In India, the rights of an arrested person are enshrined in the Indian Constitution, particularly under Part III, which guarantees fundamental rights to all individuals, including those accused or arrested for criminal offences. The Indian legal framework ensures that no person is deprived of their right to life and liberty or subject to arbitrary arrest or detention without due process of law. The protection of these rights is not merely procedural; it reflects values of transparency, fairness and equality. Through constitutional provisions, statutory safeguards under the Code of Criminal Procedure (CrPC) and landmark judicial pronouncements, the Indian judiciary has played a crucial role in diversifying and enforcing these rights.
CONSTITUTIONAL SAFEGUARDS
Article 20(3)
- It guarantees the right against self-incrimination. This means that no person accused of an offence can be compelled to be a witness against themselves. Essentially, it protects individuals from being forced to provide evidence or testimony that could incriminate them. This protection applies to both the trial and investigation stages.
Article 21
- Right to speedy trial is enshrined under Article 21. It evolved from the case of Hussainara Khatoon vs State of Bihar, where the Hon’ble Supreme Court held that prolonged detention without a trial violated Article 21 and ordered mass release of under-trial prisoners, also emphasizing the importance of free legal aid and equal access to justice.
Article 22
- This article safeguards individuals against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention.
- The arrested person must be produced before the nearest magistrate within 24 hours of their arrest.
- The right is given to the arrested person to consult and to be defended by a legal practitioner of their choice. This ensures proper legal representation during the time of their arrest.
- An arrested person must be informed of the grounds of the arrest and detention. They have the right to know the reason behind their arrest.
Article 39A
- Article 39A mandates the state to provide free legal aid to prevent denial of justice due to economic or other disabilities. This article was added through the Constitution (Forty-second Amendment) Act 1976.
SAFEGUARDS UNDER CRPC
Right to Know the Grounds of Arrest
- Section 50(1): It mandates that the arresting officer immediately inform the arrested person of the offence for which they are arrested and the grounds of the arrest. This includes communicating all the particulars of the offence and any other reasons for the arrest.
- Section 55: When a police officer deputes a subordinate to arrest without a warrant. Specifically, it requires the officer in charge of a police station or any police officer investigating a case to provide a subordinate with a written order for the arrest, specifying the person and the reason for the arrest. The subordinate must notify the person to be arrested of the substance of the order and show it upon request before making the arrest.
- Section 75: The police officer or other person executing a warrant of arrest must notify the person being arrested of the substance of the warrant and, if requested, show them the warrant.
Right to be taken before the Magistrate within 24 hours
- Section 56: A person arrested without a warrant by a police officer must be taken without unnecessary delay before a magistrate having jurisdiction or the officer-in-charge of the police station.
- Section 76: A person arrested under a warrant must be brought before the court without unnecessary delay. This production must occur before the court specified in the warrant, and the delay cannot exceed 24 hours, excluding the time needed for the journey to the court.
Right to be examined by a medical practitioner
- Section 54: It mandates that any person arrested must be examined by a medical officer or a registered medical practitioner as soon as possible after the arrest. The examination should document any injuries or signs of violence on the person and the approximate time of their occurrence. A copy of the examination report must be provided to the arrested individual or a nominated representative.
Right to consult a legal practitioner
- Section 41D: The right of a person arrested and interrogated by the police to meet an advocate of their choice during the interrogation.
- Section 303: It grants the right to any person accused of an offence to be defended by a pleader of their choice. This right extends to any accused person before a criminal court, or against whom proceedings are instituted under the CrPC.
Right to free legal aid
- Section 304: It deals with legal aid to the accused at the state’s expense in certain cases. Specifically, it provides for the appointment of a pleader for the accused’s defence at the expense of the state if the accused is not represented by a lawyer and there is a lack of means to hire one.
LANDMARK CASE-LAWS
D.K. BASU vs. STATE OF WEST BENGAL (1997) 1 SCC 416
The hon’ble Supreme Court issued the following guidelines:
(i)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 should bear accurate, visible and clear identification and name tags with their designation. The particulars of all such personnel who handle the interrogation of the arrestee must be recorded in a register.
(ii) That the police officer carrying out the arrest 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.
(iii) 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.
(iv) 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 Aids Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(vi) 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.
(vii) 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 Inspector Memo must be signed by both the arrestee and the police officer effecting the arrest, and its copy provided to the arrestee.
(viii) The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctor appointed by Director, Health Services of the concerned State or Union Terri tory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(ix) Copies of all the documents, including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
(x) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(xi) A police control room should be provided at all district 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.
JOGINDER KUMAR vs. STATE OF U.P 1994 AIR 1349
The law of arrest seeks to balance individual rights with societal interests. The court emphasised that possessing the power to arrest is different from justifying its use; arrests must not be made routinely and must be justified, especially in non-heinous offences where a notice to appear may suffice.
The court laid that the arrested person has the right to inform a friend or relative about their arrest and detention. The police must notify the arrested person of their right to inform a friend or relative about their arrest and detention. The police must notify the arrested person of this right and record in the diary who was informed.
Contributed by: Vanshika Dhiman (Intern)