Human rights are those rights which include each and every living and non –
At first every individual should be treated as a human being irrespective of the
fact that such person is arrested or accused. There is always a presumption of a
innocence until the arrested or accused person is proved guilty beyond any
reasonable doubt, in criminal cases. Our statue has provided various rights to
every kind of individual, so that their right to liberty can be protected and no
unlawful detention of an individual takes place in our democratic country.
article 21 of Constitution of India states that no person shall be deprived of
his life or personal liberty except according to procedure of law. These days
various types of corruption and malpractices are arising in day- to-day working
of police. Arrested or accused person has been provided with different types of
fundamental rights and other rights covered under criminal procedure, so that no
person is unlawfully detained.
Arrest – An understanding
Normally we see a person who does or has done something which is forbidden by
law to be arrested. The term arrest means “a seizure or a forcible restraint of
a person” by a police officer. In simple, taking the body of a person into
police custody i.e exercise of power to deprive a person of his/ her liberty.
In criminal cases, arrest of a person is important process so that the accused
can be presented before the court and prevent such person from escaping. This
does not mean that the person must be tired i.e handcuffed, but to keep such
person in front of police. The criminal procedure code, 1973 which deals with
the aspects of arrest, has not defined the term ‘Arrest’. In Lexico Dictionary,
the term ‘Arrest’ means ‘seize’ (someone) by legal authority and take them into
custody. Thus after an arrest, Arrester has full control over person’s liberty.
Three persons authorised to arrest under criminal procedure code, 1973:
Arrest can be made into following ways
- A police officer with or without a warrant.
- A magistrate or a judge.
- A private person.
- Arrest with warrant – Arrest of a person , when warrant is issued
against a specific person by the magistrate in the authority.
- Arrest without warrant – a person can be arrested by a police officer or
by any private person without warrant issued by the magistrate.
- Under section 41 of the code of criminal procedure, the following
conditions to arrest a person without warrant are mentioned as
- A person who has committed any cognizable offence such as rape, murder,
theft, robbery, etc. can be arrested without warrant. For cognizable
offences, a police officer in accordance with the first schedule of CRPC or guided by any
other law for the time being in force, can arrest a person without warrant.
- When, there is no time to approach the magistrate for warrant an
immediate arrest is needed.
- Under section 42 of the CRPC, arrest of a person to identify the
actual place of residence of such person. Police can arrest a person when
such person denies to give his correct name and residential address or the
police have a reason to believe that they provided information is wrong.
- Under section 151 of the CRPC, police can arrest a person to prevent
the commission of cognizable offences. A person can be arrested without
warrant, when police officer knows the design/plan of any cognizable
offence, which appears to such officer that the commission of offence cannot
be prevented otherwise.
It is provided by the article 21 of Indian constitution that no person shall
be deprived of his life or personal liberty except according to procedure
prescribed by law. There is always a presumption of innocence of the accused
until he is proven guilty at the end of the trial substantiated with sufficient
evidence. In addition, it is to be noted that no arrest can be made on the basis
of mere suspicion or information.
There are two sorts of benefits available to the arrested:
Below following rights are available to person arrested under both these
- Rights at the time of arrest.
- Rights at the time of the trial.
To meet an advocate of his choice during interrogation (Section 41 D)
Section 41 D of CRPC, states that arrested person has a right to consult his
lawyer during interrogation. Arrested person can demand the lawyer of his choice
and discuss the happened circumstances with him. Here, ‘interrogation’ means the
process of questioning by the police related to offence committed or going to be
In D.K Basu v. State of West Bengal
, the Supreme Court stated that
the arrestee may be permitted to meet his lawyer during interrogation, but not
throughout the interrogation. Other provisions related to this right include
section 303 of CRPC.
Right to know the grounds of arrest. (Section 50 (1), 55, 75of CRPC and Article
22(2) of Indian constitution)
As arrested person has the right to know the grounds of arrest visa-versa it is
the duty of the police officer to inform him the grounds.
The main reasons behind communicating the grounds of arrest to the arrested
- In Indian constitution this right has been given the status of a
fundamental right under Article 22(2). This article states that “no
person who is arrested shall be detained in custody without being informed
as soon as possible maybe, of the grounds of such arrest nor he shall be
denied the right to consult, and to be defended by a legal practitioner of
- According to Section 50(1) of CRPC which states that “every police
officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested
or any other grounds for such arrest. In short, every private person or
police officer who arrest any person without warrant, has a duty to
immediately inform him the grounds for such arrest.
- According to Section 55 of CRPC, states that “when a subordinate
officer is deputed by a senior police officer to arrest a person, such
officer shall, before making the arrest, notify to the person to be arrested
the substance of the written order given by the senior police officer
specifying the offence or other causes for which the arrest is to be made.
Non-accordance with this provision will render the arrest illegal. Hence,
subordinate officer has to obey this provision for fair arrest.”
- According to Section 75 of CRPC, which states that “the police
officer or any other person executing a warrant of arrest and shall notify
the substance thereof to the person to be arrested and if so required, shall
show him the warrant.” If the substance of the warrant is not notified, the
arrest would be unlawful.
- It entitle him to apply to the proper court for bail, or
- A writ of habeas corpus can be made in appropriate circumstances ,or
- To make speedy and reasonable arrangement for his defence.
If the arrest is made by a magistrate without warrant, requiring the magistrate
to communicate the grounds of arrest to the arrested person as per Article 22(2)
of Indian Constitution. It appears reasonable to accept that grounds of arrest
shall be communicated in language understood by the arrested person.
Information regarding the right to bail (Section 50 (2) of CRPC)
Section 50 (2) of CRPC states 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 on bail that
he may arrange for sureties on his”.This will certainly be helpful to the
persons who may not have any knowledge about the right to be released on bail in
case of bailable offences. This provision is related to providing information
about bail in bailable offences. As a consequence, it leads to improve relations
between police and arrested person.
Other provisions related to this right include Section 42, 43, 56, 59, 169, 170,
436, 437, and schedule I column 5 of CRPC also include the right to grant bail
to the accused but by the police under certain rules.
Right to inform a relative or a friend or a nominated person (Section 50 A)
Substantial amendments has been enacted in Section 50 A of CRPC in the year
2006 passed on the decisions of Supreme Court in Joginder Kumar v. State of
 and D.K Basu v. State of West Bengal
The enactment made an obligatory duty on the part of the police officer making
any arrest to inform the friend, relative or any nominated person of the
arrested person about his arrest and also to communicate the arrested person of
his rights. In addition, an entry has to be made in register maintained by the
police department. This right is helpful to the arrested person as it leads to
communicating of the necessary information to their relatives or friends about
the arrest. So, further reasonable steps can be taken by the nominated person to
free such arrested person.
A person arrested not to be detained more than 24 hours and to be presented
before the magistrate without any delay.( Section 56, 57, 76 of CRPC)
When a person making an arrest either with warrant or without warrant is bound
by a duty to present the accused or arrested person before the magistrate within
24 hours, excluding the time taken to reach magistrate’s court from the place of
arrest. Section 57 of CRPC deals with ‘Person arrested not to be detained more
than 24 hours’.
This right has been established with the view:
- That the arrestee is not compelled to give confession, or information.
- So, the police doesn’t do wrongful confinement of persons.
According to section 56 of CRPC, which states that “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.
According to section 76 of CRPC, which states that “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.
This right is helpful to the arrested person and citizens, as it prevent
unlawful arrest and detention by any police officer or private person. And if,
such arrested person is not presented before a magistrate within 24 hours then
any person on behalf of such person can file writ of habeus corpus i.e to
present the body.
In simple, it is necessary that the arrested person is taken out of police
custody by presenting such person before a magistrate, so that proper facts and
reasons are presented before a magistrate by the officer making such arrest,
while in 24 hours.
In case Khatri v. State of Bihar, the Supreme Court stated that the state
and its police authorities to ensure that this constitutional and legal
requirement to produce an arrested person before a judicial magistrate within 24
hours of the arrest must be scrupulously observed.
Some other provisions for the same included in Section 71 of CRPC.
Right to consult your legal practitioner. [Article 22(1) , 50(3)]
Article 22 (1) of the Constitution of India provides that every arrested person
has a right to consult a legal practitioner of his own choice. Section 50(3) of
CRPC also states that any person against whom proceedings are instituted
under the code has a right to be defended by a pleader of his choice. The right
of arrested person to consult a lawyer of his choice begins as soon as the
person is arrested. In any type of case, this right will be available to the
arrested person as per the Article 22 (1). The arrested person can consult
his lawyer during interrogation with Police i.e in front of Police but not
within his hearing of the case.
Right to free legal aid. (Article 21, 39(A) of Indian constitution , 304 of CRPC)
This right empowers the arrested person who have a limited means to be entitled
to free legal aid. As per 14th report of Law Commission of India, free legal
aid to persons of limited means is a service which the modern state, in
particular a welfare state, owns to its citizens. In India, this facility is
mainly provided to accused person who is poor. In addition, this service is
provided for both trial and appeal.
In Khatri (II) v. State of Bihar
, the Supreme Court held that the state is
under a constitutional obligation (implicit in article 21) to provide free legal
aid to an indigent accused person. Further, it is to be noted that this right
starts at the commencement of trial and continues till the accused is produced
for the first time before the magistrate in court and also when remanded from
time to time. The Supreme Court, therefore imposed a binding duty on all the
magistrates and courts to inform the indigent accused person about his right to
get free legal aid.
In Suk Das v. Union Territory of AP
, this apex court moved a step further by
stating that this constitutional right cannot be denied if the accused failed to
apply for it.
Section 304 of CRPC provides legal aid to accused at state expense in
certain cases such as when accused has not sufficient means to engage a pleader
or where, in your trial before the court of sessions, the accused is not
represented by a pleader. Also, in Article 39(A) compel a state to provide free
legal aid for the purpose of securing justice.
Right to be examined by a medical practitioner. (Section 53 ,54 of CRPC)
Section 53 of CRPC provides examination of accused by medical practitioner
at the request of police officer. Section 53 (A) provides examination of person
accused of rape by medical practitioner. Section 54 provides examination of
arrested person by medical practitioner at the request of the arrested person.
This is an absolute necessity to keep record of any type of injuries or mark on
body of accuse or victim of violent crimes such as rape, assault, etc. and also
to ascertain the health of such person when taken into custody and put it on
However, Section 53 and 53(A) of CRPC provide if there are any reasonable
grounds for believing that an examination of arrestee can bring further evidence
in the case related to commission of any bodily offences committed by him or
examination of the victim of rape, assault or any other which will establish any
wrong happened against his/her body by bringing out a reasonable evidence
through DNA, Semen, hair samples, finger nail, any vaginal injury.
In D.K Basu v. State of West Bengal
, the Supreme Court had issued
instructions to be followed by the arresting authority at the time of detention
of a person, that is arrestee should be subjected to medical examination by
trained doctor every 48 hours during his/her detention in custody. And also, the
medical practitioner should be on the panel of approved doctors appointed by the
director, health services of the concerned state or union territory.
Right of accused to produce in evidence in court. (Section 243(1),273 of CRPC)
This is very important right during the preceding of a fair trial. The accused
has a right to produce evidence as witnesses in his defence, in case of police
report or private defence. Section 138 of Indian evidence act, 1872,
provides that accused has a right to confront only witnesses.
The principle of audi alteram partem which is the basic principle of natural
justice. This expression simply implies that a person must be given an
opportunity to defend himself. When examination and cross-examination of all
prosecution witnesses is done, the accused shall be called upon to enter upon
his defence i.e after the completion of the prosecution case. Section 243(1) of
CRPC, provides that the accused shall then be called upon to enter upon his
defence and produce his evidence, and if the accused puts in any written
statement, the magistrate shall file it with the record.
Section 273 of CRPC, provides that all evidence taken in the course of the
trail or other proceeding shall be taken in presence of accused or his pleader
(when the personal attendance of accused is dispensed).
Confessions has to be made to the magistrate so that the accused may be deposed
to make of his free will. Under section 25 of Indian Evidence Act,
confession, statements by accused to the police are absolutely excluded.
Right to remain silent. (Article 20(2) of Indian Constitution)
This article guarantees every person has a right against self-discrimination.
This provides that no person accused of any offence shall be compelled to be a
witness against himself. This principle was restated in ‘Nandini Satpathy v.
’ that “No one can force any person to give any statement or to
answer questions” and the accused person has a right to keep silent during the
process of interrogation by the police officers.
This right is provided so that accused/arrested person can choose to be silent
during interrogation, this doesn’t mean that he is guilty. The Justice Malimath
committee writes about the origin of the right to silence that it was
essentially the right to choose whether to answer or not the questions of police
officers and incriminate oneself in the absence of a proper charge. As whenever
a charge is ‘proper’, it is assumed that there is no need for protection of the
Further, confessions only admissible, if made in front of the magistrate. And
also right to silence is related to confessions. To ensure that the breaking of
silence by the accused take place in front of magistrate only, which is
voluntary and without any duress and inducement. This is necessary to establish
truthfulness and reliability of the facts which were stated by the accused to
the magistrate that are required to take several precautions.
Right to fair trial. (Article 14 and 21)
Article 14 guarantees the right to equality before the law. The code of criminal
procedure also provides that there should be a fair trial and should be an open
court trail. In exceptional cases various victims and accused may have a trial
with camera recording.
In Zahira Habibullah Sheikh and ors. v. State of Gujarat and ors.
the Supreme Court observed that each and everyone has an inbuilt light to be
dealt with fairly in a criminal case. Denial of a fair trial leads to much
injustice to the accused as it is to the victim and to society. In Rattiaram v.
State of Madhya Pradesh, the Supreme Court observed that the fair trail is
the heart of criminal jurisprudence. A fair trail is the fundamental right which
is given under Article 21 of the Indian Constitution.
Specific rights of women
According to section 46 CRPC , the arrest of female should be avoided during
the time which is before 6 A.M and after 6 PM. In order to protect woman from
being sexually and physically exploited by police. They should be kept in female
lock ups which is separated from men. According to section 51(2) of CRPC,
which provides that a female officer has a right to search a female arrested.
Our country face huge problem of unlawful detention and arrest. Every individual
should be aware of their rights provided by law. These rights are entitled to an
arrested person so that they can be protected from the misuse of powers by the
This not only infringes the article 21 of Indian Constitution but also the basic
human rights which is available under Universal Declaration of Human Rights.
- Section 41 of Code of Criminal Procedure Act, 1973
- Section 42 of Code of Criminal Procedure Act, 1973
- Section 151 of Code of Criminal Procedure Act, 1973
- Article 21 of The Constitution of India
- Section 41 D of Code of Criminal Procedure Act, 1973
- (1997) 1 SCC 416
- Article 22 (2) of The Constitution of India
- Section 50 (1) of Code of Criminal Procedure Act, 1973
- Section 55 of Code of Criminal Procedure Act, 1973
- Section 75 of Code of Criminal Procedure Act, 1973
- Section 50 (2) of Code of Criminal Procedure Act, 1973
- Section 50 A of Code of Criminal Procedure Act, 1973
- (1994) 4 SCC 260
- (1997) 1 SCC 416
- Section 56 of Code of Criminal Procedure Act, 1973
- Section 76 of Code of Criminal Procedure Act, 1973
- AIR 1983 SC 378
- Section 50 (3) of Code of Criminal Procedure Act, 1973
- Article 22 (1) of The Constitution of India
- Volume I; pp 587-600
- ( 1981) 1 SCC 6279
- AIR 1986 SC 991
- Section 304 of Code of Criminal Procedure Act, 1973
- Section 53 of Code of Criminal Procedure Act, 1973
- Section 54 of Code of Criminal Procedure Act, 1973
- (1997) 1 SCC 416
- Section 138 of The Indian Evidence Act, 1872
- Section 243 (1) of Code of Criminal Procedure Act, 1973
- Section 273 of Code of Criminal Procedure Act, 1973
- Section 25 of The Indian Evidence Act, 1872
- AIR 1997 (1) SCC 416
- (2006) 3 SCC 374
- AIR 2012 SC 1485
- Section 46 of Code of Criminal Procedure Act, 1973
- Section 51 (2) of Code of Criminal Procedure Act, 1973
- Usha Solanki and
- Aaditya Sharma