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The rights of an arrested person

Post by on Wednesday, March 30, 2022

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The constitution of India states that all the citizens of India have the right to life which also includes the right to live with dignity but the larger question posed by many is that will the same dignity be given to a criminal or an accused person too? In other words, does a person who is being arrested also has the right to be treated in a dignified manner? The answer to this question is - YES! Even a person who is an accused and is being arrested on some charges has certain rights which are given to him by the Indian constitution and the basic assumption behind this is that all criminal cases are prosecuted against by the State which has huge resources at its disposal vis-a-vis an individual who stands at a huge disadvantage in this scenario. In order that the state does not end up misusing the enormous resources at its disposal, an individual is accorded some protection during the course of investigation, enquiry or trial in the crime/offence with which he has been charged. Such a protection is also accorded to the accused person so as to protect him against an illegal arrest or detention. In a nutshell, the rights of an arrested person may be summarized as follows:

 

1.  Right to know the grounds of arrest

Sec 50(1) of the Criminal Procedure of India states that- every person who is being arrested by any police officer, without any warrant, is entitled to know the full particulars of offence for which he is being arrested, and that the police officer is duty bound to tell the accused such particulars and cannot deny it. In case this is not done then the said arrest shall be termed as unlaw full. It is pertinent to note here that this right has been termed as a Fundamental Right as per the Constitution of India as Article 22 of the Constitution states that- “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”

2. Right to silence

Another right that accrues to a person arrested is that he has the right to remain silent. This right has been derived from the common law principles and it basically means that no court of law can conclude that a person is guilty merely because he speaks nothing in his defence and chooses to remain silent. In a society where it will be easy to hold anyone guilty of any charge, the right to silence is imperative. In fact, even if an accused is ready to speak, it should be ensured that the same is done voluntarily and without any threat or inducement. The Supreme Court of India has also upheld in the case of Nandini Sathpathy v. P.L.Dani; wherein it was held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation). The Supreme Court again in the year 2010, held that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India that guarantees every person has been given a right against self-incrimination.

 

3. The right to be released on bail 

Any person who is to be arrested without a warrant and is not accused of a non-bailable offence has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount.

 

4.  Right to be taken before a Magistrate 

A person who has been arrested has to be produced before a magistrate without any unnecessary delay. The procedure for the same has been clearly elucidated in the CrPC u/s 56 and 76. If the police officials fails to produce an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.

5. Rights during trial

The Constitution of India guarantees to every citizen certain fundamental rights that include the Right to Equality before the law. To ensure that everyone is treated equally before law, every trial has be be a fair trial and the same is ensured by keeping them in an open court. There are however some exceptions where the trial may be held in camera. Apart from this, the Apex Court of the country has also laid down in the case of Hussainara Khatoon that the investigation in the trial must be conducted “as expeditiously as possible.” In fact, the law states that in cases where the maximum punishment imposed is 2 years, it is mandated that the trial has to be completed within the period of six months or stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.

 

6.  Right to consult a legal practitioner

The law mandates that every person who is arrested has a right to consult a legal practitioner of his own choice. This has not only been included in the Indian Constitution but also forms part of CrPC u/sec 50(3). The consultation with the lawyer may be in the presence of police officer but not within his hearing. 

 

7. Right to free legal aid

The Indian Constitution has taken into consideration every scenario in the interest of justice including one where the accused/arrested person might not have the financial means to engage a legal practitioner and hence keeping this in view, the Apex Court has held in Khatri vs the State of Bihar, that the state is under a constitutional obligation to provide free legal aid to an indigent person. Such a right is said to be implicit under article 21 of the Indian Constitution that talks about the Right to Life. This right does not come into picture only at the time of trial but exists at the time when the accused is produced the first time before the magistrate, as also when remanded from time to time. The Supreme Court further states that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid. 

The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been laid down that this constitutional right cannot be denied if the accused failed to apply for it. It is clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence.

 

8. Right to be examined by a medical practitioner

If the arrested person so requires, he has been given the right to be examined by a medical practitioner if he alleges at the time of being produced before the magistrate that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.”

Apart from all of the above stated Constitutional measures and other provisions set out in the CrPC, the Apex Court has also laid down certain guidelines in the landmark case of DK Basu vs State of West Bengal which were required to be mandatorily followed in all cases of arrest or detention. Following are some of the important ones:

1. The person who is going to arrest any accused should bear accurate, visible, and clear identification along with their name tags with their designation.

2. The police officer who is arresting the arrestee must prepare a memo of arrest, and it should be attested by at least one person who may either be a family member of the arrestee or any other respectable person in the locality. The memo must contain the date and time of arrest and must also be countersigned by the arrestee.

3. If the person who has signed the memo of arrest is not a family member, relative or friend of the arrestee, then the arrestee is entitled to have one friend or relative being informed about his arrest as soon as possible.

4. 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.

5. 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.

6. The police officer should, on the request of arrestee, record at the time of his arrest major and minor injuries, if any, present on arrestee’s body, after subjecting the arrestee to an examination. The “Inspection Memo” must be signed both by the arrestee and the police official making such arrest, and one copy of that memo must be provided to the arrestee.

7. Copies of all the documents including the memo of arrest, referred to above, should be sent to illaqa Magistrate for his record.

8. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

9. The court also ordered that in every district and state headquarters, a police control room should be established, wherein every arrest which is being made must be reported by the police officer making such arrest within 12 hours of such arrest, and it should be displayed on a conspicuous notice board.

 

The Court also emphasized failure to fulfill the given requirements would render the concerned officer liable for contempt of court along with departmental actions, and such proceedings can be initiated in any High Court having the territorial jurisdiction over the matter.

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