Everyone is equal in the eye of the constitution while serving for justice. Even the arrested person has his/her own rights to demand if not given. Logically, these privileges are as imperative as the protection of any of the human right against the violation. Similarly, an accused should be protected against any of the illegal practices and anti-democratic acts during the beginning of time when he got arrested. There are various rights of arrested person in India guaranteed by the Constitution and the Code of Criminal Procedure.
“Darkness of Cages shall Allow you to Breathe
For Thou shall not be Killed of Inhumanity !!”
The foremost one is the right to silence which states that it’s the choice of accused to stay quiet or not to say anything in his own favor or against until or unless his lawyer is consulted, or he is being presented in front of the magistrate. In India, one of the rights of arrested person under constitution is mentioned in clause (3) of Article 20(1) states that “No person accused of any offense shall be compelled to be a witness against himself.” Apparently, this theory is the follow-up of maxim believing “NO MAN IS BOUND TO ACCUSE HIMSELF.”
This law is basically a protection against incrimination before any of the conviction being imposed. It is mainly concerned about confession. It’s totally up to the accused that whom he finds to speak about the charges imposed on him. Moreover, he/she can also witness himself during the court trial and none of the authority can deny his open confessions.
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:
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. Non- compliance 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 choice.”
There are two types of offenses, Bailable and Non- bailable offense. A person who is arrested in the absence of a warrant and has his been accused of a bailable offense then he enjoys the right to ask all the relevant requirements of the bail including the information about surety amount.
This helps persons who are arrested for bailable offenses who are not aware of their right to be released on bail.
Article 14 of the Indian constitution guarantees the right to equality before the law. The Code of Criminal Procedure also states that a fair trial is to be done in an open courtroom. This logically promotes the prevention of hindrances during the conviction is made.
The 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
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. Anybody who has been arrested legally has the right to consult a legal practitioner of his own choice. Section 50(3) of the Code also lies down that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice since the arrest has taken place. The consultation with a lawyer can take place within or without the presence of police.
Section 54 of CrPC provides for compulsory medical examination by a medical officer in service of central or state government, or by registered medical practitioner, upon non-availability of such medical officer. Female arrestees can only be examined by female medical officer or registered medical practitioner.
However, Section 53 & 53A of 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.
Section 51 of CrPC allows a police officer to make personal search of arrested persons. With regard to the provisions of this section, the reference may be made to Article 20(3) of the Constitution of India which is a guarantee to the accused against self-incriminating testimonial compulsion. Though an accused cannot be compelled to produce any evidence against him.
while after the arrest, a person shall have the right to consult and to be defended by a counsel of his choice; arrestee shall be entitled to free legal aid. Apart from ensuring a fair prosecution, a society under the Rule of law has also a duty to arrange for the defence of the accused, if he is too poor to do so. Free legal aid to persons of limited means is a service which the modern State, in particular a welfare state, owes to its citizens (Law Commission of India, 14th Report, Vol. I, pp 587-600).
An accused personhas the right to produce witnesses in his defense in case of the police report. After the Examination and cross-examination of all prosecution witnesses, the whole proceeding is recorded simultaneously. He may even call further for cross-examination. Moreover, section 138 of Indian evidence act states that the judge records the evidence of the witness to the prosecution is done with his evidence.
Where a woman is to be arrested, unless the police officer is a female, the police officer shall not touch the person of the woman for making an arrest and arrest would be presumed on her submission to custody on oral intimation. After sunset and before sunrise, no woman can be arrested, except in exceptional circumstances and upon prior written permission from the local Magistrate.
If a person commits an offence and he can anticipate that police can arrest him, he can always consult his lawyer to get him anticipatory bail. If that is not the case and a person is arrested without any warning there is no need to panic but to be informed about your rights and their duties towards you. Once the Police arrest the person, it becomes the responsibility of the police to take care of the arrested person.
Arrests are made by looking at the gravity of offence which has been committed by the accused. The offence may be bailable or non-bailable in nature. Where an offence is bailable, the arrested person can get bail as a matter of right and it can be granted in the police station. Where it is a non-bailable offence bail is a matter of discretion of the court. If the arrested person gets bail it doesn’t mean that the trial is over, the arrested person will have to visit the Police station and Court of law whenever he/she is told to do so. It is very important for the arrested person to communicate the same to their lawyer.
The burden is on the police officer to satisfy the court before which the arrest is challenged that he has reasonable ground of suspicion. In exception to the above, Section 45 of CrPC provides that members of Armed Forces cannot be arrested for anything done in discharge of official duties, except after obtaining consent of the central government.
1. 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 or likely to take an interest in his welfare told as far as practicable that he has been arrested and where is being detained.
2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest.
These protections from power must be held to flow from Articles 21 and 22 (1) and enforced strictly.
· D.K. Basu v. State of W.B
The frequent instances of police atrocities and custodial deaths have promoted the Supreme Court to have a review of its decisions like Joginder Kumar, Nilabati Behera etc. Therefore, the Supreme Court issued in the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures.
1. 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 must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee 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 countersigned by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre 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.
4. 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 Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined 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 “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody, by a doctor in the panel of approved doctors 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.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to illaqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11. A police control room should be provided at all Districts 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.
The Court emphasized that failure to comply with the said requirements shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements flow from Articles 21 and Article 22 (1) of the Constitution and need to be strictly followed. The requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.