AN ARTICLE ON RIGHT OF ACCUSED UNDER Cr.P.C.

AN ARTICLE ON RIGHT OF ACCUSED UNDER Cr.P.C.


ACCUSED UNDER RULE OF LAW

    State and for that matter the police as its principal law enforcing agency have the undoubted duty to bring offenders to book. Even so, the law and procedure adopted by the State for achieving this laudable social objective have to conform to civilised standards. The procedure adopted by the State must, therefore, be just, fair and reasonable1. In their battle against crime and delinquency, State and its officers cannot on any account forsake the decency of State behaviour and have recourse to extra-legal methods for the sake of detection of crimes and even criminals. For how can they insist on good behaviour from others when their own behaviour is blameworthy, unjust and illegal. Thus, in a democratic society even the rights of the accused are sacrosanct, for though accused of an offence he does not become a non-person. As a matter of fact, the laws of India - constitutional, evidentiary and procedural-have made elaborate provisions for safeguarding the rights of accused with a view to protect his dignity as a human being and giving him benefits of a just, fair and impartial trial2. Code of Criminal Procedure, 1973 deals with the procedural aspect of the Criminal Justice Administration.


THE ACCUSED UNDER THE CODE OF CRIMINAL PROCEDURE

    Though the Code is mainly procedural, yet it deals with three distinct but closely related subjects, the Constitution and powers of Courts, the conduct of criminal proceedings and the prevention of crimes by interference beforehand. However, in this chapter we are concerned with those provisions of the Code which entitle an accused of certain rights during the course of any investigation, enquiry or trial of an offence with which he is charged. For convenience we have categorised those rights under certain heads, which are as under:


1.Protection against Arbitrary or Illegal Arrest

The provisions in this regard are discussed as follows:



When Police may Arrest without Warrant:

This section has been amended recently in the year 2008,10 but no drastic amended has been brought in the power of the police to arrest a person without warrant except making certain alterations in the circumstances under which such a power can be exercised.


Procedure of Arrest and Duties of Officer making Arrest
:
Under section 41B, a procedure for arrest has been laid down and certain duties have been conferred on the police officer at the time of making an arrest. He is under obligation to bear an accurate, visible and clear identification of his name which will facilitate easy identification. He is under further obligation to prepare a memorandum of arrest which shall be attested by atleast one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made and the same shall be counter-signed by the person arrested. The arrested person shall be informed, unless the memorandum is attested by the member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. It is pertinent to mention here
 that this provision has been added in the CrPC in pursuance of the pronouncement of the Supreme Court in D.K. Basu v. State of Bengal.

Control Room at Districts:


Right of Arrested Person to meet an Advocate of his Choice During Interrogation
:
Under section 41D6 when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.


Arrest on Refusal to give name and Residence

Under section 42, arrest of a person - (1) who commits a non-cognizable offence in the presence of a police officer, or (2) is accused before him of having committed such an offence is permissible only, if he refuses to give name and address7 and as soon as they are ascertained he is to be released on execution of a bond for appearance. If name and residence cannot be ascertained he must not be kept under arrest beyond 24 hours, but should be taken to a Magistrate. If his name and address were previously known to the police officer, he cannot be arrested or detained.


Arrest by Private person and Procedure on Such Arrest
:
Section 43 is based on the principle that every citizen has the duty to help, keep the peace and so has the right to make over or cause to be made over to the authorities any offender who breaks the law. It empowers a private person to arrest or cause to be arrested - (1) a proclaimed offender, or (2) any person who in his presence commits a non-bailable and cognizable offence, but not after the completion of such offence. After the offence has already been committed, it is a matter for the police and a private person should then inform them. After arrest, he must without unnecessary delay either take the person or cause him to be taken to the nearest police station. Akin to the right in section 43 is the right of private defence (sections 96 & 97, IPC) which every citizen has of protecting the body or property of himself or any other person extending to causing death, for saving life or property in proper cases. The rule of English Common law that a private person may arrest any person reasonably apprehended to commit a breach of the peace does not apply in this country. Sections 96, 97, 102 and 105 of IPC define the limits within which restraint can be placed on another citizen.1

No arrest can be made on mere suspicion or information.2 Private citizen cannot follow and arrest a person on the statement of another person, however unimpeachable, that the former committed a non-bailable and cognizable offence.3


Arrest how made
:
Section 46 envisages three modes of arrest-(a) submission to custody, (b) touching the body physically, or (c) confining the body. Arrest is restraint on personal liberty. Unless there is submission to custody, by words or by conduct, arrest must be made by actual contact.4 Under this provision in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.5 If such person forcibly resists the endeavour to arrest him, or attempt to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.6But if force is required, no force should be employed in effecting arrest than is justly necessary. Whether violence is justifiable depends on whether the means employed were such as an ordinarily prudent man could make use of, who had no intention of doing any serious injury.7 All means necessarily includes help from other persons and it also applies to arrest by private citizen.8However, this section does not give a right to cause the death of a person, who is not accused of an offence punishable with death or with imprisonment for life.9 Accordingly, police officer in attempting to re-arrest escaped thief has no right to shoot.

Amendment:

Recently a proviso11 has been added to section 46(1), so as to provide that where a woman is to be arrested, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman to arrest her. Similarly, yet another provision in the form of sub-section (4)10 has been added to section 46 to prohibit arrest of woman after sunset and before sunrise except in unavoidable circumstances.
 However, earlier the Supreme Court has held that while arresting a female person, all efforts should be made to keep a lady constable present but in circumstances where the arresting officer is reasonably satisfied that such presence
 of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest, be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable.1 In the opinion of the author the present statutory provisions would prevail upon the aforesaid judgment of the Supreme Court, which is also apparent from a recent judgment of the Apex Court delivered in Bihar School Examination Board v. Suresh Prasad Sinha,2 wherein Justice Markandey Katju held that "Judgments of Courts are not to be construed as statutes".


Search of Place Entered by Person Sought to be Arrested
:
Section 47 provides that if any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in-charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.3 The provision is not intended to restrict the powers of police to enter the place to be searched, on the contrary it is a provision for compelling householders to afford the police facilities in carrying out their duties. It further provides that if difficulties are placed, force may be used to obtain ingress.4 The force means in order to effect entrance into such place the police officer may break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance.5 But if such place is an apartment in the actual occupancy of a female (not being the persons to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.6 Therefore, entry of police into Muth for arrest and search by breaking open back-doors though the main gate remained open and without demanding the head of Muth to allow them to enter, is illegal.


No Unnecessary Restraint
:
According to section 49, there should be no more restraint than is justly necessary to prevent escape, i.e., reasonable force may be used for the purpose, if necessary; but before keeping a person under any form of restraint there must be an arrest. Restraint or detention without arrest is illegal.


Person Arrested to be Informed of Grounds of Arrest and of the Right to Bail
:
Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest, and if the arrest is made in a bailable case the person shall be informed of his right to be released on bail. A similar provision in case of arrest with warrant is provided in section 75. Arrest without compliance of this provision will be illegal and will make the officer or person making such illegal arrest liable to all such remedies as are available in case of an illegal arrest. Section 50 is mandatory. If particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. If he alleges by affidavit that he was not communicated with full particulars of the offence, the police officer's diary can be perused to verify his claim of oral communication of such particulars.1 When the provisions of section 50 have not been complied with, the non-consideration of such non-conformance by the Court when considering the question of bail operates to the prejudice of the arrested person and the order is liable to be set aside on this ground.2 This provision carries out the mandate of article 22(1) of the Constitution of India3. The grounds can be communicated even impliedly by conduct.


Obligation of Person making Arrest to Inform about the Arrest, etc., to a Nominated Person:

This provision also has been added recently in the statute book in the form of section 50A5 to require the police to give information about the arrest of the person as well as the place where he is being held to any one of his friends, relatives or such other persons who may be nominated by him for giving such information, etc. Even this amendment in the Cr PC follows the dictum laid down by the Supreme Court in D.K. Basu v. State of West Bengal.


Search of Arrested Person
:
    Section 51 is the only provision which allows a police officer to make a personal search of arrested persons, but it comes into operation after arrest (with or without warrant) and not before. No search witness is legally necessary. If there is any and such witness is found unreliable, the evidence of the police officer can be looked to. Search by the police of the person of the accused does not contravene article 20(3) of Constitution. Search should be made in the presence of respectable and independent witnesses. But this provision under section 51, as has been held, does not permit medical examination of the accused without his consent. Forcible examination of the body of an arrested person without his consent, through a doctor for procuring evidence against him is not permissible and amounts to assault. Examination of accused by doctor not for benefit of health but by way of
 second search is not permitted in law without his consent1. The consent need not be in writing2. It has, however, been held that an accused person can be taken to a doctor for the examination of injuries on his body to ascertain whether he could not have participated in an occurrence. So, if an arrested person under intoxication is taken to a doctor who records his physical features and other symptoms, it is not hit by article 20(3) of the Constitution of India3. On the other hand, it has been held in yet another case that the police have no legal right to take an accused by force to a doctor to examine whether he was intoxicated and he cannot be convicted under section 353, IPC for assault and escape as he had the right of private defence4. Examination of the body of the accused often reveals valuable evidence. It may however, be noticed that, therefore, the lacuna in the matter has now been removed by insertion of new provision in a separate section5 specifically authorising medical examination of an accused person.

With regard to provision of this section the reference may be made to article 20(3) of the Constitution of India which is a guarantee to the accused against testimonial compulsion. But any incriminating object e.g., a stolen article or document or other form of evidence can be seized from the person of the accused, or if he happens to swallow a stolen property he can be taken to a doctor with a view to have X-rayed or the article extracted. Similarly, a police officer may seize a blood stained cloth worn by a person charged with murder.6 Incriminating documents, things, etc., which are in the possession of the accused may also be seized by issue of a search warrant, though the Court cannot direct him to produce them.7 The principle appears to be that though an accused cannot be compelled to produce any evidence against himself, it can be seized under process of law from the custody or person of the accused by the issue of a search warrant. The constitutional protection in article 20(3) prohibits compulsion or force in obtaining oral or written testimony. An accused has the right to decline to produce any such incriminatory document. Relying on Sharma's case it was held in many cases8 that the issue of a compulsory process for the production of any document which is reasonably likely to support the prosecution case infringed article 20(3). But these observations in Sharma's case were declared subsequently by the Supreme Court as obiter9and consequently now law on the subject is as under:-


(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused by a police officer, resulting in a voluntary statement which may ultimately turn out to be incriminatory, is not "compulsion".

(3) Giving thumb impression or impression of foot or palm or finger or specimen writing or showing parts of the body by way of identification is not included in the expression "to be a witness" in article 20(3).

(4) "To be a witness" in the ordinary grammatical sense means giving oral testimony. Case law has gone beyond this strict literal interpretation which bears a wider meaning, namely, bearing testimony in court or out of Court by a person accused of an offence orally or in writing. "To be a witness" in this sense may be equivalent to "furnishing evidence" (as held in Sharma's case) but not in the larger sense so far as to include giving finger impression etc.

(5) "To be a witness" means imparting personal knowledge of relevant facts by oral evidence or statement in writing but process for production of other evidence whether documentary or material (nor imparting personal knowledge of facts) in the possession of the accused does not come within the prohibition of article 20(3).

In view of the decision of the Supreme Court in Kathikalu (supra) which has the effect of confining the privilege under article 20(3) to testimony, oral or written, that privilege has also the least chance of attaching to non-testimonial physical evidence provided for in section 53 as stated above.


Examination of Accused by Medical Practitioner at the Request of Police Officer

An examination of the body would reveal valuable evidence and may take various shapes, e.g., (a) examination of the body for ascertaining the accused's part in a sexual offence, or for finding out the injuries received by him; (b) examination for identification mark; (c) examination of internal parts, taking of fluids (e.g., in intoxication case) and so on. The provision further provides that the person of a female is to be examined only by, or under the supervision of a female registered medical practitioner.3

By way of recent amendment an explanation to section 534 has been inserted to explain the meaning of the expressions "examination" and "registered medical practitioner" appearing in sections 53, 53A and 54, which have not brought any drastic change in the said provisions.


Examination of Person Accused of Rape by Medical Practitioner
:
Under a new section 53A4 the provision has been made to provide for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner.


Examination of Arrested Person by Medical Practitioner at the Request of the Arrested Person
:
Section 54 provides that when a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do, direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice. The provision was not recommended by Law Commission, but was inserted on the recommendation of the Joint Committee Report,5 which observed that such a provision is desirable, in order to enable the person concerned to establish that the offence charged was not committed by him or that he had been subjected to physical injury while in custody. The accused must be informed of his right under section 54.


    This is a new section regarding the examination of the accused person by a registered medical practitioner. Here the right has been given to the accused person when he is produced before a Magistrate or at any time when he is under custody, to have his body medically examined with a view to enable him to establish that the offence with which he is charged was not committed by him or that he was subjected to physical injury.

The aforesaid section 54 has been amended1 in favour of the accused, so as to make it obligatory on the part of the State to have the arrested person examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made. It also provides that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. This amendment is also in consonance with the spirit of the aforementioned judgment of the Supreme Court in D.K. Basu v. State of Bengal.
\
Identification of Person Arrested
:
Yet another provision has been added in the Cr PC by way of section 54A3 to empower the Court to direct specifically the holding of the identification of the arrested person at the request of the prosecution.


Procedure when Police Officer Deputes Subordinate to Arrest Without Warrant

Section 55 authorises an officer-in-charge of a police station for making an investigation under Chapter XII to depute a subordinate officer to arrest without warrant any person by an order in writing. Any officer subordinate is not limited to police officer (as in sections 41, 42, 57 etc.), but may be any other subordinate officer, e.g., Chowkidar.4 The jurisdiction of the police officer under this section is not excluded by the Magistrate issuing a warrant.


Health and Safety of Arrested Person
:
Another new section 55A ,5 inserted in the Cr PC in the year 2009, makes it obligatory on the part of the person having the custody of the accused to take reasonable care of the health and safety of the accused.


Person Arrested not to be Detained more than Twenty-four Hours

The Constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed.6 section 57 is concerned solely with the question of the period of detention. It does not deal with the question of bail.7 The intention is that the
 accused should be brought before the Magistrate competent to try or commit, with the least delay.1 The precautions in sections 56 and 57 are designed to secure that within, but not more than, 24 hours of arrest some Magistrate shall have seisin of what was going on and some knowledge of the charge against the accused.2 The right to be taken out of police custody by being brought before a Magistrate is given - (i) to prevent arrest and detention with a view to extract confession, or as a means of compelling people to give information (ii) to prevent police stations being used as though they were prisons (iii) to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge.3 Arrest without warrant call for greater protection than do arrests under warrant issued by Court and production within twenty-four hours before a Magistrate ensures the immediate application of judicial mind to the legality of the arrest and the regularity of the procedure adopted,4 police officer failing to produce an arrested person before Magistrate within 24 hours is guilty of wrongful detention.5 But such wrongful or illegal detention does not entitle the accused to be released on this ground when he is afterwards in lawful detention as an undertrial prisoner.6 Though a limit of 24 hours is allowed, there is no absolute right to keep in custody till that period and in no case can a police officer detain for a minute longer if he can send the accused to a Magistrate at once, except upon some reasonable ground.7


Police to Report Apprehensions

The object of section 58 is that the Magistrate should be kept informed of all arrests without warrant by the police in order that he may see whether their powers were being exercised properly or abused, or to detect infractions of sections 56 and 57 and also to enable him to issue promptly such order as may be necessary in regard to the person arrested, as it is his duty to see that persons are not unnecessarily kept in custody.


Arrest to be made Strictly According to the Code

The new section 60A8 has been inserted with a view to prohibiting arrest except in accordance with the Code or any other law for the time being in force providing for arrest.


Arrest to Prevent the Commission of Cognizable Offences

Under section 151 two prerequisites are necessary, (1) the police officer knew that the offender had a design to commit a cognizable offence, and (2) that the commission could not be otherwise prevented.9 The officer must know that the person is designing to commit a cognizable offence. An apprehension that he may
 commit an offence is not sufficient. If an arrest or attempt to arrest is made without any emergency contemplated by the section it is illegal and resistance or retaliation against use of criminal force is justified. There is no absolute dictum that under no circumstances can the High Court go into the question of proper exercise of the discretion by a police officer in arresting under section 151.


2. Protection Against Search of an Accused's Premises

The relevant provisions are discussed as under:


When Search Warrants may be Issued

This provision is available under section 93, which is supplementary to sections 91 and 92, the object being to make provisions effective by issue of a search warrant. While an arrest is a deprivation of personal liberty, a search is an invasion of the sanctity and privacy of a citizen's home. The power to issue search warrant being a drastic one is not to be lightly used and an unjustifiable or arbitrary use of it may lead to serious consequences causing loss of prestige or business to individuals and firms. Marten, J., pointed out that the general provisions regarding search and entry "are based on the law of England where an Englishman's house is said to be regarded as his castle.4 There are well-defined limitation to the exercise of the power which must be used with great caution, and before the issue of a warrant the Court must be fully satisfied that there are sufficient materials to justify the strong measure. The term "court" is used in sub-section (1) and so search warrant can be issued by a Magistrate only when he acts as a Court and applies his judicial mind. A power of search and seizure is an overriding power of the State for the protection of social security and that power is necessarily regulated by law. Article 20(3) of the Constitution is not defeated by the provision for searches. It is only a temporary interference with the right to hold the premises searched and the articles seized for the limited purpose of investigation. The damage, if any, caused by such temporary interference, if found to be in excess of legal authority, is a matter for redress in other proceedings.5 Article 20(3) of the Constitution is not defeated by the provision for searches. Issue of a search warrant is a judicial act and it ought to be issued only after judicial enquiry and upon proper materials.6 The power is a necessary one, but should be exercised only if on a full appreciation of the gravity of the step the court concludes that it is really necessary for the ends of justice. Before issuing search warrant, the Magistrate must give reasons.8 It should not be issued on mere asking. The Magistrate should hold appropriate inquiry, apply
 his judicial mind, satisfy himself objectively about its necessity and record reasons in support of his satisfaction: otherwise the order will be illegal.1 Provisions of section 93 and section 102, Cr PC governing the search and seizure have to be followed during the course of search and seizure conducted in exercise of power conferred under section 4(d) of armed Forces (Special Powers) Act, 1958.2


Search of Place Suspected to Contain Stolen Property, Forged Documents, etc.

The protection against illegal and arbitrary search by the police is provided under section 94. The pre-existence of a proceeding against a person is not necessary for the issue of a warrant.3 If any Magistrate, not empowered, issues a warrant erroneously in good faith, his proceedings will not be set aside merely on that ground.4 The issue of a search warrant without any allegation or information which a Magistrate believes that a particular place is used for deposit or sale of stolen property is illegal.5 The person who can execute the warrant is the officer named in it. It cannot be endorsed to another officer of the same rank.6 Search under the section without warrant is illegal.7

Reason to believe: The essential requirement of the section is that there must be some allegation or information, which the Magistrate believes, that a particular place is used for the deposit or sale of stolen property or for manufacture of forged documents, false seals, counterfeit stamps, etc.8Before a Magistrate acts under this section, he must have information and may make some inquiry, though the nature, scope and character of such inquiry is not defined. The expression "reason to believe" in this section is entirely different from the expression "cause to suspect". The former connotes a great deal more than is conveyed by the latter. There may be cause to suspect about the user of a place for a particular purpose, but the officer who issues the warrant has to bring his judicial mind to bear upon the question, and he can issue a warrant only if in his opinion there is reason to believe that a place is used for a specified purpose.
 The Magistrate should not issue a search-warrant under this section mechanically. He must apply his mind to the information placed before him, hold such inquiry as he thinks necessary and then only issue the warrant if he has reason to believe that the place or the premises is used for any of the purposes mentioned in the section. Where the Magistrate had not applied his mind at all
 before passing the order it was quashed.1 The ingredients of section 94 have been spelt out by the Kerala High Court in Gangadaran v. Kochappi Chellappan.2 It has held that, before issuing the order for search, the Magistrate must conduct such inquiry as he thinks necessary and that on the basis of that inquiry he must have reason to believe that the place is used for one of the purposes mentioned in the section. There was no inquiry and no recording of satisfaction before the issue of the order in this case. The order was quashed by the Session Judge and that order was upheld by the High Court.

The sine qua non for issuing search warrant and production of property is stolen property. It has nothing to do with the rights of parties, such as, right to possession by the financier under hire-purchase agreement.4 As the power under section 94 is extraordinary in nature, it must be exercised with care and circumspection, as it constitutes an inroad into the employment of the right guaranteed under article 19(1)(a) of the Constitution.5 The Magistrate must give reasons before issuing search warrant under section 94 of the Code and the failure to do so will render such order to be illegal.6


Search for Persons Wrongfully Confined

Before issuing a search warrant under section 97, the Magistrate has to apply his mind and must be satisfied that the confinement amounts to an offence.3 Even though no detailed enquiry is necessary before issuing search warrant under section 97, yet the powers has to be exercised with due care and caution.4 When the Magistrate issues search warrant for recovery of baby of 5 years from the custody of the mother without having regard to the provisions of section 6 of the Hindu Minority and Guardianship Act, the Magistrate has acted illegally.5 Under section 6 of the Hindu Minority and Guardianship Act, 1956 mother is also a natural guardian and the custody of the children with the mother is neither illegal nor are they wrongfully confined.6 The order of Magistrate passed under section 97 without any petition filed by anybody and without assigning any reason, is illegal.7


Persons In-charge of Closed Place to Allow Search

Procedure with regard to search of a closed place, in-charge of a person, is contained in section 100. This section applies to formal searches under warrants under sections 93 and 94. In an emergency e.g., when a man is apprehended recently for murder under very clear circumstances, when the police are not going in for the purpose of a search for any specified purpose, but for a general investigation, there is no provision which imposes on them the duty of publicly searching respectable citizens or themselves before the public. It is not surprising that in such an emergency the police officer should at once go in and see what are the contents of the house into which the man had bolted himself in.8

The object of section 100 is to ensure confidence in neighbours and in the public generally that anything incriminating which may be found in the premises searched, was really found and was not planted. Sub-section (4) refers only to the search of place. It is obligatory on the part of the police officer to call on and get two or more respectable inhabitants of the locality to be witnesses of the search. These witnesses must be called before the search is started. In this case, this precaution has not been taken at any time of the recoveries effected from different places at the instance of any of the accused, even though places were such where the respectable persons of the locality were available. The persons who have been joined on one or two occasions have not supported the prosecution case. This makes the recovery and its identification doubtful. Before searching a person, the searching officer should allow his person to be searched to avoid any possibility of implanting any object.1 So, search without any offer to search the searching officer is illegal.2 Contravention of section 100(4) does not render search defective.3 So, if for any reason search is held to be not in accordance with law, the seizure of articles, if supported by evidence, cannot be held to be illegal.4 When public witness is reluctant to join search, then search may not be illegal if a police witness figures as a search witness as there is general apathy of urban people in assisting police in search and investigation.5 But if it is found that no attempt was made by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility.6 The reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case. If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provisions of sections 100(4) or 100(5) of the Code.7


Search by Police Officer

Section 165 empowers the police officer specified to make a search without warrant subject to certain safeguards. The pre-requisites for a search are that:-

(1) Search must be necessary for investigation.

(2) The offence must be such as the police officer is authorised to investigate i.e., cognizable offence.

(3) Reasonable grounds must exist for believing that the thing required will be found in a place.

(4) There would be undue delay in getting the thing in any other way.

(5) Grounds of belief as to necessity of search must be previously recorded.

(6) The article for search must be specified, as far as possible, in the record.


Right to be Produced before the Magistrate within 24 hours of Arrest

Two sections of the Code deal with this right of the accused, which are discussed as under:


Person Arrested to be taken before Magistrate or officer-in-charge of Police Station

This right is contained in section 56 of the Code, according to which if the police does not think it fit to take bail, the arrested person has to be taken to the Magistrate having jurisdiction, i.e., jurisdiction to try the case.4 Person arrested should not be kept in any other place but sent immediately to the Thana.5 He can be discharged on personal bond or bail6 or under a Magistrate's order under section 167.

Police officer, who finds that the order under section 55(1) is not valid, he can exercise his own powers independently under section 41(1).7

Under section 56, production must be before the Magistrate having jurisdiction.8 Under article 22(2) of the Constitution, production must be before the nearest Magistrate. It need not be interpreted to mean a Magistrate with judicial powers.9 The construed appeal is that the arrested person is to be produced before the nearest Magistrate having other power to deal with the case.


Person Arrested not to be Detained more than Twenty-four Hours

We have already discussed this provision, as contained in section 57, under "Protection against arbitrary arrest and right to know specific ground of arrest".


Right to Consult and to be Defended by a Counsel of his Choice and to get Free Legal aid in Case of Economically Disabled Accused

Apart from ensuring a fair prosecution, a society under the Rule of Law has also a duty to arrange for the defence of the accused, if he is too poor to do so. Free legal aid to persons of limited means is a service which the modern State, in particular a Welfare State, owes to its citizens.3 The provisions to deal with this right under the Code are discussed as under:


Right of Person Against whom Proceedings are Instituted to be Defended

Section 303 recognises the right of any person brought before the criminal courts to answer any charge or accusation to be defended by a lawyer of his choice. A person against whom no process has been issued is neither an "accused" nor a "person against whom any proceedings have been instituted" and he has no right to be represented by a pleader during a preliminary enquiry under section 202.4 An application by the police for remand under section 167 is a "proceeding" under the Code and the right to be represented begins at least from that moment after arrest.5 Recording of confession is a "proceeding" within section 303. It is absolutely essential for all Magistrates to explain to the accused, before proceeding to record confession, his fundamental right under articles 22(1) and 20(3) and provisions of section 303 that he has a right to consult his lawyer. The right to consult and to be defended by a legal practitioner of accused's choice is now recognized in article 22(1) of Constitution. Arrest and trial in jail in hot haste on the next day without an opportunity to defend or informing the accused of their right under article 22 of Constitution and section 303 is in a sense a denial of fundamental rights.7


Legal Aid to Accused at State Expense in Certain Cases

Section 304 places on a statutory footing the right of the accused without sufficient means to engage a lawyer to be defended at the expense of the State in regard to Sessions trials with a provision also enabling the State Government to extend this right by notification to any class of trials before other court in the State. A representation by a lawyer at Government expense to an accused person has been provided for statutorily, appointment of such lawyer to defend such an accused and the facilities to be allowed to such lawyers by the courts and the fees payable to such lawyers by the Government have also been provided for statutorily under sub-section (2) making the same governable by rules under this sub-section (2) that are to be framed by the High Court with the previous approval of the State Government.

    In section 304 a partial statutory implementation of constitutional mandate under article 21 read with article 39A is found, and in other situations court cannot be inert in the face of articles 21 and 39A of Constitution.1 The right to free legal service is reasonable, fair, just and implicit in article 21. The State is under a mandate to provide free legal aid to an accused who is unable to secure legal service on account of indigence or incommunicado situation provided the accused does not object, and whatever is necessary for this purpose has to be done by the State2 and the accused is entitled to free legal services not only at the stage of trial but also when he is first produced before the Magistrate and also when remanded from time-to-time,3 as also for filing and arguing appeals including special leave to appeal.4 The Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform him that if he is unable to engage a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.5 Under trial prisoners should be provided legal representation by fairly competent lawyers at the cost of the State.6 In economic offences and offences against law prohibiting prostitution or child abuse or the like free legal services need not be provided by the State.7

Section 304 does not confer any right upon the accused to have a pleader of his own choice for his defence at State expense. Neither article 22(1) of Constitution nor section 303 gives any such right. If, however, he objects to the lawyer assigned to him, he must be left to defend himself at his own expense.8

In a proceeding under section 110 when the counter-petitioner is a prisoner, court must give him facility of being defended by a counsel at State expense otherwise the order to bind over will be bad and void.9


        When pleader is appointed at State expense to defend the accused it should not be a matter of patronage. Selection should be from young men of marked ability.1 Appointment of raw and inexperienced juniors to defend accused in capital cases has been deprecated. In such cases Court's duty is to put timely and useful questions.2 Court has no authority to force upon a prisoner the services of a counsel if he is not willing to accept them.3 Sufficient time and complete papers should also be made available to the advocate chosen and it may serve cause of justice with all ability at his command and the accused may feel confident that the counsel has had sufficient time and material to defend him properly.4 A recommendation by the High Court to appoint a prosecutor in a case on the salary of a High Court Judge causes prejudice to the accused and diverts the course of justice.5 The right of the accused to be supplied with a lawyer by the State can be availed of by an application under section 304(1) and not by a petition under article 32 of Constitution.6 When accused convicted for various offences under Penal Code remained in custody for entire period of 11/2 years and no counsel was provided to him, it is utmost illegality.7



Right to Open Trial
 
Court to be Open

This is provided under section 327. There is no provision in the Code that court must be held in the usual court-room. But wherever it may be held, it must be like an open Court with access to the public generally so far as accommodation permits.8 Every court of justice is open to every subject of the King.9 The proviso confers a discretion in a particular case to exclude the public or any particular person, e.g., during disclosure of indecent matter or when there is likelihood of a disturbance, or for any other reasonable cause. It may also be desirable in certain class of cases to exclude young persons or women. Publicity is very important in criminal trials and in England an open trial is one of the most valued rights which cannot be taken away except in special cases.10 This right 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.11

As it is an exception to a very well-settled rule, court excluding the public or a section of the public, must record its reasons for doing so.8 It should also record
 reasons when Court is held in any place other than the court building1 or in jail.2 In the absence of consent of the accused it is not proper to hold sessions trial in jail unless a clear notification is issued by the High Court under section 9(6).

Amendment

This provision of section has been amended in the year 2009 to provide that in camera trial under sub-section (2) shall be conducted as far as practicable by a woman judge or Magistrate. A proviso is also added to sub-section (3) so as to lift the ban on printing or publication of trial proceedings in relation to an offence of rape, subject to maintaining confidentiality as to identity of the parties.4


Right of the Accused to Examine the Witnesses in his Presence


Evidence to be Taken in Presence of Accused


1 Right to Get Copies of Statements of the Prosecution Witnesses and Other Documents

Provisions of the Code dealing with this aspect of the matter are discussed as under:

Supply to the Accused of Copy of Police Report and Other Documents

Section 207 provides this mandate, which is a new section. In the old Code, in cases instituted on a police report there was a statutory duty on the police under section 173(4) to furnish to the accused free of cost copies of police report, first information report under section 154 and all other documents or relevant extracts on which the prosecution proposed to rely including confessions and statements recorded under sections 164 and 161(3). As there had been a lot of complaint about the supply of copies in time and consequently causing most avoidable delay, the duty has been shifted to the Magistrate to supply copies of documents specified in the section to the accused free of cost. This is obligatory and a duty has been cast on the Magistrate under section 238, to see that they are so furnished. Often complaint is made that the copies supplied are not legible. The Law Commission (1955) was shown copies of statements of witnesses supplied to the accused which were wholly illegible. The Commission observed that, "the Magistrate should satisfy himself that the copies supplied are of such a character that the accused is able to read them and know their contents." The object is that to enable him to defend himself properly and the accused should be aware of all that is in the police report, statements of witnesses recorded by them, confession, so that he may know exactly what charge he has to meet and can cross-examine the witnesses on such defence that he may set-up.1 The object of supplying copies of statements of witnesses and other documents to the accused is to put him on notice of what he has to meet at the inquiry or trial.2 A statement or confession recorded under section 164 is a public document, but the accused's right to obtain copies before the filing of charge-sheet has been impliedly taken away by section 173(4).3 As each accused (where there are more than one) is entitled to have a copy of the documents mentioned in the section, as many copies should be given as there are accused. It is also not possible to know at this stage if some of the accused will be represented by one advocate.

Though in summons cases instituted on police report no similar duty has been specifically cast on the Court4 to see that the copies referred to above are delivered to the accused, nonetheless free copies have to be supplied to the accused in such cases by the Magistrate in view of the obligatory provisions of section 207. It has been broadly held that in summons cases also it is the duty of the Magistrate to see that section 174(4)5 is complied with.6 In cases instituted otherwise than on
 police report if triable exclusively by the Court of Session a duty has been cast on the Magistrate under section 208 to supply copies of documents specified in the section to the accused free of cost. Accused is entitled to copies of statements during investigation of non-cognizable offence under section 22.


    It has been held that non-supply of documents in terms of sections 207 and 208 is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. Even the supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. If any reference is made before any court to the supervision notes, they are not to be taken note of by the concerned court. As many instances have come to light when the parties make reference to the supervision notes, the inevitable conclusion is that they have unauthorized access to the official records.2

Duty of the Magistrate: The right to be furnished with copy of statements appears clearly related to a trial in respect of the very offence which was investigated and does not apply to a trial for a non-cognizable offence in respect of which there was no investigation made.3 There is no provision for supply of copies of statements recorded under section 161 in connected cases against the accused though there is nothing prohibiting it and in the instant case it was held that it would have been better to have done so.



Supply of statements recorded under section 161: There is no prohibition against the use of documents copies of which could not be furnished to the accused;5 if full opportunity is given to cross-examine prosecution witness in the light of those documents.6 If the prosecution thinks it necessary to use additional documents or statements of witnesses at any later stage, it may give copies of them to the accused in advance, and if the accused refuses to accept them, he cannot complain of prejudice.7

Use of additional documents at later stage: The right to get copies does not accrue if no statements have been recorded under section 161(3) which gives the police officer an option not to record statements of witnesses examined. When the statement of a person is not recorded it does not mean that he cannot be examined at the trial.8 Section 173(4)9 is not bar to the examination at trial of witnesses not examined by the police or whose statements were not recorded by them.10Section 173(4) does not debar the prosecution from relying on any additional evidence that
 may be subsequently discovered.1 Although the law requires that the final report should include the names of persons acquainted with the circumstances of the case and that the statements of witnesses recorded by the police and proposed to be examined should be furnished to the accused before inquiry or trial, there is nothing in law to prevent the prosecution from examining a witness whose name is not included in the report or whose statement has not been furnished to the accused.2 In proper cases the court should exercise its discretion under section 311 to examine witnesses not mentioned in the charge-sheet.3

When prosecution is allowed to produce inquiry report at a later stage, accused should be given fresh opportunity to cross-examine prosecution witnesses.4


Supply of Copies of Statements and Documents to Accused in other Cases Triable by Court of Session

The section 208, containing this provision, is also a new section. In respect of cases exclusively triable by a Court of Session and instituted on complaint or otherwise than on a police report, it casts a statutory duty like the one in section 207 on the Magistrate to furnish the accused free of cost with copies of (i) statements of all persons examined by the Magistrate, (ii) statements and confessions recorded under section 161 or section 164, and (iii) documents on which prosecution relies. Provision has also been made for inspection of documents as in section 207 when the document is voluminous.

This is in order to enable the accused to get adequate information about the charge against him and to prepare for his defence. The word 'shall' in section 208 is only directory. The omission to supply copies in the Magistrate's Court does not vitiate the order of commitment and the accused will not be prejudiced if copies are supplied in the Sessions Court before charges are framed.

Accused not to be Prosecuted more than once for the Same Offence

Person once convicted or acquitted not to be tried for same offence: Section 300 is based on the principle that no man's life or liberty shall be twice put in jeopardy for the same set of facts.6 The section embodies within narrow limits the principles of the English common law pleas of autrefois convict (formerly convicted) and autrefois acquit (formerly acquitted).7 To set-up the plea of autrefois acquit it is essential that there must have been a pervious trial of the offence by a Court having jurisdiction terminating in acquittal even if wrong.8 It must be established that
 the offences were substantially the same and grew out of the same facts.1 Section 300(1) does not apply where there was only one trial (no subsequent trial) for several offences, of some of which the accused was acquitted while being convicted of one.2 After dismissal of a complaint or discharge of an accused, a fresh trial on the same facts can be entertained only in exceptional circumstances, e.g., when the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or on production of new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.

The rule of English law requiring the accused to have been tried as well as acquitted in order to bar further proceedings and embodied in section 300, is inapplicable to the statutory acquittals in sections 321, 256 and 320 which are intended to bar further proceedings whether the accused can be said to have been tried or not.3

Conditions for application of the section - In order that the bar in the section may apply it must be shown that:-

(1) (a) A person has once been actually tried by a competent court for the same offence charged in a second trial; or (b) though not actually tried to the same offence charged in the second trial, he could have been on the same facts charged with it under section 221(1) or convicted of it under section 221(2).4

"Tried" in sub-section (1) means against whom proceedings have been commenced in court i.e., against whom the court has taken cognizance of the offence and issued process.5"Tried" does not necessarily import a decision on merits i.e., the proceedings in which the acquittal was made were in the nature of a trial.6 Section 300 accordingly applies to statutory acquittals under sections 256, 257, 320 and 321.

(2) He has been convicted or acquitted in the earlier trial. Dismissal or discharge is not acquittal.

(3) The conviction or acquittal is in force, i.e., it has not been set-aside by a superior court.

Sub-sections (2), (3) and (4), which are of the nature of exceptions, state the circumstances in which a second trial can be had. It is permitted:-

(i) in respect of a distinct offence for which a separate charge might have been made in the former trial under section 220(1) with the consent of the State Government [sub-section (2)]; or

(ii) on the happening of consequences caused by the first offence either occurring subsequently to or not known at the time of the previous conviction [sub-section (3)]; or

(iii) when the subsequent offence charged on the same facts in the second trial was such that the former court was not competent to try it [sub-section (4)].

Delhi High Court, while affirming the aforementioned propositions of law, held that so far as applicability of section 300(1) is concerned, essentially the conditions for invoking the bar are: (i) the Court had jurisdiction to take cognizance and try the accused, and (ii) the Court has recorded an order of conviction or acquittal and such conviction/acquittal remains in force.1


Right of Accused to have Notice of Charge:

Provisions of the Code in this regard are as follows:

Contents of Charge

The right to have precise and specific accusation is contained in section 211, Cr PC. A charge is a written notice of the precise and specific accusation against him, which an accused is required to meet.2 It is the first notice to the prisoner of the matter whereof he is accused and it must convey to him with sufficient clearness and certainty that the prosecution intends to prove against him and of which he would have to clear himself.3 Its object is to warn the accused of the case he is to answer.4 Charge must be properly framed and evidence tendered must relate to matters stated in the charge.5 A charge is not an accusation in abstract, but a concrete accusation of an offence alleged to have been committed by a person.6 The order being to enable the accused to know the case he will have to meet and to be ready before evidence is given.7 An accused is entitled to know with the greatest precision and particularity of the acts said to have been committed and the section of the penal law infringed; otherwise he would be seriously prejudiced in his defence.8

As observed by the Lord Chancellor: "The necessity of a system of written accusation specifying a definite criminal offence is of the essence of Criminal Procedure.9 In order to convict a man of an offence all the material facts which constitute it must be stated in the charge and satisfied on evidence but allegations which are not essential and which might be omitted without detriment to the charge may be considered as mere surplusage and disregarded in evidence. While in offences like arson no particulars are required except date, time and place, in several others failure to give the nature and particulars of the offence with certainty and accuracy would be a fatal defect.1

In the Code, generally the word "charge" is used as the statement of a specific offence and not as indicating the entire series of offences of which a prisoner is accused. There should be one charge for each specific offence described with reasonable certainty.

    Charge includes any head of charge when it contains more heads than one. In Summons cases no formal charge need to be made.4 In Sessions cases and Warrant cases a charge shall be framed when a prima facie case has been made out.  When a person is being tried under a charge in a warrant case and it is intended to try him also for an offence in a summons case, that offence should form part of the charge.What are to be considered at the time of framing a charge are not conjectures, but the police papers including the statements recorded under section 161, Cr PC. The mentioning of a particular charge in the police challan cannot be said to be sacrosanct. The complainant had alleged that she was a tenant of a portion of the premises in question, and that, the accused persons, being the other tenants residing in other portions of the premises along with the landlord, were restraining the complainant and the members of her family from using the main gate by force and by abuses. The trial Court would be utterly wrong in discharging the accused persons under section 341. Discharge of accused by the Magistrate of trial Court on the ground that question raised was of a civil nature, was utterly wrong.


Particulars as to Time, Place and Person

Under section 212 even the particulars qua the time, place and person are to be given in the charge. It has already been stated that in order to prevent prejudice to the accused in his defence, he is entitled to know the charge with the greatest precision and particularity8 and so full particulars should be given as possible.9 A charge under section 405, IPC which does not indicate which of the several offences therein is intended and does not state who made the entrustment or who suffered offends against section 212(1). Articles stolen or the name of the person whose house was broken into,10 or the stolen property received,11 or the date of looting in dacoity12 should be given. A person charged with an offence at a
 particular time and a place cannot be convicted of an offence committed at a different time and place.1 An abetment charge without particulars caused prejudice. Charge framed in accordance with the form relating to section 379, IPC3 not mentioning "person against whom offence was committed" is not vitiated in the absence of prejudice to the accused.


When Manner of Committing Offence must be Stated

Section 213 further extends the right of the accused as provided under sections 211 and 212. The section supplements the provisions of sections 211 and 212 and says that when the particulars in them are not sufficient to let the accused know with certainty and accuracy the exact nature of the charge, the manner of committing the offence must also be stated.5 If the particulars required to give sufficient notice are omitted, they may be added to the charge.


Right to Examine the Defence Witnesses

The relevant provisions are discussed as below:

Entering upon Defence

Section 233 provides that if the judge does not acquit the accused under section 232 on the ground that there is no evidence, he shall call upon the accused to enter on his defence and adduce evidence and file with the record any written statement, if put in by the accused. If the accused desires to call any witness and apply for issue of process for compelling attendance of witnesses or production of any document or thing an adjournment has necessarily to be given for the purpose.

The calling upon the accused to enter on his defence is essential and omission to do so is not a mere irregularity. It is a mere irregularity unless prejudice is caused.7


Evidence for Defence

The provisions of section 243 granting right to the accused to produce witnesses in his defence, apply equally to cases instituted on police report or on private complaint. After the examination and cross-examination of all prosecution witnesses, i.e., after the completion of the prosecution case the accused shall be called upon to enter upon his defence and any written statement put in shall be filed with the record. If after entering upon defence the accused desires to call his witnesses and to apply for issue of process or for further cross-examination of any prosecution witness under sub-section (2), an adjournment has necessarily to be granted for the propose. "Called upon ... defence" and the similar expression in section 313 means the same thing.8 After cross-examination of prosecution witnesses and the examination and cross-examination of the remaining prosecution witnesses, i.e., the completion of the prosecution case, the accused
 shall be called upon to enter upon his defence and not before that.1 It would be illegal to direct the defence to produce evidence on the same day.

    Omission to call upon the accused to enter upon his defence would not vitiate the trial, provided that accused was not denied an opportunity of stating his defence and of examining witnesses. The words "any witness" in sub-section (2) of section 243 would not include the complainant. It is not just and proper to compel a person to be witness against himself.4 Similarly in yet another case the appellant requested for sending the cheque in question for opinion of handwriting expert after the respondent had closed her evidence. It was held that Magistrate should have granted such a request unless he thought that the object of appellant was vexatious or delaying the criminal proceedings.5


Evidence for Defence in Warrant cases Instituted Otherwise than on Police Report

The provision is contained in section 247, which is in pari materia with section 243. Calling upon the Accused to Produce Witnesses in his Defence when not Convicted in Trial of Summons Cases by Magistrate. This provision, as contained in section 254, pertains to trial of summons cases by Magistrates. When there is no admission of guilt by the accused and conviction thereon under section 252, the Magistrate must proceed to hear the case and take evidence adduced by the parties and cannot accept a subsequent plea of guilty as there is no provision to question the accused a second time.6After denial of offence and the taking of prosecution evidence, the accused may plead guilty when questioned again.7 In absence of prosecution evidence it is not open to put any question to the accused under section 313 and thereafter to convict him on basis of such statement.8 There can be acquittal without taking prosecution evidence.
 This provision is not limited to prosecution evidence only but deals equally with defence evidence. Accused is not debarred from examining prosecution witness and may ask for issuing summons under section 254(2) and the Magistrate may order issuance of summons to the prosecution witness for that purpose. Even if no reason has been recorded, the order is not illegal and is not liable to be quashed.