Rights of a person being arrested

Kunal Kherajani
Author’s note
I was watching a typical murder mystery movie the other day and the protagonist gets arrested
and was taken to the police station and like any other movie was subjected to police brutality.
My mind couldn't help but wonder if such a situation happened to someone in real life, what
kinds of rights are made for them.
The thought of getting arrested is scary in itself and such a thing happening to someone would
leave them shocked at the moment, and they won’t know what to do. To make sure something
wrong doesn’t happen in such a situation, we have various kinds of rights for the same. So let me
present you with a guide to the rights of an arrested person.
Happy Reading!

Table of Contents
1. Meaning of Arrest
2. Procedure of being arrested
3. Right to know the grounds of arrest
4. Right To Be Taken Before A Magistrate Without Delay
5. Information Regarding The Right To Be Released On Bail
6. Rights at Trial
7. Right to consult a Lawyer
8. Right of free legal aid
9. Right to Silence
10. Right to be examined by a doctor
11. Additional rights available to an arrested person
12. Conclusion

Meaning of Arrest
The Apex court defined arrest as the act of being taken into custody to be formally charged with
a crime. The court observed that in a Constitutional sense, it means the seizure of the body of a
person.1
Elements necessary to constitute arrest
Following are the essential elements to constitute arrest;
● There must be an intent to arrest under legal authority.

1 Roshan Beevi v. Joint Secy., 1984 (15) ELT 289 Mad

 ● There must be a seizure or detention of the person.
● The person must be in the legal custody of the arresting person.
● The act of arrest must include the actual confining of the person and not mere oral
declaration of arrest.2
If a woman is to be arrested, her submission to custody is oral and a male police officer cannot
touch her for making the arrest. Only a female officer can do that. Also, no woman can be
arrested after sunset or before sunrise, other than exceptional cases where the female officer has
to take prior permission from the magistrate.34

Procedure of being arrested

When a person is being arrested they are obviously panicked and think if this is a legitimate
arrest or not. If you are being arrested by the police, following are the procedures that are
mandatory for them to follow and for you to cross-check in case of an arrest;
1. The officer that arrests you has to wear an accurate, visible and clear identification of
their name for easy identification.5
2. Prepare a memorandum for arrest of the person which should be signed by the witness
who can be either a family member or a neighbour. The witness has to be countersigned
by the person being arrested.6
3. If the memorandum is signed by a neighbour, it is the duty of the police to inform the
person arrested that they have a right to inform a relative or a friend, named by them,
about their arrest.7
4. If an arrest is being made without a warrant or the order of a magistrate, it must be a
known crime or the person must have been found in possession of something illegal or
who obstructs a police officer while he is in the execution of his duty etc.8
5. The entry of the arrest with complete details must be made in the police diary which must
include the name of the person who has been informed about the arrest.9

2 Ibid; Section 41B(c)

3 Article 22(1)
4 Ibid; Section 50A
5 Ibid; Section 55
6 Ibid; Section 75
7 Article 22(2)
8 Code of Criminal Procedure; Section 76
9 Article 22(1)
 6. In making an arrest the police officer or other person making the same shall actually
touch or confine the body of the person to be arrested, unless there be a submission to the
custody by word or action.10

Right to know the grounds of arrest

The right to be informed on why a person is arrested helps one in many ways such as preparing
for bail or for preparing for defence in court. The Indian Constitution states that no police officer
can arrest any individual without telling the reason because of which they are getting arrested.11
Also, the Code of Criminal Procedure states that;
● It is the duty of a police officer, with authority to arrest someone without a warrant, to
inform the person the reason for their arrest.12
● It is compulsory for the arresting police officer to inform the relative or a friend about the
arrest of the person, as nominated by him.13
● If a police official authorizes their junior to arrest a person without a warrant, the junior
officer shall show the order of delegation, which is the order which shows that the junior
officer has been authorised to make this arrest, to the arrested person.14
● The arresting police officer must notify the content of the warrant to the person being
arrested and also show it to them if required.15
In the Madhu Limaye case, Madhu Liyame, members of Lok Sabha and several others were
arrested but were not told the reason for the same. For this single reason the court released
them.16

Right To Be Taken Before A Magistrate Without Delay

● The Indian constitution states that a police official making the arrest has to present the
arrested person in front of a magistrate within 24 hours from the arrest. If any arresting
officers delay this, they are liable for wrongful detention;17
● The Code of Criminal Procedure states the same.18

10 Code of Criminal Procedure; Section 41D

11 Ibid; Section 303
12 Code of Criminal Procedure; Section 54
13 Ibid; Section 55A
14 Ibid; Section 358
15 Yoginder Singh v/s State of Punjab, 1980 SCR (3)855
16 1970 (0) BLJR 392, 1969 CriLJ 1440, (1969) 1 SCC 292, 1969 3 SCR 154
17 Ibid; Section 41B(a)
18 Ibid; Section 41B(b)
 ● The CrPC also states that a police officer making an arrest without a warrant must present
the arrested person before a magistrate or a police officer in charge of the police station,
without any delay.19

Information Regarding The Right To Be Released On Bail

CrPC states that if an arrest is made without a warrant, it is the duty of the police officer to
inform the arrested person that they are entitled to be released on bail and that they may prepare
for the same, if the offence committed by them is bailable.20
Bailable offences are offences which are punished with imprisonment of three years or less or
with just a payable fine. Some of the common bailable offences are simple hurt, bribery, public
nuisance, death by rash or negligent act.
If a person believes that they will be arrested soon for a non-bailable offence then they have the
right to apply for a bail in advance in the High Court or the court in session so that they are
released if such an arrest happens.21

Rights at Trial
● Every individual has a right to a fair and just trial. The Constitution under Article 14
guarantees the right to equality before the law.
● In Huissainara Khatoon v/s Home Secretary, State of Bihar22 the right to speedy trials
was upheld by the supreme court.

Right to consult a Lawyer

● The Indian constitution gives every arrested person a right to choose their own lawyer for
the purpose of defending them in court23
● When any person is arrested and interrogated by the police, they have a right to have a
lawyer, of their own choice, with them while the police asks them questions regarding the
crime they have committed for the arrest.24

19 Ibid; Section 41
20 Code of Criminal Procedure; Section 46
21 Code of Criminal Procedure Section 50(1)
22 Ibid; Section 55
23 Code of Criminal Procedure; Section 304
24 R.R. Chari v. State of Uttar Pradesh, 1951 AIR 207, 1951 SCR 312
 ● CrPC allows every arrested person the right to be defended by a lawyer of their choice
even if the criminal proceedings against them have already begun.25

Right of free legal aid

Article 39 (A) of the Indian constitution states that the state shall provide free legal aid to people
with economic problems or any other disability from any possible means. However, as it is a
Directive principle of state policy in the constitution, it is not enforceable by court.
But in Khatri v/s Bihar26 the court held that, “the state must provide free legal aid to the
poverty- stricken accused person” and in Sukh Das v/s Arunachal Pradesh27 the Court held
that, “the right of a poverty- stricken accused person cannot be refused even when the accused
fails to apply for the same”.
The CrPC states that if the court sees that the accused cannot afford legal aid, the court shall
appoint a lawyer for the accused at the expense of the state. The high court with approval of the
state government can make rules regarding appointment and fees for such lawyers.28

Right to Silence
Article 20(3) of the Indian constitution says that
“No person accused of any offence shall be compelled to be a witness against himself”
Also, in Nandini Satpathy v/s P.L. Dani29, the court said that, “No person can force any other
person to furnish any statement or compel to answer any question because the accused person
has a right to keep quiet during his interrogation”.
It is the responsibility of the magistrate to perceive if any statement or confession made by the
accused person was voluntary or was after the use of force and manipulation. Therefore, police
or any other authority for that matter is not allowed to compel an accused person to speak
anything in the court.

Right to be examined by a doctor

An arrested person has the right to ask for a medical examination of their body at any point of
time if it would prove their innocence from the charge on them or if it would show any offence
committed by someone else against their body.

25 Ibid; Section 49
26 Code of Criminal Procedure (Amendment) Act, 2008; Section 7
27 Code of Criminal Procedure; Section 46(4)
28 Ibid ;Section 50(2)
29 Prem Shankar Shukla vs Delhi Administration, 1980 AIR 1535
The magistrate on such a request shall direct a doctor to conduct a medical examination of the
arrested person unless the magistrate thinks that the request has been put forward for the delay of
the proceedings. Then they have the right to deny such a request.30

Additional rights available to an arrested person

1. It is the duty of the arresting police official to take reasonable care of the health and
safety of the person accused.31
2. If the Magistrate believes that the person arrested by the police official was arrested
without sufficient proof, the magistrate may award the person arrested with
compensation.32
3. Restraint on arrested persons is used to prevent escape. No unnecessary restraint can be
used on the arrested person.33
4. The arrested person has a right to not be handcuffed unless some extraordinary
circumstance arises.34

Conclusion
Life is not like a movie where a police officer would abruptly enter your house and take you into
custody. Many procedures have been laid down in the past and have been formulated through
legislation and cases for the safeguarding of citizens.

Even though our Constitution and CrPC have provisions to provide proper rights to people who
are arrested, many deaths in custody take place in India. There also have been cases of violence
used on people in custody or misuse of power by police offices to arrest people for their own
benefits.

The Malimath Committee in its Report on the reforms in the Criminal Justice System has
mentioned that an arrested person has the right to know the rights given to them under law and
how to use those rights. There also have been cases where police officers do not mention these
rights to people they arrest while those people stay in custody without knowing their crime.
30 Ibid; Section 438(1)
31 1979 AIR 1369, 1979 SCR (3) 532
32 1981 SCR (2) 408, 1981 SCC (1) 627
33 1986 AIR 991, 1986 SCR (1) 590
34 1978 AIR 1025, 1978 SCR (3) 608
It is the duty of every arresting police officer to inform the arrested person about their rights and
its uses and to make sure that they themselves follow all procedures while arresting a person.
Awareness of these rights to the general public is required which I hope this article was able to
do.