Explained: Rights of an Arrested Person

Reading time : 10 minutes

Introduction

As we are familiar with that, the lodging of the First Information Report (FIR) by the police, the police have the right to arrest that person against FIR filed, and there is no definite period to arrest that person. However, the arrest should be the last option for the police and “prohibit exceptional cases where the arrest of the accused is mandatory, or he needs to be interrogated.” The word ‘Arrest’ means the power by a legal authority to deprive a person of his freedom or detain him in legal custody. This word is appropriately defined under the code of criminal procedure, 1973 of India. Although, according to the third National Police Commission report, it is mentioned that ‘arrests by the police in India are one of the major sources of corruption in the police[1].’ This leads to irrational and indiscriminate arrests which, causes a gross violation of human rights. “Personal liberty is a valuable fundamental right, and it should be diminished only when it becomes mandatory.”

Right to know grounds of the Arrest

Everyone is entitled to know the grounds of his arrest for which reason he has been arrested by the police. Indian legal system provides some rights by which we could know our grounds of arrest.

  • According to Article 22[2] clause (1) of the Indian Constitution, no police officer can arrest any individual without informing the accused of the reason/ ground for his detainment/ arrest.
  • According to Section 50[3] clause (1) of the Code of Criminal Procedure, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest. To arrest any person without a warrant, the offense must be cognizable. The person arrested by the police will be informed why he has been arrested. In non-cognizable offenses, the police must have a warrant to arrest any person.
  • According to Section 50 Clause (A) of the Code of Criminal Procedure, it is mandatory for a person or the police officer, who arrests a person, they have to tell that person’s arrest information to that person’s relatives or friends.

Right to Silence

The right to silence is a legal doctrine that ensures that any person who has been arrested has the right to refuse question answers by law enforcement officers or court officials. Article 20 clause (2) It repetition that no person, whether he is an 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 came out in the case of Nardini Satpathy v P.L. Dani, where the court observed that ” No person can compel any other person to present any statement or to answer any question. because the accused person has the right to put down silent during his entire interrogation.”

Right to be taken to Magistrate without any delay

Appearing before the Magistrate without delay means that any person who has been arrested by police. That person would appear before the Magistrate in 24 hours without any delay by the police. If the police could not appear that person before the magistrate than, it will be considering whole detention is unlawful. Therefore, articles of law have been provided for this right by the Government of India for us.

  • According to Article 22[4] clause (2) of the Indian Constitution, every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. 
  • According to Section 76[5] of the Code of Criminal procedure, the police officer or other person executing a warrant of arrest shall without unnecessary delay brings the person arrested before the Court before which he is required by law to produce such person: Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
  • According to Section 56[6] of the Code of Criminal Procedure, a police officer can arrest without a warrant, without any unnecessary delay, including that arrested person to bail, take or send before the magistrate having jurisdiction in the case, and before the officer in charge of a police station.   
  • According to Section 57[7] of the Code of Criminal Procedure, no police officer shall detain any person arrested in custody without a warrant for an unnecessary case, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours.

Information regarding the right to be released on bail

Bail information is the right of the arrested person. Therefore, it is likely that the crime committed by him maybe a bailable offense, for example, small theft, accident, etc. It is the duty of the police to tell the right to bail to an arrested person.

According to Section 50[8] clause (2) of the Code of Criminal Procedure, when a police officer arrests any person without a warrant other than an accused person, the police officer shall inform the arrested person that he is entitled to be released on bail because it is his duty and that the arrested person may arrange for sureties on his behalf.

Right to Legal Aid

Right to Legal Aid is entitled to every person who is accused or has been arrested by police. During an interrogation of police, a person has the right to legal aid, may consult with a lawyer, or may defend his right by a lawyer of his choice.

According to Article 22[9] Clause (1) of the Indian Constitution, Any accused and arrested person by the police. He can consult with a lawyer during police interrogation, and he can defending by a lawyer of his choice.

According to Section 303[10] of the Code of Criminal Procedure, any accused of a criminal crime before the criminal court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.

Right to Free Legal Aid

Right to Free Legal Aid is entitled to every person who is accused or has been arrested by police but, he is a poor person, he has no money to appoint an advocate and, he has no relatives then during an interrogation of police, he has right to free legal aid, the court shall assign the advocate for him on the expense of the State, who will defend that poor person’s right in court as well as in police interrogation by police.

According to Section 303[11] of the Code of Criminal Procedure:

  1. Where in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.
  2. The High Court may, with the previous approval of the State Government, provide rules-

(a) the mode of selecting pleaders for defense under sub-section (2);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).

  •  The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session.

Right to Fair Trial

The legal provision regarding the Right to fair and trial could be cited from the Indian Constitution eke many Supreme Court and High Court judgments because no particular law has been prescribed in this regard. Whenever the court decides on any matter, they should observe the principle of a fair trial. In which prosecution and defense are entitled to the right to a fair and just trial.

Article 14[12] of the Indian Constitution states that ‘every individual is equal before the law.’ This signifies that all the parties will be treated equally in legal disputes. To give justice for both parties, the court must consider the Natural Justice principle.

No handcuffing without reasonable grounds

Under Section 49[13] of CrPC, the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. This signifies that a person has already surrendered in police custody and does not want to run away from custody, so there is no need for additional handcuffs and shackles.[14]

Case Analysis        

In the case of D.K. Basu v West Bengal,[15] the court focuses ‘the police officer should do the action in a certain way in the rights of the arrested person.’ The court observes that if police officers are unable to perform their duties properly, He will be held accountable for contempt of court as well as departmental inquiry. Such a matter can be initiated in any High Court which has jurisdiction over the said dispute.

It is still common even today after several attempts to protect an accused person from unnecessary torture, inhuman conduct, the number of deaths in custody, and police atrocities. Therefore, to overcome this, the Supreme Court of India has circulated nine important guidelines to conservancy an accused person, including amendments to several sections of the CRPC.

In the case of Yoginder Singh v State of Punjab,[16] the court observed that for the execution of Article 21 as well as Article 22(1), it is mandatory that: –

  • The arrested person has the right to inform his friend, relatives, or any other person who has an interest in his arrest.
  • The person arrested should be informed of all his rights after his detention by the police officials.
  • The entry of full details of the arrest must be written in the diary, along with the name of the person to be informed about the arrest.

In the case of Prem Shukla v. Delhi Administration,[17] the court observed that ‘the arrested person/prisoner has the right to be not handcuffed in shackles unless some exceptional circumstances arise Should not be imposed.’

Conclusion

India faces enormous hard of illegal arrest, even deaths in police custody, mainly due to illegal arrests. These problems underlay the essence of Article (21) of the Indian Constitution and also fundamental rights. All fundamental rights come under the Universal Declaration of Human Rights. In the case of Basu vs. West Bengal, the Supreme Court of India has issued the guidelines which are not being Executed properly, and therefore, the provisions and guidelines issued need to be properly Executed and time to execute. Which can certainty give better results. The conclusion is that it would reduce the number of illegal arrests and result in fewer custodial deaths.

Author:  Aditya Kohli, from Dharmashastra National Law University, Jabalpur, M.P.

Editor: Kanishka Vaish, Editor, LexLife India.


[1] Third report of National Police Commission.

[2] Protection against arrest and detention in certain cases under Fundamental Rights, Part III, Article 22 of the Indian Constitution.

[3] The person arrested to be informed of the grounds of arrest, under the Code of Criminal Procedure.

[4] Supra Upper (2)

[5] Person arrested to be brought before Court without delay under Section 76 of the CrPC.

[6] Person arrested to be taken before Magistrate or officer in charge of police station under Section 56 of CrPC.

[7] Person arrested not to be detained more than twenty-four hours under Section 57 of CrPC.

[8] Person arrested to be informed of right to bail under 50 clauses (2) of CrPC.

[9] Supra upper (2)

[10] Right of person against whom proceedings are instituted to be defended under section 303 of CrPC.

[11] Legal aid to accused at State expense in certain cases under Section 303 of CrPC.

[12] Equality before law under Fundamental Rights, Part III, Article 14 of the Indian Constitution.

[13] No unnecessary restraint under Section 49 of CrPC.

[14] Yoginder Singh v State of Punjab,

[15] D.K. Basu v West Bengal, AIR 1997SC 610

[16] Supra upper, (14)

[17] Prem Shukla v. Delhi Administration 1980 AIR 1535, 1980 SCR (3) 855

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