The term ‘arrest’ means apprehension of a person by a legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person’s liberty is in control of the arrester. One of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused till he is found guilty.
In a democratic society, even the rights of the accused are sacrosanct, though accused of a severe offence, he does not become a non-human. The arrested person as being an accused, is provided with certain rights, the most basic of which is found in the Indian Constitution. Though the police has been given various powers for facilitating the making of arrests, the powers are subject to certain restraints. These restraints are made for protection of interests of arrested person and to give relief from his disadvantaged person. Thus, to meet the needs of ‘fair trial’, several provisions are given in the Criminal Procedural Code, that gives specific rights to an arrested person.
(i) Right to be informed of the grounds of arrest;
A person deserves to know under what offences he is being arrested. This provision is provided under Section 50 of Criminal Procedural Code and it is a mandatory. Article 22(1) of the Indian Constitution is a fundamental right to be informed about the grounds of the arrest, given to an arrested person. Timely information of the grounds of arrest serves the arrested person in many ways, like applying for bail, or for a writ of habeas corpus, or any arrangement for his defence. In Harkishan v. State of Maharastra, Supreme Court held that, the grounds of arrest must be communicated to the arrested person in the language that he understands, otherwise it would amount to sufficient compliance of the constitutional requirement.
(ii) Right to see the warrant of his arrest;
A person getting arrested is allowed to see the warrant of his arrest under the provision of Section 75 of Criminal Procedural Code. The section states that a police officer or other person executing a warrant of arrest is directed to notify the substance of the warrant or if the concerned person asks, to be shown the contents of the warrant. If the above provision is not carried out as per directed, it will result into an unlawful arrest.
(iii) Right to be informed about the right to be released on bail;
Section 50(2) CrPC provides the provision stating where the person is arrested by police officer without a warrant other than a person accused of a non-bailable offense, the person is required to be informed that he is entitled to be released on bail.
Right to be released on bail is a statutory right provided to every person.
This helps the persons who are not aware of the provision, in case they have committed a bailable offense.
(iv) The person arrested is not to be subjected to any more restraint than is necessary for preventing his escape.
This very provision is made with the interest of the person in mind. To avoid cases of custody deaths and abuse faced by persons when arrested, section 49 CrPC provides this.
(v) Right of arrested person to meet an advocate of his choice during investigation;
Article 22(1) of the constitution provides for the right to consult and get defended by an advocate as a fundamental right. Moreover, this right is also recognized under the provisions of Sections 41D and 303 CrPC. The arrested person is given free reign to choose any legal practitioner of his choice to defend his case. The detainee is to be given the earliest possible opportunities to arrange representation for himself through this provision. The right would however not be available throughout the interrogation process.
In Directorate of Revenue Intelligence vs. Jugal Kishore Samra, SC ordered that the consultation with the lawyer may be in the presence of the police officer but not within his hearing.
(vi) Right of an arrested person to be produced before a magistrate without delay;
In case of every arrest, whether the arrest has been made with or without a warrant, the person is required, without unnecessary delay and subject to provision regarding bail, to produce him before magistrate or any court having competent jurisdiction in the case. The Criminal Procedural Code under Sections 56 and 76 mandates the above provision. Also, the arrested person should not be confined in any place other than the police station before he is taken to the magistrate.
(vii) Right of an arrested person to free legal aid and to be informed about it;
In Khatri(II) vs. State Of Bihar, SC held that State is under a constitution mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, and this constitution obligation arises not only when he is first produced before a magistrate. SC cast a duty on all Magistrate and Court to inform the indigent accused about the right to get free legal aid. This constitutional mandate to provide legal aid does not arise only when the trial commences but also when the accused is for the first time produced before the Magistrate as also when he is remanded from time to time.
Moreover, the right to free legal aid of an arrested indigent person cannot be denied even if the accused failed to apply for it.
(viii) Right of not being detained for more than 24 hours without judicial scrutiny;
This provides that the arresting authority is required to produce the arrested person without unnecessary delay before the Magistrate and in no case such delay shall be more than 24 hours. It has been categorically provided that such a delay in no case shall exceed 24 hours exclusive of the time necessary for the journey from the place of arrested to the Court of Magistrate. If this requirement is not followed by the arresting authority then the arrest will be deemed to be unlawful. This right has been incorporated as a fundamental right under Article 22(2) of the Indian Constitution and provided under Section 57 CrPC.
In D.G. and I.G. of Police vs. Prem Sagar, Court held that illegal detention may entail award of compensation by the court.
In Sharif Bai vs. Abdul Razak, SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be guilty of wrongful detention.
This right has been created with a view:
- to prevent arrest and detention for purpose of extracting confessions, or as a means of compelling people to give information,
- to prevent police stations being used as though they were itself prisons,
- to afford an early recourse to a judicial officer for bail or discharge,
- also it helps Magistrate to keep a check over the police investigation,
(ix) An arrested person has a right to inform a family member, relative or friend about his arrest under Section 50A CrPC.
(x) Right to be examined by a medical practitioner;
Every person who is arrested has a right to be examined, soon after the arrest, by medical officer in the service of the Central or State Governments. In the absence of such a registered officer, the arrested person shall be examined by a registered medical practitioner.
This provision is given under Sec 54(1) CrPC and Sec 55A as it provides reasonable care should be provided to the arrested person.
This medical officer shall prepare a record of such examination and he shall mention therein any injuries or marks of violence upon the person arrested, and the approximate time whe such injuries may have been inflicted.
A copy of the report of such examination is to be furnished to the arrested person. In Sheela Barse vs. State of Maharastra, SC said that, the arrested person must be informed by the Magistrate about his right to be medically examined in terms of Sec 54.
(xi) An arrested person has a right to remain silent under Article 20(3) of Indian Constitution so that police can’t extract self-incriminating statements from a person without a will or without his consent.
PROTECTION TO FEMALES:
- Females are not to be arrested without the presence of a lady constable.
- No female can be arrested after sunset but there are exception in cases of serious crimes, where arrest is important, also depends on facts and circumstances of the court.
- Separate lock ups to be provided for them.
- Where the arrested person is a female, the examination of the body shall be made only by or under the supervision of female medical officer or registered medical practitioner, according to Sec 54(1).
This article is authored by Swastika Sarangi, student of B.A. LLB. (Hons.) at University Law College, Bhubaneswar, Odisha.