India Criminal Defense Manual - Rights of the Accused and Exceptional Circumstances
The accused in India are afforded certain rights, the most basic of which are found in the Indian Constitution. The general theory behind these rights is that the government has enormous resources available to it for the prosecution of individuals, and individuals therefore are entitled to some protection from misuse of those powers by the government. Most of the rights discussed below have been developed through many years of case law and as a result some of the rules have become quite complex.
This section should be viewed as an overview of the most significant rights of the accused.
The principal rights discussed in this section are as follows:
- The prohibition against unreasonable searches and seizures.
- The privilege against compulsory self-incrimination.
- The right to a fair and speedy trial.
- The right to the assistance of counsel.
- The prohibition against cruel and ill treatment.
Rights with Police
There are several provisions of the Constitution of India, The Criminal Procedure Code, 1973, and The Indian Evidence Act, 1872 that govern a suspect's rights prior to trial. The U.S. Constitution provides similar provisions though the 1st, 5th and 6th Amendments.
In a landmark case decided by the United States Supreme Court, Miranda v. Arizona, the court ruled that when a suspect is taken into police custody, prior to any interrogation by the police, the suspect must be provided with a warning advising the suspect of his constitutional rights secured through the 1st, 5th and 6th Amendments. These are often called the "Miranda Rights" or the "Miranda Warning." If the police fail to give these warnings or the suspect doesn't knowingly and voluntarily waive these rights, any statements the suspect makes cannot be used at trial.
The rights are as follows:
- You have the right to remain silent.
- Anything you say can and will be used against you in a court of law.
- You have the right to a lawyer.
- If you cannot afford a lawyer one will be appointed for you. Miranda rights are only required to be read to a suspect, when the suspect is in the custody. A suspect is in custody if his liberty is constrained in such a way that a reasonable person would not free to leave. The rights are also only required to be read to a suspect when a suspect is interrogated by the police. Interrogation need not be direct questions. It occurs when the police make statements that could reasonably be expected to elicit an incriminating response. The Miranda decision also mandated that if a suspect is being questioned by the police, and the suspect requests a lawyer, the police must stop the questioning until the suspects lawyer arrives. If a suspect invokes his right to remain silent all questioning related to the particular crime must stop.
In the Indian legal system, Article 22(1) of the Constitution of India provides that the arrested person should be informed as soon as possible about the grounds of his arrest and he shall not be denied the right to consult with and to be defended by a legal practitioner of his choice. Article 20(3) of the Constitution of India, which is based on the 5th Amendment of the U.S. Constitution made in 1791 provides that "no person accused of any offense shall be compelled to be a witness against himself."
Search and Seizure
Every citizen has the right to be free from unreasonable government intrusion into his or her person, home, business, and property. Lawmakers and the courts have put in place legal safeguards to ensure that law enforcement officers conduct searches and seizures only under certain circumstances, and through specific methods.
Conviction of the accused based on the admissibility of the evidence obtained during a search conducted in contravention of the provision prescribed in the Criminal Procedure Code 1973 may be excluded if the irregularity represented caused a failure of justice to the accused. The legal aid lawyer has to demonstrate that the police or investigating authority ignored the law which caused the failure of justice. If the appellate court finds the search was invalid, the appellate court will not overturn the conviction if the prosecutor successfully argues that the erroneous admission of the evidence was harmless, and would not have changed the outcome of the trial.
An arrest must always be based on probable cause. Probable cause to arrest exists when, at the time of the arrest, the officer is relying on reasonably trustworthy facts and circumstances sufficient to lead a reasonably prudent person to believe that the accused has committed or is committing a crime. An officer need not obtain an arrest warrant for an accused except in non- cognizable offences, however, he must receive an arrest warrant provided that the accused provides his name and address. In non-cognizable cases in order to enter an accused's home to arrest the accused, police must generally have a warrant. Upon entry, the officer may search for the person to be arrested, but no provision is made for a general search of the premises for evidence.
Search of place entered by person sought to be arrested
When the police wish to search a person's property, they are generally required to present their basis for probable cause to a judge, who will issue a search warrant if the judge agrees that probable cause is present and that the evidence is likely not going to be produced with a judicial summons. Probable cause exists if the evidence presented would lead a reasonable person to believe that a crime has been committed and the suspect is connected to the crime. The judge shall record his reasons for issuing the warrant either on the warrant or elsewhere, unless there is documentation which demonstrates independently, why the search warrant should be granted. Upon a lawful arrest, without a warrant where the accused cannot legally be admitted to bail or is unable to furnish bail, the police are entitled to search the person but should do so in the presence of a witness. The police are required to furnish a receipt for all seized items. The limitations on searches apply only when the suspect has a reasonable expectation of privacy. For example, a police search of a public place would not implicate a suspect's right to be free of an unreasonable search because the suspect does not have any expectation that that place is private.
No confession made to a police officer is valid as evidence. All confessions must be made to a Magistrate not below the rank of Judicial Magistrate. The Magistrate taking the confession must give the accused due time out of the custody of the police, and make an effort to ensure that the accused was not coerced or intimidated in anyway, before receiving the confession. At the bottom of the confession the Magistrate must write out that he has informed the accused that this confession may be used against him and he is not obligated, in any way, to incriminate himself.
Right to Counsel
Article 22 of the Constitution of India guarantees an accused the right to a lawyer. Decisions of the court made without the accused having been provided a lawyer are not valid. Hon'ble Supreme Court in Hussainara Khatton (IV) has held that "the right to free legal service is clearly an essential ingredient to a reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the status under constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required."
The right to counsel applies at all custodial interrogations (i.e. the accused has been brought into police custody for questioning) and at all critical stages of a prosecution after formal proceedings have begun. These stages include post-indictment interrogations, arraignment, guilty plea, and trial.
Rights at Trial
The accused is guaranteed a number of rights during a criminal trial.
Right to a Fair Trial
The Constitution under Article 14 guarantees the right to equality before the law.. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial.. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera.
Every accused is entitled to be informed by the court before taking the evidence that he is entitled to have his case tried by another court and if the accused subsequently moves such application for transfer of his case to another court the same must be transferred. However, the accused has no right to select or determine by which other court the case is to be tried.
Right to Confront Witnesses
The accused has a right to confront only witnesses..This right ensures that the accused has the opportunity for cross-examination of the adverse witness.
If a witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission. The testimony at a formal trial is one example of prior testimonial statements which can be used as documentary evidence in a subsequent trial.
Right to a Speedy Trial
The Constitution provides an accused the right to a speedy trial. Although this right is not explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of India in the judgment of Hussainara Khatoon.. This judgment mandates that an investigation in trial should be held "as expeditiously as possible".
In all summons trials (cases where the maximum punishment is two years imprisonment) once the accused has been arrested, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
The accused is not to be detained in police custody for more than 24 hours without being produced before a Magistrate.. An officer not below the rank of sub-inspector is to transfer the accused to a Judicial Magistrate who may allow the accused to be held for up to fifteen days in police custody. If a Judicial Magistrate is not available, an Executive Magistrate so empowered by the High Court may allow for a detention of up to seven days, which a Judicial Magistrate may extend up to not more than fifteen days in total. At the expiration of these fifteen days, if a Magistrate believes adequate grounds exist, he may allow for the suspect to remain in the judicial custody for a period up to ninety days total (including the original fifteen) for a case involving potential punishment of more than ten years imprisonment or up to sixty days for all other cases. The accused has the right to get bail in case the prosecution fails to submit the charge sheet within a period of ninety days of such custody.
In cases involving punishment of more than ten years; the charge sheet has to be submitted within a period of sixty days by the prosecuting agency.
The following factors should be considered in determining whether an accused's right to a fair trial has been compromised: period of the delay, reason for the delay, whether the accused asserted his right, and prejudice to the accused. Loss of evidence, such as the death of a key witness, or the inability of witnesses to testify accurately after a long delay, can be powerful tools for the defense.
Rights while detained
In India, persons accused of committing a crime have a series of rights, some of which are guaranteed by the Indian Constitution and others the result of case law or statutes. When the accused is arrested in warrant cases the Magistrate may notify the accused of his right to bail and prescribe the amount of bail bond on the warrant, at which point the arresting officer will release the accused on execution of bail bond. Likewise, in the cases of bailable offences any officer arresting a suspect without a warrant is obligated to tell them of their right to bail upon arrest. The accused should be advised that he has a right to a legal aid lawyer and that one will be appointed if he cannot afford to pay for the legal services. The arresting officer must, without delay, bring the detained person to the officer-in-charge for all arrests without warrant and the officer-in-charge must report all arrests to the concerned Magistrate.
The accused has the right to have a person of his choosing be informed of his arrest and for that person to be told where the accused is being detained. The opportunity to advise this person of the arrest should be afforded to the accused upon arriving at the police station and shall be communicated by the arresting officer to the person nominated by the accused.
The Hon'ble Supreme Court in "D.K. Basu v. State of West Bengal laid down the following guideline:
1 The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2 That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3 A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4 The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5 The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6 An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7 The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/ her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and a copy provided to the arrestee.
8 The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a trained doctor on the panel of approved doctors appointed by the Director of Health Services of the concerned State or Union Territory. The Director of Health Services should prepare such a panel for all Tehsils and Districts, as well.
9 Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
10 The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11 A police control room should be provided at all District and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. The accused has the right to be treated decently while he is in custody. He must be provided with food and drink, clothing as necessary as well as sleeping and washing facilities. The accused cannot be "punished" or treated as guilty while he awaits trial. While detained, the accused retains the right to court access and to a legal aid lawyer. That access may be subject to security restrictions typically used in a detention facility.
Right to Appeal against Conviction
Section 374 of the Criminal Procedure Code, 1973 states that any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him, may appeal to the High Court. Any person convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, may appeal to the Court of Session.
Any miscarriage of justice that demonstrates prejudice to the accused is a potential ground of reversal of the trial on appeal. However, any mistake which does not jeopardize the fundamental fairness of the trial is not grounds for reversal on appeal. By way of example, if a case which should have been tried as a warrant case is tried as a summons case (where the standards for recording of evidence are lower) there would be grounds for reversal, but the same would not be true in reverse. It the best practice to bring up irregularities as soon as possible during the case, rather than to present them on appeal. However, an appeal cannot be thrown out only because irregularities were not brought up during the original trial. Finally, a strong case for reversal on appeal would be if police discounted evidence which could have helped exonerate the accused. A full list of irregularities which do or do not overturn a trial on appeal are listed in the Cr.P.C.
If it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing an 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. Criminal charges may also be filed on the police for wrongful confinement.
- ↑ 100 &102
- ↑ Art 20(3) of The Constitution of India
- ↑ Art 22(1) of The Constitution of India
- ↑ Section 47 of the Criminal Procedure Code
- ↑ Section 51 of the Criminal Procedure Code
- ↑ Section 164 of the Criminal Procedure Code
- ↑ Khatri (II) v. State of Bihar (1981)1 SCC 627
- ↑ Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) 1 SCC 98
- ↑ State of M.P. v. Shobharam , AIR 1966 SC 1910 : (1966) Cri LJ 1521
- ↑ Article 14 of the Constitution of India
- ↑ Criminal procedure code Sec 327
- ↑ U/s 376 - 376D of Indian Penal Code
- ↑ Section 191 of the Criminal Procedure Code 1973
- ↑ Section 138 of the Indian Evidence Act
- ↑ Section 33 of the Indian Evidence Act, 1872
- ↑ Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) 1 SCC 98
- ↑ Section 309 of the Criminal Procedure Code
- ↑ Section 167 of the Criminal Procedure code
- ↑ Article 22(2) of the Constitution of India
- ↑ Section 167 of the Criminal Procedure Code 1973
- ↑ Section 50 of the Criminal Procedure Code
- ↑ Section 58 of the Criminal Procedure Code
- ↑ Section 50A of the Criminal Procedure Code
- ↑ D.K Basu vs. State of West Bengal (1997) 1SCC, 416
- ↑ State of Punjab v. Baldev Singh , (1999) 6 SCC 172 , at page 206
- ↑ Pursottam Jathanand v. State of Kutch, AIR 1954 SC 700
- ↑ Section 460-466 Chapter XXXV of the Criminal Procedure Code
- ↑ Section 358 of the Criminal Procedure Code, 1973