RIGHTS OF AN ARRESTED PERSON

INTRODUCTION

All humans are born with the right to life, personal liberty etc. These rights of humans are enshrined under the constitution of India and under the Universal Declaration of Human Rights. A person cannot be denied of his rights on the grounds that he/ she had been detained. The various rights of an arrested person can be inferred from the code of criminal procedure, the constitution India and various landmark judgements.

The Indian legal system is based on the concept of, “innocent till proven guilty”. The arrest of a person can be a violation of Article 21 of the constitution that states that “no person shall be deprived of his right to life and personal liberty except a procedure established by law “. This means that the procedure must be fair, clear and not arbitrarily or oppressive.

RIGHTS OF AN ARRESTED PERSON

  1. Right to know the grounds of arrest:
  • Section 50 of Cr.PC says that every police officer or any other person who is authorized to arrest a person without a warrant should inform the ARRESTED person about the offence for which he is arrested and other grounds for such an arrest. It is the duty of the police officer and he cannot refuse it.
  • Section 50A of Cr. PC obligates a person making an arrest to inform the arrest to any of his friend or relatives or any other person in his interest. The police officer should inform the arrested person that he has a right to information about his arrest to the nominated person as soon as he is put under custody.
  • Section 55 of Cr. PC states that whenever a police officer has authorized his subordinate to arrest any person without a warrant, the subordinate officer needs to notify the person arrested of the substance of written order that is given specifying the offence and other grounds of arrest.
  • Section 75 of Cr. PC says that the police officer executing the warrant should notify the substance to the person arrested and show him a warrant if it is required.
  • Article 22(1) of the constitution of India also states that no police officer should arrest any person without informing the ground of arrest.
  1. Right to be produced before the magistrate without unnecessary delay:
  • Section 55 of Cr. PC states that a police officer making an arrest without a warrant should produce the arrested person without unnecessary delay before the Magistrate having jurisdiction or a police officer in charge of the police station, subject to the conditions of the arrest.
  • Section 76 of Cr. PC states that the police officer executing a warrant of arrest should produce the arrested person before the court before which he is required by law to produce the person. It states that the person should be produced within 24 hours of arrest. While calculating the time period of 24 hours, it must exclude the time which is required for the journey from the place of detaining the magistrate court.
  • Article 22(2) of the Indian Constitution states that the police officer making an arrest should be produced before the magistrate within 24 hours of arrest. If the police officer fails to produce before magistrate within 24 hours, he will be liable for wrongful detention.
  1. Rights to be released on Bail:
  • Section 50(2) of Cr. PC states that when a police officer arrests any person without a warrant for an offence other than non- cognizable offence, he shall inform him that he has a right to release on bail and to make an arrangement for the sureties on his behalf.
  1. Right to a fair trial:

Any provision related to the right to a fair trial is not given in Cr.PC, but such rights can be derived from the constitution and the various judgements.

  • Article 14 of the constitution states that “all persons are equal before the law”. It means that all the parties to the dispute should be given equal treatment. The principle of natural justice should be considered in respect of both the parties. Right to a speedy trial is recognized and the court held that the trial is to be disposed of as expeditiously as possible.[1]
  1. Right to consult a lawyer:
  • Section 304 of Cr.PC states that when a trial is conducted before the court of session and the accused is not represented by the legal practitioner, or when it appears that the accused has no sufficient means to appoint a leader then, the court may appoint a pleader for his defense at the expense of the state.
  • Article 39A obligates a state to provide free legal aid for the purpose of securing justice. To provide free legal aid to the indigent accused person[2].
  • It is also given at the time when the accused is produced before the magistrate for the first time along with time commences.
  • The right of accused person cannot be denied even when the accused fails to apply for it. If the state fails to provide legal aid to the indigent accused person, then it will mitigate the whole trial as void.
  1. Right to free leg aid:
  • Section 304 Of Cr. PC states that when a trial is conducted before the court of session, and the accused is not represented by the legal practitioner or when it appears that the accused has no sufficient means to appoint a pleader then, the court may appoint a pleader for his defense at the expense of the state.
  • Article 39A obligates a state to provide free legal aid for the purpose of securing justice[3]

 

The Hon’ble Supreme Court, in D.K. Basu Vs State of West Bengal, has laid down specific guidelines required to be followed while making arrests:

  • The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation. The particular of all such personnel who handle interrogation of the arrestee must be recorded in a register.
  • That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
  • A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained 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, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aids 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 person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  • An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclosed the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
  • The arrestee should, where he so requests, be also examines at the time of his arrest and major and minor injuries, if any present on his /her body, must be recorded at that time. The Inspector Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  • The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention In custody by a doctor on the panel of approved doctor appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well
  • Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
  • The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  • A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

CONCLUSION

India faces a huge problem of illegal arrests as well as custodial deaths which are majorly caused due to illegal arrests. These problems undermine the essence of Article- 21 of the Indian Constitution as well as the fundamental human rights that are available to everyone under the Universal Declaration of Human Rights. The stipulations issued in D.K. Basu v/s West Bengal by the Supreme Court of India are not being properly executed and therefore, it is the need of the hour to try and execute the issued provisions and guidelines properly which can definitely bear better results which would ultimately help decrease the number of an illegal arrests and resulting custodial deaths.

 

 

 

 

[1] Huissainara khatoon vs Home secretary, State of Bihar

[2] Khatri vs State of Bihar

[3] Khatri vs state of Bihar.

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