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Arrest and Rights of arrested person

  1. What is arrest?
  2. When police may arrest without warrant?
  3. What are the rights of an arrested person?

The code has not defined the term arrest. The term arrest means apprehension of a person by legal authority so as to cause deprivation of liberty.

As per Legal Dictionary by Farlex, Arrest means a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.

In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as the act of being taken into custody to be formally charged with a crime . The court observed that in a Constitutional sense, it means the seizure of a person (body of a person).

In State of Punjab v. Ajaib Singh, the court observed that arrest is the physical restraint put upon an abducted person in the process of recovering and taking that person into legal custody with or without any allegation or accusation of any actual or suspected commission of the offence

The elements necessary to constitute arrest were summarised by the Madras High Court in Roshan Beevi v. Joint Secy. To the Govt. of Tamil Nadu. The vital elements required to institute arrest are:
There must be an intent to arrest under legal authority,
There must be seizure or detention of the person,
The person must be in the lawful custody of the arresting person and
The act of arrest must include the actual confining of the person and not mere oral declaration of arrest

Types of arrest

  • arrest made in pursuance of a warrant issued by a magistrate
  • arrest made without such a warrant

When Police may arrest without a warrant?

Section 41 is the main section providing for situations when Police may arrest without warrant.

It lays down following grounds when a police officer can arrest without a warrant

  • Who has been concerned in any cognizable offence such as murder, rape, kidnapping, theft, etc. or
  • Who has in possession, without, lawful excuse, of any house breaking weapon or
  • Who has been proclaimed as an offender either under CrPC or by order of the State Govt. or
  • Who is in possession of any stolen property or
  • Who obstructs a police officer while in the execution of his duty or who has escaped, or attempts to escape, from lawful custody or
  • Who is reasonably suspected of being a deserter from any of the Armed forces of the Union or
  • Who has been concerned in any law relating to extradition or
  • Who, being a released convict commits a breach of any rule made under sub-section (5) of Section 356 CrPC or
  • For whose arrest any requisition has been received from another police officer specifying the person to be arrested and the offence and other cause for which the arrest is to be made.

Rights of an arrested person

The benefit of the presumption of innocence of the accused till the time he is actually found guilty at the ending of a trial substantiated with evidence, is one of the basic tenets of our legal system. It is a characteristic of our democratic society that even the rights of the accused are deemed to be sacrosanct, and even though he is charged with an offence however that does not render him as a non-person. Our statute is quite careful towards anyone’s personal liberty and hence doesn’t permit the detention of any person without proper legal sanction.

Available rights

There are two types of rights available to the arrested:

  1. Rights at the time of arrest
  2. Rights at the time of trial

Right to remain silence:

The ‘right to silence’ has its origin from common law principles. So in general sense the courts or tribunals should not conclude that the person is guilty of any conduct merely because he was not responding to questions which were raised by the police or by the court.

Article 20(3) of Constitution of India guarantees every person the right against self-incrimination, and it has been stated under this article that no person, who has been accused of an offence, shall be compelled to act as a witness against himself. This same rule has been reiterated by a decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani and it was held by the court in this case that no one can forcible extract any statement from the accused and no matter what, the accused has the sole right of being silent during the course of investigation and interrogation.

It was held by the Supreme Court again in the year 2010 that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India and that by administration of these tests, forcible intrusion into a person’s mind is being conducted which further nullifies the validity and legitimacy of this right.

Right To Know The Grounds of Arrest

  1. According to Section 50(1) of Cr.P.C., an accused who is being arrested by any police officer, without any warrant, has the right to know the full particulars of offence for which he is being arrested, and so it’s the undeniable duty of the police officer to inform the accused of the particulars.
  2. Under section 55 of Cr.P.C., it is the right of the accused to know in case of being arrested, the written order against him, specifying the offence or other cause for which the arrest is being made. The arrest will be illegal in case of non compliance of this provision.
  3. In case when the person is being arrested under a warrant, then according to Section 75 of Cr.P.C, any person who is executing such warrant must notify the person who is being arrested, the content of such warrant, or show the warrant if required. If under any circumstance the substance of the warrant is not notified, the arrest would be unlawful.
  4. The constitution of India recognises this as fundamental right also. Under Article 22(2) of the constitution it has been said that person who is arrested shall not be detained in custody without being informed as soon as possible of the grounds for which such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.
The rules regarding this were upheld in the cases of Joginder Singh vs. State of U.P. and D.K. Basu vs. State of West Bengal,

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.

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.

56. 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.

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.

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:
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, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

Rights at Trial

Right to A Fair Trial
Right to equality has been granted under article 14 of the constitution. It has been provided under the Code of Criminal Procedure that for a trial to be fair, it must be an open court trial. In order to prevent secret designing and obtaining of convictions this provision has been designed. The trial can be held in camera as well in certain exceptional conditions.

Right to a speedy trial

Regardless of this right not being mentioned in the constitution, the SC in the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be conducted as expeditiously as possible.

In cases, where the maximum punishment to be imposed is 2 years, once the accused is arrested, it is important that the investigation for the trial gets completed within the period of six months or is stopped after order from magistrate has been recieved, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.

Right To Consult A Legal Practitioner

It is the right of every arrested person to consult a legal practitioner of his own choice. This has also been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which is undeniable in all cases. Section 50(3) of the Code also states that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice. This right begins as soon as the person is arrested.

Rights of Free Legal Aid:

The Supreme Court in the case of in Khatri(II) v. the State of Bihar held that the state is under a constitutional obligation as is implicit in article 21 of the constitution as well to provide free legal aid to an indigent accused person .

Right To Be Examined By A Medical Practitioner:

Section 54 of Cr.P.C. enumerates this right and it states that examination of arrested person by medical practitioner at the request of the arrested person. When an arrested person, whether on a charge or otherwise alleges at the time when he is produced before a Magistrate or at any time for which he is detained in custody that the examination of his body will afford evidence which will lead to disproving the commission of offence by him or which will establish the committing of offence by any other person against his body, the Magistrate shall, direct the examination of the body of such person by a registered medical practitioner. 

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