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Rights Of Arrested Person

Every human being has to be treated as a being despite the fact he has committed a criminal offence. The person who is arrested for the criminal wrong or an offence which has been mentioned in any code i.e. Indian Penal Code, 1860 or Code Of Criminal Procedure, 1973 has rights which have been granted by the supreme law of land i.e. the Indian Constitution.

The basic motive for providing such basic rights to the accused is that government is entitled with some rights which can be misused in order to give justice so for the proper functioning of the basic objective for providing justice is followed i.e. Equity, Justice And Good Conscience such basic rights have been given to the accused for protection of the powers which can be misused by the government officials.

Also, according to the basic principle that all human beings are born with having right to life with dignity and right to personal liberty these rights are mentioned under the Indian constitution and under Universal Declaration of Human Rights. Accused is having certain rights which are used during the period of investigation, trial, and inquiry and also for the illegal arrest and arbitrary action.

The rights which have been given to the accused can be concluded by the code of criminal procedure, supreme law of land and various landmark judgements. Under the code of criminal procedure it has been mentioned in detailed the provision for the arrest of the person and the police have been given various powers for completing the making of arrest which have been mentioned detailed under Chapter-V of the code of criminal procedure but the powers are subject to certain restraints. These restraints have been primarily set up for the protection of the accused and also the society at large.

The Indian system is based on the concept of Innocent Till Proven Guilty so, instead of imposing certain duties on the police officers making arrest of the person who is accused, the code confers specific rights by making express provision of a person who is arrested.

Rights Of Arrested Person:

Right To Know The Ground Of Arrest

Every accused person has a right to know the ground for which he has been arrested.

Section-50, of CrPc states that the person who is arrested should be informed of ground of arrest and of right to bail. wherein a person is arrested without any warrant he should be immediately informed of the particulars of the type of offence which he has committed which has been mentioned in the code and also states him whether the offence which he has committed is a Bailable offence or a Non-Bailable offence.

If the offence is a Bailable offence then the accused has a right to be released on bail. It is the duty of the police officer to inform him and he can't refuse to do such thing.
Making known to the arrest grounds to the accused is a constitutional requirement and failure to comply with the requirement leads to arrest illegal.

Section-50A, OF CrPc obligates a person making arrest to inform of the arrest to any of the friends or relatives or any other person of his interest. Also, the police officer should inform the arrested person that he can inform to any of his friends or relatives about his arrest, police officer has to perform his duty he can't deny or refuse it.

Section-55 OF CrPc states that when the police officer authorised his subordinate to arrest the accused without a warrant, the subordinate needs to notify the accused for what reason he has been arrested which is written in that order specifying the offence what he has committed and other grounds of arrest.

Section-75 OF CrPc states that if the arrest of accused is under a warrant then the police officer or other person who is executing the warrant shall notify the substance of the written order given by the senior officer in written stating the offence for which the accused has been arrest and if so required, shall show him the warrant.
If the police officer executing the warrant of arrest does not notify the substance to the arrested person in accordance with this Section, he will be acting in the violation of law.

As per Article 20(1) of the Indian Constitution no police officer should arrest without informing the ground for the arrest.

Right To Be Taken Before Magistrate Without Delay:

The accused person has a right to appear before the magistrate within 24 hours from the time of the arrest. Despite the fact that the arrest is with warrant or without warrant accused has to be taken to the nearest Magistrate within the period of 24 hours of such arrest and have to keep the accused in police station and nowhere else.

Article 22(2) of The Indian Constitution states that every person who is arrested or detained in custody produced before the nearest Magistrate within the period of 24 hours of such arrest excluding the time take place necessary from the place of arrest to the nearest Magistrate.

Section-57 of CrPc states that the person who is arrested without warrant not to be detained in the custody of the police for more than 24 hours. The accused have to present before the magistrate within that period. The period of arrest does not include the journey from the place of arrest to the nearest magistrate. Magistrate can order his detention for a term not exceeding fifteen days on the whole.

Section-76 of CrPc states that the person who is arrested with warrant shall without necessary delay bring the person arrested before the court where he is required to be present.

Right To Be Released On Bail:

The accused person has the right to be released on the bail if the offence is a Bailable offence after paying the surety amount he can be entitled for the bail and if the offence is Non-Bailable then it's upon the discretion of the court whether to grant bail or not also it is the right of the right of the accused to know the grounds of his arrest.

As per Section-50 of CrPc, where the accused is arrested without warrant, he should be immediately informed of the particulars of the offence and grounds of his arrest and whether the offence is Bailable or not, if yes then he has right to be released on Bail.

Right To Fair Trial:

The accused has a right to have a fair trial while taking the principle of equity, justice and good conscience into consideration. No provision relating to the fair trial has been mentioned under the code of criminal procedure but the interest of the accused to have fair trial has been mentioned under the Supreme law of land under ARTICLE 14, "which says that all persons are equal in the eyes of law", this statement itself says that every person should be given equal opportunity and the accused has a right that during his trial the principle of Natural Justice should be followed. Also, the accused has a right to have free and speedy trial; principle of Natural Justice should be followed in both the aspects.

In Huissainara Khatoon V. Home Secretary, State Of Bihar, it was held that the trail is to be disposed of as speedily as possible.

Right To Consult A Legal Practitioner:

The accused has a right to address himself before the magistrate through his legal advisor. Right to address before the magistrate by legal practitioner is fundamental right which has been mentioned under Article-22(1), which states as soon the person is in the custody of the police he has the right to have legal practitioner to guide him regarding the gravity of the offence which he has committed and the grounds and the remedy which he can provide the accused. If the offence is Bailable, then the legal practitioner can help him to release on Bail by giving the surety amount.

Also, under Section-303 of CrPc states that is the person is accused of an offence before criminal court, or against whom proceedings are instituted may of right to be defended by a pleader of his choice.

Right To Free Legal Aid:

The accused has a right to have the legal aid service which has been provided by the legal service authority if his income is less than Rs. 1, 50,000/- he has to prove that by the way of the income affidavit and thus he is entitled to have free legal aid service and can have a legal practitioner for himself on his behalf to address the court proceedings.

Section-304 of CrPc states that wherein between the trial proceedings if the accused is not presented by a pleader, and where the court believes that he is not having enough means to appoint a pleader then his defence would be at the expense of the state and he can be entitled to have free legal aid service and thus a legal practitioner to appear on the behalf of the accused.

Article-39(A) has been inserted by the 42nd Amendment which ensures in that it is the duty of the state to provide legal aid services to the accused in order to ensure equal opportunity in securing justice and shall not be denied to any citizen by reasons of economic and other disabilities. According to article 21 of the Indian Constitution.

In the case of Khatri v/s State Of Bihar, it was stated that if the accused person is declared indigent then the state has to provide free legal aid services to him.

Right To Be Silent:

The accused has a right to remain silent because the magistrate has to know the gravity of the confession or statement which has been made by the accused is made by him voluntarily or not and this right has not been mentioned in any code.

This is the right which has been given to the accused from the common law principles. This right leads to the provision which has been mentioned under Article-20(3) of The Indian Constitution, which says that no person accused for any offence shall he compelled to be a witness against himself i.e. the principle of Self-Incrimination.

In The Case Of Nandini Sathpathy V. P.L.Dani,, it was stated that no one can force any accused to answer any question or give statement and the accused has the right to remain silent during the process of interrogation.

Right To Be Examined By The Medical Practitioner:

> The accused has a right to be examined by the medical specialist. According to Section-54 Of CrPc, which says that examination of the arrested person by the medical practitioner on the request of the accused if he alleges that at the time when he was produced before the magistrate or during the time of his detention contains proof which will disprove that the offence has been committed by him and will suspects other person who has actually committed the offence then the magistrate after agreeing to his statement can assign a medical practitioner to collect the evidence for reaching the ends of justice.

In the case of Yoginder Singh V. State Of Punjab, it was stated that constitutional provisions i.e. Article 21  and 22(1) are necessary because:
  • The accused has the right to inform his friends, relatives or any other person who is in relation to whom or whom the information should reach so if the offence is Bailable offence he could bring the surety amount and he can be released on Bail.
  • The police officer are under the obligation directed by the state to inform about the grounds and regarding the offence the accused has been arrested.
  • The entry should be made in a diary to which the information of arrest has been made by the accused.

Conclusion:
In The Case Of D.K Basu V. State Of West Bengal And Ors,, this case was the landmark judgement which talks about the rights of the arrested person and also obligates the police officer to do certain activities which has been imposed on him. Also it has been stated that it is the duty of the police officer to inform the accused about the grounds and offence which he has committed and if the police officer fails in performing his duty he will be punished for the violation of law.

Written By:
  1. Gurmeet Singh, Advocate, For M/S Gurmeet Singh & Associates, Advocates and Legal Consultants,
    Website: www.gurmeetsinghandassociates.com /.in, Email: [email protected], Ph No:+91 8750002000
  2. Ms.Priya Chawla,
  3. Adv. Vidushi Jain,
  4. Adv. Hritwik,
  5. Adv. Aman Sharma,
  6. Sh.Aman Karamvir,
  7. Adv. Tripty Rajput,
  8. Ms. Divya Kaushal,
  9. Adv. Alpana Yadav

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