Rights of the Accused

Article for Blog Post Writing Competition 2011 | by Vivek Jain

April 26th, 20116:05 pm

One of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence. In the battle against crime and delinquency, state and its officers cannot on any account forsake the decency of state behaviour and have recourse to extra-legal methods for the sake of detention of crimes and even criminals. State should not insist on good behaviour from others when their own behaviour is blameworthy, unjust and illegal. Thus, in a democratic society even the rights of the accused are sacrosanct, though accused of an offence, he does not become a non-person. In the leading case of Kishore Singh Ravinder Dev  v. State of Rajasthan, it was said that the laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for safeguarding the rights of accused with the view to protect his (accused) dignity as a human being and giving him benefits of a just, fair and impartial trail. However in another leading case of  Meneka Gandhi (Smt.) v. Union of India it was interpreted that the procedure adopted by the state must, therefore, be just, fair and reasonable.

An accused of certain rights during the course of any investigation, enquiry or trial of an offence with which he is charged should be protected against arbitrary or illegal arrest. Police have a wide powers conferred on them to arrest any person under Cognizable offence without going to magistrate, so Court should be vigilant to see that theses powers are not abused for lightly used for personal benefits. No arrest can be made on mere suspicion or information. Even private person cannot follow and arrest a person on the statement of another person, however impeachable it is.

Section 273 of CrPc says that Evidence to be taken in presence of accused. But this section as well in the case of Vishshwar v. State, it was said that otherwise provided all evidence whether for the prosecution or the accused must b taken in the presence of the accused. This rule is imperative subject to the exceptions contained in sections 205, 291, 292,293,299,317 and 391 of CrPc. The provisions of the section are also applicable when evidence is taken in other proceedings under the code and all such evidence is hence required to be taken in the presence of the person in relation to whom proceedings have been commenced.

If the judge does not acquit the accused on the ground that there is no evidence than he shall call upon thee accused to enter on his defence and adduce evidence and file with the record any written statement, if put in by accused. If accused desires to call any witness and apply for issue of process for compelling attendance of witness or production of any document or thing than an adjournment should necessarily be given to him.

The accused even has right to produce witness in his defence in case of police report or private defence. After the Examination and cross examination of all prosecution witness i.e. after the completion of the prosecution case the accused shall be called upon to enter upon his defence and any written statement put in shall be filled with the record. He may even call further for cross examination. The judge shall go on recording the evidence of prosecution witness till the prosecution closes its evidence. The accused in order to test the veracity of the testimony of a prosecution witness has the right to cross-examine him. Section 138 of Indian evidence act, 1872 gives accused has a right to confront only witnesses. This right ensures that the accused has the opportunity for cross-examination of the adverse witness. Section 33 of Indian evidence Act tells when 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.

When in the course of investigation an accused or any other person desiring to make any statement is brought to a magistrate so that any confession or statement that he may be deposed to make of his free will is record. Confession statements by accused to the police are absolutely excluded under section 25, evidence Act. Where in cases of suspicious death or in case of death under police custody, suspicion death should not depend merely upon the opinion of police but there should be further check. It is questionable how far an inquest report is admissible except under section 145, Evidence Act (Pandurang v. state of Hyderabad).

Mere declaration of rights is worthless without the will or the means to enforce them. The framers of our constitution had the will and therefore adopted the means for such enforcement. It declares any law violating fundamental rights to be pro tanto void. Secondly, the Supreme Court was armed with the power to issue the historic writs of habeas corpus, mandamus, prohibition, certiorari and quo warrantor for the enforcement of fundamental rights and these provisions were itself made the fundamental rights. Further, High court has also power to issue the same writs not only for the enforcement of the fundamental rights but also for other purposes. Study of Article 19 to 22 as contained in part III of the Constitution of India, would reveal that even the Constitution has guarantees certain rights to the accused. Article 19 of the constitution has guarded certain freedoms to the citizens only and also the restriction that can be imposed on them by the state. Article 20 deals with the protection in respect of conviction for offences under certain circumstances. Article 21 specifically deals with the protection of life and liberty. Article 22 provides for certain safeguards to the persons arrested or detained. The fundamental right to life, which Article 21 deals with , is the most precious Human right and forms ‘ arc of all other rights’.

As a result of the study, author has come to the conclusion that there is imminent need to bring in changes in Criminal Justice Administration so that state should recognize that its primary duty is not to punish, but to socialize and reform the wrongdoer and above all it should be clearly understood that socialization is not identical with punishment, for its comprises prevention, education, care and rehabilitation within the framework of social defence. Thus, in the end we find that Rule of law regulates the functionary of every organ of the state machinery, including the agency responsible for conducting prosecution and investigation which must confine themselves within the four corners of the law. Hence, if a doctor treats his patient as a human being and not as his client or customer, he can discharge his duty more effectively. Same applies to a lawyer, to a judicial officer and to any other profession also.

Article by-

Vivek Jain

National Law University, Orissa

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]


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