Rights of an Arrested Person

Rights of an Arrested Person | Overview

• Right to know the grounds of Arrest
• Information regarding the Right to be released on Bail
• Right to be taken before a Magistrate without Delay
• Rights at Trial
• Right to Consult a Legal Practitioner
• Rights of Free Legal Aid
• Right to be examined by a Medical Practitioner
• Right to Silence

The powers given to police to facilitate the making of arrest are not absolute. These powers are subject to certain restraints. These restraints are the rights of an arrested person. Thus, Rights of an arrested person are-

1.Right to know the grounds of Arrest

1.1) As per Section 50(1) of Cr.PC., every person who is being arrested by any police officer, without any warrant, is entitled to know the full particulars of offence for which he is being arrested, and that the police officer is duty bound to tell the accused such particulars and cannot deny it.

1.2) As per Section 55 of Cr.PC., when any person is being arrested by any police officer, who is deputed by a senior police officer, then such subordinate officer shall before making such arrest, notify the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. If this provision is not complied with, then the arrest would be rendered illegal.

1.3) if the person is being arrested under a warrant, then as per Section 75 of Cr.PC, any person who is executing such warrant must notify the person to be arrested, the particulars of such warrant, or even show such warrant if needed. If the substance of the warrant is not notified, the arrest would be unlawful.

1.4) the Constitution of India also confers this right as one of the fundamental rights. Article 22(2) of the constitution provides 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 choice.”

2.Information regarding the Right to be released on Bail

Any person who is to be arrested without a warrant and is not accused of a non-bailable offense has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount. This helps persons who are arrested for bailable offenses and are not aware of their right to be released on bail.

3.Right to be taken before a Magistrate without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. Further, the arrested person has to be confined in police station only and nowhere else, before taking him to the Magistrate. These matters have been provided in Cr.P.C. under sections 56 and 76 which are as given below:

Section 56 of Cr.PC. states that “Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station”.

Section 76 of Cr.PC. states that “Person arrested to be brought before Court without delay- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person”.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed 24 hours in any case. While calculating the time period of 24 hours, the time necessary for the journey is to be excluded. The same has been enumerated in the Constitution as a Fundamental Right under Article 22(2). This right has been created with a view to eliminating the possibility of police officials from extracting confessions or compelling a person to give information.

If the police officials fail to produce an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.

4.Rights at Trial

4.1) Right to a Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases, the trial may be held in camera.

4.2) Right to a Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however, the SC in the Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 has made it mandatory that the investigation in the trial must be conducted “as expeditiously as possible.”

In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused is arrested, the investigation for the trial has to be completed within the period of six months or stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.

5.Right to Consult a Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own choice. This has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which cannot be denied in any case. Section 50(3) of the Code also lays down that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice. This starts begins as soon as the person is arrested. The consultation with the lawyer may be in the presence of police officer but not within his hearing.

6.Rights of Free Legal Aid

The Supreme Court in the case of in Khatri(II) v. State of Bihar (1981) 1 SCC 627 has held that the state is under a constitutional obligation (implicit in Article 21) to provide free legal aid to an indigent accused person as is implicit in Article 21 of the Constitution. This right does not come into picture only at the time of trial but exists at the time when the accused is produced the first time before the magistrate, as also when remanded from time to time. The Supreme Court further states that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid.

7.Right to be examined by a Medical Practitioner

Section 54 of Cr.PC. enumerates this right. It states that: “Examination of arrested person by medical practitioner at the request of the arrested person- 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 offence or which will establish the commission by any other person of any offence 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 the purpose of vexation or delay or for defeating the ends of justice.”

8.Right to Silence

The ‘right to silence’ has been derived from common law principles. It means that normally courts or tribunals should not conclude that the person is guilty of any conduct merely because he has not responded to questions which were asked by the police or by the court. The breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement.

As per Article 20(3) of Constitution of India guarantees every person has been given a right against self-incrimination, it states that any person who has been accused of any offense, shall not be compelled to be a witness against himself. The same was again reiterated by a decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani (1978) 2 SCC 424; wherein it was held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation). The Supreme Court again in the year 2010, held that narco-analysis, brain mapping, and lie detector test are in violation of Article 20(3) of the Constitution of India.

Contributed by – Harshit Bhatia,

Delhi Metropolitan Education, GGSIPU