Difference between revisions of "India Criminal Defense Manual - Rights of the Accused and Exceptional Circumstances"

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(Created page with '== BACKGROUND == 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�')
 
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The accused is not to be detained in police custody for more than 24 hours without being produced before a Magistrate.<ref>Article 22(2) of the Constitution of India</ref>. 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.  
 
The accused is not to be detained in police custody for more than 24 hours without being produced before a Magistrate.<ref>Article 22(2) of the Constitution of India</ref>. 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.  
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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.<ref>Section 167 of the Criminal Procedure Code 1973</ref>
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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.
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== RIGHTS WHILE DETAINED ==
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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<ref>Section 50 of the Criminal Procedure Code</ref> 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
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concerned Magistrate.<ref>
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The accused has the right to have a person of his choosing be informed of
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his arrest and for that person to be told where the accused is being detained.
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The opportunity to advise this person of the arrest should be afforded to
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the accused upon arriving at the police station and shall be communicated
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by the arresting officer to the person nominated by the accused.26
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26
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Section 50A of the Criminal Procedure Code
  
  

Revision as of 10:58, 9 June 2010