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From Arrest to Trial: Safeguarding the Rights of the Accused in India

By - King Stubb & Kasiva on May 31, 2023

In India, the rights of an accused person encompass several fundamental principles, such as the right to a fair trial, the right to obtain bail, the right to engage a criminal lawyer, and the right to free legal aid, among others. The country upholds the principle of "innocent until proven guilty," underscoring the significance of ensuring the rights of the accused. Consequently, until the guilt of an individual is established, certain rights are afforded to them. Moreover, an accused person is also entitled to "The Right to Humane Treatment in Prison," ensuring the preservation of all human rights while incarcerated.

The initial phase of a trial is known as the pre-trial stage, during which an individual possesses "The Right against Wrongful Arrest." These rights are applicable in cases where a warrant has been issued. Additionally, individuals benefit from the "Right against Self-Incrimination," as stipulated by Article 20 (3) of the Indian Constitution[1]. This constitutional right prohibits compelling a person to testify against themselves. The aforementioned examples highlight some of the rights that an accused person is entitled to both before and after arrest. This article aims to delve into several important rights of the accused in India.

Rights Before Trial

The rights of the accused before trial in India are safeguarded by the constitution and the Code of Criminal Procedure (CrPC). Section 60A[2] of the CrPC explicitly mandates that arrests must adhere strictly to the provisions outlined in the Code.

This provision emphasizes the importance of conducting arrests within the framework of established legal procedures and ensures that the rights of the accused are respected during the pretrial phase.

Right against Self Incrimination

The right against self-incrimination encompasses the accused's entitlement to refuse to testify or respond to any questions that may incriminate them. Prior to questioning, defendants must be made aware of their rights. Direct self-incrimination involves interrogation or disclosure of self-incriminating information. It is important to note that the European Union also has its own laws concerning self-incrimination.

Under Article 20(3) of the Indian Constitution, the protection against self-incrimination includes the following:

  • Defendants must be informed of their rights before making any self-incriminating statements.
  • Defendants cannot be compelled to provide any statements.
  • Statements made under compulsion of a self-incriminating nature are not admissible in court.
  • The right to remain silent must be clearly asserted by the accused unless an object or document has been seized from their possession.
  • In the case of Balasaheb vs. the State of Maharashtra[3], it was determined that the accused cannot claim absolute immunity under Article 20(3) when they are both a witness and the accused in the incident. Immunity can only be claimed against questions that may incriminate them.

Key features of Article 20(3) include:

  • The accusation of an offense: The protection applies to individuals who have been accused of an offense, and a formal charge is typically filed upon lodging an FIR.
  • Prohibition of compelling self-incrimination: Compelling someone to testify against themselves is considered duress, and any statement made under duress is inadmissible in court. Such acts are prohibited under Article 20(3).
  • However, if a person voluntarily confesses without any threat, inducement, or promise, Article 20(3) does not apply. It is important that an accused cannot be tortured or coerced into giving a confession.

In a recent case, Das@Anu vs. the State of Kerala[4]; the Kerala High Court declared in November 2022 that collecting a blood sample from the accused for evidential purposes, particularly in cases involving sexual offenses, does not amount to self-incrimination or compel the accused to be a witness against themselves. The court emphasized that the police already possess the authority to send an accused person for medical examination under Section 53A of the Code of Criminal Procedure (CrPC).

Right against Ex-Post Facto Law

The rights of the accused in India include protection against being tried for an act that was not considered a crime when it was committed but has been classified as one subsequently.

Bail as a Right of the Accused in India

In India, a bail application for regular bail can only be filed for offenses that are categorized as bailable.

  • The Obligation of the Police to Inform Nominated Persons about Arrest

According to Section 50A of the Code of Criminal Procedure (CrPC), a police officer is required to inform a nominated person about the arrest of the accused. The nominated person can be a friend, relative, or any individual disclosed or nominated by the arrested person to receive such information. This provision is outlined in Section 50A(1)[5]. Additionally, Section 50A(2)[6] stipulates that the police officer must inform the arrested person about their rights under subsection (1) as soon as they are brought to the police station.

  • Arrest Without Warrant, Notice of Appearance, and Duties of Police Officers

Section 41 of the CrPC provides the conditions under which an arrest can be made without a warrant, while Section 41A deals with the issuance of a notice of appearance before a police officer. Furthermore, Section 41B of the CrPC outlines the procedure to be followed during arrest and the responsibilities of the police officers involved.

  • Right of the Arrested Person to Consult with Chosen Advocate

Under Section 41D of the CrPC, an arrested person has the right to consult with an advocate of their choice during interrogation. The provision states that during the interrogation, the arrested person is entitled to meet their chosen advocate, although not necessarily throughout the entire process.

  • Right to Privacy: No Touching by Male Police Officer:

Section 46(1) of the Code of Criminal Procedure (CrPC) stipulates that upon the intimation of arrest and the custody of a woman accused, the arrest shall be considered valid. It further specifies that a male police officer must not touch the person of the accused, and the presence of a female police officer is necessary for such procedures.

  • Right to Minimal Restraint:

Section 49 of the CrPC emphasizes that individuals should not be subjected to more restraint than what is necessary to prevent their escape. It states: "The person arrested shall not be subjected to more restraint than is necessary to prevent his escape."

  • Right to Receipt of Seized Articles:

According to Section 51 of the CrPC, an accused person has the right to receive a receipt for any articles seized from their person during the arrest. This section applies when a person is arrested under a warrant that does not allow for bail or when bail cannot be furnished. The police officer making the arrest, or the officer to whom the person is handed over if arrested by a private individual, may search the person and place any articles, except necessary apparel, found in safe custody. A receipt must be provided to the accused for any seized articles.

  • Right of a Woman Accused to be Examined by a Female Medical Practitioner

Section 53 of the CrPC establishes that when a female accused requires a medical examination, it must be conducted by a female medical practitioner. This provision is further clarified in the proviso of Section 54, which mandates that the examination of a female accused must be performed by a female medical officer or, in the absence of one, by a female medical practitioner under the supervision of a female medical officer.

  • Right to Prompt Production before the Magistrate

According to Section 55 of the Code of Criminal Procedure (CrPC), when a person is arrested without a warrant, it is imperative that the accused be presented before the magistrate with jurisdiction or the police officer in charge of the police station without any unnecessary delay. This provision ensures that the accused is brought before the appropriate authority promptly after their arrest.

Rights During The Trial

During the course of a trial, an accused person is entitled to various rights, including the right to obtain copies of the documents filed against them and the right to a fair and impartial trial.

  • Right to Obtain Copies of the Documents:

As part of the accused person's rights in criminal cases, they have the right to receive copies of all the documents filed against them by the prosecutor. This ensures transparency and enables the accused to properly understand the case and prepare their defense.

  • Right to a Fair and Impartial Trial

Article 14 of the Constitution of India guarantees equality before the law, emphasizing that every person involved in a dispute should be treated equally. This includes the right of the accused to a fair and just trial. Additionally, the Right to Speedy Trial has been recognized as a fundamental right under Article 21 of the Indian Constitution. In the case of Huissainara Khatoon vs. Home Secretary, State of Bihar[7]; it was established that the State has a constitutional obligation to ensure a speedy trial for the accused.

Post-Trial Rights of the Accused

After the conclusion of a trial, the accused person retains certain rights. The post-trial stage, although not explicitly mentioned in the Code of Criminal Procedure 1973 (CrPC), is recognized as the third stage in criminal law. One of the most significant rights at this stage is the right to appeal.

  • Right to Appeal

According to the legal definition provided by Merriam-Webster, an appeal is a legal process through which a case is brought before a higher court for a review of the lower court's decision. There are two types of appeals:

  • Appeal on behalf of the victim
  • Appeal on behalf of the accused.

As per Section 374(1) of the CrPC 1973, if the High Court convicts the accused, the convict has the right to file an appeal before the Supreme Court of India under extraordinary original criminal jurisdiction.

Furthermore, Section 380 of the CrPC 1973 states that if there is more than one accused and all of them have been convicted by the lower court, then even if an appealable order has been passed against one of them, all of them can challenge the decision before a higher authority. However, it's important to note that appeals are not allowed in petty cases as specified in Section 376 of the CrPC[8].

The grounds for not allowing an appeal in such cases are as follows:

  1. When the High Court has sentenced the convicted person to imprisonment not exceeding 6 months and a fine not exceeding Rs 1000, or both.
  2. When the Sessions Court or the Metropolitan Magistrate has imposed a sentence of imprisonment not exceeding 6 months and a fine not exceeding Rs 200, or both.
  3. When the Magistrate of the first class has imposed a fine not exceeding Rs 100.
  4. When, in a summary trial, the Magistrate has imposed a fine not exceeding Rs 200.

Furthermore, an appeal cannot be made against a judgment delivered under Section 265G of the CrPC 1973, except through a Special Leave Petition under Article 136 of the Indian Constitution or through writ petitions under Articles 226 and 227 of the Indian Constitution.


The rights discussed above, along with a few others, are provided to the accused person because, according to the law, they are considered innocent until proven guilty in a court of law. These rights are crucial in ensuring that the dignity of the accused is safeguarded, as the law recognizes the right to live a life of dignity and not mere animal existence under Article 21.

In the 1981 case of Francis Coralie Mullin vs. The Administrator (1981 AIR 746)[9], the Supreme Court emphasized that the Right to Life encompasses the right to live with dignity. Therefore, the aforementioned rights serve to protect the dignity of the accused, as the legal system upholds the presumption of innocence until guilt is proven.

By upholding these rights, the criminal justice system aims to strike a balance between the interests of the accused and the need to ensure a fair and just trial. It is through the recognition and protection of these rights that the principles of justice, fairness, and equality are upheld in the legal proceedings concerning the accused.


What is the significance of the right against self-incrimination?

The right against self-incrimination ensures that an accused person cannot be compelled to be a witness against themselves. It protects individuals from being forced to make statements or provide evidence that may incriminate them in a court of law.

Can an accused person choose their own lawyer during the trial?

Yes, an accused person has the right to choose and hire their own lawyer to represent them during the trial. This ensures that they have proper legal representation and can present their case effectively.

Are there any restrictions on the right to appeal after conviction?

While the right to appeal exists, there are certain limitations. Appeals may not be allowed in petty cases or if the sentence imposed by the lower court is below a certain threshold. However, in more serious cases, the accused has the right to file an appeal before a higher court for a review of the decision.

[1]INDIA CONST. art. 20 (3)

[2]The Code of Criminal Procedure, 1973; Sec. 60 A, No. 2, Acts of Parliament, 1974 (India)

[3]Balasaheb vs. State of Maharashtra; 1994 CriLJ 3044

[4]Das@Anu vs. the State of Kerela; CRL MC NO. 8065 of 2018

[5]The Code of Criminal Procedure, 1973; Sec. 53 A (1), No. 2, Acts of Parliament, 1974 (India)

[6]The Code of Criminal Procedure, 1973; Sec. 53 A (2), No. 2, Acts of Parliament, 1974 (India)

[7]Huissainara Khatoon vs. Home Secretary, State of Bihar; 1979 AIR 1369

[8]The Code of Criminal Procedure, 1973; Sec. 376, No. 2, Acts of Parliament, 1974 (India)

[9]Francis Coralie Mullin vs. The Administrator 1981 AIR 746

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