RIGHTS OF ARRESTED PERSONS

Code of Criminal Procedure as well as Constitution of India has provided certain rights of arrested persons. Following are the rights of arrested persons

1. Right to know the ground of arrest [Article 22(1) of Constitution, Sections 50, 55 and 75 of the Code] : Constitution of India has conferred ‘right to know the grounds of arrest’ the status of Fundamental Rights. Article 22(1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, the ground of the arrest.

In re Madhu Limaye, (1969) 1 SCC 292, Supreme Court held that Article 22(1) of the Constitution embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty. Legislative manifestation of this fundamental right has been provided under Sections 50, 55 and 75 of the Code. Section 50(1) of the Code provides 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 other grounds for arrest.

Section 55 provides that when a subordinate office is deputed by a senior police officer to arrest a person under Section 55, such subordinate officer shall, before making an arrest, notify to the person to be arrested the substance of the written order given by the senior police officer.

Section 75 provides that the police officer or other person executing a warrant of arrest shall notify the substance of the warrant of arrest to the person arrested.

Section 50A was inserted by Amendment Act of 2005. This amendment is the result of the decisions in Joginder Kumar’s case and D.K. Basu’s case. It makes it obligatory on the part of the police to inform the friend or relative of the arrested person about the arrest.

If the arrest is made by Magistrate without warrant under Section 44, the case is covered neither by Section 50 nor 55. This is the lacuna in the Code. However, it will not create any difficulty in practice as the Magistrate would still be bound to state the grounds under Article 22 (1) of Constitution [In re Madhu Limaye, (1969) 1 SCC 292].

2. Right to be informed about the release on bail [Section 50(2)] : Section 50(2) provides that when a police officer arrests a person without a warrant accused of a bailable offence, he shall inform him that he is entitled to be released on bail and he may arrange for sureties on his behalf.

3. Right to be produced before Magistrate without delay [Article 22(2), Section 57, 76 and 167] : This right has also got the constitutional protection in form of fundamental right in Article 22(2) of the Constitution. It provides that every person who has been arrested and detained in the custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. It must however, be noted that the time of 24 hours shall exclude the time necessary for the journey from the place of arrest to the court of Magistrate. Article 22(1) applies to cases of arrest without warrant as well as with warrant.

Section 57 and 76 are legislative manifestation of the constitutional right. Section 57 applies to arrest without warrant while Section 76 applies to arrest with a warrant. Section 57 provides that police officer shall not detain in custody a person arrested without a warrant for a longer period than what is reasonable and such period shall not exceed 24 hours except with an order of Magistrate under Section 167 of the Code.

Section 167 provides the procedure when the investigation cannot be completed within 24 hours. It also lays down the powers of Magistrate when accused is produced before him within 24 hours of arrest. If the police officer fails to produce an arrested person before the Magistrate, he will be guilty of wrongful detention.

4. Right to consult a legal practitioner [Article 22(1) of the Constitution, Sections 41D and 303] : Article 22(1) of the Constitution provides that arrested person shall not be denied the right to consult legal practitioner of his choice.

The right to consult legal practitioner is closely associated with right of free legal aid. The right of free legal aid is also implicit in Article 21. Supreme Court in Khatri (II) v. State of Bihar, (1981) 1 SCC 627, has held that the State is under a constitutional mandate to provide free legal aid to an indigent person. This right accrues not only when the trial begins but when the person is arrested and produced before a Magistrate. Supreme Court in Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401, has even held that if this constitutional right is denied then it would vitiate the trial.

Section 41D, inserted by Amendment Act of 2009, provides that when any person is arrested and interrogated by police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.

Section 303 also provides that any person against whom proceedings are initiated under the Code may of right be defended by a pleader of his choice. Section 304 provides for the legal aid to the accused at the expense of State in sessions trial as well as other trials. Supreme Court in Mohd. Azmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1, held that it is the duty of Magistrate and courts to inform the indigent accused about his right to get free legal aid.

5. Right to be examined by a medical practitioner [Section 53, 54] : Section 53 enables a police officer to compel an arrested person to undergo medical examination with a view to facilitate investigation. Section 54 gives the right to the accused person to have him medically examined to enable him to defend and protect himself properly.

Supreme Court in Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, has held that arrested person must be informed by the Magistrate about his right to be medically examined under Section 54.

Author & Former Judge

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