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Custodial Deaths And Rights Of An Arrested Person

One of the basic principles of our legal system is the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence. In a democratic society, even the rights of the accused are sacred, though accused of an offence, he does not become a non-person. Rights of the accused include the rights of the accused at the time of arrest, at the time of search and seizure, during the process of trial and the like.

The accused in India are given some rights, the most basic of which are found in the Indian Constitution itself. The general reasoning behind these rights is that the government has various powers available to it for the prosecution of individuals, which may be misused. So, for protection of individuals these rights are made.

In the leading case of, Kishore Singh Ravinder Dev v. State of Rajasthan[1], it was stated that the Constitutional, Procedural and Evidence laws of India have made elaborate provisions for safeguarding the rights of accused with the view to protect his dignity as a human being and giving him benefits of a just, fair and impartial trial.

In the landmark case of Maneka Gandhi v. Union of India[2] it was interpreted by the court that the procedure adopted by the state must be just, fair and reasonable.

Some Rights Of An Arrested Person Are:

  • Right to Know the Ground of Arrest

    Indian constitution has given on this right the status of the fundamental right. Article 22(2) of the Indian constitution states that, no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest nor, shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.
    Well-timed information of the grounds of arrest serves the arrested person in many ways. It enables the latter to move to the court for bail or, as the case maybe, for a writ of habeas corpus also.

    Section 50(1) of CrPC says that, if, an arrest is made without warrant then, full particulars of the offence for which a person is arrested or other grounds for such arrest should be informed to him.

    When a subordinate officer is deputed by a senior police officer to arrest a person under Section 55 of CrPC, then the former before making the arrest shall notify the person to be arrested the substance(s) of the written order given by the senior police officer mentioning the offence or other cause for which the arrest is to be made. If the same is not done then it will be an illegal arrest.

    Section 75 of CrPC provides that the authority must notify the substance of the warrant to the person to be arrested, and if required, show the warrant. If the substance of warrant is not notified the, the arrest would be unlawful.
  • Right to a Fair, Just and Speedy Trial

    The legal provision regarding the right to a fair and just trial can be extracted from the Constitution of India as well as from many Supreme Court and High Court judgments since no specified law has been formulated in this regard.

    Article 14 of the Indian Constitution states that; every individual is equal before the law; which clearly means that both the sides must be equally heard and treated.
    It was held in Huissainara Khatoon v. Home Secretary, State of Bihar that �the trial must be disposed of as diligently as possible�.
  • Right to Keep Quite

    The right to keep quiet is normally related to the statements and confessions made by the accused person in the court. In addition, it is the responsibility of the magistrate to perceive whether any statement or confession made by the accused person was voluntarily or was after the use of force and manipulation. Therefore, police or any other authority is not allowed to compel and manipulate the accused
  • Right to be Released on Bail in case of Bailable Offence

    Section 50(2) CrPC provides that, when a police officer arrests without warrant any person accused of a bailable offence then, the former must inform the person arrested that he is entitled to be released on bail that he may arrange sureties on his behalf.
  • Right to Free Legal Aid

    After the arrest, a person shall have the right to consult and to be defended by a counsel of his choice; arrestee is entitled to free legal aid. Free legal aid to persons of limited means is a service which the modern State, in particular a welfare state, owes to its citizens; says the Law Commission of India in it�s 14th report.
  • Right to be Examined by a Doctor

    Section 54 of CrPC says that, if an arrested person claims that medical examination of his body would lead to a detail which would dismiss the fact of commission of the crime by him, or some other detail that might lead to an evidence towards the commission of crime, by some other person against his body. The court has power to order for a medical examination of accused at request and the same is granted by the court when satisfied that the request is not made to delay or defeat justice.

Some other Rights
The Court in Yoginder Singh v. State of Punjab[3] observed that for the execution of Article 21 as well as Article 22(1) it is imperative that:
  • The arrested person has the right to inform his friend, relative, or any other person in his interest about his arrest.
  • The police official must inform the arrested person of all his rights immediately after detainment or arrest.
  • The entry of the arrest along with complete details must be made in a diary which must include the name of the person who has been informed about the arrest on behalf of the arrested person.
The landmark case of D.K. Basu v. West Bengal and Ors.[4] concentrates on �the rights of an arrested person which further impels the police officer to act in a certain way�. The court here observed that if, a police officer is unable to perform his duty properly, then he will be accountable for contempt of court and also for a departmental inquiry.

Regardless of numerous efforts to safeguard an accused person from unnecessary torture and inhuman conduct, a number of custodial deaths and police atrocities are still occur. Therefore, to overcome this, the Indian Supreme Court circulated significant guidelines to protect an accused person which also included amendments in numerous sections of the CrPC.

Guidelines are as follows:
  • The arrested person has the right to meet his lawyer
  • He has the right to undergo a medical examination every 48 hours.
  • The arresting person needs to inform the relatives of the arrested person about the arrest.
  • He must be produced before the magistrate within 24 hours of the arrest.
  • The arresting officer needs to prepare the memo and has to be attested by at least one witness.
  • An entry must be made regarding arrest in a diary.
  • A police control room is to be set up in all the districts and in all the state headquarters and the information regarding the person's arrest has to be communicated to all the districts.
  • All the documents including the memo of the arrest is to be sent to the magistrate.
  • The arresting officer must have the clear identification of name and designation of the one arrested.
  • The time, place, arrest, and the place of custody has to be notified to a person concerned or a friend or relative.
  • The person arrested has to be made aware of his right to have someone notified on his behalf.

India faces a huge problem of illegal arrests and detainment by authorities, which at times even lead to custodial deaths. These problems undermine the essence of Article 21 of the Indian Constitution as well as the fundamental human rights available under the Universal Declaration of Human Rights, adopted by the UN General Assembly. The guidelines issued in D.K. Basu v. State of West Bengal by the Supreme Court of India, are not being properly executed and therefore, it is needful to try and execute the issued provisions and guidelines perfectly which can definitely bear better results which would ultimately decrease the number of illegal arrests and resulting custodial deaths.

  1. 1981 AIR 625, 1981 SCR(1) 995
  2. 1978 AIR 597, 1978 SCR(2) 995
  3. 1963 AIR 913, 1963 SCR Supl.(2) 169
  4. 1997 (1) SCC 416

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