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RIGHTS OF AN ARRESTED PERSON

Updated: Nov 10, 2020

BY

Vanmathi M, III year B.A.,LL.B., The Central Law College, Salem


Introduction

In this context, we have to discuss the rights of the arrested person. There is always a question that arises in our mind i.e why do criminals need rights when they have criminally violated the rights of others? Yes, I agree. But they are also human beings, we have to show basic humanity towards them and they are not born criminals. Indian Constitution provides equal rights to all its citizens. Likewise, it gives the rights to arrested persons. Article 21 of the constitution provides sparkles of hope to the lives of arrested persons, convicts and undertrials. Our father of nation quoted that hate the sin, but not the sinner in his autobiography. Maybe he is the criminal or arrested person who should give rights to them on a humanitarian basis. We could not deny the rights of arrested persons. Moreover, all arrested persons are not convicted persons. Until the crime has been proven, they are considered innocent. We should give the chances to the arrested person to prove his innocence. The primary purpose of criminal law is deterrence; Retributive, protection. Reformation and Rehabilitation are silent sources to improve the essence of society.

Arrest and Rights of arrested persons

Arrest means taking the body of the person into custody. It means preventing a person from moving out of the custody of the police. An arrest does not mean that the person must be tied or handcuffed. It simply means police restricting his liberty to move. There are twelve rights given to the arrested persons.

1. Right to know the grounds of arrest

The arrested person has the right to know the grounds of arrest under section 50(1) of criminal procedure code and is also the duty of a police officer to inform the grounds of arrest. Section 50 and 50A of criminal procedure code imposes a legal duty to communicate the grounds of arrest to him or her without any delay. Article 22(1) of the Indian constitution extends protection to the arrested person and states that no person who is arrested shall be detained in custody without being informed about the grounds of arrest. In Joginder Kumar vs. State of U.P, the court declared that the arrested person knows the cause of his arrest and is entitled to let any third person know the location of his detention.

2. Information regarding the right to be released on bail

If the arrest is made in the bailable case, the person shall be informed of his right to be released on bail and that he may arrange sureties on his behalf. Section 50 of the criminal procedure code is more important because it carries out the mandate of Article 22(1) of the Indian constitution.

3. Right of not being detained for more than 24 hours without judicial scrutiny

Under section 57 of the criminal procedure code, no police authority can detain the accused person for more than 24 hours without magistrate order. The accused person should not be detained for more than 24 hours without being produced before a magistrate or judicial authority and getting detention authorized was observed in Khatri vs. State of Bihar[1]. The mentioned 24 hours exclude the time travel from the place of arrest to magistrate court. It protects the accused from being trapped into wrongful detention. In this case of State of Punjab vs. Ajaib Singh[2], this right was infringed and the victim got compensation as a constitutional remedy. The police arrest the person without warrant requires greater protection of the accused within 24 hours ensures the legality of the arrest. If he fails to surrender him before the magistrate within the 24 hours, the entire period of custody considered illegal detention.

4. Right to consult a legal practitioner

Article 22(1) also states that the arrested person has the right to consult at all times and be defended by a lawyer of his own choice. Section 303 of the criminal procedure code also entitled any accused person has the right to be defended by a pleader of his choice. This right was violated in A.S. Mohammed Rafi vs. State of Tamil Nadu[3]; this case regarding the policeman allegedly assaulted some lawyers, so that the Bar Association of Coimbatore passed the resolution that none of its members defended the policeman. The court observed that such a resolution stood illegal. Every person regardless of any type of accusation on him, he had a right to be defended in the court by the lawyer of his own choice. The court declared that it was against the rights of the accused person and the professional ethics of the lawyer. It means the lawyer cannot refuse a brief if the client is willing to pay and the lawyer is not engaged.

5. Rights of free legal aid

It is the duty of the court to provide free legal aid to the accused person when the accused person is unable to arrange a lawyer because of his poverty or being an indigent person. The Supreme Court stated that the state is under a constitutional mandate to provide free legal aid not 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.

6. Right to be examined by a medical practitioner

Section 54 provides compulsory medical examination by a medical officer in service of the Central or State government or by the registered medical practitioner when there is non-availability of a medical officer. Female arrestees are examined by a female medical officer. On request of the accused person, the medical examination was also conducted. Sometimes, there may be a possibility that a medical examination proves an accused person is innocent. In addition to this, Section 53 and 53A of criminal procedure code provides if there are reasonable grounds for believing that medical examination of an arrestee will afford the evidence so as to conclude the commission of such offence (rape and others) it shall be lawful to examine blood, bloodstains, semen, hair samples, fingernail clipping, a DNA test should be done. This is done when the medical officer thinks it is necessary to this case or acting at the request of the police officer.

7. To meet an advocate of his choice during interrogation

The accused person has the right to meet his advocate while he is in the custody of the police officer and is provided under section 41D of the Criminal Procedure Code.

8. Right to inform a relative or a friend

The accused person mentions the name to whom to inform his arrest. The police have to communicate about his arrest to that person whose name is mentioned by the accused person and the accused person is also informed of his arrest to his relative or friend mentioned under section 50A of the criminal procedure code. Because it is easy for a relative to arrange his bail or initiate the proper proceedings.

9. Right to be produced before a magistrate without delay

Section 56 and 76 of the Criminal Procedure Code, mandates that the arrested person shall be produced before a magistrate having jurisdiction in the case without any delay. Article 22(2) of the Indian constitution ensures the right of accused to be produced before a magistrate.

10. Right of accused to produce evidence

In Indian Law, no party should be condemned unheard. It means to hear both sides (prosecution as well as defence). The accused person has a right to produce any evidence or witness in his favour to prove his innocence.

11. Need to fast and fair trial

There are few rights which are not explicitly mentioned, but they are interpreted by the Supreme Court in certain cases. In Hussainara Khatoon & Ors vs. Home secretary, state of Bihar[4], the court observed that a large number of people were arrested waiting for their trial in court. The accused were under arrest, deprived of their freedom even before the commencement of their trial and charge being proved which stands unreasonable. The Supreme Court interpreted that a speedy trial is a constitutional right even though it is not mentioned explicitly. The accused person has a right to fair and speed trial.

12. No unnecessary restraint

Section 49 of the criminal procedure code provides that there is no more restraint than is just necessary to prevent escape. It means only reasonable force should be applied, not more than that. Before keeping a person under restraint there must be an arrest. Restraint without an arrest is illegal.

Conclusion

The custodial violence, torture and death in lock-ups are violative of basic features of the Indian constitution. Humanity is a fundamental concept which is not explicitly found, but adopting Reformative theory is an example to show some constitutional concepts are on a humanitarian basis. Human rights commission is developed in each state and the central to protect the human rights violation. Whatever he is an accused person, under trial, convicts have the rights provided under the Indian Constitution. The court often stated that custodial death had to be one of the worst crimes in the independent country. The Supreme Court held that being in custody did not strip off his fundamental rights of the person granted under Article 21 of the constitution and the only restriction permitted by law could be imposed on such a person.


[1] 1981 SCR (2) 408

[2] 1953 AIR 10

[3] AIR 2011 SC 308

[4] 1979 AIR 1369