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Rights of arrested person

“Person is not guilty till he is proved”. The whole criminal justice works on the concept of presumption of innocence of the accused until his innocence is challenged and proven in a court of law with pieces of evidence. This concept has its mentioning in Indian constitution also. Article 20 protects a person from self-incrimination and Article 21 says that everyone has a Right to life and thus in bailable case person shall be released on bail and in non-bailable cases courts may give him bail. Article 22 provides arrested person to be informed of grounds of arrest and to have a legal practitioner of his choice. These Fundamental Rights were incorporated in Constitution in 1949 but Code of Criminal Procedure is old legislation in which all these rights are already there, which shows farsightedness of legislators.

In Citizens for democracy v. State of Assam (Writ petition 22 of 1995) SC held that handcuffing is against free movement and can be resorted only on orders of the magistrate.

Many people often think why lawyers are provided by the state to terrorists like Mohd. Aamir Kasab or why Nirbhaya rapists were given a lawyer to defend their unexplained crime. So here is the answer, section 300 of CrPC, which enforces fundamental right that everyone has a right to be defended by a lawyer of his choice, and if a person has no sufficient means to engage lawyer, then section 304 requires the court under circumstances to arrange a lawyer for his defence at the expense of the state. Article 39-A recognizes it as a duty of the state.

There are different provisions in CrPC which provide a variety of Rights to an arrested person which have been strengthened by the judiciary from time to time. The first thing to be kept in mind is that a police officer can arrest a person without a warrant only in cognizable cases. In other cases i.e. non-cognizable case, a police officer can arrest a person only when he has a warrant issued by a magistrate. Here comes, the first Right of an arrested person that he may ask a police officer to show warrant in the non-cognizable case and under cognizable cases police officer must prepare a memorandum of arrest, which shall be attested by at least one witness who is member of the family or by a respectable member of the locality. This memo shall be countersigned by an arrested person also (Section 41B). The section also cast a duty on a police officer to convey to the person arrested that he has a Right to have a relative or a friend named by him to be informed of his arrest. Section 41D gives arrested person a Right to meet an advocate of his choice during interrogation and not throughout the interrogation. All these Rights were affirmed by the Supreme Court in case of Jogendra Kumar v. State of U.P. (AIR 1994 SC 1349).

Section 50 provides a right of an arrested person while conferring duty on a police officer to inform, the person about the particulars of offence and grounds of arrest in details immediately after his arrest without warrant. If the offence is bailable one, the arrested person shall be informed of his Right to be released on bail. This is a mandatory provision which confers a valuable Right and noncompliance of it may amount to a disregard of procedure established by law under Article 21. Non-compliance renders the arrest illegal. It is the immediate duty of the police officer arresting person to inform his friends, family, relatives or any person as submitted by the arrested person for conveying the information in respect of arrest.

There are many instances when an arrested person has to go through third-degree torture by police officials in order to collect pieces of evidence and thus to avoid those circumstances there are some Rights mentioned in Code. For instance, an arrested person has the Right to get examined by the medical officer in service of Central or state government. It is mandatory for the medical officer to record the conditions of the accused in which he has been brought to the hospital. Section 54 mentions that the accused has the Right to get this report so that if there was any mistreatment happened with him, he can prove that in court with evidence. In reference to this only Section 55A creates an obligation of police officers to take reasonable care of health and safety of an arrested person.

Whether the arrest is without or under a warrant, the person arrested must be brought before the magistrate or Court within 24 hours of his arrest unless on special orders of a magistrate under section 167. This right under section 57 has been furthered strengthened by its incorporation in the Constitution of India as a Fundamental Right under Article 22.

In Maneka Gandhi v. Union of India ( 1978 SCR (2) 621), Supreme court widened the scope of Article 21 and thus everyone has a Right to life which can only be taken away from a person with the procedure established by law. Thus if there is any violation of the Rights conferred to the arrested person it will be snatching of article 21 without the due procedure of law and thus police officials can be prosecuted for that too. section 60A also says that all the provisions of the chapter must be strictly followed means these Rights cannot be taken away.


Swati Tolambia is currently studying law from School of law, Mody University of Science and Technology, Laxmangarh, sikar (Raj.)

You can contact them: https://in.linkedin.com/in/swati-tolambia-bb22401aa

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