RIGHTS OF AN ARRESTED PERSON

A. Right to Silence

The Constitution of India guarantees every person the right against self incrimination under Article 20(3). This right put simply means that no person who is accused of committing a crime can be forced to give evidence in the form of a statement or any other manner, which can be used to prove his guilt.

This right has also been upheld by the Supreme Court of India in the case of Nandini Sathpathy v. P.L. Dani (citation 1978 SC), where the court has held that no one can forcibly extract statements from the accused, who has a right to keep silent during the course of interrogation (investigation).

B. Right to be informed of the grounds of arrest

The Constitution of India in Article 22(1) says that no person who has been arrested shall be detained in custody without being informed of the grounds of arrest and nor shall be denied the right to be consulted and defended by a lawyer of choice. This is one of the fundamental rights given to the citizens of the country whereby any person who has been arrested has a right to know the reasons for his arrest. He also has a right to be represented by a lawyer of his choice.

The Code of Criminal Procedure, which is the basis of the criminal justice administration in India, also mentions this right for arrests which are made with or without an arrest warrant.

Section 50(1) CrPC states that every police officer or any other person arresting without a warrant has the duty to inform all the particulars of the offence to the accused forthwith (immediately).

In case of an arrest made with a warrant, Section 75 of the CrPC provides that the police officer or other person who has been empowered to make an arrest, has a duty to provide information about the contents of the arrest warrant to the person to be arrested, and if it is required, the arrestee also has a right to see the warrant himself.

After the landmark decisions of the Supreme court in multiple cases (such as Joginder Singh v. State of U.P. (1994) 4 SCC 260 and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416), a new provision was inserted in the Code which is Section 50A. Under this section, it is mandatory for the police officer to inform a friend or relative of the arrested person about the arrest.

C. Right to be released on bail

There are two kinds of offences which are discussed by the CrPC. Bailable Offences and Non-Bailable Offences. The former kind is where an accused is entitled to an automatic bail. He does not need to approach the court to seek bail. However the condition is that the person must be able to give the sureties or a collateral which is like a security deposit to the court. If he is able and willing to give the sureties to the officer making the arrest, he shall be released on bail at the very moment and will not be taken into custody.

Even in the case of a non-bailable offence, bail can be granted, however it will only be granted by the court.

As per Section 50(2) of CrPC, if the offence for which the person is arrested is a bailable one, it is the duty of the police to inform that he is entitled to be released on bail after giving surety.

As per Section 436 of CrPC, whenever a person accused of a bailable offence is arrested without warrant and is prepared to give bail, such person shall be released on bail. The discretion to decide the bail amount is with the Court or with the officer, as the case may be.

D. Right to be produced before a magistrate

Article 22(2) of the Constitution provides that every person who is arrested should be presented before the nearest Magistrate within 24 hours of such arrest, excluding the time of journey from the place of arrest to the place of magistrate. No person will be detained in custody of the police beyond the said period without the authority of the magistrate.

Section 56 of CrPC also provides for the same. If the person arrested is not presented before the Magistrate within the reasonable time and without a just reason, the arrest will be unlawful.

E. Right of not being detained for more than 24 Hours without Judicial Scrutiny.

Section 57 of the CrPC lays down that any person who has been arrested without a warrant cannot be detained for more than 24 hours without being presented before the magistrate. Only a magistrate can extend the detention of a person in police custody beyond 24 hours.

This right has been further strengthened by its incorporation in the Constitution as a fundamental right. Article 22(2) of the Constitution provides 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, Section 76 provides a similar rule in substance.

In the case of Khatri(II) v. State of Bihar (1981 SC), 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 observed strictly.

In cases of detention under any preventive detention law, Article 22(4) says that no person can be detained beyond the period of three months except on the recommendation of the Advisory Board. The person detained should be communicated the reason for detention as soon as possible and give him the earliest opportunity to make a representation against the order.

F. 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 lawyer of his choice. Further, as has been held by the Supreme Court that state is under a constitutional obligation to provide free legal aid to an accused person who because of poverty or any other reason is unable to get himself represented by a lawyer.

G. Rights of Free Legal Aid

Section 304 of the CrPC provides a very significant right to every accused who is set to appear before a Sessions Court to appoint for him a lawyer free of cost at the expense of the State. The court may appoint him a representing lawyer if the accused has no sufficient means to appoint himself a lawyer for his case then.

In Khatri(II) v. State of Bihar (1981) 1 SCC 627, the Supreme Court has held that the constitution has made it mandatory on the state to provide free legal aid to an indigent accused person.

However this constitutional right of an indigent accused to get free legal aid may prove to be futile 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 (1987) SC, 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 discredit the validity of the trial which can lead to setting aside of the conviction and sentence of punishment.

H. Right to be examined by a medical practitioner-

While Section 53 of CrPC, enables a police officer to compel an arrested person to undergo medical examination with a view to facilitate investigation, section 54 gives the accused the right to have himself medically examined if the accused thinks that a medical examination will help him in defending his case properly.

In the case of, Sheela Barse v State of Maharashtra, the supreme court held that the arrested accused person must be informed by the magistrate about his right to be medically examined in terms of section 54.

Special Rights for Women:

1. The Supreme Court of India in the case of Sheela Barse v. the State of Maharashtra has held that it is the duty of the police officer making the arrest to see that the arrested females are segregated from men and kept in female lock-up in the police station. However, in case there is no separate lock-up available, women should be kept in a separate room. Also, according to Section 160 (1), women should not be called to the police station or to any place other than their place of residence for questioning inasmuch.

2. Section 46(4) provides that no woman can be arrested during night-time that is between sunrise and sunset and a female can only be arrested by a female police officer. However, under exceptional circumstances the arrest can be made against these provisions. But in such a case, the police officer has to obtain prior permission of the Judicial Magistrate by making a written report.

3. Section 51 (2) states whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

4. According to Section 53 (2) of Code of Criminal Procedure, 1973, Whenever the person of a female is to be medically examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.