Criminal Law
Personal safety, particularly security of life, liberty and prosperity, is of utmost importance to any individual. Further, the maintenance of peace and order is essential in any society for human beings to live peacefully and without fear of injury to their lives and property.
This is possible only in states where the penal law is effective and strong enough to deal with violators of law.
Under the Indian Penal Code, 1860, generally, there are two requirements to constitute a crime: 1. Mens reus (guilty mind) and 2. Actus reus (guilty act). However, there are exceptions to the same. While the IPC deals with substantive law, the Code of Criminal Procedure, 1973 deals with procedural law.
1. Is there a right to free legal aid?
The Constitution provides an accused the right to a speedy trial. Although this right is not explicitly stated in the constitution, it has been interpreted by the Hon’ble Supreme Court of India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation in trial should be held “as expeditiously as possible�?. In all summons trials (cases where the maximum punishment is two years’ imprisonment) once the accused has been arrested, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
2. What are the rights of an arrested person?
1. Right to be informed the grounds of arrest:
In every case of arrest with or without a warrant, the arrested person should be communicated the grounds of arrest without delay. This has been recognised as a fundamental right under Article 22 of the Indian Constitution.
2. Right to be informed of right to bail:
A police officer who is arresting without a warrant is required to inform the person arrested that he is entitled to be released on bail, if the person is not accused of a non-bailable offence.
3. Right to be produced before a Magistrate without delay:
Every arrested person is to be produced before the Magistrate without unnecessary delay and the delay should not exceed 24 hours in any case , other than time required to travel from place of arrest. Detention exceeding this stipulated time will render it unlawful.
4. Right to be examined by a medical practitioner:
Under Section 54 of the CrPC, every arrested person has a right to be examined by a medical officer soon after arrest. The medical officer should prepare a record of such examination and mention if there are any marks of injuries or violence upon the arrested person. The arrested person must be informed of this right by the Magistrate.
5. Right to consult a legal practitioner:
The right of an arrested person to consult a legal practitioner is given under Article 22(1) of Indian Constitution and Section 303 of CrPC. Additionally, an arrested person shall be entitled to meet an advocate of his choice during interrogation.
6. Right to free legal aid:
In Khatri v. State of Bihar , the Supreme Court held that there is right to free legal aid to an indigent accused person under Article 21 which commences when the accused is produced before the Magistrate. The court also held that he is to be informed about his right by the court he is produced before.
The right was expanded in Suk Das v. Union Territory of Arunachal Pradesh , the court held that this right cannot be denied on failure to apply for it and failure to provide free legal aid would vitiate the trial.
3. What are the salient changes brought in by the Criminal Law Amendment Act, 2013?
The amendments were on the basis of the recommendations by the J.S. Verma Committee. Certain new offences were introduced in the IPC which are as follows:
| Offence | Changes |
|---|---|
| Acid attack | Fine shall be just and reasonable to meet medical expenses for treatment of victim, while in the Ordinance it was fine up to Rupees 10 lakhs.
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| Sexual harassment | Means and include unwelcome physical, verbal or non-verbal conduct of sexual nature has been removed. Punishment for offence under has been reduced from five years of imprisonment to three years. The offence is no longer gender-neutral, only a man can commit the offence on a woman
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| Voyeurism | The offence is no longer gender-neutral, only a man can commit the offence on a woman.
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| Stalking | The offence is no longer gender-neutral, only a man can commit the offence on a woman. The definition has been reworded and broken down into clauses, The exclusion clause and the following sentence has been removed ‘or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking’. Punishment for the offence has been changed; A man committing the offence of stalking would be liable for imprisonment up to three years for the first offence, and shall also be liable to fine and for any subsequent conviction would be liable for imprisonment up to five years and with fine.
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| Trafficking of person | The term ‘Prostitution’ has been removed from the explanation clause
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| Rape | The word sexual assault has been replaced back to rape. The offence is no longer gender-neutral, only a man can commit the offence on a woman. The clause related to touching of private parts has been removed.
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