RIGHTS OF ARRESTED PERSON
AUTHOR : SEHNAZ KHATOON
ARREST
Arrest is seizure of foreseeable restrain to any person by the police send by legal authority. During this process the liberty is deprived of the person by detaining the person in the custody with the order of legal authority.
Arrest is very important tool for the person who is charged under any criminal offence as;
- Attendance of the accused is very important during the procedure of trail, as it will aid in determining the conviction or acquittal of the accused.
- Police officer also have right to arrest a person who escaped or attempt to escape from the custody of the police officer without the order of magistrate or legal authority, this is provided under section 41(1)(e) of crpc. Also, this section makes arrest necessary when any person obstruct any police officer in execution of his duty then the police officer can arrest the person.
- If a person found committing a non – cognizable offence in the presence of police officer and when asked by the police officer to give his name and residence, if the officer believe with some reason that the name and address given by the person is false then he have right to arrest the person under the section 42 of crpc.
Rights of Accused Person are Crucial
India is democratic country which follows some rules and regulation. It is necessary to follow a process of trial in which the crime of the person has to be proved with some evidence or witnesses, until he/she may be presumed as innocent. Many rights of the person are abolished, during his detention by the police but he must not be treated as inhuman although charged with some criminal offence.
The statute of our law does not permit detention of any person without proper legal sanction. Under article 21 of our Indian constitution is provided that no person shall be deprived of his personal liberty except any procedure established by law.
Arrest of the person must be fair and justified, the accused must be protected after arrest from the misuse of powers given to the government and procedure of the arrest must be just and fair and protect him from any kind of arbitrary or illegal arrest. A mere suspension or information from any other person is not gives permission to the police authority to arrest anyone, as it can harm his dignity.
In case of Maneka Gandhi vs Union of Indiacourt held, that the procedure taken by the state must be just, fair and reasonable which falls under basic rule.
In Kishore Singh Ravinder Dev vs State of Rajasthan, it was said by the court that the evidentiary and procedural law have made elaborate provision in regard to protect the right of the accused, protect his dignity and to treat him as a human being and making the procedure of the trial just and fair.
Different Right of Arrested Person
1. Right to know the grounds of arrest;
According to section 50(1) of crpc if a person is arrested without any warrant, then he has full right to know the grounds in detail manner by the police. The police cannot deny to explain the grounds to the party as he is bounded by his duty.
Section 55 of crpc says when a person is being arrested by a police officer, who is deputed by his senior officer must notify the person with the written notice send by the senior officer, who commanded for the arrest of the person. Notice must be specified the ground or cause for which the person is arrested and if shall require also can show the written paper to the person to be arrested.
If any person is going to be arrest with a warrant paper, then it is necessary to specified the particulars of arrest and if require the police shall show warrant paper to him given under section 75 of crpc.
Also, article 22(2) of our Indian constitution, it is specified that no person can be arrested without being informed the reason behind his arrest, also cannot be deprived of choosing a legal practitioner for his defense or can hire any legal practitioner of his choice.
This article also says that the person arrested must be produce before the court or magistrate within twenty-four hours which was also mentioned under section 57 of crpc, in case of Manoj vs State of Madhya Pradesh[3]. Detention must not be extending the given period except the authority of magistrate.
In case of Joginder Singh vs State of U. P and D.K Basu vs State of West Bengal it is made mandatory on the part of the police officer to enter information regarding the arrest in the register file maintained by the police. Along, with informing the friend and relatives of the accused charged for offence. Magistrate must be satisfied with the compliance of the police in regard of the case under section 50(A).
2. Right to be Released on Bail
The person who is arrested without warrant and charged for bailable offence must be informed by the police that the offence under which he is charged is bailable and entitle to be released on payment of some security money. It helps the person if he is not aware about the right of bail under bailable offence.
3. Right to be taken before the Magistrate without delay
The person who is arrested must be present before the judicial magistrate without delay whether the person is arrested with or without warrant the right is same for both the parties. The person can only confine in the custody of police else no where before taking before the magistrate. This matter is given under the section 56 & 78 of crpc.
4. Right to Trial
Right to a fair trial, the court must follow the procedure of fair trail, no trail should be done in close room, it must be open and fair as under article 14 of Indian constitution where “equality before law” is given. which means the law must be equal for all without any bias. There are few exception cases where the trial procedure is recorded in camera.
Right to a speedy trial, though the constitution has not mentioned this provision clearly but, the cases where the maximum punishment is two years for the offence for which the accused is charged must be investigated within six months, only the time extended by the order of the magistrate if the magistrate finds its necessary to extend the investigation period.
Hussainara Khatoon vs State of Bihar, the supreme court held in this case the procedure of investigation must be done “as expeditiously as possible”.
5. Right to consult a legal Practitioner
The person who is arrested have right to consult with a legal practitioner of his own choice and no police officer can deny for it. Police can be present during the consultation of the person with the practitioner it he wants so, but without misusing the power given by law.
The right start as soon as the person is arrested by the police officer. Also, it was given under the article 22(1) as a fundamental right. 50(3) of the code also says arrested person can take pleader of his own choice to defend him.
6. Right of a free Legal Aid
A person who cannot afford a legal Practitioner can have right to get free legal aid from the government and the same cannot denied by court. In Khatri (II) vs State of Bihar it was held that state is under obligation to provide legal aid to the person arrested.
It is the duty of the court and magistrate to make sure that the accused must be presented by the legal practitioner time to time during the remand of case. Supreme Court also stated, if state is fails to make aware to the accused of the right to get free legal aid, it can spoil the whole trail procedure and made compulsory to the court and magistrate to inform the accused about his rights which he has under the law.
Suk Das vs Union Territory of Arunachal Pradesh in this case the apex body has laid the constitutional right cannot be denied if the accused is failed to apply for it.
7. Right to examined by Medical Practitioner
The person who is arrested can ask for the examination of him by any medical practitioner it is provided under the section 54 of crpc “examination of arrested person by medical officer” the person who is arrested can demand for the medical examination if he wants to proof that the charges which were made against him is wrong by taking the help of medical examination.
Accused in which use his reports as an evidence to disapprove the commission in favor of the accused. Medical examination of the person can be done during the detention period within the custody or when presented before the magistrate and ask for the right.
8. Right to silence
The person cannot be considered as guilty of any conduct by any court or tribunal, if he did not respond to the question asked by the court or police. This right is originated from the “common law principal”.
It was also reported by justice “Malimath community” that right to be silence is much needed within the society, where anyone can be arbitrary held liable for any offense. Also, according to the law of evidence confession in front of the police officer cannot be accepted as an evidence. The guilt must be voluntary accepted by the person charged for offence in front of the magistrate.
Article 20(3) of the Indian constitution guarantees every person the right against self-incrimination. It was also stated under this article that any person who is charged for any offence cannot compelled to act as a witness against himself. In Nandini Sathpathy vs P.L. Dani, in this case the court held that no one can force the accused to speak out against his will in any investigation or interrogation. No matter what the accused have full right to be silent if he doesn’t want to answer the question.
Also, in the year 2010, the supreme court held that narco- analysis, brain- mapping, lie- detector tests are in violation of the article 20(3). where the administration forces the person and torture him to speak out and violet the legitimacy of his right.
[1] (1978) SCR (2) 621
[2] (1981) 1 SCR 995
[3] (1999) 3 SCC 715
[4] (1994) 4 SCC 260
[5] (1997) 1 SCC 416
[6] (1980) 1 SCC 98
[7] (1981) 1 SCC 627
[8] (1986) 2 SCC 401
[9] (1978) 2 SCC 424
