rights of an arrested person

Rights Of The Arrested Person

1. Right To Silence
The ‘right to silence’ is a principle of common law and it means that normally courts or
tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors,
that a suspect or an accused is guilty merely because he has refused to respond to questions
put to him by the police or by the Court. The Justice Malimath Committee writes about the
origin of the right to silence that “it was essentially the right to refuse to answer and
incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to
reply to a proper charge.” The Justice Malimath Committee’s assumption is that the right
to silence is only needed in tyrannical societies, where anyone can be arbitrarily charged.
It assumes that whenever a charge is “proper”, there is no need for protection of the

accused. In this backdrop it becomes necessary to examine the right to silence and its
companion right against self-incrimination. These are the two aspects of fair trial and
therefore cannot be made a subject matter of legislation. Right to fair trial is the basic
premise of all procedural laws. The very prescription of procedure and the evolution of
procedural law have to be understood in the historical context of the anxiety to substitute
rule of men by rule of law. In law any statement or confession made to a police officer is
not admissible. Right to silence is mainly concerned about confession. Breaking of silence
by the accused can be before a magistrate but should be voluntary and without any duress
or inducement. To ensure the truthfulness and reliability of the facts he stated the magistrate
is required to take several precautions. Right to silence and the right against selfincrimination have been watered down quite considerably by interpretation than by
legislation. The defendant if he so desires can be a witness in his trial. His confession
outside the court either to the police officer or to the magistrate is admissible. He is
encouraged to betray his colleagues in crime on promise of pardon. He is expected to
explain every adverse circumstance to the court at the conclusion of evidence with the court
having jurisdiction to draw adverse inference while appreciating the evidence against him.
The constitution of India guarantees every person right against self incrimination under
Article 20 (3) “No person accused of any offense shall be compelled to be a witness against
himself”. It is well established that the Right to Silence has been granted to the accused by
virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can
forcibly extract statements from the accused, who has the right to keep silent during the
course of interrogation (investigation). By the administration of these tests, forcible
intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy
of the Right to Silence. In 2010 The Supreme court made narco-analysis, brain mapping
and lie detector test as a violation of Article 20(3).
2. Right To Know The Grounds of Arrest

Firstly, according to Section 50(1) Cr.P.C. “every police officer or other person arresting
any person without warrant shall forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for such arrest.”
Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55 Cr.P.C., such subordinate officer shall, before making the arrest, notify
to 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. Noncompliance with this provision will render the arrest illegal.
Thirdly, in case of arrest to be made under a warrant, Section 75 Cr.P.C. 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, shall show him the warrant.” If the substance
of the warrant is not notified, the arrest would be unlawful.
Indian constitution has also conferred on this right the status of the fundamental right.
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 of such arrest nor
shall he be denied the right to consult, and to be defended by a legal practitioner of his
The right to be informed of the grounds of arrest is a precious right of the arrested person.
Timely information of the grounds of arrest serves him in many ways. It enables him to
move the proper court for bail, or in appropriate circumstances for a writ of habeas corpus,
or to make expeditious arrangement for his defence.
If the arrest is made by the magistrate without a warrant under Section 44, the case is
covered neither by any of the section 50, 55 and 75 nor by any other provision in the code
requiring the magistrate to communicate the grounds of arrest to the arrested person. The
lacuna in the code, however, will not create any difficulty in practice as the magistrate
would still be bound to state the grounds under Article 22(1) of the Constitution.

The rules emerging from decision such as Joginder Singh v. State of U.P. and D.K. Basu
v. State of West Bengal, have been enacted in Section 50-A making it obligatory on the
part of the police officer not only to inform the friend or relative of the arrested person
about his arrest etc. but also to make entry in a register maintained by the police. The
magistrate is also under an obligation to satisfy himself about the compliance of the police
in this regard.
3. Information Regarding The Right To Be Released On Bail
Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any
person other than a person accused of a non- bailable offence, he shall inform the person
arrested that he is entitled to be released in bail that he may arrange for sureties on his.”
This will certainly be of help to persons who may not know about their rights to be released
on bail in case of bailable offences. As a consequence, this provision may in some small
measures, improve the relations of the people with the police and reduce discontent against
4. Right To Be Taken Before A Magistrate Without Delay
Whether the arrest is made without warrant by a police officer, or whether the arrest is
made under a warrant by any person, the person making the arrest must bring the arrested
person before a judicial officer without unnecessary delay. It is also provided that the
arrested person should not be confined in any place other than a police station before he is
taken to the magistrate. These matters have been provided in Cr.P.C. under section 56 and
76 which are as given below:
Section 56 – 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 – 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.
5. Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny
Whether the arrest is without warrant or under a warrant, the arrested person must be
brought before the magistrate or court within 24 hours. Section 57 provides as follows:
Section 57 – Person arrested not to be detained more than twenty-four hours- No police
officer shall detain in custody a person arrested without warrant for a longer period than
under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s
This right has been further strengthened by its incorporation in the Constitution as a
fundamental right. Article 22(2) of the Constitution proves that “Every person who is
arrested and detained in custody shall be produced before the nearest magistrate within a
period of twenty-four hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such person shall be detained
in custody beyond the said period without the authority of a magistrate.” In case of arrest
under a warrant the proviso to Section 76 provides a similar rule in substance.The right to
be brought before a magistrate within a period of not more than 24 hours of arrest has been
created with a view-
• To prevent arrest and detention for the purpose of extracting confessions, or as a
means of compelling people to give information;
• To prevent police stations being used as though they were prisons- a purpose for
which they are unsuitable;

• To afford to an early recourse to a judicial officer independent of the police on all
questions of bail or discharge.
In a case of Khatri (II) v. State of Bihar, the Supreme Court has strongly urged upon the
state and its police authorities to ensure that this constitutional and legal requirement to
produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be
scrupulously observed. This healthy provision enables the magistrate to keep check over
the police investigation and it is necessary that the magistrates should try to enforce this
requirement and where it is found disobeyed, come heavily upon the police.
If police officer fails to produce an arrested person before a magistrate within 24 hours of
the arrest, he shall be held guilty of wrongful detention.
In a case of Poovan v. Sub- Inspector of Police it was said that whenever a complaint is
received by a magistrate that a person is arrested within his jurisdiction but has not been
produced before him within 24 hours or a complaint has made to him that a person is being
detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon
the police officer concerned; to state whether the allegations are true and if so; on what and
under whose custody; he is being so helped. If officer denies the arrest, the magistrate can
make an inquiry into the issue and pass appropriate orders.
6. Rights at Trial
• Right to A Fair 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. Every accused is entitled to be informed
by the court before taking the evidence that he is entitled to have his case tried by another

court and if the accused subsequently moves such application for transfer of his case to
another court the same must be transferred. However, the accused has no right to select or
determine by which other court the case is to be tried.
• Right to A Speedy TrialThe Constitution provides an accused the right to a speedy trial. Although this right is not
explicitly stated in the constitution, it has been interpreted by the Hon’ble Supreme Court
of India in the judgment of Hussainara Khatoon. This judgment mandates that an
investigation in trial should be held “as expeditiously as possible”. In all summons trials
(cases where the maximum punishment is two years imprisonment) once the accused has
been arrested, the investigation for the trial must be completed within six months or
stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his
reasons in writing, that there is cause to extend the investigation
7. Right To Consult A Legal Practitioner
Article 22(1) of the Constitution provides that no person who is arrested shall be denied
the right to consult a legal practitioner of his choice. Further, as has been held by the
Supreme Court that state is under a constitutional mandate (implicit in article 21) to provide
free legal aid to an indigent accused person, and the constitutional obligation to provide
free legal aid does not arise only when the trial commences but also attaches when the
accused is for the first time produced before the magistrate, as also when remanded from
time to time. It has been held by the Supreme Court that non- compliance with this
requirement and failure to inform the accused of this right would vitiate the trial. Section
50(3) also provides that any person against whom proceedings are instituted under the code
may of right be defended by a pleader of his choice. The right of an arrested person to
consult his lawyer begins from the moment of his arrest. The consultation with the lawyer
may be in the presence of police officer but not within his hearing.
8. Rights Of Free Legal Aid
In Khatri(II) v. State of Bihar, the Supreme Court has held that the state is under a
constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent
accused person, an and the constitutional obligation to provide free legal aid does not arise
only when the trial commences but also attaches when the accused is for the first time
produced before the magistrate, as also when remanded from time to time. However this
constitutional right of an indigent accused to get free legal aid may prove to be illusory
unless he is promptly and duly informed about it by the court when he is produced before
it. The Supreme Court has therefore cast a duty on all magistrates and courts to inform the
indigent accused about 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 categorically laid
down that this constitutional right cannot be denied if the accused failed to apply for it.
It’s clear that unless refused, failure to provide free legal aid to an indigent accused would
vitiate the trial entailing setting aside of the conviction and sentence.
9. Right to Be Examined By A Medical Practitioner
Section 54 provides Examination of arrested person by medical practitioner at the request
of the arrested person
When a person who is arrested, whether on a charge or otherwise, alleges, at the time when
he is produced before a Magistrate or at any time during the period of his detention in
custody that the examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by any other
person of any offence against his body, the Magistrate shall, if requested by the arrested
person so to do direct the examination of the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for the purpose of
vexation or delay or for defeating the ends of justice.

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