Rights Of An Arrested Person
INTRODUCTION
Any person has to be treated as a human being, irrespective of the fact that such person is a criminal. The accused persons are also granted certain rights, the most basic of which are found in the Indian Constitution. The basic assumption behind these rights is that the government has enormous resources available to it for the prosecution of individuals, and individuals, therefore, are entitled to some protection from misuse of those powers by the government. An accused has certain rights during the course of any investigation; enquiry or trial of offence with which he is charged, and he should be protected against arbitrary or illegal arrest. Given below are some of the most important rights of an arrested person.
Rights Of Arrested Person
- Right To Silence
The ‘right to silence’ has been derived from common law principles. It means that normally courts or tribunals should not conclude that the person is guilty of any conduct merely because he has not responded to questions which were asked by the police or by the court. The Justice Malimath Committee in its report was of the opinion that right to silence is very much needed in societies where anyone can be arbitrarily held guilty of any charge. As per the law of evidence, any statement or confession made to a police officer is not admissible in a court of law. Right to silence is mainly concerned about confession. The breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement.
As per Article 20(3) of Constitution of India guarantees every person has been given a right against self-incrimination, it states that any person who has been accused of any offence, shall not be compelled to be a witness against himself. The same was again reiterated by a decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani; wherein it was held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation). The Supreme Court again in the year 2010, held that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India.
- Right To Know The Grounds of Arrest
2.1) As per Section 50(1) of Cr.P.C., every person who is being arrested by any police officer, without any warrant, is entitled to know the full particulars of offence for which he is being arrested, and that the police officer is duty bound to tell the accused such particulars and cannot deny it.
2.2) As per Section 55 of Cr.P.C., when any person is being arrested by any police officer, who is deputed by a senior police officer, then such subordinate officer shall before making such arrest, notify the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. If this provision is not complied with, then the arrest would be rendered illegal.
2.3) if the person is being arrested under a warrant, then as per Section 75 of Cr.P.C, any person who is executing such warrant must notify the person to be arrested, the particulars of such warrant, or even show such warrant if needed. If the substance of the warrant is not notified, the arrest would be unlawful.
2.4) the Constitution of India also confers this right as one of the fundamental rights. Article 22(2) 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 nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”
- Information Regarding The Right To Be Released On Bail
Any person who is to be arrested without a warrant and is not accused of a non-bailable offence has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount.[1] This helps persons who are arrested for bailable offences and are not aware of their right to be released on bail.
- Right To Be Taken Before A Magistrate Without Delay
Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. Further, the arrested person has to be confined in police station only and nowhere else, before taking him to the Magistrate. These matters have been provided in Cr.P.C. under sections 56 and 76 which are as given below:
Section 56 of Cr.P.C. states that “Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station”.
Section 76 of Cr.P.C. states that “Person arrested to be brought before Court without delay- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person”.
If the police officials fails to produce an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.
- Rights at Trial
The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera.
Rights Of Free Legal Aid
The Supreme Court in the case of in Khatri(II) v. the State of Bihar has held that the state is under a constitutional obligation (implicit in Article 21) to provide free legal aid to an indigent accused person as is implicit in Article 21 of the Constitution . This right does not come into picture only at the time of trial but exists at the time when the accused is produced the first time before the magistrate, as also when remanded from time to time. The Supreme Court further states that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been laid down that this constitutional right cannot be denied if the accused failed to apply for it. It is clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction sentence.
By – Kartikeya Manoj Saxena
