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Procedure Of Arrest Of A Person And Rights Of An Accused

What do we mean by the term arrest?

In general words arrest means apprehension of an individual by a legal authority that result in deprivation of liberty.

According to Farlex[1] "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."

In R.R. Chari v. State of Uttar Pradesh[2] The Supreme Court described arrest as being taken into custody to be formally charged with a crime. According to the court, it means the arrest of an individual in a constitutional context (body of a person).

Types of arrest:

  1. Arrest carried out in compliance with a judge's warrant.
  2. Arrest carried out without warrant but under the legal guidelines laid down.

Private arrest in which a person is detained by an individual is also a form of arrest. However, it is permissible only if a person commits a non-bailable offense in the presence or is apprehensive of the offense against a person or his property and the right address of the residence or unknown to that person is not released. But ample apprehension and justifiable cause should be found before an individual is arrested.

Who can arrest?

Arrest can be made even by magistrate, police, and even a private person

Section 41(1) CrPC Says: Any police officer who is in possession of a robbery or is a State offender and who obstructs the police officer in performing his duties and who attempts to escape legal confinement or declared a defective person by any of the Union Army Forces, without order from or without a warrant, can be arrested by any person who has committed the cognizable offence.

Where there is reason to think that he is committing a non-bailable offense and refuses to indicate his name or place of residence on an insistence of a police force official, or gives a name or residence that that officer has reason to believe is mistaken, it shall be dealt with pursuant to the provisions of section 42.

Section 43 grants a private citizen like you and me the right to apprehend someone who commits a cognizable or non-cognizable offense or who is a convicted criminal in his or her presence. Section 44, arrested by a judge pursuant to section 44(1) of the CrPC, has been authorized to detain and custody a person who has committed an offense.

Rights available to the arrested person:
  • At the time of arrest
  • At the time of trial

At the time of arrest:

  1. Right to remain silent:
    The right to self-inflict is guaranteed by Article 20(3) of the Indian constitution and this article has specified that no person charged with a crime is required to serve as a witness in its own person. Rule 20(3) of the Indian constitution The Supreme Court ruling in Nandini Sathpathy v. P.L.Dani[3] upheld this same principle and held in the case that, regardless of what, none of the persons can physically extract a response from the defendants and that the defendant has specific rights to be silent during an examination and questioning.
  2. Right to know the grounds of arrest:
    Section 50 of CrPC states that any police officer or someone allowed to arrest a person without an order should inform the arrested person of the crime and any grounds on which that person was arrested. It is the responsibility that cannot be denied by the police officer.
    • Section 50A of CrPC allows an arrester person to inform any friend or family member or other person in their interest of the arrest. The Police Officer must notify the arrested person, if placed under detention, that he has the right to know about his arrest.
    • Section 55 of the CrPC specifies that if a police officer has allowed its subject to arrest a person without a warrant, it is important for the subordinate officer to inform the person being detained, detailing the crime and other reasons for the arrest, of the content of a written order.
    • Section 75 of CrPC states that the police officer (or other officers) who executes the warrant should inform the arrested person of the substance and, if appropriate, provide him with a warrant.
    • Section 22(1) of the Indian Constitution also states that, without informing the reasons of the arrest, no police officer shall arrest any individual.
  3. Right to be produced before magistrate without delay
    Section 55 of CrPC provides that an arresting police officer without an order should deliver the person detained without undue delay, subject to conditions of detention, in front of the magistrate with jurisdiction or a police agent responsible for the police station.

    Section 76 of the CrPC stipulates that an arrest warrant police officer should deliver a person detained before the court to which he is bound by statute to produce that person. It says the individual must be manufactured within 24 hours of arrest. In the calculation of the 24 hour duration, the period needed for the trip from the place of detention to the Court of Justice should be exclude.

    Article 22(2) of the Constitution specifies that within 24 hours of arrest the police official who makes the arrest should be made in front of the Magistrate. In case the police officer does not arrive in 24 hours before the magistrate, he shall be responsible for unlawful arrest[4].
  4. Rights to be released on bail.
    Subsection (2) of section 50 CrPC states that a police officer is entitled to release on bail and arrange for sureties on his own behalf if an individual is detained for non-cognizable offenses without a warranty.

At the time of trial:
  1. Right to a fair trial
    CrPC does not provide for any clause concerning the right to a fair trial, although certain rights can be taken from the Constitution and the various decisions. According to Article 14 of the Constitution, "all persons are equal in law." It means equality of justice for all parties to the conflict. In relation to all sides, the concept of natural justice should be understood. The court held that the trial is to be disposed of as quickly as possible," right to an expedited trial in the case Huissainara Khatoon vs. Home Secretary of State of Bihar[5].
  2. Right to consult a lawyer
    The right of prisoners to communicate with their counsel during questioning is provided for in Section 41D of the CrPC. According to Article 22(1) of the Constitution, the accused person is entitled to appoint a lawyer and to stand up for the pleader of his choosing.

    The CrPC Section 303 states that a lawyer of his choosing shall have the right to be defended where a person is suspected to have committed an offense before or against a criminal court.
  3. Right to write a book
    In State of Maharashtra v. Prabhakar Pandurang[6], a book was written on science and the petitioner asked the government to permit him to send this book to his wife so she can give it further for publication. The government refused to give permission. The court held that this was against Article 21 of Indian constitution as because it was infringement of personal liberty which gives every individual a right to write a book and publish it.
  4. Right to free legal aid
    In section 304 of the CrPC, where a trial is held before the Court and the accused is not supported by the practitioner of the law, or the accused does not seem to be able, then court may appoint a pleader at the expense of the State. In order to ensure justice, Article 39A compels the State to offer free legal assistance. In the case of Khatri VS State of Bihar[7], this right has been granted explicitly. The court held that "the indigent accused must get free legal assistance." It is also issued when the accused first time begins to be brought before the Magistrate. It is not possible to deny the right of the accused even though the accused may not request it. If the state does not provide the indigent accused with legal assistance, the entire proceedings would be vitiated as void. Similar scenario took place in the case of Sukh Das vs. Union Territory of Arunachal Pradesh[8].
  5. Right against handcuffing
    Handcuffing is inhumane and violates Article 21 of the Indian constitution. The Supreme Court ruled in Prem Shankar v. Delhi Administration[9] that an accused should only be handcuffed if there is a clear possibility of escape during the trial. There were also rules stating that if an accused is sentenced to more than three years in prison for a non-bailable offence, he must be handcuffed on a regular basis. In the case of Birendra Kr Rai vs. UOI, 1992[10], the Court held that if a person submits to custody, it is not necessary to handcuff him or her.
  6. Right to be examined by the medical practitioner
    Section 54 CrPC states that if the person under arrest alleges his body to be examined, the court may order the accused, at its request (accused), to be medically examined by him or herself, unless it has been identified that his/her case has been investigated by another person or that it may lead some other person against his or her body. The Court may order the accused party to be examined at his/her request.
  7. Right to against custodial violence
    Several incidents of cruel police behaviour towards the accused have occurred. The Apex Court has classified cruelty and harassment as an offence against the dignity of an individual, fearing the accused in submission and confession. It violates Article 21 as it safeguards human dignity from this torture in the Indian Constitution.
Major landmark case of arrest was D.K. Basu vs. State of West Bengal [11] in which it was held that the case therefore offered a distinctive judgment in which the rules concerning an individual's detention were otherwise prescribed in the name of justice. It prohibits any breach of an individual's rights during imprisonment. Even if the right process has now been set by statute and anyone who disdained the court is punishable.

An efficient mechanism was essential for the administration of the criminal system in a country like India. This case formed as a reference case in accordance with the guidelines provided by the custody bench. The State is obligated whether it is convicted of a violation or of a natural innocent individual to protect people.

The case thus gave a distinctive judgment in which orders on the detention of a person were prescribed otherwise, in the interest of justice, further crimes had been committed. It prohibits violations of a person's rights during detention and thereby protects all people in such legal procedures.

While the correct procedural procedure has now been defined by statute and someone who dislikes the court is liable to be convicted, there are still offenses like the ones in the case above. or does something that is causing injustice to many innocent people and violation of citizens' human rights. Tougher laws are also required to prevent the misery of innocent people.

Before this, I believe that an effective framework was required to manage the criminal system that exists in a country like India. This case formed as a reference case in accordance with the guidelines provided by the custody bench. The State's responsibility to protect the public is either to be charged with an offence or a typical innocent person.

The law cannot be harmful and cannot refuse the fundamental rights of those in custody of the police, such as freedom and integrity.

  1. Legal Dictionary by Farlex
  2. 1951 AIR 207, 1951 SCR 312
  3. 1978 AIR 1025
  4. Manoj v. State of M.P. (1999)3 SCC 715
  5. 1979 SCR (3) 532
  6. AIR 1966 SC 424
  7. 1981 SCC (1) 627
  8. 1986 SCR (1) 590
  9. 1980 AIR 1535
  10. AIR 1992 All 151
  11. MANU/SC/0157/1997

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