The legal system of India has forms the base of the notion innocent until
proven guilty and an unlawful arrest is direct violation of article 21 of the
There are numerous rights of an arrested person. Some are as follows:
- Right to know the ground of arrest
- Article- 22(1) of the Indian Constitution stipulates that no police
official can arrest any individual without informing the accused the reason/
ground of his detainment/ arrest.
- Section- 50 of the Code of Criminal Procedure says that every police
official with authority to arrest someone without a warrant must inform the
person getting arrested about the crime for which he is arrested and other
relevant grounds for the arrest. This is the duty of the police official
which he cannot refuse.
- Section- 50 A of Code of Criminal Procedure makes it compulsory for the
person/ police official arresting a person to inform of the arrest to any of
his relatives or even friends who may have interest in the same.
- Section- 55 of Code of Criminal Procedure states that in situations
where a police official authorises his junior to arrest a person without a
warrant, the junior official must notify the arrested person of the order of
delegation that is given which must also mention the crime and the grounds of
- Section- 75 of Code of Criminal Procedure states that the police
official executing the warrant must notify the substance to the arrested
person and furnish the warrant of the arrest when required.
- Right to be produced before the Magistrate without unnecessary delay
- Article- 22(2) of the Indian Constitution stipulates that the police
official making an arrest must produce the arrested person before the
Magistrate within 24 hours of the arrest failing to do so would make him
liable for wrongful detention.
- Section- 55 of Code of Criminal Procedure states that in case a police
official is making an arrest without a warrant, then he must produce the
person arrested without any unnecessary delay before the Magistrate with
jurisdiction or before a police officer in charge of the police station,
depending upon the conditions of the arrest.
- Section- 76 of Code of Criminal Procedure states that the arrested
person must be produced in court within 24 hours of his arrest, the same can
must exclude the time duration which is required for the journey from the
place of arrest to the Magistrate Court.
- Right to be released on bail
- Section- 50 (2) of Code of Criminal Procedure provides that the arrested
person has the right to get released on bail by making arrangement for the
sureties or just inform him of his right when arrested without a warrant for
an offence other than a non-cognizable offence.
- Right to a fair and just trial
- Every individual deserves a fair and just trail trial which can be
interpreted by many laws in Indian constitution and many supreme court and
high court judgements but no law has been stipulated in this regard.
- Article- 14 of the Indian Constitution states that every individual is
equal before the law which means that all the sides in a legal dispute must
be treated equally.
- The principle of natural justice must be considered in respect to both
- Huissainara Khatoon v/s Home Secretary, State of Bihar In this case
it was held the trail must be disposed as diligently as possible and infers to
the right to a speedy trail.
- Right to consult a Lawyer
- Article- 22 (1) of the Indian Constitution provides that every arrested
person has the right to choose and elect his own lawyer to defend him in the
court of law for whatever crime he may/ may not have committed.
- Section- 41D of Code of Criminal Procedure allows prisoners to be able
to consult with their lawyers even during their interrogation.
- Section- 303 of Code of Criminal Procedure allows every alleged convict/
criminal the right to be defended by a lawyer of his choice even if the
criminal proceedings against him have already begun.
- Right to free legal aid
- Article- 39A The government in an effort towards securing justice
instituted Article- 39A to provide free legal aid to people in need. The
same right was reaffirmed in the dispute of Khatri v/s Bihar, where the court held
that, the state must provide free legal aid to the poverty- stricken accused
person. The same right to free legal aid is provided at the first instance of
production of the accused before the Magistrate in the court.
- Moreover, this right to free legal aid for the accused cannot be refused
even when the accused fails to ask for it himself. Now, a key note to
remember, if the government is unable to provide free legal aid to the
poverty- stricken accused person, then whole trial will stand to be void.
The same was firmly established in Sukh Das v/s Arunachal Pradesh
where the Court held that, the right of a poverty- stricken accused person
cannot be refused even when the accused fails to apply for the same.
- Section- 304 of Code of Criminal Procedure provides a very significant
right to every accused who is set to appear before a Sessions Court to
appoint him a lawyer (totally free of cost) at the expense of the State. The
court may appoint him a representing lawyer if the accused has no sufficient
means to appoint himself a lawyer for his case then.
Right to keep quiet
- The right to keep quiet does not have any mention in any Indian law,
however, its authority can be derived from Code of Criminal Procedure as
well as the Indian Evidence Act.
- The right to stay silent is principally related to the statement and
confession made by the accused person in the court. In addition to this, it
is the responsibility of the magistrate to perceive if 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 for that
matter is not allowed to compel an accused person to speak anything in the
- Article- 20(2) Additionally, reiterates that no person whether accused
or not cannot be compelled to be a witness against himself. This act of
exposing oneself is the principle of self- incrimination. This principle was
affirmed in the case of Nandini Satpathy v/s P.L. Dani, where the court observed that:
person can force any other person to furnish any statement or compel to answer
any question because the accused person has a right to keep quiet during his
Right to be examined by a Doctor
- Section- 54 of Code of Criminal Procedure asserts 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
detail that might lead to evidence towards commission of the crime by some
other person against his body.
- The court has complete discretion to order for a medical examination of
an accused person at his request and the same is granted by the court when
satisfied that the request is not made to delay or defeat justice.
Additional rights available to an arrested person
- Section- 55A of Code of Criminal Procedure asserts that maintaining
reasonable heath care and safety of every arrested person will be the sole
responsibility of the person (police official) who has the custody of the
- This principle was established to protect the arrested person from cruel
and inhuman treatment in the prison.
- Section- 358 of Code of Criminal Procedure is another ground breaking
effort towards the principle of natural justice where the arrested person is
provided with compensation when arrested unreasonably.
- Section- 41A of Code of Criminal Procedure asserts that the police
official must furnish notice to the person who has supposedly committed a
cognizable offence to appear before him at a specified time, date and
- Section- 46 of Code of Criminal Procedure stipulates the mode of arrest
of an accused person which includes submission to custody by the accused,
physically touching the body, or to a body.
- The police official must not cause death of the accused person while
trying to arrest the person except when the person to be arrested is accused
of an offence which is punishable with death or life imprisonment or when
the accused person is trying to unnecessarily resist his arrest by turning
violent and aggressive or when the accused is trying to escape.
- Section- 49 of Code of Criminal Procedure asserts that the police
official must not restrain or detain the accused without a legal arrest
- The landmark case of D.K. Basu v/s West Bengal and Ors. concentrates
on the rights of an arrested person which further impels the police officer to
act in a certain way.
- The court further observed that if the police official is unable to
perform his duty properly, then he will be accountable for contempt of court
and also for departmental inquiry. Such dispute can be initiated in any High
Court that has the jurisdiction over the said dispute.
- Regardless of numerous efforts to safeguard an accused person from
unnecessary torture and inhuman conduct, number of custodial deaths and
police atrocities are still common.
Therefore, to overcome this, the Indian Apex court
circulated 9 significant guidelines to protect an accused person which also
included amendment to numerous sections of the Code of Criminal Procedure which
are as follows:
The Court in Yoginder Singh v/s State of Punjab observed that for the execution
of Article- 21 as well as Article- 22(1) it is imperative that:
- Section- 41B Every police official authorised to conduct the
investigation/ arrest must supply clear, visible and valid badge where the name
and designation of the police official is clearly mentioned.
- Besides this, the police official authorised to make an arrest must
prepare a cash memo with complete details of the arrest like the date and time.
The same document must have signatures of at least 1 family member or any one
honourable person of the locality of the accused. The arrested person has to
countersign the cash memo.
- Section 41D entitles an arrested person to a right to have 1 friend or
relative or any other person who he wants by his side during his arrest.
- The police must inform the person arrested about his right to inform
someone immediately when the person is detained or put under custody.
- Appropriate entry must be made in the diary and be maintained by the
police which must furnish all the important information related to the
arrest of the person which must further include the details of the person
accompanying the arrested person and also the details of the person to whom
information regarding the arrest has been made.
- The official diary must also include the name and additional particulars
of the police officials under whose custody the arrested person is.
Moreover, a medical examination has to be conducted but after the request of
the arrested person to put on record any minor or major injuries suffered by
the arrested person. This inspection memo is supposed to be signed by both
the police officials as well as the arrested person.
- The arrested person has the right to meet his lawyer while in prison and
- In addition to these, all the copies of the entire documentation must be
sent across to the Magistrate for his record which must also include the
- Section- 41C Every arrest made by any police official must be informed
to the District and the State headquarters within 12 hours of any arrest
which also needs to be displayed on the conspicuous board.
- 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 all his rights right
after detainment/ arrest of the accused person.
- The entry of the arrest with complete details must be made in a diary
which must include the name of the person who has been informed about the
In another landmark case, Prem Shukla v/s Delhi Administration
, the court
the prisoners/ arrested persons have a right to not be handcuffed
in shackles unless and until some extraordinary circumstances arise during the
arrest or when in custody.