Article by Vijay Pal Dalmia, Advocate, Supreme
Court of India and Delhi High Court, Partner & Head of
Intellectual Property Laws Division, Vaish Associates Advocates,
India

As per Article 21 of the Constitution of India, “No particular person
shall be disadvantaged of his life or private liberty besides in accordance
to process established by regulation, nor shall any particular person be denied
equality earlier than the regulation or the equal safety of the legal guidelines inside
the territory of India”. It additionally covers a simply and truthful trial
with none arbitrary process, which confers that arrest ought to
not solely be authorized but additionally justified. In this context, this text
consists of the procedural and constitutional rights of the accused
earlier than and after the arrest in India. The accused particular person, until
and till supplied in any other case, is taken into account harmless till confirmed
responsible earlier than the court docket of regulation.

Rights of an accused particular person

Rights to know the grounds of arrest

1. Article 22 of the Constitution of India offers with the
   safety in opposition to arrest and detention in sure cases-

• No one who is arrested shall be detained in custody with out
  being knowledgeable, as quickly as doable, of the grounds for such
  arrest, nor shall he be denied the best to seek the advice of and to be
  defended by a authorized practitioner of his alternative.

2. Section 50 of the Code of the Criminal process (Cr.P.C.)
   states that the particular person arrested needs to be knowledgeable of the grounds
   of arrest and his proper to bail-

• Every police officer or different particular person arresting any particular person
  and not using a warrant shall forthwith talk to him full
  particulars of the offence for which he’s arrested or different
  grounds for such arrest.




• Where a police officer arrests with out warrant any particular person different
  than an individual accused of a non-bailable offence, he shall inform
  the particular person arrested that he’s entitled to be launched on bail and
  that he might organize for sureties on his behalf.

3. Section 50-A of the Code of the Criminal process (Cr.P.C.)
   talks in regards to the obligation of the police officer making the arrest
   to tell in regards to the arrest to a nominated particular person –

• Every police officer or different particular person making any arrest beneath
  this Code shall forthwith give the data concerning such
  arrest and the place the place the arrested particular person is being held to any
  of his buddies, kin or such different individuals as could also be disclosed
  or nominated by the arrested particular person to present such info.

4. Section 55 of the Code of the Criminal process (Cr.P.C.)
   offers with the system when a police officer deputes a subordinate
   to arrest the accused and not using a warrant.

• When any officer answerable for a police station or any police
  officer making an investigation beneath Chapter XII requires any
  officer subordinate to him to arrest and not using a warrant (in any other case
  than in his presence) any one who might lawfully be arrested
  and not using a warrant, he shall ship to the officer required to make
  the arrest order in writing, specifying the particular person to be managed
  and the offense or different trigger for which the arrest is to be
  accomplished and the officer so required shall, earlier than making the
  arrest, notify to the particular person to be arrested the substance of the
  order and, in that case required by such particular person, shall present him the
  order.

5. Section 75 of the Code of the Criminal process (Cr.P.C.)
   gives that the police officer or different particular person executing a
   warrant of arrest shall notify the substance thereof to the particular person
   to be arrested and, in that case required, shall present him the
   warrant.

In the landmark judgment of Joginder Kumar vs.
state, it was held that though the police had the
absolute authorized powers to arrest an individual in a felony case, each
arrest needed to be justified. Arrests couldn’t be made routinely,
merely on an allegation or a suspicion of their involvement in a
crime.

Every arrest ought to be made after the police officer reached a
affordable satisfaction after the Investigation that the grievance
was real and bona fide, the accused was complicit within the Crime,
and the arrest was crucial and justified. ¹

Right to be produced earlier than the Magistrate with out
pointless delay

1. Article 22 (2) of the Constitution of India gives that each
   one who is arrested and detained in custody shall be produced
   earlier than the closest Justice of the Peace inside twenty-four hours of such
   arrest, excluding the time crucial for the journey from the place
   of detention to the court docket of the Justice of the Peace and no such particular person
   shall be detained in custody past the stated interval with out the
   authority of a Justice of the Peace.




2. Section 55 of the Code of the Criminal process (Cr.P.C.)
   stipulates that the topic to the phrases of the arrest, a police
   officer who arrests and not using a warrant ought to produce the arrested
   particular person with out undue delay earlier than the Magistrate with
   jurisdiction or a police officer answerable for the police
   station.




3. Section 76 of the Code of the Criminal process (Cr.P.C.)
   states that the one who is arrested is to be introduced earlier than
   Court at once.

• The police officer or different particular person executing a warrant of
  arrest shall with out pointless delay, convey the particular person arrested
  earlier than the Court earlier than which he’s required by regulation to supply such
  particular person:

Provided that such delay shall not, in any case, exceed twenty-
4 hours unique of the time crucial for the journey from the
place of arrest to the Magistrate’s Court.

Rights to be launched on Bail

Section 50 (2) of the Code of the Criminal process (Cr.P.C.)
states that the place a police officer arrests with out warrant any
particular person apart from an individual accused of a non-bailable offense, he
shall inform the particular person arrested that he’s entitled to be launched
on bail and that he might organize for sureties on his behalf.

Right to a good and simply trial

Article 14 of the Constitution of India states that each particular person
is equal earlier than the regulation signifies that each particular person within the dispute
shall have equal remedy. The Supreme Court has held in a number of
judgments {that a} speedy trial is assured by Article 21 of the
Constitution. The proper to a speedy trial is first talked about in
that landmark doc of English regulation, the Magna Carta. In the case
of Huissainara Khatoon vs. Home Secretary, State of
Bihar, the Hon’ble court docket held that the State couldn’t
keep away from its constitutional obligation to supply a speedy trial to
the accused by pleading monetary or administrative incapability. The
State is beneath a constitutional mandate to make sure a speedy trial,
and no matter is important for this goal have to be carried out by the
State. ²

In Ashim vs. National investigation company,
Hon’ble Supreme Court held that the deprivation of private
liberty with out making certain a speedy trial is inconsistent with
Article 21 of the Constitution of India. ³

Right to seek the advice of a Lawyer

1. Article 22 of the Constitution gives that no arrested particular person
   shall be denied the best to seek the advice of a authorized practitioner of his
   alternative.




2. Section 41D of the Code of the Criminal process (Cr.P.C.)
   gives that when any particular person is arrested and interrogated by the
   police, he shall be entitled to fulfill an advocate of his alternative
   throughout interrogation, although not all through the interrogation.




3. Section 303 of the Code of the Criminal process (Cr.P.C.)
   offers with the rights of the particular person in opposition to whom proceedings are
   instituted. Any particular person accused of an offense earlier than a Criminal
   Court or in opposition to whom proceedings are created beneath this Code might
   be defended by a pleader of his alternative.




4. Article 39 A of the Constitution of India states that the State
   shall safe that the operation of the authorized system promotes
   justice primarily based on equal alternative and shall, particularly,
   present free authorized support by appropriate laws or
   schemes or in some other method, to make sure that alternatives for
   securing justice aren’t denied to any citizen due to financial
   or different disabilities.

In the landmark case of Khatri v. the State of
Bihar, Hon’ble Justice P.N. Bhagwati made it
obligatory for Session Judges to tell the accused of their
rights to free authorized support and to advise people in the event that they
are unable to retain a counsel to defend themselves attributable to
poverty or destitution. ⁴

In Sheela Barse v. Union of India, the
Hon’ble Court dominated that an individual’s basic
proper to a speedy trial is contained in Article 21
of the Indian Constitution⁵.

Also, within the case of Suk Das v. Union Territory of
Arunachal Pradesh, Hon’ble Justice P. N. Bhagwati
said that India has many illiterate individuals unaware of their
rights. As a end result, it’s crucial to creating authorized literacy
and consciousness among the many basic public and can also be a necessary
part of authorized support. ⁶

5. Section 304 of the Code of the Criminal process (Cr.P.C.)
   gives that the place, in a trial earlier than the Court of Session, the
   accused is just not represented by a pleader, and the place it seems to
   the Court that the accused has not ample means to have interaction a
   pleader, the Court shall assign a pleader for his protection on the
   expense of the State.

Right to maintain silence

When a confession or assertion is made in court docket, the Justice of the Peace
should decide whether or not the announcement was made voluntarily or
not. No one will be compelled to talk in court docket in opposition to their will.
The proper to stay silent is just not acknowledged in any regulation, however it may
be primarily based on constitutional provisions or the Indian Evidence Act.
The proper to a good trial is vital as a result of it helps be certain that
individuals are handled pretty in court docket.

Article- 20(2) of the Constitution of India reiterates that
no particular person, whether or not accused or not, can’t be compelled to
be a witness in opposition to himself. This act of exposing oneself
is the precept of self-incrimination.

In the Landmark judgment of Nandini Sathpathy vs. P.L.
Dani & others, the Court famous that Article 20(3)
existed within the type of basic basic proper safety and was
accessible to each accused particular person in India. Still, its wording was
not very particular about which conditions it utilized to. Also,
nobody can forcibly extract statements from the
accused, and the accused has the best to maintain
silent throughout interrogation (investigation).

Right to be examined by a Doctor

Section 54 of the Code of the Criminal process (Cr.P.C.)
stipulates that when an individual who’s arrested, whether or not on a cost
or in any other case, alleges, on the time when he’s produced earlier than a
Magistrate or at any time throughout the interval of his detention in
custody, that the examination of his physique will afford proof
which can disprove the fee by him of any offense or which
will set up the fee by some other particular person of any crime
in opposition to his physique, the Magistrate shall, if requested by the
arrested particular person so to do direct the examination of the physique of such
particular person by a registered medical practitioner until the Magistrate
considers that the request is made for vexation or delay or for
defeating the ends of justice.

Additional rights accessible to an arrested particular person

1. 55A of the Code of the Criminal process (Cr.P.C.) offers with
   the well being and security of an arrested person- It shall be the responsibility
   of the particular person having the custody of an accused to take affordable
   care of the well being and security of the accused.




2. Section 358 of the Code of the Criminal process (Cr.P.C.)
   offers with the compensation to individuals who bought arrested
   groundlessly-




3. • Whenever any particular person causes a police officer to arrest one other
     particular person, if it seems to the Magistrate by whom the case is heard
     that there was no ample floor for inflicting such arrest, the
     Magistrate might award such compensation, not exceeding [one thousand
     rupees], to be paid by the particular person so inflicting the arrest to the
     particular person so arrested, for his lack of time and bills within the
     matter, because the Magistrate thinks match.

   
   

   • In such instances, if extra individuals than one are arrested, the
     Magistrate might, in like method, award to every of them such
     compensation, not exceeding 1 [one thousand rupees], as such
     Magistrate thinks match.

• All compensation awarded beneath this part could also be recovered as
  if it have been effective, and, if it can’t be so recovered, the particular person by
  whom it’s payable shall be sentenced to easy imprisonment for
  such time period not exceeding thirty days because the Magistrate directs
  until such sum is sooner paid.

3. Section 41A of The Code of the Criminal process (Cr.P.C.)
   gives the discover of look of an arrested particular person earlier than a
   police officer.

• [The police officer shall], in all instances the place the arrest of a
  particular person is just not required beneath the provisions of sub-section (1) of
  part 41, challenge a discover directing the particular person in opposition to whom a
  affordable grievance has been made or credible info has been
  obtained, or an inexpensive suspicion exists that he has dedicated a
  cognizable offense, to seem earlier than him or at such different place as
  could also be specified within the discover.




• Where such a discover is issued to any particular person, it shall be that
  particular person’s responsibility to adjust to the phrases of the discover.




• Where such particular person complies and continues to stick to the
  discover, he shall not be arrested in respect of the offence referred
  to within the discover until, for causes to be recorded, the police
  officer believes that he ought to be arrested.




• Where such particular person, at any time, fails to adjust to the phrases
  of the discover or is unwilling to establish himself, the police
  officer might, topic to such orders as might have been handed by a
  competent Court on this behalf, arrest him for the offense
  talked about within the discover.

In Arnesh Kumar vs. State of Bihar &Anr,
the Supreme Court had inter-alia directed that the discover
of look in part 41A CrPC ought to be served on the accused
earlier than making the arrest. The Court had issued the
course to stop pointless arrests, which, within the opinion of
the Court, convey humiliation, curtail freedom and solid scars
perpetually.  The endeavor of the court docket was to make sure that police
officer don’t arrest accused unnecessarily and Magistrate don’t
authorize detention casually and mechanically. The Supreme Court
additionally gave the next instructions:

• All the State Governments to instruct its law enforcement officials not
  to mechanically arrest when a case beneath Section 498-A of the IPC
  is registered however to fulfill themselves in regards to the necessity for
  arrest beneath the parameters laid down above flowing from Section
  41, Cr.P.C.;




• All law enforcement officials be supplied with a verify record containing
  specified sub-clauses beneath Section 41(1)(b)(ii);




• The police officer shall ahead the guidelines duly filed and
  furnish the explanations and supplies which necessitated the arrest,
  whereas forwarding/producing the accused earlier than the Justice of the Peace for
  additional detention;




• The Magistrate whereas authorizing detention of the accused shall
  peruse the report furnished by the police officer in phrases
  aforesaid and solely after recording its satisfaction, the Magistrate
  will authorize detention;




• The determination to not arrest an accused, be forwarded to the
  Magistrate inside two weeks from the date of the establishment of the
  case with a duplicate to the Magistrate which can be prolonged by the
  Superintendent of police of the district for the explanations to be
  recorded in writing;




• Notice of look when it comes to Section 41A of Cr.P.C. be
  served on the accused inside two weeks from the date of establishment
  of the case, which can be prolonged by the Superintendent of Police
  of the District for the explanations to be recorded in writing;




• Failure to adjust to the instructions aforesaid shall aside
  from rendering the law enforcement officials involved chargeable for
  departmental motion, they shall even be liable to be punished for
  contempt of court docket to be instituted earlier than High Court having
  territorial jurisdiction.




• Authorizing detention with out recording causes as aforesaid by
  the judicial Magistrate involved shall be chargeable for departmental
  motion by the suitable High Court.

The judgment of the Supreme Court in Munawar Vs. The
State of M.P., because the police had didn’t challenge a
discover beneath Section 41A Cr.P.C., as mandated by the Supreme Court
in Arnesh Kumar Vs.the state of Bihar, the candidates
must have been straightway admitted to interim bail .

4. Section- 46 of the Code of the Criminal process (Cr.P.C.)
   stipulates the mode of arresting an accused particular person, together with
   submission to the custody by the accused, bodily touching the
   physique, or to a physique.

Except when the particular person to be arrested is accused of an offense
punishable by dying or life imprisonment, when the accused particular person
is making an attempt to withstand his arrest by changing into violent and
aggressive unnecessarily, or when the accused is making an attempt to flee,
the police officer should not trigger the dying of the accused particular person
whereas making an attempt to arrest the particular person.

5. Section 49 of the Code of the Criminal process (Cr.P.C.)
   stipulates that the particular person arrested shall not be subjected
   to extra restraint than is important to stop his
   escape.

In D.Ok. Basu vs. State of West Bengal Supreme
Court held that beneath Section 49, the police aren’t permitted to
use extra restraint than is important to stop the particular person’s
escape. The court docket additional said that the police officer could be
held in contempt of court docket and topic to a departmental inquiry if
they may not perform his duties appropriately. Any High Court with
jurisdiction over the case above could also be approached for such a
dispute.

6. Section 41B of the Code of the Criminal process (Cr.P.C.)
   states the arrest process and duties of the officer making an
   arrest. Unless the memorandum is attested by a member of his
   household, inform the particular person arrested that he has a proper to have a
   relative or a pal named by him be told of his arrest.




7. 41D of the Code of the Criminal process (Cr.P.C.) stipulates
   that when any particular person is arrested and interrogated by the police, he
   shall be entitled to fulfill an advocate of his alternative throughout
   interrogation, although not all through the interrogation.

Conclusion

Modern constitutional regulation has come a good distance when it comes to
defending and safeguarding the rights of individuals responsible of crimes.
Patrol officers are particularly inclined to creating errors since they
serve beneath public scrutiny and are anticipated to attain speedy
outcomes. India has a big downside with unlawful arrests and
custodial deaths, primarily attributable to illegal arrests. According
to India’s authorized system, which helps the idea of
“Innocent until proven guilty,” an
accused particular person has sure rights as an arrested particular person which are
untouched each time a police officer knocks on his door to make an
arrest. The Supreme Court of India in D.Ok. Basu vs. West Bengal is
not being successfully applied.  There ought to be correct
execution of provisions and tips said on this case to
in the end help in reducing the proportion of unlawful arrests
and ensuing custodial deaths.

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

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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