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BY
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
Linkedin: https://www.linkedin.com/in/vpdalmia/
Facebook: https://www.facebook.com/vpdalmia
Twitter: @vpdalmia
And
Rakshit Sharma
Bhartiya Vidyapeeth New Law College, Pune
5th Year BBA LL.B.
https://www.linkedin.com/in/rakshit-sharma-8695b8150/
As per Article 21 of the Constitution of India, “No person
shall be deprived of his life or personal liberty except according
to procedure established by law, nor shall any person be denied
equality before the law or the equal protection of the laws within
the territory of India”. It also covers a just and fair trial
without any arbitrary procedure, which confers that arrest should
not only be legal but also justified. In this context, this article
consists of the procedural and constitutional rights of the accused
before and after the arrest in India. Except when exceptions are
created, the accused person, unless and until provided otherwise,
is considered innocent until proven guilty before the court of
law.
Rights of an accused person
Rights to know the grounds of arrest
1. Article 22 of the Constitution of India deals with the
protection against arrest and detention in certain cases-
- No person who is arrested shall be detained in custody without
being informed, as soon as possible, 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 choice.
2. Section 50 of the Code of the Criminal procedure (Cr.P.C.)
states that the person arrested has to be informed of the grounds
of arrest and his right to bail-
- Every police officer or other person arresting any person
without a warrant shall forthwith communicate to him full
particulars of the offense for which he is arrested or other
grounds for such arrest. - Where a police officer arrests without warrant any person other
than a person accused of a non-bailable offense, he shall inform
the person arrested that he is entitled to be released on bail and
that he may arrange for sureties on his behalf.
3. Section 50-A of the Code of the Criminal procedure (Cr.P.C.)
talks about the obligation of the police officer making the arrest
to inform about the arrest to a nominated person –
- Every police officer or other person making any arrest under
this Code shall forthwith give the information regarding such
arrest and place where the arrested person is being held to any of
his friends, relatives or such other persons as may be disclosed or
nominated by the arrested person to give such information.
4. Section 55 of the Code of the Criminal procedure (Cr.P.C.)
deals with arrests when a police officer deputes a subordinate to
arrest the accused without a warrant.
- When any officer in charge of a police station or any police
officer making an investigation under Chapter XII requires any
officer subordinate to him to arrest without a warrant (otherwise
than in his presence) any person who may lawfully be arrested
without a warrant, he shall deliver to the officer required to make
the arrest order in writing, specifying the person to be controlled
and the offense or other cause for which the arrest is to be
completed and the officer so required shall, before making the
arrest, notify to the person to be arrested the substance of the
order and, if so required by such person, shall show him the
order.
5. Section 75 of the Code of the Criminal procedure (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.
A landmark judgment of Joginder Kumar vs. state
it was held that although the police had the absolute legal powers
to arrest a person in a criminal case, every arrest had to be
justified. Arrests could not be made routinely, merely on an
allegation or a suspicion of their involvement in a crime.
Every arrest should be made after the police officer reached a
reasonable satisfaction after the Investigation that the complaint
was genuine and bona fide, the accused was complicit in the Crime,
and the arrest was necessary and justified. 1
Right to be produced before the Magistrate without
unnecessary delay
1. Article 22 (2) of the Constitution of India provides that
every person who is arrested and detained in custody shall be
produced before the nearest magistrate within twenty-four hours of
such arrest, excluding the time necessary for the journey from the
place of detention 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.
2. Section 55 of the Code of the Criminal procedure (Cr.P.C.)
stipulates that the subject to the terms of the arrest, a police
officer who arrests without a warrant should produce the arrested
individual without undue delay before the Magistrate with
jurisdiction or a police officer in charge of the police
station.
3. Section 76 of the Code of the Criminal procedure (Cr.P.C.)
states that the person who is arrested is to be brought before
Court without delay.
- The police officer or other person executing a warrant of
arrest shall 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 twenty-
four hours exclusive of the time necessary for the journey from the
place of arrest to the Magistrate’s Court.
Rights to be released on Bail
Section 50 (2) of the Code of the Criminal procedure (Cr.P.C.)
states that where a police officer arrests without warrant any
person other than a person accused of a non-bailable offense, he
shall inform the person arrested that he is entitled to be released
on bail and that he may arrange for sureties on his behalf.
Right to a fair and just trial
Article 14 of the Constitution of India states that every person
is equal before the law means that every person in the dispute
shall have equal treatment.
The Supreme Court has held in several judgments that a speedy
trial is guaranteed by Article 21 of the Constitution. The right to
a speedy trial is first mentioned in that landmark document of
English law, the Magna Carta. In the case of Huissainara
Khatoon vs. Home Secretary, State of Bihar, the
Hon’ble court held that the State could not avoid its
constitutional obligation to provide a speedy trial to the accused
by pleading financial or administrative inability. The State is
under a constitutional mandate to ensure a speedy trial, and
whatever is necessary for this purpose must be done by the State.
2
In Ashim vs. National investigation agency,
Hon’ble Supreme Court held that the deprivation of personal
liberty without ensuring a speedy trial is inconsistent with
Article 21 of the Constitution of India. 3
Right to consult a Lawyer
1. Article 22 of the Constitution provides that no arrested
person shall be denied the right to consult a legal practitioner of
his choice.
2. Section 41D of the Code of the Criminal procedure (Cr.P.C.)
provides that when any person is arrested and interrogated by the
police, he shall be entitled to meet an advocate of his choice
during interrogation, though not throughout the interrogation.
3. Section 303 of the Code of the Criminal procedure (Cr.P.C.)
deals with the rights of the person against whom proceedings are
instituted. Any person accused of an offense before a Criminal
Court or against whom proceedings are created under this Code may
be defended by a pleader of his choice.
4. Article 39 A of the Constitution of India states that the
State shall secure that the operation of the legal system promotes
justice based on equal opportunity and shall, in particular,
provide free legal aid by suitable legislation or schemes or in any
other way, to ensure that opportunities for securing justice are
not denied to any citizen because of economic or other
disabilities.
In the landmark case of Khatri v. the State of
Bihar, Hon’ble Justice P.N. Bhagwati made it mandatory
for Session Judges to inform the accused of their rights to free
legal aid and to advise individuals if they are unable to retain a
counsel to defend themselves caused by poverty or destitution.
4
In Sheela Barse v. Union of India, the
Hon’ble Court ruled that a person’s fundamental right to a
speedy trial is contained in Article 21 of the Indian
Constitution5.
Also, in the case of Suk Das v. Union Territory of
Arunachal Pradesh, Hon’ble Justice P. N. Bhagwati
stated that India has many illiterate people unaware of their
rights. As a result, it is critical to developing legal literacy
and awareness among the general public and is also an essential
component of legal aid. 6
5. Section 304 of the Code of the Criminal procedure (Cr.P.C.)
provides that where, in a trial before the Court of Session, the
accused is not represented by a pleader, and where it appears to
the Court that the accused has not sufficient means to engage a
pleader, the Court shall assign a pleader for his defense at the
expense of the State.
Right to keep silence
When a confession or statement is made in court, the magistrate
must determine whether the announcement was made voluntarily or
not. No one can be compelled to speak in court against their will.
The right to remain silent is not recognized in any law, but it can
be based on constitutional provisions or the Indian Evidence Act.
The right to a fair trial is important because it helps ensure that
people are treated fairly in court.
Article- 20(2) of the Constitution of India reiterates that no
person, whether accused or not, cannot be compelled to be a witness
against himself. This act of exposing oneself is the principle of
self-incrimination.
In the Landmark judgment of Nandini Sathpathy vs. P.L.
Dani & others, the Court noted that Article 20(3)
existed in the form of general fundamental right protection and was
available to every accused person in India. Still, its wording was
not very specific about which situations it applied to. Also, no
one can forcibly extract statements from the accused, and the
accused has the right to keep silent during interrogation
(investigation).
Right to be examined by a Doctor
Section 54 of the Code of the Criminal procedure (Cr.P.C.)
stipulates that 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 offense or which
will establish the commission by any other person of any crime
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 vexation or delay or for
defeating the ends of justice.
Additional rights available to an arrested person
1. Section 55A of the Code of the Criminal procedure (Cr.P.C.)
deals with the health and safety of an arrested person- It shall be
the duty of the person having the custody of an accused to take
reasonable care of the health and safety of the accused.
2. Section 358 of the Code of the Criminal procedure (Cr.P.C.)
deals with the compensation to persons who got arrested
groundlessly-
- Whenever any person causes a police officer to arrest another
person, if it appears to the Magistrate by whom the case is heard
that there was no sufficient ground for causing such arrest, the
Magistrate may award such compensation, not exceeding [one thousand
rupees], to be paid by the person so causing the arrest to the
person so arrested, for his loss of time and expenses in the
matter, as the Magistrate thinks fit. - In such cases, if more persons than one are arrested, the
Magistrate may, in like manner, award to each of them such
compensation, not exceeding [one thousand rupees], as such
Magistrate thinks fit. - All compensation awarded under this section may be recovered as
if it were fine, and, if it cannot be so recovered, the person by
whom it is payable shall be sentenced to simple imprisonment for
such term not exceeding thirty days as the Magistrate directs
unless such sum is sooner paid.
3. Section 41A of The Code of the Criminal procedure (Cr.P.C.)
provides the notice of appearance of arrested person before a
police officer.
- The police officer shall, in all cases where the arrest of a
person is not required under the provisions of sub-section (1) of
section 41, issue a notice directing the person against whom a
reasonable complaint has been made or credible information has been
received, or a reasonable suspicion exists that he has committed a
cognizable offense, to appear before him or at such other place as
may be specified in the notice. - Where such a notice is issued to any person, it shall be that
person’s duty to comply with the terms of the notice. - Where such person complies and continues to adhere to the
notice, he shall not be arrested in respect of the offense referred
to in the notice unless, for reasons to be recorded, the police
officer believes that he should be arrested. - Where such person, at any time, fails to comply with the terms
of the notice or is unwilling to identify himself, the police
officer may, subject to such orders as may have been passed by a
competent Court on this behalf, arrest him for the offense
mentioned in the notice.
In Arnesh Kumar vs. State of Bihar &Anr,
the Supreme Court had inter-alia directed that the notice of
appearance in section 41A CrPC should be served on the accused
before making the arrest. The Court had issued the direction to
prevent unnecessary arrests, which, in the opinion of the Court,
bring humiliation, curtail freedom and cast scars forever. The
endeavor of the court was to ensure that police officer do not
arrest accused unnecessarily and Magistrate do not authorize
detention casually and mechanically. The Supreme Court also gave
the following directions:
- All the State Governments to instruct its police officers not
to automatically arrest when a case under Section 498-A of the IPC
is registered but to satisfy themselves about the necessity for
arrest under the parameters laid down above flowing from Section
41, Cr.P.C.; - All police officers be provided with a check list containing
specified sub-clauses under Section 41(1)(b)(ii); - The police officer shall forward the check list duly filed and
furnish the reasons and materials which necessitated the arrest,
while forwarding/producing the accused before the magistrate for
further detention; - The Magistrate while authorizing detention of the accused shall
peruse the report furnished by the police officer in terms
aforesaid and only after recording its satisfaction, the Magistrate
will authorize detention; - The decision not to arrest an accused, be forwarded to the
Magistrate within two weeks from the date of the institution of the
case with a copy to the Magistrate which may be extended by the
Superintendent of police of the district for the reasons to be
recorded in writing; - Notice of appearance in terms of Section 41A of Cr.P.C. be
served on the accused within two weeks from the date of institution
of the case, which may be extended by the Superintendent of Police
of the District for the reasons to be recorded in writing; - Failure to comply with the directions aforesaid shall apart
from rendering the police officers concerned liable for
departmental action, they shall also be liable to be punished for
contempt of court to be instituted before High Court having
territorial jurisdiction. - Authorizing detention without recording reasons as aforesaid by
the judicial Magistrate concerned shall be liable for departmental
action by the appropriate High Court.
The judgment of the Supreme Court in Munawar Vs. The
State of M.P., since the police had failed to issue a
notice under Section 41A Cr.P.C., as mandated by the Supreme Court
in Arnesh Kumar Vs. the state of Bihar, the applicants
ought to have been straightway admitted to interim bail .
4. Section- 46 of the Code of the Criminal procedure (Cr.P.C.)
stipulates the mode of arresting an accused person, including
submission to the custody by the accused, physically touching the
body, or to a body.
Except when the person to be arrested is accused of an offense
punishable by death or life imprisonment, when the accused person
is attempting to resist his arrest by becoming violent and
aggressive unnecessarily, or when the accused is trying to flee,
the police officer must not cause the death of the accused person
while attempting to arrest the person.
5. Section 49 of the Code of the Criminal procedure (Cr.P.C.)
stipulates that the person arrested shall not be subjected to more
restraint than is necessary to prevent his escape.
In D.K. Basu vs. State of West Bengal Supreme
Court held that under Section 49, the police are not permitted to
use more restraint than is necessary to prevent the person’s
escape. The court further stated that the police officer would be
held in contempt of court and subject to a departmental inquiry if
they could not carry out his duties correctly. Any High Court with
jurisdiction over the case above may be approached for such a
dispute.
6. Section 41B of the Code of the Criminal procedure (Cr.P.C.)
states the arrest procedure and duties of the officer making an
arrest. Unless the memorandum is attested by a member of his
family, inform the person arrested that he has a right to have a
relative or a friend named by him be informed of his arrest.
7. 41D of the Code of the Criminal procedure (Cr.P.C.)
stipulates that when any person is arrested and interrogated by the
police, he shall be entitled to meet an advocate of his choice
during interrogation, though not throughout the interrogation.
Conclusion
Modern constitutional law has come a long way in terms of
protecting and safeguarding the rights of persons guilty of crimes.
Patrol officers are especially prone to making mistakes since they
serve under public scrutiny and are expected to achieve speedy
results. India has a significant problem with illegal arrests and
custodial deaths, primarily caused by unlawful arrests. According
to India’s legal system, which supports the concept of
“Innocent until proven guilty,” an accused person has
certain rights as an arrested person that are untouched whenever a
police officer knocks on his door to make an arrest. The Supreme
Court of India in D.K. Basu vs. West Bengal is not being
effectively implemented. There should be proper execution of
provisions and guidelines stated in this case to ultimately assist
in decreasing the proportion of illegal arrests and resulting
custodial deaths.
Footnotes
1. Joginder Kumar v State of UP, AIR 1994
SC 1349
2. Hussainara Khatoon and Ors. vs. Home
Secretary, State of Bihar, Patna (09.03.1979 – SC) :
MANU/SC/0121/1979
3. Ashim vs. National Investigation
Agency (01.12.2021 – SC) : MANU/SC/1169/2021
4. Khatri and Ors. vs. State of Bihar and
Ors. (19.12.1980 – SC) : MANU/SC/0518/1981
5. Sheela Barse vs. Union of India (UOI)
and Ors. (29.08.1988 – SC) : MANU/SC/0437/1988
6. Suk Das vs. Union Territory of
Arunachal Pradesh (10.03.1986 – SC) : MANU/SC/0140/1986
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