Rights Of Arrested Person

Table of Contents

Rights of Arrested Person – Content

Introduction
Right to know the grounds of arrest
Right to be produced before the Magistrate without delay
Right to be released on Bail
Rights to a fair trial
Right to consult a lawyer
Right to free legal aid
Right to keep silence
Right to be examined by the medical practitioner
Conclusion

Introduction

While framing the Chapter on fundamental rights, the makers included the inviolable right to freedom and personal liberty which could not be taken away.

Article 21 provides that “no person shall be deprived of life or personal liberty”.

Under the provision of UDHR “no person” does not mean only citizens, it includes all persons of India irrespective of their nationality. Under this Article several “rights of an arrested person” evolved.

Right to know the grounds of Arrest

Article 22(1) of the Constitution provides that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest.”

Section 50(1) of CrPC states that “every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for much arrested”.

Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55 of CrPC, such subordinate officer shall, before making the arrest,

notify the substance of the written order given by senior police officer to the person who will be arrested specifying the offence or any other cause/offence for which the arrest is to be made. And, non-compliance with this provision will render the arrest illegal.

Thirdly, in case of arrest to be made under a warrant, Section 75 of CrPC provides that “the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person who will be arrested, and if required then show him the warrant too”.

And if the substance of the warrant is not notified, then, in that case, the arrest would be unlawful.

Section 50(1) of CrPC confers a valuable right and non-compliance with it amounts to a disregard of the procedure established by law.

Making know to the accused grounds of his arrest is a Constitutional requirement and failure to comply with this requirement renders the arrest illegal.

In Ajit Kumar v. State of Assam, ¹ it was held that when a person arrested without warrant alleges by affidavit that he was not communicated with full particulars of the offence leading to his arrest,

in the face of this affidavit the police diary cannot be perused to verify the police officer’s claim of oral communication of such particulars. No counter-affidavit denying the petitioner’s allegation was filed.

Therefore, even if such oral communication was made it is not clear whether full particulars were communicated or mere Section was communicated. Hence, the arrest and detention of that person were illegal.

Section 50A of CrPC (2005 Amendment) obligates every police officer or other person making any arrest shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.

Right to be produced before the Magistrate without delay

Whether the arrest is made without a warrant by a police officer or made under a warrant byany person, the person making the arrest must bring the arrested person before a judicial officer without unnecessary delay.

Before taking the person who is being arrested by a police officer to the Magistrate, the arrested person should not be confined in any place except a police station.

Section 56-

Person arrested to be taken before Magistrate or officer in charge of the police station: A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, the arrested person should be taken or send before a Magistrate having jurisdiction in the case or before the officer incharge of a police station.

Section 76-

Person arrested to be brought before Court without delay: The police officer or other person executing a warrant of arrest shall (subject to the provision of Section 71) without any unnecessary delay shall bring the arrested person before the Court before which he is required by law to produce such person:

Provided that such delay shall not exceed 24 hours, in any case, excluding the time necessary for the journey from the place of arrest to the Magistrate’s Court.

Article 22(2) of the Constitution provides the fundamental right for “every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Magistrate’s Court and without the authority of Magistrate, the person shall not be detained in custody beyond the said period.”

Rights to be released on Bail

Section 50(2) of CrPC states that “where a person or any person other than the accused is being arrested without warrant by a police officer for a non-bailable offence, he shall be informed by the police officer that he is entitled to be released on bail.”

Rights to a fair trial

Right to a fair trial or any other provision related to this right is not given under CrPC, such rights are covered under Article 14 of the Constitution states that “every individual is equal before the law”.

Therefore, it means that all parties related to the dispute should be given equal treatment and the principle of natural justice should be considered.

The concept of a right to a speedy trial was recognized from the case Huissainara Khatoon v. Home secretary, State of Bihar, ² in this case, the court held that “the trial is to be disposed of as expeditiously as possible”.

Right to consult a lawyer

Section 41D of CrPC states that “when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation”.

Article22(1) of the Constitution states that the arrested person has a right to appoint an advocate of his choice and right to be defended by that advocate.

Section 303 of CrPC states that a person has a right to defend himself by an advocate when he is been alleged for committing offence before the Criminal Court.

Right to Free Legal Aid

Section 304 of CrPC states that “where a trial is conducted before the Session Court and the accused is not presented by the pleader, or where it appears to the Court that the accused is not having sufficient means to engage a lawyer, the Court shall assign a lawyer for his defence at the expense of the State”.

Article 39A of the Constitution directs the State to ensure that the operation of the legal system promotes justice, on basis of equal opportunities and shall provide free legal aid to economically backward classes.

In the case of M.H. Hoskot v. State of Maharashtra ³ Huissainara Khatoon v. Home Secretary, State of Bihar, ⁴ ‘Legal aid’ and ‘speedy trial’ have now been held to be to fundamental rights under Article 21 of the Constitution available to all the prisoners and enforceable by courts.

The State is under a duty to provide a lawyer to a poor person and it must pay to the lawyer as fixed by the Court.

In Centre of Legal Research Vs. State of Kerala, ⁵ it was held that the State must involve and support voluntary organisations for implementing legal aid programme and they should be free from Government control.

Right to keep silence

Right to keep Silence is not given under any law but can derive its authority from CrPC and the Indian Evidence Act. This right is related to the statement and confession made in the court.

Whenever such statement or confession is made, it is the duty of the Magistrate to find whether such statement or confession is made voluntarily or not. No accused can be compelled to speak anything in the court.

Article 20(2) of the Constitution gives the principle of self-incrimination and states that no person can be compelled to be a witness against himself. This principle was reiterated in the case of Nandini Satpathy v. P.L. Dani. ⁶

Right to be examined by the medical practitioner

Section 54 of CrPC gives the accused the right to have himself medically examined to enable him to defend and protect himself properly. The SC, therefore, casts a duty on the magistrates to inform the arrested person about this right of medical examination.

Conclusion

In India, custodial death and illegal arrest is a major problem as it infringes Article 21 of the Constitution and also the basic rights of UDHR.

There is not a proper implementation of the guidelines issued by the SC in D.K. Basu v. State of West Bengal. ⁷ The number of illegal arrests can be decreased by proper implementation of the provision and guidelines.

Notes:

1976 CrLJ 1303 Gau ↩
1981 2 SCR (408) ↩
AIR 1978 SC 1548 ↩
AIR 1979 SC 1360 ↩
AIR 1986 SC 1322 ↩
AIR 1997 (1) SCC 416 ↩
1997 1 SCC 416 ↩