This article has been written by Akshay Pradeep during his internship.
Everyone is born with certain basic rights that he’s entitled to as an example, right to measure and right to freedom etc. Similarly, every citizen of the country is presented with certain rights that are absolutely fair with none prejudice within the spirit of common brotherhood and conscience just like the right to life, right to equality, right to freedom, right to education, right to equality, right to freedom of faith and lots of more.
The system in India is established on the platform of “innocent till proven guilty”. An unlawful arrest of a private may be a violation of Article- 21 of the Indian Constitution that states, “No human shall be denied of his right to life and private liberty except if established by law” which suggests that the method must be fair, clear and not oppressive.
Our constitution is predicated on fundamental that “Let Hundreds Go Unpunished, But Never Punish An Innocent Person” Right to urge a good representation during a criminal procedure may be a facet of Right to Equality (Article 14). Article 20 says that “no person shall be convicted of any offence apart from violation of a law effective at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which could are inflicted under the law effective at the time of the commission of the offence”. Thus, convicted is given fair equality like every other citizen.
Also by the judicial voice, a wider scope has been given to right to life and liberty and thus convicted are given a person’s treatment in jails fulfilling reformative theory approach.
Article 22 talks that nobody shall be detained in custody without being informed and of the grounds for such arrest nor shall he be denied the proper to consult and to be defended by, legal practitioner of his choice. The exception to the proper is that it’s to not be applied on alien. The word alien denotes that the person isn’t an Indian citizen Thereby; these rights under constitution are inherent rights and can’t be changed.
What are the various rights of an arrested person?
1 – Right to understand the grounds of arrest
• Article- 22(1) of the Indian Constitution states that no police official can arrest a private without informing the person the reason/ ground of his detainment/ arrest.
• Section- 50 of the Code of Criminal Procedure (CrPC) states that each police official with an authority to arrest someone without a warrant must inform the person getting arrested about the crime that he’s arrested and therefore the grounds for the arrest. this is often one among the duty of the police official which he cannot refuse.
• Section- 50A of the code of criminal procedure makes it compulsory for the person/ police official arresting an individual to tell about the arrest to any of his relatives or maybe friends who may have interest within the same.
• Section- 55 of the code of criminal procedure states that in situations where a police official authorises his junior to arrest an individual without a warrant, he must notify the arrested person of the order of delegation that’s given which must also mention the crime and therefore the grounds of arrest.
• Section- 75 of the code of criminal procedure states that the police official executing the warrant must notify the substance to the arrested person and furnish the warrant of the arrest whenever required.
2. Right to be produced before the Magistrate without unnecessary delay
• Article- 22(2) of the Indian Constitution states that the police official making an arrest must produce the arrested person before the Magistrate within 24 hours of the arrest failing to try to so would make him responsible for wrongful detention.
• Section- 55 of the code of criminal procedure states that just in case a police official is making an arrest without warrant, then he must produce the person arrested with none unnecessary delay before the Magistrate with jurisdiction or before a policeman responsible of the police headquarters , depending upon the conditions of the arrest.
• Section- 76 of the code of criminal procedure states that the arrested person must be produced in court within 24 hours of his arrest, an equivalent can exclude the time duration which is required for the journey from the place of arrest to the Magistrate Court.
3. Right to be released on bail
• Section- 50 (2) of the code of criminal procedure states that the arrested person has the proper to urge released on bail by making arrangement for the sureties or simply inform him of his right when arrested without a warrant for an offence aside from a non-cognizable offence.
4. Right to a fair and just trial
The legal provision regarding the proper to a good and just trial are often extracted from the Indian Constitution also as tons of Supreme court and supreme court judgments since no specified law has been stipulated in this regard.
• Article– 14 of the Indian Constitution states that ” every individual is equal before the law” which means that all the sides in a legal dispute must be treated equally.
The principle of natural justice must be considered in respect to both the parties.
Similarly, a right to a speedy trial has also been upheld in “Huissainara Khatoon v/s Home Secretary, State of Bihar” where the court observed that “the trial must be disposed of as diligently as possible”.
5- Right to consult a lawyer
• Article- 22 (1) of the Indian Constitution provides that every arrested person has the right to choose and elect his own lawyer to defend him in the court of law for whatever the crime he may/ may not have committed.
• Section- 41D of the code of criminal procedure allows prisoners to be able to consult with their lawyers even at the time of their interrogation.
• Section- 303 of code of criminal procedure allows every alleged convict/ criminal the right to be defended by a lawyer of his choice even if the criminal proceedings against him have already begun.
6- Right to free legal aid
• Article- 39A The government in effort towards securing justice instituted Article- 39A to provide free legal aid to people in need. The same right was reaffirmed in the dispute of Khatri v/s Bihar, where the court held that, “the state must provide free legal aid to the poverty- stricken convicted person”.
• Moreover, this right to free legal aid for the convicted cannot be refused even when the convicted fails to ask. a key note to remember, if the government is unable to provide free legal aid to the poverty- stricken convicted person, then whole trial will stand to void.
• The same was established in Sukh Das v/s Arunachal Pradesh where the Court held that, “the right of a poverty- stricken convicted person cannot be refused even when convicted fails to apply for the same”.
• Section- 304 of the code of criminal procedure provides a significant right to every convicted person who is set to appear before a Sessions Court to appoint him a lawyer (totally freed from cost) at the expense of the State. The court may appoint him a representing lawyer if the convict has no sufficient means to appoint himself a lawyer for his case then.
7- Right to keep quiet
The right to keep quiet does not have any mention in any Indian law, however, it can be derived from code of criminal procedure as well as the Indian Evidence Act.
The right to stay silent is principally related to the confession made by the convict person in the court. In addition to this, it is the responsibility of the magistrate to perceive if any statement or confession made by the convicted person was voluntarily or was after the use of force and manipulation.
Article- 20(2) Additionally, reiterates that no person whether convicted or not cannot be compelled to be a witness against himself. This act of exposing oneself is that the principle of self- incrimination. This principle was affirmed in the case of Nandini Satpathy. Dani.
8- Right to be examined by a doctor
Section- 54 of the code of criminal procedure states that if an arrested person claims that medical examination of his body would lead to a detail which would dismiss the fact of the commission of the crime by him, or some detail that will lead to evidence towards commission of the crime by some other person against his body.
9- Additional rights available to an arrested person
• Section- 55A of the code of criminal procedure asserts that maintaining reasonable health and safety of every arrested person will be the sole responsibility of the person (police official) who has the custody of the convicted.
This principle was established to guard the arrested person from cruel and cruelty within the prison.
• Section- 358 of the code of criminal procedure is another effort towards the principle of natural justice where the arrested person is given a compensation when arrested unreasonably.
• Section- 41A of the code of criminal procedure asserts that the police official must send a notice to the person who has supposedly committed a cognizable offence to appear before him at a specified time, date and location.
• Section- 46 of the code of criminal procedure states that the mode of arrest of an convicted person which includes submission to custody by the convicted, physically touching the body, or to a body.
• The police official must not cause death of the convicted person while trying to arrest the person except when the person to be arrested is convicted of an offence which is punishable with death or captivity or when the convicted person is trying to unnecessarily resist his arrest by turning violent and aggressive or when the convicted is trying to flee .
• Section- 49 of the code of criminal procedure asserts that the police official must not restrain or detain the convicted without arrest.
• Section- 41B every police official who conducts the investigation/ arrest must supply clear, visible and valid badge where the name and designation of the police official is clearly mentioned.
• Section 41D entitles an arrested person the right to have one friend or relative or any other person who he wants by his side during his arrest.
• Section- 41C every arrest made by any police official must be informed to the District and the State headquarters within 12 hours of any arrest which also needs to be displayed on the conspicuous board.
Cases In, Nandini Sathpathy v. P.L.Dani 1978 SCR (3) 608, wherein it had been held that nobody can forcibly extract statements from the accused which the accused has the proper to stay silent during the course of interrogation (investigation).
In, D.K. Basu v. State of W.B (1997) 1 SCC 416,the Supreme Court, during this case, issued some guidelines which were required to be mandatorily followed altogether cases of arrest or detention which include, the arresting authority should bear accurate, visible, and clear identification alongside their name tags with their designation, the memo be signed by the arrestee and loved one , the family or the friend must be told about the arrest of the accused, The arrestee could also be permitted to satisfy his lawyer during interrogation, though not throughout the interrogation and lots of other.
India faces an enormous problem of illegal arrests also as custodial deaths which are majorly caused thanks to illegal arrests. These problems undermine the essence of Article- 21 of the Indian Constitution also because the fundamental human rights that is available to everyone under the Universal Declaration of Human Rights. The stipulations issued in D.K. Basu v/s West Bengal by the Supreme Court of India aren’t being properly executed and thus , it’s the necessity of the hour to undertake and execute the issued provisions and guidelines properly which may definitely bear better results which might ultimately help decrease the amount of an illegal arrests and resulting custodial deaths.