Rights of an Arrested person

(This article is written by Devika Samant, a second-year student of IIMT & School of Law)

“Injustice anywhere is a threat to justice everywhere”.

– Martin Luther King Jr.

Introduction.

In the eyes of Indian law, an accused is considered as an innocent until proven guilty and this principle is known as “Presumption of Innocence”. One can trace its existence by having a reference of Indian Constitution, Code of Criminal Procedure 1973 and some landmark judgements. As being a human an accused have all the basic rights which are guaranteed by our constitution for example right to life, personal liberty and no one can be deprived of those rights except a procedure established by the law according to article 21 of the Indian Constitution. In a modern society where crimes are increasing day by day, it has become a matter of concern and it’s the duty of the state to control the growing the threat of crimes by making strict laws which should also be consistent with the concept of human rights.

Generally when a complaint is filed against an accused then the person gets arrested by the police authority for the following of trial in which if he finds guilty so he will be charged with the punishment such kind of arrests is governed under punitive laws. In some cases, the objective of the detention is to prevent the person from committing a crime such laws are known as preventive detention. In many democratic countries, there is a concept of punitive detention but the concept of preventive detention is very limited and operates only in the times of emergency. India is the only democratic country which has both punitive and preventive laws operating in the ordinary times under article 22 of the constitution of India.

Arrest how to be made

The term arrest has not been defined anywhere in the Indian Criminal system but part V of code of criminal procedure 1973 deals with the concept of the arrest. The literal meaning of arrest is to seize or deprivation of liberty of a person by legal authority. The police officer has the power to arrest a person with or without a warrant and the procedure has defined under section 46 of CrPC. According to this section, the police officer has to touch the body or confine the body of the accused and can use appropriate force but cannot cause the death of the accused who is not an accused of an offence punishable with death or life imprisonment.

The police officer is also authorised to arrest the person other than his jurisdiction into any place in India under section 48 of CrPC and according to section 49 of the code of criminal procedure 1973 the person arrested shall not be subjected to more restrain than is necessary to prevent his escape.

In the case of Bharosa Ramdayal v. Emperor, in 1941 the court said that When the accused have made the statement to police that he himself has committed the crime and  he would be considered to have submitted to the custody of the police officer.

In the case of Kultej Singh vs. Inspector of police and others in the year 1992, the court said that keeping a person in custody in the police station or confining the movement of the person in the limits of the police station amounts to arrest of the person.

Rights under the constitution.

Article 22 of the Indian constitution is considered as a safeguard against arbitrary arrest and detention. This article does not safeguard the arrest which is of civil nature, it only provides the safeguard to the detinue who is charged in the criminal matters.

1. Arrest under punitive law

When the arrest has made under punitive law then the accused has fundamental rights under clause 1 and 2 of article 22.

• Right to be informed of grounds of arrest The accused has a right to know the grounds of his detention under this article of the constitution. The grounds of delay should be informed as soon as it is possible if there is any kind of delay then the reason of delay should be reasonable.
• Right to provide free legal aid The accused has a right to get a lawyer to defend his case and if he doesn’t have any means to hire any lawyer then it’s the duty of the state to fulfil this requirement
• Right of choosing the lawyer The accused have a right to be defended by a lawyer of his own choice. In one of the most controversial cases, i.e. Mohammed Ajmal Mohammed Kasab alias Abu Mujahid v. the State of Maharashtra, the accused refused to be defended by the Indian lawyer and he demanded to be defended by his country’s laws. The supreme court has said that the accused has the constitutional rights and one cannot infringe his right to be defended by the lawyer of his own choice.
• Right to be produced before Magistrate Once the grounds of the arrest has been informed to the accused, it is the duty of the officer to produce him before the magistrate within 24 hours of his arrest excluding the time of transport etc. If the authority delays this time so the detention or the arrest will be held illegal.

2. Arrest under Preventive laws

When the arrest has made under the preventive laws then the accused have certain rights provided from clause 4 to 7 of article 22 of the Indian constitution. The objective of the arrest of the accused is to prevent him from committing the suspected crime which may harm the public at large or creates a threat to the security of the govt.

• Detention time can not be extended After 44th amendment, clause 4 of article 22 follows that the maximum time for of detention of the detinue cannot exceed more than 2 months without seeking the opinion of Advisory Board. In order to extend the time of detention the approval of the advisory Board is compulsory and should be justified and the same has to be reported by the Board in the said time.
• Right to know the grounds of arrest Article 22 clause 5, provides the right to know the grounds of his detention at the earliest and in written form and that ground should be communicated in the same language which the arrested person understands, this was held in the case of Lallubhai Joginhai Patel v. Union of India. In this case, the arrested person did not know the English language but the police have informed his ground of detention in the English language so the court held his detention illegal on the ground that his grounds of detention has not been communicated to him in the language which he understands.
• Right of representation Clause 5 of article 22 also mandates that the arrested person has the right of representation at the earliest against the detention. Just like the rights in the detention of punitive law, the detinue arrested under the preventive law has a right to get the lawyer or free legal aid as soon as possible. Article 39A also binds the state to provide the free legal aid to the marginalised section of the state.

Rights under CrPC.

The Code of Criminal procedure 1973 also ensures some rights to the arrested person in a similar way the rights guaranteed under the Indian Constitution. The violation of rights guaranteed under this code will make the detention illegal.

• Right to know the grounds of arrest According to section 50 of CrPC, its’s the duty of the police officer to inform the grounds of the arrest to the arrested person without warrant. According to section 50A of CrPC, the police officer is also bound to inform the grounds of the arrest of the accused to the relatives, friends or to someone who may have the interest. According to section 55 of this code, when the senior police official delegates his right to arrest the accused to his junior so it’s the duty of the junior official to notify the delegation of his arrest and the rights of the arrest too. When the police officers arrest the person on a warrant then it is his duty to show the warrant whenever it is required and it’s the right of the arrested person to demand the same. This right is enshrined under section 75 of the CrPC.
• Right to be produced before magistrate The police officer has to produce the accused before the magistrate within the 24 hours of the arrest without warrant under section 57 of CrPC. According to section 76 of CrPC, the police officer has to produce the arrested person before the magistrate within the 24 hours excluding the time of the travel of the arrest with the warrant.
• Right to be released on bail When a person is arrested without a warrant and is charged with a bailable offence so it’s the duty of the police officials to inform the accused about his right to get the bail on the behalf of the sureties he would provide to the official under clause 2 of section 50 of CrPC.
• Right of representation Under section 303 of CrPC, the accused have the right to get a legal advisor of his own choice and if an accused doesn’t have any means to be defended by the lawyer and the trials are about to start then under section 304 of CrPC the accused is entitled to get the free legal aid.
• Right to be examined by the doctor We believe that “ justice delayed is justice denied” so when the accused is produced before the magistrate and he demands the medical examination of his body which may lead towards the true culprit of the crime so the court can direct his medical examination to prevent the delay in justice under section 54 of CrPC.
• Right to get compensation When it appears before the magistrate that the grounds of the arrest of the accused is unreasonable, unjustified and violation of the principle of natural justice then the magistrate can grant compensation to the accused under section 358 of the CrPC.

Case laws

In the case of Joginder Kumar v. the State of U.P, the court said that where there is a right, there is a remedy and the court has directed some guidelines which should be followed in the strictest sense. The following are the guidelines of the supreme court:

1. The accused has to be informed about the grounds of his arrest as soon as it is possible.
2. The information on the detention of accused has to be communicated to his relatives or friends.
3. The police officer on duty should also maintain the record of the same in the diary so that in case of requirement he can produce it as a piece of evidence.

The Supreme Court has also said that the violation of any right of the accused is the violation of the fundamental rights of the accused guaranteed under articles 21 and 22 of the Indian Constitution.

In the case of D K Basu v. State of West Bengal, the court has provided certain guidelines to prevent the abuse of police power. The guidelines provided by the supreme court are as follows:

1. The information of the accused should be accurate, visible and should be recorded in the register.
2. The police officials should maintain the memo of the arrest and should also be testified by the one or two witnesses.
3. The grounds of arrest should be informed to one of the family member or one of the friends of the accused.
4. Through the legal aid organisation, the time and venue of the arrested person should be informed by the police.
5. The accused should also be made aware of all the rights by the police officer as soon as it is possible.
6. The police officer has to maintain all the records in the case diary.
7. The medical examination of the arrestee should also be conducted in every 48 hours during the detention.
8. The copies of all the documents should be sent to the magistrate under the jurisdiction.
9. The arrestee should be allowed to meet with his lawyer as he is having the right of representation under both Constitution as well as CrPC.
10. If the police officer finds to be in charge of violation of any of the rights of an arrested person guaranteed by the constitution and CrPC could be lead to either departmental enquiry or contempt of court.

Conclusion

In the country like India which has very strong laws are still facing the issues of abuse of arbitrary powers used by the executory authorities because of multiple reasons like illiteracy, lack of awareness etc. Our constitution also prohibits an accused to witness against himself under article 20 clause 3 but still, every year number of custodial deaths raise the bar and the major issue is the non-implementation of the existing laws. The failure of following the procedure by the police should be removed from society so that it could lead the country in a better direction. The approach of the officers should be fair, just and equitable so that no one can be deprived of their basic, natural and fundamental rights.

Reference

1. The Constitution Of India 1949
2. The Code of Criminal Procedure 1973
3. Dr J.N Pandey, Constitutional law of India(Fifty-sixth edition, Central law agency,2019)
4. http://www.lawyersclubindia.com/articles/Rights-Of-Arrested-Persons-8222.asp
5. Joginder Kumar v. State of U.P 1994 AIR 1349,1994 SCC (4) 260
6. D.K Basu v. State of West Bengal ( 1997 1 SCC416).
7. https://blog.ipleaders.in/rights-of-an-arrested-person/