In India, the justice framework is based on the concept that "innocent unless
proved guilty." An unauthorized detention may be a breach of Article 21 of the
Constitution of India, which says that:
No individual shall be stripped of his
right to life and personal liberty except as provided by law
, which ensures
that the procedure must be equal, transparent, and not arbitrary or oppressively
enforced. The accused in India have certain constitutional rights under the
Part-III of Indian Constitution at the moment of arrest.
This makes it extremely
important in nature. In the event that these rights really aren't upheld, they
can be contested by a writ petition within Articles 32 and 226 of the
Indian Constitution. It implies that since these rights are the fundamental
ones, they cannot be ignored in any way. Along with the constitution, these
rights are mentioned in the Code of Criminal Procedure, 1973 as well. The rights
with their respective mentions in either Code of Criminal Procedure, 1973 or
constitution or both are discussed below.
The Right To Be Told Of The Reasons For The Arrest:
Section 50(1) states unequivocally 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 other grounds for such
Additionally, when a senior officer delegates the subordinate police
officer to make an arrest under section 55 of Code of Criminal Procedure, 1973,
the latter must inform the individual to be apprehended of the content of the
legal order issued by the senior stating the charge or other reason over which
the arrest ought to be made prior to making the arrest.
In the case of Ajit
Kumar v. State of Assam
, it is clearly set out that failure to comply with
this clause would result in the illegal arrest. Arrests made pursuant to an
arrest warrant are allowed under Section 75 of the Code. "The police officer
or other person executing a warrant of arrest shall notify the substance thereof
to the person to be arrested, and if so required, shall show him the warrant",
it says. The arrest will be illegal if the policeman or another official failed
to inform the content of warrant.
Sections 50, 55, and 75 of the Code, do not apply to arrests made by a
magistrate where warrant is not issued. However, the clause of Article 22(1) of
the Indian Constitution, which requires even for the Magistrate to reveal the
basis of arrest, closes this ambiguity in the Code. This right has
specifically been mentioned in the constitution where article 22(1) clearly
No person who is arrested shall be detained in custody without being informed as
soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult, and to be defended by a legal practitioner of his own choice."
As held in Harikishan v. State of Maharashtra
, the police are
not only expected to communicate the reasons of arrest, but they must also
communicate it in a language that is understandable by the accused person.
Otherwise, they are not compliant with the statutory provisions.
The Right To Appear Before A Magistrate Without Any Delay:
Sections 56 and 76 of the Code are essential provisions for an individual
arrested for any offence. Where the section 56 of the code talks about the
arrest made without a warrant and mention the term "unnecessary delay"
presenting the arrested person before the magistrate, Section 76 on the
contrary mentions about the arrests with warrants and along with "unnecessary
, it states out that the time limit should not exceed 24 hours.
these clauses require that the accused be brought before the judicial body as
soon as possible, preferably within the span of 24 hours. It has already been
stipulated that the accused suspect be detained at no other position but the
police station. The rule of 24 hours is well established in the case of Manoj v.
State of Madhya Pradesh which also renders that failure to present the
arrested person before a judicial officer will make the arrest unlawful.
The right to be reviewed by a medical practitioner:
The two sections of the Code of Criminal Procedure, 1973, which are section 54
in section 53 our counterpart of each other. Section 53 is mainly concerned
with medical examination of the arrested person for facilitating investigation
for the police officer whereas the right given to the accused for having himself
examined medically is discussed under section 54 which enables the arrested
person to defend and shield himself.
When he is brought before a judge or at
some time while in prison, the accused party is offered the opportunity to get
his body medically examined by a staff doctor in order to determine that perhaps
the offence for which he has been accused was not conducted by him or that he
may have been injured physically. The accused must be told of his or her
The supreme court in the case of Sheela Barse v. State of Maharashtra, held
that it is the duty of the magistrate to keep the arrested person informed about
his right of getting medically examined under the terms of section 54 of the
code and along with it the magistrate also has an obligation to question the
accused that whether he holds any complain about maltreatment or torture in the
custody of police.
The Right To Be Released On Bail:
This right has been mentioned under section 50(2) of the Criminal Procedure
Code, 1973, which 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.
This would obviously be helpful to those who
are unaware of their rights to be free on parole in the event of bailable
offences. As a result, this provision could, in certain limited ways, increase
people's ties with the police and minimize public dissatisfaction with them.
The accused also holds a right to "Consult a Legal Professional" and get
defended by him as per the accused's own choice. No individual who is arrested
can be deprived of the freedom to see a lawyer of his choosing, according to
Article 22(1) of the Indian Constitution.
The Supreme Court in Suk Das v. Union
Territory of Arunachal Pradesh
, ruled that failure to comply with this
provision, as well as failure to notify the victim of his or her privilege,
would void the proceedings. Section 50(3) also states that every individual
who is the subject of litigation under the code has the right to be represented
by a lawyer of his choosing. An accused person's right to speak with a lawyer
starts the day he is arrested. The lawyer's appointment can occur when the
police official is present, but not in his trial.
Furthermore, the Supreme Court has ruled that the state has a statutory duty
to offer "free legal assistance" to an underprivileged accused citizen, and that
this obligation occurs not only once the litigation starts, but even when the
accused is taken before the judge for the very first time, as well as when held
in custody periodically.
In Suk Das v. Union Territory of Arunachal
, the Supreme Court went a little further, stating categorically
that this fundamental right could not be withheld only because the accused did
not request for it. Failure to offer free legal support to an underprivileged
accused, unless denied, would negate the trial, resulting in the prosecution and
punishment being reversed.
Violation Of The Rights Of The Accused And Judicial Interventions:
Many judicial officers overseeing criminal trials have been found to be
unconcerned with reports of physical torture of convicted people during their
presentation before the judge. The inhumane pressures of duty, a lack of
adequate experience, a lack of sensitivity, and undoubtedly the threat of losing
the protection offered by the police have been some of the causes for the
magistrates' apathy in protecting the accused person's constitutional
With or without an arrest warrant, police officers may detain the accused as
per to section 41 of the code. The accused is taken into police detention
after he or she is apprehended. Despite the fact that the individual is in
police custody, section 57 of the code states that he or she cannot be held
for longer than 24 hours without any court proceeding.
Regardless of the fact
that perhaps the perpetrator has not yet been found guilty of committing the
offence by the state in the judicial proceedings, this privilege of the accused
is nearly invariably broken. In particular, people convicted of major crimes
were often detained by the police for a few months, if not over a year.
In the landmark judgement, Joginder Kumar v. the State of Uttar Pradesh
Supreme Court ruled out that an accused's right to be aware of the grounds of
his crime, informing "a friend, relative or any other person
" of his detention,
and to seek a lawyer is guaranteed by Articles 21 and 22 of Indian Constitution.
It was therefore decided that a policeman cannot make an arrest simply because
he possesses the authority to do so. Any arrest should be accompanied by a clear
explanation. Since a person's image suffers some damage after he is imprisoned.
As a result, any arrest should be made only after a fair degree of satisfaction
and inquiry into the authenticity and credibility of an accusation.
these, detailed instructions were also given that had to be met before arresting
the individual. This case law is considered when searching for laws that are not
stated in the code. Nonetheless, police departments nearly often abuse this
privilege of the accused who is held in their custody.
These individuals are subjected to physical torture by police officers while in
detention. Torture is immoral, and confessions gained by coercion are not
admissible in court as per the Indian Evidence Act, 1872. Moreover, Indian law
within sections 330 and 331 of IPC, prohibits torture of the arrested and
In landmark DK Basu's case
, the court expressed its concern
pertaining to custodial torture
and regarded it as one of the worst
destructions of human rights. Considering that even though several attempts have
been made to completely demolish the torture by police officers, frequent
occurrences of custodial deaths
and police outrages could be seen which made
the supreme court to issue some mandatory guidelines in this case which were to
be followed in all respective arrest cases.
These guidelines broadly covered
about the right of being informed for the relevant reasons of arrest, arrest
when made with or without warrant, right of the accused to call upon a lawyer of
his choice, the 24-hours detainment right, right of getting medically examined
and in furtherance to this, the court laid out that the police officer's
identification must be easily facilitated with "visible and clear name", a memo
of arrest mandatorily required to be prepared and the "right to remain silent
Nonetheless, there is reliable evidence that abuse is widespread in India,
where police officers use torture extensively during interrogation process.
Police activities are profoundly embedded in custodial neglect and brutality.
The number of incidents of killings in jail in India attests to the widespread
use of violence by police in prisons.
Modern constitutional law has gone a long way in terms of securing and
safeguarding the rights of those convicted of crimes. Man is prone to error, and
police officers are even more so as they serve under public scrutiny to achieve
fast results. In the execution of their duty, the police often use shortcuts and
unethical tactics, necessitating a search such that an individual who is
detained cannot flee nor can insist that fundamental human rights be given to
In certain instances, the person accused might not be the one who actually
committed the offence, making the protections all the more relevant. And if the
correct perpetrator is apprehended, there could be underlying factors and other
behavioral traits that contributed to the offence, but he cannot be isolated
from society and led to think that when he committed an offence, he will not be
considered as a decent being. Only certain privileges that obstruct the
execution of justice will be limited by the fact that a person has violated the
law; all the other rights stay unaffected.
The Indian Constitution has granted a variety of protections to a citizen before
the actual trial starts, in order to protect human integrity and prohibit law
enforcement officers from violating their authority. Sections 56 and 57 of the
code, established that the individual arrested and imprisoned by an officer
either with or without a warrant must always be taken before the Judge without
However, since such laws could be overturned by legislatures
at any time, the Constituent Assembly saw the requirement to render these rights
untouchable, and they were codified as constitutional rights in the Indian
Constitution. The abuse of these rights taints the trial, so the constitution
demands that they must be respected.
The procedural protection applies to the
judiciary's investigations, and the law's protocol is practiced not just in
making arrests, but also in ensuring that no proof damning the suspect is
extorted from him. It is the product of the doctrine of the "accused's
presumption of innocence unless proven guilty".
- id, s.50.
- (1976) Cr.LJ 1303 (Gau. HC)
- id, s.75.
- Satish Chandra Rai v. Jodu Nandan Singh,  ILR 26 Cal 743.
- Supra note 1.
- The Constitution of India.
- AIR 1962 SC 911.
- Supra note 1.
- id., s.56.
- id., s.76.
- 1999 Cr.LJ 2095 (SC).
- Supra note 1, s.53.
- id., s.54.
- (1983) 2 SCC 96.
- (1986) 2 SCC 401.
- Supra note 1, s.50(3).
- Hussainarra Khatoon v. Home Secretary (1980) 1 SCC 98.
- Supra note 21.
- Durai, A.P., Human Rights and the role of criminal courts (1996) Cr.LJ 41.
- Supra note 1, s.41.
- Supra note 1.
- Dhagamwar, V., Law, Power, and Justice: The Protection of Personal Rights
in the Indian Penal Code (Sage Publications, New Delhi 1993).
- (1994) 4 SCC 260.
- Supra note 25.
- The Indian Penal Code 1860.
- D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
- U.S. Department of State: India Human Rights Practices, 1995 (U.S.
Government Printing Office, Washington, DC, 1996).