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Published : May 30, 2013 | Author : anubha.nliu
Category : Criminal law | Total Views : 19420 | Rating :

Anubha Shrivastava Student, NLIU Bhopal

Legal Protection available to the accused during a criminal trial

1. Rights of the accused in Indian Criminal Trial
Right to a copy of police report and other documents
As per section 207 of CrPC, accused has the right to be furnished with the following in case the proceeding has been initiated on a police report:

· the police report;

· the first information report recorded under section 154;

· the statements recorded under sub-section (3) of section 161;

· the confessions and statements, if any, recorded under section 164;

· any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173.

And as per section 208 of CrPC, when a case not instituted by a police report but when the offence is triable exclusively by the Court of Session:

· the statements recorded under section 200 or section 202, or all persons examined by the Magistrate;
· the statements and confessions, if any, recorded under section 161 or section 164;
· any documents produced before the Magistrate on which the prosecution proposes to rely.

2. Right to be discharged when no sufficient ground

As per section 227 of CrPC, when the judge is convinced that there is no sufficient ground for proceeding against the accused after duly considering the case, it is the right of the accused that he be discharged.

3. Right to present evidence

According to section 243(1) of CrPC, the accused has the right to present his evidence and defend his case. The magistrate is duty bound to record written statements put by the accused.

4. Right to be present when evidence is taken
Section 273 of CrPC makes it obligatory on the part of the Magistrate to ensure that all evidence taken in the course of the other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.

5. Right to be defended
Section 303 of CrPC and Article 22(1) of the constitution of India provides a right to all the accused persons, to be defended by a pleader of his choice.

6. Legal aid at State expense in certain cases
This is not a right available to all the accused but to certain category of accused as a privilege. So where, in a trial before the Court of Session, the accused is not represented by a pleader, and the court believes that he does not have sufficient means to engage a pleader, it shall assign a pleader for his defence at the expense of the State, under section 304 of CrPC.

7. Right to cross-examination witnesses
Section 311 of CrPC gives the accused (and the prosecution) full right to cross examine a witness called by the Court.

Under section 243(2) of CrPC, if the accused applies to the Magistrate to issue any process for calling any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing.

Section 138 of Evidence Act says that the right of cross-examination available to opposite party is a distinct and independent right. When accused declined to cross-examine witness and thereafter the said witness is not available for cross-examination, the evidence of such witness recorded is admissible in evidence but that will have to be true to that account.

8. No influence to be used to induce disclosure
As per section 316, the accused shall not be subjected to any sort of influence by means of any promise or threat or otherwise, to induce him to disclose or withhold any matter within his knowledge.

9. And Right to life and liberty
Article 21 of the constitution of India provides that no accused shall be deprived of his life or personal liberty except in accordance with procedure established law which is just, fair and reasonable. This article also provides that the accused has the right to free and speedy trial.

10. Right against double-jeopardy
As per article 20(2) of constitution of India, no person shall be prosecuted and punished for the same offence more than once.

11. Right against self-incrimination
As per article 20(3) of constitution of India, no person accused of any offence shall be compelled to be a witness against himself.

2. Natural Justice and the Rights of the accused
Some of the basic elements of Natural Justice are as follows:

· No man shall be Judge in his own cause.

· Both sides shall be heard, or audi alteram partem.

Right to cross-examine

Right to legal representation

· The parties to a proceedings must have due notice of when the Court / Tribunal will proceed.
· The Court / Tribunal must act honestly and impartially.

The above principles of Natural Justice and the rights available to the accused during trial Seem a striking resemblance and thus one cannot refute that natural Justice may have stirred the development of today’s rights of the accused.

The elementary principle of Natural Justice, audi alteram partem or right to be heard which include right to cross-examine and right to legal representation form the fundamental structure of right available to the accused in the Indian criminal justice system.

3. Malimath Committee on the rights of the accused
The committee was of the opinion that “the rights of the accused include the obligation on the part of the State to follow the due processes of law, a quick and impartial trial, restraint from torture and forced testimony, access to legal aid etc”.

Before suggesting and recommending certain changes the Committee posed three major questions:

(i) Should the basic premise of criminal law, namely, proof of guilt beyond reasonable doubt be dispensed with?

According to the Committee such a presumption is not found in the Evidence Act. And thus the standard of 'proof beyond reasonable doubt' present followed in criminal cases shall be done away with. The standard of proof in criminal cases should be higher than the 'preponderance of probabilities'

“The extraordinary burden of “proof beyond reasonable doubt” should be removed subject to the safeguards available to the accused under the Evidence Act and the Code.”

“There are three standards of proof: “a preponderance”, “clear and convincing” and “beyond a reasonable doubt”. The middle course, in our opinion, makes a proper balance between the rights of the accused on one hand and public interest and rights of the victim on the other. This standard is just, fair and reasonable. Safety lies in the fact that the accused is assisted by a lawyer and the Judge is required to give reasons for his findings. This will promote public confidence and contribute to better quality of justice to victims.”

(ii) Should we not as a consequence do away the right of the accused to silence?

(iii) Should we not as a consequence abolish the right of the accused against self-incrimination?

Article 14(3) (g) guarantees an accused not to be compelled to testify against himself or to confess guilt.

If any incriminatory statement is voluntarily made by the accused in answer to the question put by a police officer, it cannot be regarded as one made under compulsion, vide AIR 1962 SC 1831, R.K. Dalmia Vs. Delhi Administration. In AIR 1965 SC 1251, State of Gujarat Vs. Shyamlal Mohanlal Choksi the Supreme Court has upheld the validity of Section 27 of the Evidence Act which renders the portion of the statement of the accused that leads to the discovery of any fact admissible in evidence.

It cannot be denied that there is no better source of information than the accused himself. The Committee was thus of the opinion that providing the Right to Silence and Right against self-incrimination block this source of information and that there should be a way to receive information from the accused without subjecting him to any duress. Professor Ingraham holds the view that common sense expects one who is accused of the crime to reply, explain, admit or exonerate himself and that this does not threaten the privilege from self-incrimination.

The committee after discussing these points in detail suggested that the rights of the accused recognized by the Supreme Court should be subject to the clarification in Chapter 4 and the manner of their protection be made statutory, incorporating the same in a schedule to the Criminal Procedure Code.

4. Rights of the accused in some other countries
(a) US
The Sixth Amendment reads as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

6th Amendment Annotations:
· Right to a Speedy and Public Trial
· Right to Trial by Impartial Jury
· Absolute Right to Counsel at Trial

(b) Canada
Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters, which are:
· Right to be informed of the offence
· Right to be tried within a reasonable time
· Right not to be compelled to be a witness
· Right to be presumed innocent
· Right not to be denied reasonable bail
· Right to trial by jury
· Right not to be found guilty unless action constituted an offence
· Right not to be tried again
· Right to lesser punishment

Rome Statute, trial rights of the accused in accordance with International Covenant on Civil and Political Rights

In accordance with Articles 9 and 14 of the International Covenant on Civil and Political Rights, both the Rome Statute and the ICC's Rules of Procedure and Evidence include measures that protect the rights of the accused at all times.

The Rome Statute specifies that the accused has the right to be present at his or her ICC trial, which, except in special circumstances, must be conducted in public:

Article 63, Trial in the presence of the accused
Article 66, Presumption of innocence
Article 67, Rights of the accused

In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:

a. To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
b. To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
c. To be tried without undue delay;
d. Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
e. To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.
f. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
g. To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the
h. Court are not in a language which the accused fully understands and speaks;
i. Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
j. To make an unsworn oral or written statement in his or her defence; and
k. Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
l. Article 74, Requirements of the decision

This article entitles the accused to reasoned judgments, which are to be provided in writing and made public.

Protection of Identity of Witnesses Vs. Rights of Accused
Amongst all these rights provided to the accused one should not forget the protection and safety of the victims and witnesses. Open trial is a universal right available to the accused. But, the legal system should also consider interests of victims and witnesses. There are two elements to be considered here. One would be rights of the accused the second would be rights of the victim and public interest.

Hence, the accused cannot be in any circumstance provided with absolute rights and reasonable restrictions can be imposed on them in order to balance other parties’ interests.

For instance, the right of the accused to examine a witness in his presence in open court cannot be provided at the risk of safety of the life or property of witnesses or those of their close relatives. Or in the cases of rape, a woman cannot be subjected to unnecessary humiliation in the name of cross-examination. There should be an apt balance of rights in the interest of fair administration of justice.

The Law Commission’s 178th report suggests that we do not have sufficient laws to protect the identity of the witness. Further, the law should also provide a procedure for a fair balance between the two aspects.

The Supreme Court also held that the procedure in the Act which denied permission to be present when the witness was cross-examined was not unreasonable.

The victim can be permitted to depose with an intervening screen or through video-link so that he need not face the accused; and the prosecution witnesses may depose by an arrangement under which the accused will not be able to see them and their identity will not be disclosed to the accused or his lawyer. In either case, the Judge will be enabled to see the victim or the prosecution witness while they are deposing.

Judicial pronouncements have suggested that the need for protection of victims and witnesses is not limited to severe offences like offences against state or rape etc but in any case where the judge has sufficient reasons to believe that the victim/witness or their relative’s life or property might be in danger.

We have discussed the various rights provided to the accused during trial in India and some other countries. The hypothesis of the paper as earlier put is that the rights provided to the accused in a criminal trial owe their existence to the Natural Justice. In conclusion, I personally believe that the hypothesis comes out to be true. One can see a hint of protection to the accused in Natural Justice.

The second element of Natural Justice i.e. both sides shall be heard, or audi alteram partem and the right of the accused to cross-examine the witnesses and his right to legal representation are comparable. Another significant right would be the ‘Rule against bias’, a person cannot be a judge in his own cause. This is an elementary Natural Justice principle which is also the right of the accused in the present day’s criminal justice system.

I do not agree with the Malimath Committee’s suggestions to do away with some of the rights of the accused which form the basic premise of the criminal justice system in India, for the simple reason that altering them would require the change in the entire system which has a foundation of more than 200 years. This in my opinion is not feasible.

Further, I believe that it is high time we have a law for the protection of witnesses and their relatives. In this respect the suggestion of the Law Commission in its 178th report should be incorporated.
Objective of the study
The objective of the paper is to examine and understand the legal rights of the accused specifically during a criminal trial under the Criminal laws and the Constitution of India also considering the scenario in some other countries.

Also, the objective is to rationally examine the relationship between rights of the accused with that of the Protection of witnesses.

Rights provided to the accused in a criminal trial owe their existence to the Natural Justice.

Methodology & Methods of study
This paper has used a blend of descriptive as well as analytical forms of writing.

Sources of Data
This paper has utilized primary sources of information in the form of statutes and case law and has also considered secondary sources of information comprising of commentaries on the Cr.P.C. as well as articles on the same.

# 1. R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow, 1998.
# Ratanlal and Dhirajlal, The Code of Criminal Procedure, Wadhwa and Co., New Delhi, 1998.
# P. Ramanatha Aiyar, Code of Criminal Procedure, Modern Publishers (India), Lucknow, 1999.
# The judge should record reasons for the same.
# Pita, (1924)47 All 147, Mohendro Nath Das Gupta, (1902) 29 Cal 387
# Nandram v. State of Madhya Pradesh, 1995 FAJ 1 (MP)
# Section 306 and 307 of CrPC being exception to this section
# http://www.mha.nic.in/pdfs/criminal_justice_system.pdf
# Former Chief Justice A.M.Ahmadi
# Brown vs. Stott 2001 (2) All ER 17 PC
# General Contractor v. Tandy Corp 737 P.2d 595 (Or.1987)
# http://www2.ohchr.org/english/law/ccpr.htm
# http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-7.pdf
# http://www.fff.org/freedom/fd0502a.asp
# http://www.charterofrights.ca/en/02_00_01
# http://www.international.gc.ca/court-cour/rights-accu-droits.aspx?lang=eng&view=d
# Gurbachan Singh’s case (sec. 27 of the Greater Bombay Police Act,1902) (1952)

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