CRIMINAL PROCEDURE CODE

ASSINGMENT

1- What are the various rights available to an arrested person

The Indian legal system is based on the concept of, “innocent till proven
guilty”. The arrest of a person can be a violation of Article 21 of the
Constitution that states, “no person shall be deprived of his right to life and
personal liberty except a procedure established by law”. It means that the
procedure must be fair, clear and not arbitrarily or oppressive.

The various rights of an arrested person can be inferred from the Code of
Criminal Procedure, the  Constitution of India and various landmark
judgements.

Rights of an Arrested Person

1)Right to know the grounds of Arrest

 Section 50 of CrPC says that every police officer or any other person
who is authorised to arrest a person without a warrant should
inform the arrested person about the offence for which he is
arrested and other grounds for such an arrest. It is the duty of the
police officer and he cannot refuse it.
 Section 50A of CrPC obligates a person making an arrest to inform
of the arrest to any of his friends or relative or any other person in
his interest. The police officer should inform the arrested person
that he has a right to information about his arrest to the nominated
person as soon as he is put under custody.
 Section 55 of CrPC states that whenever a police officer has
authorised his subordinate to arrest any person without a warrant,
the subordinate officer needs to notify the person arrested of the
substance of written order that is given, specifying the offence and
other grounds of arrest.
 Section 75 of CrPC says that the police officer(or any other officer)
executing the warrant should notify the substance to the person
arrested and show him a warrant if it required.
 Article 22(1)of the Constitution of India also states that no police
officer should arrest any person without informing the ground of
arrest.
2) Right to be produced before the Magistrate
without unnecessary delay
 Section 55 of CrPC states that a police officer making an arrest
without a warrant should produce the arrested person without
unnecessary delay before the Magistrate having jurisdiction or a
police officer in charge of the police station, subject to the
conditions of the arrest.
 Section 76 of CrPC states that the police officer executing a warrant
of arrest should produce the arrested person before the court before
which he is required by law to produce the person. It states that the
person should be produced within 24 hours of arrest. While
calculating the time period of 24 hours, it must exclude the time
which is required for the journey from the place of detaining to the
Magistrate Court.
 Article 22(2) of the Constitution states that the police officer making
an arrest should be produced before the Magistrate within 24 hours
of arrest. If the police officer fails to produce before Magistrate
within 24 hours, he will be liable for wrongful detention.

3) Rights to be released on Bail

Subsection(2) of Section 50 of CrPC states that when a police officer arrests
any person without a warrant for an offence other than non-cognizable
offence; he shall inform him that he has a right to release on bail and to
make an arrangement for the sureties on his behalf.

4)  Rights to a fair trial

Any provision related to the right to a fair trial is not given in CrPC, but such
rights can be derived from the Constitution and the various judgements.

 Article 14 of the Constitution of states that ”all persons are equal
before the law”. It means that all the parties to the dispute should
be given equal treatment. The principle of natural justice should be
considered in respect of both the parties. Right to a speedy trial is
recognized in the case   Huissainara khatoon vs Home Secretary,
State of Bihar  [4], the court held- “the trial is to be disposed of as
expeditiously as possible”.

5) Right to consult a lawyer

  Section 41D of CrPC states the right of the prisoners to consult his
lawyer during interrogation.
 Article 22(1) of the constitution states that the arrested person has
a right to appoint a lawyer and be defended by the pleader of his
choice.
 Section 303 of CrPC states that when a person is alleged to have
committed an offence before the criminal court or against whom
proceedings have been initiated, has a right to be defended by a
legal practitioner of his choice.

6) Right to free Legal Aid

 Section 304 of CrPC states that when a trial is conducted before the
Court of Session, and the accused is not represented by the legal
practitioner, or when it appears that the accused has no sufficient
means to appoint a pleader then, the court may appoint a pleader
for his defence at the expense of the State.
 Article 39A obligates a state to provide free legal aid for the purpose
of securing justice. This right has also been explicitly given in the
case of  Khatri (II) VS State of Bihar   [5]. The court held that “to
provide free legal aid to the indigent accused person”. It is also
given at the time when the accused is produced before the
Magistrate for the first time along with time commences. The right
of the accused person 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, then it will vitiate the whole trial as void. In the
case of Sukh Das vs Union Territory of Arunachal Pradesh   [6], 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.

7) Right to keep silence

Right to keep silence is not recognized in any law but it can derive its
authority from CrPC and the Indian Evidence Act. This right is mainly related
to the statement and confession made in the court. Whenever a confession
or a statement is made in the court, it is the duty of the Magistrate to find,
that such a statement or the confession was made voluntarily or not. No
arrested person can be compelled to speak anything in the court.

Article 20 (2) states that no person can be compelled to be a witness against

himself. This is the principle of self- incrimination. This principle was
reiterated by the case of Nandini Satpathy vs P.L Dani  [7]. It stated, “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”.

8) Right to be Examined by the medical

practitioner
Section 54 of CrPC states that when the arrested person alleges that
examination of his body will lead to a fact which will disapprove the fact of
commission of an offence by him, or which will lead to commission of an
offence by any other person against his body, the court may order for
medical examination of such accused person at the request of him (accused)
unless the court is satisfied that such a request is made for the purpose of
defeating the justice.

Other Rights
 Section 55A of CrPC states that it shall be the duty of the person,
under whose custody the arrested person is to take reasonable care
of the health and safety of the accused.
 The arrested person is to be protected from cruel and inhuman
treatment.
 Section 358 of CrPC gives rights to the compensation to the
arrested person who was groundlessly arrested.
 Section 41A of CrPC states that the police officer may give the
notice to a person suspected of committing a cognizable offence to
appear before him at such date and place.
 Section 46 of CrPC prescribes the mode of the arrest. i.e submission
to custody, touching the body physically, or to a body. The police
officer should not cause death to the person while making an arrest
unless the arrestee is charged with an offence punishable with death
or life imprisonment.
 Section 49 of CrPC states that the police officer should not make
more restrained than in necessary for the escape. Restrain or
detention without an arrest is illegal.

In D.K Basu vs   State of West Bengal and others [8], this case is a landmark
judgement because it focuses “on the rights of the arrested person and it
also obligates the police officer to do certain activities”. The court also states
that if the police officer fails to perform his duty then he will be liable for
contempt of court as well as for the departmental actions. Such matter can
be instituted in any High Court having the jurisdiction over the matter.
In spite of various efforts in protecting the accused from the torture and
inhuman treatment, there are still instances of custodial deaths and the
police atrocities. So, the Supreme court issued 9 guidelines for the protection
of accused person and the amendment of various sections of CrPC:-

1. Section 41B– The police officer who is making an investigation must

bear visible, clear and accurate badge in which the name of the
police officer along with his designation is clearly mentioned.
2. The police officer making an arrest must prepare a cash memo
containing a date and time of arrest which should be attested by at
least one members who can be his family member or any
respectable person of a locality. The cash memo should be
countersigned by the arrested person.
3. Section 41D:- The arrested person is entitled to have a right to have
one friend, or relative or any other person who is having interest in
him informed about his arrest.
4. The arrestee must be informed about his right to have someone
informed about his right immediately when he is put under the
custody or is being detained.
5. Entry is to be made in the diary which shall disclose the information
relating to the arrested person and it shall also include the name of
the next friend to whom information regarding the arrest is made. It
also includes the name and the particulars of the police officers
under whose custody the arrestee is. An examination is to be
conducted at the request of the arrestee and the major and minor
injuries if any found on the body must be recorded. The inspection
memo must be signed by the police officials and the arrested
person.
6. The arrestee has the right to meet his lawyer during and throughout
the interrogation.
7. Copies of all documentation are to be sent to Magistrate for his
record. It also includes a memo of the arrest
8. Section 41C:- The court ordered for the establishment of state and
district headquarters, the police control room where the police
officer making an arrest shall inform within 12 hours of arrest and it
needs to be displayed on the conspicuous board.
9.
Yoginder Singh vs State of Punjab  [9]. The Court held that for the
enforcement of Article 21 and 22(1) it is necessary that:-

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.

Prem Shukla vs Delhi Administration   [10], the court held that “the prisoners
have a right not be handcuffed Fetterly or routinely unless the exceptional
circumstances arise”.

Conclusion
Custodial death and illegal arrest is a major problem in India. It infringes
Article 21 of the Constitution and also the basic human rights which is
available under Universal Declaration Of Human Rights. The guidelines issued
by the Supreme Court in D.K Basu vs State of West Bengal [11] is not
properly being implemented. Proper implementation of the provision and
guidelines can result in the decreasing number of an illegal arrest.
 2- Schedule -I of Cr PC

The Code of Criminal Procedure is proposed to present a method for

enforcement of Criminal Law. According to the First Schedule of Indian Penal
Code, the offences such as culpable homicide, murder, theft and rape are
classified into cognizable offences and bailable offences are classified as non-
cognizable offences. The First Schedule of Code under Indian Penal Code and
other laws into cognizable and non-cognizable offences.

In the cases of offences under any penal law, the offence which is punishable
with imprisonment for three years or more, the offence is cognizable and if
the punishment is imprisonment for less than three years then the offence is
non- cognizable. Section 2(c) and Section 2(1) of the Code defines the
Cognizable and Non- Cognizable Offences.

Offences Under Criminal Procedure Code

The Offences which are stated in Indian Penal Code(IPC) are referred to be
tried under the Court by following the procedure of CrPC. To find the
authenticity of a crime or as to know whether it is a criminal act or not the
Indian Penal Code(IPC)  is used. Therefore, the confirmation of the criminal
act leads to the prosecution of the case which is given in the Criminal
Procedure Code of India. The Code provides all necessary methods for finding
of crime, the arrest of suspects, collection of evidence, determination of guilt
or innocence of accused and execution of punishment on the guilty person.

Cognizable Offences or Cognizable Cases

Cognizable Offence means an offence which a Police Officer can arrest the
accused by the First Schedule or under any law. Cognizable Offences are the
offence in which a police officer can arrest a person or accused without
warrant. The offences that come under cognizable cases are more serious in
nature. Murder, Culpable Homicide and rape are categorized into the
cognizable offences. If a police officer in charge gets information of
commission of the cognizable offence, he has to record first information and
required to register the case to start the investigation. The police officer-in-
charge can investigate without any prior order from the court.

Examples Of Cognizable Offences

The Following are the examples of cognizable offences:

1. Murder
2. Rape
3. Kidnapping
 4. Dowry Death
5. Theft
6. Culpable Homicide
7. Waging War
8. Unnatural Offences.

Non Cognizable Offences Or Non Cognizable Cases

An offence in which a police officer is not empowered to arrest the accused
without a warrant.If a police officer. The non -cognizable offences are minor
offences. Assault, causing simple hurt are some of the non- cognizable
offences. The police in charge of the police station can record the  F.I.R only
with the prior permission from the Magistrate.

The following are the examples of non-cognizable offences:

1. Assault
2. Causing Simple Hurt
3. Cheating
4. Forgery

In the FIRST SCHEDULE of CRPC, the offences under IPC are classified in a tabular format with
heading of Section, Offence, Punishment, Cognizable or Non- Cognizable, Bailable or Non Bailable,
and By what Court triable.

CHAPTER V of Schedule I talks about offences of Abetment and offence

classification related abetment are defined under Section 109, 110, 111, 113, 114, 115, 116, 117,
118, 119 and 120 of Indian Penal Code 1860.

CHAPTER VA- talks about CRIMINAL CONSPIRACY under section 120B

CHAPTER VI - OFFENCE AGAINST THE STATE from Section 121, 121A, 122,123,
124, 124A, 125, 126, 127, 128, 129, 130
CHAPTER VII -OFFENCE RELATING TO THE ARMY, NAVY AND AIR FORCE from Section 131,
132,133, 134, 135, 136, 137, 138, and 140
CHAPTER VIII –OFFENCES AGAINST THE PUBLIC TRANQUILLITY
Sections 143 to 153, 153A, 153B, 154 to 158, 160 – 165, 165A, 166 to 171.

Sections 161 to 165 of The Indian Penal Code (45 of 1860) repealed by Prevention of Corruption
Act, 1988  (49 of 1988), sec. 31.   

CHAPTER IXA- OFFENCES RELATING TO ELECTIONS : Section 171 E, F, G, H, I, Sec 172 – 190

CHAPTER XI- FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE.: Section 193 – 216, 216A,
217 – 225, 225A, 225B, 227, 228, 228A, 229.

CHAPTER XII-OFFENCES RELATING TO COIN AND GOVERNMENT STAMPS

Section 231 – 263, 263A.
CHAPTER XIII- OFFENCES RELATING TO WEIGHT AND MEASURES Section 264 – 267

CHAPTER XIV-OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY, CONVENIENCE, DECENY AND
MORALS - Section 269 – 276

CHAPTER XV- OFFENCES RELATING TO RELIGION - Sec 295, 295A, 296 – 298

CHAPTER XVI - OFFENCES AFFECTING THE HUMAN BODY – Sect 302 – 304,
304A, 304B, 305 – 318, 323 – 338, 341 – 348, 352 – 355

CHAPTER XVII- OFFENCES AGAINST PROPERTY Section 379 – 382,

384 – 389, 392 – 404, 406 – 409, 411 – 414, 417 – 424, 426 – 440, 447 – 462

CHAPTER XVIII- OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY

MARKS Section – 465 – 469, 471 – 477, 477A, 482 – 489, 489A, B, C, D, E, 490.

CHAPTER XIX- CRIMINAL BREACH OF CONTRACTS OF SERVICE – Sec 491

CHAPTER XX- OFFENCES RELATING TO MARRIAGE. Sec 493 – 498

CHAPTER XXA- OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND – Sec

498A

Defamation – Sec 500 – 502

CHAPTER XXII- CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE –

Section 504 – 506
 Criminal Intimidation – 507, Act caused by inducing a person to believe that he will be
rendered an object of Divine displeasure – 508, Insult modesty of woman – 509, Appearing in a
public place, etc., in a State of intoxication, and causing annoyance to any person Sec 510.

CHAPTER XXIII- ATTEMPTS TO COMMIT OFFENCES. Sect 511

The Code of Criminal Procedure commonly called Criminal Procedure Code (CrPC) is the

main legislation on procedure for administration of substantive criminal law in India.[1] It was
enacted in 1973 and came into force on 1 April 1974.[2] It provides the machinery for the
investigation of crime, apprehension of suspected criminals, collection of evidence, determination
of guilt or innocence of the accused person and the determination of punishment of the guilty. It
also deals with public nuisance, prevention of offences and maintenance
of wife, child and parents.
At present, the act contains 484 sections,[3] 2 schedules and 56 forms. The sections are divided
into 37 chapters.
 CASE STUDY

1. Nandini Satpathy v. Dani (P.L.) & Anr – 1978 AIR 1025

Introduction
The Supreme Court of India in Nandini Satpathy vs. Dani (P.L.) And Anr case
gave an interpretation regarding the right of an accused person to be silent
while police interrogation in relation to Article 20(3) of the Indian
Constitution and Section 161(1) of the CrPC. Article 20 of the Constitution of
India provides fundamental rights to its citizen to be protected against any
criminal offences that stand against him that is Article 20(1) of the
Constitution is also known as Ex Post-facto which means that a person who is
charged for an offence can not be charged against any other act which is not
in violation of any existent act and also it says that a person will only be
charged for the penalty which is enforced at the time of the offence took
place.

For instance, A committed a crime in 1950 and was booked under IPC but
while A’s trial was in process in 1951 an amendment was introduced
regarding increasing the punishment for the violator, however, A will be
protected under Article 20(1) and he not will be punished under the amended
provisions of the law. Article 20(2) of the Constitution is known as double
jeopardy which means that no one can be punished twice for the same
crime. Article 20(3) of the Constitution is also known as self-incrimination
which means that this particular article gives a right to an accused person to
not stand a witness against himself i.e., a person who is booked in the
violation of any act or provision of the law has right to not give statements
as a witness and such person can also claim for it. Also, it is based on legal
maxim Nemo tenetur prodere accussare seipsum which states that no man is
bound to accuse himself.

Article 20(3) of the constitution is dealt with section 161 of the Code of
Criminal Procedure which says that while examining any person regarding
the charges he is booked for he has to answer every question of the
investigating officer truthfully in Nandini Sathpathy vs. P.L. Dani case by the
Supreme Court of India. However, this article will give an insight into the
right to remain silent of the accused in reference to the case law. 

Facts
The former CM of Orissa was booked under Section 5(2) read with
Section 5(1)(d) and (e) of the Prevention of Corruption Act, 1988 along
with Section 161, 165, 120B and 109 of the IPC by the Deputy
Superintendent of Police, Vigilance, Cuttack. The appellant along with other
persons who were involved in the disproportionate asset case was
interrogated on the basis of a written series of questions. Disproportionate
asset means when a person owns assets that exceed their total legal annual
income. The charges are that she during her tenure as the Chief Minister has
misused her political power and has gained illegal gratification which has
increased her wealth.

However, as her interrogation was on the process she imposed her

fundamental right under Article 20(3) that is right against self- incrimination
can also be referred to as the right to be silent against which a person is
booked. Again, because of this act, she was booked before the Sub-Divisional
Judicial Magistrate, Sadar, Cuttack under Section 179 of IPC on the
complaint of DSP, Vigilance, Cuttack and a summons was passed against her.

On this, the accused challenged the rationality of the power of the judicial
magistrate by moving to the High Court under Article 226 of the Indian
Constitution and Section 141 of the CrPC. But the High Court failed to answer
the limit of section 161(2) of CrPC when an accused imposes Article 20(3)
during police interrogation because of which the plea of the appellant was
rejected. And on receiving a certificate she appealed under Article 132(1) in
the Supreme Court. 

Issues
The following are the issues that arose from this case:

1. Do a suspected accused have a right to sanction their right to be

silent who has committed a criminal offence? 
2. What are the probable criteria for an accused to impose Article
20(3) while the investigation of the police is in the process? Can the
accuse also has an option to ignore questions which can expose his
act?
3. When does the shield of remaining silence come into action? Is it
only available to an accused in the court or does it protect them
from incriminating themself from the investigation of the police?
4. How does Article 20(3) cover the limit of the cryptic expression
when someone is forced to present against itself? 
5. When a person presents himself as a witness does it lead to a
testimony where a person can make themself guilty for wrongdoing
or from a series of answers obtained will it lead to proving or
demonstrating guilt?
6. What are the boundaries of section 161 of CrPC? Do answers which
are of inculpatory characteristics that have a probable chance of
exposing a person while an investigation or is in the trail are
allowed?
 7. Who is referred to in section 161 of CrPc when ‘any person’ is
inferred? Is it only related to a witness or does it also include
accuse?
8. At what stage does an answer result in self-incrimination or holds
the propensity to expose? How will a distinction be set between a
nocent-innocent, acceptable and barred interrogation?
9. Do section 179 of the IPC have mens rea as its essential ingredient
and if it is then what are its characteristics? Can an accuse will be
salvaged when any answer includes the capability of exposing their
guilt?   
10. When does section 161 of the CrPC and section 179 of the IPC
sets the boundary for benefit of doubt? 

Arguments 

Appellant
The arguments that are given by the lawyer of the appellant are as follows:

1. Section 161(1) of CrPC does not include an accused with the ambit
of ‘any person’.
2. The appellant also contended that when a series of questions are
being asked from the accused will form a chain of a link to the case
of the prosecution but questions which are not related will lead the
appellant in exposing to other criminal charge or charges because
there are other cases against which a charge-sheet can be
produced. 
3. The umbrella of self-incrimination operates when the accused
answer to any question can create an inculpatory gleam. 

Respondent
The arguments that are given by the learned counsel of the respondent side
contented that the Article 20(3) and section 161(2) of CrPC does not go hand
in hand during the stage of police interrogation, in fact, Article 20(3) can only
be operated when an accused is presented in the court for trial.   

Judgment
In the Nandini Satpathy vs. P.L.Dani case, the appellant was Nandini
Satpathy and the respondent was P.L.Dani. The judgment was given by a  3-
bench judge that includes  Justice JS, Justice V.D.Tulzapurkar, and Justice
V.R. Krishna Iyer. 

For answering the defendant’s and respondent’s arguments the court moved
to answer the first argument that whether Section 160 and Section 161 of
CrPC holds power during police interrogation? To answer this query the court
quoted the judgment of the Privy council in the case of Pakala Narayana
Swami v. Emperor where the judge gave a verdict regarding the limits of
section 161 of CrPC and said that ‘any person’ includes an accused and
suspected wrongdoer who is believed to be familiar with the facts of the case
by the police and this same verdict was given in Mahabir Mandal vs. the
State of Bihar.

The Court moved forward to the question of the constitutional validity of

Article 20(3) i.e. when does an accused is protected from answering
questions that can cause self-incrimination? To this, the court concluded that
a person has his fundamental rights intact even if he is not in the court for
claiming their right to be silent. 

However, for explaining its ambit the court took the reference of M.P.
Sharma’s case and said that the umbrella of Article 20 (3) applies not only in
the Courtroom where an accused is compelled to self-incriminate himself for
testimony but is also protected when he is forced to self-incriminatory
statements at the time of police investigation. Hence it extends to suspected
accused against whom FIR is being lodged and all investigative processes
which can support the charges of the prosecution. 

Also, while explaining the ambit of Article 20(3) the court took cognizance of
the cruel and brutal methodology that police take against an accused so that
he accepts his wrongdoing. So, the framers of the constitution considered the
mental and physical torture an accused person has to face while police
interrogate because of which the ambit of Article 20 (3) is applied from the
initial stage of any criminal trial i.e. when the police start their interrogation
with the accused.

The court further gave a distinction between an incriminatory statement and

a compelled testimony and mentioned that it is not necessary that all
relevant answers are criminatory and statements that appear to be
criminatory cannot be said to be a confession. The likelihood of exposing
someone’s criminal charges are much broader than the charges against
which he is summoned. So, for settling the issue the court has to take into
consideration various factors and when an accused is answering the
questions it should be innocent in its characters but the result of every
answer he is giving should prove him guilty. The accused is expected to
answer those questions which do not criminate himself. 
Section 179 of IPC includes mens rea when an accused person does not
intentionally turn down the claims but unknowingly neglects the charges.
Also, the benefit of the doubt is awarded when the accused with his
explanation points out acceptable grounds for doubt and he cannot be forced
to do otherwise unless he is restricted to claim for his privileges. 

Hence, Article 20(3) with section 161(2) of CrPC has a broad concept and it
protects the right to be silent. Therefore, the court accepted the appeal of
the appellant. 
2. M.C. Abraham & Anr, A.K. Dhote, J.F. Salve & Anr v. State of Maharashtra – (2003) 2 SCC 649