Updated: Jun 21, 2020
Author: Rajat Singhal
Ex-Student, B.A.LL.B., (batch of 2020) FIMT School of Law, GGIPU
“Every right is moral in additament to a legal entitlement to possess or do something”
Every human is born with some basic rights that he’s entitled to for example, right to freedom and right to live, etc. Predicated upon the norms of the criminal law is that the “Let the hundred guilty be acquitted but one innocent shouldn’t be convicted”. Similarly, every citizen of each country is presented with certain rights that are genuinely fair without any prejudice within the spirit of common brotherhood and conscience just like the right to freedom, right to equality, right to life, right to freedom of religion, right to education and plenty of more. However, the identical rights of an individual can get surrendered if the person gets apprehended/ detained for committing a criminal offense.
One of the fundamental tenets of our legal system is that the advantage of the presumption of innocence of the accused till he's found guilty at the tip of an endeavor on legal evidence. An illegal arrest of an individual may be a contravention of Article- 21 of the Indian Constitution that states, “no person shall be deprived of his right to life and private liberty except according to procedure established by law” which implies that the method ought to be clear, fair and no longer oppressive or arbitrarily. In a very democratic society, even the rights of the accused are sacrosanct, although accused of an offense; he doesn’t come to be a non-person. An apprehended person too has certain rights. Rights of the accused consist of the rights of the accused at the time of arrest, at the time of search and seizure, for the duration of the method of trial and also the like.
In this blog, we'll recognize the various rights that an apprehended person has as provided under the law prescribed through the Constitution of India. Hope this blog will give advance knowledge in the matter regarding the rights of apprehended and accused person.
Rights of the Arrested Person: -
1. Right To Know the Grounds of Arrest
Article-22(1) of the Indian Constitution stipulates that no police officer can arrest any person without informing the accused of the ground/ reason for his arrest/ detainment.
Section-50 of the Code of Criminal Procedure (Cr.P.C.) says that every police officer with authority to arrest someone without a warrant ought to tell the individual getting apprehended about the crime for which he’s apprehended and other applicable grounds for the arrest. So, that is the undeniable duty of the police officer to inform the accused of the particulars.
Section-50A of Cr.P.C. makes it compulsory for the person/ police official arresting an individual to inform of the arrest to any of his relatives or maybe friends who may additionally have an interest within the same.
Section-55 of Cr.P.C. states that in situations where a police official authorizes his junior to arrest an individual without a warrant, the junior official has to notify the apprehended individual of the order of delegation that’s given which should also mention the crime and also the reasons/ grounds of arrest. The arrest will be unlawful just in case of non-compliance with this provision.
Section-75 of Cr.P.C. states that the police legit executing the warrant need to notify the individual who is being apprehended, the content of such warrant, or show the warrant if required. If underneath any circumstance the substance of the warrant isn't notified, the arrest would be unlawful.
2. Right To Be Released On Bail
Section 50(2) Cr.P.C. provides that “the apprehended man or woman has the right to get released on bail through means of making arrangements for the sureties or simply inform him of his right whilst apprehended without a warrant for an offense aside from a non-cognizable offense.” This can be of help to people who won’t know approximately about their rights to be released on bail just in case of bailable offenses. As a consequence, this provision might also in some small measures, improve the relations of the people with the police, and reduce discontent against them.
3. Right To Be Produced Before The Magistrate Without Unnecessary Delay.
Whether the arrest is made without a warrant through a police officer, or whether or not the arrest is made underneath a warrant through any person, the person making the arrest must convey the apprehended individual before a judicial officer without unnecessary shelve. It’s also furnished that the apprehended individual should no longer be confined in any area apart from a police station before he’s taken to the magistrate. These subjects are furnished in Cr.P.C. under section 56 and 76 that are as given below:
Section-56: - Person arrested to be taken before Magistrate or officer in charge of the police station- A police officer arresting without a warrant shall, without unnecessary shelve and situation to the provisions herein contained on bail, take or send the person apprehended 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 officer or other individual executing a warrant of arrest shall (concern to the provisions of section 71 on security) without unnecessary shelve bring the person apprehended before the Court before which he's required via regulation to produce such person. On condition that such delay shall not, in any case, exceed 24 hours exclusive of the time vital for the journey from the area of arrest to the Magistrate’s Court.
Article 22(2) of the Constitution of India states that the officer making an arrest must be produced before the Magistrate within 24 hours of arrest. If the officer fails to produce before the Magistrate within 24 hours, he will be answerable for wrongful detention.
In a case of Khatri (II) v. State of Bihar, the Supreme Court has strongly urged upon the state and its police authorities to confirm that this constitutional and legal requirement to produce an apprehended person before a Judicial Magistrate within 24 hours of the arrest be scrupulously observed. This wholesome provision allows the magistrate to keep a check over the investigation done by the police officer the magistrates must try and enforce this requirement and where it’s found disobeyed, come heavily upon the police.
In a case of Poovan v. Sub- Inspector of Police it was stated that whenever a complaint is received by a magistrate that an individual is apprehended within his jurisdiction however has not been produced before him within 24 hours or a complaint has made to him that an individual is being detained within his jurisdiction past 24 hours of his arrest, he can and may call upon the policeman concerned; to state whether or not the allegations are genuine and if so; on what and under whose custody; he’s being so helped. If the officer denies the arrest, the magistrate could inquire into the issue and pass appropriate orders.
4. Rights At Trial
i) Right To A Fair Trial
Any provision associated with the right to a fair trial isn’t given in Cr.P.C. but such rights can be derived from the Constitution and the various judgments.
Article 14 of the Constitution states that “the state/country shall not deny to any person equality before the law”. It implies that all the parties to the dispute must be given equal treatment. The principle of natural justice ought to be considered in appreciation of both the parties.
The Code of Criminal Procedure also provides that for a trial to be fair, it ought to be an open court trial. This provision is meant to make sure that convictions don’t seem to be obtained in secret. In some exceptional cases, the trial can be held in private through a camera. Every accused is entitled to be informed by the court before taking the evidence that he’s entitled to have his case tried by another court and if the accused subsequently moves such application for transfer of his case to a different court the same must be transferred. However, the accused has no right to pick or determine by which another court the case is to be tried.
ii) Right To A Speedy Trial
The Constitution provides an accused the right to a speedy trial. Although this right isn’t explicitly stated within the constitution, it’s been interpreted by the Hon'ble Supreme Court of India in the judgment of Huissainara Khatoon vs Home Secretary, State of Bihar, the court held-“the investigation in the trial has to be conducted as expeditiously as possible.”
In cases, wherein the maximum punishment to be imposed is 2 years, once the accused is apprehended, it’s vital that the investigation for the trial gets completed within 6 months or is stopped after an order from Magistrate has been received, until the Magistrate receives and accepts, along with his reasons in writing, that there’s reason to increase the investigation.
5. Right To Silence
The Right to keep Silence derives its authority from Cr.P.C. and also the Indian Evidence Act. The ‘Right to Silence’ could be a principle of common law and it implies that commonly courts or tribunals of fact shouldn’t be invited or advocated to conclude, via prosecutors or parties, that a suspect or an accused is responsible merely due to the fact he has refused to reply to questions placed to him via the police or by using the Court. This right is especially related to the statement and confession made within the Courtroom. Whenever a confession or an announcement is made inside the court, it’s far the responsibility of the Magistrate to find, that this type of declaration or the confession becomes made voluntarily or now not. No apprehended man or woman may be pressured to talk anything inside the courtroom. The Right to Silence is especially involved in the confession.
Article 20(3) states that no man or woman may be compelled to be a witness in opposition to himself. This is the precept of self- incrimination. This principle becomes reiterated through the case of Nandini Satpathy Vs. P.L Dani and Anr. It stated, “No one can force any man or woman to provide an announcement or to reply questions and also the accused man and woman has a right to keep silence at some point in the process of interrogation.”
By the administration of these tests, forcible intrusion into one’s thoughts is being restored, thereby nullifying the validity and legitimacy of the Right to Silence. In 2010 The Supreme court of India made Brain Mapping, Lie Detector, and Narco-Analysis check as a contravention of Article 20(3).
6. Right To Consult A Legal Practitioner
Article 22(1) of the Constitution presents that no man or woman who’s apprehended shall be denied the right to consult a legal practitioner of his/ her choice. Further, as has been held by the Supreme Court that state is under a constitutional direction (implicit in article 21) to provide free legal aid to an indigent accused person, and therefore the constitutional obligation to provide free legal aid does no longer arise only when the trial commences but additionally attaches whilst the accused is for the first time produced before the magistrate, as also whilst remanded from time to time. It’s been held by the Supreme Court that non-compliance with this requirement and failure to inform the accused of this right could vitiate the trial.
Section 50(3) of Cr.P.C. also offers that any individual against whom proceedings are instituted under the code may also of right be defended by using a pleader of his choice. The right of an apprehended individual to consult his legal practitioner starts from the moment of his arrest. The consultation/session with the legal practitioner can be in the presence of a police officer but no longer within his hearing.
Section- 303 of Cr.P.C. allows every alleged criminal/ convict the right to be defended by a legal practitioner of his choice whether or not the criminal proceedings against him have already begun.
7. Rights Of Free Legal Aid
In Khatri (II) v. The State of Bihar, the Supreme Court has held that the state is under a constitutional direction (implicit in Article 21) to provide free legal aid to an indigent accused person, an and therefore the constitutional obligation to provide free legal aid doesn’t arise only whilst the trial commences but additionally attaches whilst the accused is for the first time produced before the magistrate, as additionally whilst remanded from time to time. However, this constitutional right of an indigent accused to get free legal aid may additionally prove to be illusory until he’s promptly and duly knowledgeable about it by the court when he’s 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 obtain free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it’s been categorically laid down that this constitutional right can’t 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 could vitiate the trial entailing setting aside of the conviction and sentence.
8. Right To Be Examined By A Health Care Practitioner
Section 54 of Cr.P.C. now renumbered as Section 54(1) provides:
Section-54: - Examination of an apprehended individual through health care practitioner at the request of the apprehended individual. When an individual who’s apprehended, whether on a charge or otherwise, alleges, at the time when he’s produced before a Magistrate or at any time at some point of the duration of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offense or as to establish the commission by any other person of any offense against his body, the Magistrate shall, if requested by the apprehended individual so to do direct the examination of the body of such person by a registered health care practitioner until the Magistrate considers that the request is created for the aim of vexation or delay or for defeating the ends of justice.
9. Right Of The Accused To Produce An Evidence
The accused even has the right to produce witnesses in his defense in case of the police report or private defense. After the examination and cross-examination of all prosecution witnesses i.e. after the completion of the prosecution case, the accused shall be called upon to enter upon his defense 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 until the prosecution closes its evidence.
The accused to test the veracity of the testimony of a prosecution witness has the right to cross-examine him. Section 138 of the Indian Evidence Act, 1872 gives the 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 the Indian Evidence Act tells when the witness is unavailable at trial; a testimonial statement of the witness may be 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 the 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 recorded. Confession statements by accused to the police are excluded under Section 25, Evidence Act.
10. Additional Rights Available To An Arrested Person
· Section- 55A of Cr.P.C. asserts that maintaining reasonable health care and safety of every apprehended person will be the sole responsibility of the person (police official) who has the custody of the accused. This principle was established to protect the apprehended person from cruel and inhuman treatment in prison.
· Section- 358 of Cr.P.C. is another ground breaking effort towards the principle of natural justice where the apprehended person is provided with compensation when apprehended unreasonably.
· Section- 41A of Cr.P.C. asserts that the police officer must furnish notice to the person who has supposedly committed a cognizable offense to appear before him at a specified time, date, and location.
· Section- 46 of Cr.P.C. stipulates the mode of the arrest of an accused person which includes submission to the custody by the accused, physically touching the body, or to a body. The police officer must not cause the death of the accused person while trying to arrest the person except when the person to be apprehended is accused of an offense which is punishable with death or life imprisonment or when the accused person is trying to unnecessarily resist his arrest by turning violent and aggressive or when the accused is trying to escape.
Section- 49 of Cr.P.C. asserts that the police officer must not restrain or detain the accused without a legal arrest.
It is normally believed that despite the numerous safeguards in the Cr.P.C. as well as in the Constitution of India, the power of arrest given to the police is being misused until this day. India faces an immense hassle of unlawful arrests as well as custodial deaths which might be majorly caused due to illegal arrests. These problems undermine the essence of Article- 21 of the Indian Constitution in addition to the fundamental human rights that are available to every person under the Universal Declaration of Human Rights. It is withal believed that the police often utilize their position of puissance to threaten the apprehended persons and take benefit of their workplace to extort money. There have additionally been innumerable reports on custodial violence that lead many to believe that deprivation of basic rights of the apprehended persons has become commonplace nowadays. The guidelines issued by the Supreme Court in D.K Basu vs State of West Bengal are not properly being implemented. Proper implementation of the provision and guidelines can result in the decrementing number of an illegal arrest.
 1981 SCR (2) 408, 1981 SCC (1) 627  1993 CriLJ 2183  1979 AIR 1369, 1979 SCR (3) 532  The constitution of India, 1950  AIR 1978 SC 1025, 1978 CriLJ 968, (1978) 2 SCC 424, (1978) SCC(Cri) 236,  3 SCR 608  The constitution of India, 1950  1981 SCR (2) 408, 1981 SCC (1) 627  AIR 1986 SC 991  AIR 1997 1 SCC 416
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