In India, we operate on a system that is based on the principle of ‘innocent until proven guilty’, with adequate focus on the principles of natural justice. While the laws of the country allow concerned authorities to act and arrest those who commit offences, there are certain restraints. These restraints take the form of rights guaranteed to the accused, to protect their interests and to ensure proper delivery of justice.
These rights, though codified in the Code of Criminal Procedure, 1973, stem from the Constitutional guarantee of right to life and personal liberty, and the Universal Declaration of Human Rights.
Article 21 of the Constitution coupled with Section 50 of the CrPC ensures that the accused is informed of the grounds of their arrest. Moreover, Section 50A of the CrPC makes it obligatory for the police officer to inform the accused’s family members or relatives of their arrest. It is important to keep in mind the fact that despite the provisions, a woman cannot be arrested after sunset and before sunrise.
The accused also has a right to be informed of bail, in case it is a bailable offence. (Section 50(2) CrPC).
In both cognizable and non-cognizable offences, they have a right to be taken to the magistrate without unnecessary delay. (Sections 56 and 76 CrPC respectively) Article 22(2) of the Constitution and Section 57 of the CrPC ensure that to escape wrongful detainment, a person cannot be arrested for more that 24 hours (in the case of a cognizable offence). If the facts and circumstances of the case demand so, the magistrate’s permission has to be obtained, under Section 167. In case of non-cognizable offences, the police officer making the arrest via the warrant has to notify the substance thereof to the person to be arrested, and may need to show them the warrant.(Section 75 CrPC)
The arrest is to be made strictly according to the Code, and no unnecessary restraint (Section 49) is to be exercised. Moreover, the accused has to be examined by a medical practitioner under Section 54.
Sections 41D and 303 ensure that the accused has the right to choose a lawyer to defend them. In case they cannot afford a lawyer, they have the right to free legal aid under Section 304.
The accused has a right to silence, or right against self-incrimination, as stated in Article 20(3) of the Constitution. In the case of Nandini Sathpathy vs PL Dani, it was observed that no one can forcibly extract statements from the accused, since they have a right to remain silent during the investigation.
The accused will also be entitled to compensation in case there were no proper grounds for arresting the person. The police is in charge of the health and safety of the accused (Section 55A CrPC), and as was observed in the case of D.K. Basu v/s West Bengal and Ors, on failure to perform their duty, will be liable for contempt of court as well as for the departmental actions. Further, this case also issues nine exhaustive guidelines regarding the rights of an accused and actions to be taken by the concerned authorities.
Despite the landmark judgement, the guidelines set forth have not been adhered to and executed. Police have more often than not misused their powers while arresting people. Strict adherence is essential not only to ensure that there are no illegal arrests, but also to curb the growing problem of custodial violence. While securing justice is important, principles of natural justice cannot be overlooked, and the rights given to the accused cannot be infringed.
Therefore, it is imperative for us to strategise and develop appropriate measures, to ensure greater transparency and stricter adherence.
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If you are interested in participating in the same, do let me know.
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