In this article we shall discuss the rights that are available to an arrested person in India with the help of brief case laws and provsions of the Criminal Procedure Code (CrPC) 1973. However, before we delve into the various rights of an arrested person, we must first familiarize ourselves with the concept of "Arrest".
Arrest implies taking into custody another person under the authority of law to hold and detain them, to answer a criminal charge and to prevent the commission of an offence.
Section 46 of the CrPC, 1973 prescribes the various modes of Arrest. An arrest of a person consists, except in cases of submission, of the actual seizure or touching of the body of the person, with a view to his detention.
It need not be denoted by handcuffs on the body of a person but could be submitted by spoken words if the person submits to custody.
It was held in the case of Roshan Beebi v. Joint Secretary of State, Tamil Nadu, that if the method of arrest is not adhered to, as per the prescription of Section 46 of CrPC, 1973, the arrest would be negatory, and merely keeping the person within, or confining the movement of a person within, the premises of the Police station shall also amount to arrest.
RIGHTS OF ARRESTED PERSON
1. Right to know the Grounds of Arrest
Section 50 (1) of the CrPC, 1973 provides that every Police Officer or other person, arresting any other person, without warrant shall forthwith communicate to him full particulars of the offence, based on which he is arrested or any other grounds of arrest.
The case of Udaybhan Shuki v. State of U. P. has held that the right to be notified of the grounds of arrest is a precious right of the arrest of the person. This allows him to move to the proper Court for bail, make a writ petition of Habeas corpus, or make appropriate arrangements for his defence.
2. Right to be informed of the provisions of Bail
Section 50 (2) of the CrPC, 1973 provides that where a Police Officer arrests any person, other than a person accused of a non-bailable crime/offence, without any warrant, he (the Police Officer) shall inform the person that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
3. Right to be taken to Magistrate without delay
Section 57 provides that no Police Officer shall detain in custody any person, arrested without a warrant, for a period which is longer than surmised from the circumstances of the case and such period, shall not exceed 24 hours, in the absence of a particular order of the Magistrate under Section 167 of the stated Code.
Such a period is exclusive of the time taken for the journey from the place of arrest to the Magistrate’s Court.
In the case of Khatri (II) v. State of Bihar, the Supreme Court has strongly urged upon the state and its Police to maintain and ensure the Constitutional and legal requirements of bringing an arrested person before the Judicial Magistrate, within 24 hours of Magistrate of the arrest of such person. This allows Magistrates to keep a check on the Police investigation.
Further, in the case of Sharifbai v. Abdul Razak, the Supreme Court held that if a Police Officer fails to produce an arrested person before a Magistrate within 24 hours, he shall be found guilty of wrongful detention.
4. Right to consult Legal Practitioner
Under Section 303, it is provided that any person accused of an offence under or before a Criminal Court or against whom proceedings are initiated under this Code may have the right to be defended by a pleader of his or her choice.
5. Right to free legal aid
One of the crucial aspects of CrPC 1973 is that, under Section 304 provides that where in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused does not have sufficient means of hiring or engaging a pleader for himself, then the Court shall assign a pleader at the expense of the State.
In Suk Das v. Union Territory of Arunachal Pradesh, the Supreme Court has held that non-compliance with this requirement or failure to inform the accused of this right would spoil the trial, entailing setting aside the conviction and sentence.
The right of an accused to consult begins from the moment of his or her arrest. The consultation with the lawyer, maybe in the presence of a Police Officer, but not within the Police Officer’s hearing. The Supreme Court has also held that all Courts and magistrates must inform the indigent person about his right to get free legal aid.
6. Right to be Informed about the Right to Inform one’s Relatives/Friends
Section 50-A (1) provides that once the arrested person is brought before the Police Station, the Police Officer, must inform a relative or a friend, or any other family connection of the arrested person’s choice about his arrest.
The place where the arrested person has been kept should also be disclosed.
Further, as per Section 50-A (3), he must note down the name and address of the person who was informed about the arrest. To make sure there is no violation of this right, Section 50-A (4) makes it a duty of the provisions of this Section to comply with. This allows the arrested person and well-wishers to take appropriate legal steps to secure his release.
7. Right to be examined by a Medical Practitioner
While Section 53 allows a Police Officer to get the accused examined by a registered medical practitioner.
Under Section 54(1) when a person is arrested, whether on a charge or otherwise, alleges at the time, when he is produced before a Magistrate or at any time, during the period of his detention or in custody, the examination of his body will afford evidence which will prove or disprove the commission of any offence, or which the Magistrate shall, if requested by the arrested person, so to direct examination of the body of such persons by a registered medical practitioner, unless the Magistrate considers that the request made, is vexatious or is intended to delay or defeat the ends of justice.
In the case of Sheela Barse v. State of Maharashtra, it was held that the arrested accused person must be informed by the Magistrate about his or her right to be medically examined in terms of the provisions of Section 54(1)
8. Discharge of Persons Apprehended
In the case of Assistant Collector, Customs, Bombay v. S. G. Mohite, it was held that if the arrest and detention of the accused cannot be said to be illegal, he can be discharged on his own, by bail or bond/surety.
However, if the arrested person is found to be illegally arrested, there would arise no question of bail or bond, and the only proper method of releasing the accused would be by Discharge under Section 59.
While the above are some of the undeniable legal rights of the accused person, it is pertinent to note that, it is highly important to note the circumstances of arrest of such person as well.
It has been laid out in Arnesh Kumar v. State of Bihar, that the Police Officers or other arresting authorities must follow certain guidelines, when the offence for which a person is accused is punishable with a term of imprisonment not exceeding 7 years (i.e. up to 7 years), including and excluding any amount of fine. The basic idea of the guidelines has been laid down below-
Satisfaction of the parameters of arrest, as derived from the provisions of Section 41
Police Officers must be provided with a checklist as provided in the sub-clauses of Section 41(1)(b)(ii), and it shall be mandatory for the Police officer to fulfil such checklist to verify that there exist necessary grounds for arrest.
Any Magistrate, who will decide on the detention of the accused, shall beforehand examine the report presented by the Arresting Officer and shall authorize such detention only after recording its satisfaction.
Any decision not to arrest the accused person must also be forwarded to the Magistrate, before the expiry of 14 days from the date of institution of the case, which may be further extended by the Superintendent of Police of such district, for written and recorded reasons.
Under Section 41A, a notice of appearance may be served on the accused person, before the expiry of 14 days from the institution of the case, which may be further extended by the Superintendent of Police of such district, for written and recorded reasons.
Non-compliance with the conditions and guidelines laid down here shall not only result in Departmental actions against the Police officers but also cause a Contempt of Court case to be instituted in the High Court of territorial jurisdiction.