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RIGHTS OF AN ARRESTED PERSONS

TABLE OF CONTENTS

S.NO. TITLE PAGE NO.

1 Introduction 2

2 Arrest 3

3 Types of arrest 3

4 Rights of an arrested person 3-8

5 Right to know the grounds of arrest 4

6 Right to be produced before the magistrate without unnecessary delay 5

7 Rights to be released on bail 6

8 Right to a fair trial 6

9 Right to consult a lawyer 7

10 Right to free legal aid 7

11 Right to keep silence 7

12 Right to be examined by the medical practitioner 8

13 Other rights 8

14 Conclusion 10

15 References 11

16 List of cases 12
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RIGHTS OF AN ARRESTED PERSON.

INTRODUCTION:

“All human beings are born free and equal in dignity and rights and are endowed with reason
and conscience and should act towards one another in the spirit of common brotherhood and
conscience”.1

All human beings are born with the Right to Life, Right to Personal Liberty, etc. Human rights are
enshrined under the Constitution of India and the Universal Declaration of Human Rights. A
person cannot be denied of his rights on the grounds that he/she has been detained. The various
rights of an arrested person can be inferred from the Code of Criminal Procedure, the Constitution
of India and various landmark judgements.

Innocent until proven guilty”, in context to this phrase, it’s very obvious that in India the burden
of proof to prove any allegation lies upon the prosecution. Until and unless, an accused is proved
guilty, he or she cannot be considered as a criminal. An accused who is sent behind the bars and
undergoing trial is considered as an undertrial prisoner, people often mistook an accused person
for a criminal. In reality, an accused person is an entity who has been alleged to have committed
an offence.

Under the criminal justice system, an accused is a person against whom the First Information
Report is registered. The law structure of India is such that it does not offer rights for the victims
or prosecution but it also enshrines rights for an accused under which they can seek protection
from criminal liability. The intent behind this gesture was basically to safeguard the rights of an
accused person involved in a criminal trial who are mostly prone to get their rights violated.

1 Article 1 of Universal Declaration of Human Rights

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ARREST:

Arrest in the legal sense under CrPC means taking into custody of another person under the
authority of law for the purpose of holding and detaining him to answer a criminal charge and
preventing the commission of an offence.

Section 46 of CrPC prescribes the mode of the arrest. The words ‘arrest’ and ‘custody’ are not
synonyms. In every arrest, there is custody, but vice versa is not true.

TYPES OF ARREST:

1. Arrest by police without warrant (in case of cognizable offences)- Section 41 of CrPC
2. Arrest by police with warrant (in case of non-cognizable offences) - Section 42 of CrPC
3. Arrest by private person – Section 43 of CrPC
4. Arrest by Magistrates – Section 44 of CrPC
5. Protection of members of armed forces from arrest (Exception) – Section 45 of CrPC.

RIGHTS OF AN ARRESTED PERSON:

There are different sets of laws which provide different sets of rights to a person accused of an
offence. The need for these rights comes along with the progress of the stages of a criminal
matter, being the pre-trial stage rights, trial stage and post-trial stage rights. In general, the rights
of an accused person whether at pre- trial, trial or post- trial stage are as follows.

A. Right to know the grounds of arrest

B. Right to be produced before the magistrate without unnecessary delay
C. Right to be released on bail
D. Right to a fair trial
E. Right to consult a lawyer
F. Right to free legal aid
G. Right to keep silence
H. Right to be examined by the medical practitioner
I. Other rights.
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A. RIGHT TO KNOW THE GROUNDS OF ARREST:

Section 50 of CrPC says that every police officer or any other person who is authorized 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. The rules emerging from decisions such as Joginder Singh v. State of U.P.2
and D.K. Basu v. State of West Bengal3 have been enacted in section 50-A making 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.4

Section 55 of CrPC states that whenever a police officer has authorized 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.

This is a precious right of the arrested person and has been recognized by the Constitution as one
of the fundamental rights.5 Article 22(1) of the Constitution of India also states that no police
officer should arrest any person without informing the ground of arrest.

In Ram Bahadur Rai vs State of Bihar6, it was held that grounds should be clearly and explicitly
mentioned and nothing should be left for imagination.

2 (1994) 4 SCC 260

3 (1997) 1 SCC 416
4 R.V. Kelkar’s Lectures on Criminal Procedure including Probation and Juvenile Justice – Rights of arrested

person-page no: 30
5 Article 22(1) of the Constitution of India
6 AIR 1975 SC 223
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In the case of Udaybhan Shuki vs State of Uttar Pradesh7, the court held that right to be informed
about grounds of arrest is a valuable right of the detained person and such people should not be
deprived of it.

In Harikishen vs State of Maharashtra8 it was held that ground of arrest should be communicated
in a language that is understood by the person who is arrested.

B. RIGHT TO BE PRODUCED BEFORE THE MAGISTRATE WITHOUT

UNNECESSARY 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. 9 These matters have been provided in Cr.P.C.
under sections 56 and 76.

Section 56 of CrPC. 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 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

7 1999 CRI LJ 274

8 AIR 1962 SC 911
9
What are the rights of an arrested person? -
by Dr. Kalpna Sharma, Assistant Professor, LC II, University of Delhi – available at
http://lc2.du.ac.in/DATA/Rights%20of%20Arrested%20person%20(Dr.%20Kalpna%20Sharma).pdf
 Page |6

the Magistrate Court. If it is not complied with, the detention shall be unlawful (Manoj v. State of
M.P.)10. When the arrested person is produced before the magistrate it is his duty either to release
him on bail or to remand him. The Patna High Court has ruled that such remand would continue
till the trial is over. (Hari Om Prasad v. State of Bihar)11. Illegal detention may entail award of
compensation by the Court. (D.G. and I.G. of Police v. Prem Sagar)12. The tendency of certain
officers authorized to arrest, to note the time of arrest in such a manner that the accused’s
production before the magistrate was well within 24 hours of the arrest came to be criticized by
the Bombay High Court. The Court ruled that the arrest commences with the restraint placed on
the liberty of the accused and not with the time of arrest recorded by the arresting officer. ( Ashak
Hussain Allah Detha alias Siddique v. Assistant Collector of Customs)13

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.

C. RIGHTS TO BE RELEASED ON BAIL:

Section 50(2) 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.

D. 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 14, the court held- “the trial is to be
disposed of as expeditiously as possible”.

10 (1999) 3 SCC 715: 1999 SCC (Cri) 478: 1999 Cri LJ 2095 (SC)
11 1999 Cri LJ 4400 (Pat HC)
12 (1999) 5 SCC 700: 1999 SCC (Cri) 1036: 1999 Cri LJ 1036 (SC)
13 1990 Cri LJ 2201 at p. 2205 at p. 2205 (Bom Hc)
14 1979 SCR (3) 532
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E. 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.

F. 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 defense 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 Bihar15. 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 16, 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.

G. 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

15 1981 SCC (1) 627

16 1986 SCR (1) 590
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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 Dani17. 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”.

H. 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.

I. 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.

17 1978 SCR (3) 608

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In D.K Basu vs State of West Bengal and others18, 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:-

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.

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.

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.

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.

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.

The arrestee has the right to meet his lawyer during and throughout the interrogation.

18 (1997) 1 SCC 416

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Copies of all documentation are to be sent to Magistrate for his record. It also includes a memo of
the arrest

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.

Yoginder Singh vs State of Punjab19 . The Court held that for the enforcement of Article 21 and
22(1) it is necessary that:-

6. The arrestee has the right to have informed about his arrest to any of its friends, relative or
any other person in his interest.
7. The police officer should aware of the arrestee about his right immediately when he is
brought under the custody.
8. 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 Administration20 , 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
Bengal21is not properly being implemented. Proper implementation of the provision and
guidelines can result in the decreasing number of an illegal arrest. this case was the landmark
judgement which talks about the rights of the arrested person and also obligates the police officer
to do certain activities which has been imposed on him. Also it has been stated that it is the duty
of the police officer to inform the accused about the grounds and offence which he has committed
and if the police officer fails in performing his duty he will be punished for the violation of law.

19 1980 SCR (3) 855

20 AIR 1980 SC 1535
21 (1997) 1 SCC 416
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REFERENCES:

BOOKS:

1. R.V. Kelkar’s Lectures on Criminal Procedure including probation and Juvenile Justice,
Fourth Edition by K.N. Chandrasekharan Pillai (Eastern Book Company).

STATUTES:

1. The Code of Criminal procedure, 1973.

2. The Constitution of India, 1950.

WEBSITES:

1. www.legalserviceindia.com
2. www.helplinelaw.com
3. http://blog.ipleaders.in
4. www.legodesk.com
5. www.latestlaws.com
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LIST OF CASES:

1. Joginder Singh v. State of Uttar Pradesh - (1994) 4 SCC 260

2. D.K. Basu v. State of West Bengal - (1997) 1 SCC 416

3. Ram Bahadur Rai v. State of Bihar - AIR 1975 SC 223

4. Udaybhan Shuki v. State of Uttar Pradesh - 1999 CRI LJ 274

5. Harikishen v. State of Maharastra - AIR 1962 SC 911

6. Manoj v. State of Madhya Pradesh - (1999) 3 SCC 715: 1999 SCC (Cri) 478: 1999 Cri

LJ 2095 (SC)

7. Hari Om Prasad v. State of Bihar - (1999) Cri LJ 4400 (Patna HC)

8. D.G. and I.G. of Police v. Prem Sagar - (1999) 5 SCC 700: 1999 SCC (Cri) 1036: 1999

Cri LJ 1036 (SC)

9. Ashak Hussain Allah Detha alias Siddique v. Assistant Collector of Customs - 1990 Cri

LJ 2201

10. Huissainara Khatoon v. Home Secretarty, State of Bihar - 1979 SCR (3) 532

11. Khatri v. State of Bihar - 1981 SCC (1) 627

12. Sukh Das v. Union Territory of Arunachal Pradesh - 1986 SCR (1) 590

13. Nandini Satpathy v. P.L. Dani - 1978 SCR (3) 608

14. Yoginder Singh v. State of Punjab - 1980 SCR (3) 855

15. Prem Shukla v. Delhi Administration - AIR 1980 SC 1535.