Right to legal assistance for an accused person

Introduction

Every person has individual rights and fundamental rights guaranteed by the constitution of India. Rights mean moral or legal entitlement to do something. The court should treat every person equally. Fair trial is essential for everyone. The rights of the accused are mentioned in our Indian constitution. Certain rights are available to the accused person during the inquiry, trial, or investigation. He should be saved or protected from unlawful arrest. Article 21 of the constitution states the right to life and liberty and to treat the accused in a good manner. Article 22 of the constitution states that no one should be denied the right to consult the lawyer, of his choice. The accused is given protection and also assistance by a lawyer. As per the Criminal Procedure Code (Cr.P.C.), the accused has the right to free legal aid, to be examined by a medical practitioner, the right to be silent, etc.

Right to legal assistance for an accused person

As per Criminal Law, the accused has various rights as follows:

Assume to be innocent – Till the crime is proven the accused is treated as innocent. Without any doubt, the trial is conducted, and the accused is deemed innocent person until he is proven guilty.

Family visit – Accused have the right to meet his family once in the given time in jail.

Pre-trial rights of accused in India

To know the grounds of arrest – Accused has full rights to know why he is being arrested and for what crime. As mentioned in section 50 (1) of the criminal procedure code, a person can know the reason why he is being arrested without a warrant. And person whose shown warrant should be given all details of arrest by section 75 of the Criminal procedure code.

Free legal aid – Like the common people, even the accused have the right to consult a legal practitioner as per fundamental rights in Article 22(1) of the Indian constitution. In every case, this should be followed. In the criminal procedure code also its given the accused has the legal right to be defended by an advocate of his choice. Courts and magistrates have the duty to inform the accused of their right to free legal aid. The accused person can consult any advocate.

Right to be examined by a doctor- This right was given in D.K. Basu case in guidelines given by the judge.

If the accused wants to do a medical checkup of him by a medical practitioner, he is allowed to do so. But the request should not be made for purpose of delay or vexation of trial for his benefit. This right is mentioned in section 54 of Cr.P.C.

Free, fair, and speedy trial – The accused should be given speedy justice and it should be fair and impartial. A common phrase related to this justice delayed is justice denied. Speedy trial is an important part of Article 21 of the constitution.

Right against double jeopardy – As per Article 20(2) of the Constitution, A person cannot be prosecuted and punished for the same offense more than once.

Right against the ex-post facto law – The right against ex-post facto law in India,  gives a person the authority where he/she cannot be tried for an offense that was the earlier crime and now is not. This means that the retrospective effect law is not applicable. An act that was not a crime on the day when it was done, cannot be considered an offense.

Right of bail – To release from jail custody, a bail is filed. Any person who is arrested without a warrant and is accused of a bailable offense has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount.

In Indian law, there are three types of bail- Interim bail, anticipatory bail, and bail by bond. Also, a person can also file an anticipatory bail through his criminal lawyer, before his arrest.

Right to privacy and protection against unlawful searches – The arrested persons are also given the right to privacy which consists the privacy of the accused should not be violated by the police officer in any situation and police cannot search the property of the accused without a warrant.

Rights available to an arrested person while the trial is going on

Right to be present during the trial – Section 273 of the Code states that all evidence and statements must be recorded in presence of the accused or his criminal lawyer.

Right to be produced before a magistrate– Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. By Sec 56 and 76 of the code, an accused has to be produced before a magistrate within 24 hrs. In the case of Naresh Sridhar Mirajkar v. State of Maharashtra, the apex court observed that the right to open trial must not be denied except in exceptional circumstances. The high court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit the publication of a part of its proceedings.

Right to cross-examination – The accused can be cross-examined by the prosecutor to prove his innocence. This right is available to him.

Right to get copies of the documents – The accused has the right to receive copies of all the documents filed by the prosecutor in relation to the case.

Right to appear in the trial – The accused person has the right to be present during his trial and can observe the testimony being presented in front of him.

Right to appeal – If the accused is not satisfied with the decision of the lower court, he has the right to appeal in a higher court against his conviction.

Right to humane treatment in prison – The prison authorities should treat the accused in a careful manner and with humanity. They have the right to have all human rights.

Post-trial rights of the accused person

An accused person also has certain rights after his trial is completed. These rights of the accused depend upon the outcome of his trial. This means, whether (s)he has been acquitted by the court or has been held guilty and arrested by police.

Rights of the accused, if declared innocent

There are certain rights as follows 

When a person is declared innocent and acquitted by the court, the following rights are given to him

1. Accused persons have a right to get a copy of the judgment
2. Right to receive protection from police if there are reasons to believe there is a threat to his life post-acquittal.

If the accused is guilty then lawful punishment and proper execution of the sentence if needed.

Conclusion

All have their personal rights given by the Indian constitution. Article 21 of the constitution states the right to life and liberty and to treat the accused in a good manner. While a person is in the custody of the police, he must be aware of the rights available to him. There are pre-trial, rights during the trial, and post-trial rights available to the accused for their protection of life.

The accused person is given assistance by the lawyer. As per the rules of natural justice, the court should treat every person with equality and fair treatment. The accused have the right to meet their family on given days, access to an advocate, right to appeal, right to bail, free trail, speedy trial, etc in India. As per the legal principle, one is considered innocent until proven guilty.

The legal maxim reads out – “ei incumbit probatio qui dicit, non qui negat”. This means the burden of proof is on the one who declares, not on the one who denies it.

Different laws suggest that each person has basic human rights, which should not be denied to him. Despite these rights given there are still cases of custody deaths and atrocities and this violates the right to life and liberty of citizens. Police should keep in mind these rules and the rights of an arrested person while handling them. Therefore, human rights need to be protected and given utmost importance.

This article has been authored by Bharati Chitnavis, a student at MKES Law College, Mumbai.