RIGHTS OF AN ARRESTED PERSON – “A PENDULUM STILL SWINGING”

By Asmita Rajbhar

INTRODUCTION

“A person is presumed to be innocent until it is held guilty.” It is a basis in our country followed to strike a balance between the society and the personal liberty to maintain peace and order. The above-mentioned thought is suitable only in a theoretical way but in practicality the scenario seems to be very different. The statistics reveals the drastic picture of the person who are arrested. In Delhi, while the total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are 1,73, 634.The percentage of persons arrested in bailable offences is 45.13. In Haryana, the percentage of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89% and in Andhra Pradesh it is 36.59%.

What is known as rights?

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory. Rights are of essential importance in such disciplines as law and ethics, especially theories of justice and deontology. Rights are often considered fundamental to civilization, being regarded as established pillars of society and culture, and the history of social conflicts can be found in the history of each right and its development[1].

LEGISLATIONS/CONVENTIONS/CONSTITUTION GOVERNING RIGHTS OF AN ARRESTED PERSON

Constitution of India Governing Rights of an Arrested Person.

Article 14: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Article 19(1): (1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

Article 20: Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence

(2) No person shall be prosecuted and punished for the same offence more than once

(3) No person accused of any offence shall be compelled to be a witness against himself

Article 21:  Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 22:  Protection against arrest and detention in certain cases.[2]

UNIVERSAL DECLARATION OF HUMAN RIGHTS:

Article 3: Everyone has the right to life, liberty and security of person.

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9: No one shall be subjected to arbitrary arrest, detention or exile.

Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11: (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.[3]

Provisions of Criminal Code Procedure, 1973

Section 50: Person arrested to be informed of grounds of arrest and of right to bail.

(1) 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 such arrest.

(2) 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 and that he may arrange for sureties on his behalf.

Section 75: Notification of substance of warrant. The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

Section 41: When police may arrest without warrant.

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

Section 54: Examination of arrested person by medical practitioner at the request of the arrested person. When a person who 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 in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

Section 55(A): Health and safety of arrested person.

Section 57: Person arrested not to be detained more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court.

Section 76: Person arrested to be brought before Court without delay. 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: Provided that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court.

Section 303:  Right of person against whom proceedings are instituted to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.[4]

SPECIAL PROTECTION TO FEMALES -:

  • General rule is that Females are not be arrested without the presence of a lady constable and further no female be arrested after sun-set but there are exception in some cases, where crime is very serious and arrest is important then arrest can be made with special orders and it depends on facts and circumstances of each case. Separate lock ups to be provided for them.
  • The salutary principle that the medical examination of a female should be made by female medical practitioner has been embodied in sec 53(2).[5]

RIGHTS OF AN ARRESTED PERSON

Sr.noRights of an arrested personGoverning Sections/Articles
1.Right to know the grounds of arrestArticle 22(1), Section 50, 55(A), 55, 75, of Crpc.
2.Right to be produced before the Magistrate without unnecessary delayArticle 22(2), Section 55 and 76 of Crpc.
3.Right to be released on bail  Section 50(2) of Crpc.
4.Right to a fair and just trialArticle 14 of Indian Constitution
5.Right to consult a Lawyer  Article 22(1), Section 41 D and 303 of Crpc.
6.Right to free legal aidArticle 39 A of Indian Constitution. Section 304 of Crpc.
7.Right to keep quietArticle 20(2) of Indian Constitution.
8.Right to be examined by a DoctorSection 54 of Crpc.
9.Right Of The Accused To Produce An EvidenceSection 138 of Indian Evidence 1872
9.Additional rights available to an arrested personSection 41(A)(B)(C)(D), 46, 49, 55(A), 358 of Crpc.

CASES DEALING WITH RIGHTS OF AN ARRESTED PERSON

In case of State of Maharashtra Vs Christian Community Welfare Council of India [(2003) 8 SCC 546]

In this case, SC departing from long tradition of not arresting women at night and not arrest women in the absence of a female constable, The Supreme Court held that “We do agree with the object behind the direction issued by the High court, We think a strict compliance with said direction, in given circumstances, would cause practical difficulties to investing agencies and might even room for evading the process of law by unscrupulous accused. While it is important to protect the female sought to be arrested by the police from police misdeeds but it may not possible and practical to have the presence of lady constable.

JOGINDER KUMAR VS STATE OF U.P [(1994) 4 SCC 260] 

In this case Apex Court ruled that an arrested person being held in custody is entitled , if he so requests, to have one friend , relative or other person interested in his welfare , told that he has been arrested and where he is being detained. The police officer shall inform the arrested person when is brought to the police station of this right. An entry shall be requested to be made in the diary as to who was informed of the arrest. The Magistrate is obliged to satisfy himself that there requirements have been complied with.

STATE OF HARYANA VS DINESH KUMAR [(2008) 3 SCC 222]

In this case, the issue was what constitute arrest and custody in relation to criminal proceedings. In other words, whether the manner in which respondent had appointed appeared before the Magistrate and was released without being taken into formal custody could amount to arrest. The respondent without surrendering to the police had appeared before the Magistrate with his lawyer and was immediately granted bail. The high Court held that since the accused had neither surrendered nor had taken into custody, it could not be said that he had actually been arrested. The Supreme disagreed with the High Court. It held that even in such circumstances, the appearance of the accused before the Magistrate amounts to arrest. It held that a person can be in custody not merely when the police arrest him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.[6]

ARNESH KUMAR VS STATE OF BIHAR [(2014) 8 SCC 273]

 In this case, the apex Court emphasized the need for caution in exercising the drastic power of arrest by the police and also by the Magistrate while authorizing detention of the accused. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.   

In Khatri (II) v. State of Bihar

The Supreme Court has held that the state is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time.[7]


In Poovan v. Sub- Inspector of Police

 It was said that whenever a complaint is received by a magistrate that a person is arrested within his jurisdiction but has not been produced before him within 24 hours or a complaint has made to him that a person is being detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon the police officer concerned; to state whether the allegations are true and if so; on what and under whose custody; he is being so helped.[8]

Guidelines as per DK. Basu Versus State of West Bengal

Supreme Court issued in the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures.

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody, by a doctor in the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should to magistrate.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11. A police control room should be provided at all Districts and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the Officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.[9]

CONCLUSION:

The condition of an arrested person in India is being deteriorating day by day as the above title suggests the “Rights of an arrested person – A swinging pendulum”. Since long back our country has ratified conventions, implemented legislations to protect the rights of an arrested person but due to administrative failure we still lack behind to protect the rights of an arrested person. It is highly urged from the government to follow back and implement the recommendations enshrined in the 177th law Report on rights of an arrested person.


[1] https://www.definitions.net/definition/Rights

[2] Constitution of India

[3] https://www.un.org/en/universal-declaration-human-rights/

[4] Code of civil procedure 1973

[5] http://racolblegal.com/arrest-procedure-and-rights-of-arrested-person-in-india/

[6] http://racolblegal.com/arrest-procedure-and-rights-of-arrested-person-in-india/

[7] http://www.legalservicesindia.com/article/1635/Rights-of-Arrested-Person.html

[8] http://www.legalservicesindia.com/article/1635/Rights-of-Arrested-Person.html

[9] https://shodhganga.inflibnet.ac.in/bitstream/10603/95855/12/18%20d.k.%20basu%20guidelines.pdf

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