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

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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

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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