According to the adversarial system, the prosecutor representing the state accuses the defendant of the commission of some crime, and the law requires him to prove his case beyond a reasonable doubt. The law also provides a fair opportunity to the accused person to defend himself. Thus, both parties are allowed to plead their cases, and put forward their arguments, rebuttals, etc. with the help of evidence and counter-evidence. The rights, interests, and needs of victims and accused must be balanced in an adversarial legal system. Both parties have various rights under Indian law that protect their interests. The Indian legislation and judicial system is continuously striving to achieve a balance between the rights of the accused and the rights of the victim.
Who is an Accused?
The term “accused” is not defined in any statute or law but generally refers to any person who has been arrested for or formally charged with a crime. According to the “Black Law Dictionary,” an Accused is a person who has been blamed for wrongdoing, especially a person who has been subjected to actual restraints on liberty through an arrest or a person against whom a formal indictment or information has been returned. An accused cannot be on the same level as a convicted person. Thus, the accused individual enjoys the same rights as any other citizen of the country, with the exception of his restriction of personal liberty under the law.
Indian Legislation & Rights of an Accused
The Indian legal system is based on the principle of innocence until proven guilty ie. the accused person is presumed to be innocent unless his guilt is proved beyond a reasonable doubt in court. Thus, the accused has the same rights as other persons which includes all persons of India irrespective of their nationality, religion, or caste in the country, with the exception of his restriction of personal liberty under the law. To ensure that the same is implemented, certain provisions have been incorporated into various legislations and acts to protect the rights of the accused. They are:
- The Constitution of India, 1950
- The code of Criminal Procedure, 1973
- The Indian Evidence Act, 1872
The Constitution of India, 1950
Part III of the constitution of India guarantees Fundamental Rights to the citizens and some of these fundamental rights are also available to the accused person. The following safeguards provided in the constitution are:
- Ex-post-facto law – Article 20(1):
This article states that “no person shall be convicted of any offence except for the violation of ‘law in force at the time of the commission of the act as an offence”. It simply means that if an act is not an offence at the time of its commission it cannot be an offence at the date after its commission. This prohibits the legislature to make retrospective criminal laws. However, Protection under this law is vested only for criminal offences not for civil offences.
- Right against “Double Jeopardy” – Article 20(2):
Under Article 20(2), no person shall be prosecuted and punished for the same offence more than once. According to this article, 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. As a result, it protects the accused’s interests from facing multiple punishments or criminal proceedings for the same offence.
- Immunity from Self Incrimination – Article 20(3):
Clause (3) of Article 20 of The Indian Constitution provides that “no person accused of any offence shall be compelled to be a witness against himself”. This right embodies the following essentials :
It is a right of 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 the State of Bombay v. KathiKaluOghad, the court held that the thumb impression, writing specimen, and signatures cannot be counted as “witnesses.” The accused cannot refuse the same and Article 20 (3) does not apply in these circumstances.
- Right against Handcuffing:
In relation to human rights, handcuffing an accused violates Article 21 of the constitution, i.e. the right to life and liberty. Handcuffing an accused person is only permitted in exceptional circumstances.
In Prem Shankar Shukla vs Delhi Administration, it was clarified that the handcuffing of prisoners is inhuman and treating them like animals what we call as inflicting the use of chairs or irons and it is violative of Article 21 of the Constitution of India and thus the apex court ruled that handcuffing is not permitted.
Code of Criminal Procedure, 1973
The Criminal Procedure Code of 1973 provides certain rights and safeguards to the accused person that is required for a just and fair trial and treatment.
- Right to know the grounds of arrest – Section 50(1):
Section 50(1) of Cr. P.C deals with this right, that no one can be detained in custody without being informed of the grounds of such arrest. He can move to the proper court for bail or make arrangements for his defense if he is given timely information about the reasons for his arrest.
- Evidence to be taken in presence of Accused – Section 273:
With few exceptions, all evidence taken during the course of the trial shall be taken in the presence of the accused or in the presence of his pleader when his personal attendance is dismissed. A trial in which the evidence has not been taken in presence of the accused is illegal.
In State of Maharashtra V. Praful Desai, it was held that as long as the accused or his pleader is present when evidence is recorded by video conferencing that evidence is being recorded in the “presence” of the accused and would fully meet the requirements of section 273.
- Right to Bail – Sec 436-439:
Sections 436-439 of the CrPC. deal with bail. Bail is offered for both bailable and non-bailable offences. In bailable offences, the accused has the right to seek bail, and the court or police officer is obligated to release him; there is no question of discretion in granting bail in such offences. Also, Section 50(2) of the CrPC requires the officer making the arrest to inform the arrested person of his right to bail.
- Right to have a speedy trial:
The CrPC provides for speedy disposal of all cases. It says that the trial should not be unnecessarily delayed. There is a provision of bail if the trial is not completed within 60 days from the first date of hearing the evidence. Section 309(1) provides that in every inquiry or trial, the proceedings shall be held as expeditiously as possible and once the examination of witnesses has begun, it shall be continued, from day to day until all the witnesses have been duly examined.
- Right to be defended by pleader & legal aid at state expense – Sec 303-304:
Section 303 of the code provides that any person accused of an offence before a criminal court, or against whom proceedings are instituted has a right to be defended by a pleader. The right to consult a lawyer for the purpose of defense begins from the time of arrest of the accused person.
The right to be defended by a legal practitioner of his choice would however of no use if the accused due to poverty or indigent conditions has no means to engage a counsel for his defence. Therefore Section 304 enables the session court to assign a pleader for the accused at the expense of the state provided he is unrepresented and the court is satisfied that he has no sufficient means to engage a pleader.
In Khatri v. State of Bihar, the apex court clarified that the state cannot avoid its constitutional obligation to provide free legal services to an indigent accused person by pleading financial or administrative inability.
Indian Evidence Act, 1872
- Right of Accused related to the confession of a crime:
If the accused confessed his guilt on his record it can be treated as effective evidence of his guilt with certain limitations which are mentioned in Sec 24-26. The confession of an accused is relevant only against himself, subject to section 30.
In Ajay Singh V. State of Maharashtra, the apex court reiterated that confession is a statement made by an accused who must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence.
- Privilege Communication:
Section 126 states the communication between the accused and his lawyer under the circumstances are privileged and confidential.
Who is a Victim?
“Victim” is defined under section 2(a) by the CrPC (amendment) act, 2008. It means a person who has suffered any loss or injury caused because of the act or omission for which the accused person has been charged. This expression includes his/her guardian or legal heir. It is of the utmost importance that the victim must be kept informed at all stages of the process from the police level to the trial level.
Indian Legislation & Rights of a Victim
For a long period in India, the trial courts have ignored certain legislative measures for compensating victims. The trial court’s primary concern is the conviction or acquittal of the accused. However, during the last three decades in India, the courts have stepped up to safeguard the rights of crime victims. There are several articles in the Indian Constitution as well as Statutory provisions in the Code of Criminal Procedure 1973 and Evidence Act, 1872 to safeguard victims’ rights and offer monetary compensation, such as :
- Right of fair trial:
A victim of a crime has the same right to a fair investigation under Article 21 of the constitution. The Supreme Court remarked inNirmal Singh Kahilon vs. State of Punjab that the right to a fair investigation and trial applies to both the accused and the victim, and that such a right to a victim is granted in Article 21 of the Indian Constitution.
- Order to pay compensation – Section 357, CrPC:
A victim of a crime suffers not only bodily or mental harm but also financial damages. The criminal court’s function is to punish the wrongdoer, but the civil court’s function is to make the wrongdoer compensate for the loss or harm caused to the aggrieved party.
The court concluded in Manish Jain v. State of Karnataka that the level of compensation must be calculated by taking into account the nature of the crime, the harm incurred, and the convict’s ability to pay the compensation. However, the compensation must be reasonable and affordable to the individual in question.
- Victim Compensation Scheme – Section 357A, CrPC:
The CrPC (Amendment) Act of 2008 inserts this new Section 357A to provide for the state government to prepare, in collaboration with the Central Government, a scheme known as the “victim compensation scheme” to compensate the victim or his dependents who have suffered loss or injury as a result of the crime. The compensation provided by the state government under Section 357A is in addition to the victim’s payment of a fine under Sections 326A or 376D of the IPC.
- Treatment of victim – Section 357C, CrPC:
This section states that all hospitals, whether run by the central government, state governments, local governments, or any other person, must immediately provide free first-aid or medical treatment to victims of any offence covered by certain IPC sections and must immediately notify the police of such incident.
- Section 9 of Evidence Act, 1872 states that after filing a complaint and taking cognizance of the case by the Magistrate, the victim thereafter does not participate in the investigation except by being called to confirm the identity of the accused or the material objects, if any, recovered during the course of the investigation
Despite numerous legislation and international treaties, it is unfortunate that victim’s rights go overlooked by both the government and the judiciary. Although the judiciary has taken on the majority of the work of protecting victim rights in the form of victim compensation, it is important to underline that there is no effective or restorative justice for victims. Victim’s opinions and desires are neglected. In 2003, Malimath Committee made recommendations to improve the position of victims of crime. Some of the significant recommendations include :
- The victim, or, if he or she is deceased, his or her legal representative, has the right to be impleaded as a party in any criminal process in which the offence is punished by seven years in prison or more.
- In some situations, with the court’s approval, a recognized voluntary organization may also intervene in court proceedings.
- The victim has the right to be represented by an advocate, who must be given at the expense of the State if the victim cannot afford one.
- The victim’s right to participate in a criminal trial shall include the following: the right to produce evidence; the right to question witnesses; the right to be informed of the status of the investigation and to move the court to issue directions for further investigation; the right to be heard on issues relating to bail and withdrawal of prosecution, and the right to advance arguments after the prosecutor’s arguments are submitted.
- The right to file an appeal against any unfavourable ruling acquitting the accused, convicted for a lesser offence, inflicting an insufficient term, or awarding insufficient compensation.
- Victim’s legal services may be expanded to include psychological and medical assistance, interim compensation, and protection against subsequent victimization.
Law and order are considered the primary duty of the State. Every citizen, in a welfare state, is expected to have his or her basic human rights including the accused and victim. However, these rights and interests may conflict with each other sometimes. Every criminal trial in India begins with the presumption of innocence in favor of the accused, however, at the same time, victims have endured irreparable losses and injury as a result of the crime. The impact of crime on them is diverse and complicated and the current protection in the criminal laws is insufficient for them, the Government of India and the State Governments should adopt certain special legislation for victims of crime. A shift in emphasis from criminal justice to victim justice is also necessary, but victim justice should be seen as an addition to, not a substitute for, criminal justice.