Protecting the rights of someone who is suspected of a crime is equally as
vital as taking action to combat crime by arresting a person in order to protect
and safeguard the members of society. The protection of individual civil
liberties without unreasonably impeding the effective operation of law
enforcement authorities is thus a crucial issue that courts and governments must
address. The prevalence of criminal offences is rising, and there has been
progress in creating tools for monitoring and custody, which emphasises how
serious this issue is.
The essential issues are evident: According to constitutional requirements,
individual civil liberties must be protected. Yet, these precautions shouldn't
be so strict that they render law enforcement impossible or inevitably lead to
India's criminal justice delivery system is structured like a pyramid or
hierarchical system, with the Supreme Court of India serving as the summit court
at the top. It is made up of numerous overlapping tiers. Any individual who is
arrested, detained, or suspected of an offence is granted specific
constitutional safeguards and legal protections as reflected in various clauses
throughout the course of a criminal proceeding, from the point of arrest until
the trial of a criminal case concludes in finality. The criminal justice
system is made up of three distinct parts, each of which has its own
communications channels and working environment.
Meaning of Arrest
Arrest is "a seizure or forcible restraint; an exercise of the power to deny
someone their liberty; the taking or keeping of a person in custody by legal
authority, especially in response to a criminal charge or to stop or check the
motion, course, or spread of, to seize or take into custody by authority of the
law, to catch and keep one's attention, sight, etc."
The term "arrest" was defined by Halsbury's Law of England as follows: However,
words may constitute an arrest if they are calculated to alert a person to the
fact that he is under compulsion and actually do so, and the person subsequently
submits to the compulsion. Arrest consists in the seizure or touching of a
person's body with the intention of his restraint.
Rights under Criminal Procedure Code,1973
- Right to Know the Grounds of Arrest
According to Section 50(1), "any police officer or other person" who arrests
a person without a warrant "must forthwith convey to him full particulars of
the offence for which he is arrested or other grounds for such arrest" and
provides specific instructions to this effect. Second, when a senior police
officer assigns a subordinate officer to make an arrest pursuant to Section
55, that subordinate officer shall inform the subject of the arrest of the
substance of the written order issued by the senior police officer
identifying the offence or other reason for the arrest before the arrest is
made. If this clause is broken, the arrest will be invalid.
Arrests made in accordance with an arrest warrant are allowed under Section
75 of the Code. "The police officer or other person executing a warrant of
arrest shall advise the person to be arrested of the substance thereof and,
if so requested, shall show him the warrant," it adds. The arrest would be
illegal if the police officer or other person hadn't informed the subject of
the warrant. In addition, article 22(1) of the Constitution expressly
recognises the right to be informed of the reasons for an arrest. It states
that "No person who is arrested shall be detained in custody without being
informed as soon as may be of the grounds for such arrest, nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of
his own choice."
According to Section 50 of the Criminal Procedure Code, a police officer who
is detaining a person is required to provide him all the details of the
crime for which he is being detained.
In accordance with Section 51, the person who has been arrested must also be
searched, and any items found on him must be kept in safe custody. In
Udayabhan Shukla v. State of Uttar Pradesh, the Allahabad High Court was
asked about the repercussions of failing to disclose the reason for the
arrest; however, one of the reasons was already revealed, and the court
found it to be adequate.
Section 59(2) of the Code states that "where a police officer arrests any
person without warrant, any person other than a person accused of a non-bailable
offence, he shall inform the person arrested that the is entitled to be
released on bail and that he may arrange for sureties on his behalf." This
is a very benign provision for people who may not be aware of their rights
to be released on bail in case of bailable offences.
- Right to be taken before a Magistrate without Delay
A person who has been arrested for an offence has crucial protections under
Sections 56 and 76 of the Criminal Procedure Code. According to Section 56,
"A police officer making an arrest without a warrant shall take or send the
person arrested before a Magistrate having jurisdiction in the case, or
before the officer in charge of a police station, without undue delay and
subject to the provisions herein contained as to bail."
According to Section 76, "The police officer or other person executing a
warrant of arrest shall (subject to the provisions of Section 71 as
security) bring the person arrested before the court before which he is
required by law to produce such person: Provided, however, that such delay
shall in no event exceed 24 hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's court." These
requirements require that the accused appear before the legal authorities as
soon as practicable, but no later than within 24 hours. Additionally, it has
been stipulated that the detained person must remain at the police station.
An arrested person must be brought before a judge within 24 hours after
their arrest as per established legal precedent; if they are not, the
incarceration is illegal.
- Right to Consult a Legal Practitioner
The mandate of article 22 states that a person who is arrested cannot be
refused the opportunity to consult a lawyer of his choice (1). In the
Hussainara Khatoon case, it was also decided that the state has a
constitutional obligation (implicit in article 21) to provide free legal
representation to an accused person who is indigent.
This obligation to provide free legal representation does not only apply
when the trial begins, but also when the accused is brought before the
magistrate for the first time and when he is occasionally remanded,
according to the ruling. In highlighting this right, the Supreme Court has
ruled that failure to comply with this obligation and fail to tell the
accused of this right would invalidate the trial. A person who has been
arrested has the right to speak with a lawyer as soon as they are taken into
custody. The lawyer's consultation may take place in front of the police
officer, but not in his line of sight.
- Judicial Scrutiny Necessary to detain beyond 24 hours
The judicial officer must be put in between the people and the police
apparatus as required under the Criminal Process Code's investigation
system. Police interference with an individual's right to privacy serves the
interests of society by keeping the peace. Our Constitution and the Criminal
Process Act require the police to submit the arrested person before a
magistrate within 24 hours of the arrest because it is the responsibility of
the judicial officer to ensure that the interests of society and the
individual are fairly balanced.
The provisions of section 57 of the Criminal Procedure Code and article
22(2) of the Constitution are similar in that they both call for judicial
review of the arrested individual and categorically prohibit detention for
longer than 24 hours without a court order.
According to Section 57 of the Criminal Procedure Code, "No police officer
shall detain in custody a person arrested without warrant for a period of
time greater than is reasonable under all the circumstances of the case, 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 section's analogous language in Art. 22(2), which states 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 Magistrate," further strengthens this right.
The proviso to section 76 provides a similar rule in substance in the case
of an arrest made pursuant to a warrant International Aspect.
- United State of America
The rights of the accused are increasingly important as society advances.
English common law, which had developed over the centuries prior to impose
limits on the power of the sovereign over his or her population, served as
the model before the American Constitution's founders. The first 10
amendments to the Constitution�commonly referred to as the Bill of
Rights�were passed by Congress in 1791 as a result of some of the
Constitution's authors' dissatisfaction with the freedoms guaranteed by the
document itself. These protected extra liberties, some of which concerned
the rights of citizens accused of crimes, and were based on the English Bill
of Rights (1689). The Fifth, Sixth, and Eighth Amendments of the Bill of
Rights, along with the Fourth Amendment, which safeguards against arbitrary
search and seizure, address the rights of the accused.
Only when the offence was committed in his presence, when there was a
concern that the person may run, or when there was other reasonable
suspicion, might the police make an arrest without a warrant. The case's
facts will determine what constitutes probable cause. A man of "ordinary
care and judgement" should be "led by a state of facts to believe or
entertain an honest and strong suspicion, that the individual is guilty of
an infraction." The suspect must be brought to a judge without further
delay. When an arrest is made pursuant to a warrant, the subject of the
arrest must be brought right away before the officer issuing the warrant,
and when an arrest is made without a warrant, the subject of the arrest must
be brought right away before the closest and most accessible judicial
officer with a statement of the charges.
The 8th amendment and Article III of the Constitution guarantee jury trial.
The jury selection procedure, known as voir dire, in which potential jurors
can be questioned by both the prosecution and the defence, is the biggest
benefit. Based on the potential juror's response, one side or the other
may make arrangements to have their name removed from the list.
six lines of the eighth amendment, "Excessive bail shall not be necessary,"
are crucial in relation to the pre-trial stage. Although being the sole time
bail is mentioned in the Constitution, it has long been assumed that the
accused has a right to bail. The court may refuse to release the accused or
establish bail levels that are too high to be allowed if it determines that
he poses a risk of fleeing (jumping bail). The accused may occasionally be
freed on recognisance, or under the honour system.
In England, whenever a person is detained without a warrant, that person has
a right to be informed of both the fact that he is detained as well as the
basis for that detention. Christie v. Leachinsky, decided by the House of
Lords into the formulation and evolution of this rule.
Viscount Simon made the following observations in his propositions:
- If a policeman makes an arrest without a warrant based on a reasonable
suspicion of a felony or another type of crime for which a warrant is not
required, he must normally inform the person being detained of the real
grounds for the arrest. He doesn't have the right to withhold the reasons or
to provide an explanation that isn't accurate. In other words, a citizen has
a right to know why they are being detained and what charges or suspicions
they are under.
- If the situation calls for him to be aware of the broad outlines of the
alleged offence for which he is being held, the need that the person
arrested should be notified of the reason why he is being taken does not
Notwithstanding its enormous significance in the administration of justice, the
right to legal representation in England is not a particularly old one. It was
only acknowledged by the early English common law in connection with minor legal
infractions. In cases involving treason and other offences, an accused person
was not permitted to have legal representation. That was most likely because at
the time, a common law trial consisted of the accused being examined rather than
a jury and witnesses.
The interests of a person who is suspected of committing an offence are now well
protected by modern criminal law. Because they are operating under pressure from
the public, who expects speedy results from the police, men are fallible, and
officers are much more so.
A check is necessary since the police frequently use illegal shortcuts and
tactics to complete their work, making it impossible for someone who has been
detained to flee but still demand the granting of his basic human rights. The
precautions become even more crucial because it happens frequently that the
person detained is not the one who committed the crime.
Even if the appropriate individual is detained, the crime may have been
committed due to unfavourable conditions or other behavioural patterns. As a
result, the offender cannot be ostracised by society or led to believe that
because of their illegal activity, they would not be recognised as fellow
humans. Only those rights can be restricted based solely on the fact that a
person has committed a crime; all other rights are unaffected.
- (1947) AC 583.
- A.N.Chaturvedi, Rights of Accused under Indian Constitution 1984 at 231.
- Brewster, Stanley Farrar, Twelve Men in a Box ( 1934).
- Hamline University School of Advanced Law, The Jury Trial (1985).
- Flemming, Roy B. Punishment Before Trial: An Organizational Perspective
of Felony Bail Processes (1982
- Leon Yankuich, The Nature of Our Freedom 1949 at 179.
- Ajit Kumar v. State of Assam, 1976 Cr.LJ 1303 (Gau. HC).
- Satish Chandra Rai v. Jodu Nandan Singh, ILR 26 Cal. 748; Abdul Gafar v.
Queen Empress, ILR 23 Cal. 296.
- (1999) Cri.LJ 274 (All).
- Manoj v. State of Madhya Pradesh, 1999 Cr.LJ 2095 (SC)
- Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, 1980 SCC (Cri.)
- Suk Das v. Union Territory of Arunachal Pradesh, (1986)2 SCC 401.
- Llewlyn Evans, Re ILR 50 Bom. 741, Moti Bai v. State, AIR 1954 Raj. 241.
- Sundar Singh v. Emperor, 32 Cri.LJ 339.
- K.N.Chandrasekharan Pillai, "Criminal Procedure" XXXVI ASIL 2000 at 162
- Available at : http://www.yourdictionary.com/arrest (visited on Feb
- Vol. 11, 4th edition in Para 99
- A Symposium on Law and Police Practice, "Are the Courts handcuffing the
Police", Nortwestern University Law Review 52 (1957-58) at 1
- S.Ratnavel Pandian, "Criminal Justice System in India" Indian Journal of
Criminology & Criminalities Vol. 16 (1995)1-9 at 2