JAMIA MILLIA ISLAMIA

FACULTY OF LAW

ASSIGNMENT

ON

RIGHTS OF AN ACCUSED PERSON- COMPARATIVE ANALYSIS

SUBMITTED TO: Dr. Mohd. ASAD MALIK

SUBMITTED BY: SHRIYA MISRA

LLM 1st SEMESTER

 TABLE OF CONTENTS

1. Introduction……………………………………………………………………………

2. Rights of Accused Persons in India…………………………………………………..

2.1 Protection against Ex-Post Facto Laws……………………………………………...

2.2 Right against Double Jeopardy………………………………………………………

2.3 Right against Self Incrimination…………………………………………………….

2.4 Person arrested to be informed of grounds of arrest………………………………..

2.5 Right to be defended by a Lawyer…………………………………………………..

2.6 Person arrested to be produced before the Magistrate……………………………...

2.7 Person arrested not to be detained for more than twenty-four hours……………...

2.8 Information of arrest to a Nominated Person……………………………………….

2.9 Right to Bail………………………………………………………………………….

2.10 Right to Free Legal Aid…………………………………………………………….

2.11 Evidence to be taken in presence of the accused………………………………….

2.12 Right to get copies of Police Report and other documents……………………….

2.13 Right to Cross-Examine Prosecution Witnesses and to produce defence evidence..

2.14 Right to Speedy Trial………………………………………………………………

2.15 Compensation for Wrongful Arrest……………………………………………….

2.16 Right of Appeal…………………………………………………………………….

3. Right of Accused Persons in USA……………………………………………………

3.1 Notice of Accusation………………………………………………………………..

2
3.2 Custodial Interrogation……………………………………………………………..

3.3 Compulsory Process…………………………………………………………………

3.4 Right to Legal Aid………………………………………………………………….

3.5 Right to Speedy Trial……………………………………………………………….

3.6 Protection against Double Jeopardy…………………………………………………

3.7 Right against Self-Incrimination……………………………………………………

3.8 Right to Bail…………………………………………………………………………

3.9 Right to Compensation……………………………………………………………….

4. Right of Accused Persons in UK………………………………………………………

4.1 Arrest only on Reasonable Suspicion……………………………………………….

4.2 No use of more than necessary force………………………………………………..

4.3 Right to Remain Silent………………………………………………………………

4.4 Right to Legal Aid……………………………………………………………………

4.5 Right to Fair Trial…………………………………………………………………….

4.6 Right to Speedy Trial…………………………………………………………………

4.7 Right against Double Jeopardy………………………………………………………

4.8 Right against Self-Incrimination…………………………………………………....

4.9 Right to Bail………………………………………………………………………….

4.10 Right to just Compensation………………………………………………………..

5. Conclusion……………………………………………………………………………..

6. Bibliography……………………………………………………………………………

3
1. INTRODUCTION

The segments of Criminal Justice System i.e., the police, the prosecution, the defense, the
judiciary and the correctional institutions ought to function in harmonious and cohesive manner.
But in practice, we often find that it is not the case. The police, instead of protecting and
promoting human rights, are often found to violate them. The National Human Rights
Commission has been receiving reports of custodial deaths, non-registration of cases, arbitrary
arrests, custodial violence etc. A person in custody of the police, an under-trial or a convicted
individual does not lose his human and fundamental rights by virtue of incarceration. The two
cardinal principles of criminal jurisprudence are that the prosecution must prove its charge
against the accused beyond any reasonable doubt and the onus to prove the guilt of the accused is
stationary on the prosecution and it never shifts. The intention of the legislature in laying down
these principles has been that hundreds of guilty persons may get scot free but even one innocent
should not be punished. Indian Constitution itself provides some basic rights/safeguards to the
accused persons which are to be followed by the authorities during the process of criminal
administration of justice. The Criminal Procedure Code deals with the procedural aspects of
arrest of an accused person and provides various rights to accused/arrested persons. There are
some provisions which expressly and directly create important rights in favour of the
accused/arrested person. This research provides a comparative analysis of the rights of the
accused persons in India, United Sates of America and United Kingdom.

4
2. RIGHTS OF ACCUSED PERSONS IN INDIA

As Indian Constitution is wedded to Democracy and Rule of Law, the concept of free and fair
trial is a constitutional commitment for which the cardinal principle of Criminal Law revolves
around the Natural Justice wherein, even the accused or guilty person is treated with a human
treatment. Every person is entitled to the basic human rights, fundamental rights under the Indian
Constitution and certain legal rights under various laws. These rights are provided to a person,
irrespective of the fact that person is accused of a crime. These rights are given to an accused in
India on the lines that ‘let hundreds go unpunished, but never punish an innocent person.’

The rights of accused in India are provided at different stages which include right of an accused
before his trial begins, rights of accused during a court trial, and right of an accused after his trial
is completed. Following are some important provisions creating rights in favour of the accused
persons:-

2.1 PROTECTION AGAINST EX-POST FACTO LAWS

Clause (1) of Article 20 of the Indian Constitution says that “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 the commission of the offence.”1

An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts already done
and increases the penalty for such acts. If an act is not an offence at the date of its commission it
cannot be an offence at the date subsequent to its commission. The protection afforded by clause
(1) of Article 20 of the Indian Constitution is available only against conviction or sentence for a
criminal offence under ex post facto law and not against the trial. The protection of clause (1) of
Article 20 cannot be claimed in case of preventive detention, or demanding security from a
person. So, a trial under a procedure different from what it was at the time of the commission of
the offence or by a special court constituted after the commission of the offence cannot ipso facto
be held unconstitutional. The second part of clause (1) protects a person from ‘a penalty greater
than that which he might have been subjected to at the time of the commission of the offence.’

1
Constitution of India, Eastern Book Company, 36th Edition, 2014.

5
In Kedar Nath v. State of West Bengal2, the accused committed an offence in 1947, which
under the Act then in force was punishable by imprisonment or fine or both. The Act was
amended in 1949 which enhanced the punishment for the same offence by an additional fine
equivalent to the amount of money procured by the accused through the offence. The Supreme
Court held that the enhanced punishment could not be applicable to the act committed by the
accused in 1947 and hence, set aside the additional fine imposed by the amended Act.

In the criminal trial, the accused can take advantage of the beneficial provisions of the ex-post
facto law. The rule of beneficial construction requires that ex post facto law should be applied to
mitigate the rigorous (reducing the sentence) of the previous law on the same subject. Such a law
is not affected by Article 20(1) of the Constitution.

2.2 RIGHT AGAINST DOUBLE JEOPARDY- DOCTRINE OF “AUTREFOIS ACQUIT”

AND “AUTREFOIS CONVICT”

According to this doctrine, if a person is tried and acquitted or convicted of an offence, he cannot
be tried again for the same offence or on the same facts for any other offence. This doctrine has
been substantially incorporated in the Article 20(2) of the Constitution and is also embodied in
Section 300 of the Criminal Procedure Code, 1973. When once a person has been convicted or
acquitted of any offence by a competent court, any subsequent trial for the same offence would
certainly put him in jeopardy and in any case would cause him unjust harassment. Such a trial
can be considered anything but fair, and therefore has been prohibited by the Code of Criminal
Procedural as well as by the Constitution. The doctrine of “autrefois acquit” and “autrefois
convict” has been embodied in Section 300 of Criminal Procedure Code as follows:

Person once convicted or acquitted not to be tried for same offence –

(1) a person who has once been tried by a Court of competent jurisdiction for an offence and
convicted or acquitted for such offence shall, while such conviction or acquittal remains in force,
not be liable to be tried again for the same offence, nor on the same facts for any other offence
for which a different charge from the one made against him might have been made under sub-

2
AIR 1953 SC 404

6
section (1) of section 221, or for which he might have been convicted under sub-section (2)
thereof.

The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes
of this section. These rules or pleas are based on the principle that “a man may not be put twice
in jeopardy for the same offence”.

Article 20(2) of the Constitution recognizes the principle as a fundamental right. It says, “no
person shall be prosecuted and punished for the same offence more than once”. While, Article
20(2) does not in terms maintain a previous acquittal, Section 300 of the Code fully incorporates
the principle and explains in detail the implications of the expression “same offence”.3

In order to get benefit of the basic rule contained in Sec 300(1) of Criminal Procedure Code it is
necessary for an accused person to establish that he had been tried by a “court of competent
jurisdiction” for an offence. An order of acquittal passed by a court which believes that it has no
jurisdiction to take cognizance of the offence or to try the case, is a nullity and the subsequent
trial for the same offence is not barred by the principle of autrefois acquit. To operate as a bar the
second prosecution and consequential punishment there under, must be for the “same offence”.
The crucial requirement for attracting the basic rule is that the offences are the same, i.e. they
should be identical. It is therefore necessary to analyze and compare not the allegations in the
two complaints but the ingredients of the two offences. Section 300 of Criminal Procedure Code
bars the trial for the same offence and not for different offences which may result from the
commission or omission of the same set of the act.

2.3 RIGHT AGAINST SELF-INCRIMINATION

Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be
a witness against himself. Thus Article 20(3) embodies the general principles of English and
American jurisprudence that no one shall be compelled to give testimony which may expose him
to prosecution for crime. The cardinal principle of criminal law which is really the bed rock of
English jurisprudence is that an accused must be presumed to be innocent till the contrary is

3
Natrajan v. State, 1991 Cri LJ 2329 (Mad)

7
proved.4 It is the duty of the prosecution to prove the offence. The accused need not make any
admission or statement against his free will. The guarantee extends to any person accused of an
offence and prohibits all kinds of compulsions to make him a witness against himself. Explaining
the scope of this clause in M.P. Sharma v. Satish Chandra5, the Supreme Court observed that
this right embodies the following essentials:
(a) It is a right pertaining to a person who is “accused of an offence.”
(b) It is a protection against “compulsion to be a witness”.
(c) It is a protection against such compulsion relating to his giving evidence “against himself.”

In Nandini Satpathy v. P.L. Dani6, the Supreme Court has considerably widened the scope of
clause (3) of Article 20. The Court has held that the prohibitive scope of Article 20(3) goes back
to the stage of police interrogation not commencing in court only. It extends to, and protects the
accused in regard to other offences-pending or imminent, which may deter him from voluntary
disclosure. The phrase “compelled testimony” must be read as evidence procured not merely by
physical threats or violence but by psychic (mental) torture, atmospheric pressure, environmental
coercion, tiring interrogatives, proximity, overbearing and intimidatory methods and the like.

Right to silence is also available to accused of a criminal offence. Right to silence is a principle
of common law and it means that normally courts should not be encouraged to conclude, by
parties or prosecutors that a suspect or an accused is guilty merely because he has refused to
respond to question put to him by the police or by the Courts. The prohibition of medical or
scientific experimentation without free consent is one of the human rights of the accused7. In
case of Smt. Selvi & Ors. vs. State of Karnataka8, wherein the question was- Whether
involuntary administration of scientific techniques namely Narcoanalysis, Polygraph (lie
Detector) test and Brain Electrical Activation Profile (BEAP) test violates the ‘ right against self

4
Article 11(1) of Universal Declaration of Human Rights, 1948 lays down: “Everyone charged with a penal offence
has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence”.
5
AIR 1954 SC 300
6
AIR 1978 SC 1025
7 Article 7 of the International Covenant on Civil and Political Rights, 1966
8 (2010) 7 SCC 263

8
incrimination’ enumerated in Article 20(3) of the Constitution. In answer, it was held that it is
also a reasonable restriction on ‘personal liberty’ as understood in the context of Article 21 of the
Constitution. Following observations were made in this landmark case:9
(i) No individual should be forcibly subjected to any of the techniques in question, whether in the
context of investigation in criminal cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty.
(ii) Section 53, 53-A and 54 of Criminal Procedure Code permits the examination including
examination of blood, blood-stains, semen swabs in case of sexual offences, sputum and sweat,
hair samples and finger nail dipping by the use of modern and scientific techniques including
DNA profiling. But the scientific tests such as Polygraph test, Narcoanalysis and BEAP do not
come within the purview of said provisions.
(iii) It would be unjustified intrusion into mental privacy of individual and also amount to cruel,
inhuman or degrading treatment.
(iv) Voluntary administration of impugned techniques are however permissible subject following
safeguards, but test results by themselves cannot be admitted in evidence.
(a) No Lie Detector Tests should be administered except on the basis of consent of the accused.
An option should be given to the accused whether he wishes to avail such test.
(b) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and
the physical, emotional and legal implication of such a test should be explained to him by the
police and his lawyer.
(c) The consent should be recorded before a Judicial Magistrate.
(d) During the hearing before the Magistrate, the person alleged to have agreed should be duly
represented by a lawyer.
(e) At the hearing, the person in question should also be told in clear terms that the statement that
is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a
statement made to the police.
(f) The Magistrate shall consider all factors relating to the detention including the length of
detention and the nature of the interrogation.

9 http://shodhganga.inflibnet.ac.in/bitstream/10603/39088/9/09_%20chapter%203.pdf

9
(g) The actual recording of the Lie Detector Test shall be done by an independent agency (such
as a hospital) and conducted in the presence of a lawyer.
(h) A full medical and factual narration of the manner of the information received must be taken
on record.

The underlying rationale of right against self incrimination is as follows:

(i) The purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony
considered during trial is reliable. The premise is that involuntary statements are more likely to
mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice.
(ii) The right against self-incrimination’ is a vital safeguard against torture and other ‘third-
degree methods’ that could be used to elicit information.
(iii) The exclusion of compelled testimony is important, otherwise the investigators will be more
inclined to extract information through such compulsion as a matter of course. The frequent
reliance on such ‘short cuts’ will compromise the diligence required for conducting meaningful
investigations.
(iv) During trial stage the onus is on the prosecution to prove the charges leveled against the
defendant and the ‘right against self-incrimination’ is a vital protection to ensure that the
prosecution discharges the said onus.10

2.4 PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST

Article 22 (1) of the Constitution provides that a person arrested for an offence under ordinary
law be informed as soon as may be the grounds of arrest. In addition to the constitutional
provision, Section 50 of Criminal Procedure Code also provides for the same.

(i) According to Section 50(1) of Criminal Procedure Code, every police officer or other person
arresting any person without warrant shall forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for such arrest.
(ii) When a subordinate officer is deputed by a senior police officer to arrest a person under
Section 55 of Criminal Procedure Code, he shall deliver to the officer required to make the arrest
an order in writing, specifying the person to be arrested and the offence or other cause for which

10 Ibid.

10
the arrest is made and the officer so required shall, before making the arrest, notify to the person
to be arrested the substance of the order and, if so required by such person, shall show him the
order. Non compliance with this provision will render the arrest illegal.11
(iii) In case of arrest to be made under a warrant, Section 75 provides that the police officer or
other person executing a warrant of arrest shall notify the substance thereof to the person to be
arrested, and if so required, shall show him the warrant. If the substance of the warrant is not
notified, the arrest would be unlawful.

The right to be informed of the grounds of arrest is a precious right of the arrested person. The
grounds of arrest should be communicated to the arrested person in the language understood by
him; otherwise it would not amount to sufficient compliance with constitutional requirements.

2.5 RIGHT TO BE DEFENDED BY A LAWYER

It is one of the fundamental rights enshrined in our Constitution. Article 22 (1) of the
Constitution provides that no person who is arrested shall be denied the right to consult and to
be defended by a legal practitioner of his choice. The right of the accused to have a counsel of
his choice is fundamental and essential to fair trial. The right is recognized because of the
obvious fact that ordinarily an accused person does not have the knowledge of law and the
professional skill to defend himself before a court of law wherein the prosecution is conducted
by a competent and experienced prosecutor. This has been expressed by the Supreme Court of
America in Powell v. Alabama12. The Court observed that “The right to be heard would be, in
many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally, of determining for himself whether the indictment
is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he
may be put on trial without a proper charge, and convicted upon incompetent evidence, or
evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and the
knowledge adequately to prepare his defence, even though he has a perfect one. He requires the

11
Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 (Gau)
12
287 US 45 (1932)

11
guiding hand of counsel at every step of the proceeding against him. Without it, though he be not
guilty, he faces the danger of conviction because he does not know how to establish his
innocence. If that be true of men of intelligence, how much more true is it of the ignorant and
illiterate, or those of feeble intellect.”13

The Criminal Procedure Code has specifically recognized the right of a person against whom
proceedings are instituted to be defended by a counsel. According to Section 303 of Criminal
Procedure Code, any person accused of an offence before a criminal court, or against whom
proceedings are instituted, may of right be defended by a pleader of his choice.

In Huassainara Khatoon (IV) v. Home Secretary, State of Bihar14, the Supreme Court has
explicitly observed as follows:
“The right to free legal services is, therefore, clearly an essential ingredient of
‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21. This is a constitutional right of every accused person who
is unable to engage a lawyer and secure legal services on account of reasons such as poverty,
indigence or incommunicado situation and the State is under a mandate to provide a lawyer to
an accused person if the circumstances of the case and the needs of justice so required, provided
of course the accused person does not object to the provision of such lawyer.

It is now therefore clear that unless refused, failure to provide legal aid to an indigent accused
would vitiate the trial, entailing setting aside of conviction and sentence.15 The right begins from
the moment of arrest i.e. pre-trial stage. The arrestee can also have consultation with his friends
or relatives.

2.6 PERSON ARRESTED TO BE PRODUCED BEFORE THE MAGISTRATE

Article 22 (2) of the Constitution provides that an arrested person must be taken to the Magistrate
within 24 hours of arrest. Similar provision has been incorporated under Section 56 of Criminal

13
Ibid.
14
(1980) 1 SCC 98
15
Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401

12
Procedure Code. A police officer making an arrest without warrant shall, without unnecessary
delay and subject to the provisions herein contained as to bail, take or send the person arrested
before a Magistrate having jurisdiction in the case, or before the officer in charge of a police
station.

2.7 PERSON ARRESTED NOT TO BE DETAINED FOR MORE THAN TWENTY-

FOUR HOURS

Section 57 of Criminal Procedure Code provides that:

“No police officer shall detain in custody a person arrested without warrant for a longer
period than under all the circumstances of the case is reasonable, and such period shall not, in
the absence of a special order of a Magistrate under section 167, exceed twenty four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s
Court.”

The right has been further strengthened by its incorporation in the Constitution as a fundamental
right. Article 22(2) of the Constitution provides:
“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 a
Magistrate.”

In case of arrest with a warrant, the proviso to Section 76 of the Criminal Procedure Code
provides a similar rule in substance. This provision contained in section 57 of Criminal
Procedure Code enables the Magistrates to keep a check over the police investigation16. If a
police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention17.

16
Khatri (II) v. state of Bihar, (1981) 1 SCC 627
17
Sharifbai vs. Abdul Razak, AIR 1961 Bom 42

13
2.8 INFORMATION OF ARREST TO A NOMINATED PERSON

The rules emerging from decisions such as Joginder Singh v. State of U.P.18 and D.K. Basu v.
State of West Bengal19 have been enacted in Section 50-A20.

Section 50-A of Criminal Procedure Code provides:

(1) Every police officer or other person making any arrest under this code shall forthwith
give the information regarding such arrest and place where the arrested person is being held to
any of his friends, relatives or such other persons as may be disclosed or nominated by the
arrested person for the purpose of giving such information.

(2) The Police Officer shall inform the arrested person for the purpose of giving such
information of his right under Sub Section (1) as soon as he is brought to police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be
in a book to be kept in the police station in such form as may be prescribed in this behalf by the
State Government.

(4) It shall be the duty of Magistrate before whom such arrested person is proceed, to
satisfy himself that the requirement of sub-section (2) and Sub-Section (3) have been complied
with in respect of such arrested person.

These rights are inherent in Article 21 and 22 of the Constitution and are required to be
recognized and scrupulously protected.

2.9 RIGHT TO BAIL

The release on bail is crucial to the accused as the consequences of pre-trial detention are grave.
If release on bail is denied, it would mean that though he is presumed to be innocent until proven
guilty.

18
(1994) 4 SCC 260
19
(1997) 1 SCC 416
20
Section 50-A inserted in 2005 effective from 23-6-2006.

14
Justice Krishna Iyer aptly remarked that “the issue of bail is one of liberty, justice, public safety
and burden of public treasury all of which insist that a developed jurisprudence of bail is
integral to a socially sensitized judicial process”.

Maintaining that bail is the rule and jail an exception21, the Supreme Court has time and again
said that deprivation of liberty must be considered a punishment.

There is no definition of bail in the Criminal Procedure Code, although the terms ‘bailable
offence’ and ‘non-bailable offence’ have been defined in section 2(a) Cr.P.C. Bail has been
defined in the law lexicon as security for the appearance of the accused person on giving which
he is released pending trial or investigation.

In Hussainara Khatoon v State of Bihar22, Justice Bhagwati found that the unfortunate under
trials languished in prisons not because they were guilty but because they were too poor to afford
bail. He thus ordered the release of persons whose period of imprisonment had exceeded the
period of imprisonment for their offences. He brought into focus the failure of the Magistrates to
respect section 167(2) of the Criminal procedure Code which entitles an under trial to be released
from prison on the expiry of 60 days or 90 days as the case may be.

In Sant Bir v. State of Bihar23, the Court recognised the inequitable operation of the law and
condemned it - "The rule of law does not exist merely for those who have the means to fight for
their rights and very often for perpetuation of status quo but it exists also for the poor and the
downtrodden and it is the solemn duty of the Court to protect and uphold the basic human rights
of the weaker sections of society.” In Mantoo Majumdar v. State of Bihar24 the Apex Court
once again upheld the under trials’ right to personal liberty and ordered the release of the
petitioners on their own bond and without sureties as they had spent six years awaiting their trial,
in prison.

21
GUDIKANTI NARASIMHULU v. Public Prosecutor, (1978) 1 SCC 240
22
Supra note 13.
23
AIR 1982 SC 1470
24
1980 AIR 847

15
Besides the constitutional provisions, the provisions of Cr.P.C. also need to be discussed for a
better understanding of the bail provisions which are as under:

 Bail in Bailable Cases: Section 436(1) affirms the right of a person accused of a bailable-
offence to be released on bail. The section makes it clear that when any person accused of a
bailable offence is arrested or detained without warrant, and is prepared at any time while in
the custody of such officer or at any stage of the proceeding before such Court to give bail;
such person shall be released on bail.

The words ‘shall be released on bail’ denotes that it is mandatory upon the Magistrate to give
bail. He would have no discretion to impose any conditions, the only discretion that is left in him
is as to the amount of the bond or whether the bail could be on his bond or with sureties.

Besides that the proviso to section 436(1) makes provison for the bail of an indigent person
stating that if such person is indigent and in unable to furnish surety, instead of taking bail from
such person he may, and shall be discharged on his executing a bond without sureties for his
appearance. Moreover for the definition of the term ‘indigent’ the explanation provides that
where a person is unable to give bail within a week of the date of his arrest, it shall be a
sufficient ground for the officer or the Court to presume that he is an indigent person for the
purposes of this proviso.

 Bail in Non-Bailable Cases: Bail, in non-bailable offences, is not a matter of right of the
accused person. Section 437 of the Code of Criminal Procedure envisages the provision as
regards bail in case of non-bailable offences, stating that the Magistrate may release an
accused on bail, if such accused appears before the Magistrate.

The proviso provides for some special considerations while granting bail in such cases like:

 If such person is under the age of sixteen years or;

 Is a woman or is sick or;
 An infirm

16
The Supreme Court, while dealing with Section 437 of CrPC, is of the view that though this
Section gives special consideration to a woman, it cannot be considered to be a mandatory
provision25.

 Bail on Default: With the incorporation of section 167(2) of Cr.P.C, the investigating agency
is required to complete the job of investigation and file the charge-sheet within the time limit
of either 60 or 90 days as the case may be. In case the above is not completed within the
definite period, the accused is entitled to be released on bail.

The whole object of providing a prescribed time limit under section 167(2) Cr.P.C. to the
investigation agency to complete the investigation is that the accused should receive expeditious
treatments at the hands of the criminal justice system, as it is implicit in Article 21 that every
accused has right to an speedy disposal of his case.

2.10. RIGHT TO FREE LEGAL AID

The state is under a constitutional mandate (implicit in Article 21 of the Constitution, explicit in
Article 39-A of the Constitution) to provide free legal aid to indigent accused persons. Section
304 of the Code of Criminal Procedure also provides such a right to the accused. It states that:

“(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader,
and where it appears to the Court that the accused has not sufficient means to engage a pleader,
the Court shall assign a pleader for his defence at the expense of the State. …”

A failure to inform the accused of this right and non compliance with this requirement would
vitiate the trial as held in Sukhdas vs. Union Territory of Arunachal Pradesh.26 In Khatri (II)
vs. State of Bihar27, the Supreme Court has held that the State is under a constitutional mandate
to provide free legal aid to an indigent accused person, and that their constitutional obligation to
provide legal aid does not arise only when the trial commences but also when the accused is for
the first time produced before the Magistrate as also when he is remanded from time to time. The
25
Gurubaksh Singh Sibba v. State of Punjab, AIR 1980 SC 1632
26
(1986) 2 SCC 401
27
Supra Note 15.

17
Apex Court has therefore cast a duty on all Magistrate and courts to inform the indigent accused
about his right to get free legal aid.

In 1987, Legal Services Authorities Act was enacted to give a statutory base to legal aid
programmes throughout the country on a uniform pattern. The National Legal Services Authority
(NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free
Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable
settlement of disputes.28

In every State, State Legal Services Authority has been constituted to give effect to the policies
and directions of the NALSA and to give free legal services to the people and conduct Lok
Adalats in the State. The State Legal Services Authority is headed by Hon’ble the Chief Justice
of the respective High Court who is the Patron-in-Chief of the State Legal Services Authority.29

In every District, District Legal Services Authority has been constituted to implement legal
services programmes in the district. The District Legal Services Authority is situated in the
District Courts Complex in every District and chaired by the District Judge of the respective
district.30 These authorities provides legal aid to the needy persons including accused, convicts
and victims of criminal cases.

2.11. EVIDENCE TO BE TAKEN IN PRESENCE OF THE ACCUSED

The personal presence of the accused throughout the trial would enable him to understand
properly the prosecution case as it is unfolded in the court. This would facilitate in the making of
the preparations for his defence. A criminal trial in the absence of the accused is unthinkable. A
trial and a decision behind the neck of the accused person is not contemplated by the Code,
though no specific provision to that effect is found therein. The requirement of the presence of
the accused during his trial can be implied from the provisions which allow the court to dispense
with the personal attendance of the accused person under certain circumstances.

28
J.N. Pandey, Constitutional Law of India, Central Law Agency Allahabad, 51st Edition, 2014.
29
Ibid.
30
Ibid.

18
Section 273 of Criminal Procedure Code requires that the evidence is to be taken in the presence
of the accused person; however, the section allows the same to be taken in the presence of the
accused’s pleader if the personal attendance of the accused person is dispensed with.

Fair trial requires that the particulars of the offence have to be explained to the accused person
and that the trial is to take place in his presence. Therefore, the section makes it imperative that
all the evidence must be taken in the presence of the accused, failure to do so would vitiate the
trial, and the fact that no objection was taken by the accused is immaterial.

Evidence given by witnesses becomes more reliable if given on oath and tested by cross-
examination. A criminal trial which denies the accused person the right to cross-examine
prosecution witnesses is based on weak foundation, and cannot be considered as a fair trial.31

Though the burden of proving the guilt is entirely on the prosecution and the law does not
require the accused to lead evidence to prove his innocence, yet a criminal trial in which the
accused is not permitted to give evidence to disprove the prosecution case, or to prove any
special defence available to him, cannot be considered as just and fair. The refusal without any
legal justification by a Magistrate to issue process to witnesses named by the accused person was
held enough to vitiate the trial.32

The right created by the section is further supplemented by Section 278 of Criminal Procedure
Code. It provides that wherever the law requires the evidence of a witness to be read over to him
after its completion, the reading shall be done in the presence of the accused, or of his pleader if
the accused appears by pleader, and shall, if necessary, be corrected.

If any evidence is given in a language not understood by the accused person, the bare compliance
with Section 273 of Criminal Procedure Code will not serve its purpose unless the evidence is
interpreted to the accused in a language understood by him. Section 279 of Criminal Procedure
Code provides that:

31
Sukhrah v. State of Rajasthan, AIR 1967 Raj 267
32
Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51

19
(1) Whenever any evidence is given in a language not understood by the accused, and he is
present in Court in person, it shall be interpreted to him in open Court in a language understood
by him.

(2) If he appears by pleader and the evidence is given in a language other than the language of
the Court, and not understood by the pleader, it shall be interpreted to such pleader in that
language.

(3) When documents are put for the purpose of formal proof, it shall be in the discretion of the
Court to interpret as much thereof as appears necessary.

However, non-compliance with Section 279(1) of Criminal Procedure Code will be considered
as mere irregularity not vitiating the trial if there was no prejudice or injustice cause to the
accused person.33

2.12. RIGHT TO GET COPIES OF POLICE REPORT AND OTHER DOCUMENTS

According to Section 207 of Criminal Procedure Code the magistrate is under an imperative duty
to furnish to the accused, free of cost, copies of statements made to the police and of other
documents to be relied upon by the prosecution. The object of furnishing the accused person with
copies of the statements and documents as mentioned above is to put him on notice of what he
has to meet at the time of the inquiry or trial and to prepare himself for his defence.34 The right
conferred on the accused is confined to the documents enlisted in the section and does not extend
to other documents.

In cases where cognizance of the offence has been taken otherwise than on a police report, the
case is not ordinarily investigated by the police and naturally there are no statements recorded by
the police. Therefore the valuable right given to the accused by Section 207 Criminal Procedure
Code regarding the supply of copies would not be available in such cases. In the absence of any
preliminary inquiry preceding trial, and when no police record is available to the accused person

33
Shivanarayan Kabra v. State of Madras, AIR 1967 SC 986
34
Gurbachan Singh v. State of Punjab, AIR 1957 SC 623

20
before his trial, it might cause considerable hardship to the accused to prepare himself for his
defence, particularly when the offence alleged is a serious one exclusively triable by the court of
session. Section 208 of Criminal Procedure Code tried to remove this hardship and enables the
accused to know the case made against him and to prepare for his defence. Section 207 and 208
of Criminal Procedure Code deals with supply to the accused of copy of police report and other
documents and supply of copies of statements and documents to accused in other cases triable by
Court of Session respectively.

According to Section 238 of Criminal Procedure Code at the time of commencement of the trial
in a warrant case it is the duty of the Magistrate to satisfy himself that he has complied with the
provisions of Section 207 of Criminal Procedure Code However in a summons case instituted on
a police report no such duty has been specifically cast on the Magistrate conducting the trial.
However free copies have to be supplied to the accused in such cases by the Magistrate in view
of the imperative duty created by Section 207 of Criminal Procedure Code. If the copies of the
statements etc. are not supplied to the accused person as required by Section 207 of Criminal
Procedure Code, it is undoubtedly a serious irregularity, however this irregularity in itself will
not vitiate the trial. It will have to see whether the omission to supply copies has in fact
occasioned a prejudice to the accused person in his defence. If it is found in positive, the
conviction of the accused person must be set aside, and a fair retrial after furnishing to the
accused all the copies to which he is entitled must be ordered.35

2.13. RIGHT TO CROSS-EXAMINE PROSECUTION WITNESSES AND TO PRODUCE

DEFENCE EVIDENCE

Evidence given by witnesses may become more reliable if given on oath and tested by cross
examination. A criminal trial which denies the accused person the right to cross-examine
prosecution witnesses is based on weak foundation, and cannot be considered as a fair trial.36 It is
mandatory that every accused must have assistance of counsel during the time of examination of
prosecution witnesses.

35
Section 465 of Criminal Procedure Code, 1973
36
Sukanraj v. State of Rajasthan, AIR 1967 Raj 267

21
In Mohd. Hussain @ Julfikare Ali v. The State (Govt. of NCT) Delhi37, it was held that right
to have counsel at the cost of state where accused is unable to engage a counsel is part of fair
trial. The right of a person charged with crime to have the services of a lawyer is fundamental
and essential to fair trial. The right to cross-examine a witness apart from being a natural right is
statutory right.

In Mohd. Sukur Ali v. State of Assam38, it was held that a criminal case should not be decided
against accused in the absence of the Counsel. An accused in criminal case should not suffer for
the fault of his counsel and in such a situation appoint another counsel as amicus curiae to defend
the accused.

In A.S. Mohammed Rafi v. State of Tamil Nadu rep. by Home Dept. and others39, it was
held that Professional ethics requires that a lawyer cannot refuse a brief, provided a client is
willing to pay his fee and lawyer is not otherwise engaged. Bar cannot pass a resolution that none
of the lawyer shall appear for a particular person whatsoever heinous crime he has committed.
Chapter II of the rules by Bar council of India states about "standards of Professional conduct
and etiquette."

An advocate is bound to accept any brief in the Court or tribunal or before any of the authorities
in or before which he proposed to practice at a fee consistent with his standing at the Bar and the
nature of the case. Special circumstances may justify his refusal to accept a particular brief.
Though the burden of proving the guilt is entirely on the prosecution and though the law does not
require the accused to lead evidence to prove his innocence, yet a criminal trial in which the
accused is not permitted to give evidence to disprove the prosecution case, or to prove any
special defence available to him, cannot be any standard to be considered as just and fair. The
refusal without any legal justification by a Magistrate to issue process to witnesses named by the
accused person was held enough to vitiate the trial.40

37
AIR 2012 SC 750
38
AIR 2011 SC 1222
39
AIR 2011 SC 308
40
Habeeb Mohd v. State of Hyderabad, AIR 1954 SC 51

22
2.14. RIGHT TO SPEEDY TRIAL

Justice delayed is justice denied. This is all the more true in a criminal trial where the accused is
not released on bail during the pendency of the trial and trial is inordinately delayed. However,
the code does not in so many words confer any such right on the accused to have his case
decided expeditiously. Section 437(6) of Criminal Procedure Code provides that if the accused is
in detention and the trial is not completed within 60 days from the first date fixed for hearing he
shall be released on bail. But this only mitigates the hardship of the accused person but does not
give him speedy trial and secondly this rule is applicable only in case of proceedings before a
Magistrate.

The code has given a more positive direction to courts when it says: in every inquiry or trial the
proceedings shall be held as expeditiously as possible, and in particular, when the examination of
witnesses has once begun, the same shall be continued from day to day until all the witnesses in
attendance have been examined unless the court finds the adjournment of the same beyond the
following day to be necessary for reasons to be recorded 41. A criminal trial which drags on for
unreasonably long time is not a fair trial. Section 309(1) of Criminal Procedure Code gives
directions to the courts with a view to have speedy trials and quick disposals. The right of the
accused in this context has been recognized but the real problem is how to make it a reality in
actual practice. The provisions with regard to limitation help the accused to certain extent.

In Hussainara Khatoon vs. State of Bihar42, the Supreme Court considered the problem in all
its seriousness and declared that speedy trial is an essential ingredient of ‘reasonable, fair and
just’ procedure guaranteed by Article 21 and that it is the constitutional obligation of the state of
devise such a procedure as would ensure speedy trial to accused. The State cannot avoid its
constitutional obligation to provide speedy trial to the accused by pleading financial or
administrative inability. The State is under a constitutional mandate to ensure speedy trial and
whatever is necessary for this purpose has to be done by the State. It is also the constitutional

41
Section 309(1) Criminal Procedure Code, 1973
42
Supra note 13

23
obligation of this court, as the guardian of the fundamental rights of the people, to enforce the
fundamental right of the accused to speedy trial by issuing necessary directions to the State.43

The right to speedy trial came to receive examination in the Supreme Court in Motilal Saraf v.
State of J&K44. Dismissing a fresh complaint made after 26 years of an earlier complaint the
Supreme Court explained the meaning and relevance of speedy trial right as:
“The concept of speedy trial is read into Article 21 as an essential part of the
fundamental right to life and liberty guaranteed and preserved under our Constitution. The right
to speedy trial begins with actual restraint imposed by arrest and consequent incarceration, and
continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so
that any possible prejudice that may result from impressible and avoidable delay from the time
of the commission of the offence will if consummates into a finality, can be averted.”45

2.15. COMPENSATION FOR WRONGFUL ARREST

The accused persons have a right to compensation for groundless arrest. Section 358 of the
Criminal Procedure Code empowers the court to order any person to pay compensation to
another person for causing a police officer to arrest such other person wrongfully. Usually it is
the police officer who investigates and makes the arrest and the complainant, if at all can be
considered to have a nexus with the arrest, it is rather indirect or remote. For applying Section
358 some direct and proximate nexus between the complainant and the arrest is required. It has
been held that there should be something to indicate that the informant caused the arrest of the
accused without any sufficient grounds.

In Nilabati Behara v. State of Orissa46, Justice J.S. Verma stressing the right to remedy in gross
violation of fundamental rights and referring to Article 9(5)47 of the ICCPR held that anyone

43
S. Guin v. Grindlays Bank Ltd., (1986) 1 SCC 654
44
(2007) 1 SCC (Cri) 180
45
Ibid.
46
1993 AIR SC 1960
47
Article 9(5) of International Covenant on Civil and Political Rights: Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compensation.

24
who has been victim of an unlawful detention or arrest shall have an enforceable right to
compensation.

In Bhim Singh vs. State of J & K & Ors.48, the Apex court held that holding illegal detention in
police custody of the petitioner Bhim Singh is violative of his rights under Articles 21 and 22(2)
of the Constitution, and in exercise of its power to award compensation under Article 32,
directed the State to pay monetary compensation.

In Rudal Shah49case, it was held that a claim for compensation for contravention of human
rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of such rights, and such a claim is based
on strict liability made by resorting to a constitutional remedy provided for the enforcement of a
fundamental right.

The Supreme Court has held in its various judgments that it is imperative to state that it is the
sacrosanct duty of the police authorities to remember that a citizen while in custody is not
denuded of his fundamental rights under Article 21 of the constitution. The restrictions imposed
have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic
human rights are not crippled so that the police officers can treat him in an inhuman manner. On
the contrary, they are under obligation to protect his human rights and prevent all forms of
atrocities.

2.16. RIGHT OF APPEAL

The Supreme Court has rightly observed:

“One component of fair procedure is natural justice. Generally speaking and subject to
just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught
with loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural
justice and normative universality save in special cases like the original tribunal being a high

48
AIR 1986 SC 494
49
Rudal Shah v State of Bihar 1983 AIR 1086

25
bench sitting on a collegiate basis. In short, a first appeal as provided in the Criminal Procedure
Code, manifests this value upheld in Article 21.”50

Appeal is one of the two important review procedures. An appeal is a complaint to a superior
court of an injustice done or error committed by an inferior one, whose judgment or decision the
court above is called upon to correct or reverse.51 An appeal is a creature of statute and there can
be no inherent right of appeal from any judgment or determination unless an appeal is expressly
provided for by the law itself.

50
M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544
51
Black’s Law Dictionary, 4th Ed., p. 124

26
3. RIGHT OF ACCUSED PERSONS IN USA

The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of
U.S.A. (1791) which declares that no person shall be deprived of his life, liberty or property,
without due process of law. The Fourteenth Amendment imposes similar limitation on the State
authorities. These two provisions are conveniently referred to as the `due process clauses'. Under
the above clauses the American Judiciary claims to declare a law as bad, if it is not in accordance
with `due process', even though the legislation may be within the competence of the Legislature
concerned. Due process is conveniently understood means procedural regularity and fairness.
Some of the rights of accused which reflect the protection of life and liberty rights are as follows:

3.1. NOTICE OF ACCUSATION

A criminal defendant has the right to be informed of the nature and cause of the accusation
against him. Therefore, an indictment must allege all the ingredients of the crime to such a
degree of precision that it would allow the accused to jeopardy if the same charges are brought
up in subsequent prosecution.

The Supreme Court of USA held in United States v. Carll,52 that “in an indictment it is not
sufficient to set forth the offense in the words of the statute, unless those words of themselves
fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements
necessary to constitute the offense intended to be punished.” Vague wording, even if taken
directly from a statute, does not suffice. However, the government is not required to hand over
written copies of the indictment free of charge.

3.2. CUSTODIAL INTERROGATION

The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers.
Originally, at common law, even a confession obtained by torture was admissible. In the
eighteenth century, common law in England provided that coerced confessions were
inadmissible. The common law rule was incorporated into American law by the courts. However,

52
105 U.S. 611 (1881)

27
the use of brutal torture to extract confessions was routine in certain jurisdictions at least until
1991, though the Supreme Court has repeatedly overruled convictions based on such
confessions.

In Chambers v. Florida53, the Court held a confession obtained after five days of prolonged
questioning, during which time the defendant was held incommunicado, to be coerced.
In Haynes v. Washington54, the Court held that an "unfair and inherently coercive context"
including a prolonged interrogation rendered a confession inadmissible.

Miranda v. Arizona55 was a landmark case involving confessions. Ernesto Miranda had signed a
statement confessing the crime, but the Supreme Court held that the confession was inadmissible
because the defendant had not been warned of his rights. The Court held:

"The prosecution may not use statements stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. Custodial interrogation is initiated by law enforcement after
a person has been taken into custody or otherwise deprived of his freedom of movement. As for
the procedural safeguards to be employed, unless other fully effective means are devised to
inform accused persons of their right of silence and to assure a continuous opportunity to
exercise it, the following measures are required. Before any questioning, the person must be
warned that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either retained or
appointed."

The warning to which Chief Justice Earl Warren referred is now called the Miranda warning, and
it is customarily delivered by the police to an accused before questioning. For the warning to be
necessary, the questioning must be conducted under "custodial" circumstances. A person
detained in jail or under arrest is, of course, deemed to be in police custody. Alternatively, a
person who is under the reasonable belief that he may not freely leave from the restraint of law

53
309 U.S. 227 (1940)
54
373 U.S. 503 (1963)
55
384 U.S. 436 (1966)

28
enforcement is also deemed to be in "custody." That determination of "reasonableness" is based
on a totality of the objective circumstances.

A confession not preceded by a Miranda warning where one was necessary cannot be admitted
as evidence against the confessing party in a judicial proceeding. The Supreme Court, however,
has held that if a defendant voluntarily testifies at the trial that he did not commit the crime, his
confession may be introduced to challenge his credibility, to "impeach" the witness, even if it
had been obtained without the warning.

In June 2010, the Supreme Court ruled in Berghuis v. Thompkins56 that criminal suspects must
unambiguously invoke their right to remain silent. Unless and until the suspect actually states
that she is relying on that right, her subsequent voluntary statements can be used in court and
police can continue to interact with (or question) her. The mere act of remaining silent is, on its
own, insufficient to imply the suspect has invoked her rights. Furthermore, a voluntary reply
even after lengthy silence can be construed as implying a waiver.

3.3. COMPULSORY PROCESS

The Compulsory Process Clause gives any criminal defendant the right to call witnesses in his
favor. If any such witness refuses to testify, that witness may be compelled to do so by the court
at the request of the defendant. However, in some cases the court may refuse to permit a defense
witness to testify. For example, if a defense lawyer fails to notify the prosecution of the identity
of a witness to gain a tactical advantage, that witness may be precluded from testifying.

3.4. RIGHT TO LEGAL AID

A criminal defendant has the right to be represented by counsel. In the landmark case of Powell
v. Alabama57, the Supreme Court ruled that “in a capital case, where the defendant is unable to
employ counsel, and is incapable adequately of making his own defense because of ignorance,

56
130 S. Ct. 2250 (2010)
57
287 U.S. 45 (1932)

29
feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to
assign counsel for him.”

In Johnson v. Zerbst58, the Supreme Court ruled that in all federal cases, counsel will have to be
appointed for defendants who were too poor to hire their own. However, in Betts v. Brady59, the
Court declined to extend this requirement to the state courts under the Fourteenth Amendment
unless the defendant demonstrated "special circumstances" requiring the assistance of counsel.
Gideon v. Wainwright60 explicitly overruled Betts v. Brady and found that counsel must be
provided to indigent defendants in all felony cases.

As stated in Brewer v. Williams61, the right to counsel means at least that a person is entitled to
the help of a lawyer at or after the time that judicial proceedings have been initiated against him,
whether by formal charge, preliminary hearing, indictment, information, or arraignment.
Brewer goes on to conclude that once adversary proceeding have begun against a defendant, he
has a right to legal representation when the government interrogates him and that when a
defendant is arrested, arraigned on an arrest warrant before a judge, and committed by the court
to confinement, there can be no doubt that judicial proceedings have been initiated.”

 Self-representation

A criminal defendant may also represent himself, unless a court deems the defendant to be
incompetent to waive the right to counsel. In Godinez v. Moran62, it was laid down that a court
can require a defendant to be represented by counsel if it believes the accused less than fully
competent to adequately proceed without counsel.

58
304 U.S. 458 (1938)
59
316 U.S. 455 (1942)
60
372 U.S. 335 (1963)
61
430 U.S. 387 (1977)
62
509 U.S. 389 (1993)

30
3.5. RIGHT TO SPEEDY TRIAL

Accused persons have the right to speedy trial. In case of Barker v. Wingo63, the Supreme
Court laid down a four-part case-by-case balancing test for determining whether the defendant's
speedy trial right has been violated in the case. The four factors are:

 Length of delay: A delay of a year or more from the date on which the speedy trial right
"attaches" (the date of arrest or indictment, whichever occurs first) was termed
"presumptively prejudicial," but the Court has never explicitly ruled that any absolute time
limit applies.
 Reason for the delay: The prosecution may not excessively delay the trial for its own
advantage, but a trial may be delayed to secure the presence of an absent witness or other
practical considerations (e.g., change of venue).
 Time and manner in which the defendant has asserted his right: If a defendant agrees to the
delay when it works to his own benefit, he cannot later claim that he has been unduly
delayed.
 Degree of prejudice to the defendant which the delay has caused.

In Strunk v. United States64, the Supreme Court ruled that if the reviewing court finds that a
defendant's right to a speedy trial was violated, then the indictment must be dismissed and/or the
conviction overturned. The Court held that, since the delayed trial is the state action which
violates the defendant's rights, no other remedy would be appropriate. Thus, a reversal or
dismissal of a criminal case on speedy trial grounds means that no further prosecution for the
alleged offense can take place.

3.6. PROTECTION AGAINST DOUBLE JEOPARDY

Article 8(4) of the American Convention on Human rights states: “an accused person acquitted
by a non appealable judgment shall not be subjected to a new trial for the same cause”.

63
407 U.S. 514 (1972)
64
412 U.S. 434 (1973)

31
Amendment 5 to the constitution of U.S.A. states “Nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb”

The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution
after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain
mistrials, and multiple punishments in the same indictment. Jeopardy "attaches" when the jury is
empanelled, the first witness is sworn, or a plea is accepted.

The government is not permitted to appeal or try again after the entry of an acquittal, whether
a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked
jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), or
an "implied acquittal" via conviction of a lesser included offense.

In Blockburger v. United States65 , the Supreme Court announced the following test: the
government may separately try and punish the defendant for two crimes if each crime contains
an element that the other does not.

3.7. RIGHT AGAINST SELF-INCRIMINATION

The Fifth Amendment protects accused persons from being forced to incriminate themselves. To
"plead the Fifth" is to refuse to answer a question because the response could provide self-
incriminating evidence of an illegal act punishable by fines, penalties or forfeiture.

Historically, the legal protection against self-incrimination was directly related to the question of
torture for extracting information and confessions.

Protection against self-incrimination is implicit in the Miranda rights statement, which protects
the "right to remain silent." The Supreme Court has held that an accused may have a reasonable
fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the
innocent who otherwise might be ensnared by ambiguous circumstances.

65
284 U.S. 299 (1932)

32
3.8. RIGHT TO BAIL

Section 9 of Virginia's 1776 Constitution states “excessive bail ought not to be required”. In the
year 1785, the following was added, "Those shall be let to bail who are apprehended for any
crime not punishable in life or limb. But if a crime be punishable by life or limb, or if it be
manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted
to bail." Section 29 of the Pennsylvania Constitution of 1776 states that “Excessive bail shall not
be extracted for bailable offences: And all fines shall be moderate.”

The excessive bail clause in the 8th amendment was drafted in response to the perceived
excessiveness of bail in England. Excessive bail was also prohibited by the English Bill of
Rights. If a judge posts excessive bail, the defendant's lawyer may make a motion in court to
lower the bail or appeal directly to a higher court. Thus, the Eighth Amendment has been
interpreted to mean that bail may be denied if the charges are sufficiently serious. However,
ordinarily bail should be granted. The Supreme Court has also permitted "preventive" detention
without bail. Preventive detentions are when someone is denied bail because the court fears that
if the accused is released they will be a danger to the community. Congress authorized
preventive detention in the Bail Reform Act of 1984, and the Court upheld the Act in United
States v. Salerno66. The court further held that the only limitation imposed by the bail clause is
that "the government's proposed conditions of release or detention not be 'excessive' in light of
the perceived evil."

In Stack v. Boyle67, the Court found that a defendant's bail cannot be set higher than an amount
that is reasonably likely to ensure the defendant's presence at the trial. In Stack, the Court found
bail of $50,000 to be excessive, given the limited financial resources of the defendants and a lack
of evidence that they were likely to flee before trial.

In Schilb v. Kuebel68, the Court stated:

66
481 U.S. 739 (1987)
67
342 U.S. 1 (1951)
68
404 U.S. 357 (1971)

33
 "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription
of excessive bail has been assumed to have application to the States through the Fourteenth
Amendment."

Bail was included in the list of incorporated rights in McDonald v. Chicago69.

3.9. RIGHT TO COMPENSATION

In U.S.A., compensation programs endeavor to extinguish, as far as possible, all the

consequences of the illegal act and re-establish the situation which in all probability would have
existed if that act had not been committed. In many cases, this involves financial compensation
or payouts to assist survivors. Accused persons should receive compensation for all damages that
result from the wrongful act, including any profits that would have been possible had those
unjust acts not occurred70.

Article 10 of the American convention on Human Rights 1969 states that every accused has the
right to be compensated in accordance with the law in the event he has been sentenced by a final
judgment through a miscarriage of justice.

69
561 US 3025 (2010)
70
American Convention on Homan Rights 1969, U.S.A., available at: http://www.beyondintractability.org/bi-
essay/compensation

34
4. RIGHTS OF ACCUSED PERSONS IN UK

Life and personal liberty has been given prime importance in the United Kingdom. It was in
1215 that the people of England revolted against King John and enforced their rights, first time
the King had acknowledged that there were certain rights of the subject could be called Magna
Carta 1215. In 1628, the petition of rights was presented to King Charles-I which was the 1st
step in the transfer of Sovereignty from the King to Parliament. It was passed as the Bill of
Rights 1689.71

In the Magna Carta, it is stated “no free man shall be taken, or imprisoned or seized or outlawed
or banished or any ways destroyed, nor will the King pass upon him or commit him to prison,
unless by the judgment of his peers or the law of the land”.72

Right to life is the most fundamental of all human rights and any decision affecting human right
or which may put an individual's life at risk must call for the most anxious scrutiny73. The
sanctity of human life is probably the most fundamental of the human social values. It is
recognized in all civilized societies and their legal system and by the internationally recognized
statements of human rights74.

The relevance of the European Convention to the interpretation and application of Codes of
Criminal Procedure and comparable or related legislation arises both from provisions in the
former that explicitly set out requirements with respect to the operation of the criminal justice
system and from many others that give rise to a range of implicit requirements that will also need
to be taken into account.

The explicit requirements come primarily from the right to liberty and security in Article 5 and
the right to a fair hearing in the determination of a criminal charge in Article 6; but also from the

71 Sumbul Fatima, Comparative Criminal Procedure Code in India, UK, USA, available at:
https://www.academia.edu/6079506/Comparative_Criminal_Procedure_Code_in_India_U_K_USA-_PROJECT
72 Ibid.
73
Bugdaycay v. Secretary of State for the Home Department, (1987) 1 All ER 940
74
Pretty v. Director of Public Prosecutions, (2002) 1 All ER 1

35
right of appeal in criminal matters, the right to compensation for wrongful conviction and the
right not to be tried or punished twice in Articles 2, 3 and 4 of Protocol No. 7 respectively.

The implicit requirements in the European Convention stem particularly from the right to life in
Article 2 and the prohibition on torture and inhuman treatment and punishment in Article 3
(which are of significance for matters such as the use of force in law enforcement action, the
investigation of alleged offences and the conduct of interrogation), from the right to respect for
private and family life, home and correspondence in Article 8 (which not only sets important
limitations on the way in which offences can be investigated and evidence gathered but which is
also relevant to the restrictions imposed on persons arrested and remanded in custody and to the
publicity that can be given to certain aspects of criminal proceedings), the right to freedom of
expression in Article 10 (which is not only relevant to the reporting of criminal proceedings but
also to the limits that can be imposed on criticism of the criminal justice system, especially as
regards its operation in a given case), the right to the peaceful enjoyment of possessions in
Article 1 of Protocol No. 1 (which must be respected in the course of law enforcement action and
may also be relevant to measures taken to secure either evidence of the commission of an offence
or the proceeds derived from this) and the right to freedom of movement in Article 2 of Protocol
No. 4 (which can affect limitations imposed on suspected offenders in the course of an
investigation of an offence or pending its trial).

The rights of accused persons may be summed up in brief as follows:

4.1. ARREST ONLY ON REASONABLE SUSPICION

In Fox Campbell and Hartley v. the United Kingdom75, the Court held that having a “reasonable
suspicion” pre-supposes the existence of facts or information which would satisfy an objective
observer that the person concerned may have committed the offence. What may be regarded as
“reasonable” will however depend upon the circumstances but arrest shall not be made without
reasonable suspicion.

75
(1990) 13 EHRR 157

36
4.2. NO USE OF MORE THAN NECESSARY FORCE

It has been held that the any resort to potentially lethal force cannot be considered as “absolutely
necessary” in circumstances where it is known that the person to be arrested poses no threat to
life or limb and is not suspected of having committed a violent offence was prohibited by Article
2 of the Convention.76 Handcuffs usually are not used. Europe generally views the use of
handcuffs and manacles as barbaric and utterly unnecessary in the vast majority of arrests. The
accused usually is simply told he or she is under arrest and is directed to enter the police car.

4.3. RIGHT TO REMAIN SILENT

At the time of arrest, the police may not interview or interrogate the arrestee except at the police
station77. In John Murray v. the United Kingdom78, it was stated that at the beginning of police
interrogation, an accused is confronted with a fundamental dilemma relating to his defence. If the
accused opts to break his silence during the course of interrogation, he runs the risk of
prejudicing his defence without necessarily removing the possibility of inferences being drawn
against him. Under such conditions the concept of fairness enshrined in Article 6 requires that
the accused has the benefit of the assistance of a lawyer already at the initial stages of police
interrogation79. To deny access to a lawyer for the first 48 hours of police questioning, in a
situation where the rights of the defence may well be irretrievably prejudiced, is whatever the
justification for such denial, incompatible with the rights of the accused under Article 6.

4.4. RIGHT TO LEGAL AID

The Police and Criminal Evidence Act 1984 provides that the accused must also be informed of
his right to independent legal advice free of charge. The suspect must once again be reminded of
his right to free legal advice during interrogation, whether under arrest or voluntarily present at
the police station. The custody officer must specifically "tell him clearly of the following rights

76
John Murray v. the United Kingdom, (1996) 22 EHRR 29
77
Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C), 11
(a)(11.1)
78
Ibid.
79
A. R. Mowbray, Alastair R. Cases, Materials, and Commentary on the European Convention on Human Rights,
Oxford University Press, U.K., 3rd Edn. 2012

37
and of the fact that they are continuing rights which may be exercised at any stage during the
period in custody to have someone informed of his arrest (sec 5) and to consult privately with a
solicitor (sec 6).80

4.5. RIGHT TO FAIR TRIAL

Article 6 of the European Convention on Human Rights is a provision of the European

Convention which protects the right to a fair trial. In criminal law cases and cases to determine
civil rights it protects the right to a public hearing before an independent and impartial tribunal
within reasonable time, the presumption of innocence, and other minimum rights for those
charged in a criminal case (adequate time and facilities to prepare their defence, access to legal
representation, right to examine witnesses against them or have them examined, right to the free
assistance of an interpreter).

Article 6 reads as follows:

1. In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the interest
of morals, public order or national security in a democratic society, where the interests of
juveniles or the protection of the private life of the parties so require, or the extent strictly
necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.

3.Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the

80
Your Right To A Fair Trial, available at: https://www.citizensadvice.org.uk/law-and-courts/civil-rights/human-
rights/what-rights-are-protected-under-the-human-rights-act/your-right-to-a-fair-trial/

38
 nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.81

Moreover, Article 40 requires that all the hearings shall be in public unless otherwise decided
by the court in exceptional circumstances. What would be considered ‘exceptional’ would
vary according to each case.

In Van de Hurk Vs. Netherlands82, the Court held that there cannot be a fair criminal or civil
trial before a court which is, or appears to be, biased against the defendant or litigant, and the
fair trial guarantees are meaningless should the tribunal’s decision be liable to be overturned
by some other authority which does not offer such guarantees.

4.6. RIGHT TO SPEEDY TRIAL

The Magna Carta 1215 states “To no one will we sell, to no one will we refuse or delay, right or
justice”, which makes it clear that unnecessary delay in grating justice is unacceptable and
justice should be done as speedily as possible.

81
European Convention on Human Rights, available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf
82
(1994) 18 EHRR 481

39
Besides the Magna Carta, clause 3 and 4 of the European Convention on Human Rights also talk
about speedy trial. Both clauses are reproduced hereunder:

Clause 3 “Everyone arrested or detained in accordance with the provisions of paragraph 1.c
of this article shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial”.

Clause 4 “Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful”.83

The right to a speedy trial is a derivation from a provision of Magna Carta. This principle has
also been incorporated into the Virginia Declaration of Rights of 1776 and from there into the
Sixth Amendment of the Constitution of United States of America which reads, “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial”. It may be pointed
out, in this connection, that there is a Federal Act of 1974 called ‘Speedy Trial Act’ establishing a
set of time-limits for carrying out the major events, e.g., information, indictment, arraignment, in
the prosecution of criminal cases84.

As regards the concept of plea bargaining, in countries such as England and Wales, Victoria and
Australia, 'plea bargaining' is allowed only to the extent that the prosecutors and defence can
agree that the defendant will plead to some charges and the prosecutor shall drop the remainder.
The European countries are also slowly legitimizing the concept of plea bargaining, though the
Scandinavian countries largely maintain prohibition against the practice.

4.7. RIGHT AGAINST DOUBLE JEOPARDY

Article 4 of 7th protocol of ECHR embodies the principle that a person shall not be tried or
punished again in criminal proceedings under the jurisdiction of the same state for an offence

83 Supra Note 80
84
Black's Law Dictionary, 6th Edn., page 1400

40
which he has already been acquitted or convicted of. The words “under the jurisdiction of the
same state”, limits the application of the article to the national level.

The principle established in this provision only after the person has been finally convicted or
acquitted in accordance with the law and penal procedure of the state concerned. This means that
there must have been a final decision. A case may however be reopened in accordance with the
law if the state concerned if there is evidence of new or newly discovered facts, or if it appears
that there has been a fundamental defect in the proceedings, which could affect the outcome of
the case either in favour of the person or to his detriment.

The term “new or newly discovered facts” includes new means of proof relating to previously
existing facts. Furthermore, this article does not prevent a reopening of the proceedings in favour
of the convicted person and any other changing of the judgment to the benefit of the convicted
person.

Article 4, since it only applies to trial and conviction of a person in criminal proceedings, does
not prevent him from being made subject to the same act, to action of a different character as
well as to criminal proceedings.

4.8. RIGHT AGAINST SELF-INCRIMINATION

The right against self-incrimination originated in England and Wales. In countries deriving their
laws as an extension of the history of English Common Law, a body of law has grown around
the concept of providing accused persons with the means to protect themselves from self-
incrimination.

Like the Right to silence, the privilege against self-incrimination is one of the most fundamental
of principles in English criminal law. It applies during the investigation of a criminal offence,
and at trial. In court, an accused may refuse to answer questions on the grounds that the answer
would be liable to incriminate him in a criminal offence other than the current one. The
qualification of the privilege to apply only to matters other than the current trial prevents the
defendant from using the privilege to avoid answering difficult questions from the prosecution.

41
Despite its long history, the privilege against self-incrimination is not absolute. For example,
there are many statutes that require a person to be compelled to provide certain information, with
penalties for non-compliance. Many of these statutes provide that information so obtained cannot
be used in subsequent proceedings, which mostly leaves the privilege against self-incrimination
intact.

Even if the privilege against self-incrimination has not been overridden by statute, it can only be
invoked in limited circumstances. The risk must be that the disclosure would lead to criminal
charges; a disclosure that would be detrimental in a civil action is not protected. The risk must be
real and substantial, not notional. The criminal act must be something that is justiciable in
England and Wales

Applying to England Wales, the Criminal Justice and Public Order Act 1994 amended the right
to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to
explain something, and then later produces an explanation (in other words the jury is entitled to
infer that the accused fabricated the explanation at a later date, as he or she refused to provide the
explanation during the time of the Police questioning). The jury is also free not to make such an
inference.

The Court has time and again stated that the scope of right against self-incrimination is not
limited to cases where duress has been used against the accused or where the will of the accused
has been directly overborne in some way. It also underlined that the right to silence is part of a
fair procedure, and serves to protect the liberty of a suspected individual to choose whether he
speaks or remains silent during the police questioning85.

4.9. RIGHT TO BAIL

The idea behind the ‘no excessive bail’ clause is to secure impartial release of arrested person
from the custody irrespective of his/her economic status.

85
Allan v. the United Kingdom, 48539/99, 5 November 2002

42
In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they
tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-
bailable offenses were defined. The King's judges often subverted the provisions of the law. It
was held that an individual may be held without bail upon the Sovereign's command. Eventually,
the Petition of Right of 1628 argued that the King did not have such authority. Later,
technicalities in the law were exploited to keep the accused imprisoned without bail even where
the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus
Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable
amounts. Finally, the English Bill of Rights 1689 held that "excessive bail ought not to be
required."

In Letellier v. France86 it was held that when the only remaining reason for continued detention
is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, he
must be released if he is in a position to provide adequate guarantees to ensure that he will so
appear, for example by lodging a security.

4.10. RIGHT TO JUST COMPENSATION

Article 5(5) of ECHR provides that everyone who has been the victim of arrest or detention in
contravention of the provisions of this article shall have an enforceable right to compensation. A
person shall have an enforceable right to compensation if he is arrested in situations except
mentioned hereunder:

 The lawful detention of a person after conviction by a competent court;

 The lawful arrest or detention of a person for non-compliance with the lawful order of a court
or in order to secure the fulfilment of any obligation prescribed by law;
 The lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an offence or fleeing after
having done so;

86
(1992) 14 EHRR 83

43
 The detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
 The lawful detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants;
 The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into
the country or of a person against whom action is being taken with a view to deportation or
extradition.

Article 3 of 7th Protocol on the European Convention of Human Rights also states that when a
person has by a final decision been convicted of a criminal offence and when subsequently his
conviction has been reversed, or he has been pardoned, on the ground that a new or newly
discovered fact shows conclusively that there has been a miscarriage of justice, the person who
has suffered punishment as a result of such conviction shall be compensated according to the law
or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.

44
5. CONCLUSION

The aforementioned paragraphs throw light on the collective concern of all the countries in
relation to the preservation of rights of an accused person. Until a crime is proved, the accused is
entitled to the life of an innocent. An accused is someone who’s on the middle ground, he can’t
be left free on the apprehension of him being the actual culprit and he can’t be given stringent
treatment for he can also be an innocent. Hence, the legal system very cautiously crafts the rights
to be associated with an accused. The present paper carries a comparative study of rights of
accused in India, United Kingdom and the United States of America. All these three countries
follow the ‘innocent until proven guilty’ rule. Quite interestingly, India has the most vast variety
of protections bestowed to accused persons in comparison to the other two countries. But it lacks
in their implementation. On the contrary, USA and UK have limited laws to protect the interest
of accused person(s) but their implementation is so strong that it fills the gap for limited laws in
practice. India is deeply affected by its corruption and illiteracy issues, a major part of our
population is unaware of their basic rights let alone even considering that there can be any rights
even for the person accused of a crime. The absence of awareness and presence of illegal
practices has contributed immensely in the deteriorating situation of people under trial. We are
the world’s largest Democracy, our Constitution works on the fundamental principle of welfare
and yet we witness the injustice happening to under trials each day. Our country should learn
how to make the most from the least from USA and UK, only then we can look forward to a
better and less unfortunate future for our under trial persons.

45
 6. BIBLIOGRAPHY

[BOOKS]

1. Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 51st Edition, 2014.
2. C.K. Thakker and M.C. Thakker, Criminal Procedure, Lexis Nexis, 4th Edition, 2015.
3. R.V. Kelkar, Lectures On Criminal Procedure, Eastern Book Company, 4th Edition, 2006
4. Dr. S.K. Kapoor, International Law and Human Rights, Central Law Agency, Allahabad,
14th Edition, 2008

[STATUTES]
1. Constitution of India
2. Code of Criminal Procedure, 1973
3. The Constitution of USA
4. Universal Declaration of Human Rights, 1948
5. European Convention on Human Rights, 1950

[WEB SOURCES]
 https://courses.lumenlearning.com/boundless-politicalscience/chapter/the-rights-of-the-
accused/
 https://www.shoneekapoor.com/primary-rights-accused-person-criminal-trial/
 https://www.getlegal.com/legal-info-center/criminal-law/fundamental-rights-of-the-
accused/
 http://www.legalserviceindia.com/legal/article-219-rights-of-accused-persons.html
 https://www.citizensadvice.org.uk/law-and-courts/civil-rights/human-rights/what-rights-
are-protected-under-the-human-rights-act/your-right-to-a-fair-trial/
 https://www.myadvo.in/blog/rights-of-accused-in-india/
 https://www.ohchr.org/Documents/Publications/training9chapter6en.pdf
 https://www.academia.edu/6079506/Comparative_Criminal_Procedure_Code_in_India_
U_K_USA-_PROJECT
 http://shodhganga.inflibnet.ac.in/bitstream/10603/39088/9/09_%20chapter%203.pdf

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