In this blog post, Harsha Asnani, a student of NIRMA University, Ahmedabad writes about the rights available to arrested persons in India. The author discusses various legislations that govern the rights of arrested persons including the rights provided in the Constitution of India and Code of Criminal Procedure, 1973 and also some special rights to women in matters related to arrest.

“The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider;”[1]

For upholding the sanctity of these words in Indian legal framework, the legislators and the judicial minds have at innumerable instances tried to provide the arrested persons with certain rights to preserve the respect for human rights of liberty. There are various laws under which various rights have been provided to the arrested persons.

 

Right to know grounds for arrest

Article 22 of the Indian Constitution is the umbrella provision which provides a basic premise upon which rights of arrested persons have been based. The fundamental rights provided under this provision mandate that firstly, any person who is detained in custody shall be informed of the reasons for such an arrest. It is necessary that this right of being informed of the grounds for arrest be given to arrested person because it is only after such information is furnished to him, he or she will be in a position to take a proper legal recourse and apply for an application for issuing of a writ of habeas corpus. In the case of In re Madhu Limaye,[2] the Apex Court had observed where the arrested persons are not informed of the grounds for arrest, they become entitled to be released on a writ of habeas corpus.

In addition to Article 22, Section 50 of Code of Criminal Procedure Code states that every police officer or any other person who has, without warrant, arrested any other person shall communicate to the so arrested person with all details and particulars of the offense for which he or she has been arrested.

A subordinate officer who makes an arrest on orders by a senior police official shall be duty bound to furnish the arrested person with the substance of written order given by his superior specifying the offense or the cause due to which the other person is arrested. According to Section 55, non-compliance of this provision leads to an arrest being termed as illegal.

In cases where the arrest is made under a warrant, then such a warrant, according to Section 75, shall be shown to the arrested person and the grounds for arrest be notified to him. Instances, where a magistrate makes the arrest, nothing in any law shall prevent him from fulfilling all necessary conditions as mandated in Article 22, and hence the grounds for arrest shall be communicated to the arrested person.

The decisions of the Apex Court in the cases of Joginder Singh v. State of U.P.[3] and D. K.  Basu v. State of West Bengal[4] has led to the addition of Section 50-A to the Code of Criminal Procedure wherein it is the obligation of the police officer making an arrest to inform a relative or friend about the arrest of the concerned person. Whenever such a person is taken before the Magistrate, it is the Magistrate’s duty to get satisfied regarding this aspect.

 

Right to consult

All arrested persons shall be entitled to a right to consult and be defended by a lawyer or legal practitioner of his choice. The right to seek legal aid not only includes an opportunity to consult but also provided with all reasonable facilities for exercising this right. In the case of Janardhan Reddy v. the State of Hyderabad,[5] it was held that in capital cases where the defendant is neither able to arrange for a counsel nor make his defence due to unavoidable circumstances such as illiteracy or ignorance, a recourse which is for the accused must be taken and therefore a counsel should be provided to him to defend himself. Although such recourse is not mentioned in any of the Indian legislations, it can be read along with the rules made and circular issued by the High Courts. However, the court has laid down two principles in this regard. Firstly, it is not recognised as a rule of law that a trial gets necessarily vitiated if the accused is not represented and secondly that an appellate court or a court of revision is vested with the power of interference if it is of the opinion that the inadequate representation of arrested person has lead to negation of trial.

This right has been given a form of constitutional mandate in the form of Article 39-A and 2. The Supreme Court has also placed a duty on the magistrates also to inform the accused of his or her right to free legal aid.

 

Being informed about the right to get released on bail

Section 50(2) of the Code of Criminal Procedure imposes a duty on the police officer making the arrest without a warrant in cases other than non-bailable offenses to inform the arrested person that he has a right of being released on bail and can arrange sureties for the same.

 

Right to silence

Article 20(3) of the Indian Constitution mandates that the no person arrested shall be compelled to give evidence or statements which are incriminatory in nature or become a witness against himself. In the case of Nandini Sathpathy v. P.L. Dani,[6] it was held that prohibition from forcibly extracting confessions from an accused entails the accused with the right to remain silent during the process of interrogation. In lieu with the same, the Supreme Court has held the use of lie-detector machines, brain mapping and narco-analysis as violative of Article 20 of the Indian Constitution.

Right to be taken to Magistrate within 24 Hours

As per Article 22(2), every such person so arrested by a police officer without a warrant or detained in custody will be taken before a magistrate within a span of twenty-four hours. A similar provision has been included in the Cr.P.C. in the form of Section 56. According to it, the unnecessary delay should be avoided. In the case Harimand v. Jailor,[7] it has been held that the accused shall be entitled to get released in cases where he or she has not been taken before the magistrate within 24 hours. This period of 24 hours shall exclude the time for journey or transportation. The aim behind enacting this clause is to prevent the extracting of confessions using forceful methods, prevent police stations from being turned into the prison, etc. and to get a speedy recourse to a judicial officer other than the police for redressal of matters related to bail.

 

Right to Trial

Every arrested person has the right to a free and an open court trial. It requires that the convictions should not take place in secret. Also, it must be ensured that trial is of speedy nature.

 

Right to be examined by a medical practitioner

In cases where a person is arrested on a charge, such that, at the time when he is presented before the magistrate or detained in custody, his medical examination would produce an evidence which can lead to his discharge or establish that he or she has not committed the crime, then the magistrate on request of the accused shall direct the examination of his body by an appointed registered medical practitioner.

Other rights provided to an arrested person under the Indian legal framework include right to be served with a custody memo, police final report, First Information Report on a free basis, making of arrest to be avoided if only suspicion exists, right to compensation for illegal detention or groundless arrest, right not to be kept in police custody if released on bail except in cases where the presence of accused is mandatory, right to medical aid or treatment if the arrested person falls ill in police lock-up, right to every woman to not to be kept in general prison, sub-jails or women homes to be made for such purposes. Special rights to women include right not to be arrested after sunset or before sunrise irrespective of the presence of woman constable; also, women need not necessarily be present in the police station during the process of interrogation.

Footnotes:

[1] Joginder Kumar v. State of U.P. AIR 1994 SC 1349

[2]1977 SCC  (4) 551

[3] 1994 SCC  (4) 260

[4] (1997) 1 SCC 416

[5] 1951 SCR  344

[6] 1978 SCC  (2) 424

[7]1954 CriLJ 1317