RIGHTS OF AN ARRESTED PERSONS

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Introduction

Every human has to be treated in a humane way, and being accused of an offence doesn’t make anyone less human. The laws of our county has been made in a way to protect the basic tenets under the Indian criminal jurisprudence, i.e, innocent until proven guilty, which presumes a person accused of an offence to be innocent until he is convicted. The accused persons are also granted certain rights by the Indian Constitution and the Code of Criminal Procedure to ensure that they are tried without any arbitrariness. An accused has certain rights during the course of any investigation; enquiry or trial of offence with which he is charged, and he should be protected against arbitrary or illegal arrest. Given below are some of the most important rights of an arrested person:

Right To Know The Grounds of Arrest

Timely communication about the grounds for arrest is important as it serves the arrested person in many ways. It gives the person an opportunity to clear any mistakes or to clear the misunderstanding in the minds of arresting authority. This precious right of an arrested person is not just recognized by the Code but also by the Indian Constitution as a fundamental right under the scope of Article 22 (1).

The Code under section 50 (1) states that whenever a person is arrested by a police officer or any other person without a warrant, the person making such an arrest shall communicate the grounds on which the person is being arrested. According to section 75 of the Code, when a police officer or any other person is executing a warrant of arrest, he shall notify the substance, i.e., the grounds of the arrest to the person being arrested.

Moreover, the rules emerging from the judgements of Joginder Kumar v. State of U.P.[1] and D.K. Basu v. State of W.B.[2] have been enacted under section 50-A of the Code, whereby an officer making an arrest is under the obligation to inform a friend or relative of the arrested person about his arrest and where he is being detained[3] and an entry of the same shall be maintained in a register which is to be kept in the police station.[4] Moreover, the section under sub-section (4) states that it shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that all the above-stated requirements have been complied with.

Right to silence

Right to remain silence though has not been recognized by any law, but it finds its authority in the Code, Evidence Act and also the Constitution of India.

No arrested person can be compelled to make any statement or confessions, and hence this right is mainly related to the statement made before the Court or whenever a confession is taken; the Magistrate has to ensure that such statement or confessions made are made voluntarily.

Article 20(2) of the Constitution talks on the principle of self-incrimination and states that no person can be compelled to be a witness against himself. This court while expressing their opinions on this principle has stated that “no one can force any person to give any statement or to answer questions and the accused persons has the right to keep silence during the process of interrogation.”[5]

Right To Be Informed Of Right To Bail

The Code has given the right to be released on bail to an arrested person who is accused of commission of a bailable offence.[6] It has also made it mandatory for the officer who arrests a person without a warrant any person other than a person accused of a non-bailable offence to that he has the right to be released on bail and that he may arrange sureties on this behalf.[7]

Right To Be Produced Before a Magistrate without delay

The Constitution under Article 22 (2) has made it obligatory of the authorities to produce an arrested person before the Magistrate within 24 hours of his arrest, irrespective of the fact of whether he has been arrested with or without a warrant. Similar provisions have been made under the Code in sections 56 and 76 which talk about bringing an arrested person who has been arrested without and with a warrant of arrest before the Court without unnecessary delays. If this is not complied with, the detention shall be unlawful.[8]

Right of Not Being Detained for more than 24 hours without judicial scrutiny

Section 57 of the Code states that no police officer shall detain a person arrested without a warrant for a term exceeding 24 hours. The section also enables Magistrates to keep a 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 down heavily upon the police.[9]

This right 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 through they were prisons – a purpose for which they are unsuitable;
to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge.[10]

Right to consult a legal practitioner

Both the Code and the Constitution have given this right to an arrested person. This right begins from the moment of arrest. 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. The Code under section 303 gives any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under the Code, the right to be defended by a pleader of his choice. The Apex Court has observed that the consultation with a lawyer may be in the presence of the officer but not within his hearing.[11]

According to section 41-D of the Code, any person who has been arrested and is being interrogated by the police shall be entitled to meet an advocate of his choice during interrogation, however, this right is not available throughout the interrogation.

Right of an indigent person to free legal aid and to be informed about it

In Khatri (2) v. State of Bihar[12], the Apex Court has held that the State is under the constitutional mandate to provide free legal aid to an indigent accused person and that this constitutional obligation to provide free legal aid does not arise only when the trial commences but also when the accused is remanded from time to time. This constitutional right cannot be denied if the accused failed to apply for it.[13] Hence, unless refused, the failure to provide an indigent person with free legal aid would vitiate the trial, entailing setting aside of conviction and sentence.

Right to be examined by a medical practitioner

Section 54 (1) of the Code gives for examination of arrested person by a medical officer. Whenever a person is arrested, he shall be examined by a medical officer in the service of the Central or State Government. In the absence of such a medical officer, the arrested person shall be examined by a registered medical practitioner. Where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer or registered medical practitioner.

The medical practitioner is under the duty to make a record of the examination and he shall also mention injuries or marks of violence upon the arrested person, and the approximate time when such injuries or marks have been inflicted[14] and a copy of such record shall be produced to the arrester person or the person nominated by such arrested person.[15]

Moreover, the Apex Court has made an observation that the arrested accused person must be informed by the Magistrate about his right to be medically examined in terms of section 54.[16]

[1] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

[2] D.K. Basu v. the State of W.B., (1997) 1 SCC 416.

[3] Section 50-A (1), the Code of Criminal Procedure, 1973.

[4] Section 50-A (3), the Code of Criminal Procedure, 1973.

[5] Nandini Satpathy v. P.L. Dani, AIR 1997 (1) SCC 416

[6] Section 436, the Code of Criminal Procedure, 1973.

[7] Section 50 (2), the Code of Criminal Procedure, 1973.

[8] Manoj Prasad v. State of M.P., (1993) 3 SCC 715.

[9] Khatri (2) v. the State of Bihar, (1981) 1 SCC 627.

[10]R.V. Kelkar, Lectures on Criminal Procedure, 6^th Ed.

[11] Directorate of Revenue Intelligence v. Jugal Kishore Samra, (2011) 12 SCC 362.

[12] Khatri (2) v. the State of Bihar, (1981) 1 SCC 627.