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Unwanted Arrest and Human Rights

A Right Delayed Is A Right Denied
All people in general have the right to enjoy respect for his or her liberty and security. It is axiomatic that, without an efficient guarantee of the freedom and security of the human person, the protection of other individual rights becomes increasingly vulnerable and sometimes illusory.

Yet, as is evidenced by the work of the international monitoring organs, arrests and detentions without reasonable cause, and without there being any effective legal remedies available to the victims concerned, are commonplace. In the course of such arbitrary and unlawful deprivations of liberty, the detainees are frequently also deprived of access both to lawyers and to their own families, and also subjected to torture and other sorts of ill-treatment.

It is essential, therefore, that the legal rules that exist in international law to remedy and prevent these sorts of human rights violations be adhered to by national judges and prosecutors, and that lawyers are responsive to their contents, to enable them to act effectively on behalf of their clients

Article 21 of Indian Constitution provides few sparkles of hope to the lives of arrested, under trials and convicts. The treatment of such people has to be humane and within the manner prescribed by law.

In Maneka Gandhi v. Union of India {AIR 1978 SC 597} the Supreme Court held that State and for that matter the police as its principal law enforcing agency have the undoubted duty to bring offenders to book. Even so, the law and procedure adopted by the State for achieving this laudable social objective need to conform to civilized standards. The procedure adopted by the State must, therefore, be just, fair and reasonable.

The primary purposes of criminal law are Deterrence, Retribution and Protection. Reformation & Rehabilitation are the silent purposes to enhance the hues of society. Once Criminal, Always Criminal can't sustain the test of reasonableness, wisdom and conscience. All crimes are not same and then aren't criminals. Gravity, nature and involvement define which yardstick of jurisprudential law is to be applied. However, application of yardstick is predicated on discretion to be exercised within the limit of State law

The powers for making an arrest by police are subject to restraints and judicial supervision and scrutiny to shield the basic right to life under Article 21 of the Constitution of India of all persons. Imposition of such restraint is clearly the recognition of rights of the arrested person. Chapter-V of the Criminal Procedure Act (CrPC) contains provisions regarding arrest of persons, restrains and judicial supervision & scrutiny.

Relevant Legal Provisions Qua Important Rights Of An Arrested Person:

  1. When Police Is Arresting Without Warrant

    Under Section 41 of CrPC wide powers are conferred on police to arrest, mainly in cognizable offences, without having to travel to Magistrate for obtaining warrant of arrest. There will be no legal arrest if there is no information or reasonable suspicion that the person has been involved in a very cognizable offence or commits offence(s), specified in Section 41.
  2. Arrest How Made

    Section 46 of CrPC envisages modes of arrest i.e. submission to custody, touching the body physically or confining the body. Arrest is restraint on personal liberty. Unless there is submission to custody, by words or by conduct, arrest are often made by actual contact. just in case force is required, it should be no quite which is justly required and this section does not provides a right to cause death of someone, who is not accused of an offence punishable with the death or with imprisonment for all times.

    Where a woman is to be arrested, unless the police officer could be a female, the police officer shall not touch the person of the woman for making an arrest and arrest would be presumed on her submission to custody on oral intimation. After sunset and before sunrise, no woman will be arrested, except in exceptional circumstances and upon prior written permission from the local Magistrate.
  3. Person Arrested To Be Informed Of The Right To Bail

    Section 50(2) of CrPC provides that a person arrested without warrant shall be immediately informed of the grounds of his arrest, and if the arrest is made in a very bailable case, the person shall be informed of his right to be released on bails. Section 50 is mandatory and carries out the mandate of Article 22(1) of the Constitution of India.
  4. Search Of Arrested Person

    Section 51 of CrPC allows a police officer to make personal search of arrested persons. With reference to the provisions of this section, the reference may be made to Article 20(3) of the Constitution of India which could be a guarantee to the accused against self-incriminating testimonial compulsion. Though an accused can't be compelled to supply any evidence against him, it can be seized under process of law from the custody or person of the accused by the issue of a search warrant.
  5. Medical Examination Of Arrested Person

    Section 54 of CrPC provides for compulsory medical examination by a medical officer in service of central or authorities, or by registered medical practitioner, upon non-availability of such medical officer. Female arrestees can only be examined by female medical officer or registered medical practitioner.

    However, Section 53 & 53A of CrPC provide if there are reasonable grounds for believing that an examination of arrestee, on a charge of committing rape or other offence, will afford evidence so on the commission of such offence, it shall be lawful to medically examine blood, blood stains, semen, hair samples, finger nail clippings by use of recent & scientific techniques including DNA and such other tests, which the medical officer thinks necessary during a particular case, acting at the request of a police officer.
  6. Person Arrested Not To Be Detained More Than 24 Hours

    The constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed (Khatri v. State of Bihar, AIR 1983 SC 378). Section 57 is concerned solely with the question of the period of detention. The intention is that the accused should be brought before a magistrate competent to undertake or commit, with the least delay. The right to be taken out of police custody by being brought before a Magistrate is vital in order to prevent arrest and detention, with a view to extract confession or as a means of compelling people to give information.
  7. Right To Free Legal

    while after the arrest, a person shall have the right to consult and to be defended by a counsel of his choice; arrestee shall be entitled to free legal aid. Except for ensuring a fair prosecution, a society under the Rule of law has also a duty to arrange for the defense of the accused, if he's too poor to do so. Free legal aid to persons of limited means is a service which the modern State, especially a welfare state, owes to its citizens (Law Commission of India, 14th Report, Vol. I, pp 587-600).

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