Rights of Arrested Person

Rights of Arrested Person

“Arrest” means:

“a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” [Legal Dictionary by Farlex]

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the law. An arrest serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not looked upon with favor by the courts. The federal Constitution imposes limits on both civil and criminal arrests.

ARREST HOW MADE:

Section 46 of Criminal Procedure Code (hereinafter Cr.P.C) –

(1)   In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2)   If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3)   Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

 [(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] {Ins. by Act 25 of 2005, S. 6 (w.e.f 23-6-2006)}

Rights of Arrested Person

One of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence. In a democratic society even the rights of the accused are sacrosanct, though accused of an offence, he does not become a non-person. Rights of the accused include the rights of the accused at the time of arrest, at the time of search and seizure, during the process of trial and the like. 

The accused in India are afforded certain rights, the most basic of which are found in the Indian Constitution. The general theory behind these rights is that the government has enormous resources available to it for the prosecution of individuals, and individuals therefore are entitled to some protection from misuse of those powers by the government. An accused has certain rights during the course of any investigation; enquiry or trial of an offence with which he is charged and he should be protected against arbitrary or illegal arrest. Police have a wide powers conferred on them to arrest any person under Cognizable offence without going to magistrate, so Court should be vigilant to see that theses powers are not abused for lightly used for personal benefits. No arrest can be made on mere suspicion or information. Even private person cannot follow and arrest a person on the statement of another person, however impeachable it is.

Though the police has been given various powers for facilitating the making of arrests, the powers are subject to certain restraints. These restraints are primarily provided for the protection of the interests of the person to be arrested, and also of the society at large. The imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested person. There are, however, some other provisions which have rather more expressly and directly created important rights in favour of the arrested person.

In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was said that the laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for safeguarding the rights of accused with the view to protect his (accused) dignity as a human being and giving him benefits of a just, fair and impartial trail. However in another leading case of Meneka Gandhi v. Union of India it was interpreted that the procedure adopted by the state must, therefore, be just, fair and reasonable.

Rights Of Arrested Person

1.      Right To Silence

The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. The Justice Malimath Committee writes about the origin of the right to silence that “it was essentially the right to refuse to answer and incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.” The Justice Malimath Committee’s assumption is that the right to silence is only needed in tyrannical societies, where anyone can be arbitrarily charged. It assumes that whenever a charge is “proper”, there is no need for protection of the accused. In this backdrop it becomes necessary to examine the right to silence and its companion right against self-incrimination. These are the two aspects of fair trial and therefore cannot be made a subject matter of legislation. Right to fair trial is the basic premise of all procedural laws. The very prescription of procedure and the evolution of procedural law have to be understood in the historical context of the anxiety to substitute rule of men by rule of law. In law any statement or confession made to a police officer is not admissible. Right to silence is mainly concerned about confession. Breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement. To ensure the truthfulness and reliability of the facts he stated the magistrate is required to take several precautions. Right to silence and the right against self-incrimination have been watered down quite considerably by interpretation than by legislation. The defendant if he so desires can be a witness in his trial. His confession outside the court either to the police officer or to the magistrate is admissible. He is encouraged to betray his colleagues in crime on promise of pardon. He is expected to explain every adverse circumstance to the court at the conclusion of evidence with the court having jurisdiction to draw adverse inference while appreciating the evidence against him.

The constitution of India guarantees every person right against self incrimination under Article 20 (3) “No person accused of any offense shall be compelled to be a witness against himself”. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. In 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a violation of Article 20(3).

2. Right To Know The Grounds of Arrest

Firstly, according to Section 50(1) Cr.P.C. “every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.”

Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55 Cr.P.C., such subordinate officer shall, before making the arrest, notify to the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. Non- compliance with this provision will render the arrest illegal.

Thirdly, in case of arrest to be made under a warrant, Section 75 Cr.P.C. provides that “the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required, shall show him the warrant.” If the substance of the warrant is not notified, the arrest would be unlawful.

Indian constitution has also conferred on this right the status of the fundamental right. Article 22(2) of the constitution provides that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”

The right to be informed of the grounds of arrest is a precious right of the arrested person. Timely information of the grounds of arrest serves him in many ways. It enables him to move the proper court for bail, or in appropriate circumstances for a writ of habeas corpus, or to make expeditious arrangement for his defence.

In re, Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the Supreme Court under Article 32 mentioning that he along with his companions had been arrested but had not been communicated the reasons or the grounds for arrest. One of the contentions raised by Madhu Limaye was that there was a violation of the mandatory provisions of Article 22 (1) of the Constitution. The Supreme Court observed that Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of Law prevails. The court further observed that the two requirements of Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against him is so that he can exercise the second right, namely of consulting a legal practitioner of his choice and to be defended by him.

Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus directing his release. Hence, the Court held that Madhu Limaye and others were entitled to be released on this ground alone.

It appears reasonable to accept that grounds of the arrest should be communicated to the arrested person in the language understood by him; otherwise it would not amount to sufficient compliance with the constitutional requirement. The words “as soon as may be” in Article 22(1) would means as early as is reasonable in the circumstance of the case, however, the words “forthwith” in Section 50(1) of the code creates a stricter duty on the part of the police officer making the arrest and would mean “immediately”.

If the arrest is made by the magistrate without a warrant under Section 44, the case is covered neither by any of the section 50, 55 and 75 nor by any other provision in the code requiring the magistrate to communicate the grounds of arrest to the arrested person. The lacuna in the code, however, will not create any difficulty in practice as the magistrate would still be bound to state the grounds under Article 22(1) of the Constitution.

The rules emerging from decision such as Joginder Singh v. State of U.P. and D.K. Basu v. State of West Bengal, have been enacted in Section 50-A making it obligatory on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest etc. but also to make entry in a register maintained by the police. The magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard.

3. Information Regarding The Right To Be Released On Bail

Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released in bail that he may arrange for sureties on his.” This will certainly be of help to persons who may not know about their rights to be released on bail in case of bailable offences. As a consequence, this provision may in some small measures, improve the relations of the people with the police and reduce discontent against them.

4. Right To Be Taken Before A Magistrate Without Delay

Whether the arrest is made without warrant by a police officer, or whether the arrest is made under a warrant by any person, the person making the arrest must bring the arrested person before a judicial officer without unnecessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the magistrate. These matters have been provided in Cr.P.C. under section 56 and 76 which are as given below:

56. Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

76. Person arrested to be brought before Court without delay- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.

Provided that such delay shall not, in any case, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Cou

5. Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny

Whether the arrest is without warrant or under a warrant, the arrested person must be brought before the magistrate or court within 24 hours. Section 57 provides as follows:

57. Person arrested not to be detained more than twenty-four hours- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

This right has been further strengthened by its incorporation in the Constitution as a fundamental right. Article 22(2) of the Constitution proves that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” In case of arrest under a warrant the proviso to Section 76 provides a similar rule in substance.

The right to be brought before a magistrate within a period of not more than 24 hours of arrest has been created with a view-

i.                    To prevent arrest and detention for the purpose of extracting confessions, or as a means of compelling people to give information;

ii.                  To prevent police stations being used as though they were prisons- a purpose for which they are unsuitable;

iii.                To afford to an early recourse to a judicial officer independent of the police on all questions of bail or discharge.

In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the state and its police authorities to ensure that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously observed. This healthy provision enables the magistrate to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found disobeyed, come heavily upon the police.

If police officer fails to produce an arrested person before a magistrate within 24 hours of the arrest, he shall be held guilty of wrongful detention.

In a case of Poovan v. Sub- Inspector of Police it was said that whenever a complaint is received by a magistrate that a person is arrested within his jurisdiction but has not been produced before him within 24 hours or a complaint has made to him that a person is being detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon the police officer concerned; to state whether the allegations are true and if so; on what and under whose custody; he is being so helped. If officer denies the arrest, the magistrate can make an inquiry into the issue and pass appropriate orders.

6. Rights at Trial

i.                    Right To A Fair Trial-The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera. Every accused is entitled to be informed by the court before taking the evidence that he is entitled to have his case tried by another court and if the accused subsequently moves such application for transfer of his case to another court the same must be transferred. However, the accused has no right to select or determine by which other court the case is to be tried.

ii.                  Right To A Speedy Trial-The Constitution provides an accused the right to a speedy trial. Although this right is not explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation in trial should be held “as expeditiously as possible”. In all summons trials (cases where the maximum punishment is two years imprisonment) once the accused has been arrested, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation

7. Right To Consult A Legal Practitioner

Article 22(1) of the Constitution provides that no person who is arrested shall be denied the right to consult a legal practitioner of his choice. Further, as has been held by the Supreme Court that state is under a constitutional mandate (implicit in article 21) to provide free legal aid to an indigent accused person, and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time. It has been held by the Supreme Court that non- compliance with this requirement and failure to inform the accused of this right would vitiate the trial. Section 50(3) also provides that any person against whom proceedings are instituted under the code may of right be defended by a pleader of his choice. The right of an arrested person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be in the presence of police officer but not within his hearing.

8. Rights Of Free Legal Aid

In Khatri(II) v. State of Bihar, the Supreme Court has held that the state is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time. However this constitutional right of an indigent accused to get free legal aid may prove to be illusory unless he is promptly and duly informed about it by the court when he is produced before it. The Supreme Court has therefore cast a duty on all magistrates and courts to inform the indigent accused about his right to get free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been categorically laid down that this constitutional right cannot be denied if the accused failed to apply for it. It s clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence.

9. Right To Be Examined By A Medical Practitioner

Section 54 now renumbered as Section 54(1) provides: 

54. Examination of arrested person by medical practitioner at the request of the arrested person

When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

10. Right Of The Accused To Produce An Evidence

The accused even has right to produce witness in his defence in case of police report or private defence. After the Examination and cross examination of all prosecution witness i.e. after the completion of the prosecution case the accused shall be called upon to enter upon his defence and any written statement put in shall be filled with the record. He may even call further for cross examination. The judge shall go on recording the evidence of prosecution witness till the prosecution closes its evidence.

The accused in order to test the veracity of the testimony of a prosecution witness has the right to cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a right to confront only witnesses. This right ensures that the accused has the opportunity for cross-examination of the adverse witness. Section 33 of Indian Evidence Act tells when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission. The testimony at a formal trial is one example of prior testimonial statements which can be used as documentary evidence in a subsequent trial.

When in the course of investigation an accused or any other person desiring to make any statement is brought to a magistrate so that any confession or statement that he may be deposed to make of his free will is record. Confession statements by accused to the police are absolutely excluded under Section 25, Evidence Act.

11-RIGHT OF DEFAULT BAIL:

The proviso to Section 167(2) of Cr.P.C. clearly lays down that the total period of

detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. [CBI v. Anupam J. Kulkarni, 1992]

Proviso to sub-section (2) of Section 167 of the Code leaves no manner of doubt that during the investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to the amendments of Section 167 in 1978). [State of Haryana v. Mehal Singh, 1978 Cri LJ 1810]

The language of the proviso (a) to Section 167(2) of Cr.P.C. clearly states that after an accused is kept in custody for the total period of sixty days, the Magistrate has no jurisdiction to pass orders for his detention in custody provided the accused person is prepared to and does furnish bail. Of course if a person is released on bail under this section he shall be deemed to be so released under the provisions of Chapter XXXIII of Cr.P.C. for the purposes of that Chapter. [Ved Kumar Seth v. State of Assam, 1975]

Proviso to sub-section (2) of Section 167 of the Cr.P.C. leaves no manner of doubt that during the investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to amendment of Section 167 of Cr.P.C.). If during this period the investigation is not completed, the Magistrate has no jurisdiction to remand the accused for further detention unless he had taken cognizance of the offence in which case he cod order remand of the accused for the purpose of enquiry or the trial, as the case may be. [State of Haryana v. Mehal Singh]

Where an application for bail under proviso to Section 167(2) Cr.P.C. is presented by police, the accused is entitled to be released on bail under the proviso to Section 167(2) (if stipulated period under that section was over at the time of making of such application for bail). [Gurmit Kaur v. State of Punjab, 1989 Cri LJ 1609]

Judicial Pronouncements

 Joginder Kumar v. State of U.P

D.K. Basu v. State of W.B

Conclusion
Arrest has far reaching consequences; the social status and dignity of an individual suspect becomes at stake, even his discharge cannot blot out the stigma consequent upon arrest. There are financial implications for the arrested person and his family. The public suffers its repercussion as we. Naturally, it needs to be ensured that arrests are not effected in a frivolous manner and that the rights of arrested persons are fully guaranteed. Towards this effect, The Cr.P.C. lays down safeguards such that the rights of persons enshrined in Art. 21 and 22(1) are not violated. However, it has been some time before the statutory provisions have been understood in all its implication and they have been given effect to. Mostly the criminal administration system ignores such safeguards and the judiciary for quite some time has been lax about ensuring the proper observance of prisoner’s rights. So there have been many later declarations and statutory enactments which reaffirm the faith in the rights of arrested persons. The endeavour is to look into various rights of arrested persons, enshrined in statutes, conventions and judicial pronouncements. [Padmaja Chakravarty, “Critical View of the Rights of Arrested Persons in India: Conformity to Comparable International Standards”, indiankanoon.org]

Beside this, I feel an urge to point out the other side, i.e., victims, they have either less rights or they do not have one. Our socialist, Court and even Cr.P.C. talks about the rights of arrested person, but there are no such provisions to safeguard the interest of the victim. They are ignored fully or partially, later they become the news of the media channels nowadays. Earlier or today itself, remedies are available to the accused and not to who against the crime is committed. I admit the fact that there are some people who suffer because they are falsely implicated into a case, but there are also those people who are benefitted with these provisions.

Hence, I would like to conclude with that, our law system and police while investigating the case should be so particular about the case that the victim should not suffer. It is duty upon the Court of Law that it should not violates the right of liberty of any innocent person and at the same time also not infringes the rights of victims.