Lucknow, UP, India, 226028

ARRESTED PERSON AND THEIR RIGHTS IN INDIA

Shreyash

ABSTRACT

The offenders are arrested for the offence they have committed. They are presumed to be innocent until the case is proven. The rights are given to arrested person after the so-called arrest being taken place. The rights are enshrined under Indian Constitution and also under Criminal Procedure Code. After the arrest, the accused must be guaranteed with rights that which is their enshrined under the laws. In this assignment the researcher is going to deal with rights of arrested.

INTRODUCTION

“An unjust law is itself a species of violence. Arrest for its breach is more so.”

Every human being is born with certain fundamental rights such as the right to live and the right to liberty etc. Likewise, every citizen of every country has certain rights which are absolutely fair without prejudice in the spirit of common brotherhood and conscience such as the right to life, the right to equality, the right to freedom, the right to education, the right to freedom of religion and many more. However, a person’s same rights may be surrendered if the person is detained/arrested for having committed a crime. Although a person arrested also has certain rights which are explained below.

The Indian legal system is established on the “innocent until proven guilty” platform is a hallmark of our democratic culture that even the accused’s rights are considered sacrosanct, even though he is charged with an offence. An unlawful arrest of an individual may constitute a violation of Article-21 of the Indian Constitution, which states that “no human being shall be denied his right to life and personal liberty except as provided for by law,” which means that the procedure must be fair, transparent and not arbitrary or oppressive.

In a free society like our own, law is incredibly desirous of the individual freedom of every person and does not endure the detainment of any person without lawful authorize. The privilege of individual freedom may be a fundamental right perceived by the final Assembly of the United Nations in its Universal Declaration of Human Rights. This has likewise been noticeably incorporated into the tradition on Civil and Political Rights to which India is currently a gathering. Our Constitution remembers it as a vital right. Article 21 gives:

RIGHT TO KNOW THE GROUNDS OF ARREST

Article 22(1), In addition, India’s Constitution gives the perfectly fine of the fundamental rights. Article 22(1) of the Constitution provides that “no person captured may be restricted to authority without being informed, if any, on the grounds of such capture, nor should the privilege be denied to counsel, and protected by a qualified expert in his judgement.”

Section 75 of Cr. P.C. essentially says that “the police or other person executing a warrant of capture may notify the person to be captured of the substance thereof and may, if necessary, give him a warrant.” On the off chance of not being informed of the warrant substance, the capture would be unlawful.

 Section 50(1) of the Cr. P.C., any police officer or other individual capturing any person without warrant may immediately convey to him exact information of the offence for which he is captured or other reasons for such capture.

Section 55 of the Cr. P.C., if any person is being captured by any police deputy of a senior police force, then such subordinate officer will, before making such capture, tell the person to be captured the substance of the compound request provided by the senior police indicating the crime or other reason for the capture. On the off chance of not pursuing this agreement, the capture will then be made illegal.

RIGHT TO BE TAKEN BEFORE A MAGISTRATE WITHOUT DELAY

Regardless of the fact, if the capture has been done with or without a warrant, the person catching the capture must immediately carry the captured person to a legal officer. Therefore, before taking him to the Magistrate, the captured person must be confined in police headquarters, only and no other location. Those issues were issued in the Cr. P.C. Pursuant to Parts 56 and 76 below:

Section 56 of Cr. P.C. states that ‘Person captured must be produced before  the Magistrate or officer responsible for police headquarters A police officer capturing without warrant can, immediately and subject to such arrangements as to safeguard, take or send the person captured before the Magistrate responsible for the situation or before the officer responsible for the police headquarters.’Bottom of Form

Section 76 of Cr. P.C. implies that ‘Individual captured to be brought under the steady gaze of the Court Immediately The cop or other person executing a warrant of capture (subject to the security arrangements of Section 71) may immediately bring the person captured under the steady gaze of the Court by which the law requires him to establish that person.’ Further, the stipulation of Section 76 Cr. P.C stated that any postponement would not exceed 24 hours regardless. While figuring the day and age of 24 hours, it is important to avoid the time vital for the journey.

Article 22(2) states that, within the twenty-four-hour span of any detention, an arrested or detained person shall be brought before the nearest magistrate. This time is exclusive of the time required for the trip from the place of arrest to the court. Without the jurisdiction of the Magistrate, the arrested person shall not be permitted to remain in custody past the specified duration. This is known as the writ of Habeas Corpus. The writ is issued in the nature of an order calling on the person detained to produce the latter before the Court of Law. It is done to remind the court on what grounds he was imprisoned and to set him free if there is no legal basis for the same thing. It should be noted, however, that a writ of habeas corpus cannot be issued to secure a release on a criminal charge of a person who has been imprisoned by the court of law.

RIGHT TO BE RELEASED ON BAIL

Section 50(2) of Cr. P.C. implies that ‘if a police officer arrests a person other than a person convicted of a non-refundable offence without warrant, he shall notify the person arrested that he is entitled to be released on bail and that he must arrange for protection in that name.

RIGHT TO CONSULT A LEGAL PRACTITIONER

Each captured person has the right of counseling his very own valid professional decision. That has been highly regarded as a key Appropriate in Article 22(1) of the Indian Constitution, which cannot be refused irrespective of what is needed. Furthermore, Section 50(3) of the Code specifies that the person against whom proceedings are commenced has the privilege of being represented by a pleader of his decision. It starts when it catches the individual. The conversation with the legal attorney may be within cop’s sight and not within his capacity to listen.

Section 303 further provides that any person against whom proceedings under the Code are formed that of right be protected by a pleader of his decision. A captured individual’s right of consulting his legal counselor begins from his capture snapshot.

Whether the capture is without warrant or under a warrant, the person captured must be brought under the watchful eye of the Magistrate or the Court within 24 hours Cr. P.C., Section 57 gives’ No cop can confine to authority a person caught without warrant for a longer period than is fair under any of the conditions of the case, and that period should not exceed twenty-four without the Magistrate’s uncommon request under Section 167 Selective hours of the time required to travel from the place of capture to the Court of Magistrate.

Section 41-D entitles an accused person to a right during his detention to have one friend or relative or some other person that he wishes to have by his side.

The police must inform the arrested person of his or her right to inform someone immediately when the person is detained or put in custody.

Appropriate entry must be made in the diary and maintained by the police, who must include all the relevant information related to the arrest of the suspect, which must also provide the details of the individual accompanying the arrested person, as well as the details of the individual to whom the arrest information has been provided.

The official diary must also contain the name and additional information of the officers in whose care the individual being detained is. In addition, a medical examination must be carried out even after the arrested person has asked that any minor or major injuries sustained by the arrested person be reported. This inspection memo is to be signed by both the police officers as well as the person arrested. The person arrested has the right to meet with his lawyer while in prison and during questioning. Besides these, all copies of the complete documents must be sent to the Magistrate for his record, which must also contain the memo of arrest.

RIGHT TO FREE LEGAL AID

Legal Aid involves providing free legal aid to the poorest and weakest members of society who cannot afford to use the advocate’s service to conduct a case or legal proceedings before a court of law, any judicial authority or any judge.

Article-39A, in an effort toward justice, the Government enacted Article-39A providing free legal aid to those in need. The same right was reaffirmed in the Khatri v / s Bihar case, [2] where the court held that “the state must provide free legal assistance to the individual accused of poverty.” The same right to free legal assistance shall be given in court at the first instance of the accused’s appearance before the Magistrate.

In fact, this right to free legal aid for the convicted cannot be refused even though the convicted refuses to seek it himself. However, a vital thing to consider, if the government is unable to give the poverty-stricken convicted person free legal assistance, then the whole case will be invalid. The same was established firmly in Sukh Das v. Arunachal Pradesh,[1] where the Court held that “the right of an accused poor person cannot be denied even if the accused fails to apply for the same thing.”

Section 304 of the Cr. P.C. grants any accused that is due to appear before a Sessions Court a very significant right to appoint him a lawyer (totally free of cost) at the expense of the Police. If the accused does not have sufficient means to appoint himself a lawyer for his case then, the court may appoint him a representative lawyer.

RIGHT TO REMAIN SILENT

The right to silence is a vitally essential right of the accused recognized by law around the world. This germinates from the right to self-incrimination defense enshrined in the Indian Constitution under Article 20(3).

Constitutional right as provided for in Article 20(3):

The accused’s right to silence in India derives from Article 20(3) of the Constitution which states that no one can be compelled to be a witness against himself. The clause embodies a fundamental code of law-the right of self-incrimination. The features of this right are: (a) the accused is presumed innocent; (b) it is the prosecution’s duty to prove his guilt; and (c) the accused does not need to make any argument against his will.

The presumption of the accused’s innocence cannot be dismissed simply because of the accused’s exercise of the right to remain silent because such an action would undermine the presumption’s legal validity. In fact, the reliance on adverse inferences to convict the accused conflicts sharply with the idea that it is the prosecution’s responsibility to determine the accused’s guilt. It’s going to be against the due process model our nation follows. Accordingly, drawing adverse inferences from the accused’s silence is in violation of the constitutionally guaranteed fundamental right under Article 20(3).

EXAMINATION OF ARRESTED PERSON BY MEDICAL PRACTITIONER

Where a person who is detained, whether on charges or otherwise, alleges, at the time when he is brought before a Magistrate or at any time during his detention in custody, that the examination of his body will provide evidence which will disprove the commission of any offence by him or which will confirm the commission of any offence against his body by any other person, the Magistrate shall if the arrested person so requests, the licensed medical practitioner shall direct the examination of that person’s body, unless the Magistrate finds that the request is made for the purpose of vexation or delay or in order to defeat the ends of justice.

ADDITIONAL RIGHTS AVAILABLE TO AN ARRESTED PERSON

Section 55-A of the Cr. P.C. states that it is the duty of the person under whose custody the arrested person shall take reasonable care of the accused’s health and safety. The arrested person shall be protected against cruel and inhumane treatment.

 Section 358 of the Cr. P.C. guarantees the compensation to the detained person, who has been groundlessly detained.

Section 41-A of the Cr. P.C. states that a person suspected of committing a cognizable offense may be given the notice by the police officer to appear before him at certain date and location.

Section 46 Cr. P.C. prescribes mode of arrest. – i.e., submission to custody, physical touching of the body or of the body.   The police officer should not cause the person to die while making an arrest unless the offender is charged with a death-punishable offense or life-imprisonment.

Section 49 of the Cr. P.C. provides that the police officer must not make for the escape more restrained than is required. It is illegal to restrain or to detain without arrest. This case is a landmark judgment as in D.K Basu vs. West Bengal State and Others, [2] as it focuses “on the rights of the accused person and even requires the police officer to carry out other operations.” The court also notes that if the police officer fails to fulfill his obligation, he will be responsible for court contempt and departmental acts. Such matter may be produced in any High Court with jurisdiction over the case.

Notwithstanding numerous attempts to protect the accused from torture and inhumane treatment, there are still cases of custodial death and crimes committed by police. The Supreme Court thus issued nine guidelines for the protection of the accused and the amendment of various Sections of Cr. P.C.:-

Section 41-B – The police officer who is performing an investigation must wear a conspicuous, simple and correct badge clearly stating the police officer’s name along with his rank.

The police officer who is making an arrest must prepare a cash memo containing a date and time of arrest to be certified by at least one member who may be a member of his family or any respectable person of a locality. The arrested person would counter sign the cash report.                                                                              

Section 41-D: The person arrested is entitled to be told of his arrest by a right to have one friend or relative or any other person who has an interest in him.

The arrestee must be informed of his right to have someone promptly told of his right when he is brought into detention or detained. Entry shall be made in the diary which shall disclose the information concerning the arrested person and shall also include the name of the next friend to whom information concerning the arrest shall be given. This also contains the name and description of the policeman in whose care the arrestee is. Upon the request of the arrestee the major and minor injuries if any, an examination shall be carried out if any effects on the body are to be reported. Police officers and the person detained will sign the inspection memo.

Throughout and after the interrogation the arrestee has the opportunity to meet with his counsel.

Copies of all documents for record shall be submitted to Magistrate. Memo of the arrest is also included.

Section 41-C: The court ordered the establishment of state and district headquarters, the police control room where the police officer who made an arrest must be informed of the arrest within 12 hours, and it must be shown on the conspicuous board.

Yoginder Singh vs Punjab State, [3] The Court held that: it is appropriate for the compliance of Articles 21 and 22(1) the arrester is entitled to have informed any of his friends, relatives or any other person in his interest about his arrest. The police officer will necessarily be informed of the arrestee’s right when he is being put into detention. The entry must be in a diary containing the identity of the person who was notified about the arrest.

Prem Shukla vs Delhi Administration,[4] the court held that “unless exceptional circumstances arise, the prisoners have a right not to be handcuffed Fetterly or routinely.”

CONCLUSION

In the most part, it is understood that given the various provisions in the Cr. P.C. In addition, the power of capture given to the police in the Constitution is being abused to this day. It is also suspected that the police also use their power position to undermine the captured citizens and manipulate their office to coerce cash. There is an urgent need for reforms in the Criminal Justice System, such that the state can understand that its basic duty is not to condemn, but rather to mix and modify the transgressor or more, that socialization is not indistinguishable from discipline, It involves counteractive action, training, care and recovery within the social barrier structure. In its Report on Changes in the Criminal Justice System, the Malimath Committee expressed that the accused has the privilege of knowing the rights granted to him by law and how to implement those rights. There have also been reactions that the police neglect to advise the captured people of the charge against them and then, in complete oblivion of their alleged wrongdoing, allow the captured people to wallow in guardianship. There have also been interminable reports on custodial brutality Convince that the suffering of the captured individuals’ fundamental rights has turned out to be typical these days. It’s police’s obligation to secure society’s privileges. It needs to be recalled that this general population comprises all people, including the caught. On these lines, it is also the responsibility of the police to protect the rights of the individual arrested.

Author(s) Name: Shreyash Samarth (New Law College Bhartiya Vidyapeeth, Pune)

Image

[1] 1981 SCR (2) 408, 1981 SCC (1) 627

[2] On 18 December, 1996

[3] AIR 1963 SCR Supl. (2) 169

[4] AIR 1980 SCR (3) 855