INTRODUCTION
One of the essential fundamentals of our legal system is the advantage of the presumption of innocence of the accused until he is found guilty at the end of a trial on legal evidence. In a just society, even the privileges of the accused are hallowed, accused of an offence, he does not become a non-person. Rights of the accused incorporate the rights of the accused at the time of arrest, at the hour of search and seizure, during the procedure of trial and such.
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 arbitrary or oppressive.
The basic roles of criminal law are Deterrence, Retribution and Protection. Reformation & Rehabilitation are quiet purposes to improve the tones of society. All wrongdoings are not the same and so aren’t lawbreakers. Gravity, nature and inclusion define which yardstick of jurisprudential law is to be applied. Nonetheless, the application of yardstick is depended on discretion to be practiced inside the constraint of State law.
RIGHTS OF AN ARRESTED PERSON
I. Right to Silence
The Right to remain silent is a rule of common law and it implies that typically courts or tribunals of fact ought not to be welcomed or encouraged to finish up, by parties or prosecutors, that a suspect or an accused is liable just in light of the fact that he has refused to react to questions put to him by the police or by the Court.
The constitution of India guarantees every person right against self-incrimination under Article 20 (3) according to which no person accused of any offense shall be compelled to be a witness against himself. It is entrenched that the Right to Silence has been allowed to the accused by the goodness of the pronouncement in the case of Nandini Sathpathy vs. P.L.Dani[1] wherein the court held that nobody can corrosively extract statements from the accused, who has the right to keep silent during the span of interrogation (investigation). In 2010 the Supreme Court made Norco-analysis, brain mapping and lie detector test as an infringement of Article 20(3).
II. Right to know the Grounds of Arrest
Firstly, as per Section 50(1) of the Code of Criminal Procedure, 1973 (CrPC) which provides that every police officer or other individual arresting any person without warrant will immediately communicate to him full details of the offence for which he is arrested or other justification for such arrest.
Secondly, when a subordinate officer is deputed by a senior police officer to arrest an individual under Section 55 CrPC, such subordinate officer will, before making the arrest, inform the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other reason for which the arrest is to be made. Non- acceptance of this provision will portray the arrest unlawful.
Thirdly, in the event of arrest to be made under a warrant, Section 75 CrPC provides that the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required, will show him the warrant. If the substance of the warrant isn’t informed, the arrest would be illegal.
Indian constitution has additionally conferred on this privilege the status of the basic right. Article 22(1) of the constitution states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the justification for such arrest nor will he be denied the right to consult, and to be safeguarded by, a legal practitioner of his interest.
III. Information Regarding the Right to be Released On Bail
Section 50(2) CrPC provides that where a police officer arrests without warrant any person other than a person accused of a non- bailable crime, he will notify the person arrested that he is authorized to be released on bail and that he may prepare for sureties on his behalf.
This will inevitably be of help to persons who might not know about their privileges to be released on bail in case of bailable offences. Consequently, this provision might in some small measures, develop the relations of the people with the police and curtail dissatisfaction against them.
IV. Right of an arrested person to Be Taken Before a Magistrate Without Delay
The individual making the arrest must bring the arrested person before a judicial officer immediately. It is likewise provided that the arrested person ought not to be confined in any place other than a police station before he is taken to the magistrate.
As per section 56 of the CrPC, a person arrested must be taken before Magistrate or officer in charge of the police station.[2]
Also, as per section 76 of the CrPC, a person arrested must be brought before the Court without delay.[3]
V. Right of an arrested person for not being detained for more than 24 hours without Judicial Scrutiny
Regardless of whether the arrest is without a warrant or under a warrant, the arrested individual must be brought before the magistrate or court inside 24 hours. Section 57 expresses that a person arrested not to be detained for more than twenty-four hours.[4]
This privilege has been additionally bolstered by its inclusion in the Constitution as a fundamental right. Article 22(2) of the Constitution explains that every individual who is arrested and confined in custody will be produced before the nearest magistrate within a period of twenty-four hours of such arrest barring the time fundamental for the excursion from the place of arrest to the court of the magistrate and no such individual will be kept in custody past the said period without the authority of a magistrate.
VI. Rights of an arrested person at Trial
1) Right to a Fair Trial: The Constitution under Article 14 ensures the right to equality under the watchful eye of the law. The Code of Criminal Procedure likewise provides that for a trial to be impartial, it must be an open court trial. This arrangement is intended to guarantee that convictions are not obtained in secret. In some extraordinary cases, the trial might be held in camera.
2) Right to a Speedy Trial: The Constitution grants an accused the privilege to a speedy trial. This right isn’t unequivocally expressed in the constitution; it has been deciphered by the Supreme Court in the judgment of Hussainara Khatoon[5]. This decision commands that an investigation in the trial should be held “as speedily as could be expected under the circumstances”. In all summons trials, once the accused has been arrested, the investigation for the trial must be finished within six months or halted on an order of the Magistrate except if the Magistrate gets and acknowledges, with his reasons recorded as a hard copy, that there is cause to expand the examination.
VII. Right of an arrested person to consult a Legal Practitioner:
Article 22(1) of the Constitution provides that no individual who is arrested will be denied the privilege to counsel a legal practitioner of his discretion. Also, as has been held by the Supreme Court that state is under an established order (verifiable in article 21) to give free legal aid to an impoverished accused individual, and the constitutional obligation to provide free legal aid doesn’t emerge only when the trial starts but also appends when the accused is for the first time produced before the magistrate, as likewise when remanded every now and then.
VIII. Right of an arrested person to get Free Legal Aid
In Khatri v. State of Bihar[6], the Supreme Court ruled that the state is under a constitutional mandate to give free legal aid to an impoverished accused individual, and the constitutional obligation to give free legal aid doesn’t emerge only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as additionally when remanded every once in a while. However, this constitutional right of an indigent accused to get free legal aid may end up being fanciful except if he is instantly and properly educated about it by the court when he is presented before it.
IX. Right of an arrested person to be examined by a Medical Practitioner
Section 54 of CrPC now renumbered as Section 54(1) provides for Examination of an arrested person by medical practitioner at the desire of the arrested individual.[7]
X. Right of the Accused to Produce Evidence
The accused even has the privilege to produce witnesses in his defence in case of a police report or private defence. After the examination and questioning of all prosecution witnesses i.e. after the finishing of the prosecution case the accused will be called upon to enter upon his defence and any written statement put in will be filled with the record. He may even call further for interrogation. The judge shall continue recording the evidence of prosecution witness until the prosecution shuts its evidence.
JUDICIAL PRONOUNCEMENTS
Joginder Kumar v. State of U.P[8]
In this case, the Supreme Court, in order to have precision in the accused- police relations, held that privilege of an arrested person upon request, to have somebody informed about his arrest and option to consult privately with lawyers are clearly stated in Articles 21 and 22 of the Constitution. The Supreme Court voiced that no arrest can be made in light of the fact that it is lawful for the Police officer to do as such. The presence of the power to arrest is one thing. The justification for its exercise is very another. The Police Officer must be able to rationalize the arrest apart from his power to do as such.
Arrest and detainment in police lock-up of an individual can cause limitless harm to the notoriety and confidence of a person. No arrest should be made by Police Officer without a reasonable satisfaction came to after some investigation concerning the validity and bona fides of a complaint and a reasonable belief both regarding the individual’s complicity and even so as to the need to effect the arrest.
D.K. Basu v. State of West Bengal[9]
The continuous occasions of police atrocities and custodial deaths have pushed the Supreme Court to have a reconsideration of its decisions like Joginder Kumar[10], Nilabati Behera[11] and so on. Along these lines, the Supreme Court issued the following necessities to be followed in all cases of arrest or detention until proper legal provisions are made in that behalf as preventive measures.
- The police staff conducting the arrest and taking care of the interrogation of the arrestee should bear exact, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
- That the police officer doing the arrest of the arrestee will set up a memo of arrest at the time of arrest and such memo will be attested by at least one witness, who might be either an individual of the family of the arrestee or a noble person of the locality from where the arrest is made. It will likewise be countersigned by the arrestee and will contain the time and date of arrest.
- An individual who has been arrested or confined and is being held in custody in a police station or cross-examination centre or other lock-up will be qualified to have one friend or relative or other person known to him or having an interest in his welfare being informed, when practicable, that he has been arrested and is being kept at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
- The time, spot of arrest and venue of custody of an arrestee must be informed by the police where the next friend or relative of the arrestee lives outside the region or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
- The individual arrested should be made aware of this privilege to have someone notified of his arrest or confinement as soon as he is put under arrest or is confined.
- An entry should be made in the diary at the place of confinement regarding the arrest of the individual which will also reveal the name of the next friend of the person who has been informed of the arrest and the names and details of the police officials in whose custody the arrestee is.
- The arrestee should, where he so seeks, be likewise examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded around then. The “Inspection Memo” must be endorsed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
- The arrestee ought to be subjected to a medical examination by a skilled doctor every 48 hours during his detainment in custody, by a doctor in the panel of affirmed doctors chosen by Director, Health Services of the concerned State or Union Territory. Director, Health Services ought to prepare such a panel for all Tehsils and Districts also.
CONCLUSION
It is generally believed that in spite of the various safeguards in the CrPC as well as the in the Constitution, the power of arrest given to the police is being misused to this day. It is likewise accepted that the police often use their power to threaten the arrested persons and take benefit from their office to extort money. There have likewise been countless reports on custodial brutality that persuade that hardship of essential privileges of the arrested people has become ordinary these days.
There is inescapable need to make changes in Criminal Justice Administration so that state should understand that its obligation isn’t to punish, but to socialize and rectify the culprit and it should be clearly understood that socialization isn’t indistinguishable with punishment, but it comprises prevention, education, care and rehabilitation within the structure of social defence. In this manner, at long last, we find that Rule of the law directs the functionary of each organ of the state machinery, including the agency answerable for conducting prosecution and investigation which must keep themselves within the four corners of the law.
It is the obligation of the police to ensure the privileges of society. It must be recollected that this society incorporates all individuals, including the arrested. In this way, it is as yet the police’s obligation to secure the privileges of the arrested individuals. Therefore, in light of the discussed provisions, a police officer must ensure that handcuffs aren’t used unnecessarily, that the accused isn’t pestered needlessly, that the arrested individual is made aware of the grounds of his arrest, informed whether he is entitled to bail and of course, produced before a Magistrate within twenty-four hours of his arrest.
[1] 1978 AIR 1025, 1978 SCR (3) 608
[2]https://indiankanoon.org/doc/1670784/#:~:text=Section%2056%20in%20The%20Code%20Of%20Criminal%20Procedure%2C%201973&text=bail%2C%20take%20or%20send%20the,charge%20of%20a%20police%20station.
[3] https://indiankanoon.org/doc/119266/
[4] https://indiankanoon.org/doc/571025/
[5] Hussainara Khatoon & Ors vs. Home Secretary, State Of Bihar 1979 AIR 1369, 1979 SCR (3) 532
[6] 1981 SCR (2) 408, 1981 SCC (1) 627
[7] https://indiankanoon.org/doc/441720/
[8] 1994 AIR 1349, 1994 SCC (4) 260
[9] 1997 1 SCC 416
[10] Joginder Kumar v. State of U.P 1994 AIR 1349, 1994 SCC (4) 260
[11] 1993 AIR 1960, 1993 SCR (2) 581
This Article is Authored by Harsh Sonbhadra, 2nd Year, B.A. LLB Student of Vivekananda Institute of Professional Studies, GGSIPU.
Also Read – Rights of an Arrested Person
