Subject: Code of Criminal Procedur-I

B.A.LL.B-VIIIth Sem
Subject Teacher: Dr. Md. Junaid
Teaching Material of Unit-III-(B)
Topic: Rights of Arrested Person

Rights of Arrested Person

The benefit of the presumption of innocence of the accused till the time he is actually found
guilty at the ending of a trial substantiated with evidence, is one of the basic tenets of our legal
system. It is a characteristic of our democratic society that even the rights of the accused are
deemed to be sacrosanct, and even though he is charged with an offence however that does not
render him as a non-person. Our statute is quite careful towards anyone’s “personal liberty” and
hence doesn’t permit the detention of any person without proper legal sanction.

It is provided by the article 21 of our constitution that there will be no person who shall be
deprived of his life or personal liberty except according to procedure established by law. The
procedure laid down by this article must be followed in a ‘right, just and fair’ and not in any
arbitrary, fanciful or oppressive manner. It is expected that the arrest should not only be legal but
justified also. Even the Constitution of India, recognizes the rights of arrested person under the
Fundamental Rights.

The accused in India are afforded certain rights, the most basic of which are found in the Indian
Constitution. The general theory behind these rights is that the government has enormous
resources available to it for the prosecution of individuals, and individuals therefore are entitled
to some protection from misuse of those powers by the government. An accused has certain
rights during the course of any investigation; enquiry or trial of an offence with which he is
charged and he should be protected against arbitrary or illegal arrest. Police have a wide powers
conferred on them to arrest any person under Cognizable offence without going to magistrate, so
Court should be vigilant to see that theses powers are not abused for lightly used for personal
benefits. No arrest can be made on mere suspicion or information. Even private person cannot
follow and arrest a person on the statement of another person, however impeachable it is.
Though the police has been given various powers for facilitating the making of arrests, the
powers are subject to certain restraints. These restraints are primarily provided for the protection
of the interests of the person to be arrested, and also of the society at large. The imposition of the
restraints can be considered, to an extent, as the recognition of the rights of the arrested person.
There are, however, some other provisions which have rather more expressly and directly created
important rights in favour of the arrested person.

Rights of Arrested Person under CRPC

Right to Know about Grounds of Arrest-Section 50

Section 50- Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds for
such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a
non- bailable offence, 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.

Section 50(1) of the Code of Criminal Procedure, 1973 provides that every person being arrested
without a warrant (other than under the preventive detention measures) has a right to be
informed, forthwith, of the particulars of the offense or grounds of his arrest. Section 50(2) of the
Code further provides that if the arrest is made without a warrant in a bailable case, the accused
should be informed of his right to be released on bail after furnishing sureties. Arrest by police
without a warrant is enumerated under section 42 of the Code, whereas, the arrest under a
warrant is detailed under section 70 of the Code. The most important difference between the two
forms of arrest lies in the fact that in the case of arrest by a warrant of the court, before the issue
of such a warrant there is an application of a judicial mind and hence, can be stated to be of
lesser consequences to the human rights of the accused person, in comparison to an arrest of an
accused person by the police without such a warrant.
The police officer shall inform the arrested person of his rights under sub-section (1) as soon as
he is brought to the police station. An entry of the fact as to who has been informed of the arrest
of such form as may be prescribed in this behalf by the State Government. It shall be the duty of
the Magistrate before whom such arrested person produced, to satisfy himself that the
requirements of sub-section (2) and sub-section (3) have been complied with in respect of such
arrested person. Right to be informed the accused for right to bail. Section 50 (2) of Cr. P.C.:
Where a police officer arrests without warrant any person other than a person accused of a non-
bailable offence, 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 be produced the accused before the
Magistrate without delay. Section 56 of Cr. P.C.: Person arrested to be taken before Magistrate
or officer in charge of police station.

Objective

Timely information of the grounds of arrest serves the arrested person in many ways. It gives
him an opportunity to remove any mistake, misapprehension or misunderstanding, if any, in the
mind of the arresting authority. It also enables him to apply for bail, or for a writ of habeas
corpus, or to make other expeditious arrangements for his defence.

Under Section 50-A CrPC it obligatory on the part of the police officer not only to inform the
friend or relative of the arrested person about his arrest etc., but also to make an entry in a
register maintained by the police. The Magistrate is also under an obligation to satisfy himself
about the compliance of the law by the police in this regard.

Right to be informed of right to Bail

Every police officer arresting, without a warrant, any person other than a person accused of a
non-bailable offence, is required to inform the person arrested that he is entitled to be released on
bail and that he may arrange for sureties on his behalf under Section 50(2) CrPC. Only when he
fails to arrange sureties he need not be released on bail.

Obligation of Information about Arrest

Section 50A – Obligation of person making arrest to inform about the arrest to inform about the
arrest, etc., to a nominated person
 1. 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 for the purpose of giving such information.

2. The police officer shall inform the arrested person of his rights under subsection (1) as
soon as he is brought to the police station.

3. An entry of the fact as to who has been informed of the arrest of such person shall be
made in a book to be kept in the police station in such form as may be prescribed in this
behalf by the State Government.

4. It shall be the duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of Sub-Section (2) and Sub-Section (3) have been
complied with in respect of such arrested person.

Notification of substance of written order

Section 55 – Procedure when police officer deputes subordinate to arrest without warrant

1. 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 an order in
writing, specifying the person to be arrested and the offence or other cause for which the
arrest is to be made 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.

Notification of substance of warrant

Section 75-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.

Right to be produced before a Magistrate without delay

In case of every arrest, whether the arrest has been made with or without a warrant, the person
arresting is required, without unnecessary delay and subject to the provisions regarding bail, to
produce the arrested person before the Magistrate or officer-in-charge of a police station having
jurisdiction in the case under Sections 56 and 76 of CrPC.

Section 76- 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.

Article 22(2)- Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty four hours of such arrest excluding the time
necessary for the journey from the place of arrest 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.

Right to consult a Legal Practitioner

Both the Constitution and the provisions of the CrPC respectively recognize the right of every
arrested person to consult a legal practitioner of his choice under Article 22(1) and Section 303
of CrPC. The right begins from the moment of arrest. The consultation with the lawyer may be in
the presence of the police officer but not within his hearing.

Section 303 CRPC-Any person accused of an offence before a Criminal Court, or against whom
proceedings are instituted under this Code, may of right be defended by a pleader of his choice.

Article 22 (1)- 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.

Right of an arrested Indigent Person to free legal aid and to be informed about it

In Khatri v. State of Bihar, (1981), the Supreme Court has held that the State is under a
constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused
person, and that this constitutional obligation to provide legal aid does not arise only when the
trial commences but also when the accused is for the first time produced before the Magistrate as
also when he is remanded from time to time. However, this constitutional right of an indigent
accused to get free legal aid may prove to be illusory unless he is promptly and duly informed
about it by the court when he is produced before it. The Supreme Court has therefore cast a duty
on all Magistrates and courts to inform the indigent accused about his right to get free legal aid.

Article 39-A directs the State to ensure that the operation of the legal system promotes justice on
a basis of 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 by reason of economic or other disabilities.

Right to be Accompanied by Lawyer during Interrogation

Section 41D – Right of arrested person to meet an advocate of his choice during interrogation.

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 interrogation.

Right to be examined by a Medical practitioner

If any arrested person 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, then the Magistrate, on the
request of the arrested person, is required to direct the examination of his body by a registered
medical practitioner. However, the Magistrate need not give such a direction if he considers that
the request for medical examination has been made by the arrested person for the purpose of
vexation or delay or for defeating the ends of justice under Section 54 CrPC.

Section 54 – Examination of arrested person by medical officer

1. When any person is arrested, he shall be examined by a medical officer in the service of
Central or State Government, and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made;
 Provided that where the arrested person is a female, the examination of the body shall be
made only by or under the supervision of a female medical officer, and in case the female
medical officer is not available, by a female registered medical practitioner.

2. The medical officer or a registered medical practitioner so examining the arrested person
shall prepare the record of such examination, mentioning therein any injuries or marks of
violence upon the person arrested, and the approximate time when such injuries or marks
may have been inflicted.

3. Where an examination is made under sub-section (1), a copy of the report of such
examination shall be furnished by the medical officer or registered medical practitioner,
as the case may be, to the arrested person or the person nominated by such arrested
person.

Cases

In re, Madhu Limaye (1968), in this case Madhu Limaye, Member of the Lok Sabha and several
other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the
Supreme Court under Article 32 mentioning that he along with his companions had been arrested
but had not been communicated the reasons or the grounds for arrest. One of the contentions
raised by Madhu Limaye was that there was a violation of the mandatory provisions of Article 22
(1) of the Constitution. The Supreme Court observed that Article 22 (1) embodies a rule which
has always been regarded as vital and fundamental for safeguarding personal liberty in all legal
systems where the Rule of Law prevails. The court further observed that the two requirements of
Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to
remove any mistake, misapprehension or misunderstanding in the minds of the arresting
authority and, also to know exactly what the accusation against him is so that he can exercise the
second right, namely of consulting a legal practitioner of his choice and to be defended by him.

In Nilabati Behera v. State of Orissa and Ors.; (1993), a three Judge bench of Supreme Court
held, “It is an obligation of the State, to ensure that there is no infringement of the indefeasible
rights of a citizen to life, except in accordance with law while the citizen is in its custody.
Sukh Das vs Union Territory of Arunachal Pradesh (1978), the court held:- “The right of
indigent accused cannot be denied even when the accused fails to apply for it”. If the state fails
to provide legal aid to the indigent accused person it will vitiate the whole trial as void.

Nandini Satpathy vs P.L Dani (1997). Court held, “No one can force any person to give any
statement or to answer questions and the accused person has a right to keep silence during the
process of interrogation”.

Yoginder Singh vs State of Punjab [1980]. The Court held :

1. The arrestee has the right to have informed about his arrest to any of its friends, relative
or any other person in his interest.

2. The police officer should aware of the arrestee about his right immediately when he is
brought under the custody.

3. The entry must be made in a diary regarding the name of the person who has been
informed about the arrest.

Joginder Kumar v. State Of U.P(1994)

In this case The petitioner, Joginder Kumar, a young lawyer aged 28 was called to the office of
the Senior Superintendent of Police [SSP], Ghaziabad in connection with some inquiries. He was
accompanied by friends and his brother, who were told by the police that he would be released in
the evening. But Joginder Kumar was taken to a police station with the assurance that he would
be released the next day. Next day, too he was not released as the police wanted his help in
making further inquiries. When his family went to the police station on the third day, they found
that he had been taken to an undisclosed location. In effect, Joginder Kumar was illegally
detained over a period of five days. His family had to file a habeas corpus writ petition with the
Supreme Court to find out his whereabouts. The Court issued notices to the State of Uttar
Pradesh and to the SSP to immediately produce Joginder Kumar and answer why he was
detained for five days without a valid reason; why his detention was not recorded by the police in
its diary; and why he was not produced before a magistrate.

The Court observed:

“No arrest can be made because it is lawful for the Police Officer to do so. The existence of the
power to arrest is one thing. The justification for the exercise of it is quite another. The Police
Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in
police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a
person. No arrest can be made in a routine manner on a mere allegation of commission of an
offence made against a person. It would be prudent for a Police Officer in the interest of
protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest
should be made without a reasonable satisfaction reached after some investigation as to the
genuineness and bonafides of a complaint and a reasonable belief both as to the person’s
complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious
matter. The recommendations of the Police Commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom. A person is not liable to
arrest merely on the suspicion of complicity in an offence. There must be some reasonable
justification in the opinion of the Officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to
a person to attend the Station House and not to leave Station without permission would do.”

Prem Shukla vs Delhi Administration [1997], the court held that “the prisoners have a right not
be handcuffed Fetterly or routinely unless the exceptional circumstances arise”.

D.K.Basu v. State of West Bengal (1997), SC have laid down the following guidelines for the
police who are in to investigation and policing:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the arrestee must be recorded
in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at
the time of arrest and such memo shall be attested by at least one witness, who may either be a
member of the family of the arrestee or a respectable person of the locality from where the arrest
is made. It shall also be countersigned by the arrestee and shall contain the time and date of
arrest.
(3) The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or town through the
Legal Aid Organization in the district and the police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arrest.

(4) The arrestee should, where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any present on his/her body must be recorded at the time. The
“inspection memo” must be signed both by the arrestee and the police officer effecting the arrest
and its copy provided to the arrestee.

(5) The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors appointed by the
Director, Health Services of the State or Union Territory concerned. The Director, Health
Services should prepare such a panel for all tehsils and districts as well.

(6) Copies of all the documents including the memo of arrest referred to above should be sent to
the Illaqa Magistrate for his record.

(7) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
interrogation.

(8) A police Control Room should be provided at all districts and State Head Quarters, where
information regarding the arrest and the place of custody of the arrestee shall be communicated
by the officer causing the arrest, within 12 hours of effecting the arrest and at the Police Control
Room it should be displayed on a conspicuous Notice board.

Failure to comply with the requirements herein above mentioned shall, apart from rendering the
official concerned liable for departmental action, also render him liable to be punished for
contempt of court and the proceedings for contempt of court may be instituted in any High Court
of the county having territorial jurisdiction over the matter.

The right to compensation for the victims of unlawful arrest and detention has been recognized
by the Supreme Court in Nilabati Behera v. State of Orissa (1993)held Section 358 of CrPC
provides for compensation to persons groundlessly arrested. As per the section the police officer
who made an arrest of a person without any valid reason is suppose to pay compensation under
the order of the magistrate.

Probable Questions

1. Define Arrest and discuss the basic rights of arrested persons.

2. Explain in detail the various kinds of rights available to a person who is arrested for any
offence.
3. Explain the objective of rights of arrested persons
4. With the help of decides case laws explain the procedure followed by police in respect to
arrest of any person