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Ignorant is exploited most - Rights of accused in Judicial System
Mahadeep Singh Jamwal11/21/2017 10:43:14 PM
A person without knowledge is one mostly exploited in our system. The cumbersome journey of an offence committed by someone does not stop just by its incorporation in the FIR, but it has to traverse a long journey from investigation till conclusion of the trial. The police are not unbridled horse to carry out investigation at his liking but keys of police shackles, lie in the hands of court to supervise and to monitor the investigation. We nosedive wordlessly to the police arrest and it is the first stage when arrestee's exploitation sets in motion. Universal Declaration Of Human Rights, created by the United Nations in 1948, have shielded us with the right to be protected by the law, right to no unfair detention, to be innocent until proven guilty. So a person who has to undergo this agony is well within umbrella cover of certain rights and rules at all the stages of this journey of offence. Arrest is an act of depriving someone of his liberty, usually in relation to an investigation or prevention of a crime, and thus detaining the arrested person in a procedure as part of the criminal justice system. All provisions of registration, investigation, arrest, detention, and bail in India are governed by Code of Criminal Procedure 1973, whereas Code of Criminal Procedure. 1989 (1933 AD) applies in Jammu & Kashmir. In a criminal case registered, the police had three options for concluding the case such as; close the case when evidence is deficient (sec 169) and accused to be released, closed as not admitted means no offence committed and complainant attract the provisions of section 182 RPC, case to be sent to magistrate for judicial determination (Sec 170) along with accused. The powers of arrest lie with police, and other allied agencies also with a private person (Sec 59) under certain circumstances and of course with the courts. After arrest of a person what options are left with police as well as arrestee needs to be understood? A specific series of events, legal procedures during and after the actual arrest process are required to be followed and rights enshrined in Code of Criminal Procedure, 1973 u/s Section 50 (which corresponds to clause (1) of Article 22 of the Constitution), section 53 and 54 and, Section 56 0f the CrPC (which corresponds to clause (2) of Article 22 of the Constitution) are to be honored by the police, such are; the right to be informed at the time of arrest of the offence for which the person is being arrested, the right to be informed of bail options at the time of arrest, the right not to be ill-treated or tortured during arrest or in custody, confessions made in police custody cannot be used as evidence against the accused, a boy under 15 years of age and women cannot be called to the police station only for questioning, the right to be presented before a magistrate within 24 hours of the arrest. The police custody cannot be extended beyond 15 days in Toto. The extension of custody shift to the magistrate and for the purpose the case diary (section 172 sub section I) maintained by police falls to strict scrutiny of the court (section 172 sub section 2) leaving no scope as to curtail the liberty of a citizen while deciding the validity of arrest and further custody. An arrestee has the option of even getting bail at this stage. Being ignorant of universal fact that the police custody not deprives one of his secured rights and rules on arrest in any way leave scope for the police to make the arrest a profiteering act. The arrest and interrogation has ever remained in discussions due to autocratic attitude of the police, which attracts wrath of people because of custodial deaths, torture in custody. In 1997, Honorable Supreme Court in case D. K. Basu vs. State of West Bengal laid specific requirements and procedure that the police and other agencies have to follow for the arrest, detention and interrogation of any person such as; Police arresting and interrogating suspects should wear "accurate, visible and clear" identification and name tags, and details of interrogating police officers should be recorded in a register. A memo of arrest must be prepared at the time of arrest. This should have the time and date of arrest. Be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality, where the arrest was made, be counter-signed by the person arrested. The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. This should be done by a telegram through the district legal aid authority and the concerned police station. The person arrested should be told of the right to have --someone informed of the arrest, as soon as the arrest or detention is made. An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is. The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The "Inspection Memo" should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested. The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. Copies of all documents including the 'arrest memo' have to be sent to the magistrate having jurisdiction. The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time. There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer and to be displayed. Every police station in the country should display these guidelines prominently, as well as to be broadcast through radio and television. A refined society expects that these rights of arrestee are well protected by the police and allied agencies.
After arrest of a person what options are left with the arrestee needs to be understood and it is the bail that comes into the mind of every arrestee. Bail exists because of the most fundamental idea of our criminal justice system: that one is supposed to be innocent until proved otherwise. Once a person is involved in a case for committing some offence, he should be aware about the nature of offence that means whether the offence is bailable or non-bailable. The schedule-II (Tabular statement of offences) to Code of Criminal Procedure, 1989 (1933 AD) refers all the offenses under the Indian Penal Code and puts them into bailable and non - bailable categories determined according to the nature of the crime. For general information the schedule refers those offences as non-bailable which are punishable with imprisonment for three years or more, rest all are bailable offences. Released on own recognizance is a type of "bail" for individuals, the defendant is released and signs an agreement that he will show up in court and will refrain from engaging in illegal activity. This refers to custodies for disturbing peace and tranquility and granted by executive magistrates. In case of arrests, Section 496 of CrPC; has mandated the police to release an arrestee other than accused of non-bailable offence. Section 497 provides for regular bail. Once accused is arrested and remanded to police/judicial custody, this bail is to be filed or once charge sheet is filed this bail is to be filed provided you were earlier released on anticipatory bail or interim bail and the court decides the bail matter.
Section 438 of the code of Criminal Procedure provides right to move for the anticipatory bail mentioned in section 497-A before the Sessions Court, High Court or Supreme Court, when any person apprehends his arrest on false or trumped up charges, fears building up of a false case although anticipatory bail offers immunity from custody but not arrest. Interim bail: is a protection given to someone and directions not to arrest till further orders during pendency of the application. Stay on arrest; a stay of arrest on the other hand - is a part of inherent powers of the court - it provides immunity from arrest itself. We find judicial philosophy as "Bail is the Rule and Jail an Exception".
After conclusion of the investigation, a charge sheet is filed in the court for judicial determination and here comes into picture the doctrine ascribed to William Blackstone, a commentator on laws of England (1769) that goes as; "The law holds that it is better that ten guilty persons escape, than that one innocent suffer". Like many provisions to safeguard the interest of the accused persons at the time of arrest, interrogation and bail, the accused has following rights during trial also: There is safe guard provided in section 211 of Ranbir Penal Code which provides punishment to the complainant for false charge of offences made with intent to injure a person. There is safe guard provided in section 193, 194, and 195 of Ranbir Penal Code which provides punishment to the person for giving or fabricating false evidence in judicial proceeding. The article 20 (1) of the constitution provides necessary protection against ex-post facto law. That means a person is to be convicted of an offence violating 'a law in force' only. Article 20 of the constitution in its clause (3) has provided a safe guard that a person accused of an offence cannot be compelled to be a witness against himself. The most advanced technique of scientific investigation has involved some tests as; polygraph, narco-analysis and brain-mapping that have important clinical, scientific, ethical and legal implications. But the apex court has given protection to the accused by a landmark judgment in 2010 that these tests cannot be conducted on any person without their consent. The accused is entitled to have copy of all documents attached with the charge sheet at the time of filing it free of cost. The most important right that accused have is the right to be represented by counsel. The magistrate is duty bound to ensure legal representation for the accused at the very first production. The accused has the right to present his evidence and defend his case. The magistrate is duty bound to record written statements put by the accused. The accused has the distinct and independent right to cross-examine the witnesses called by the Court. The accused has the right against self-incrimination: We also come across that whenever a situation arises during trial creating a reasonable doubt about linking of accused with offence the balance tilts towards accused. The burden of proof of commission of an offence beyond reasonable doubt lies on prosecution. When the court is convinced that there is no sufficient ground for proceeding against the accused after duly considering the case, it is the right of the accused that he be discharged.
The available rights are the awaking lines for the accused to save themselves from exploitation at various hands of the justice system and these rights promote public confidence and contribute quality of justice to victims.
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