RIGHTS of ACCUSED RECOGNISED aNDGUARANTEED bYTHE CONSTITUTION OF BANGLADEAH

RIGHTS OF ACCUSED RECOGNISED AND GUARANTEED BY THE
CONSTITUTION OF BANGLADESH
S.M Lutfur Rahman,
The term "accused" has not been specifically defined in the code of criminal Procedure 1898
but what we generally understand is that the accused means the person charged with an
infringement of the law for which he is liable and if convicted then to be punished. In other
words, an accused is a person who is charged with the commission of offence. The Oxford
Dictionary defines accused as, “a person or group of people who are charged with or on trial
for a crime”. An offence is defined as an act or omission made punishable by any law for the
time being in force.
Rights of accused, in law, the rights and privileges of a person accused of a crime,
guaranteeing him a fair trial. These rights were initially (generally from the 18th century on)
confined primarily to the actual trial itself, but in the second half of the 20th century many
countries began to extend them to the periods before and after the trial. All legal systems
provide certain basic rights of the accused. These include right to trial by jury (unless jury
trial is waived), to representation by counsel (at least when he is accused of a serious crime),
to present witnesses and evidence that will enable him to prove his innocence, and to confront
(i.e., cross-examine) his accusers, as well as freedom from unreasonable searches and
seizures and freedom from double jeopardy. At the present stage of civilization it has been
widely accepted as human value that a person accused of any offence should not be punished
unless he has been given far trail and this guilt has been prove in such trail.
The Universal Declaration of Human Rights, 1948, recognised certain human rights of an
individual, including an accused. The Code of Criminal Procedure enacted in 1898 also
contained many provisions giving various rights to an accused. The Constitution of Peoples'
Republic of Bangladesh provides the fundamental rights of the citizens in the third chapter
(Article 26 to 47A). It rejects any kind of discrimination in terms of religion, race, caste, sex
or place of birth. Articles: 31, 32 and 33 describe that citizens are entitled to enjoy the
safeguards as to arrest and detention, protection of the law and treated in accordance with law
and not deprived of life or personal liberty except in accordance with law, Article 35 ensures
fair trial in criminal prosecution (A man should not be punished prior to conviction).
The main rights of an accused which have been recognised and guaranteed by the
Constitution may be stated as under:
a) Rights to protection of law and Equality before the law;
b) Protection of right to life and personal liberty;
c) Right to legal defence;
d) Right to have public and speedy trial;
e) Right to be produced before a Magistrate;
f) Protection against self-incrimination;
g) Right against ex-post facto operation of law;
h) Protection against double jeopardy; and
i) Right to approach higher judicial authority for filing appeal, etc.
Rights to protection of law and Equality before the law:

The ‘concept of equality’ as enshrined in Article 27 of the Constitution of Bangladesh
prohibits the state from denying equality before the law or the equal protection of the laws to
any person on the ground of caste, creed, faith, race, religion, birth and place. The effective
derivative source of the doctrine in the criminal justice is Article 31 of the Constitution of
Bangladesh which provides that: “To enjoy the protection of the law, and to be treated in
accordance with law, and only in accordance with law, is the inalienable right of every
citizen, wherever he may be, and of every other person for the time being within Bangladesh,
and in particular no action detrimental to the life, liberty, body, reputation or property of any
person shall be taken except in accordance with law.” In a criminal trial, there are two parties:
the state and the individual. However, both the parties are unmatching in their strength and
resourcefulness, in which the individual, i.e., accused, is placed in a disadvantageous
position. The role of the doctrine of equality becomes more significant in the context of the
rights of a person who happens to be an accused of having committed a crime. This doctrine
aims to achieve equality amongst unequal in prohibiting every kind of unjust, undeserved and
unjustified inequalities in the administration of justice. As the “right of equality” and the
“equal protection of laws” are to be secured through the instrumentalities of the state, the
possible state actions do not conflict with the fundamental right of quality guaranteed against
the state.
Protection of right to life and personal liberty:

To enjoy the protection of the law, and to be treated in accordance with law, and only in
accordance with law, is the inalienable right of every citizen, wherever he may be, and of
every other person for the time being within Bangladesh, and in particular no action
detrimental to the life, liberty, body, reputation or property of any person shall be taken
except in accordance with law. Right to protection of law.
Right to legal defence:
‘No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest, nor shall he be denied the right to consult and be
defended by a legal practitioner of his choice’ is the mandate enshrined in Article 31(1) of the
Constitution.
Right to have public and speedy trial:
“Every person accused of a criminal offence shall have the right to a speedy and public trial
by an independent and impartial Court or tribunal established by law.” The principles of
openness of judicial proceedings acts as a check against caprice or vagaries and builds up
confidence of the public in judicial administration. The right to have public trial is implicit in
Articles 35 of the Constitution.
Right to be produced before a Magistrate:

Clause (2) of Article 33 of the constitution also provides that the arrested person must be
produced before the Magistrate within 24 hours of his arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate. The time can be extended
beyond 24 hours only under the judicial custody. It affords a possibility, if not an opportunity,
for immediate release in case the arrest is not justified.
Protection against self-incrimination:
Clause (4) of Article 35 provides that “No person accused of any offence shall be compelled
to be a witness against himself.” In other words, this Article prohibits all kinds of
compulsions to make a person accused of an offence a witness against himself.
Right against ex-post facto operation of law:
An ex-post Facto law is a law, which imposes penalties retrospectively, i.e., on acts already
done, and increases the penalty for such acts. Clause (1) of the Article 35 imposes a
limitation on the law-making power of the legislature and prohibits the legislature to make
retrospective criminal laws. However, it does not prohibit the imposition of civil liability
retrospectively, i.e., with the effect from past date. Article 35(1) runs as under:
“No person shall be convicted of any offence except for violation of the law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.”
Protection against double jeopardy:
Clause (2) of article 20 of the Constitution recognises another important Human Right as a
fundamental right of every citizen when it provides that: “No person shall be prosecuted and
punished for the same offence more than once”. This clause embodies the common law rule
of ‘nemo debt visvexaria’ which means ‘no man could be put twice in peril for the same
offence’. If he is prosecute again for the same offence for which he has already been
prosecuted he can take complete defence of his former conviction. This right is also provided
in the CrPC,1898.
Right to approach higher judicial authority for filing appeal:
The Constitution of Bangladesh has envisaged an appeal to the Appellate Division in
Criminal matters. Articles 103 of the Constitution provide for an appeal to the Appellate
Division on the ‘certificate of fitness’ granted by the high courts and also for an appeal to the
Appellate Division by special leave granted by it under Article 103 of the Constitution.
There is imminent need to bring in changes in Criminal Justice Administration so that state
should recognize that its primary duty is not to punish, but to socialize and reform the
wrongdoer and above all it should be clearly understood that socialization is not identical
with punishment, for its comprises prevention, education, care and rehabilitation within the
framework of social defence. Thus, in the end we find that Rule of law regulates the
functionary of every organ of the state machinery, including the agency responsible for
conducting prosecution and investigation which must confine themselves within the four
corners of the law.
The writer is a Student of Law at Daffodil International University

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RIGHTS of ACCUSED RECOGNISED aNDGUARANTEED bYTHE CONSTITUTION OF BANGLADEAH

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RIGHTS OF ACCUSED RECOGNISED AND GUARANTEED BY THE

Rights to protection of law and Equality before the law:

Protection of right to life and personal liberty:

Right to be produced before a Magistrate:

The writer is a Student of Law at Daffodil International University

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