Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY
CODE OF CRIMINAL PROCEDURE

RIGHT OF ACCUSED PERSONS

SUBMITTED TO: SUBMITTED BY:

DR. PREM K. GAUTAM ABHIJAT SINGH
ASSTT. PROF. (LAW) ENROLL. 170101002
(BALLB 5TH SEM)
 ACKNOWLEDGEMENT
Before starting this project I would like to thank my faculty, Dr. Prem Kumar Gautam for
giving me such a wonderful topic to work on. The topic was really challenging and I
was very interested in doing this project. I would also like to thank University library’s
librarian who constantly guided in choosing the appropriate books for reference and also
my friends and guardians.

Thanking You,

Abhijat Singh
INTRODUCTION
The history of crime is as old as the existence of humanity on this earth. The criminal justice
system revolves around the ‘accused’ and ‘law’ function as the means to an end called "justice".
Crime and justice are related with each other through “laws”. The criminal justice system
involve the interactional patterns among crime victim, crime reporter, police, prosecutor, courts,
defense counsel and corrections, probation and parole personnel. 1 The primitive man had not
known anything like human rights. With the dawn of civilization one might have hoped that
some respect for human rights would emerge.2

According to Austin the “Law is the command of sovereign”. Whereas according to Salmond
“Law is the body of principles recognized and applied by the State in the administration of
justice. In other words the law consists of the rules recognized and acted on by court of
justice.”3 The main characteristics which law contains are that- (a) It is a command set by a
sovereign individual backed by the requisite force so as to claim habitual obedience from the
bulk of the society; (b) that law is correlated to justice in the sense that it is only a means to an
end, the end being the administration of justice; (c) that law is uniform and is applied to all
without any distinction; (d) that these rules of law are administered by the courts; and (e) that
customary rules are also law when they are accepted by courts and incorporated in decisions.
Therefore justice has to be administered in accordance with law.

MEANING OF RIGHTS OF THE ACCUSED

The term “accused” is nowhere defined in the Code (Criminal Procedure Code) nor in the
Constitution of India.4 The word “accused” connotes a person charged with offence, when used
in terms of noun it connotes as defendant(s) in a trial. “Accused” used in the Code of Criminal

1
Clark, Robert. S, The CriminalJustice System-An Analytical Approach (1982), p. 13.
2
Diwan, Paras and Diwan Peeyushi, Human Rights and the Law, Delhi(192), p.(i).
3
Salmond, J.W., Jurispmdence, (11th Edition), p.41.
4
The term "accused of any offence" is used in Article 20(3) but it ties not been defined in the Constitution; See
Article 366 of Constitution for 'definitions'.
Procedure means an “accused person” or person accused of any offence. In every administration
of criminal justice, a trial revolves around the accused.5

The term “accused of any offence” indicate an accusation made in a criminal prosecution before
the court or a judicial tribunal where a person is charged with having committed an act which is
punishable under the Indian Penal Code, 1860 or any special or local law. In ancient times crime
was considered as a sin and people used to condemn and punish the accused with all sorts of
brutalities. During trial inquisitorial methods were used to discover the truth by applying all sorts
of torture and other inhuman methods against the dignity of human being.

Under the ancient criminal procedure which differed from modern criminal procedure, persons
after their arrest were kept in confinement more or less secret till their trials and could not
prepare for their defense as they had no information of the grounds of arrest and detention and
moreover of evidence against them. During the confinement they were subjected to cruel
treatments and tortures in order to extort admissions and confessions of guilt justifying for their
arrest.

The presumption of guilt of the accused gave rise to a number of inhuman practices like torture -
a third degree method for the extortion of confessions. Under the ancient laws torture was an
essential part of the procedure based on ordeal test similar to the presumption of guilt.

While all criminal laws define the offences and provides for punishments but no law has ever
been enacted whereby rights of the accused person facing trial are spelt out. 6 Prisoners are still
persons entitled to all Constitutional rights unless their liberty has been constitutionally curtailed
by procedure that satisfy all the requirements of due process.7 A prisoner is not wholly stripped
of constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn
between the Constitution and the prisons of this country.8 To protect a citizen's liberty includes
that an accused, thus making the right of an accused person as sacrosanct, for though accused of
5
See Abraham Verghese v. State, AIR 1965 Ker.75:1965 (2) Cr.LJ.102; Punja Mava v. State of Gujarat 1965 Guj
5;The term "accused" has been used in various sections of Cr.PC.e.g.,
Secs.207,209,228(2),299,303,310,313,315,317,363,379,390,391,428.
6
Penal laws like IPC, and other local and special laws provides for offences and punishments. Though Constitution
of India (Part III) and some provisions of CrPC provided for some procedural rights to be followed during trial but
no separate statute is available which deals exclusively with rights of accused person.
7
Justice Douglas in Eve Fall's case (1974) 417: US 817 4IL Ed. 2D 495; The observation was referred in Francis
Coralle v. Union Territory of Delhi, AIR 1981 SC 746 at p. 751.
8
Francis Coralle v. Union Territory of Delhi, AIR 1981 SC 746 at p. 751.
an offence he/she doesn’t become a non-person. As a matter of fact the law of India -
constitutional, evidentiary and procedural have made elaborate provisions for safeguarding the
“basic right of an accused” with a view to protect his dignity as a human being and giving him
benefits of a just, fair and impartial trial.

There is a presumption of innocence of the accused person till his guilt is established beyond any
shadow of doubt. Law believes that “It is better that ten guilty persons escape, than that one
innocent suffer.”9 An accused is to be presumed to be innocent unless the presumption is
rebutted.10 In a criminal trial, the presumption of innocence is a principle of cardinal importance
and so the guilt of the accused must in every case be proved beyond a reasonable doubt.
Probabilities, however strong, suspicious and grave, can never take place of proof. 11 The surest
and quickest way to reduce crime and achieve a more humane and enlightened penal system is to
increase the likelihood that the guilty will be convicted. The object is to list out the rights
available to accused under Indian Constitution i.e. Part-Ill, fundamental rights, Part - IV
Directive Principles of State Policy and provisions relating to bail and legal aid under Cr.PC.

Accused persons or under trials sometimes suffer at the hands of jail authorities and remain in
illegal detention for years without any valid authority 12 or when barbaric crimes are committed in
custody for blinding of prisoners or illegally detained by the police. The National Human Rights
Commission has been active in safeguarding rights and liberties of people and have awarded
compensation in number of cases. The Supreme Court and various High Courts through number
of judgments have issued directions to ensure that there are no excesses by police during
interrogation and relatives of detained person are aware of whereabouts of the person. The
Supreme Court has rightly observed in Sunil Batra's case that “Natural law or Dharma
commands humane treatment even to those in prison. Prisons are built with stones of law and so
it behooves the court to insist that, in the eye of law prisoners are persons, not animals, and
punish the deviant 'guardians' of the prison system where they go berserk and defile the dignity
of human inmate.

9
Blackstone, William Sir, (1723-80), Commentaries on the Laws of England, 15*' Edn. 1809, Vol. 4, p.358.
10
Kaliram v. State of HP, AIR 1973 SC 277; Santa Ram v. State, AIR 1962 SC 605; also see K.
N. Nanavati v. State of Maharashtra, AIR 1962 SC 605.
11
Babu Singh v. State of Punjab 1964 (1) Cr L J 566; State of Punjab v. Bhajan Singh, 1975 Cr.L. J. 282; Sharda
v. State of Maharashtra, AIR 1984 SC 1622
12
See Rudal Sah v. State of Bihar, AIR 1983 SC 1086; Sant Bir v. State of Bihar, AIR 1982 SC 1470.
RIGHTS OF THE ACCUSED
ADVERSARY TRIAL SYSTEM:

The system adopted by the Criminal Procedure Code, 1973 is the adversary system based on the
accusatorial method. In adversarial system responsibility for the production of evidence is placed
on the prosecution with the judge acting as a neutral referee. This system of criminal trial
assumes that the state, on one hand, by using its investigative agencies and government counsels
will prosecute the wrongdoer who, on the other hand, will also take recourse of best counsels to
challenge and counter the evidences of the prosecution.

Supreme Court has observed “if a Criminal Court is to be an effective instrument in dispensing
justice, the presiding judge must cease to be a spectator and a mere recording machine. He must
become a participant in the trial by evincing intelligent active interest.”13

In Himanshu Singh Sabharwa v. State of M.P. and Ors.14, the apex court observed that if fair
trial envisaged under the Code is not imparted to the parties and court has reasons to believe that
prosecuting agency or prosecutor is not acting in the requisite manner the court can exercise its
power under Section 311 of the Code or under Section 165 of the Indian Evidence Act, 1872 to
call in for the material witness and procure the relevant documents so as to sub serve the cause of
justice.

PRESUMPTION OF INNOCENCE:

Every criminal trial begins with the presumption of innocence in favor of the accused. The
burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of
that burden, the courts cannot record a finding of the guilt of the accused. This presumption is
seen to flow from the Latin legal principle ei incumbit probatio qui dicit, non qui negat, that
is, the burden of proof rests on who asserts, not on who denies.

13
Ram Chander v. State of Haryana, (1981) 3 SCC 191
14
MANU/SC/1193/2008.
In State of U.P. v. Naresh and Ors.15 the Supreme Court observed “every accused is presumed to
be innocent unless his guilt is proved. The presumption of innocence is a human right subject to
the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”

In Kali Ram v. State of H.P.16 the Supreme Court observed “it is no doubt that wrongful
acquittals are undesirable and shake the confidence of the people in the judicial system, much
worse; however is the wrongful conviction of an innocent person. The consequences of the
conviction of an innocent person are far more serious and its reverberations cannot be felt in a
civilized society.”

It is the duty of the prosecutor and defense counsel as well as all public authorities involved in a
case to maintain the presumption of innocence by refraining from pre-judging the outcome of the
trial.

INDEPENDENT, IMPARTIAL AND COMPETENT JUDGES:

In a criminal trial, as the state is the prosecuting party and the police is also an agency of the
state, it is important that the judiciary is unchained of all suspicion of executive influence and
control, direct or indirect. The whole burden of fair and impartial trial thus rests on the shoulders
of the judiciary in India.

The primary principle is that no man shall be judge in his own cause. Section 479 of the Code,
prohibits trial of a case by a judge or magistrate in which he is a party or otherwise personally
interested. This disqualification can be removed by obtaining the permission of the appellate
court.

In Shyam Singh v. State of Rajasthan 17, the court observed that the question is not whether a
bias has actually affected the judgement. The real test is whether there exists a circumstance
according to which a litigant could reasonably apprehend that a bias attributable to a judicial
officer must have operated against him in the final decision of the case.

15
(2001) 4 SCC 324
16
(1973) 2 SCC 808
17
1973 Cri LJ 441, 443, (Raj.)
In this regard Section 6 of the Code is relevant which separates courts of Executive Magistrates
from the courts of Judicial Magistrates. Article 50 of the Indian Constitution also imposes
similar duty on the state to take steps to separate the judiciary from the executive.

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 Cr. P.C.

In Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao18the Supreme Court observed that
Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of
the Constitution only states that ‘no one can be prosecuted and punished for the same offence
more than once’, Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the
same offence or even for a different offence but on the same facts. In the present case, although
the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies.
Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C.
The impugned judgment of the High Court was set aside.

KNOWLEDGE OF THE ACCUSATION:

The Code provides in Section 228, 240, 246, 251 in plain words that when an accused person is
brought before the court for trial, the particulars of the offense of which he is accused shall be
stated to him.

In case of serious offenses, the court is required to frame in writing a formal charge and then
read and explain the charge to the accused person. A charge is not an accusation in abstract, but
a concrete accusation of an offense alleged to have been committed by a person. The right to
have precise and specific accusation is contained in Section 211, Cr. P.C.

RIGHT TO OPEN TRIAL:

The right to a public hearing means that the hearing should as a rule is conducted orally and
publicly, without a specific request by the parties to that effect. A judgment is considered to have

18
(2011) 2 SCC 703
been made public either when it was orally pronounced in court or when it was published, or
when it was made public by a combination of those methods.

Section 327 of the Code makes provision for open courts for public hearing but it also gives
discretion to the presiding judge or magistrate that if he thinks fit, he can deny the access of the
public generally or any particular person to the court during disclosure of indecent matter or
when there is likelihood of a disturbance or for any other reasonable cause.

In the case of Naresh Sridhar Mirajkar v. State of Maharashtra 19 the apex court observed that
the right to open trial must not be denied except in exceptional circumstances. High court has
inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part
of its proceedings.

In State of Punjab v. Gurmit20, the court held that the undue publicity is evidently harmful to the
unfortunate women victims of rape and such other sexual offenses. Such publicity would mar
their future in many ways and may make their life miserable in society. Section 327(2) provides
that the inquiry into and trial of rape or an offense under Section 376, 376-A, 376-B, 376-C or
376-D of the Indian Penal Code shall be conducted in camera.

AID OF COUNSEL:

In India, right to counsel is recognized as fundamental right of an arrested person under Article
22(1) which provides, inter alia, no person shall be denied the right to consult, and to be
defended by, a legal practitioner of his choice. Sections 303 and 304 of the Code are
manifestation of this constitutional mandate.

In Khatri v. State of Bihar21 the court held that the accused is entitled to free legal services not
only at the stage of trial but also when first produced before the Magistrate and also when
remanded.

Further, Article 39-A was also inserted in the Constitution as per the 42nd Amendment, 1976,
which requires that the state should pass suitable legislation for promoting and providing free

19
AIR 1967 SC 1
20
(1996) 2 SCC (Cri) 316
21
(1981) 2 SCC 493
legal aid. To fulfill this Parliament enacted Legal Services Authorities Act, 1987. Section 12 of
the Act provides legal services to the persons specified in it.

In Suk Das and Ors. v. Union Territory of Arunachal Pradesh 22, the court strengthened the
need for legal aid and held that “free legal assistance at state cost is a fundamental right of a
person accused of an offense which may involve jeopardy to his life or personal liberty. The
exercise of this fundamental right is not conditional upon the accused applying for free legal
assistance so that if he does not make an application for free legal assistance the trial may
lawfully proceed without adequate legal representation being afforded to him. On the other hand,
the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to
inform the accused that if he is unable to engage the services of a lawyer on account of poverty is
entitled to obtain free legal services at the cost of the State.

In Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi 23 the appellant an illiterate
foreign national was tried, convicted and sentenced to death by the trial court without assignment
of counsel for his defense. Such a result is confirmed by the High Court. The convict is charged,
convicted and sentenced under Sections 302/307 of Indian Penal Code and also under Section
3 of The Explosive Substances Act, 1908. Fifty-six witnesses and investigating officer were
examined without appellant having a counsel and none were cross-examined by appellant. Only
one witness cross-examined to complete the formality.

Therefore it was held that every person has a right to have a fair trial. A person accused of
serious charges must not be denied of this valuable right. Appellant was provided with legal
aid/counsel at the last stage which amounted to a denial of effective and substantial aid. Hence
the appellant’s conviction and sentence was set aside. Section 304 does not confer any right
upon the accused to have a pleader of his own choice for his defense at State expenses. If,
however. He objects to the lawyer assigned to him, he must be left to defend himself at his own
expense.

EXPEDITIOUS TRIAL:

22
(1986) SCC 401
23
Criminal Appeal No. 1091 of 2006
Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed justice leads
to unnecessary harassment. The concept of speedy trial is an integral part of Article 21 of the
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.

Section 309(1) provides “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.”24

In Hussainara Khatoon (IV) v. State of Bihar 25 the Supreme Court declared that speedy trial is
an essential ingredient of ‘reasonable just and fair’ procedure guaranteed by Article 21 and it is
the constitutional obligation of the state to set up such a procedure as would ensure speedy trial
to the accused. The state cannot avoid its constitutional obligation by pleading financial or
administrative inadequacy.

The Supreme Court in A.R. Antulay v. R.S. Nayak 26 issued guidelines for the time period during
which different classes of cases are to be concluded. It was held “it is neither advisable nor
feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. While
determining the alleged delay, the court has to decide each case on its facts having regard to all
attending circumstances including nature of offence, number of accused and witnesses, the
workload of the court concerned, prevailing local conditions etc.- what is called systematic
delay.” The aforesaid decision came up for consideration in the case of P. Ramachandra Rao27
and was upheld and reaffirmed.

In Ranjan Dwivedi v. C.B.I Tr.Director General28 the accused was tried for the assassination of
Shri. L.N. Mishra, the then Union Railway Minister. The trial was pending for the past 37 years.
In view of delay in completion of trial for more than 37 years from date of the trial the

24
As provided under section 309(1) of the Criminal Procedure Code, 1973
25
(1980) 1 SCC 98 at 107
26
AIR 1992 SC 1701
27
(2002) 4 SCC 578
28
(2012) 8 SCC 495
Petitioners presented Writ Petitions praying for quashing of the charges and trial. But it was held
that the trial cannot be terminated merely on the ground of delay without considering the reasons
thereof. Hence the petition was dismissed.

PROTECTION AGAINST ILLEGAL ARREST:

Section 50 provides that any person arrested without warrant shall immediately be informed of
the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick
to see the possibility of crime, but they ought to be anxious to avoid mistaking the innocent for
the guilty. The burden is on the police officer to satisfy the court before which the arrest is
challenged that he had reasonable grounds of suspicion.

In Pranab Chatterjee v. State of Bihar29 the court held that Section 50 is mandatory. If
particulars of offence are not communicated to an arrested person, his arrest and detention are
illegal. The grounds can be communicated orally or even impliedly by conduct.

Section 57 of Cr.P.C. and Article 22(2) of Constitution provides that a person arrested must be
produced before a Judicial Magistrate within 24 hours of arrest. In State of Punjab v. Ajaib
Singh30 the court held that arrest without warrant call for greater protection and production
within 24 hours ensures the immediate application of judicial mind to the legality of the arrest.

The decisions of the Supreme Court in Joginder Kumar v. State of Uttar Pradesh 31 and D.K.
Basu v. State of West Bengal32, were enacted in Section 50-A making it obligatory on the part of
the police officer to inform the friend or relative of the arrested person about his arrest and also
to make an entry in the register maintained by the police. This was done to ensure transparency
and accountability in arrest. Sec.160 of Cr. P.C provides that investigation by any police officer
of any male below 15 years or any woman can be made only at the place of their residence.
Section 46(4) provides that no woman shall be arrested after sunset and before sunrise, save in
exceptional circumstances and where such exceptional circumstances exist, the woman
police officer shall, by making a written report, obtain the prior permission of the Judicial

29
(1970) 3 SCC 926
30
AIR 1953 SC 10
31
1994 SCC (4) 260
32
1997 (1) SCC 416
Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest
is to be made.

PROCEEDINGS IN THE PRESENCE OF THE ACCUSED:

It is necessary that all proceedings related to the case should take place in the presence of the
accused or his counsel. The underlying principle behind this is that in a criminal trial the court
should not proceed ex parte against the accused person. It is also necessary for the reason that it
facilitates the accused to understand properly the prosecution case and to know the witnesses
against him so that he can prepare his defense.

The Code does not explicitly provide for mandatory presence of the accused in the trial as
Section 317 provides that a magistrate may dispense with the attendance and proceed with the
trial if personal presence of the accused is not necessary in the interests of justice or that the
accused persistently disturbs the proceedings in court. The courts should insist upon the
appearance of the accused only when it is in his interest to appear or when the court feels that his
presence is necessary for effective disposal of the case. Court should see that undue harassment
is not caused to the accused appearing before them. Section 273 of the Code provides that all
evidence taken in the course of the trial shall be taken in the presence of the accused or if the
personal attendance of the accused is dispensed with then the evidence shall be taken in the
presence of his pleader.

For fair trial, the accused person has to be given full opportunity to defend himself. This is
possible only when he should be supplied with the copies of the charge sheet, all necessary
documents pertaining to the investigation and the statements of the witnesses called by the police
during investigation. Section 238 makes it obligatory on the Magistrate to supply copies of these
documents to the accused free of cost.

Article 14 of the Constitution ensures that the parties be equally treated with respect to the
introduction of evidences by means of interrogation of witnesses. The prosecution must inform
the defense of the witnesses it intends to call at trial within a reasonable time prior to the trial so
that the defendant may have sufficient time to prepare his/her defense. In fairness to the accused,
he or his counsel must be given full opportunity to cross-examine the prosecution witness.
In Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi 33 it was held that every
person has a right to have a fair trial. A person accused of serious charges must not be denied of
this valuable right. Appellant was not provided an opportunity to cross-examine the fifty-six
witnesses. Only one witness was cross-examined to complete the formality. Hence appellant’s
conviction and sentence was set aside.

In Badri v. State of Rajasthan34, the court held that where a prosecution witness was not allowed
to be cross-examined by the defense on a material point with reference to his earlier statement
made before the police, his evidence stands untested by cross-examination and cannot be
accepted as corroborating his previous statement.

RIGHT TO BAIL:

By virtue of Section 436 the accused can claim bail as a matter of right in cases which have been
shown as bailable offenses in the First Schedule to the Code. Bail is basically release from
restraint, more particularly, release from custody of the police. An order of bail gives back to the
accused freedom of his movement on condition that he will appear to take his trial. If the offense
is bailable, bail will be granted without more ado. But bail under Section 389(1) after conviction
is not a matter of right whether the offense is bailable or non-bailable. 35 If no charge -sheet is
filed before the expiry of 60/90 days as the case may be; the accused in custody has a right to be
released on bail. In non-bailable offenses, the Magistrate has the power to release on bail without
notice to the other side if charge sheet is not filed within a period of sixty days. The provision of
bail to women, sick and old age persons is given priority subject to the nature of the offense.

PROHIBITION ON DOUBLE JEOPARDY:

The concept of double jeopardy is based on the doctrine of ‘autrefois acquit’ and ‘autrefois
convict’ which mean that if a person is tried and acquitted or convicted of an offense he cannot
be tried again for the same offense or on the same facts for any other offense. This clause
embodies the common law rule of nemo debet vis vexari which means that no man should be put
twice in peril for the same offense.

33
Criminal Appeal No. 1091 of 2006
34
AIR 1976 SC 560
35
Shambhu v. State, AIR 1956 All 633
Section 300 of the Code provides that persons once convicted or acquitted not to be tried for the
same offense or on the same facts for any other offense. Plea of double jeopardy is not applicable
in case the proceedings for which the accused is being tried are distinct and separate from the
offense for which the accused has already been tried and convicted.

In S.A. Venkataraman v. Union of India 36 the appellant was dismissed from service as a result
of an inquiry under the Public Servants (Inquiries) Act, 1960, after the proceedings were before
the Enquiry Commissioner. Thereafter, he was prosecuted before the Court for having committed
offenses under the Indian Penal Code, and the Prevention of Corruption Act. The Supreme Court
held that the proceeding taken before the Enquiry Commissioner did not amount to a prosecution
for an offense. It was in the nature of a fact-finding to advise the Government for disciplinary
action against the appellant. It cannot be said that the person has been prosecuted.

In Leo Roy Frey v. Superintendent, District Jail 37, the accused was prosecuted and punished
under the Sea Customs Act, 1878. Later on, he was prosecuted under Section 120 of the Indian
Penal Code, 1860 for conspiracy to commit the act for which he was already convicted under
the Sea Customs Act, 1878. It was held that the second prosecution was not barred by Article
20(2), since it was not for the same offense. Committing an offense and conspiracy to commit
that offense has been held to be two distinct offences.

RIGHT AGAINST SELF-INCRIMINATION:

Clause (3) of Article 20 provides: “No person accused of any offence shall be compelled to be a
witness against himself.” This Clause is based on the maxim nemo tenetur prodere accussare
seipsum, which means that “no man is bound to accuse himself.

In State of Bombay v. Kathi Kalu38, the Supreme Court held that “to be a witness” is not
equivalent to “furnishing evidence”. Self-incrimination must mean conveying information based
upon the personal knowledge of the person giving the information and cannot include merely the
mechanical process of producing documents in Court which may throw a light on any of the
points in the controversy, but which do not contain any statement of the accused based on his
personal knowledge. Compulsion means duress which includes threatening, beating or

36
AIR 1954 SC 375
37
AIR 1958 SC 119
38
AIR 1961 SC 1808
imprisoning the wife, parent or child of a person. Thus where the accused makes a confession
without any inducement, threat or promise Article 20(3) does not apply.

The Apex Court in Selvi v. State of Karnataka39 drew following conclusions:

The taking and retention of DNA samples which are in the nature of physical evidence, does not
face constitutional hurdles in the Indian context.

Subjecting person to narco-analysis, Polygraph and Brain fingerprinting tests involuntarily,

amounts to forcible interference with person’s mental processes, and hence violates the right of
privacy as well as Article 20(3).

A person administered the narco-analysis technique is encouraged to speak in a drug-induced

State and there is no reason why such an act should be treated any differently from verbal
answers during an ordinary interrogation.

In Dinesh Dalmia v. State of Madras40, the court held that the scientific tests resorted to by the
investigating does not amount to testimonial compulsion. Hence, the petition was dismissed.

.LAWFUL PUNISHMENT:

Article 20(1) explains that a person can be convicted of an offense only if that act is made
punishable by a law in force. It gives constitutional recognition to the rule that no one can be
convicted except for the violation of a law in force. In Om Prakash v. State of Uttar Pradesh 41,
offering bribe was not an offense in 1948. Section 3 of the Criminal Law (Amendment) Act,
1952 inserted Section 165A in the Indian Penal Code, 1860, declaring offering bribe as
punishable. It was held that the accused could not be punished under Section 165A for offering
bribe in 1948. Article 20(1) provides that no person shall 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
offense. It prohibits the enhancement of punishment for an offense retrospectively. But article
20(1) has no application to cases of preventive detention.42

RIGHT TO HUMAN TREATMENT:

39
AIR 2010 SC 1974
40
2006 Cr. LJ V-3, 2401
41
AIR 1957 All 388
42
Prahlad Krishna v. State of Bombay AIR 1955 Bom 1
A prisoner does not become a non-person. Prison deprives liberty. Even while doing this, prison
system must aim at reformation. In prison, treatment must be geared to psychic healing, release
of stress, restoration of self-respect apart from training to adapt oneself to the life outside. 43
Every prisoner has the right to a clean and sanitized environment in the jail, right to be medically
examined by the medical officer, right to visit and access by family members, etc. Recognizing
the right to medical facilities, the National Human Rights Commission recommended the award
Rs. 1 Lakh to be paid as compensation by the Govt. of Maharashtra to the dependents of an
under trial prisoner who died in the Nasik Road Prison due to lack of medical treatment.44

RIGHT TO FILE APPEAL:

Section 389(1) empowers the appellate court to suspend execution of sentence, or when the
convicted person I in confinement, to grant bail pending any appeal to it. Court need not give
notice to the public prosecutor before suspending sentence or releasing on bail. Existence of an
appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of
right irrespective of whether the offence is bailable or non-bailable and should be allowed only
when after reading the judgement and hearing the accused it is considered justified.45

PROPER EXECUTION OF SENTENCE:

The hanging of Afzal Guru was criticized by human rights activists, legal experts all over the
country. In carrying out Afzal Guru’s death sentence, the government deliberately ignored the
view of the Supreme Court and courts across the world that hanging a person after holding him
in custody for years is inhuman. Mohammad Afzal Guru was convicted by Indian court for the
December 2001 attack on the Indian Parliament, and sentenced to death in 2003 and his appeal
was rejected by the Supreme Court of India in 2005. The sentence was scheduled to be carried
out on 20 October 2006, but Guru was given a stay of execution after protests in Jammu and
Kashmir and remained on death row. On 3 February 2013, his mercy petition was rejected by the
President of India, Pranab Mukherjee. He was secretly hanged at Delhi’s Tihar Jail around on 9
February 2013.

43
Phul Singh v. State of Haryana, (1979) 4 SCC 413
44
NHRC News Letter, September, 1999
45
Section 436 of Cr. P.C.
Conclusion
The judge is not to draw any inferences against the defendant from the fact that he has been
charged with a crime and is present in court and represented by a counsel. He must decide the
case solely on the evidence presented during the trial. State of U.P. v. Naresh and Ors, in this
case it was held that the law in this regard is well settled that while dealing with a judgment of
acquittal, an appellate court must consider the entire evidence on record so as to arrive at a
finding as to whether the views of the trial court were perverse or otherwise unsustainable.

Bibliography
 Various websites
 Code of Criminal Procedure Bare Act
 Lectures on Criminal Procedure - R. V. Kelkar