The legal system in India is set on the stage of “innocent until proven guilty”. The unlawful arrest of a person may be in violation of Article 21 of the Constitution of India stating that “no human being shall be deprived of his right to life and personal liberty except as established by law” which means that the process is impartial and should be clear and not arbitrary or oppressive.
WHAT DO YOU MEAN BY RIGHTS OF AN ARRESTED PERSON?
Arrests speak of the process of depriving a person of his or her own freedom. This is usually done to investigate a crime, to prevent a crime from occurring, or to prevent the loss of a person or persons.
Article 9 of the Universal Declaration of Human Rights states that “no one shall be arbitrarily arrested, detained, or expelled.”
If the police arrest someone unlawfully, it is not only a violation of the Indian Criminal Procedure Code i.e. CRPC, but also against the fundamental rights given in Articles 20, 21 and 22 of the Indian Constitution. Actually, the provisions related to the arrest of any person are mentioned in theCRPC, especially Part-5 Section-41 to Section-61A provides for all the procedures and functions which are related to the rights and duties of each
person. .
“EVERY RIGHT IS A MORAL AS WELL AS A LEGAL RIGHT TO DO OR DO SOMETHING”??
Every human is born with certain basic rights, which are entitled, for example, the right to live and the right to freedom, etc. Similarly every citizen of every country is presented with certain rights, which are absolutely justified in the spirit of common brotherhood without any prejudice and right to life, right to equality, right to freedom, right to education, equality Right to, right to religion and many others like conscience.
RIGHTS OF ARRESTED PERSON
1 – Right to know the basis of arrest
Article 22 (1) of the Constitution of India states that no police officer can arrest any person without giving the reason / basis for his detention / arrest.
• Section 50 of the Criminal Procedure Code (CrPC) states that every police officer with the right to arrest someone without a warrant should inform the person of the crime for which he has been arrested and for the arrest.There are other relevant grounds. It is the duty of a police officer whom he cannot refuse.• Section 50A CRPC may make it mandatory for a person / police officer to notify a person of arrest for any of his relatives or even friends who may be interested in him.
• Section 55 of CRPC states that in such a situation when a police officer authorizes his junior to arrest a person without warrant, informing the arrested person of the order of representative given to the junior officer.
Section 75 of CRPC states that the police officer executing the warrant should give notice of the substance to the arrested person and present the warrant of arrest if required.
2- Right to appear before magistrate without any delay
Article 22 (2) of the Constitution of India states that the police officer making the arrest must present the arrested person before the magistrate within 24 hours of the arrest, failing to do so wrongly detaining him Will be responsible for
• Section 55 of the CrPC states that if a police officer is making an arrest without a warrant, then he should produce the person arrested without undue delay before the magistrate with jurisdiction or before the officer in charge of the police station on the terms of the arrest.
• Section 76 of the CrPC states that the arrested person must be produced in court within 24 hours of his arrest, excluding the time period required for the journey from the place of arrest to the Magistrate Court.
3. Right to release on bail
Section 50 (2) of the CrPC provides that the arrested person has the right to be released on bail or to be released on bail if arrested without a warrant other than a non-cognizable offense without bail. is.
.4- Right to a fair and just trial
Legal provisions regarding a fair and just right can be drawn from the Indian constitution as well as many decisions of the Supreme Court and High Court as no specified law has been made in this regard.
• Article 14 of the Constitution of India states that “every person is equal before the law” which means that all parties in a legal dispute should behave equally. The principle of natural justice should be considered in relation to both sides. Similarly, the right to a speedy hearing has also been retained in “Hussainara Khatoon v / s Home Secretary, State of Bihar” where the court said that “the trial should be dealt with as much as possible”.
5- Right to consult a lawyer
Article 22 (1) of the Constitution of India provides that every arrested person has the right to choose and elect his own lawyer to defend himself in a court of law for whatever crime / offense he may commit.
• Section 41D of CRPC enables prisoners to consult their lawyers even during
interrogation.
• Section 303 of the CrPC empowers every alleged criminal / offender to be defended by a lawyer of his choice, even if criminal proceedings have been initiated against him.
6- Right to free legal aid
• Article-39A In the direction of ensuring justice, the Government established Article-39A to provide free legal aid to the people in need. The same right was reaffirmed in the Khatri v / s Bihar dispute, where the court stated that, “the state should provide free legal aid to an accused person free from poverty”. The right to free legal aid is provided for the first instance of production of the accused before a magistrate in the court. Furthermore, this right to free legal aid for the accused cannot also be denied when the accused himself fails to ask for it. Now, an important thing to remember, if the government is unable to provide free legal aid to an accused person struggling with poverty, then the entire trial will be void. The same was firmly established in Sukh Das v / s Arunachal Pradesh, where the court said, “The rights of a poverty-stricken accused cannot be denied even when the accused fails to apply for the same.
• Section 304 of the CrPC grants a very important right to each accused who is scheduled to appear in a Sessions Court at the state’s expense to appoint him (completely free). If the court has no adequate means to appoint itself as a lawyer for its case, the court may appoint it as a representing lawyer.
7- Right to remain silent
There is no mention in any Indian law of the right to remain silent, however, its right can be derived from the CRPC as well as the Indian Evidence Act. The right to remain silent mainly relates to statements and confessions made by
the accused person in court. Additionally, it is the responsibility of the Magistrate to see whether any statement or confession made by the accused person was made voluntarily or after use and manipulation of force. Therefore, the police orany other authority for that matter is not allowed to compel an accused person to speak anything in court.
• Article- 20 (2) Additionally, it reiterates that no person can be compelled to be an accused or a witness against himself. This act of exposing oneself is the principle of self. This theory was confirmed in the case of Nandini Satpathy v / s P.L. Dani, where the court observed that, “no person can compel any person to present any statement or answer any question as the accused person has the right to remain silent during interrogation8- Right to be examined by a doctor
• Section 54 of the CrPC claims that if an arrested person claims that a medical examination of his body will reveal a statement which will disprove the fact of commission of the offense by him, or certain details which are of the crime. Evidence on the commission side may be caused by another person against his body.The court has complete discretion to order an accused person for medical examination and when requested not to be satisfied or to defeat justice, it is granted by the court.
9- Additional rights to arrested person
• Section 55A of CRPC has claimed that maintaining proper care and safety of each arrested person will be the sole responsibility of the person (police officer) who has custody of the accused. This doctrine was established to protect a jailed person from cruel and inhumane behavior.
• Section 358 of CRPC is a more serious attempt towards the principle of natural justice where compensation is awarded to the arrested person if he is arrested improperly.
Section 41A of the CrPC states that a police officer must give notice to a person who has deemed it a cognizable offense to appear before him at a specified time, date and place.
• Section 46 of the CrPC prescribes the manner of arrest of an accused person, which includes furnishing of the accused by the Police Officer, physically touching the body or involving the body..The police officer should not cause the arrest of the person when he is trying to arrest the person. When the person is arrested, he is charged with a crime which is punishable with death or life imprisonment or when the accused person Trying to unduly resist your arrest, violent and aggressive turn or when the accused is trying to escape.
Section 49 of the CrPC claims that a police officer should not detain or detain an accused without legal arrest.
CASE LAW “D.K. Basu vs State of West Bengal” Frequent cases of police atrocities and custodial deaths have prompted the Supreme Court to review rulings like Joginder Kumar, Nilabati Behera etc. Therefore, the Supreme Court has issued the following requirements in all cases of arrest or detention. Legal provisions have been made in that regard as preventive measures.
1. Police personnel who conduct arrests and handle arrest inquiries must bear accurate, visible, and clear identification and name tags with their designations. The details of all such police personnel who handle the interrogation of arrest should be recorded in a register.
2. That the police officer making the arrest at the time of arrest shall prepare a memorandum of arrest at the time of arrest and such memorandum shall be verified by at least one witness, who may be a member of the family of the arrest or a respected person of a locality. Where arrest is made, this will also be counted by the arrest and will include the time and date of the arrest.
3. A person who has been arrested or detained and is being detained at a police station or interrogation center or other lock-up, shall tell to a friend or relative or other person who is known to him Shall be entitled to have or be interested in its welfare, informed, as soon as practicable, that he has been arrested and is being detained at a special place, unless the witness of the arrest memo is verified by himself or by a friend or relative.
4. The person arrested should be made aware of the right that someone be informed of his arrest or detention as soon as he is arrested or held in custody.
5. At the place of arrest there should be an entry in the diary which will also reveal the name of the next friend of the person who has been informed of the arrest and the names and details of the police officers under whose protection.
6. The arrest, where he pleads, should also be investigated at the time of his arrest and major and minor injuries, if any, present on his body, should be recorded at that time. The “inspection memo” must be signed both by the
arrestee and his copy provided by the police officer for the arrest.
7. The arrested person should be examined by a doctor in a panel of approved doctors appointed by the Director of Health Services, the Director of the concerned State or Union Territory, for medical examination every 48 hours by a
trained physician while in custody. The Director, Health Services should also prepare such a panel for all tehsils and
districts.
8. Copies of all documents, including the memorandum of arrest mentioned above, should be sent to the Magistrate for their records.
9. The arrested person may be allowed to meet his lawyer during interrogation, although not during interrogation.
10. A police control room should be provided in all districts and state headquarters, where information about the cause of arrest and the location of the arrest will be communicated by the officer on the cause of the arrest, within
11 hours of the arrest and effect on the police.
11. The Court emphasized that the failure to comply with the above requirements would render it liable to be punished for contempt of court and, in addition to presenting the concerned official liable for departmental action, the contempt proceedings of the Court in any High Court Can be installed. The requirements flow from Article 21 and Article 22 (1) of the Constitution and need to be strictly followed. The requirements are in addition to constitutional and statutory safeguards and do not come with respect to the violation of various other guidelines given by the courts from time to time and to protect the rights and respect for arrest. The court further said that if the police officer is unable to perform his duty properly, he will be held accountable for contempt of court and also for departmental inquiry. Such a dispute can be initiated in any High Court which has jurisdiction over the said dispute.
IN YOGINDER SINGH V. STATE OF PUNJAB
The Court considered it necessary for the execution of Article-21 as well as the implementation of Article-22 (1):
1. The arrested person has the right to inform his friend, relative or any other person about his arrest in his interest.
2. The police officer should inform the arrested person of all his rights after the custody / arrest of the accused person.
3. Admission of arrest with full details should be done in a diary which should include the name of the person who has been informed about the arrest.
PREM SHUKLA V / S DELHI ADMINISTRATION
The court stated that “prisoners / arrested persons have the right to be subject to certain extraordinary circumstances during arrest or while in custody and can deny to wear handcuffs.
CRITICISM
The Mallimath Committee has stated in its report on reforms in the criminal justice system that the accused has the right to know the rights given to him under the law and to enforce such rights. It has also been criticized that the police fail to inform the arrestees of the charges against them and, therefore, detain the detained persons in complete ignorance of their alleged crimes. This is attributed to the colonial nature of our criminal justice system. Thus, it is
entirely possible that the rights of arrested persons falling through a crack in the English origins of the Indian criminal justice system may inadvertently result.
CONCLUSION
India faces a major problem of illegal arrests as well as custody deaths, which are mainly due to illegal arrests.
These problems underpin Article-21 of the Indian Constitution as well as the essence of fundamental human rights that are available to all under the Universal Declaration of Human Rights. D. Stipend issued in Basu v / s West Bengal is not being executed properly by the Supreme Court of India and hence, time is needed to properly execute the provisions and guidelines issued which will surely bear better results. Which will eventually help
and reduce the number in illegal arrest and resulting death in custody.
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