1
RIGHTS OF ARRESTED PERSON
Dr. Mohd. Asad Malik
As we have discussed that if any person arrested by the police it may be deprivation of life and
personal liberty if it is not as per procedure established by law. In our country we are following
adversarial system, which is based on presumption of innocence (Person presumed innocent until
proven guilty) and it also protects the rights of individuals. You can see article 20, 21 and 22 of
the Constitution of India which provides certain safeguard for accused. The following are rights
available to the arrested person at the time of arrest in Cr. P. C.:
1. RIGHT TO KNOW THE GROUNDS OF ARREST
Indian constitution has also conferred on this right the status of the fundamental right. Article 22
(1) of the constitution provides 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.”
According to Section 50 (1) Cr. P. C. “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.”
Section- 50A of Cr. P. C. makes it compulsory for the person/ police official arresting a person to
inform of the arrest to any of his relatives or even friends who may have interest in the same.
When a subordinate officer is deputed by a senior police officer to arrest a person under Section
55 Cr. P. C., such subordinate officer shall, before making the arrest, notify to the person to be
arrested the substance of the written order given by the senior police officer specifying the
offence or other cause for which the arrest is to be made. Non- compliance with this provision
will render the arrest illegal.
In case of arrest to be made under a warrant, Section 75 Cr. P. C. provides that “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.” If the substance of the warrant is not
notified, the arrest would be unlawful.
2
The right to be informed of the grounds of arrest is a precious right of the arrested person.
Timely information of the grounds of arrest serves him in many ways. It enables him to move the
proper court for bail, or in appropriate circumstances for a writ of habeas corpus, or to make
expeditious arrangement for his defence.
The rules emerging from decision such as Joginder Singh v. State of U.P. (1994) 4 SCC 260 and
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 have been enacted in Section 50-A
making it obligatory on the part of the police officer not only to inform the friend or relative of
the arrested person about his arrest etc. but also to make entry in a register maintained by the
police. The magistrate is also under an obligation to satisfy himself about the compliance of the
police in this regard.
2. INFORMATION REGARDING THE RIGHT TO BE RELEASED ON BAIL
Section 50 (2) Cr. P. C. provides that “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 in bail that he may arrange for sureties on his.” This will certainly be of
help to persons who may not know about their rights to be released on bail in case of bailable
offences. As a consequence, this provision may in some small measures, improve the relations of
the people with the police and reduce discontent against them.
In bailable offence bail can be claimed as a matter of right but how accused can know whether
the offence bailable or not? It is right of accused to know and police officer will inform him/her
about this right. As we have already discussed in semester 4 in the case of Babu Singh v. State
of UP 1978 SC that bail is rule and jail is an exception.
3. RIGHT TO BE TAKEN BEFORE A MAGISTRATE WITHOUT DELAY
Whether the arrest is made without warrant by a police officer, or whether the arrest is made
under a warrant by any person, the person making the arrest must bring the arrested person
before a judicial officer without unnecessary delay. It is also provided that the arrested person
should not be confined in any place other than a police station before he is taken to the
magistrate. These matters have been provided in Cr. P. C. under section 56 and 76 which are as
given below:
3
Section 56 Cr. P. C. Person arrested to be taken before Magistrate or officer in charge of
police station- A police officer making an arrest without warrant shall, without unnecessary
delay and subject to the provisions herein contained as to bail, take or send the person arrested
before a Magistrate having jurisdiction in the case, or before the officer in charge of a police
station.
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 24 hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate’s Court.
4. RIGHT OF NOT BEING DETAINED FOR MORE THAN 24 HOURS WITHOUT
JUDICIAL SCRUTINY
Whether the arrest is without warrant or under a warrant, the arrested person must be brought
before the magistrate or court within 24 hours. Section 57 provides as follows:
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 Cr.P.C., exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Court.
This right has been further strengthened by its incorporation in the Constitution as a fundamental
right. Article 22 (2) of the Constitution proves that “Every person who is arrested and detained in
custody shall be produced before the nearest magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the journey from the place of arrest to the court of
the magistrate and no such person shall be detained in custody beyond the said period without
the authority of a magistrate.” In case of arrest under a warrant the proviso to Section 76
provides a similar rule in substance.
4
The right to be brought before a magistrate within a period of not more than 24 hours of arrest
has been created with a view-
To prevent arrest and detention for the purpose of extracting confessions, or as a means
of compelling people to give information;
To prevent police stations being used as though they were prisons- a purpose for which
they are unsuitable;
To afford to an early recourse to a judicial officer independent of the police on all
questions of bail or discharge.
In a case of Khatri (II) v. State of Bihar, (1981) SC the Supreme Court has strongly urged upon
the state and its police authorities to ensure that this constitutional and legal requirement to
produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be
scrupulously observed. This healthy provision enables the magistrate to keep check over the
police investigation and it is necessary that the magistrates should try to enforce this requirement
and where it is found disobeyed, come heavily upon the police.
If police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention.
In a case of 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. If officer denies the arrest, the magistrate can make an inquiry into the
issue and pass appropriate orders.
You can also see Bhim Singh v. State of J&K (1986) SC.
5. RIGHT TO SILENCE
The right to keep quiet does not have any mention in any Indian law, however, its authority can
be derived from Cr. P. C. as well as the Indian Evidence Act.
5
The right to stay silent is principally related to the statement and confession made by the accused
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 accused person was voluntarily or was after the use of force
and manipulation. Therefore, police or any other authority for that matter is not allowed to
compel an accused person to speak anything in the court.
The constitution of India guarantees every person right against self incrimination under Article
20 (3) “No person accused of any offense shall be compelled to be a witness against himself”. It
is well established that the Right to Silence has been granted to the accused by virtue of the
pronouncement in the case of Nandini Sathpathy v. P.L.Dani, 1978 SC no one can forcibly
extract statements from the accused, who has the right to keep silent during the course of
interrogation (investigation). By the administration of these tests, forcible intrusion into one’s
mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.
In 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a
violation of Article 20(3).
You can also see Miranda v. Arizona (1966) America SC
6. RIGHTS AT TRIAL
i. Right To A Fair Trial-
The Constitution under Article 14 guarantees the right to equality before the law. The Code of
Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This
provision is designed to ensure that convictions are not obtained in secret. In some exceptional
cases the trial may be held in camera. Every accused is entitled to be informed by the court
before taking the evidence that he is entitled to have his case tried by another court and if the
accused subsequently moves such application for transfer of his case to another court the same
must be transferred. However, the accused has no right to select or determine by which other
court the case is to be tried.
You can see article 10 of UDHR and article 21 of the constitution. Zahira Haibullah Sheikh v.
State of Gujarat (2004) SC is landmark judgment on fair trial. You can also see Zulfikar Ali
(2012) and Ajmal Amir Kasab cases (2012). But the base is Menaeka Gandhi case.
6
ii. Right To A Speedy Trial-
I uploaded article on Undertrials and most of the cases I covered in that article. The Constitution
provides an accused the right to a speedy trial. Although this right is not explicitly stated in the
constitution, it has been interpreted by the Hon'ble Supreme Court of India in the judgment of
Hussainara Khatoon. This judgment mandates that an investigation in trial should be held “as
expeditiously as possible”. In all summons trials (cases where the maximum punishment is two
years imprisonment) once the accused has been arrested, the investigation for the trial must be
completed within six months or stopped on an order of the Magistrate, unless the Magistrate
receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
You can also see section 309 Cr.P.C.
7. RIGHT TO CONSULT A LEGAL PRACTITIONER
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 crime he may/
may not have committed.
Section- 41D of Cr. P. C. allows prisoners to be able to consult with their lawyers even during
their interrogation.
Section- 303 of Cr. P. C. 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.
8. RIGHTS OF FREE LEGAL AID
I have already uploaded my article on ‘Right to Legal Aid’. Article- 39A The government in an
effort towards securing justice instituted Article- 39A to provide free legal aid to people in need
and the Apex court held that right to legal aid is fundamental right under article 21.
Section- 304 of Cr. P. C. provides a very significant right to every accused who is set to appear
before a Sessions Court to appoint him a lawyer (totally free of cost) at the expense of the State.
7
The court may appoint him a representing lawyer if the accused has no sufficient means to
appoint himself a lawyer for his case then.
In Khatri (II) v. State of Bihar, (1981) 1 SCC 627 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. However this constitutional
right of an indigent accused to get free legal aid may prove to be illusory unless he is promptly
and duly informed about it by the court when he is produced before it. The Supreme Court has
therefore cast a duty on all magistrates and courts to inform the indigent accused about his right
to get free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of
Arunachal Pradesh, (1987) SC wherein it has been categorically laid down that this
constitutional right cannot be denied if the accused failed to apply for it. It s clear that unless
refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing
setting aside of the conviction and sentence.
9. RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER
Sec. 53. Examination of accused by medical practitioner at the request of police officer.
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged
to have been committed under such circumstances that there are reasonable grounds for believing
that an examination of his person will afford evidence as to the commission of an offence, it shall
be lawful for a registered medical practitioner, acting at the request of a police officer not below
the rank of sub-inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the person arrested as is reasonable necessary in order
to ascertain the facts which may afford such evidence, and to use such force as is reasonably
necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall
be made only by, or under the supervision of, a female registered medical practitioner.
Explanation–
8
In this section and in section 54, “registered medical practitioner” means a medical practitioner
who possesses any recognized medical qualification as defined in clause (h) of section 2 of the
Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State
Medical Register.
Sec. 53A. Examination of person accused of rape by medical practitioner.
(1) When a person is arrested on a charge of committing an offence of rape or an attempt to
commit rape and there are reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of such offence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the Government or by a local authority and in
the absence of such a practitioner within the radius of sixteen kilometers from the place where
the offence has been committed by any other registered medical practitioner, acting at the request
of a police officer not below the rank of a sub-inspector, and for any person acting in good faith
in his aid and under his direction, to make such an examination of the arrested person and to use
such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following particulars,
namely,
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and”
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in
the report.
(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of
the documents referred to in clause (a) of Sub-Section (5) of that section.
9
Kathi David Raju v. State of A.P., (2019). The Punjab and Haryana High Court recently held
that conducting DNA profiling of the accused under Section 53A of the Cr.P.C is a part of fair
trial. The Court further held that under the provisions of Section 53-A Cr.P.C, it was imperative
for the prosecution to go in for DNA test since no cogent reason had been assigned by the trial
court while dismissing the application of the petitioners. It was further held that the opportunity
for conducting DNA profiling of both the petitioners is a part of fair trial and was also essential
for just decision in the present case.
You can also see Justice K.S. Puttaswami (Retrd.) v. Union of India (2017) SC
Sec. 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.
Sec. 54A. Identification of person arrested.
Where a person is arrested on a charge of committing an offence and his identification by any
other person or persons is considered necessary for the purpose of investigation of such offence,
the Court, having jurisdiction, may on the request of the officer in charge of a police station,
direct the person so arrested to subject himself to identification by any person or persons in such
manner as the Court may deem fit:
Provided that, if the person identifying the person arrested is mentally or physically disabled,
such process of identification shall take place under the supervision of a Judicial Magistrate who
shall take appropriate steps to ensure that such person identifies the person arrested using
methods that person is comfortable with:
10
Provided further that if the person identifying the person arrested is mentally or physically
disabled, the identification process shall be video graphed.
10. RIGHT OF THE ACCUSED TO PRODUCE AN EVIDENCE
It is one of the principle of natural justice that person should be allowed to produce evidence in
his defence. The accused even has right to produce witness in his defence in case of police report
or private defence. After the Examination and cross examination of all prosecution witness i.e.
after the completion of the prosecution case the accused shall be called upon to enter upon his
defence and any written statement put in shall be filled with the record. He may even call further
for cross examination. The judge shall go on recording the evidence of prosecution witness till
the prosecution closes its evidence.
The accused in order to test the veracity of the testimony of a prosecution witness has the right to
cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a right to
confront only witnesses. This right ensures that the accused has the opportunity for cross-
examination of the adverse witness. Section 33 of Indian Evidence Act tells when witness is
unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing
commission. The testimony at a formal trial is one example of prior testimonial statements which
can be used as documentary evidence in a subsequent trial.
When in the course of investigation an accused or any other person desiring to make any
statement is brought to a magistrate so that any confession or statement that he may be deposed
to make of his free will is record. Confession statements by accused to the police are absolutely
excluded under Section 25, Evidence Act.