RIGHTS AND SAFEGUARDS OF ARRESTED PERSON

Introduction:

In India every person has a certain set of rights available to himself according to the Constitution of India. Such rights include right to freedom of speech, right to education, right to life, right to equality, etc. Similarly, if any person is arrested under the law, then such a person too inherits certain set of right, related to his arrest. In this article we will take a look at such rights of arrested person.

The constitution of India has provided for a set of rights for arrested person which are available to him from his arrest, imprisonment, till the process of his trial.

Listed down are the ten rights available to arrested person. They are as follows:

I. Right to know the ground for arrest:

1. According to article 22(1) of the Constitution, any person who is arrested cannot be detained in custody without being informed, as soon as may be, of the grounds for such arrest.

2. If any person is being arrested without a warrant, then it is the duty of police officer to inform him about the reason for such arrest as per section 50 of Code of Criminal Procedure (CrPc)

3. Also, every person who is being arrested, his relatives must be informed about his arrest as per section 50A of CrPc.

4. According to section 75 of CrPc, it is necessary for the police officer to furnish an arrest warrant in case of non-cognizable offence and also state the substance of such arrest.

5. According to section 55 of CrPc, if any police officer has appointed junior police officer to arrest without a warrant, then such junior must mention the crime and grounds for his arrest.

II. Right to be produced before a Magistrate:

1. As per article 22 (2) of the constitution, every person who is arrested and detained in custody must be produced before the nearest magistrate within a period of twenty-four hours and no person can be detained in the custody beyond the said period without the authority of a magistrate.

2. Section 55 of the CrPC states that, if a police officer is making arrest without a warrant, then he must produce the person arrested before magistrate without any unnecessary delay.

3. Also, as per section 76 of the CrPC the arrested person must be taken before the magistrate within twenty-four hours of his arrest including the time of his travel.

III. Right to be released on bail:

According to section 50 (2) of CrPC when a person is arrested, he has a right to be released on bail. Such bail can be granted by making arrangement for sureties. This is applicable only in case of arrest without warrant.

IV. Right to fair trial:

There is no provision for right to trial in CrPC. But according to article 14 of the constitution every person is equal before law. Which means that all people should be given equal chance and treatment before law. Thus, this right is granted by constitution safeguarding the accused’s right to fair trial without any bias.

V. Right to consult a lawyer:

1. According to article 22(1) of the constitution any person cannot be denied the right to consult and be defended by a legal practitioner.

2. Also, as per section 41D of CrPC the prisoners have a right to consult lawyer during an interrogation.

3. In addition to this, there is a right for person arrested for offence under criminal court and trial is going on, then such a person has a right to be defended by lawyer.

VI. Right to free legal aid:

1. According to section 304 of CrPC when an accused is presented before court and is not represented by lawyer. Then in such cases the court has to appoint a defense lawyer for the accused. This is free of cost for the accused. The state pays the lawyer on behalf of the accused.

2. Also, according to article 39A of the constitution the state has to provide free legal aid to the accused for obtaining justice.

VII. Right to keep silence:

Article 20(3) of the constitution states that no person of any offence shall be compelled to be witness against himself. This is the called the act of self-incrimination. No person can be forced to self-incriminate himself. Because if the accused speaks anything in court, then it can be used against him in the court of law.

VIII. Right to be examined by doctor:

Section 54 of CrPC states that the accused has the right to demand medical examination of his body if he alleges that it might lead to evidence that might dismiss his commission of crime, then the court can order for medical examination of the accused.

IX. Right of accused to produce witness:

The accused has the right to produce witness in the court of law during the trial. His statements and witnesses are used by court as evidence during the trial.

X. Other rights:

1. The arrested person should be protected with reasonable care of health and should not be treated inhumanely and with cruelty, by the police officer as per section 55A of CrPC.

2. Section 358 of CrPC gives rights to the compensation to the arrested person who was groundlessly arrested.

3. Section 41A of CrPC states that the police officer may give the notice to a person suspected of committing a cognizable offence to appear before him at such date and place.

4. Section 46 of CrPC prescribes the mode of the arrest. i.e., submission to custody, touching the body physically, or to a body. The police officer should not cause death to the person while making an arrest unless the arrestee is charged with an offence punishable with death or life imprisonment.

5. Section 49 of CrPC states that the police officer should not make more restrained than in necessary for the escape. Restrain or detention without an arrest is illegal.


Landmark cases:

1. D.K. Basu vs State of West Bengal[1]

In this case D. K. Basu, the executive chairman of Legal Aid Services, wrote a letter to the Chief

Justice of India, drawing his attention to the deaths in police custody and lock-ups. In India, Article 21 of the constitution protects life and personal liberty. And Article 22 deals with protection against arrest and detention in certain cases. In spite, of all these provisions, there was custodial deaths in police lockups and torture towards the prisoners.

Thus, in order to stop this Supreme court laid down eleven guidelines as preventive measure to curb these custodial deaths. Those guidelines are as follows:

1. The police officer should bear accurate, visible and clear identification and name tags with their designations while conducting the arrest.

2. A memo of arrest should be prepared by the police officer and must be attested by one witness. Such memo shall be countersigned by the arrestee and shall contain the time and date of arrest.

3. The arrested person shall be entitled to have one friend or relative, informed as soon as possible, that such a person is arrested.

4. The time, place of arrest and venue of custody of arrestee must be notified by the police, where the next friend or relative of arrestee lives outside the district or town, through the Legal Aid Organization in the District and the police station of the area, telegraphically within 8 to 12 hours after the arrest.

5. The arrested person must be made aware of his right to inform someone of his arrest or detention as soon as he is put under arrest or is denied.

6. Diary must be maintained having entries mentioning the arrested person, along with name of the next friend who is informed about the arrest and police officer who arrested him.

7. The arrestee should be examined at the time of his arrest and check if any injuries are present on his/her body, it must be recorded at that time.

8. The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a doctor on the panel of approved doctors.

9. The magistrate should be sent document copies and the memo of arrest.

10. The arrestee can be allotted to meet his lawyer during interrogation.

11. Police control room should be made at the district and state level and information about the arrest as well as place of custody must be displayed on the notice board within 12 hours of the arrest by the arresting officer.

2. Joginder Kumar vs. State of U. P2

The supreme court held that the arrested person’s right to inform someone about his arrest and right to consult privately with lawyers are inherent in Articles 21 and 22 of the constitution. Also, entry must be made in the diary and name of the person informed must be entered in it. Police officer cannot arrest someone without reasonability. The reason of the arrest must be justifiable.


Conclusion:

Thus, from the above research we can conclude that arrested persons were sometimes previously tortured and harassed in the police custody, which also resulted in custodial deaths of some prisoners. In order to prevent them from this torture there are various rights of the arrested persons discussed above. Thus, such rights are useful and must be better enforced in practicability.

[1] AIR 1997 SC 610

[2] 1994 AIR 1349



This article is written by Samruddhi Joshi of GOPALDAS JHAMATMAL ADVANI LAW COLLEGE.

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