprisonment.

Chapter II: Rights under Evidence Act

The evidence act, 1872 says that an accused person has:
  • Right to be presumed innocent (Section102 and Section 105)[23]- A person is presumed to be innocent unless and until is proven guilty. This is known as Presumption of Innocence. However, there are exceptions to presumption of innocence, such as in cases where mens rea is not required to be proved and in cases like drug abuse, dowry, and offences regarding terrorist activities.
  • Also, the accused has the right to present a witness or cross examination of a witness to encourage a decision in favour of him. Section 103, Section 133, Section 166 of the Evidence Act are the provisions for this right.
  • Right to confession of guilt (Section 24, 25, 26, 28)- An accused can confess his guilt in front of the honourable justice in a courtroom trial. The truthful and country confession of an accused is an effective evidence in the court. Sections like 163(1), 163(2), 164(1), 164(2), 164(4), 281 and 463 of the CrPC talks about the same.
  • Right to privacy of conversation (Section 122, 124,126, 129)- Communications between husband and wife is private and they cannot be compelled to disclose it. There are exceptions to this though and the sections elaborates on those.

Section 122 … unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.[24]

Section 124 elaborates on official communications. Section 126 and 129 talks about attorney-client relationship.

Exception of Section 129 …unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.[25]

Chapter III: Rights under Code of Criminal Procedure

The Code of Criminal Procedure has many provisions expanding about the rights of accused. They are as follows:
  • The case or the trial which is to be conducted has to be done with the presence of the accused. Section 273 and Section 279 of CrPC grants this right to an accused person in India.
  • An accused, in India, has the right to defence oneself (Section 240, 243 and 247):
    He can plead not guilty in the court. The accused is being asked whether he pleads guilty or not.

    Section 240 Framing of charge. (1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter , which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.[26]
  • Right that his case be conducted in an open court (Section 327):
    An accused has this right to have his trial go on in open court where public or journalists etc. are allowed. However, the court has power to restrict admission of people according to space available in court. Trials can be conducted on camera as well[27].
  • Right to remain silent (Section 161, Article 20(3) of the Constitution):
    Privacy of a citizen is keenly protected by law. No one is bound to answer questions asked by police, even if he is an accused[28].
  • Right relating to statements (Section 161, 162, 164, 273, 200, 202 and 208):
    This right emanates from sections 161 and 162 of CrPC. Written statements before police are not to be signed by the giver and it shall not be used for any purpose other than the one showed in Section 162(1).
  • Right to be own witness (Section 313, 315 and 316):
    To be a witness against oneself is not confined to the particular offences about which the accused has reasonable apprehension of implication from his answer. A criminal charge covers any criminal charges then under investigation or trial or which imminently threatens the accused[29].
  • Right to protection against double jeopardy (Section 300):
    No person shall be punished more than once for a same offence. But initial burden is upon the accused to take necessary plea of autrefois convict and establish the same[30].
  • Right that sanction be obtained before prosecution for certain offences (Section 196 and 197):No cognizance can be taken by any court of the following offences without the previous sanction of the Central or State Government:
    1. Offences under Chapter 6 IPC.
    2. Offences under Sections 153-A, 295-A, 505(1) and criminal conspiracy for such offences and abetment in India under Section 108 IPC in regard to an offence committed outside India (Section 1969(1) CrPC).
    3. Section 153-B, Sections 505(2), 505(3) or conspiracy to commit such offences (Sections 136(1-A) CrPC.
    4. Criminal conspiracy to which Section 120-B applies (Section 196(2) CrPC).
  • Right to privacy of a woman accused (Section 46 and 54)- Privacy of a female accused must be protected and honored and towards this end, amendment have been made in the existing provisions of the Criminal Procedure Code.
  • Right not to subjected to illegal arrest or detention (Section 41, 60-A and 167)
  • Right to meet an advocate of his choice during interrogation (Section 41-D)
  • Right to obtain free copy of the judgement (Section 363 CrPC)
  • Right to have a fair trail
  • Right to be released on probation (Section 360)- Courts are obliged to keep a record of the reasons for which a probation is not granted.
  • Right to represent against punishment to be awarded (Section 235(2), 248(2) and 360)- The person convicted has to be heard before any punishment is awarded to him (Section 235). If the person to be convicted has special reasons to be pleaded in regard to punishment, he can do so. If the accused is convicted only then the question of representation regarding punishments arises[31].
  • Right to be released on bail
  • Right to take advantage of the period of limitations (Section 468)
  • Right to produce and examine witnesses in his defense (Section 240, 243 and 247)
It was hypothesized that the rights and privileges given to the accused are not always justified and might disturb the collective mental consciousness of the society. For example, in cases like Ajmal Amir Kasab v. The State of Maharashtra, was there even any need to undergo a trial in court, where the crime was done openly and the criminal/terrorist was caught on spot. Kasab was not an Indian citizen (that the state is bound by the constitution for his rights) whereas he was a terrorist, an open threat to the nation who already had bloodshed India. Why was there any need to provide him with the privileges of an accused person in India?

Indian court took responsibility of his human rights and provided him with legal aid to defend himself in the court where it was already known that he is the one. It took years for a terrorist like him to be hanged in India. Somewhere our laws were reluctant enough for the terrorist who killed 100s of innocents in one evening. How much were the rights provided to Ajmal Kasab were pertinent? Similarly, in such specific cases where the person who is accused of a charge is the one who is actually the criminal and it can be proved very prominently, the privileges which were provided in our legal system to have a fair trial and let the innocent go free, should be confined. The court session should only be held for the accused to represent and for the final verdict.

Empirical method is used for this analysis. Interviews and observations have been made one a total of 60 people residing in Kolkata, West Bengal, who had their opinions on the research questions. The data collection results show that 45% people agree to the research question, i.e., in specific cases like mentioned above the rights provided to an accused should be confined. Other around 20 - 25% people could not make any decision whether rights should be there or not, and if not then what about the people who are mistakenly charged of a crime they didn’t commit.

The rest interviews gave results where people are either fine with the system however it works, or they don’t have enough knowledge or views about it. During the interviews it was observed that whenever the case of Kasab was brought in as an example people would answer in anguish and pain and talk using phrases like Being an Indian it is disheartening to see us helping the same person who stamped so many lives..., Our neighbours has been so cruel but we still forgive them, but 26/11 was mere silly acting by the legal system. He should have been hanged in the Taj hotel’s lawn during the day.

On the other hand, answers like Who will decide whether this accused or that accused should be given right or not? If fair trial concept becomes an option then more cases like the Talvar case will come in foresee…, We do have our emotions talking but that is not how the law should work. Kasab gives us nightmare but if an innocent is hanged it will be worst. Mentions of the Nirbhaya case too came up in the interviews.

If there’s no fault in the system then why would it took the court 6 long years to decide its final verdict in a 10 days investigation case?, Why was the brutal rapist given the benefit of a minor? Should our law not be only written documents but also humanity? etc. Indian courts believe in rehabilitation. Questions on them came up too. How and why even one should try or allow to rehabilitee a rapist? What about the innocent girl who died such brutal death?

By the data collected and the observations made the result which come out is not very prominent or it’s not a win-win situation. Though we have a majority rate who agrees with the research problem, that the accused rights should be confined with accordance to cases, but it is also seen that this is not enough realistic in comparison to the other group of people who marked the words correctly that who will decide whom to give the right and whom to not.

We can assume that the judge will do so but how much it will help the court for serving justice is still blurry as the prosecution and defence lawyers will try their level best to plea this in court to attack/defend their clients, which might not always be for the truth. The legal aid providing part though seems justified as per the case of Ajmal Kasab, he shouldn’t have been allowed to defence himself. But in cases where the poor people who are accused of charges cannot afford lawyers, it will be unfair for them. Hence the special rare occasions should be marked where the rights of an accused in India is confined and where it isn’t.

The not guilty until proven fact might be applicable for good for the Indian majority citizens but in cases of terrorism where the terrorist is caught while the crime is on spot, how can one present him as not guilty? The Indian legal system is liberal but should not be weak. Hence, the result of this research the majority claims that the rights and privileges which are provided to the accused in India should be confined in some specific cases.

  1. Anubha Shrivastava, ‘Legal Protection available to the accused during a criminal trial’ , available at <> accessed 13th September 2020
  2. Article 14 of the Constitution of India, (Wikipedia, 28th June 2020) available at: <> accessed at 2nd October 2020
  3. B.M Gandhi, Indian Penal Code, revised thesis by K.A Pandey (4th Edition published 2017)
  4. Central Government Act (Indian available at: <,one%20married%20person%20is%20prosecuted%20for%20any%20> accessed at 1st November 2020
  5. Fair Trials, ‘The Right to a Fair Trail’, available at: <>
  6. Gursimran Kaur, ‘Rights Of Accused Persons’, available at: <>
  7. Helpline Law, ‘Rights of an accused person in India’ (Legal Solutions Worldwide), available at: <>
  8. Indian Evidence Act (Legal India) available at: <,evidence%20which%20he%20has%20given%2C%20but%20no%20others.>
  9. Naveen Kumar, ‘Rights of an Accused Person’ (25th March 2019) AMIE Legal available at < >
  10. Protection in respect of conviction for offences, (Constitution of India,1950) available at: <,the%20commission%20of%20the%20offence.>
  11. Protection against arrest and detention in certain cases, (Constitution of India,1950) available at <>
  12. Swati Salini, What are the Rights of an Accused Person in India? (MYADVO, September 12,2019) available at: <>
  13. Section 240 of CrPC Framing of Charge (Writing Law) available at < >
  14. What are Human Rights?’ (Equality and Human Rights Commission) available at: <>
  1. What are Human Rights?’ (Equality and Human Rights Commission) available at: <> accessed 13th September 2020
  2. Article 14 of the Indian Constitution: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth;
  3. Gursimran Kaur, ‘Rights Of Accused Persons’, available at: <> accessed 13th September 2020;
  4. Helpline Law, ‘Rights of an accused person in India’ (Legal Solutions Worldwide), available at:
    <> accessed 13th September 2020;
  5. Fair Trials, ‘The Right to a Fair Trail’, available at: <> accessed 14th September 2020;
  6. The Code of Criminal Procedure commonly called Criminal Procedure Code (CrPC) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974;
  7. Anubha Shrivastava, ‘Legal Protection available to the accused during a criminal trial’ , available at <> accessed 13th September 2020
  8. Naveen Kumar, ‘Rights of an Accused Person’ (25th March 2019) AMIE Legal available at < > accessed 14th September 2020;
  9. Gursimran Kaur, ‘Rights Of Accused Persons’, available at: <> accessed 14th September 2020;
  10. Swati Salini, What are the Rights of an Accused Person in India? (MYADVO, September 12,2019) available at: <> accessed 29th September 2020;
  11. B.M Gandhi, Indian Penal Code, revised thesis by K.A Pandey (4th Edition published 2017);
  12. Article 14 of the Constitution of India, (Wikipedia, 28th June 2020) available at: <> accessed at 2nd October 2020;
  13. Protection in respect of conviction for offences, (Constitution of India,1950) available at: <,the%20commission%20of%20the%20offence.> accessed at 30th October 2020;
  14. (2010) 7 SCC 263: (2010) 3 SCC (Cri) I
  15. B.M Gandhi, Indian Penal Code, revised thesis by K.A Pandey (4th Edition published 2017);
  16. Ibid;
  17. Hussainara Khatoon (5) v. State of Bihar, (1980) I SCC 108:1980 SCC(Cri) 50;
  18. Protection against arrest and detention in certain cases, (Constitution of India,1950) available at <> accessed at 30th October 2020;
  19. Moti Bai v. State, 1954 SCC Online Raj 20:1954 Cri LJ 1519; Digambar Aruk v. Nanda Aruk, 1957 SCC Online Ori 46: AIR 1957 Ori 28I;
  20. (1978) 3 SCC 544:1978 SCC (Cri) 468;
  21. Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528: (2007) 3 SCC (Cri) 209
  22. (1980) 3 SCC 488: 1980 SCC (Cri) 777: 1980 Cri LJ 1099.
  23. B.M Gandhi, Indian Penal Code, revised thesis by K.A Pandey (4th Edition published 2017);
  24. Central Government Act (Indian available at: <,one%20married%20person%20is%20prosecuted%20for%20any%20> accessed at 1st November 2020;
  25. Indian Evidence Act (Legal India) available at: <,evidence%20which%20he%20has%20given%2C%20but%20no%20others.> accessed at 1st November 2020;
  26. Section 240 of CrPC Framing of Charge (Writing Law) available at < > accessed at 1st November 2020, also see Section 242 and Section 247 of Criminal Procedure Code,1872;
  27. Cases under Section 376, 376-A, 376-B, 376-C, 376-D and 376-E of Indian Penal Code are held in camera and the proceedings cannot be published unless a prior permission is granted by the court.
  28. Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424:1978 SCC (Cri) 236:1978 Cri LJ 968;
  29. Ibid
  30. Monica Bedi v. State of A.P., (2011) 1 SCC 284: (2011) 1 SCC (Cri) 22;
  31. Santa Singh v. State of Punjab, (1976) 4 SCC 190:1976 SCC(Cri) 546;
Written By: Samriddha Guha, Xavier Law School, St. Xavier’s University Kolkata

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