CHAPTER 5
RIGHTS OF ACCUSED UNDER
THE CRIMINAL PROCEDURE CODE
5.1 Preface:
We discussed the Constitutional rights of accused in
chapter-4 of the present dissertation work. Over and above
this, there are other rights given in the Criminal Procedure
Code and the Indian Evidence Act. Among these, lot many
rights are given in the provisions of the Code. But, the
language and the meaning of the terms used therein appear
to be different in both these places. From these, all people
interpret them within the limits of legal definition. On account
of this, it is possible that though the rights may be the same,
there may be difference in its scope. We know that the
Criminal Procedure Code is the law conceming the
procedure. We find therein, the provisions relating to the
investigation of the crime of accused, charge sheet against
him and hearing of his case and punishment or acquittal.
It is highly essential and inevitable to know the rights of
accused. As we are aware, we are the largest democracy.
But the crime is also becoming a headache day-by-day. The
criminal justice system is also complicated and slow, as a
result of which the frequency of crime and the rate of crime is
very high. Let us look at the crime clock of 2004-Frequency
of Crime, prepared by National Crime Records Bureau,
Ministry of Home Affairs, Government of India. The details
are shown as under:-
264
r 1 Crime Committed I /,gainst Women every
3 minutes·
R{lpP Cdse every
29 qlHlutes
~,'ini('statioll case eVPrv
15 'nIrHjte~
·:-·.~irv Deatt'! Cdse every
7"/ IllHlutes
'~;pxuoj H':-Hassrnent CctSC l:V(,:ry 53 IlIlilutcs
:c (Jelt; By Husband and c~('latjves casf" every
9 !I1lnutes
,---
1 IPC crime every 0.29 minutes
.... _ .__ .L .. __
1 Criminal Breach of Trust case every 41
!lllnutes I ---1 Cheating case every
10 minutes , , .- --.. --~
.. ---~ 1._ --.• -.•. ~~-~- - 1 f 1 Counterfeiting case
.•. -. .... ___ ..... ..J. __ . __ .~-,
1 Murder case every I 16 minutes
-------.- ---_.
1 Attempt to Commit Murder case every
19 minutes
.. --I
, .-~
every 4.5 hours 1" .----~~~-.- ---~~----__, . __ .. _, ___ . _ _ ------r~---- _. __ j
~
1- B;J':-gl-ar-;;'~a-;;e every "1; 6 rllillutes
1 Theft case every 2 minutes
. __ ___ • __ ._ .. i.. __ . ________ .~
1 C.H. not Amounting to : Murder case every
2 hours
i I
. ~-----~ 1'Kidl;~'ppi~'g&' "--I
Abduction case every 23 minutes i
•• ~" __ ~ •• ____ • ~ ______ • __ .--,1 , 1 Death due to NegligenCe!
case every 8 minutes I - .. - - - ~,.- .. --_.--- .
__ ._," ___ , __ • _ J. ____ ~ .. ' ___ (
1 Dacoity case every \ 99 minutes i
Hurt case every 2 minutes
------ .. --r------.-- -' ~--j -_. - --~ ,. -- l...~-_-_ ---.-~~.- ----.'1
1 Preparation & Assembly for Dacoity
;
. ----- .--~-, _._-j J case every 4 hours
1 Crime Committed Against SCs every 20
minutes·
1 Crime Committed Against STs every
95 minutes·
1 Crime Committed Against Children every
36 minutes·
1.-._.- ~_~_~~ _ .-,-.-'
I' .--... --.~~"'.~ -- .. ---.---; 1 Robhery case every !
i 29 Ir1lnutes ____ ..--J
~------.---- .. j
1 Riot case every , 9 mlr1utes
L_ •• -.-.--- .rl----
1 Arson case every 66 nllnutes ,
-. - ----~---, .. _-'
, 1"00,' "' COO:: .c .L (1J
~~ =oo~ --' , ~ tOO;'
~
800: C '2 6661 ro ,
::l \ "66' \ CL 0
\ ~66L Q '
Incidence & Rate of IPC Crimes (mega cities) /Percent Change From 1993 . __ J
.. c:
30.0 1 25.0 1 20.0
15.0
10.0
Q)
~ 5.0 &.
-10.0
-15.0
-20.0 1993
13.5
6.2
1994 1995 1996 1997
L -:::;.. %~atiOn (In~iden~)---Lr----:- \;dlldtl~~(Rate) I --_.
1998
........ ~94 9.1
1999 Year
'.~ ;
2000
-8 G
2001
FIGURE 2.1 '
24.8
-q (I -10 g
2002 2003
./ Let us study the general crime statistics of India of the
year 2004:
INCIDENCE RATE
IPC SLL IPC SLL
2003:17,16,120 2003:37,78,694 2003:160.7 2003:353.7
2004:18,21,120 2004:41,92,891 2004:167.7 2004:386.2
:;.. 60,13,892 cognizable crimes have been reported
in the country during 2004 comprising of
18,21,001 cases under Indian Penal code (IPC)
and 41,92,891 cases under Special & Local Laws
(SLL) crimes, showing 9.4 increase over 2003
(54,94,814).
:;.. IPC crime rate in 2004 was 167.7 as compared to
160.7 in 2003 recording 4.3 percent increase in
2004 over 2003.
:;.. SLL crime rate in 2004 was 386.2 as compared to
353.7 in 2003 recording 9.2 percent increase in
2004 over 2003.
:;.. Pondicherry reported the highest crime rate
(454.3) for IPC crimes, 2.7 times the National
crime rate of 167.7. Among States, Kerala
reported the highest crime rate at 315.4.
:;.. A & N Islands reported the highest crime rate
(1,854) for SLL crimes, 4.8 times the National
crime rate of 386.2.
268
"
i i r "1 1 I ,-I
I ,,-..! , ,
1-
, I ,.'
t~ ]ll~'~ll1i~'¥JUU-~""-"--__ -----.-~~
, I i ~ i ~! ' ! 11'1: ~,
; " \ ' i ! -i 1 : ~ ,; 1 \ I ,.; !
I
I
-/
• I
I
.Rate
Crime against Women:
INCIDENCE
2003:1,40,601
2004:1,51,731
RATE
2003:13.2
2004:14.0
~ Andhra Pradesh reported 12.5 percent of total
cases (18,921 out of 1,51,731). Delhi UT
reported the highest crime rate (24.1) as
compared to the National average rate of 14.0.
>- Uttar Pradesh reported 25 percent of Dowry Death cases (1,708 out of 6,852) and 26.8% of
Sexual Harassment cases (2,682 out of 9,993).
>- On an average, Rape cases reported every 29 minutes, Molestation every 15 minutes and
Cruelty by Husband & Relatives every 9 minutes.
Uttar Pradesh reported increase of 53.3% in
Rape Cases, 55% in Kidnapping & Abduction of
Women & Girls, 29.2% in Dowry Death cases,
73% in Molestation and 88.5% in Cruelty by
Husband & Relatives cases.
271
r - - ~ -'- ,
, , \
, "0:-
~
\ "- , , ":".'-. '. 'r ,J .. ,
" • '\-\' I', " ,J' i,. ' l -.. ', . l' , ',. ~. i '. '-,' " ~.
. . j j1 "
, ... ~,',
,
~ 1 , r II I t
I i 1 , I L
I I 1 ; I
,/ Crime against Children:-
INCIDENCE
2003:11,633
2004:14,476
RATE
2003:1.1
2004:1.3
» 24.4 percent increase in incidents of crime against Children over 2003. Foeticide cases
increased by 40.1 % (from 57 cases in 2003 to 85
cases in 2004).
Madhya Pradesh reported about one fourth
(25.2%) (3,653 out of 14,476) of crimes
committed against children. Chandigarh reported
the highest crime rate (6.8) as compared to the
National average of 1.3.
,. Jharkhand reported 228.6% increase in crime
against children over 2003 (from 35 cases in
2003 to 115 cases in 2004).
273
·,~r~dprJI!lq ,._.
,..\bcJ:J('tIOr1 '"'I,
.~ ,
I I I
I i , ,
, I
-- --. --... -
, " . ,
--, ~ I • 1 ':"
~ ,
j /
/
".,--'
./ Crime against Scheduled Castes/Scheduled Tribes:
INCIDENCE RATE
SC ST SC ST
2003:26,552 2003:5,889 2003:2.5 2003:0.6
2004:25,924 2004:5,534 2004:2.4 2004:0.5
, Madhya Pradesh reported 18.1 percent of
total crimes against Scheduled Castes (4,699
out of 25,914) and 30.1 percent of total (1,667
out of 5,534) crimes against Scheduled
Tribes.
,. Madhya Pradesh reported the crime rate 7.3
for crimes against Scheduled Castes as
compared to the National average of 2.4.
,. Arunachal Pradesh reported the highest
crime rate (6.6) for crime against Scheduled
Tribes as compared to the National average of
0.5.
275
" llt-:~.
S,II'r;
'. , 1lJ:1
1 j 81~'(1
- -,
,~L Mwder
"\"
Arson
:.Jrar.J~~llng t.
4..buUCtlDrt
St.ltt'S & ur ..
(11nE>fS
Cyber Crimes:-
,. Cyber Crimes (IT Act + IPC Section) increased
by 5.3 percent (from 471 in 2003 to 496 in 2004).
,. Cyber Fraud 57.3 percent (247 out of 431) and
Cyber Forgery 35.5 percent (153 out of 431)
were the main causes under IPC category for
Cyber Crimes.
Care is taken to see that accused gets proper justice
and for this accused is also given certain rights. Such rights
of accused are rights either in a limited sense or sometimes
also in a bad sense. Also it should not be forgotten that the
exercise of some of the rights depends on the discretionary
powers of the court. In our country before 1898, there were
different Acts in different States regarding criminal
procedure, thereafter the Criminal Procedure Code, 1898
was enacted. This code was in force in our country for many
years. Thereafter, the new Criminal Procedure Code was
enacted in 1973 as per the recommendations of Law
Commission which is currently in practice. According to the
present provisions, we shall discuss in this dissertation work,
the important rights available to accused as per the Criminal
Procedure Code.
5.2. Rights of Accused or Arrested Persons:
Article-21 of our Constitution provides for right of liberty of
an individual, so that the first step in protecting the personal
liberty of accused is to protect him from whimsical arrest
277
without any due cause. For this very reason, the law
provides only a limited authority to the police for arrest. Not
only this, the arrest made by the police may be considered
legal, but the police has to fulfill certain legal conditions. It
means that the police cannot arrest any person at any time.
In addition to that, for protecting the interest of the arrested
accused, certain special provisions are made in the Criminal
Procedure Code. Provisions are made in section 41 to 60 in
connection with arrest of persons. According to this
provision, when the police is to arrest accused and when an
accused does not submit to the police by word or by
behavior then, at that time, the police can arrest him either
by touching or taking him into detention. Police can use
every necessary means to arrest, when such accused
oppose their arrest; it means that the police can use forceful
methods at that point of time. Police does not have the right
to put to death such accused who are not accused of crime
punishable with death. The provision relating to this is given
in sections 46(1) to (3) of Criminal Procedure Code. It is
stated in section 49 that to prevent such a person from
fleeing more than necessary force should not be used in
controlling him. In the case of a person arrested without
warrant, it is the duty of the police to immediately inform him
the reasons for his arrest. If the police have arrested any
person for non-bailable crime without warrant, the arrested
person has the right to seek release on bail and it is the duty
of the police to inform him to exercise his right so that he can
make arrangements for furnishing of the bail. This is stated in
278
provisions 50(1) and (2) of this Act. Thus, it is necessary to
protect the rights of accused in accordance with the provision
of Article-22(1) of the Constitution. There are provisions for
filing writ of Habeas Corpus when a provision of this article is
breached and the person is illegally arrested. In case of
breach of this very important right, it amounts to a breach of
Article-21. The court has given such judgment in the case of
Govind Prasad vis The State of West Bengal1. The court has
decided in case of Ajit Kumar Sarmah vis The State of
Assam and others2 that if the reasons are presented orally
by police to accused for his arrest, but if the full details of the
same are not furnished, then his arrest and detention
become illegal. Where an accused for any reason, cannot be
released on bail, the police officer arresting him, can carry
out the Search of the arrested person. The police have to,
except the necessary clothes worn by accused, keep all the
things found in his possession in a protective place. It is
stated in sections 51 (1) and (2) of this Act that if something is
seized from accused then the police should give an
acknowledgement receipt of all the things taken into custody.
When a body search of a female is to be made, it is
mandatory that the search be done with the help of a female
constable or by a female only. Wherever the police have to
get a medical examination of a female accused then it is
necessary to see that the medical examination is made only
by or under the supervision of a female doctor. This provision
is made in section 53(2) of this code.
279
We know that many useful and relevant evidences are
obtained from the examination of the body of accused. For
example;
A. Injury to accused can be known in case of sexual
crimes, the real and true information can be obtained
by examination of the internal organs of accused.
B. The identification marks on the body of accused can be
obtained or known.
C. By obtaining food and liquid from the internal
abdominal parts of the body i.e. viscera of accused, the
information of the crime committed can be detected.
According to the provisions of this Act, searching the
body of a man or abusing the body parts is illegal but if it is
carried out under some legal provision than it is considered
to be valid. There are different laws for measuring and noting
the height, weight, etc. of accused or the prisoners. This also
includes the photo or the fingerprint of accused and other
such details. But it does not give permission for medical
examination. In addition, it is also said that these provisions
giving such permissions are for determining whether a
prisoner has any infectious disease or not, but not for
investigation of a crime. But section-51 of this Act does not
give permission for medical examination where accused
does not give his consent. This provision passes the test of
article 20(3) of the Indian Constitution. In some cases, the
arrested person may request the court to examine his or her
body to prove whether he has committed some crime or not?
280
Or whether some crime has been committed against his or
her body? In normal circumstances, when such a person is
presented before the Magistrate or when he is in the police
custody, after his arrest, generally accused demands such
medical examination. At that time, it is the duty of the
Magistrate to permit such an examination. But it is stated in
section 54 of the Criminal Procedure Code that such
examination should not be for the harassment or for delaying
justice or for destruction of the purposes of justice. Section
54 gives right for medical examination of the arrested
person. When accused requests for medical examination,
the court is obliged to allow such examination. But in our
nation, in most of the cases, accused have no knowledge of
their rights. They become victims of harassment and abuse
by the police in lock-up and they also suffer such abuses
silently. The Supreme Court in the case of Sheela Barse vIs
the State of Maharashtra3 has decided for this very reason
that in such cases the Magistrate himself should inform
accused of his rights. According to the present laws, when
any police officer sends his subordinate officers for arresting
somebody without a warrant, there must be a written order
showing the reasons for arrest and such a subordinate
officer has to State, in a nutshell, the meaning of the order.
And even then, if the person who is to be arrested demands
for such an order, the same should be provided to him. This
provision is incorporated in section-55 of the Criminal
Procedure Code. The Criminal Procedure Code section-56
says that a police officer making an arrest without a warrant
281
shall, without unnecessary delay and subject of the
provisions herein contained as to bail, take or send the
person arrested before a Magistrate having jurisdiction in the
case, or before the officer in-charge of a police station.
Whereas no police officer can detain any person
arrested without a warrant in his custody unnecessarily, it is
stated in section 57 of Criminal Procedure Code that 'No
police officer shall detain in custody a person arrested
without a warrant for a longer period than under all
circumstances of the case is reasonable and such period
shall not, in the absence of a special order of a Magistrate
under section 167, exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the
Magistrate in court'.
The police officer in charge of the police station is
required to send a report of all the matters concerning the
arrest of a person in his jurisdiction and whether a bail has
been granted or not to such a person. It is stated in section
59 that the police officer cannot release any person arrested
without a self-bond, bailor order of the court. The person
serving the warrant of arrest should explain the extract of the
warrant to the person to be arrested and if it is required, he
should also show him the warrant. Such a person should be
taken to the court within 24 hours excluding the time for
journey. All these matters show similarity to the Article 22 of
the Constitution of India.
282
, Provisions under Section-167:
1. When a person has been arrested and is in police
custody, and if his interrogation can not be completed
within 24 hours time limit, as prescribed in section-57
than the procedure under section-167 of Criminal
Procedure Code is to be carried out. Under these
circumstances, if there are grounds to believe that the
accusation or information of offence is well founded,
the officer in charge of the Police Station or the Police
officer making the investigation, if he is not below the
rank of sub-inspector, shall forthwith transmit to the
nearest judicial Magistrate a copy of the entries in the
case diary relating to the case, and shall at the same
time produce accused before such Magistrate, as
mentioned in 167(A}. The words 'nearest Magistrate'
show that the Magistrate granting a remand need not
be the Magistrate having jurisdiction to try the case.
But when there are no difficulty in approaching the
Magistrate having jurisdiction to try the case it is
always desirable that the Magistrate having jurisdiction
should be approached for purposes of remand. The
practice of obtaining remands from any Magistrate at
the choice of the Police is objectionable as in Bal
Krishna, 33 Cr.LJ 180, This is specifically mentioned in
section-167(2} of Criminal Procedure Code.
2. The Magistrate before whom an accused is produced
under this section, may, whether he has or has no
jurisdiction to try the case, from time to time, authorize
283
the detention of accused in such custody as he thinks
fit, for a term not exceeding fifteen days in the whole.
But thereafter the power of remand can only be
exercised by a Magistrate who has such jurisdiction.
Whether the Magistrate is of the view that further
detention of accused is unnecessary or necessary for
the purpose of completion of the investigation, he must
forward accused to a Magistrate having jurisdiction to
try him in view of the fact that power of remand under
section 167(2) is restricted only up to 15 days as in
Natabar vIs State of Orissa, (AIR 1975, SC 1465).
When such Judicial Magistrate is not available then
accused can be produced before the nearest Executive
Magistrate with the copy of the case diary. The
Executive Magistrate than by giving reasons in writing
can order for keeping accused in police custody for the
period not more than 7 days. But after the completion
of this period accused should be produced before the
concemed Judicial Magistrate. The Executive
Magistrate should forward all the papers related to the
case with the case diary, to the nearest Judicial
Magistrate before the remand period is over, as
mentioned in section 167(2)(A}.
Provided that:
(a) The Magistrate may authorize the
detention of accused, otherwise then in the custody of
the police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so, but
28.+
no magistrate shall authorize the detention of accused
in custody under this paragraph for a total period
exceeding,
(i) Ninety days, where the investigation relates
to an offence punishable with death,
imprisonment for life or life or imprisonment
for a term of not less than ten years;
(ii) Sixty days, where the investigation relates
to any other offence.
And, on the expiry of the said period
of ninety days, or sixty days, as the case
may be, accused shall be released on bail
if he is prepared to and does furnish bail,
and every person released on bail under
this sub-section shall be deemed to be so
released under the provisions of Chapter
XXXIII for the purposes of that Chapter;
(b) No Magistrate shall authorize detention in any
custody under this section unless accused is produced
before him; and in any situation if the Magistrate
authorizes the detention without the physical
verification of accused than he has to record the
reasons for the same as mentioned in section 167(3) of
Criminal Procedure Code.
(c) Any Magistrate other than the Chief Judicial
Magistrate making such order shall forward a copy of
his order, with his reasons for making it, to the Chief
Judicial Magistrate.
285
2.A. Notwithstanding anything contained in sub- section (1)
or sub-section (2), the officer in-charge of the Police
Station or the police officer making the investigation, if
he is not below the rank of a sub-inspector, may,
where a Judicial Magistrate is not available, transmit to
the nearest Executive Magistrate, on whom the powers
of a Judicial Magistrate, or Metropolitan Magistrate
have been conferred, a copy of a entry in the diary
hereinafter prescribed relating to the case, and shall, at
the same time, forward accused to such Executive
Magistrate, and thereupon such Executive Magistrate,
may, for reasons to be recorded in writing, authorize
the detention of accused in such custody as he may
think fit for a term not exceeding seven days in the
aggregate; and on the expiry of the period of detention
so authorized, accused shall be released on bail
except where an order for further detention of accused
has been made by a Magistrate competent to make
such order; and, where an order for such further
detention is made, the period during which accused
was detained in custody under the orders made by an
Executive Magistrate the period specified in
paragraph(a) of the provision to sub-section(2):
Provided that before the expiry of the period aforesaid,
the Executive Magistrate shall transmit to the nearest
judicial Magistrate the records of the case together
with a copy of the entries in the diary relating to the
286
case which was transmitted to him by the officer in-
charge of the Police Station or the Police officer
making the investigation, as the case may be.
Normally, accused are not being produced before the
Executive Magistrate by the police practically. This kind
of provision is very sparingly used by the pOlice officers
and by the Executive Magistrates as well. Because in
normal circumstances if the local Judicial Magistrate is
not available or is on leave then his charge is normally
being given to the neighboring Judicial Magistrate so
the police has to use the above said provision in
exceptional circumstances for the sake of getting away
from the allegations (Normally the Executive
Magistrates are the part and parcel of the Government
Administration, hence the chances of injustice to
accused are much more).
(3) A Magistrate authorizing under this section detention in
the custody of the police shall record his reasons for so
doing.
(4) Any Magistrate other than the Chief Judicial Magistrate
making such order shall forward a copy of his order,
with his reasons for making it, to the Chief Judicial
Magistrate.
(5) If in any case triable by a Magistrate as a summons
case, the investigation is not concluded within a period
of six months from the date on which accused was
arrested, the Magistrate shall make an order to stop
further investigation into the offences unless the officer
287
making the investigation satisfies the Magistrate that
for special reasons and in the interest of justice the
continuation of the investigation beyond the period of
six months is necessary.
(6) Where any order stopping further investigation into an
offence has been made under sub-section (5), the
Sessions Judge may, if he is satisfied on an application
made to him or otherwise, that further investigation into
the offence ought to be made, vacate the order made
under sub-section(5) and direct further investigation to
be made into the offence subject to such directions
with regard to bail and other matters as he may
specify.
This particular section is in respect of custody and
powers of the court to grant remand, and the powers to
release accused on bail. It is necessary to produce accused
before the court and that such production can be proved by
the signature of accused over the Production Report. The
purpose of this section is to avoid the delay in inquiry and is
of mandatory nature. Accused can be saved from custody of
a longer period and hence there is a provision of bail. In any
case, the detention should not be for a period of more than
sixty days and if accused applies for bail and is prepared to
furnish bail, then a Magistrate is bound to release him on
bail. This has been decided by various judgments of the
courts. Without framing the charge, accused cannot be kept
in custody for more than sixty days. If the police desire to
288
detain him further, they should apply to the court of Sessions
or to the High Court for extension of the period, assigning the
reasons thereof. If such conditions are not complied with,
and if accused remains in custody, the same is called illegal
detention. But if accused does not seek the bail, the limit in
the custody can be extended till he applies for bail. The
Magistrate shall inform such accused about his right to be
released on bail, and that if he is not able to defend himself,
the Lawyer can be provided at the cost of government, even
in case of an under trial prisoner, the said principle is laid
down by the Supreme Court in case of Hussainara Khatoon
VIs Home Secretary, State of Bihar' (AIR-1979,SC-1360)
According to the provisions of our Constitution and
Criminal Procedure Code, it is expected to produce accused
physically before the Magistrate. The object is that accused
comes under the observation of the judiciary. Due to this
information can be obtained personally from accused
whether his right of personal liberty under Article 21 of
Constitution is endangered or not? In unavoidable
circumstances, if it is not possible to produce him before the
Magistrate, his remand order granted thereafter does not
stand illegal. It is decided by the Patna High Court in the
case of Rameshkumar Raviram Prasad VIS State of Bihar-;
that this happens only when accused is under treatment for
some injury or any other serious sickness. This may also
happen in case where accused has to be produced in more
than one court on the same day. As such his physical
presence is desirable for remand but, if it is not so, the
289
remand order does not automatically stand invalid as under
specified circumstances. In another case of Mahesh Chand
vis State of Rajasthan6, the Rajasthan High court has held
that if accused is neither prepared nor able to furnish bail
and if the Magistrate has granted more time for detention for
the purpose of interrogation then such detention does not
become illegal. In the case of State of Gujarat Vis Patel
Pramukhlal Gordhandas7, the court has decided that when
accused produces himself in the court's custody by his own
will then section 167 of the Criminal Procedure Code does
not apply.
In the case of Central Bureau of Investigation, Special
Investigation Cell-I, New Delhi vIs Anupam J. Kulkarni,(AIR-
1992, SC-1768) in the interest of the detained person & to
protect his interest from the over enthusiastic act of police,
Supreme Court has decided norms which are land marked
as under:-
1. Police cannot detain accused for more than 15 days
because as per the Criminal Procedure Code there is a
provision to produce accused before the Magistrate
within 24 hours by the police. In that case no
Magistrate can order to send accused in police custody
for more than 15 days.
2. According to the provisions of the Criminal Procedure
Code accused has to be detained in the custody of the
court for 15 days. The police also cannot get him back
into their custody. In this very case, Honorable Justice
Ahmadi and Justice K.J.Reddy have laid down six
290
important decisions which can be useful to the nation's
police department and the judicial department.
(I) When an accused is produced before the
Magistrate, he can be on request from the police,
within 15 days of the date of order of the
Magistrate, can be transferred from police
custody to court custody or Vice versa. The idea
behind this is that accused is produced to court
custody from the police custody to be released
on bail. In the same way, in certain cases, where
remand is necessary it is required to transfer
accused from the court custody to the police
custody. It is the personal opinion of the
researcher.
(II) No judicial Magistrate can order to send accused
into police custody after the time period of 15
days.
(III) When accused is involved in any other crime or
case, the Judicial Magistrate can order him to be
entrusted to the police custody even after the
completion of 15 days. But he cannot order him
to the police custody for any crime committed in
the same case because if such kind of
permission is granted than the police will try to
keep him in their custody by laying further
accusations.
(IV) The period of fifteen days of the police custody of
accused should not be counted from the date of
291
arrest by the police but from the date from which
Magistrate has ordered to send him on remand of
police custody.
M The court custody, in case where punishment is for execution or for life imprisonment or for a
minimum period of ten years, should be for 90
days. And for other crime it should be for 60
days.
(VI) The time limit of 90 or 60 days is not to be
counted from date of arrest by police but from the
date of arrest as given in the order of the
Magistrate (9)
In this manner, Hon'ble Justice Ahmadi and Hon'ble
Justice K.Jayachandra Reddy have given very clear
judgment regarding the rights of accused in the case of
Anupam J. Kulkarni.
If some public servant having power to arrest,
knowingly breaches the law and misuses his power and
illegally arrests somebody, they can be brought to the trial of
the court as per section-220 of the Indian Penal Code. As
also if some person illegally arrests some other person, he
will also become liable for punishment for illegal commission
of crime under section-342 of Indian Penal Code (10).
5.3 The Right of accused to be tried in his own Presence:
As provided in our Constitution & Criminal Procedure
Code, trial has to be conducted in the presence of Accused.
As provided under section 273, when anything is not
292
provided expressly in any other act, in every trial or
proceedings, evidence is to be recorded in presence of
accused and if he is not present, then in the presence of his
advocate. Evidence if recorded in the language that is not
known to accused than it should be translated & explained to
accused in the language that he knows. When the advocate
is present & the evidence is recorded in the language other
than the language of Court than the same is to be required to
be translated & explained to the advocate in the court as
mentioned in the provision of section 273 of Criminal
Procedure Code.
When an accused has been absconding and if it is
proved that there is no hope of immediate arrest of accused,
then the hearing of the complaint against accused can be
conducted. The appropriate court will note down the
depositions of the witnesses presented by complainant in the
absence of accused and when such accused is arrested all
the witnesses can be called for cross-examination. If the
witnesses are neither in a position to depose the evidence
because of their sickness or physical inability, nor traceable,
or if it is causing unnecessary delay in the trial or it is more
expensive and inconvenient to bring him before the court
then the accusation can be framed. In these circumstances,
the evidences can be given in the inquiry or the trial against
accused. It is clearly decided in the law that except in such
exceptional cases, a case should be tried in the presence of
accused himself. However certain procedure is laid down
293
under section 299 of Criminal Procedure Code for recording
of evidences in absence of accused.
The matter regarding trying of the case in the
presence of accused is also embodied in the fundamental
rights of our Constitution. The same matter is also embodied
in Criminal Procedure Code. The basic object behind this is
that if the case is tried in the presence of accused than
accused gets the idea of what the witnesses speak against
him as well as the witness will also hesitate to give wrong
evidence in presence of accused. One belief is that the
correct and real evidence will emerge in presence of
accused. So, it is the personal opinion of the researcher that
there are many advantages to accused and to the court if the
case is tried in presence of accused.
5.4 Right of accused to get Released on Bail:
The presumption in our law is that "A person is supposed
to be innocent till the crime is proved against him". It is his
right to get released on bail and he gets bail as per rule and
should not remain in the jail as an under trial prisoner.
Detailed provisions regarding bail are given in sections 436
to 450 in the Criminal Procedure Code. There are two types
of offences in this code:
(1) Bailable offences and
(2) Non-bailable offences.
The definition of the bailable offence is given in section
2(a) of Criminal Procedure Code. The bailable offence
294
means, 'an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the
time being in force'; and non-bailable offence means 'any
other offence.' Under schedule-I of Criminal Procedure
Code, the classification of offence under Indian Penal Code11
has been given. The details of cognizable or non-cognizable
offences are specified and the details of bailable or non-
bailable offences are also classified. This classification is
meant for all the penal sections given in Indian Penal Code
i.e. from the section-1 09 to section-511.
5.4.1 Bail to accused in the Bailable Case:
It is Stated in section 436 of Criminal Procedure Code
that when any person is arrested or detained without warrant
and if that person is prepared to furnish bail then he should
be released on bail. Section 436 gives a right to accused to
get released on bail in bailable offence. But in cases where
such person is already released on bail and if he absconds,
or does not remain present on the date fixed up by the court,
he has no right to be released on bail, though there is a
bailable offence. When an accused is a famous and
respected person in his community or society and if there is
no possibility that he may run away then the court can, on
satisfaction of infonnation received may release him on bail
on his personal bond. But when the court takes such
decision, it will concentrate on the following points:
295
(1) Duration of the residence of accused in his society.
Accused must be living in the society for a longer
period.
(2) The history of employment of accused and his financial
condition.
(3) The relations of accused with his family members and
other relatives.
(4) The prestige, character and the financial dealings of
accused in the society
(5) The complete details of accused, whether he has
previously committed some crime or not. He had been
released on bailor not in the said crime.
(6) The identification of the responsible people of the
society who can give assurance of the reliability and
credibility of accused.
(7) Other aspects will also have to be taken into
consideration such as the nature of crime of accused,
the seeming possibilities of his punishment, the degree
of punishment of accused and the danger which may
arise if he does not regularly present himself in the
court.
(8) After taking into consideration, the context of accused
with the society and other matters, if the court feels
that accused has strong bondage with the society and
there is not much danger about his absence in the
court and when the court is satisfied it can release
accused even on self surety bond. The Supreme Court
in the case of Hussainara Khatoon vIs Home
296
Secretary, State of Bihar12 has Stated that the amount
that is decided at the time of giving bail to accused
should not be determined only on the basis of the
nature of his crime but should also be appropriate to
his economical condition so that he may not have to
depend on solvency. It should be remembered that to
obtain solvency is very difficult and due to this reason
accused is unable to be released on bail. The Supreme
Court has Stated in the case of Moti Ram vis State of
Madhya Pradesh13 that when accused is poor, young,
disabled, woman and a person from weaker sections;
they should be released on bail generously looking
towards their condition and other aspects.
5.4.2 Bail to accused in the Non-Bailable offences:
We have previously talked about the provision of
releasing an accused on bail in bailable offence. Here we will
talk about the provision of releasing an accused on bail in
non-bailable offences. It is provided in the section 437 of the
Criminal Procedure Code where an accused can be released
on bail in non-bailable offence.
(1) When any person accused of, or suspected of the
commission of any non-bailable offence is arrested
without warrant by an officer in charge of a police
station or appears or is brought before a court, he may
be released on bail, but-
(A) He shall not be so released if there appear
reasonable grounds for believing that he has
297
been guilty of an offence punishable with death
or imprisonment of life.
(B) If such offence is non-bailable offence and
accused has been previously punished in the
offence punishable with death, or imprisonment
for more than seven years or has been punished
twice in cognizable and non-bailable offence;
such person shall not be released on bail. But as
an exception that if an accused is under the age
of sixteen years or any woman or any sick or
infirm person accused of such an offence be
released on bail. Further provision is also made
that if the court is assured that it seems just and
proper for any special reason to release accused
on bail then the court can order him to be
released on bail. Further it is also provided that if
accused is otherwise entitled to be released on
bail and gives an undertaking that he shall
comply with such directions as may be given by
the court then he can be released on bail the
mere fact that an accused may be required for
being identified by witnesses during investigation
shall not be sufficient ground for refusing to grant
bail. It means that accused has to be released on
bail.
(2) If it appears to such officer or court at any stage of the
investigation, inquiry or trial as the case may be, that
there are reasonable grounds for believing that
298
accused has committed a non-bailable offence but that
there are sufficient grounds for further inquiry into his
guilt, accused shall, pending such inquiry, be released
on bail, or, at the discretion of such officer of court, on
the execution by him of a bond without sureties for his
appearance as herein after provided.
(3) When a person accused or suspected of the
commission of an offence punishable with
imprisonment, which may extend to seven years of
more of an offence under the Indian Penal Code or
abetment of, or conspiracy or attempt to commit, any
such offence, is released on bail, the court may impose
any condition which it considers necessary in order to
ensure that such a person shall attend in accordance
with the conditions of the bond executed, and shall not
commit an offence similar to the offence of which he is
accused or of the commission of which he is suspected
or otherwise in the interests of justice.
(4) An officer or a Court who has released a person on bail
shall record in writing his or its reasons for doing so.
(5) Any Court which has released a person on bail may, if
it considers it necessary so to do, direct that such
person be arrested and surrender him to custody.
(6) If, in any case triable by a Magistrate, the trial of a
person accused of any non-bailable offence is not
concluded within a period of sixty days from the first
date fixed for taking evidence in the case such person
shall, if he is in custody during the whole of the said
299
period, be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a
person accused of a non-bailable offence and before
judgment is delivered, the Court is of opinion that there
are reasonable grounds for believing that accused is
not guilty of any such offence, it shall release accused,
even if he is in custody, on his execution of a bond
without sureties for his appearance to hear judgment
delivered.
In section 437 of Criminal Procedure Code, provision
has been made regarding releasing accused on bail in non-
bailable offences. This section applies only to the persons
who are accused of non-bailable offence.
Now, in section 437 of Criminal Procedure Code,
provision has been made for releasing accused on bail in
case of non-bailable offences. The provision has been made
for releasing on bail of the person who has been suspected
of non-bailable crime and also the person against whom a
charge of non-bailable crime is framed. When accused has
been arrested or detained without warrant, the officer in
charge of police station can also release accused under this
section when accused is presented before the court, the
court has the authority to release him on bail14.
300
r Principles governing grant of bail to accused.
The court will consider the following matters while
granting bail:
(1) Enormity and nature of the charge
(2) The nature of evidence in support of the accusation
(3) The severity of the punishment which the conviction
will entail
(4) The social status of accused
(5) The job, profession and residence of accused
The Supreme Court has laid down in the case of
officer in charge Sandip Kumar Dey vIs The Officer-in-
charge, Sakchi P.S., Jamshedpur and others15 that in case
the complainant fails to start criminal procedure speedily in
non-bailable offences, the court can release accused on bail.
It is Stated in section 437 (1) of Criminal Procedure
Code that when a person is accused or suspected of non-
bailable offence and is arrested without warrant by an officer
in charge of the police station on such accusation or appears
or is brought before the court other than High Court or
Sessions Court, where there are reasonable grounds to
believe that he is guilty of crime punishable by death or life
imprisonment then such accused shall not be released on
bail. If there are no sufficient grounds to believe that he is
guilty of an offence punishable by death or life imprisonment,
the court on its own discretionary powers can release such
accused on bail. In this manner the difference is made
between the offences punishable with death of life
301
imprisonment and other non-bailable offences. In cases of
non-bailable offences punishable with death or life
imprisonment the power to release accused on bail is limited,
whereas in the cases of other non-bailable crimes, the court
has complete discretionary powers over accused regarding
releasing him on bail. Thus though the court has wide
discretionary powers in matter of granting or not granting a
bail but where there are sufficient reasons to believe that
accused has committed a crime punishable with death or
imprisonment for life; in those cases there are limitations on
the powers of court on releasing accused on bail16.
The Supreme Court has laid down in the case of State
of Delhi vIs Jaspal Singh Gill17 that enormity and nature of
the crime, special circumstances of accused, possibility of
punishment in the trial of the court, possibility of tampering
with the evidence in addition to which, the broad interest of
the State and common public has to be taken into
consideration while granting bail. The Court has stated in the
case of Thakor Kanjibhai vIs Thakor Ambaram 18 it is very
necessary to note down the reasons while granting a bail to
accused. In this case, High Court of Gujarat had cancelled
this order of the Lower Court because it did not note down
the reasons while granting bail to accused.
Section 437 (6) of Criminal Procedure Code considers
such cases where the trial of a person accused of any non-
bailable offence is not concluded within a period of sixty days
from the first date fixed for taking evidence. Then provided
that if accused is in custody during the whole of the said
302
period, he should be released on bail except that the
Magistrate has given some order noting down the reasons
for it. The Rajasthan High Court has laid down in the case of
Pratap and others vIs State of Rajasthan19 that every
accused has a right to demand for his speedy trial. It is
Stated in section 437(7) of Criminal Procedure Code that if,
at any time after the conclusion of the trial of an accused of a
non-bailable offence and before judgment is delivered, the
court is of opinion that there are reasonable grounds for
believing that accused is not guilty of any such offence, it
shall release accused, if he is in custody, on his executing a
bond without sureties for his appearance to hear judgment
delivered.
5.4.3 Right of accused to obtain Anticipatory Bail:
Generally when some person is arrested, he tries to
get released on bail. Provisions, to get bail in the cases of
bailable offences, are provided in section 436 of Criminal
procedure Code, whereas section 437 makes provision for
how the bail should be granted in non-bailable offences. In
section 438 of this Act, provisions for Anticipatory Bail are
made which is as follows:
(1) When any person has reason to believe that he may
be arrested on an accusation of having committed a
non-bailable offence, he may apply to the High Court
or the Session Court for a direction under this section;
and that court may, if it thinks fit, direct that in the
event of such arrest, he shall be released on bail.
303
(2) When the High Court or the Session Court make a
direction under sub-section (1), it may impose certain
condition and direction in the light of the facts of the
particular case, as it may deem fit, namely,
(I) A condition that the person shall make
himself available for interrogation by an
officer of the police as and when required;
(II) A condition that the person shall not, directly
or indirectly, make any inducement, threat or
promise to any person acquainted with the
facts of the case so as to dissuade him from
disclosing such facts to the Court or to any
police officer;
(III) A condition that the person shall not leave the
country without prior permission of the Court;
(IV) Such other condition as may be imposed
under section 437 (3), as if the bail were
granted under that section.
(3) If a person is thereafter arrested without warrant by an
officer in charge of a police station on such
accusation, is prepared either at the time of arrest or
at any time while in the custody of such officer to give
bail, he shall be released on bail; and if a Magistrate
taking cognizance of such offence, he shall issue a
bail able warrant in conformity with the direction of the
Court under sub section(1)2°.
304
The main object behind this section of law is that this
new provision of anticipatory bailor bail before arrest is
added. The general rule is that court cannot grant a bail to
accused till the arrested person is produced before the
court; exception is created by this section to the general
rule. It means that bail order can be passed before the
arrest of any person. Before this provision, opinion was
prevalent that Anticipatory Bail can not be granted before
the arrest of a person. High court and Sessions Court have
been given powers to grant Anticipatory Bail by this
provision. The reason behind introducing this provision is
that sometimes powerful persons trap their rivals in
concocted cases and are successful in sending accused
behind bars. In addition to that, there is no reason to send a
person, who has no possibility to escape, even though he
has committed a crime. This consideration is kept in mind
while introducing this new provision.21
The Joint Parliamentary Committee and in the 41 sl
report of Law Commission had recommended to introduce
this provision. The necessary condition for applying for
anticipatory bail is given below.
(1) When any person has reason to believe that he may
be arrested on an accusation of having committed a
non-bailable offence.
(2) That person may apply to the High Court or the Court
of Session. Magistrate of the lower Court does not
have power to order under this section.
305
(3) The High Court and the Court of Session, if deems fit,
direct that in the event of such arrest, he shall be
released on bail.
(4) Such person is there after arrested without warrant by
police officer.
(5) His arrest should be made on accusation of
commission of non-bailable offence.
(6) Such person should be prepared to furnish bail at the
time of arrest or when he is under custody of such
officer.
If the abovementioned conditions are fulfilled then
such person shall be released on bail under section (1) by
the High Court or Sessions Court.
As per the provision of Anticipatory Bail under section
437, when a person, accused or suspected of having
committed non-bailable offence, is arrested or if he
surrenders or is brought to the Court, then he can be
released on bail. But when any person has reason to believe
that he may be arrested on an accusation of having
committed a non-bailable offence, he may present himself to
the court and can get the Anticipatory Bail. And if he
presents himself to the court, in this manner it means that
than he surrenders to the Court. The person, against whom
there is an arrest warrant, can get Anticipatory Bail under this
section.
306
, Directions for Court while granting Anticipatory Bail:
(1) The nature and enormity of the charge.
(2) The nature of the evidence in support of the
accusation.
(3) The severity of the punishment which the conviction
will entail.
(4) The behavior, character, and social status of
accused.
(5) The possibility of the presence of accused during
trial.
(6) I nterest of the State.
So the abovementioned points will be considered by
Court while granting Anticipatory Bail.
Bailon anticipation of the arrest was not considered to
be a right of a man. One cannot be said to be an Accused
unless the offence is registered & arrested by the police.
During emergency in 1975, thousands of people were
involved in the offence in view of the political victimization.
Such people include Late Shri Jay Prakash Narayan, Morarji
Desai & others. Later on Janta Party came into the rule in the
year 1977 & they took their turn by arresting Mrs. Indira
Gandhi & so many other people. Freedom fighters, Man of
the Stature of Prime Minister were packed in Tihar & other
jails & after that the National dialogues took place & along
with the time the ratio of wrongful complains & false
implication of a person in offence were increased. Even in
case of the act of the civil nature filing a criminal case
307
became the usual practice. The office of police was utilized
to settle their disputes of a civil nature with the help of police.
That has increased undue use of the power by the police
also and it was considered expedient to give some protection
to the people against the anticipated arrest & section 439
was incorporated in the code of Criminal Procedure Code the
section does not provide to pass an order of release of
accused. That simply provides the power of the court to
direct the police that if accused is arrested he may be
released on appropriate bail and condition so that such an
accused may not suffer the hardship of facing interrogation
and remaining in the police custody. But that does not
protect him from facing the trial. While granting the bail,
generally the court has to observe that the complain appears
to be malafide and that considering the available evidence
the person is likely to be acquitted or that there is no
sufficient evidence to convict the man and if bail is granted,
he is not likely to jump the bailor to create the hurdle in the
investigation by tampering or hampering with the evidence.
He is supposed to remain present before the Investigating
Officer as and when required and also not allowed to leave
or enter particular area as mentioned in the order by the
Court. He is also not allowed to leave India without prior
permission. But accused remains an accused till the final
finding of the court. This provision is in consistency with
article-21 of the Constitution. Subsequently, after the
incorporation of section 438; a person can apply for
anticipatory bail. The ratio was laid down by Supreme Court
308
in the case of the State (Delhi Administration) vis Jaspal
Singh GilI.22 But generally to overcome the hurdle below the
application under section 438; the conditions are being laid
down by the court with the intention that an accused so
released shall be helpful to the police in the process of the
investigation.23 It was further held in the case of Balchand
Jain vis State of M.P.24, by the Supreme Court that the
powers under this section is not to be exercised lavishly. All
ratios laid down under section 437 is applicable to section
438 also, means that over and above the grounds for bail,
under section 437 much more other grounds are required to
be advanced. In the case of Gurbaksh Singh Sibbia VIS
State of Punjab25, the Full Bench has laid down eight
guardant principles directing the judges to use the power
under section 438. The said principles are as under:
(1) The power under the relevant section is to be used
only in exceptional cases that too with due care.
(2) Even the powers to be used in case of apprehension of
arrest though the complain is yet not registered.
(3) The provisions of 437 are to be read with section 438
because section 437 is the base for the bail.
(4) An application under this section must be of the nature
of an exceptional case.
(5) If the investigating agency has established the fact that
it is necessary to give accused in police custody and
that the useful information pertaining to the discovery
under section 27 of the Evidence Act is possible then
the power under section 438 can not be used.
309
(5) The power under section 438 should not be used until
the accusation of offence punishable with death or
imprisonment for life is considered wrong or
unreasonable to the discretion of the court.
(7) The powers under section 438 should not be used in
the Economic Offences related to the wide corruption
prevailing at the higher level of political and legislative
system in the interest of public and the State at large.
(8) The allegations made in the application regarding
prejudices of common nature are not sufficient. The
Court should be satisfied that allegations to such
prejudices have validity and allegations against
accused are baseless and reasonless.
The Supreme Court, in the case of Gurbaksh Singh
Sibbia VIS State of Punjab26 , has given detailed note in
facing difficulties in practical implementation of certain rules
among the eight points of this code. The Court shows the
possibility of difficulties in point no. 7; while Supreme Court
put aside point no.5. The Supreme Court had also not
declined to comment on the limitations and restrictions on
the use of power under section 438 by High Court. At the
end, the Supreme Court had suggested seven points to
remove misunderstanding:
(1) The applicant under section 438 will have to
show the reason for his apprehension of his
arrest. The reason, based on the belief about his
apprehension for arrest, should be such that, it
can be impartially verified by court.
310
(2) When such application is filed before the High
Court or Supreme Court, the court concemed
has to take a decision of this issue. The decision
cannot be left to any Magistrate for taking
decision.
(3) Before the use of powers under section 438, it is
not necessary that the prima facie report has
been presented.
(4) Till accused is arrested, shelter under this section
can be taken.
(5) Once accused has been arrested the provision of
Anticipatory Bail is not applicable.
(6) The order granting the Anticipatory Bail can be
passed without informing to the Government
Pleader. But after this, the question of
Anticipatory Bail should be reconsidered after
hearing arguments from both the parties. Such
temporary arrangement can also be made while
following the necessary terms and conditions
imposed on accused, by the Hon'ble Court.
(7) If there are grounds to grant Anticipatory Bail, the
court can after presentation of the First
Information Report, order such anticipatory bail
which remains in force for a very short period of
time. Only in such cases, after presentation of
the first information report, the applicant can be
instructed to obtain bail as per section 437, 439
311
within a stipulated period mentioned by the
courts.
Two conditions are essential before a person, applies
for Anticipatory Bail:
(1) There must be ground for one's arrest.
(2) He must be accused of having committed non bailable
offence.
The Allahabad High Court has held in the case of
Onkar Nath Agarwal and others vIs The State27 , that the
exercise of the powers under section 438, has not to be
made in blanket cover manner, covering all possible offences
of the applicant. Therefore, the question of granting
Anticipatory Bail in context where the accusation has not
been placed or where the offence has not been committed
does not arise. The application for anticipatory bail can either
be made to Sessions Court or High Court. Both these courts
have Jurisdiction over this matter, Therefore the applicant
can have options to pray before any of the court. It is
advisable to give notice to the opposite party in such cases
before passing a final order so that the irresponsible and
corrupt people do not get bail on false and concocted
grounds, thereby misusing the powers under this section.
Thus, the applicant is prevented from misusing the said
provision by submitting the misleading or suppressed facts.
The Supreme Court of India has held in a case of
Samundar Singh vIs The State of Rajasthan28 that when the
312
daughter-in- law died and if death is unnatural and the
matter is under investigation then it would not be proper to
grant anticipatory bail. Even if the person is released on bail,
he can be re-arrested canceling the order of the bail. This
ratio is laid down in the case of Usman Dawood Memon and
others vIs The State of Gujarat29 . High court has no
jurisdiction to exercise powers in the case of arrest under
section 3 and 4 of TADA. In the matter of Bhagirathsinh
Jadeja vIs The State of GujaraPO, Supreme Court has held
that while canceling of bail, the order should be based on
strong and justifiable reasons. In the case of The State of
Uttar Pradesh vIs Jairam and etc.31, it is held by the
Supreme Court that if an accused is arrested under
preventive detention and if accused is released on bail
immediately then the object of arrest would be frustrated and
therefore such powers can be utilized in case of serious
sickness or strong social causes. Further in the case of Moti
Ram VIs The State of Madhya Pradesh32, the Supreme Court
has held that the amount of security must be reasonable and
rational and should not be excessive in case of releasing on
self bond. The amount of the bond also requires being
reasonable. Particularly in case of the surety for the poor &
weaker section, women and children courts are bound to be
liberal. Conclusively, when the bail is required to be granted
or refused the nature and amount of bail and the conditions
depends upon the merits of the case and the discretion of
the judge. Granting of Anticipatory Bail depends on the
conditions of the case and the discretion of the court.
313
5.4.4. Aspects to be taken into consideration while
releasing accused on Bail:
We discussed in detail, the provisions regarding bail in
sections 436, 437,438. It is a provision to obtain bail in
bailable offence, but to obtain or to grant bail in non-bailable
offence is an important matter to discuss. In the case of The
State of Rajasthan, Jaipur vIs Balchand33, the Supreme
Court has held that the principle is, "bail not jail". Accused is
not given the advantage of being released on bail only when
there is possibility that accused may slip away from the
clutches of the law, or that may create obstacle in the spirit
and interest of justice or that he may commit the same crime
again, or is in a position to create some difficulties like
threats to witnesses. However the seriousness of the offence
is taken into consideration. The borders of the law are very
obscure and thin. As a result of that it is very difficult to
discriminate and take decision for granting a bail in various
kinds of criminal cases. These things depend mainly on the
tendency of the Judge. The law is silent. Though the
questions like freedom, justice, public security and waste of
public money are involved in this matter.
In the case of Gudikanti Narasimhulu vIs Public
Prosecutor, High Court of A.P.,34 Supreme Court has held
that the following are the norms to decide whether persons in
different case should be released on bailor not:
(1) Nature of the offence:-When the offence of the person
is of most serious in nature and its punishment is most
severe, the court should presume that no amount of
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bail would secure the presence of the offender and
there should be some evidence supporting this
presumption.
(2) Nature of evidence and possible punishment- The
nature of evidence is of utmost importance and
depending on it, the conviction is decided
(3) Possibility of interference in justice: - whether accused
released on bail would interfere in the course of justice
or would interface with the witnesses of complainant
side, or would hinder the judicial proceedings. All these
conditions are required to be taken into consideration.
(4) Antecedents of the applicant-If released on bail,
whether he is likely to commit another offence or not.
(5) Further interest of Justice:- Article 21, 22 and 19, of the
Constitution of India should be considered while
granting bail. Personal liberty and should not be
unnecessarily affected.
(6) Parameters to be considered by Supreme Court while
granting bail:- Supreme Court has to study the
judgments of the lower courts. If accused is presumed
to be innocent, the opportunity of jumping the bail can
not be presumed vice versa if the lower court has
prima facie refused the bail & convicted accused, then
the Supreme Court will reconsider the reasons and
only in exceptional case he will exercise his power.
(7) Social status and environmental aspects of accused:-
When an accused or an applicant appeals for bail and
he is afraid of vengeance from any opponent, then he
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would be safer in the prison than in his village.
Sometimes accused can be safer in the jail than be
released on bail because the opponent party coming
from the particular caste may cause danger upon the
life of accused in his locality.
(8) Possible misconduct:- The say of the police about the
possible misconduct of accused may not be accepted
by the judge. However, he shall consider the same
cautiously at the same time.
(9) Period spent in jail:- The period spent in prison and the
possible delay in hearing of appeal should be
considered. In non-bailable offence, mainly when the
trial is commenced, the court while granting bail should
consider the nature of crime, its seriousness, possible
absence of accused due to special reasons during the
trial, fear of inducing witnesses, and the broad benefits
of the State and public should be considered. It is held
by Supreme Court in the State vIs Jaspal Singh Gil1.35
Thus in Criminal Procedure Code all these points are
to be considered while granting bail in non-bailable
offence.
5.4.5. Right of Accused to be produced before the
Magistrate:
The persons arrested under section 56 and 57 of
Criminal Procedure Code are to be produced before the
Magistrate. When a police officer arrests a person without
warrant, he has to produce accused before the Magistrate
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having the jurisdiction or to the In Charge officer of police
station without any unreasonable delay.
The liberty of the person arrested without warrant is
protected under section 56. It is the duty of the police officer
making the arrest, to produce the person before the
Magistrate or the in charge officer of the police station,
without any unreasonable delay. If the arrest is made by the
police station in charge officer, and the person furnishes bail,
he should be released on bail. If the person is not arrested
by police station in charge officer, he should be produced
before the police station in charge officer. If the person is
arrested under non-bailable offence by the police officer, he
should be produced before the Magistrate as per the
provision of section 167 of Criminal Procedure Code.
When a person is arrested without a warrant in a non-
bailable offence by a police officer, he cannot keep him in
custody for more than 24 hours excluding the journey time
which should be given extra in addition to 24 hours as
stipulated in Criminal Procedure code in accordance with the
law. This provision tries to maintain the assurance given in
Article-22 of Constitution of India. The arrested person
should be informed the reasons for the arrest at the time of
arrest. The person arrested under warrant is informed with
the summary of the arrest. Thus with a view to avail fast legal
proceeding to the person arrested without warrant, the
section is formulated from the initial word of this section, it
transpires that it is meant for those arrested without warrant.
As per this provision, the person can not be kept into custody
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in more than reasonable period considering the
circumstances of the case. When any person is detained by
the police, he is said to be in police custody.
Under this section, a period of maximum 24 hours is
fixed for the detention of such person. It does not mean that
the police are given unlimited right to keep such person in
custody for 24 hours. Once the police interrogation is
finished the police have no right to keep the person in
custody for any further time. Even if accused has pleaded
guilty, he should not be kept in custody for more than 24
hours. The period of 24 hours has to be constant. If the
investigation is not completed within 24 hours, accused
should be produced before the nearest Magistrate. If the
Magistrate deems fit, he may grant permission to keep him in
custody for further 15 days, which is known as remand to us.
These 24 hours is exclusive of the journey time.
Thus the right of accused to appear before the
Magistrate is given under section 56 and 57 of Criminal
Procedure Code.
5.5 Right of accused to Defend:
Here we will discuss the Right of accused to defend
him before the charge sheet is framed.
If accused feels that he himself is innocent and the
First Information Report lodged against him is with the
ulterior motive and to harass him which may result into the
infringement of his constitutional rights or in fact the matter
which is placed or recorded in the First Information Report is
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completely concocted, fabricated or falsely narrated or the
matter is of civil nature and it is modified into criminal matter,
then he can go for quashing the First Information Report.
The High Court has got inherent powers of quashing the
F.I.R. under section 482 of Criminal Procedure Code. This
kind of power is very sparingly used by the High Court.
Normally, in the case of any kind of injustice caused to
accused, he may go for filing either revision or appeal. But in
addition to this kind of right, he may approach the High Court
for quashing the F.I.R. in the appropriate case.
Under section 482 of Criminal Procedure Code
nothing in this code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary to give effect to any order under this code,
or to prevent the abuse of the process of any court or
otherwise to secure the ends of justice.
However, exercise of inherent power should not be
used when other remedy under other provisions are
available.
Accused is given the right to defend under section 240
to 247 of Criminal Procedure Code under chapter nineteen in
case of warrant cases.
When any charge is framed against accused, it is read
and explained to him and then he shall be asked by the
Magistrate whether he pleads guilty of the charge or to be
tried. If accused pleads guilty, the Magistrate shall record the
plea and can convict him, as mentioned in section 241. If
accused refuses to plead guilty or claims to be tried or the
319
Magistrate does not convict him under section 241, further
date for trial shall be fixed as provided under section 242, for
examination of witnesses. After that accused is asked to
make his defence and present his case. Any written
Statements produced by him shall be recorded and after that
he may request for producing of any witness for examination
or cross-examination, which is mentioned in section 243.
When in any warrant case other than that of a police report,
accused appears or is brought before the Magistrate; the
Magistrate shall hear the prosecution and take all such
evidence produced in support of the prosecution. The
Magistrate may on the application of the prosecution, issue
summons to any witness directing him to be present or
produce any document or any other article, as mentioned in
section-244. After recording evidence of the prosecution, if
the Magistrate feels and comes to the conclusion that
accused is a culprit then will punish him accordingly but if he
considers that the prosecution has not proved the case
accused will be discharged and acquitted as provided under
section. 245.
It is held by Supreme Court in Khatri and others vis
State of Bihar and others36 that once charge is framed, the
Magistrate cannot discharge and release accused from the
charges. The court frames the charges in writing and follows
the procedure under section 246. If in any case, accused is
not discharged under section 245, he is given the right to
defend and produce his evidence, which is mentioned in
section 247.
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Under this provision, accused is made aware of his
offence from the very beginning and is asked to give his
defence and is allowed to produce evidence, if any. Accused
is given full liberty to defend himself, as per the principles of
natural justice as mentioned in the above said provision.
5.6 Right of accused to know the reasons of Arrest:
Whenever accused is arrested without warrant, the
police officer who makes the arrest has to immediately
inform the person arrested as to the reasons for his arrest. If
accused is arrested in bailable offence, the police officer is
supposed to inform accused that he has the right to be
released on bail, and can also arrange for bail on his behalf.
It is held by the Supreme Court in Madhu Limaye and
others vIs the State of Maharashtra37 that the person
arrested has to be informed the reasons for his arrest and
when he is arrested under bailable offence accused has to
be informed about his right to be released on bail.
5.7 Right of accused to engage an Advocate:
Whenever any person is accused of any crime in a
criminal court, or against whom proceedings are initiated
under this code, he has the right to defend himself by a
lawyer of his choice; it is mentioned in section 303 of this
code. It is mentioned in section 304(1) that, in a trial before
the Sessions Court, if accused is not represented by a
pleader and if it appears before the court that accused has
no sufficient means to engage a pleader, the court shall
321
assign a pleader for his defence at the expense of State. The
High Court is given the right to make rules to help accused.
The right of accused to avail free legal aid is admitted in this
section. It is the duty of the court to inform accused that he is
entitled to avail this aid.
When accused is produced before the Magistrate for
the first time, since then this right begins and remains during
the trial and it is also available for the protection of
constitutional and legal rights of convicted prisoner and also
to protect against the torture, threat, misconduct and other
difficulties caused by officials, which is held by Supreme
Court in Sheela Barse vis State of Maharashtra.38 The
Supreme Court in case of Francis Coralie Mullin vis
Administrator, Union Territory of Delhi and ors.39 has
accepted the right of accused to meet his legal advisor. In
Francis, article 14 and 21 were used to spell out the right of
detenu to consult a Lawyer of his choice. If accused can not
afford a pleader accused can not afford a pleader, he would
have to come across the trial without any legal aid, which
would not have been fair, just and in accordance with law. In
such proceedings the availability of legal aid is very
important. Such aid is the constitutional right of each
accused. Also it is the preliminary duty of every State to
provide legal aid in appropriate cases, but accused should
also be eager to avail such aid, which is held by Supreme
Court in Hussainara Khatoon.4o Thus this is an important
right of personal liberty under Article-21. It is held by the
Supreme Court in the case of Madhav Hayawadanrao
Hoskot vIs State of Bihar 41 that right of legal aid is fair, just
and in accordance with law to accused under Article-21. The
court in this case followed the footsteps of Gideon vIs
Wainright, the celebrated decision of Warren Court of United
States. In Khatri vIs State of Bihar, free legal aid was held
necessary not only at the trial but also before the examining
Magistrate and at the time of remand. In the case of State of
Maharashtra vIs Ravi Kant Patil, the handcuffing and
parading of under-trial prisoners was held to violate Article-
21. Therefore, even if accused does not apply for it, he
should not be barred of this right, but in the cases of moral
turpitude, economic offences, prevention of Immoral Traffic
Act and the exploitation of the children, such legal aid should
not be granted as a social obligation but is the constitutional
right.
In the matter of Suk Das and another vIs Union
Territory of Arunachal Pradesh,42 it is held by the Supreme
Court that, the Magistrate, without informing accused that he
is entitled for free legal aid and whether he needs such aid at
the expense of the State, convicted him without allowing him
to defend his case by pleader. Therefore the Supreme Court
held that it is a breach of Article-21 of the Indian Constitution
and acquitted accused and withdrawn the sentence, and also
criticized that proper care regarding legal aid is not taken by
the court. Thus, it is the duty of the court to provide the right
of defence to accused and if accused can not afford a
pleader, he should be provided legal aid at the expense of
the State. It is the constitutional right of accused to avail this
aid. In present time, provision of legal aid to accused to
defend himself is provided in the Legal Services Authority
Act of 1987. In this way, accused hold the right to engage a
pleader and defend him.
5.8 Right of accused of Trial in Open Court:
The place where a criminal court is located for inquiry
or trial shall be deemed to be an open court, to which the
public generally may have access, so far as the same can
conveniently contain them. But the presiding judge, at any
stage of an inquiry or trial, if considers necessary can
prevent the entry of public generally or any person who
create hurdle in the trial, in the court room or building used
by the court. The provision is incorporated in Criminal
Procedure Code in section 327. It is open for the court to
hold the prosecution in any place within his jurisdiction. In the
case of Raj Kumar Chauhan vIs The State of Tripura,43 it is
held that the magistrate can held the court in his residential
house during holidays. He can decide the bail application
even sitting at home and the powers are discretionary. It is
mentioned in section 327(2) that notwithstanding anything
contained in subsection(1), the inquiry and trial of rape case
or an offence under section 376-A, 376-8, 376-C or 376-0 of
the Indian Penal Code shall be conducted In- Camera. The
Magistrate may also conduct In- Camera trial, if necessary in
other sensitive cases.
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Thus under the prevailing custom of our judiciary and
under section 327 of Criminal Procedure Code, accused has
the right to trial his case in open court.
5.9 Right of accused to Produce his Witness and examine
them:
This provision is provided under section 240 and 243
of Criminal Procedure Code.
rf upon consideration, examination and hearing the
Magistrate is of the opinion that there is ground for
presuming that accused having committed an offence triable
under this Chapter, and the Magistrate is competent to try
the case, he shall frame the charge against accused in
writing. It is stated under section-240 that the charge shall be
read to him and shall be asked whether he pleads guilty of
the offence or claims to be tried.
After framing charges legal proceedings are done and
evidence of prosecution are recorded then accused shall be
called upon if he wants to produce any evidence for his
offence under the provision of section 243. As per section
243:
(1) Accused is called upon to enter upon his defence and
produce his evidence and if accused puts in any
written Statement, the
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