RIGHTS OF VICTIM AND ACCUSED-F NURSING.pptx

Semester V of Forensic Nursing curriculum

1. RIGHTS OF AN ARRESTED PERSON

2. WHY DO WE NEED RIGHTS FOR AN ARRESTED PERSON? “ANY PERSON MUST BE TREATED AS A HUMAN BEING, IRRESPECTIVE OF THE FACT THAT SUCH PERSON IS A CRIMINAL.” The accused persons are also granted certain rights, the most basic of which are found in the Indian Constitution. Article 21 of Indian Constitution provides few rays of hope to the lives of arrested, under trials and convicts. The treatment of such people must be humane and, in the manner, prescribed by law. Hence, the accused has been provided with certain rights under the law.

3. RIGHTS OF AN ARRESTED PERSON 1. Right to a Fair and Just Trial 2. Right to Know the Grounds of Arrest 3. Right to Remain Silent 4. Right to be Informed of the Provision for Bail 5. Right to be Taken to Magistrate Without Delay 6. Right to Consult Legal Practitioner 7. Right to Free Legal Aid 8. Right to be Examined by a Medical Practitioner

4. 1. RIGHT TO A FAIR AND JUST TRIAL Any provision related to the right to a fair trial is not given in CrPC , but such rights can be derived from the Constitution and the various judgements. Article 14 of the Constitution states that ”all persons are equal before the law”. It means that all the parties to the dispute should be given equal treatment. The principle of natural justice should be considered in respect of both the parties. In the case Huissainara Khatoon v. Home Secretary, State of Bihar the court held- “the trial is to be disposed of as expeditiously as possible”. Keeping with the international system of law, our constitution upholds the fair trial system and the same is also seen in our procedural law. Fair trial is necessary to protect the accused individual’s basic rights from unlawful and arbitrary deprivation and it is also based on the principle of natural justice.

5. 2. RIGHT TO KNOW THE GROUNDS OF ARREST Article 22(1) of the Indian Constitution stipulates that no police official can arrest any individual without informing the accused the reason/ ground of his detainment/ arrest. Section 50 of the Code of Criminal Procedure ( CrPC ) says that every police official with authority to arrest someone without a warrant must inform the person getting arrested about the crime for which he is arrested and other relevant grounds for the arrest. This is the duty of the police official which he cannot refuse. Section 50A of CrPC makes it compulsory for the person/ police official arresting a person to inform of the arrest to any of his relatives or even friends who may have interest in the same.

6. Section 55 of CrPC states that in situations where a police official authorises his junior to arrest a person without a warrant, the junior official must notify the arrested person of the order of delegation that is given which must also mention the crime and the grounds of arrest. Section 75 of CrPC states that the police official executing the warrant must notify the substance to the arrested person and furnish the warrant of the arrest when required.

7. 3. RIGHT TO REMAIN SILENT Right to keep silence is not recognized in any law but it can derive its authority from CrPC and the Indian Evidence Act. This right is mainly related to the statement and confession made in the court. Whenever a confession or a statement is made in the court, it is the duty of the Magistrate to find, that such a statement or the confession was made voluntarily or not. No arrested person can be compelled to speak anything in the court. Article 20 (2) states that no person can be compelled to be a witness against himself. This is the principle of self- incrimination. This principle was reiterated by the case of Nandini Satpathy vs P.L Dani . It stated, “No one can force any person to give any statement or to answer questions and the accused person has a right to keep silence during the process of interrogation”.

8. 4. RIGHT TO BE INFORMED OF THE PROVISION FOR BAIL Subsection(2) of Section 50 of CrPC states that when a police officer arrests any person without a warrant for an offence other than non-cognizable offence; he shall inform him that he has a right to release on bail and to make an arrangement for the sureties on his behalf. Article 21 of the Indian Constitution says that every individual shall have a right to liberty as per procedures established by law. However, an accused cannot be given all these liberties till he is proven innocent. But he needs to be informed that he has a right to apply for bail in bailable offences and even in non-bailable offences, bail is granted by the Court after taking into factors such as nature or seriousness of the offence, the character of the evidence etc.

9. 5. RIGHT TO BE PRODUCED BEFORE MAGISTRATE WITHOUT DELAY Article 22(2) of the Indian Constitution stipulates that the police official making an arrest must produce the arrested person before the Magistrate within 24 hours of the arrest failing to do so would make him liable for wrongful detention. Section 55 of CrPC states that in case a police official is making an arrest without a warrant, then he must produce the person arrested without any unnecessary delay before the Magistrate with jurisdiction or before a police officer in charge of the police station, depending upon the conditions of the arrest. Section 76 of CrPC states that the arrested person must be produced in court within 24 hours of his arrest, the same can must exclude the time duration which is required for the journey from the place of arrest to the Magistrate Court.

10. 6. RIGHT TO CONSULT LEGAL PRACTITIONER Section 41D of CrPC states the right of the prisoners to consult his lawyer during interrogation. Section 303 of CrPC states that when a person is alleged to have committed an offence before the criminal court or against whom proceedings have been initiated, has a right to be defended by a legal practitioner of his choice. Article 22(1) of the Constitution states that the arrested person has a right to appoint a lawyer and be defended by the pleader of his choice. The Supreme court in various cases upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.

11. 7. RIGHT TO FREE LEGAL AID Section 304 of CrPC states that when a trial is conducted before the Court of Session, and the accused is not represented by the legal practitioner, or when it appears that the accused has no sufficient means to appoint a pleader then, the court may appoint a pleader for his defence at the expense of the State. Article 39A obligates a state to provide free legal aid for the purpose of securing justice. This right has also been explicitly given in the case of Khatri v. State of Bihar, where it directed “to provide free legal aid to the indigent accused person”. It is also given at the time when the accused is produced before the Magistrate for the first time along with time commences. In the case of Suk Das vs Union Territory of Arunachal Pradesh , the court held:- “The right of indigent accused cannot be denied even when the accused fails to apply for it”. If the state fails to provide legal aid to the indigent accused person, it will vitiate the whole trial as void.

12. 8. RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER Section 54 of CrPC states that when the arrested person alleges that examination of his body will lead to a fact which will disapprove the fact of commission of an offence by him, or which will lead to commission of an offence by any other person against his body, the court may order for medical examination of such accused person at the request of him (accused) unless the court is satisfied that such a request is made for the purpose of defeating the justice. This is an absolute necessity to put on record any mark or injuries or ascertain the health of the accused when taken into custody and put it on record. Subsequently this also works as check to ensure if there was any torture by the powers that be during interrogation or during custody.

13. OTHER RIGHTS Section 55A of CrPC states that it shall be the duty of the person, under whose custody the arrested person is to take reasonable care of the health and safety of the accused. The arrested person is to be protected from cruel and inhuman treatment. Section 358 of CrPC gives rights to the compensation to the arrested person who was groundlessly arrested. Section 41A of CrPC states that the police officer may give the notice to a person suspected of committing a cognizable offence to appear before him at such date and place. Section 46 of CrPC prescribes the mode of the arrest. i.e submission to custody, touching the body physically, or to a body. The police officer should not cause death to the person while making an arrest unless the arrestee is charged with an offence punishable with death or life imprisonment. Section 49 of CrPC states that the police officer should not make more restrained than is necessary for the escape. Restrain or detention without an arrest is illegal.

14. D.K BASU v. STATE OF WEST BENGAL THIS CASE IS A LANDMARK JUDGEMENT BECAUSE IT FOCUSES “ON THE RIGHTS OF THE ARRESTED PERSON AND IT ALSO OBLIGATES THE POLICE OFFICER TO DO CERTAIN ACTIVITIES”. The court also states that if the police officer fails to perform his duty then he will be liable for contempt of court as well as for the departmental actions. Such matter can be instituted in any High Court having the jurisdiction over the matter. In spite of various efforts in protecting the accused from the torture and inhuman treatment, there are still instances of custodial deaths and the police atrocities. So, the Supreme court issued 8 guidelines for the protection of accused person and the amendment of various sections of CrPC :-

15. 1. Section 41B – The police officer who is making an investigation must bear visible, clear and accurate badge in which the name of the police officer along with his designation is clearly mentioned. 2. The police officer making an arrest must prepare a cash memo containing a date and time of arrest which should be attested by at least one members who can be his family member or any respectable person of a locality. The cash memo should be countersigned by the arrested person. 3. Section 41D - The arrested person is entitled to have a right to have one friend, or relative or any other person who is having interest in him informed about his arrest. 4. The arrestee must be informed about his right to have someone informed about his right immediately when he is put under the custody or is being detained.

16. 5. Entry is to be made in the diary which shall disclose the information relating to the arrested person and it shall also include the name of the next friend to whom information regarding the arrest is made. It also includes the name and the particulars of the police officers under whose custody the arrestee is. An examination is to be conducted at the request of the arrestee and the major and minor injuries if any found on the body must be recorded. The inspection memo must be signed by the police officials and the arrested person. 6. The arrestee has the right to meet his lawyer during and throughout the interrogation. 7. Copies of all documentation are to be sent to Magistrate for his record. It also includes a memo of the arrest 8. Section 41C - The court ordered for the establishment of state and district headquarters, the police control room where the police officer making an arrest shall inform within 12 hours of arrest and it needs to be displayed on the conspicuous board.

17. CONCLUSION THE LEGAL SYSTEM IN INDIA IS ESTABLISHED ON THE PLATFORM OF “INNOCENT TILL PROVEN GUILTY”. An unlawful arrest of an individual can be a violation of Article- 21 of the Indian Constitution. These problems undermine the essence of Article- 21 of the Indian Constitution as well as the fundamental human rights that are available to everyone under the Universal Declaration of Human Rights. The stipulations issued in D.K. Basu v/s West Bengal by the Supreme Court of India are not being properly executed and therefore, it is the need of the hour to try and execute the issued provisions and guidelines properly.

18. Penology and Victimology

19. Discuss the rights of Prisoners under the Indian constitution Introduction Prison is an institution for the confinement of persons who have been remanded (held) in custody by a judicial  authority   for doing a   crime P risoner means any person who is kept under custody in jail or prison because he/she committed an act prohibited by law. T he conviction of a human does not render him non-human. He still remains a human who should be treated like one. He should be given the basic human rights available to every man on the earth Sunil Batra v. Delhi Administration   it has been stated that it must be realised that a prisoner is a human being.

20. Fundamental Rights of a Prisoners In the case of the   State of Andhra Pradesh v. Challa Ramkrishna Reddy , the court held that a prisoner is entitled to all the fundamental rights. Right to meet family: their family member or friend should be informed of their arrest, and must have the option to visit the prisoner subject to certain security criterion. Right to Life and personal liberty :  prohibits any inhuman, cruel or degrading treatments Right to Legal Aid:   provides for free legal aid to the poor and weaker sections of the society and ensures justice for all . Case Law: M.H. Wadanrao Hoskot v. State of Maharashtra , the Court held that the right to legal aid is one of the ingredients of fair procedure

21. Right to Speedy Trial: It is very well said that justice delayed is justice denied. Every prisoner has a right to a speedy trial irrespective of the crime he is convicted of. Case Law: Hussainara Khatoon v State of Bihar:In Hussainara Khatoon (II) v. Home Secretary, State of Bihar, the Court while dealing with the cases of under trials who had suffered long imprisonment held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21.

22. Right to Privacy : Narco analysis or brain mapping on accused, suspects and witnesses without their consent is unconstitutional and violation to Right to Privacy Case Law : Selvi and Ors v. State of Karanataka . Rahmath Nisha v. Additional Director General of Prisoner and Others : The Madras Court held that the prisoner should be allowed to visit his wife in hospital and that the meeting between him and his wife should not be monitored.  Every person so arrested has a right to be produced before the magistrate within 24 hours of his arrest. This right flows from Article 22(2) of the Constitution of India and Section 57 of CrPC . Such a safeguard is provided with an intention to protect the person under custody from the likelihood of ill- treatment and torture in custody by the police. 

23. Right against solitary confinement, handcuffing and bar fetters : Solitary confinement is a kind of imprisonment in which the convict or prisoner is kept in a different cell with little or no contact from other inmates. S uch confinement shall in no case exceed fourteen days at a time. They can kept only if are of more dangerous . In the case of  Prem Shanker Shukla v. Delhi Administration , the petitioner was an under-trial prisoner in Tihar jail. He was required to be taken from jail to magistrate court and back periodically in connection with certain cases pending against him. The trial court has directed the concerned officer that while escorting him to the court and back handcuffing should not be done unless it was so warranted( when there is a danger of the prisoner becoming violent or when the person being arrested is likely to escape from custody ) Right to health and medical treatment : The Gujarat High Court in  Rasikbhai Ramsing Rana v. State of Gujarat  held that the right to medical treatment is one of the basic human rights that should be made available to every person. The court further guided the concerned jail authorities to take proper mental and physical health care of the prisoners which were suffering from any type of disease. 

24. Right to live with human dignity: The idea behind is that every person’s life is precious and irrespective of the circumstances, he should be given a sense of dignity to help him continue living. Right to Education: . In  Mohammad Giasuddin v. State of AP , the court tried to regulate the manner of work and education provided to the inmates of the jail . Right to receive books/magazines : prisoners must have access to reading materials and other educational facilities to nurture their skills and overall personality development. Right to publication: State of Maharashtra v. Prabhakar Pandurang Sanzgir wherein an accused detained under preventive detention was not allowed to hand over his unpublished book to his wife for publication, the court termed such an act as violative of Article 21. 

25. Conclusion Prisoners do not cease to be human beings when put behind bars. The Supreme Court and many other courts of India have stated in several cases that prisoners should not become a victim themselves. And are provided with a proper rehabilitative environment to help them improve and become better beings.

26. Vicitims right to compensation Crpc Sec 357 Victim: A victim of crime is a person who suffers any loss or injury as a result of the crime victim" is defined in Section 2( wa ) by the Code of Criminal Procedure (Amendment) Act ,2008of the Criminal Procedure Code, 1973. The term "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. Compensation is money awarded someone in recognition of loss, suffering or injury. The compensation to victim of crime is a matter of concern, throughout the world. More than four decades back Krishna Iyer J speaking, It is weakness of our judicial system that victims of crime and the distress of their dependents of the victim do not attract the attention of law . the word "victim" was defined widely by the Code of Criminal Procedure (Amendment) Act , 2008 of the Criminal Procedure Code, 1973 where the term "victim " includes his or her guardian or legal heir .

27. There was 3 important amendments in Crpc in the year 2008, & 2013 as a result of this amendment we got section 357A 357B and 357C

28. Victim Compensation Scheme (S357A ) was brought in with effect from 31.12. 2009 through the Code of Criminal Procedure Amendment Act, 2008 (1)Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation. (2)Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation (quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay ) to be awarded under the scheme referred to in sub-section (1) (3)If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4)Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation .

29. (5)On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. The State or the District Legal Services Authority, as the case may be, to reduce the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer (inspector or sub inspector)not below the rank of the officer incharge of the police

30. Section  357B  – Compensation to be in addition to fine under section 326A or section 376D 0f IPC The compensation payable by the State Government under section  357A  shall be in addition to the payment of fine to the victim under section  326A   ( lays down the punishment for acid attacks ) section   376AB (commits rape on a woman under twelve years of age) section  376D ( Intercourse by any member of the management or staff of a hospital with any woman in that hospital ) , section  376DA   ( Punishment for gang rape on woman under sixteen years of age . ) section   376DB   ( Punishment for gang rape on woman under twelve years of age ) of the Indian Penal Code.

31. CrPC Section 357C. Treatment of victims All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A (lays down the punishment for acid attacks) , 376 (Punishment for sexual assault) , 376A ( Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent), 376B ( Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape), 376C (  Intercourse by superintendent of jail, remand home, etc ), 376D (Intercourse by any member of the management or staff of a hospital with any woman in that hospital) of the Indian Penal Code 1860, and shall immediately inform the police of such incident.

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