Geeta Institute of Law
Rights of An Arrested Person Under Indian Law.
Every person has to be treated as a human being first, irrespective of the fact that such person is a criminal. Even so the accused is taken into account innocent till proven guilty by a court of law. It is a characteristic of our democratic State that even the rights of the accused are deemed to be sacred, even though he is charged with an offence. Our statute is quite careful towards anyone’s “personal liberty” and hence doesn’t permit the detention of any person without proper legal order. It is provided by the article 21 of our constitution that there will be no person who shall be deprived of his life or personal liberty except according to procedure establish by law.
The scale of corruption and connected malpractices arises at various stages in the day-to-day working of the Police. It can start at the time of registering a case in F.I.R., for taking a call to arrest or not arrest or for extortion or collecting money in the form of “Bribe” for interfering in civil disputes, for producing fake evidence and so on. The power of arrest is the most important source of corruption and extortion by the police officials. From the moment, a case is registered by the Police on a cognizable case, they get the power to arrest any person who may be ‘concerned in that offence’, either on the basis of the case itself or on credible information otherwise received.
The procedure laid down by Article 21 must be followed in a ‘right, just and fair’ and not in any arbitrary, fanciful or oppressive manner. It is expected that the arrest should not only be legal but justified also. The Constitution of India, recognizes the rights of arrested person under the elemental Rights. Hence, the accused has been given certain rights under the law.
[su_box title=”What is arrest? A person who breaks the rules and regulations is arrested.” box_color=”#ff5440″ radius=”1″]So, what is arrest? In general term, ‘arrest’ means restriction imposes on a person to freely movement. The lawful restraint and lawful confinement. If it’s not lawful than its not said to arrested, its somewhere abuse of Powers by authority. The Criminal Procedure Code of 1973, however that deals with the provisions of arrests has not defined the ‘Arrest’.
When an individual is arrested, then the arrested person is taken into custody of an authority empowered by the law for detaining the person. The person is then asked to answer the fees against him and he’s detained in order that no further crime is committed. At times, there’s restraint by the legal authority but sometimes the person on his own submits to the custody of the person making the arrest. i.e. “surrender” Criminal Procedural Code 1973 (hereinafter mentioned as CrPC), chapter V (Section 41 to 60) talks about Arrest of an individual but it doesn’t define arrest anywhere. It has been observed that a Convict (prisoner) is a person who is depressed of liberty against his or her will.
This can be by confinement, capture, or by forcefully restraint, but he does infringe his human rights as well as the rights being in the prison. They also have offered all the rights which an individual of the society has offered but with some reasonable restrictions. Being a prisoner that doesn’t mean they are eligible to demand fundamental rights. Even if he is confined in prison, he can enjoy all his basic rights. The prisoners still have all their constitutional rights when they are convicted of a crime and deprived of their freedom in accordance with the procedure laid down by law.
The Apex Court has taken corrective measures and provides the executive and the legislature with essential guidelines. It is clear from the inspection of the above contribution that the Indian judiciary was very sensitive and keen to protect the human rights of the people. However, the motive remains same that the police authorities and the prison authorities need to be trained and accommodated so that they take prisoner’s rights seriously.[/su_box]
What is arrest?
A person who breaks the rules and regulations is arrested. So, what is arrest? In general term, ‘arrest’ means restriction imposes on a person to freely movement. The lawful restraint and lawful confinement. If it’s not lawful than its not said to arrested, its somewhere abuse of Powers by authority.
The Criminal Procedure Code of 1973, deals with the provisions of arrests, has not defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an authority empowered by the law for detaining the person. The person is then asked to answer the allegations against him and he is detained so that no further crime is going to be committed.
At times, there is restraint by the legal authority but sometimes the person on his own submits to the custody of the person making the arrest. i.e. “surrender”
Criminal Procedural Code 1973 (hereinafter referred to as CrPC), chapter V (Section 41 to 60) talks about Arrest of a person but it do not define arrest anywhere.
Kinds of Arrest
- An arrest made through Warrant or Order issued by Magistrate or Court
- An arrest made without Warrant or Order
Who can arrest
The arrest can be made by police, magistrate and even a private person
Section 41(1) CrPC Says: Any police officer- may without an order from a magistrate and without a warrant arrest any person who has committed a cognizable offence, who is in possession of stolen property, or is a state offender, who obstructs a police officer in discharge of his duty, who attempts to escape from lawful custody, who is declared as a deserted from any of the Armed Forces of the Union, who is a released convict and breaches his contract of release etc.
Section 42 authorizes a police officer to arrest a person for an offence which is non-cognizable if the person to be arrested refuses to give his name and residence.
Section 43 gives the right to a private person like you and me to carry out an arrest of a person who in his presence commits a cognizable or a non-bailable offence or who is a proclaimed offender. Section 44 arrest by magistrate as per section 44(1) of CrPC, the Magistrate has been given the power to arrest an individual who has committed an offence in his presence and also commit him to custody.
However, CrPC exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government (section 45 CrPC).
Section 46 of CrPC explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids arrest of women after sunset and before sunrise, except in exceptional circumstances in which case the arrest can be done by a woman police officer after making a written report obtaining a prior permission from the concerned judicial magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Rights of an arrested person
The arrested person have some rights according the Indian provisions the most basic of which are found in the Indian Constitution. Article 21 of Indian Constitution provides few waves of hope to the lives of arrested, under trials and convicts. The treatment of such people has to be humane and in the manner prescribed by law. Hence, the accused has been provided with certain rights under the law.
Grounds of Arrest: Right to be informed
This right has been given the status of a Fundamental right in the Indian Constitution. Article 22(2) of the Indian Constitution says that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”
This right is very important for the person arrested as he may be innocent. If he gets to know of the grounds of arrest then it enables him to apply for bail or in appropriate circumstances for a writ of habeas corpus, or to make fast and suitable s arrangement for his defence. Also, it gives the arrestee the right that any one person close to him is informed about his arrest immediately.
Right to be brought before Magistrate without delay
Whether the arrest was made with or without warrant. According to sec 57 of Indian Criminal Procedure Code The person making such an arrest is duty bound to present the accused before the magistrate within 24 hours excluding the time taken for traveling from the place of arrest to the Magistrates court.
Rights regarding detention/ custody
If the arrested person is not produced before a magistrate within 24 hours of the arrest, by the police officer then he shall be held guilty of wrongful detention. The right has been provided to controlled the abuse of Police act.
Right to be examined by a medical Practitioner
Section 53 and 54 of CrPC dealing with this right. This is an unconditional necessity to put on record any mark or injuries or ascertain the health of the accused when taken into custody and put it on record. May be internal injury or External Injury. Subsequently this also works as check to ensure if there was any torture by the powers that be during interrogation or during custody. Its very important in some of the cases such as, Rape and Driving with drink situation.
The Supreme court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India. Section 41(D), 50 and 303 of Crpc and Art. 21 dealing with it. The accused person has to disprove the charges with the help of a person who has knowledge of Law and the understanding of Procedure.
Rights to get free legal aid
According to Section 304 CrPC, Articles 21, 39(A) of Constitution of India, person have right to get free legal aid at every stage of court proceeding. The right can be availed at distt.Court , High Court and Supreme Court level.
Right to not compel to give self incrimination statement.
Art 20(2) of the Constitution of India says that the accused /arrested person chose to be silent under interrogation doesn’t mean that he is guilty. There is much speculation if this right is to be exercised in times as mentioned in Justice Malimath Committee’s report.
Right to get Bail
Article 21 of the Indian Constitution says that every individual shall have a right to liberty as per procedures established by law. However, an accused cannot be given all these liberties till he is proven innocent. But he needs to be informed that he has a right to apply for bail in bailable offences and even in non-bailable offences, bail is granted by the Court after taking into factors such as nature or seriousness of the offence, the character of the evidence etc. section 167, 436 , 437, of Crpc deals with this right.
[su_box title=”CONCLUSION ” box_color=”#ff5440″ radius=”1″]In India, this facility is provided to all or any poor accused in spite of the severity of the crime they need committed. This is for the 3-tier justice system in totality at every stage. This service is provided both for the trial and appeal as neither the Indian Constitution nor does the Legal Services Authorities Act makes any distinction between them.
The Code of Criminal Procedure, 1973 provides certain safeguards but till date the power of arrest given to the police is being misused. It is believed till today that the police use authority so as to threaten arrested people and extort money from them. There are reports that the police fail to tell the arrested people against the fees against them and don’t provide them with adequate means of representation they should get. Thus it’s vital to bring changes in Criminal Justice Administration in order that the State knows that its primary duty is to seize and reform the wrongdoer and not just punish him. All of the proceedings go according to the Rule of Law which regulates functions of all organs of the State’s Machinery. It also includes people and agencies conducting prosecution and investigation cases. It is the primary and foremost duty of the police to guard all individuals and their rights in society which also includes the arrested people. Thus, it’s the duty of the police to also protect the rights of the accused and confirm that they’re treated fairly consistent with the proceedings established by law and not harassed unnecessarily. The police should confirm that the person arrested is informed about his rights like grounds of arrest, if he / she is entitled to bail and produced before a magistrate within twenty four hours.[/su_box]
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