Rights of the accused and collection of evidence

Question What are the rights that a person who has been accused of a crime?

The term “accused” itself has not been defined anywhere in the Criminal Procedure but
generally definition that has been understood and taken as the actual meaning or the
definition of the word has been that it refers to any person charged with an infringement of
the law for which he is liable and if convicted then to be punished. In other words, a person
who is charged with the commission of offence. An offence could be defined as any act or
omission made punishable by law for the time being in force. An accused is not on a similar
footing as a convicted person but rather on a similar footing with an ordinary citizen of the
country who has not been with any offence which is listed as a crime. Thus, the accused
person has every right like other citizen of the country except his curtailment of person
liberty in conformity with laws. The basic difference is that an accusation has been made
against the accused person for violation of law or offence prevalent in the country. In the Bill
of rights Ordinance ,1991 affirms that every accused has a right to be presumed innocent until
his guilt is proven. The implication of Article 21 of the constitution being that a person could
only be deprived of liberty only in accordance with procedure established by law. Article 221
of the constitution gives three basic right available to every citizen with respect to arrest: -

1. The right to be told or informed the reasons for the arrest as soon as an arrest is made.

2. The right to be produced before a Magistrate within 24 hours.
3. The right to be defended by an advocate of his choice.

Other than these basic rights there are various other right available to an accused through the
constitution and various other legislations they are: -
1. Right against wrongful arrests

Any wrongful detention is illegal under the law. The accused is afforded all the right
against such detentions and arrests. These rights are provided through section 57 2 of
the CrPC as well as article 22 of the constitution.

2. Right of privacy and protection against unlawful search.

1
Constitution Of INDIA, 1950
2
Code Of Criminal Procedure, 1973
 Article 21 of the constitution guarantees the right to life of every citizen no person
should be deprived of his/her personal life and liberty except if according to the
procedure of law. The rights to privacy are also included in this. The accused person
does not lose this right even after its arrest if the Police are required to conduct a
search in the house of the accused person, they have to get a search warrant issued
according to the procedure prescribed by the Law.

3. Right against self-incrimination

The right against self-incrimination which is provided under Section 161(2) of the
Criminal Procedure Code, 1973 and Article 20 clause 3 of the Constitution of India.
An accused person cannot be force to give statements or answers which may
incriminate him.

4. Right against Double Jeopardy

A person cannot be tried for the same crime twice. This has been provided in the right
provided by Art 20(2) of the constitution of India.

5. Right against the ex-post-facto law or retrospective effect of law.

No person can be charged with the violation of law which did not exist at the time of
commission of the said act. In India, a person has a right against this type of effect of
law. Under the constitution of India Art 20 clause 1 reads as follow:

“No person shall be convicted of any offence except for violation of the 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 offence3”

6. Right to bail
Criminal law provides an accused person who is arrested for an offence which he may
or may not have committed as a right to be granted bail and be released from judicial
custody if the offence committed by them fall under the category of bailable offence.

7. Right to Legal Aid

3
Constitution Of INDIA, 1950
 The state has a duty to provide legal aid to anyone who cannot or is unable to afford
legal representation as per section 304 of the criminal procedure code.

With regard to collection of evidence

Section 273 states that Evidence to be taken in presence of accused “This section
makes it obligatory that evidence for the prosecution and defence should be taken in
the presence of the accused. A trial is vitiated by failure to examine the witnesses in
the presence of the accused”4. Section 273, under its latter part, also provides for a
situation in which evidence could be recorded in the absence of the accused, when it
says "when his personal attendance is dispensed with, in the presence of his pleader".
The rule enacted in this section makes it imperative that all evidence in an inquiry or
trial shall be taken in the presence of the accused.

Case Law

State of Maharashtra v. Praful B. Desai (2003 SC)5.

In this case Supreme Court allowed “Video Conferencing” and held that “Video
Conferencing” comes under evidence as defined under section 3 of Indian Evidence
Act, 1872 which includes electronic evidence.

The Supreme Court has held that recording of evidence by conferencing is

permissible. The evidence so recorded would fully meet the requirement of section
273. It would be as per procedure established by law. The term "presence" in the
section does not mean actual physical presence in the court so as to meet the
requirement that evidence must be recorded in the presence of the accused.

This is actual reality. Evidence through “Video Conferencing” shall be treated in

presence of accused. Recording of evidence by video-conferencing also satisfies the
object of providing, in Section 273, that evidence be recorded in the presence of the
accused. There are two types of presence namely
4
B Singh v State of Orissa, 1990 Cr LJ 397 (Ori)
5
State of Maharashtra v Dr Praful B Desai, 2003 Cr LJ 2033 : AIR 2003 SC 2053 : (2003) 4 SCC 601 .
 (1) Physical Presence and
(2) Constructive presence.
Presence of pleader or presence through video conferencing will come in
‘Constructive Presence’.