What are the rights of an arrested person?

The author has described the meaning, procedure and rights associated with the arrest. Judicial precedents were used accordingly.

What is an arrest?

Generally, a person who breaks the law is arrested. The term arrest means to arrest a person by the judicial authority for the purpose of causing a deprivation of liberty. In addition, an arrest can also be understood as a seizure or forcible restraint. It is an exercise of power to deprive a person of his or her freedom and involves the detention of a person by the judicial authority, particularly in response to a crime.

According to criminal law, an arrest is an important tool to bring a defendant to justice and not to let him flee.

Types of arrest

There are two types of arrest:

  1. An arrest for a Arrest warrant issued by a judge
  2. Made an arrest without such a warrant but in accordance with some legal provisions that allow such an arrest.

The process of arresting a person

In cases where the police arrest a person on the basis of an arrest warrant issued by a judge, the person may only be handcuffed if the judge has instructed them to do so.

In cases in which a woman is to be arrested, her submission is presumed with a verbal suggestion of arrest, unless the circumstances indicate otherwise or if there is no police officer, the arresting woman may not touch the woman who is to be arrested.

If a person to be forcibly arrested opposes or in any way attempts to evade arrest, the police officer or any other person involved in the arrest may use whatever means necessary to carry out the arrest.

No women may be arrested after sunset and before sunrise, except in exceptional circumstances and when such exceptional circumstances exist. It is the duty of the policewoman to make a written report and obtain prior permission from the first class judge responsible for the offense for which such arrest is to be made.

Rights of an Arrested Person in India

A defendant in India is given certain rights, the most basic of which are contained in the Indian Constitution.

Article 21 the Indian Constitution provides such rights. The treatment of such people must be humanly and legally prescribed.

Right of silence:

Article 20 (3) of the Constitution of India guarantees everyone the right to self-indictment, and it has been established in this article that no person accused of a crime may be compelled to act as a witness against himself. The same rule was affirmed by a Supreme Court ruling in the case of Nandini Sathpathy v PL Dani, and it was decided by the court in this case that no one could forcefully evade a testimony from the accused.

Right to know the reasons for arrest:

Pursuant to Section 50 (1) Cr.PC, a defendant who is arrested by a police officer without an arrest warrant has the right to know the full details of the crime for which he is being arrested and therefore it is the police officer’s undeniable duty to inform the defendant of the details.

According to § 55 Cr.PC, a written order is to be made against him, in which the criminal offense or another reason is given, for which the arrest was made. The arrest is unlawful if this provision is not complied with.

Right to release on bail:

Article 21 of the Indian Constitution states that every individual has a right to liberty according to the procedures established by law. However, not all of these freedoms can be given to a defendant until proven innocent. However, he must be informed that he has the right to ask for bail for criminal offenses and even for non-criminal offenses. The bail could be granted by the court after considering factors such as the type or gravity of the offense, the nature of the offense, evidence, etc.

Right to be brought before the magistrate immediately:

Pursuant to Section 55 of the Cr.PC, a police officer arrested without an arrest warrant should immediately bring the arrested person to the competent judge or a police officer responsible for the police station under the conditions of the arrest.

According to Section 76 Cr.PC, the person should be produced in court within 24 hours of their arrest. When calculating 24 hours, the time required to travel from the place of detention to the district court must be excluded.

Article 22 (2) of the Constitution states that the police officer who makes an arrest must be presented to the magistrate within 24 hours of the arrest. If the police officer does not present to the magistrate within 24 hours, he is liable for the illegal detention.

Right to a fair trial:

Article 14 of the States Constitution states that “all persons are equal before the law”. This means that all parties to the dispute should be treated equally. The Principle of natural justice should be considered in relation to both parties. The right to a speedy trial is recognized in the Huissainara khatoon case against the Interior Minister of Bihar State. The court ruled: “The case must be eliminated as soon as possible.”

Right to a quick process:

Regardless of the fact that this right is not mentioned in the Constitution, the Supervisory Committee in the Hussainara Khatoon case has mandated that the investigation into the process must be carried out “as soon as possible”.

In cases where the maximum sentence is 2 years, after the defendant is arrested, it is important that the investigation into the trial is completed within six months or that it is terminated after receiving an order from the judge, unless the judge receives and agrees with his written reasons that there is reason to expand the investigation.

Right to consult a lawyer:

It is the right of every person arrested to consult an attorney of their choice. This has also been enshrined as a fundamental right in Article 22 (1) of the Constitution of India, which cannot be denied in all cases. According to Section 50 (3) of the Code, the person against whom proceedings are initiated has the right to be defended by an applicant of his choice. This right begins as soon as the person is arrested.

Right to free legal assistance:

The Supreme Court in the Khatri v. Bihar State case ruled that the state has a constitutional obligation under Article 21 of the Constitution to provide free legal assistance to an accused person in need.

It is important to note that this right begins at the time of the trial and lasts until the accused is first taken before the judge and also from time to time in pre-trial detention.

The Supreme Court has underscored the importance of this right by stating that the state’s failure to inform the accused of this right will undermine the entire process of the trial.

It is therefore a binding obligation to require all judges and courts to inform those in need of their right to free legal assistance. The Apex Court in Suk Das v Union Territory of Arunachal Pradesh went one step further and stipulated that this constitutional right cannot be denied unless the defendant requests it.

Right to be examined by a doctor:

Section 54 of the Cr.PC enumerates this right and states that the arrested person is examined by a doctor at the request of the arrested person.

If an arrested person, whether on charges or otherwise, at the time of their submission to a judge or at the time they are in custody, alleges that an examination of their body provides evidence that will lead to the Commission rebutted by The judge directs the examination of that person’s body by a licensed doctor if he is committing a crime or if another person is committing a crime against his body.

The magistrate, in its sole discretion, must ensure that the motion is not brought in for trouble or delay, or for overcoming the ends of justice.

Conclusion

Death in custody and illegal arrest are major problems in India. It violates Article 21 of the Constitution, as well as the fundamental human rights contained in the Universal Declaration of Human Rights. The guidelines issued by the Supreme Court in DK Basu against the state of West Bengal are not being properly implemented. Proper implementation of rules and guidelines can reduce the number of illegal arrests.

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