Human rights are those rights which include each and every living and non – living creatures.
At first every individual should be treated as a human being irrespective of the fact that such person is arrested or accused. There is always a presumption of a innocence until the arrested or accused person is proved guilty beyond any reasonable doubt, in criminal cases. Our statue has provided various rights to every kind of individual, so that their right to liberty can be protected and no unlawful detention of an individual takes place in our democratic country.
The article 21 of Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure of law. These days various types of corruption and malpractices are arising in day- to-day working of police. Arrested or accused person has been provided with different types of fundamental rights and other rights covered under criminal procedure, so that no person is unlawfully detained.
Arrest – An understanding
Normally we see a person who does or has done something which is forbidden by law to be arrested. The term arrest means “a seizure or a forcible restraint of a person” by a police officer. In simple, taking the body of a person into police custody i.e exercise of power to deprive a person of his/ her liberty.
In criminal cases, arrest of a person is important process so that the accused can be presented before the court and prevent such person from escaping. This does not mean that the person must be tired i.e handcuffed, but to keep such person in front of police. The criminal procedure code, 1973 which deals with the aspects of arrest, has not defined the term ‘Arrest’. In Lexico Dictionary, the term ‘Arrest’ means ‘seize’ (someone) by legal authority and take them into custody. Thus after an arrest, Arrester has full control over person’s liberty.
Three persons authorised to arrest under criminal procedure code, 1973:
A police officer with or without a warrant.
A magistrate or a judge.
A private person.
Arrest can be made into following ways
Arrest with warrant – Arrest of a person , when warrant is issued against a specific person by the magistrate in the authority.
Arrest without warrant – a person can be arrested by a police officer or by any private person without warrant issued by the magistrate.
Under section 41 of the code of criminal procedure, the following conditions to arrest a person without warrant are mentioned as
A person who has committed any cognizable offence such as rape, murder, theft, robbery, etc. can be arrested without warrant. For cognizable offences, a police officer in accordance with the first schedule of CRPC or guided by any other law for the time being in force, can arrest a person without warrant.
When, there is no time to approach the magistrate for warrant an immediate arrest is needed.
Under section 42 of the CRPC, arrest of a person to identify the actual place of residence of such person. Police can arrest a person when such person denies to give his correct name and residential address or the police have a reason to believe that they provided information is wrong.
Under section 151 of the CRPC, police can arrest a person to prevent the commission of cognizable offences. A person can be arrested without warrant, when police officer knows the design/plan of any cognizable offence, which appears to such officer that the commission of offence cannot be prevented otherwise.
It is provided by the article 21 of Indian constitution that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. There is always a presumption of innocence of the accused until he is proven guilty at the end of the trial substantiated with sufficient evidence. In addition, it is to be noted that no arrest can be made on the basis of mere suspicion or information.
There are two sorts of benefits available to the arrested:
Rights at the time of arrest.
Rights at the time of the trial.
Below following rights are available to person arrested under both these categories:
To meet an advocate of his choice during interrogation (Section 41 D)
Section 41 D of CRPC, states that arrested person has a right to consult his lawyer during interrogation. Arrested person can demand the lawyer of his choice and discuss the happened circumstances with him. Here, ‘interrogation’ means the process of questioning by the police related to offence committed or going to be committed.
In D.K Basu v. State of West Bengal, the Supreme Court stated that the arrestee may be permitted to meet his lawyer during interrogation, but not throughout the interrogation. Other provisions related to this right include section 303 of CRPC.
Right to know the grounds of arrest. (Section 50 (1), 55, 75of CRPC and Article 22(2) of Indian constitution)
As arrested person has the right to know the grounds of arrest visa-versa it is the duty of the police officer to inform him the grounds.
In Indian constitution this right has been given the status of a fundamental right under Article 22(2). This article states that “no person who is arrested shall be detained in custody without being informed as soon as possible maybe, of the grounds of such arrest nor he shall be denied the right to consult, and to be defended by a legal practitioner of his choice.”
According to Section 50(1) of CRPC which states that “every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest. In short, every private person or police officer who arrest any person without warrant, has a duty to immediately inform him the grounds for such arrest.
According to Section 55 of CRPC, states that “when a subordinate officer is deputed by a senior police officer to arrest a person, such officer shall, before making the arrest, notify to the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other causes for which the arrest is to be made. Non-accordance with this provision will render the arrest illegal. Hence, subordinate officer has to obey this provision for fair arrest.”
According to Section 75 of CRPC, which states that “the police officer or any other person executing a warrant of arrest and shall notify the substance thereof to the person to be arrested and if so required, shall show him the warrant.” If the substance of the warrant is not notified, the arrest would be unlawful.
The main reasons behind communicating the grounds of arrest to the arrested person are:
It entitle him to apply to the proper court for bail, or
A writ of habeas corpus can be made in appropriate circumstances ,or
To make speedy and reasonable arrangement for his defence.
If the arrest is made by a magistrate without warrant, requiring the magistrate to communicate the grounds of arrest to the arrested person as per Article 22(2) of Indian Constitution. It appears reasonable to accept that grounds of arrest shall be communicated in language understood by the arrested person.
Information regarding the right to bail (Section 50 (2) of CRPC)
Section 50 (2) of CRPC states that “where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail that he may arrange for sureties on his”.This will certainly be helpful to the persons who may not have any knowledge about the right to be released on bail in case of bailable offences. This provision is related to providing information about bail in bailable offences. As a consequence, it leads to improve relations between police and arrested person.
Other provisions related to this right include Section 42, 43, 56, 59, 169, 170, 436, 437, and schedule I column 5 of CRPC also include the right to grant bail to the accused but by the police under certain rules.
Right to inform a relative or a friend or a nominated person (Section 50 A)
Substantial amendments has been enacted in Section 50 A of CRPC in the year 2006 passed on the decisions of Supreme Court in Joginder Kumar v. State of U.P and D.K Basu v. State of West Bengal.
The enactment made an obligatory duty on the part of the police officer making any arrest to inform the friend, relative or any nominated person of the arrested person about his arrest and also to communicate the arrested person of his rights. In addition, an entry has to be made in register maintained by the police department. This right is helpful to the arrested person as it leads to communicating of the necessary information to their relatives or friends about the arrest. So, further reasonable steps can be taken by the nominated person to free such arrested person.
A person arrested not to be detained more than 24 hours and to be presented before the magistrate without any delay.( Section 56, 57, 76 of CRPC)
When a person making an arrest either with warrant or without warrant is bound by a duty to present the accused or arrested person before the magistrate within 24 hours, excluding the time taken to reach magistrate’s court from the place of arrest. Section 57 of CRPC deals with ‘Person arrested not to be detained more than 24 hours’.
This right has been established with the view:
That the arrestee is not compelled to give confession, or information.
So, the police doesn’t do wrongful confinement of persons.
According to section 56 of CRPC, which states that “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.
According to section 76 of CRPC, which states that “The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person.
This right is helpful to the arrested person and citizens, as it prevent unlawful arrest and detention by any police officer or private person. And if, such arrested person is not presented before a magistrate within 24 hours then any person on behalf of such person can file writ of habeus corpus i.e to present the body.
In simple, it is necessary that the arrested person is taken out of police custody by presenting such person before a magistrate, so that proper facts and reasons are presented before a magistrate by the officer making such arrest, while in 24 hours.
In case Khatri v. State of Bihar, the Supreme Court stated that the state and its police authorities to ensure that this constitutional and legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest must be scrupulously observed.
Some other provisions for the same included in Section 71 of CRPC.
Right to consult your legal practitioner. [Article 22(1) , 50(3)]
Article 22 (1) of the Constitution of India provides that every arrested person has a right to consult a legal practitioner of his own choice. Section 50(3) of CRPC also states that any person against whom proceedings are instituted under the code has a right to be defended by a pleader of his choice. The right of arrested person to consult a lawyer of his choice begins as soon as the person is arrested. In any type of case, this right will be available to the arrested person as per the Article 22 (1). The arrested person can consult his lawyer during interrogation with Police i.e in front of Police but not within his hearing of the case.
Right to free legal aid. (Article 21, 39(A) of Indian constitution , 304 of CRPC)
This right empowers the arrested person who have a limited means to be entitled to free legal aid. As per 14th report of Law Commission of India, free legal aid to persons of limited means is a service which the modern state, in particular a welfare state, owns to its citizens. In India, this facility is mainly provided to accused person who is poor. In addition, this service is provided for both trial and appeal.
In Khatri (II) v. State of Bihar, the Supreme Court held that the state is under a constitutional obligation (implicit in article 21) to provide free legal aid to an indigent accused person. Further, it is to be noted that this right starts at the commencement of trial and continues till the accused is produced for the first time before the magistrate in court and also when remanded from time to time. The Supreme Court, therefore imposed a binding duty on all the magistrates and courts to inform the indigent accused person about his right to get free legal aid.
In Suk Das v. Union Territory of AP, this apex court moved a step further by stating that this constitutional right cannot be denied if the accused failed to apply for it.
Section 304 of CRPC provides legal aid to accused at state expense in certain cases such as when accused has not sufficient means to engage a pleader or where, in your trial before the court of sessions, the accused is not represented by a pleader. Also, in Article 39(A) compel a state to provide free legal aid for the purpose of securing justice.
Right to be examined by a medical practitioner. (Section 53 ,54 of CRPC)
Section 53 of CRPC provides examination of accused by medical practitioner at the request of police officer. Section 53 (A) provides examination of person accused of rape by medical practitioner. Section 54 provides examination of arrested person by medical practitioner at the request of the arrested person. This is an absolute necessity to keep record of any type of injuries or mark on body of accuse or victim of violent crimes such as rape, assault, etc. and also to ascertain the health of such person when taken into custody and put it on record.
However, Section 53 and 53(A) of CRPC provide if there are any reasonable grounds for believing that an examination of arrestee can bring further evidence in the case related to commission of any bodily offences committed by him or examination of the victim of rape, assault or any other which will establish any wrong happened against his/her body by bringing out a reasonable evidence through DNA, Semen, hair samples, finger nail, any vaginal injury.
In D.K Basu v. State of West Bengal, the Supreme Court had issued instructions to be followed by the arresting authority at the time of detention of a person, that is arrestee should be subjected to medical examination by trained doctor every 48 hours during his/her detention in custody. And also, the medical practitioner should be on the panel of approved doctors appointed by the director, health services of the concerned state or union territory.
Right of accused to produce in evidence in court. (Section 243(1),273 of CRPC)
This is very important right during the preceding of a fair trial. The accused has a right to produce evidence as witnesses in his defence, in case of police report or private defence. Section 138 of Indian evidence act, 1872, provides that accused has a right to confront only witnesses.
The principle of audi alteram partem which is the basic principle of natural justice. This expression simply implies that a person must be given an opportunity to defend himself. When examination and cross-examination of all prosecution witnesses is done, the accused shall be called upon to enter upon his defence i.e after the completion of the prosecution case. Section 243(1) of CRPC, provides that the accused shall then be called upon to enter upon his defence and produce his evidence, and if the accused puts in any written statement, the magistrate shall file it with the record.
Section 273 of CRPC, provides that all evidence taken in the course of the trail or other proceeding shall be taken in presence of accused or his pleader (when the personal attendance of accused is dispensed).
Confessions has to be made to the magistrate so that the accused may be deposed to make of his free will. Under section 25 of Indian Evidence Act, confession, statements by accused to the police are absolutely excluded.
Right to remain silent. (Article 20(2) of Indian Constitution)
This article guarantees every person has a right against self-discrimination. This provides that no person accused of any offence shall be compelled to be a witness against himself. This principle was restated in ‘Nandini Satpathy v. P.L Dani’ that “No one can force any person to give any statement or to answer questions” and the accused person has a right to keep silent during the process of interrogation by the police officers.
This right is provided so that accused/arrested person can choose to be silent during interrogation, this doesn’t mean that he is guilty. The Justice Malimath committee writes about the origin of the right to silence that it was essentially the right to choose whether to answer or not the questions of police officers and incriminate oneself in the absence of a proper charge. As whenever a charge is ‘proper’, it is assumed that there is no need for protection of the accused.
Further, confessions only admissible, if made in front of the magistrate. And also right to silence is related to confessions. To ensure that the breaking of silence by the accused take place in front of magistrate only, which is voluntary and without any duress and inducement. This is necessary to establish truthfulness and reliability of the facts which were stated by the accused to the magistrate that are required to take several precautions.
Right to fair trial. (Article 14 and 21)
Article 14 guarantees the right to equality before the law. The code of criminal procedure also provides that there should be a fair trial and should be an open court trail. In exceptional cases various victims and accused may have a trial with camera recording.
In Zahira Habibullah Sheikh and ors. V. State of Gujarat and ors., the Supreme Court observed that each and everyone has an inbuilt light to be dealt with fairly in a criminal case. Denial of a fair trial leads to much injustice to the accused as it is to the victim and to society. In Rattiaram v. State of Madhya Pradesh, the Supreme Court observed that the fair trail is the heart of criminal jurisprudence. A fair trail is the fundamental right which is given under Article 21 of the Indian Constitution.
Specific rights of women
According to section 46 CRPC , the arrest of female should be avoided during the time which is before 6 A.M and after 6 PM. In order to protect woman from being sexually and physically exploited by police. They should be kept in female lock ups which is separated from men. According to section 51(2) of CRPC, which provides that a female officer has a right to search a female arrested.
Our country face huge problem of unlawful detention and arrest. Every individual should be aware of their rights provided by law. These rights are entitled to an arrested person so that they can be protected from the misuse of powers by the government.
This not only infringes the article 21 of Indian Constitution but also the basic human rights which is available under Universal Declaration of Human Rights.
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