This article is written by Richa Goel, 4th year student pursuing B.B.A LLB from Banasthali Vidyapith. The article discusses various rights of prisoners and related case laws.
“All human beings are born free and equal in dignity and rights and are endowed with reason and conscience and should act towards one another in the spirit of common brotherhood and conscience”.
All human beings are born with the Right to Life, Right to Personal Liberty, etc. Human rights are enshrined under the Constitution of India and the Universal Declaration of Human Rights. A person cannot be denied of his rights on the grounds that he/she has been detained. The various rights of an arrested person can be inferred from the Code of Criminal Procedure, the Constitution of India and various landmark judgements.
The Indian legal system is based on the concept of, “innocent till proven guilty”. The arrest of a person can be a violation of Article 21 of the Constitution that states, “no person shall be deprived of his right to life and personal liberty except a procedure established by law”. It means that the procedure must be fair, clear and not arbitrarily or oppressive.
Rights of an Arrested Person
1)Right to know the grounds of Arrest
- Section 50 of CrPC says that every police officer or any other person who is authorised to arrest a person without a warrant should inform the arrested person about the offence for which he is arrested and other grounds for such an arrest. It is the duty of the police officer and he cannot refuse it.
- Section 50A of CrPC obligates a person making an arrest to inform of the arrest to any of his friends or relative or any other person in his interest. The police officer should inform the arrested person that he has a right to information about his arrest to the nominated person as soon as he is put under custody.
- Section 55 of CrPC states that whenever a police officer has authorised his subordinate to arrest any person without a warrant, the subordinate officer needs to notify the person arrested of the substance of written order that is given, specifying the offence and other grounds of arrest.
- Section 75 of CrPC says that the police officer(or any other officer) executing the warrant should notify the substance to the person arrested and show him a warrant if it required.
- Article 22(1)of the Constitution of India also states that no police officer should arrest any person without informing the ground of arrest.
2) Right to be produced before the Magistrate without unnecessary delay
- Section 55 of CrPC states that a police officer making an arrest without a warrant should produce the arrested person without unnecessary delay before the Magistrate having jurisdiction or a police officer in charge of the police station, subject to the conditions of the arrest.
- Section 76 of CrPC states that the police officer executing a warrant of arrest should produce the arrested person before the court before which he is required by law to produce the person. It states that the person should be produced within 24 hours of arrest. While calculating the time period of 24 hours, it must exclude the time which is required for the journey from the place of detaining to the Magistrate Court.
- Article 22(2) of the Constitution states that the police officer making an arrest should be produced before the Magistrate within 24 hours of arrest. If the police officer fails to produce before Magistrate within 24 hours, he will be liable for wrongful detention.
3) Rights to be released on Bail
Subsection(2) of Section 50 of CrPC states that when a police officer arrests any person without a warrant for an offence other than non-cognizable offence; he shall inform him that he has a right to release on bail and to make an arrangement for the sureties on his behalf.
4) Rights to a fair trial
Any provision related to the right to a fair trial is not given in CrPC, but such rights can be derived from the Constitution and the various judgements.
- Article 14 of the Constitution of states that ”all persons are equal before the law”. It means that all the parties to the dispute should be given equal treatment. The principle of natural justice should be considered in respect of both the parties. Right to a speedy trial is recognized in the case Huissainara khatoon vs Home Secretary, State of Bihar , the court held- “the trial is to be disposed of as expeditiously as possible”.
5) Right to consult a lawyer
- Section 41D of CrPC states the right of the prisoners to consult his lawyer during interrogation.
- Article 22(1) of the constitution states that the arrested person has a right to appoint a lawyer and be defended by the pleader of his choice.
- Section 303 of CrPC states that when a person is alleged to have committed an offence before the criminal court or against whom proceedings have been initiated, has a right to be defended by a legal practitioner of his choice.
6) Right to free Legal Aid
- Section 304 of CrPC states that when a trial is conducted before the Court of Session, and the accused is not represented by the legal practitioner, or when it appears that the accused has no sufficient means to appoint a pleader then, the court may appoint a pleader for his defence at the expense of the State.
- Article 39A obligates a state to provide free legal aid for the purpose of securing justice. This right has also been explicitly given in the case of Khatri (II) VS State of Bihar . The court held that “to provide free legal aid to the indigent accused person”. It is also given at the time when the accused is produced before the Magistrate for the first time along with time commences. The right of the accused person cannot be denied even when the accused fails to apply for it. If the state fails to provide legal aid to the indigent accused person, then it will vitiate the whole trial as void. In the case of Sukh Das vs Union Territory of Arunachal Pradesh , the court held:- “The right of indigent accused cannot be denied even when the accused fails to apply for it”. If the state fails to provide legal aid to the indigent accused person it will vitiate the whole trial as void.
7) Right to keep silence
Right to keep silence is not recognized in any law but it can derive its authority from CrPC and the Indian Evidence Act. This right is mainly related to the statement and confession made in the court. Whenever a confession or a statement is made in the court, it is the duty of the Magistrate to find, that such a statement or the confession was made voluntarily or not. No arrested person can be compelled to speak anything in the court.
Article 20 (2) states that no person can be compelled to be a witness against himself. This is the principle of self- incrimination. This principle was reiterated by the case of Nandini Satpathy vs P.L Dani . It stated, “No one can force any person to give any statement or to answer questions and the accused person has a right to keep silence during the process of interrogation”.
8) Right to be Examined by the medical practitioner
Section 54 of CrPC states that when the arrested person alleges that examination of his body will lead to a fact which will disapprove the fact of commission of an offence by him, or which will lead to commission of an offence by any other person against his body, the court may order for medical examination of such accused person at the request of him (accused) unless the court is satisfied that such a request is made for the purpose of defeating the justice.
- Section 55A of CrPC states that it shall be the duty of the person, under whose custody the arrested person is to take reasonable care of the health and safety of the accused.
- The arrested person is to be protected from cruel and inhuman treatment.
- Section 358 of CrPC gives rights to the compensation to the arrested person who was groundlessly arrested.
- Section 41A of CrPC states that the police officer may give the notice to a person suspected of committing a cognizable offence to appear before him at such date and place.
- Section 46 of CrPC prescribes the mode of the arrest. i.e submission to custody, touching the body physically, or to a body. The police officer should not cause death to the person while making an arrest unless the arrestee is charged with an offence punishable with death or life imprisonment.
- Section 49 of CrPC states that the police officer should not make more restrained than in necessary for the escape. Restrain or detention without an arrest is illegal.
In D.K Basu vs State of West Bengal and others , this case is a landmark judgement because it focuses “on the rights of the arrested person and it also obligates the police officer to do certain activities”. The court also states that if the police officer fails to perform his duty then he will be liable for contempt of court as well as for the departmental actions. Such matter can be instituted in any High Court having the jurisdiction over the matter.
In spite of various efforts in protecting the accused from the torture and inhuman treatment, there are still instances of custodial deaths and the police atrocities. So, the Supreme court issued 9 guidelines for the protection of accused person and the amendment of various sections of CrPC:-
- Section 41B– The police officer who is making an investigation must bear visible, clear and accurate badge in which the name of the police officer along with his designation is clearly mentioned.
- The police officer making an arrest must prepare a cash memo containing a date and time of arrest which should be attested by at least one members who can be his family member or any respectable person of a locality. The cash memo should be countersigned by the arrested person.
- Section 41D:- The arrested person is entitled to have a right to have one friend, or relative or any other person who is having interest in him informed about his arrest.
- The arrestee must be informed about his right to have someone informed about his right immediately when he is put under the custody or is being detained.
- Entry is to be made in the diary which shall disclose the information relating to the arrested person and it shall also include the name of the next friend to whom information regarding the arrest is made. It also includes the name and the particulars of the police officers under whose custody the arrestee is. An examination is to be conducted at the request of the arrestee and the major and minor injuries if any found on the body must be recorded. The inspection memo must be signed by the police officials and the arrested person.
- The arrestee has the right to meet his lawyer during and throughout the interrogation.
- Copies of all documentation are to be sent to Magistrate for his record. It also includes a memo of the arrest
- Section 41C:- The court ordered for the establishment of state and district headquarters, the police control room where the police officer making an arrest shall inform within 12 hours of arrest and it needs to be displayed on the conspicuous board.
Yoginder Singh vs State of Punjab . The Court held that for the enforcement of Article 21 and 22(1) it is necessary that:-
- The arrestee has the right to have informed about his arrest to any of its friends, relative or any other person in his interest.
- The police officer should aware of the arrestee about his right immediately when he is brought under the custody.
- The entry must be made in a diary regarding the name of the person who has been informed about the arrest.
Prem Shukla vs Delhi Administration , the court held that “the prisoners have a right not be handcuffed Fetterly or routinely unless the exceptional circumstances arise”.
Custodial death and illegal arrest is a major problem in India. It infringes Article 21 of the Constitution and also the basic human rights which is available under Universal Declaration Of Human Rights. The guidelines issued by the Supreme Court in D.K Basu vs State of West Bengal  is not properly being implemented. Proper implementation of the provision and guidelines can result in the decreasing number of an illegal arrest.
- 1979 AIR a1369
- 1981 2 SCR (408)
- 1986 SCR (1) 590
- 1978 SCR (3) 608
- AIR 1997 (1) SCC 416
- 28 April 2015
- 1980 SCR (3)855
- AIR 1997 1 SCC 416