Rights of an Arrested Person in India

This article deals with the procedural and constitutional rights of an arrested person. An arrested person, even if convicted of a crime, has certain inalienable rights that cannot be deviated from by law-enforcing authorities such as the police. These include rights to know grounds of arrest, right to bail, right to fair trial, right against self-incrimination etc. These laws and rights must be implemented properly to help reduce custodial deaths in India.

Fri Apr 29 2022 | Employment, Criminal and Labour | Comments (0)

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“Every right is a moral as well as legal entitlement to have or do something”

Every human is born with certain basic rights that he is entitled to for instance, right to live and right to freedom etc. Similarly, every citizen of every country is presented with certain rights that are absolutely fair, without any prejudice, in the spirit of common brotherhood and conscience, like the right to life, right to equality, right to freedom, right to education, right to equality, right to freedom of religion and many more. However, the same rights of a person can be  surrendered if the person gets detained/ arrested for committing a crime. Although an arrested person too has certain rights that explained below.

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 that states, “no human shall be denied of his right to life and personal liberty except if established by law”, which means that the process must be fair, clear and not arbitrarily or oppressive.

In this article, we will understand the numerous rights that an arrested person has  under law, as prescribed by the Constitution of India:

What are the different rights of an arrested person?

1 - 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- 50Aof the 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.
  • Section- 55of the 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- 75of the 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.

2- Right to be produced before the Magistrate without unnecessary 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 and failing to do so would make him liable for wrongful detention.
  • Section- 55 of the 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 within the  jurisdiction or before a police officer in charge of the police station, depending upon the conditions of the arrest.
  • Section- 76 of the 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.

3- Right to be released on bail

  • Section- 50 (2) of CrPC provides that the arrested person has the right to get released on bail by making arrangement for the sureties  and informing his of his right when arrested without a warrant for an offence other than a non-cognizable offence.

4- Right to a fair and just trial

The legal provision regarding the right to a fair and just trial can be extracted from the Indian Constitution as well as a lot of Supreme court and High court judgments since no specified law has been stipulated in this regard.

  • Article- 14 of the Indian Constitution states that ”every individual is equal before the law” which means that all the sides in a legal dispute must be treated equally.

    The principle of natural justice must be considered in respect to both the parties.

    Similarly, a right to a speedy trial has also been upheld in “Huissainara Khatoon v/s Home Secretary, State of Bihar” where the court observed that, “the trial must be disposed of as diligently as possible”.

5- Right to consult a Lawyer

  • Article- 22 (1) of the Indian Constitution provides that every arrested person has the right to choose and elect his own lawyer to defend him in the court of law for whatever crime he may/ may not have committed.
  • Section- 41D of the CrPC allows prisoners to be able to consult with their lawyers even during their interrogation.
  • Section- 303 of the CrPC allows every alleged convict/ criminal the right to be defended by a lawyer of his choice even if the criminal proceedings against him have already begun.

6- Right to free legal aid

  • Article- 39A The government, in an effort towards securing justice, instituted Article- 39A to provide free legal aid to people in need. The same right was reaffirmed in the dispute of Khatri v/s Bihar, where the court held that, “the state must provide free legal aid to the poverty- stricken accused person”. The same right to free legal aid is provided at the first instance of production of the accused before the Magistrate in the court.

    Moreover, this right to free legal aid for the accused cannot be refused even when the accused fails to ask for it himself. Now, a key note to remember is that if the government is unable to provide free legal aid to the poverty- stricken accused person, then the entire  trial will stand  void. The same was firmly established in Sukh Das v/s Arunachal Pradesh where the Court held that, “the right of a poverty- stricken accused person cannot be refused even when the accused fails to apply for the same”.
  • Section- 304 of the CrPC provides a very significant right to every accused who is set to appear before a Sessions Court  for appointment of a lawyer (totally free of cost) at the expense of the State. The court may appoint him a representing lawyer if the accused has no sufficient means to appoint himself a lawyer for his case.

7- Right to keep quiet

The right to keep quiet does not have any mention in any Indian law, however, its authority can be derived from  the Constitution’s right against self-incrimination..

The right to stay silent is principally related to the statement and confession made by the accused person in the court. In addition to this, it is the responsibility of the magistrate to perceive if any statement or confession made by the accused person was voluntarily or was after the use of force and manipulation. Therefore, police or any other authority for that matter is not allowed to compel an accused person to speak anything in the court.

  • Article- 20(2) Additionally, reiterates that no person whether accused or not cannot be compelled to be a witness against himself. This act of exposing oneself is the principle of self- incrimination. This principle was affirmed in the case of Nandini Satpathy v/s P.L. Dani, where the court observed that, “No person can force any other person to furnish any statement or compel to answer any question because the accused person has a right to keep quiet during his interrogation”.

8- Right to be examined by a Doctor

Section- 54 of CrPC asserts that if an arrested person claims that medical examination of his body would lead to a detail which would dismiss the fact of commission of the crime by him, or some detail that might lead to evidence towards commission of the crime by some other person against his body, the  court has complete discretion to order for a medical examination of an accused person at his request and the same is granted by the court when satisfied that the request is not made to delay or defeat justice.

9- Additional rights available to an arrested person

  • Section- 55A of the CrPC asserts that maintaining reasonable heath care and safety of every arrested person will be the sole responsibility of the person (police official) who has the custody of the accused.

    This principle was established to protect the arrested person from cruel and inhuman treatment in  prison.
  • Section- 358 of the CrPC is another groundbreaking effort towards the principle of natural justice where the arrested person is provided with compensation when arrested unreasonably.
  • Section- 41A of the CrPC asserts that the police official must furnish notice to the person who has supposedly committed a cognizable offence to appear before him at a specified time, date and location.
  • Section- 46 of the CrPC stipulates the mode of arrest of an accused person which includes submission to custody by the accused, physically touching the body, or to a body.

The police official must not cause death of the accused person while trying to arrest the person, except when the person to be arrested is accused of an offence, which is punishable with death or life imprisonment or when the accused person is trying to unnecessarily resist his arrest by turning violent and aggressive or when the accused is trying to escape.

  • Section- 49 of the CrPC asserts that the police official must not restrain or detain the accused without a legal arrest.

The landmark case of D.K. Basu v/s West Bengal and Ors. concentrates on “the rights of an arrested person which further compels  the police officer to act in a certain way”.

The court further observed that if the police official is unable to perform his duty properly, then he will be accountable for contempt of court and also for a departmental inquiry. Such dispute can be initiated in any High Court that has the jurisdiction over the said case .

Regardless of numerous efforts to safeguard an accused person from unnecessary torture and inhuman conduct, number of custodial deaths and police atrocities are still common. Therefore, to overcome this, the Indian Apex court circulated nine  significant guidelines to protect an accused person, which also included amendment to numerous sections of the CrPC which are as follows:

  • Section- 41B Every police official authorised to conduct the investigation/ arrest must supply clear, visible and valid badge where the name and designation of the police official is clearly mentioned.

Besides this, the police official authorised to make an arrest must prepare a cash memo with complete details of the arrest like the date and time. The same document must have signatures of at least one  family member or any one honourable person of the locality of the accused. The arrested person has to countersign the cash memo.

  • Section 41D entitles an arrested person to a right to have one  friend or relative or any other person who he wants by his side during his arrest.

The police must inform the person arrested about his right to inform someone immediately when the person is detained or put under custody.

  • Appropriate entry must be made in the diary and be maintained by the police which must furnish all the important information related to the arrest of the person, which must further include the details of the person accompanying the arrested person and also the details of the person to whom information regarding the arrest has been made.

The official diary must also include the name and additional particulars of the police officials under whose custody the arrested person is. Moreover, a medical examination has to be conducted but after the request of the arrested person, to put on record any minor or major injuries suffered by the arrested person. This inspection memo is supposed to be signed by both the police officials as well as the arrested person.

The arrested person has the right to meet his lawyer while in prison and during interrogation.

In addition to these, all the copies of the entire documentation must be sent across to the Magistrate for his record which must also include the arrest memo.

  • Section- 41C Every arrest made by any police official must be informed to the District and the State headquarters within 12 hours of any arrest which also needs to be displayed on the conspicuous board.

The Court in Yoginder Singh v/s State of Punjab observed that for the execution of Article- 21 as well as Article- 22(1) it is imperative that:-

  1. The arrested person has the right to inform his friend, relative or any other person in his interest about his arrest.
  2. The police official must inform the arrested person all his rights right after detainment/ arrest of the accused person.
  3. The entry of the arrest with complete details must be made in a diary which must include the name of the person who has been informed about the arrest.

In another landmark case titled, Prem Shukla v/s Delhi Administration, the court observed that “the prisoners/ arrested persons have a right to not be handcuffed in shackles unless and until some extraordinary circumstances arise during the arrest or when in custody”.

Conclusion

India faces a huge problem of illegal arrests as well as custodial deaths, which are majorly caused due to illegal arrests. 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, which can definitely bear better results, ultimately assisting in the decrease in  number of  illegal arrests and resulting custodial deaths.

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