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Rights of the Accused and the Constitutional Protection availed to them

Protecting the rights of someone who is suspected of a crime is equally as vital as taking action to combat crime by arresting a person in order to protect and safeguard the members of society. The protection of individual civil liberties without unreasonably impeding the effective operation of law enforcement authorities is thus a crucial issue that courts and governments must address. The prevalence of criminal offences is rising, and there has been progress in creating tools for monitoring and custody, which emphasises how serious this issue is.

The essential issues are evident: According to constitutional requirements, individual civil liberties must be protected. Yet, these precautions shouldn't be so strict that they render law enforcement impossible or inevitably lead to police "lawlessness".[1]

India's criminal justice delivery system is structured like a pyramid or hierarchical system, with the Supreme Court of India serving as the summit court at the top. It is made up of numerous overlapping tiers. Any individual who is arrested, detained, or suspected of an offence is granted specific constitutional safeguards and legal protections as reflected in various clauses throughout the course of a criminal proceeding, from the point of arrest until the trial of a criminal case concludes in finality[2]. The criminal justice system is made up of three distinct parts, each of which has its own communications channels and working environment.

Meaning of Arrest
Arrest is "a seizure or forcible restraint; an exercise of the power to deny someone their liberty; the taking or keeping of a person in custody by legal authority, especially in response to a criminal charge or to stop or check the motion, course, or spread of, to seize or take into custody by authority of the law, to catch and keep one's attention, sight, etc."[1]

The term "arrest" was defined by Halsbury's Law of England as follows: However, words may constitute an arrest if they are calculated to alert a person to the fact that he is under compulsion and actually do so, and the person subsequently submits to the compulsion. Arrest consists in the seizure or touching of a person's body with the intention of his restraint[2].
Rights under Criminal Procedure Code,1973
  • Right to Know the Grounds of Arrest
    According to Section 50(1), "any police officer or other person" who arrests a person without a warrant "must forthwith convey to him full particulars of the offence for which he is arrested or other grounds for such arrest" and provides specific instructions to this effect. Second, when a senior police officer assigns a subordinate officer to make an arrest pursuant to Section 55, that subordinate officer shall inform the subject of the arrest of the substance of the written order issued by the senior police officer identifying the offence or other reason for the arrest before the arrest is made. If this clause is broken, the arrest will be invalid.[1]

    Arrests made in accordance with an arrest warrant are allowed under Section 75 of the Code. "The police officer or other person executing a warrant of arrest shall advise the person to be arrested of the substance thereof and, if so requested, shall show him the warrant," it adds. The arrest would be illegal if the police officer or other person hadn't informed the subject of the warrant.[2] In addition, article 22(1) of the Constitution expressly recognises the right to be informed of the reasons for an arrest. It states that "No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his own choice."

    According to Section 50 of the Criminal Procedure Code, a police officer who is detaining a person is required to provide him all the details of the crime for which he is being detained.

    In accordance with Section 51, the person who has been arrested must also be searched, and any items found on him must be kept in safe custody. In Udayabhan Shukla v. State of Uttar Pradesh[3], the Allahabad High Court was asked about the repercussions of failing to disclose the reason for the arrest; however, one of the reasons was already revealed, and the court found it to be adequate.

    Section 59(2) of the Code states that "where a police officer arrests any person without warrant, any person other than a person accused of a non-bailable offence, he shall inform the person arrested that the is entitled to be released on bail and that he may arrange for sureties on his behalf." This is a very benign provision for people who may not be aware of their rights to be released on bail in case of bailable offences.
  • Right to be taken before a Magistrate without Delay
    A person who has been arrested for an offence has crucial protections under Sections 56 and 76 of the Criminal Procedure Code. According to Section 56, "A police officer making an arrest without a warrant shall take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station, without undue delay and subject to the provisions herein contained as to bail."

    According to Section 76, "The police officer or other person executing a warrant of arrest shall (subject to the provisions of Section 71 as security) bring the person arrested before the court before which he is required by law to produce such person: Provided, however, that such delay shall in no event exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court." These requirements require that the accused appear before the legal authorities as soon as practicable, but no later than within 24 hours. Additionally, it has been stipulated that the detained person must remain at the police station.

    An arrested person must be brought before a judge within 24 hours after their arrest as per established legal precedent; if they are not, the incarceration is illegal.[4]
  • Right to Consult a Legal Practitioner
    The mandate of article 22 states that a person who is arrested cannot be refused the opportunity to consult a lawyer of his choice (1). In the Hussainara Khatoon case[5], it was also decided that the state has a constitutional obligation (implicit in article 21) to provide free legal representation to an accused person who is indigent.

    This obligation to provide free legal representation does not only apply when the trial begins, but also when the accused is brought before the magistrate for the first time and when he is occasionally remanded, according to the ruling. In highlighting this right, the Supreme Court has ruled that failure to comply with this obligation and fail to tell the accused of this right would invalidate the trial.[6] A person who has been arrested has the right to speak with a lawyer as soon as they are taken into custody.[7] The lawyer's consultation may take place in front of the police officer, but not in his line of sight.[8]
  • Judicial Scrutiny Necessary to detain beyond 24 hours
    The judicial officer must be put in between the people and the police apparatus as required under the Criminal Process Code's investigation system. Police interference with an individual's right to privacy serves the interests of society by keeping the peace. Our Constitution and the Criminal Process Act require the police to submit the arrested person before a magistrate within 24 hours of the arrest because it is the responsibility of the judicial officer to ensure that the interests of society and the individual are fairly balanced.[9]

    The provisions of section 57 of the Criminal Procedure Code and article 22(2) of the Constitution are similar in that they both call for judicial review of the arrested individual and categorically prohibit detention for longer than 24 hours without a court order.

    According to Section 57 of the Criminal Procedure Code, "No police officer shall detain in custody a person arrested without warrant for a period of time greater than is reasonable under all the circumstances of the case, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court."

    This section's analogous language in Art. 22(2), which states 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 Magistrate," further strengthens this right.

    The proviso to section 76 provides a similar rule in substance in the case of an arrest made pursuant to a warrant International Aspect.
  • United State of America
    The rights of the accused are increasingly important as society advances. English common law, which had developed over the centuries prior to impose limits on the power of the sovereign over his or her population, served as the model before the American Constitution's founders. The first 10 amendments to the Constitution�commonly referred to as the Bill of Rights�were passed by Congress in 1791 as a result of some of the Constitution's authors' dissatisfaction with the freedoms guaranteed by the document itself. These protected extra liberties, some of which concerned the rights of citizens accused of crimes, and were based on the English Bill of Rights (1689). The Fifth, Sixth, and Eighth Amendments of the Bill of Rights, along with the Fourth Amendment, which safeguards against arbitrary search and seizure, address the rights of the accused.

    Only when the offence was committed in his presence, when there was a concern that the person may run, or when there was other reasonable suspicion, might the police make an arrest without a warrant. The case's facts will determine what constitutes probable cause. A man of "ordinary care and judgement" should be "led by a state of facts to believe or entertain an honest and strong suspicion, that the individual is guilty of an infraction."[1] The suspect must be brought to a judge without further delay. When an arrest is made pursuant to a warrant, the subject of the arrest must be brought right away before the officer issuing the warrant, and when an arrest is made without a warrant, the subject of the arrest must be brought right away before the closest and most accessible judicial officer with a statement of the charges.

    The 8th amendment and Article III of the Constitution guarantee jury trial. The jury selection procedure, known as voir dire, in which potential jurors can be questioned by both the prosecution and the defence, is the biggest benefit.[1] Based on the potential juror's response, one side or the other may make arrangements to have their name removed from the list.[2]

    The first six lines of the eighth amendment, "Excessive bail shall not be necessary," are crucial in relation to the pre-trial stage. Although being the sole time bail is mentioned in the Constitution, it has long been assumed that the accused has a right to bail. The court may refuse to release the accused or establish bail levels that are too high to be allowed if it determines that he poses a risk of fleeing (jumping bail). The accused may occasionally be freed on recognisance, or under the honour system.[3]
  •  England
    In England, whenever a person is detained without a warrant, that person has a right to be informed of both the fact that he is detained as well as the basis for that detention. Christie v. Leachinsky[1], decided by the House of Lords into the formulation and evolution of this rule.

    Viscount Simon made the following observations in his propositions:
    1. If a policeman makes an arrest without a warrant based on a reasonable suspicion of a felony or another type of crime for which a warrant is not required, he must normally inform the person being detained of the real grounds for the arrest. He doesn't have the right to withhold the reasons or to provide an explanation that isn't accurate. In other words, a citizen has a right to know why they are being detained and what charges or suspicions they are under.
    2. If the situation calls for him to be aware of the broad outlines of the alleged offence for which he is being held, the need that the person arrested should be notified of the reason why he is being taken does not apply.

      Notwithstanding its enormous significance in the administration of justice, the right to legal representation in England is not a particularly old one. It was only acknowledged by the early English common law in connection with minor legal infractions. In cases involving treason and other offences, an accused person was not permitted to have legal representation. That was most likely because at the time, a common law trial consisted of the accused being examined rather than a jury and witnesses.[2]

The interests of a person who is suspected of committing an offence are now well protected by modern criminal law. Because they are operating under pressure from the public, who expects speedy results from the police, men are fallible, and officers are much more so.

A check is necessary since the police frequently use illegal shortcuts and tactics to complete their work, making it impossible for someone who has been detained to flee but still demand the granting of his basic human rights. The precautions become even more crucial because it happens frequently that the person detained is not the one who committed the crime.

Even if the appropriate individual is detained, the crime may have been committed due to unfavourable conditions or other behavioural patterns. As a result, the offender cannot be ostracised by society or led to believe that because of their illegal activity, they would not be recognised as fellow humans. Only those rights can be restricted based solely on the fact that a person has committed a crime; all other rights are unaffected.

  1. (1947) AC 583.
  2. A.N.Chaturvedi, Rights of Accused under Indian Constitution 1984 at 231.
  3. Brewster, Stanley Farrar, Twelve Men in a Box ( 1934).
  4. Hamline University School of Advanced Law, The Jury Trial (1985).
  5. Flemming, Roy B. Punishment Before Trial: An Organizational Perspective of Felony Bail Processes (1982
  6. Leon Yankuich, The Nature of Our Freedom 1949 at 179.
  7. Ajit Kumar v. State of Assam, 1976 Cr.LJ 1303 (Gau. HC).
  8. Satish Chandra Rai v. Jodu Nandan Singh, ILR 26 Cal. 748; Abdul Gafar v. Queen Empress, ILR 23 Cal. 296.
  9. (1999) Cri.LJ 274 (All).
  10. Manoj v. State of Madhya Pradesh, 1999 Cr.LJ 2095 (SC)
  11. Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, 1980 SCC (Cri.) 40.
  12. Suk Das v. Union Territory of Arunachal Pradesh, (1986)2 SCC 401.
  13. Llewlyn Evans, Re ILR 50 Bom. 741, Moti Bai v. State, AIR 1954 Raj. 241.
  14. Sundar Singh v. Emperor, 32 Cri.LJ 339.
  15. K.N.Chandrasekharan Pillai, "Criminal Procedure" XXXVI ASIL 2000 at 162
  16. Available at : (visited on Feb 20,2023)
  17. Vol. 11, 4th edition in Para 99
  18. A Symposium on Law and Police Practice, "Are the Courts handcuffing the Police", Nortwestern University Law Review 52 (1957-58) at 1
  19. S.Ratnavel Pandian, "Criminal Justice System in India" Indian Journal of Criminology & Criminalities Vol. 16 (1995)1-9 at 2

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