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

From Criminal Defense Wiki
Jump to navigationJump to search
Line 1: Line 1:
== BACKGROUND ==
+
== 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 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.  
 
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.  
Line 49: Line 49:
 
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.<ref>Section 164 of the Criminal Procedure Code</ref>
 
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.<ref>Section 164 of the Criminal Procedure Code</ref>
 
   
 
   
== RIGHT TO COUNSEL ==
+
== Right to Councel ==
 
   
 
   
  
Line 55: Line 55:
 
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.<ref>State of M.P. v. Shobharam , AIR 1966 SC 1910 : (1966) Cri LJ 1521</ref>
 
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.<ref>State of M.P. v. Shobharam , AIR 1966 SC 1910 : (1966) Cri LJ 1521</ref>
  
== RIGHTS AT TRIAL ==
+
== Rights at Trial ==
 
   
 
   
 
The accused is guaranteed a number of rights during a criminal trial.  
 
The accused is guaranteed a number of rights during a criminal trial.  
Line 65: Line 65:
 
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.<ref>Section 191 of the Criminal Procedure Code 1973</ref>
 
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.<ref>Section 191 of the Criminal Procedure Code 1973</ref>
  
===RIGHT TO CONFRONT WITNESSES===
+
===Right to Confront Witnesses===
  
 
The accused has a right to confront only witnesses.<ref>Section 138 of the  Indian Evidence Act</ref>.This right ensures that the accused has the opportunity for cross-examination of the adverse witness.  
 
The accused has a right to confront only witnesses.<ref>Section 138 of the  Indian Evidence Act</ref>.This right ensures that the accused has the opportunity for cross-examination of the adverse witness.  
Line 83: Line 83:
 
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.  
 
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 ==
+
== 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<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  
 
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  
Line 114: Line 114:
 
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.  
 
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.  
  
== RIGHTS TO APPEAL AGAINST CONVICTIONS ==
+
== Rights 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  
 
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  

Revision as of 14:04, 11 June 2010