This article is written by Samriddhi Mishra of National Law University, Odisha, 2nd semester, an intern under Legal Vidhiya
ABSTRACT
A defendant is someone accused of committing a crime in criminal proceedings, and in civil proceedings, the defendant is the person against whom the plaintiff files a lawsuit or other legal action in a civil case. “The Criminal Procedure Code 1973” and the “Indian Penal Code 1860” govern criminal law in India. The Civil Procedure Code governs civil suits. The defendant has to defend himself or herself in court. This article seeks to understand the court proceedings from the defendant’s side in both criminal trials and civil suits. The article details the procedures of criminal and civil proceedings and studies the role of the defendant in the proceedings. The article studies the procedures the defendant goes through, the rights given to defendants, and what the defendant has to do in court.
KEYWORDS- defendant, criminal trial, accused, civil suit, plaintiff
INTRODUCTION
One who is accused or charged with a crime or wrongdoing in a legal proceeding is referred to as a defendant. In criminal cases, the defendant is the party who is the target of the prosecution’s criminal charges. A defendant is someone who has been charged with a crime and must face a criminal trial. At the conclusion of the trial, the defendant or accused is either convicted, that is, sentenced with punishment, or acquitted, that is, absolved of all charges. The state prosecutes the defendant in a criminal case. Even when a single person is the target of a crime, it is still regarded as a crime against society as a whole, and as a result, the state will represent the victim in court.
The defendant is the person against whom the plaintiff files a lawsuit or other legal action in civil cases. The defendant is required to respond to the allegations made by the plaintiff and defend their position in court. The burden of proof in civil cases is generally lower compared to criminal trial.
DEFENDANT IN A CRIMINAL PROCEEDING
Commission of crime
Whenever a person commits an act that falls under the definition of a crime under the “Indian Penal Code 1860(IPC)”, that person is said to have committed a crime. The IPC defines a list of crimes and their punishments. The IPC defines substantive criminal law.
Offences in the IPC are divided into cognizable and non-cognizable offences, compoundable and non-compounding offences, and bailable and non-bailable offences.
The procedure for conducting a criminal trial is defined by the Code of Criminal Procedure (hereinafter referred to as CrPC). CrPC deals with pre-trial and trial procedures. The pre-trial procedures include the FIR, arrest and bail procedures, and framing of charges. Whenever a commission of an offence takes place, the procedure as described in the CrPC is followed.
Information to the police
After the commission of a crime, when the registration of an FIR takes place, the nature of the proceeding varies depending on whether the offence is cognizable or non-cognizable and bailable or non bailable.
Cognizable and non-cognizable offences are terms used to categories different types of offences based on their seriousness and the powers of the police to investigate and arrest individuals involved in those offences. Cognizable offences are considered more serious crimes, typically involving grave consequences or potential harm to individuals or society. These offences are listed under the law as crimes for which the police have the authority to make an arrest without a warrant.[1] The police can initiate an investigation, make arrests, and conduct searches without requiring prior permission from a court. Examples of cognizable offences include murder, rape, robbery, kidnapping, and other major crimes.
Non-cognizable offences, are relatively less serious crimes, often classified as minor offences or those with lower potential harm. These offences do not allow the police to arrest an individual without a warrant.[2] For non-cognizable offences, the police require a formal complaint from the affected party or a court order to initiate an investigation or make an arrest. Examples of non-cognizable offences include simple assault, defamation, public nuisance, and other minor offences.
Whenever someone is accused of a crime, he has a right to know about the charges that are framed against him. If the person is accused of a cognizable offence, the police can arrest that person without a warrant. However, if the offence is not cognizable, the police cannot arrest the defendant without a warrant issued by the magistrate.
Arrest
If the person is arrested, under Indian law, the defendant has many rights connected to the arrest.
If no charge is sufficiently established, then a closure report is formed and the accused is released under Section 169 of the CrPC; however, if there is some suspicion that the accused has committed a crime, then he is named in the chargesheet and the charges are pressed against the accused.
These rights are provided in both the Constitution and the CrPC.
Article 22 of the Constitution of India lists many protections against arrest.
The person arrested has the right to be informed of the reasons for the arrest. The person also has the right to consult a lawyer.[3]
The person has the right to be presented before a magistrate within 24 hours of the arrest. These 24 hours do not include the time required for the journey. [4]
In CrPC Section 55, it makes provision for the right to appear before the magistrate when an arrest is made without a warrant. Section 76 makes provision for the same right when an arrest is made in execution of the warrant.
Under the CrPC, too, the defendant has a right to know the charges they are accused of. As per section 50 of the code police officer concerned who arrests a person without a warrant has to explain the charges made against the defendant, the grounds of his arrest,
The police officer also has to inform the defendant about his right to bail if the defendant is charged with a bailable offence.
Section 50 A of the code also gives the arrested person the right to communicate details of his arrest to any nominated person of his choice. The nominated person can be a family member or friend.
When the arrest of a defendant is done in pursuance of executing the warrant, the defendant has a right to be know all about the content of the warrant, and if necessary, the defendant can also demand to take a look at the warrant himself.[5]
In “DK Basu v. The State of W.B.” the apex court has issued several rules that must be followed in the event of arrest or detention. These regulations require that arresting officers must possess appropriate, visible and conspicuous identification, designated name tags, memos must be signed by both the arrestee and family members, it stipulated that arrests must be notified to family and friends. The defendant argued that the court must issue an arrest warrant. An arrested person may be allowed to speak to a lawyer during an interrogation, but not during the entire interrogation or in many other situations.[6]
According to Section 49 of the Criminal Procedure Code, restraint should only be used when it is justified, meaning that, if necessary, reasonable force should be used. However, an arrest must first be made before anyone can be kept under any type of restraint.
In “Joginder Kumar v. State”, the court stated that police without any doubt have right and power to arrest but arrest must be justified and should have a reasonable basis.
“Every arrest should be made after the police officer reached a reasonable satisfaction after the Investigation that the complaint was genuine and bona fide, the accused was complicit in the Crime, and the arrest was necessary and justified”.[7]
When the defendant is accused of charges that are bailable offences, the person has the right to be released on bail. The courts have time and again emphasized that jail is an exception and bail is the rule. A person can apply for bail under Section 436 of the CrPC and be released in exchange for a surety.
Anyone arrested is still entitled to humane treatment. The individual must be accorded respect even when they are in police custody.
The defendant in police custody has the right to remain silent. The defendant has a right against self-incrimination. The defendant cannot be forced to admit that he is guilty. He cannot be forced to make a statement or provide evidence against himself.
The Supreme Court ruled in Nandini Satpathy v. P.L. Dani (1978) explained that the scope of the Article 20(3) constraint goes back to the stage of police interrogation and does not initially begin in court. It also protects defendants when it may prevent them from coming forward voluntarily in connection with other crimes being investigated or being investigated. [8]
The police cannot subject the defendant to torture inside police custody. In “State of Andhra Pradesh v. Venugopal and Ors. (1963)”, the court declared that torture committed while a person is in the custody of the police constitutes a serious crime and sentenced those responsible to a rigorous 5-year prison term.[9]
Before the trial begins, the accused must be asked by the court if he wants to plead guilty or not guilty. According to Section 253 of the CrPC, the person’s guilty plea may result in a conviction.
Trial
After the trial starts, the defendant has a right to a fair trial and to be heard. The person has a right to legal aid. If the defendant cannot afford a lawyer, it is the state’s responsibility to provide him with legal representation.
“The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”.[10] No citizen will be denied access to justice on the basis of a financial or other disability.
In most crimes, the onus of proving accused as guilty is on shoulders of prosecution. As the legal maxim reads, “ei incumbit probatio qui dicit, non qui negat”. Meaning that the burden of proof is on the “one who declares, not on the one who denies.” The responsibility is on the prosecution to prove that the charges they have alleged are true. It is not the responsibility of the defendant to deny the facts asserted by the prosecution to prove their innocence.
According to Article 11 of the Universal Declaration of Human Rights, “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
Unless established beyond a reasonable doubt, a defendant is assumed to be innocent. A defendant is presumed innocent until proven guilty. In a criminal trial, a defendant has to be proven guilty “beyond a reasonable doubt” to establish his guilt. The evidence presented should be strong enough to confirm the guilt of the defendant. It should prove that the defendant is definitely guilty. Mere circumstantial evidence or the possibility is not enough to announce someone as guilty.
The defence upholds the fundamental principle that every person is presumed innocent until proven guilty. They emphasize that the “burden of proof” lies with the prosecution to establish the defendant’s guilt. It is responsibility of prosecution to show the charges pressed against the defendant. It is not the job of the defendant to deny the charges pressed against him.
Following the framing of the charges, the court orders the prosecution to present evidence to support the accused’s guilt. The prosecution must provide statements from its witnesses to back up its evidence. This procedure is known as “examination in chief.” It is the first interrogation of witnesses for the formation of a legal argument. Any person can be summoned as a witness by the magistrate, and he has the authority to request the production of any documents.[11]
In accordance with Section 313 of the CrPC, the court records the accused person’s statement. The accused has a chance to be heard and present their side of the story regarding the events leading up to the accusation. The defendant presents its own version of the facts as opposed to the prosecution’s. The defendant responds to the prosecution’s facts and arguments. The defendant also presents their defence if they have any available defence as per the rules and facts of the case.
Section 54 of the law gives the court the authority to order a medical examination of an arrested person. If a person who has been arrested claims that a medical examination of his body would reveal information that would negate the fact that he committed the crime or information that might point to evidence that someone else committed the crime against his body.
The defence lawyer can also cross-examine the witness and the evidence presented by the prosecution.[12] During the trial, the defence has the opportunity to cross-examine prosecution witnesses by cross-examination and asking questions, the defence seeks to cast doubt on the reliability or accuracy of the witnesses’ testimony by raising questions about their credibility, exposing any inconsistencies or biases, and challenging the witnesses’ testimony.
To establish its own version of the facts, the defence can present its own evidence or proofs. The defence presents its own proof, which could be in the form of physical evidence, expert testimony, or witness testimony. They attempt to offer a different explanation for the alleged crime or cast doubt on the prosecution’s version of what happened.
The defence tries to dispute the facts presented by the prosecution. The defence tries to create a reasonable doubt in the prosecution’s argument. If the charges cannot be established beyond a reasonable doubt, then the defendant cannot be considered guilty. The defence thoroughly examines the prosecution’s evidence, including witness statements, forensic reports, and other relevant documents. They investigate the circumstances of the alleged crime, looking for inconsistencies, biases, or errors that could weaken the prosecution’s version. This weakens the argument of the prosecution. the defendant should try his best to raise doubts in the mind of judge regarding the trustfulness of events as narrated by the opposing side.
The defendant has the right to a fair and speedy trial once the trial starts. In “Shira Bhath v. Coalition of India:”, the Court ruled that Article 21 of the Indian Constitution enshrines a person’s “fundamental right to a speedy trial”.[13]
The same was reaffirmed in “Ashim v. National Investigation Agency”[14], the apex court of the land Supreme Court ruled that taking away someone’s freedom without no guarantee of a speedy trial violates right to life. The defence attorney represents the accused throughout the trial process, providing legal advice, protecting their rights, and ensuring a fair trial. They work closely with the defendant to gather relevant information, interview witnesses, and develop a defence strategy. The defendant has the right to attend hearings, to be present at each hearing and has the right to know all the evidence and testimonies recorded against him. The person has the also has to be provided with photocopies of all the documents admitted in the trial, like FIR, chargesheet etc. These copies are given to defendant without any cost.[15] The defendant can be cross examined by the prosecution during the trial.[16]
At the end of the trial, both sides present their closing arguments and sum up the whole case from their side. The defence lawyer sums up the case and tries to point out errors and inconsistencies in the prosecution’s case. The defendant tries to prove their innocence and show how the prosecution is unable to establish the defendant’s guilt beyond a reasonable doubt.
If the defendant is found guilty, the defence attempts to secure the minimum possible punishment.
Post trial
If the defendant is acquitted, he is absolved of all charges. However, if he is found guilty of the charges against him, he has the option of appealing or serving the sentence.
DEFENDANT IN CIVIL CASE
The Code of Civil Procedure, 1908, governs civil lawsuits in India. Civil suits are different from criminal cases, where the defendant is charged for civil wrongs like torts or property disputes. While the defendant in criminal cases is prosecuted by the state, in civil cases, an action is brought against the defendant by a private party known as the plaintiff. While intention plays a very important role in criminal matters it does not show in civil matters also the Evidence requirements become more stringent in criminal cases, the same is not true for civil suits.
In civil suits, the plaintiff brings an action against the defendant for the harm caused to him and asks for damages or any other remedy.
The civil suit begins after the plaintiff presents the plaint. It is filed by the plaintiff and formally states their claims against the defendant in accordance with Order 7 of the Civil Procedure Code of 1908.The plaint contains the name of the court, the names of the parties, the address, the verification claim, information about the event that led to the filing of the suit, and the remedy the plaintiff is seeking from the court.
The defendant is then informed about the case if plaint is accepted and is summoned to court. The defendant then has to file a “written statement” that contains his defence against the plaintiff.
After written statement is filed, the plaintiff files his reply, other documents are filed, and the hearing of the suit begins, with the court framing the issues. These issues outline the disputes that the court will have to decide. Both parties file documents as required by the case, disputing each other claims and reply to each other claims
After issues are framed, the court starts examining the evidence and witnesses.
The defendant has to present evidence to support his claim and has to lower the credibility of the evidence submitted by the plaintiff. The defendant can cross examine the witness presented by the plaintiff. The defendant has to present legal arguments to support his case and, if available, present legal defenses for his case.
Both parties present arguments to support their cases and sum up their arguments.
Afterwards, judgement is pronounced by the court after the final hearing. The defendant can accept the order, or if he is dissatisfied, he can apply for an appeal, review, or reference.
CONCLUSION
A defendant is a person charged with committing a criminal offence in a criminal case, and in civil cases, an action is brought against the defendant for civil wrongs like property disputes or torts.
In civil cases, the plaintiff, a private party, files the lawsuit; in criminal cases, the state prosecutes the defendant. In both cases, the defendant has to present evidence and witnesses to dispute the claim of the opposing party. The defendant has to reduce the credibility of the witnesses and the evidence of the other party. The strength of evidence required on the basis of which conviction is sought is higher in criminal trial. The same is not true for civil matters. The evidence need not be that strong in civil suits in a criminal case, the prosecution has to establish that the defendant is definitely guilty and the possibilities of some other scenario is negligible.
[1] S.2(c), Criminal Procedure Code, 1973
[2] S.2(l), Criminal Procedure Code, 1973
[3] Art. 22(1), the Constitution of India
[4] Art. 22(2), the Constitution of India
[5] S.75, Criminal Procedure Code, 1973
[6] D K Basu v. The State of W.B, AIR 1997, SC 610
[7] Joginder Kumar v State of UP, AIR 1994 SC 1349
[8] 1978 AIR 1025
[9] 1964 AIR 33
[10]Art. 39 A, the Constitution of India
[11] S.137, Criminal Procedure Code, 1973
[12] S.244, Criminal Procedure Code, 1973
[13] Shira Bhath v. Coalition of India,1986 SCC (3). 596
[14] Ashim v. National Investigation Agency, 2021 SCC OnLine, SC 1156
[15] S.207, Criminal Procedure Code, 1973
[16] S.313, Criminal Procedure Code, 1973
