Rights of an Arrested Person
RIGHTS OF AN ARRESTED PERSON
- Shivali Srivastava, National Law University, Odisha
Arrest can be expounded by the dispossession of liberty by a supreme authority or a person authorized by the Government to do the same. Furthermore, dispossession of liberty of a person is inclusive of custodial arrest of the person by a legal authority owing to the criminal conduct of the person arrested. The legal system in India is established on the platform of “innocent till proven guilty”. It is one of the basic and fundamental tenets of the Indian Judiciary. During the arrest, the power majorly being in the hands of the custodian makes it prejudiced and generates a scope of the abuse of powers by the legal authorities or the legal custodians to repress or tyrannize the arrested.
The Government has endowed upon the Magistrates and the Police plethora of rights and powers to arrest the guilty or anyone accused of a heinous crime or violating a norm that is bound to be followed by the citizens. Therefore, the Constitution and the Government to maintain parity and equity between the entitlements of the arrested persons and the Police, the Constitution and the Criminal Procedure Code equipped the arrested with certain sacrosanct rights to protect themselves from any arbitrary arrest or despotic use of power.
A few rights have been spoken briefly about in the Constitution and the Criminal Procedure Code. The Constitution states the following:
• RIGHT TO KNOW THE GROUNDS OF ARREST
1. Articles present in the Constitution
Article 22(1) of the Indian Constitution states that the arrested person should be informed of the grounds of arrest and the person in custody has the right to know the reasons of such arrest.
However in cases of preventive detention, Article 22(4) and Article 22(5) enumerates certain rights for the detainees stating that no detainee shall be detained for a period not longer than three months unless an Advisory Board says otherwise and the grounds for the same shall be communicated to the detainee as soon as possible. For example, a judge said in a judgment said that the representation of the detainee should be considered by the detaining authority confirming the detention hereby making any detention without detention invalid
2. Sections present in the Criminal Procedure Code
Sections 50A and 55 of the CrPC elaborate on the immediate communication of the particulars of the arrest to the detainee and information regarding the place and the time the detainee’s kith and kins making it an obligation for the police officers to inform the person in custody about his rights or to a nominated person. In cases like Rajukumari and Another v S.H.O. Noida and Othrs the Court had held that the requirements of section 5o were fulfilled and there was no violation of the same. In other case, the Court held that the particulars mentioned in the Section 50 need not be in writing and oral communication is sufficient.
• RIGHT TO FREE LEGAL AID AND TO CONSULT A LAWYER
1. Articles present in the Constitution
Article 39A of the Indian Constitution states that the government endeavours to facilitate the availability of free legal advices for the arrested or the accused. For instance, in the case of Hussainara Khatoon & ors v Home Secretary, State of Bihar the Court concurred with the judgment that the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty. Similarly the judge in a case drew attention to the fact that a procedure that cannot make available free legal services to the extremely poor who are unable to hire lawyers is violative of Article 21 which states that no person should be deprived of liberty or life. on the same lines, Article 22(1) is given by the Constitution to facilitate the custodians to consult ad seek legal advice from the lawyers.
2. Sections present in the Criminal Procedure Code
Sections like 41D, 303 and 304 expounded the crucial right of the arrested persons to appoint him a lawyer at the expense of the State. It further elaborates on the freedom of choice to have a counsel even if the criminal proceedings against him have begun and are under trial.
• RIGHT TO REMAIN SILENT
This right has not been mentioned in the Codes or the Constitution explicitly but derives its power and authority from the Criminal Procedure Code and the Indian Evidence Act. The JUSTICE MALIMATH COMMITTEE writes about the origin of the right to remain silent and added a new dimension to the Article 20(3) and interpreted it as to refuse to give an answer against one’s self and incriminate oneself in the absence of a proper charge. It is a well established right pursuant to the judgment delivered by the Court in the Nandini Sathpathy v P.L. Dani which laid down the fact that the arrested cannot be forced to answer questions merely because they are not implicative when viewed in isolation and confined to that particular case and hence is entitled to keep his mouth shut if it has a reasonable prospect of exposing him to guilt in some accusation actual or imminent.
• RIGHT TO BE PRODUCED BEFORE THE MAGISTRATE WITHOUT DELAY
1. Articles mentioned in the Constitution
Article 22(2) mentioned in the Constitution provides for the arrested to be produced before the Magistrate or Sub Magistrate(on the orders of the Magistrate) within a time frame of twenty four hours excluding the time vested in travel to and fro the destination. In the case Roshan Beewi and ors. v Joint Secretary to Government of India, the Court held that prolonged delay in violation of Article 22(2) makes such detention illegal and hence any statement recorded from such arrested person or persons should be held to have been tainted with illegality as having been extorted under duress, coercion or undue influence and such a statement should not form the basis of the subjective satisfaction to be drawn by the detaining authority.
2. Sections in the Criminal Procedure Code
Sections like 55 and 76 enshrined in the Code talk extensively on the fact that in case there is an arrest by the police authority without a warrant, the arrested needs to be produced before the Magistrate of the said jurisdiction within 24 hours of arrest. In the landmark case of Bhim Singh v State of J and K, the Court observed that there was a deliberate and malafide intention of the police officer to restrain the politician from exercising his right to attend the session of the legislative assembly and hence in the process of keeping him detained did not produce him before the magistrate of that particular jurisdiction hence violating section 55.
• MISCELLANEOUS RIGHTS CONFERRED ON ARRESTED PERSONS
1. Right to be released on bail- Section 50(2) provides for a police officer to inform that he is entitled to be released on bail and that he may duly arrange for sureties on his behalf to a person arrested without warrant and not accused of a non bailable offence.
2. Right to a fair trial- This right is a well established right after the Supreme Court and High Court Judgments since no particular law has been mentioned in this regard. For instance, in DG v Secretary of State for Work and Pension, the Upper Tribunal examined that DG did not have a fair and just hearing of his appeal as required under Article 6.
3. Right to have decent health and safety care system-Section 55A of the CrPC states that maintaining decent and reasonable health and safety care system is the sole responsibility of the person or the police official so to say who has the custody of the accused.
4. Right to not be in custody without legal arrest- Section 49 of CrPC states that the police official must not restrain the accused without a legal arrest. In the case, DK Basu v West Bengal and Ors, it further enumerated certain guidelines for a procedural arrest of the accused to overcome the issue of custodial deaths and illnesses and to safeguard the accused from unnecessary inhuman conduct of the police official and held him accountable for non performance of duty.
REFERENCES :-
1. Raman Devgan, ‘CrPC Section 50’(2020 A Lawyers Reference, 18 August 2018)<https://devgan.in/crpc/section/50/> accessed 4 February 2020.
2. AIR 2003 SC 4693.
3. Sunil Chainani v Inspector of Police [1987] Mah LJ 634.
4. [1979] AIR 1369.
5. Pratap Chandra Kakati And Anr. vs State of Assam [1983] CriLJ 453.
6. Criminal Procedure Code 1973, s304.
7. Criminal Procedure Code 1973, s303.
8. Preeti Singh, ‘Rights of Arrested Persons’ <http://www.legalservicesindia.com/article/1635/Rights-of-Arrested-Person.html> accessed 5 February 2020.
9. [1978] AIR 1025.
10. ‘Supreme Court Of India’ <http://www.hellocounsel.com/wp-content/uploads/2018/09/Nandini-Satpathy-Vs.-Dani-P.L.-And-Anr-SC-07.04.1978-1978-AIR-1025-1978-SCC-2-424.pdf?cv=1> accessed 5 February 2020.
11.Constitution of India, 1950.
12. [1984] (15) ELT 289 Mad.
13. [1985] 4SCC 677.
