RIGHTS OF AN ARRESTED PERSON
BY: TUSHAR RAI
The Concept of Arrest under the Code of Criminal Procedure, 1973. Arrest means ‘the deprivation of a person of his liberty by a legal authority or at least by apparent legal authority’. Moreover, it has to be noted that ‘every compulsion or physical restraint is not arrested but when the restraint is total and deprivation of liberty is complete, it amounts to arrest’.
In India our constitution recognized it as a fundamental right. Article 21 Provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Criminal procedure provides some basic right of arrested persons for the protection of the person be arrested, and also society at large. But before we start on rights of arrested person we make ensure that why arrested is needed ?
Why is arrest of person is necessary?
The arrest of person is necessary if he/she committed any offence.
And following reason for arrest are as follow:
- For securing attendance at trial.
- To obtain correct name and address.
- Prevent Obstructing a Police Officer in Execution of his duty.
- For retaking a person escaped from custody.
- To prevent such person from committing any further offence.
- To prevent disappear or tampering with evidence used in trial.
- To prevent inducement, treat to any person acquainted with facts of cases.
Rights of an arrested Person
Right to know the ground of arrest – according to section 50(1)
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. Our constitution has also conferred on this right the status of a fundamental right. Article 22(1) provides:
No person who is arrested shall be detained in custody without being informed as soon as may be, of the ground for such arrest nor shall be denied the right to consult, and to be defended by a legal practitioner of his choice.
In one case held that The right to inform is the precious right of arrested person.[i] it appears reasonable to expect that the ground of arrest should be communicated to the arrested person in the language understood by him; otherwise it would not amount to sufficient compliance with the constitutional requirement.[ii]
The right to informed of the ground of arrest is recognised by section 50, 55 and 75 in case where the arrest is made in execution of a warrant of arrest or where the arrest is made by a police officer without warrant. The rules generated from decisions such as Joginder Kumar v. state of U.P.[iii] and D.K. basu v. state of W.B.[iv] , referred to infra have been enacted in section 50-A making it obligatory on the part of the police officer not only to inform the friends or relative of the arrested person about his arrest etc. but also make an 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.
Information regarding the right to be released on bail.-
In code of criminal procedure,1973 section 50(2) provides: where the 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 on bail and that he may arrange for sureties on his behalf.
Under section 436 in code of criminal procedure provide bail to person accused of bailable offence. According to Webster’s dictionary- ‘the process by which a person is released from custody’ is called bail. And bail is the right of accused.
Object to grant bail is to secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody. Effect is not to set the prisoner free from jail or custody, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial.
Right to be taken before a magistrate without delay-
In both the situation whether the arrest is made without warrant or made under the warrant by police officer or by any person, the person making the arrest must bring the arrested person before a judicial magistrate or if judicial magistrate is not available then bring arrested person before any executive magistrate having such jurisdiction 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 provides in criminal procedure code,1973 under section 56 and 76 which are as follow-
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 provisions herein contained as to bail, take or send the person arrested before a magistrate having jurisdiction in the case, or before the officer of a police station.
Section 76- Person arrested to be brought before court without delay- The police officer or other person executing warrant of arrest shall (subject to the provision 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: provided that such delay shall not, in any case, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court.
No unnecessary restraint –
Section 49 of Cr.PC provides that there should be no more restraint than is justly necessary to prevent escape i.e. reasonable force should be used for the purpose, if necessary; but before keeping a person under any form of restraint there must be an arrest. Restraint or detention without arrest is illegal.
Person arrested not to be detained more than 24 hour:
The constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed Khatri v. State of Bihar [v] Section 57 is concerned solely with the question of the period of detention. The intention is that the accused should be brought before a magistrate competent to try or commit, with the least delay. The right to be taken out of police custody by being brought before a Magistrate is vital in order to prevent arrest and detention, with a view to extract confession or as a means of compelling people to give information.
It may also be noted that the right has been further strengthened by its incorporation in the constitution as a fundamental right. Article 22(2):
every person who is arrested and detained in custody shall be produced before the nearest magistrate with 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.
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. (1) to prevent and detention for the purpose of extracting confession, or as a means of compelling people to give information; (2) to prevent police stations being used as though they were prison a purpose for which they are unsuitable; (3) to afford an early recourse to a judicial officer independent of the police on all question of bail or discharge. If a police officer fails to produce arrested person before magistrate within 24 hours of the arrest, he shall be held guilty of wrongful detention.
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 the state is under a constitutional mandate article 21 to provide free-legal aid to an indigent accused person, and this is constitutional obligation to provide legal aid does not arise only when the trial commence but also attaches when the accused is for the first time produce before the magistrate, as also when he is remanded from time to time. Section 303 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.
Article- 39 A The government in an effort towards securing justice instituted Article- 39 A to provide free legal aid to people in need.
- Right to be examined by a medical practitioner- section 54 this section empower the court to get the arrested person medically examined. if an arrested person claims that medical examination of his body would lead to a detail which would dismiss the fact of commission of the crime by him, or some detail that might lead to evidence towards commission of the crime by some other person against his body.
CrPC provide if there are reasonable grounds for believing that an examination of arrestee, on a charge of committing rape or other offence, will afford evidence so as to the commission of such offence, it shall be lawful to medically examine blood, blood stains, semen, hair samples, finger nail clippings by use of modern & scientific techniques including DNA and such other tests, which the medical officer thinks necessary in a particular case, acting at the request of a police officer.
According to the honorable supreme court, the arrested accused person must be informed by the magistrate about his right to be medically examined. While section 53 enables a police officer to compel an arrested person to undergo a medical examination with a view to facilitate investigation.
The salutary principle that the medical examination of a female should be made by a female medical practitioner has been embodied in section 53(2).
In order to have transparency in the accused-police relations the supreme court in joginder kumar v. state of U.P.(1994) SCC.
- An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him.
- The police officer shall inform the arrested person when he brought to the police station of this right.
- An entry shall be required to be made in the diary as to who was informed of the arrest.
I would like to Concluded my blog here that some right of arrested person is a fundamental rights enshrined in the constitution of India. This is most important rights that maintain a harmony relationship between police and person arrested and is provides security for arrested person from any illegal arrest and detention, every person have right to move freely everywhere; but if a person is committed a crime which is harmful to society at large then arrest is necessary, similarly there are many person false arrested by police so these right given to arrested person play a vital role for preventing him or her from such false arrest. Right is given to arrested person also make control over illegal torture and false encounter, third degree torture of arrested person. Rights also help accused to protect and defend him against the impose crime over him.