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Rights of Accused: To know the ground of Arrest; Right to free Legal Aid

The legal principle states that a person is considered 'innocent unless proven guilty' and this is what suitably defines why rights of accused are essential. The word "accused" has not been described specifically but they are individuals who have been charged with violating the law and, if prosecuted, shall be punished accordingly.

Basically, anyone who has been charged with committing a crime is called an accused. An individual may face conflict with law enforcers during any stages of criminal justice procedure. Thus, both the Indian Constitution and Criminal Procedure Code (CrPC) provide provisions that help to determine rights of an accused person.

The Supreme Court also emphasised on the importance of ensuring a fair trial and impartial administration of justice for all.[1] To be fair or just, a procedure must include the concept of Natural Justice. Even though there are several rights granted to an accused, in this article, right to know the ground of Arrest and right to free Legal Aid is discussed.

Right To Know The Ground Of Arrest:

The word 'Ground' includes within its ambit only the rudimentary facts. In other words, it can be said that it implies justifications or reasons of Arrest. Even though police hold various powers for making arrest but these powers are subject to certain restrains and these restraints are due to the rights provided to the arrested person.

According to Article 22(1)[2] of Constitution, an individual arrested for violation of law must be well-versed about the grounds of arrest as soon as possible. The phrase "as soon as possible" in Article 22(1) means as early as it is reasonable looking at the circumstance of case at hand. The same is provided for in Section 50[3] of CrPC.

It specifies that any person detained be told of the reasons for their detention as well as their right to bail. The requirement that a person being detained be certain of the reasons for detention is essential to the rule of law. Only after a person understands the reasons for his detention will he apply for bail or, can move to Court for a writ of habeas corpus. In Ram Bahadur Rai vs State of Bihar[4], it was held that grounds should be clearly and explicitly mentioned and nothing should be left for imagination.
Section 50(1)[5] of CrPC provides that anyone who is apprehended by police (without warrant) has rights to know the details of the wrongdoing for which he/she is being detained. The police cannot refuse it and is bound by law to present the wrongdoer with those details. In the case of Udaybhan Shuki vs State of Uttar Pradesh[6], the court held that right to be informed about grounds of arrest is a valuable right of the detained person and such people should not be deprived of it.

The arresting authority must provide accused's correct, recognizable, and clear identity. The detention must be informed to family or friend of the accused as well[7]. Language of communication is another important factor to mention. In Harikishen vs State of Maharashtra,[8] it was held that ground of arrest should be communicated in a language that is understood by the person who is arrested.
According to Section 55[9], if a person is being detained by a subordinate officer, the officer must inform the person being arrested; the content of the written order issued by the senior police officer, stating the offence or any reason for the arrest. If this clause is not followed, then detention would be declared unlawful. Whereas, Section 75[10] deals with notification of substance of warrant. The Court in Satish Chandra Rai vs Jodu Nandan Singh[11] held that if the subject matter of warrant is notified, the arrest would be unlawful.

Right To Free Legal Aid:

The need for legal aid was recognised at the third UN Conference on Prevention of Crime and Treatment of Offenders, held in Stockholm in 1965. At the conference, the availability of legal aid for arrested/convicted individuals was talked over. There was undisputed agreement on the importance of providing legal aid to those who have been detained, charged, or convicted.
Legal Aid refers to provision of free legal assistance to the poor and vulnerable who can't afford to hire an advocate to represent them in a legal proceeding. Legal aid has been recognized as a fundamental right under Articles 21[12] and 39A of the Indian Constitution. The 42nd Amendment Act, 1976 inserted a new provision of free legal aid under Article 39A[13]. This article mandates free legal aid to the poor and weaker sections of society. But, in Hussainara Khatoon vs. State of Bihar[14], it was decided that if an accused cannot afford legal aid, he/she has right to free legal assistance at the State's expense.
Section 304[15] of CrPC deals with providing legal aid to accused at State expense in certain cases. If the accused does not have adequate financial resources to hire an advocate, the Court must provide one at the expense of State. During the pendency of proceedings before the Court, State has a duty to ensure that this provision is strictly followed. The state has the authority to apply the law to any class of people or proceedings in other courts of the state as well. The court's decision shall be null and void if the clause under Section 304 is violated. In series of cases, the Supreme Court has reiterated this multiple times.

A, an accused being a person who is not financially stable is arrested by the police. Now, due to his financial condition, he will not be in a position to pay the fees of a lawyer to conduct his legal proceedings. In this case, the Court shall provide him with a lawyer free of cost so that A's case is brough up and fair trail is conducted. If this is not done, then he might never get a chance to put his point and this would ultimately do injustice to him.
When reviewing the essence and extent of Section 304 of CrPC, the Supreme Court of India in Khatri and Ors (II) vs State of Bihar[16], observed that the State has constitutional obligation to offer free legal assistance to every accused, and this obligation arises not only before the trial begins, but also when the accused is brought before Magistrate for the first time.

It is an obligation even when he/she is remanded from time to time. It is obvious that an individual's personal liberty is at risk as soon as he/she is convicted and brought before a judge. It is at that point that he/she has the first chance to apply for bail and secure freedom, as well as to avoid remand to prison detention.

At this stage, an accused requires professional legal advice and no procedure that refuses him legal advice and representation at this level can be described as rational, fair, or just. In Suk Das vs Union Territory of Arunachal Pradesh[17], the Supreme Court went a step ahead by stating categorically that this fundamental right cannot be withheld only because the accused refused to apply for it.

To conclude, it can be said that even though there are multiple right granted to accused person, right to know the ground of Arrest and right to free Legal Aid are of vital importance. Rights of an individual must not be seized just be he/she has been convicted or accused for violating law.

Since both the Indian Constitution as well as CrPC provide for legal provisions and that no person is above law, every right of accused should necessarily be granted. This becomes the responsibility of the Courts to keep a check because if not then this would make the arrest unlawful and would ultimately open doors for injustice.

  1. Sri Jayendra Saraswathy Swamigal vs State ofTamil Nadu & Ors., 2005 CriLJ 648 (SC
  2. India Const. art. 22(1).
  3. Criminal Procedure Code, 1973, Section 50.
  4. Ram Bahadur Rai vs State of Bihar, AIR 1975 SC 223.
  5. Criminal Procedure Code, 1973, Section 50(1).
  6. Udaybhan Shuki vs State of Uttar Pradesh,1999 CRI LJ 274 (All).
  7. D.K. Basu vs State of West Bengal, 1997 1 SCC 416.
  8. Harikishen vs State ofMaharashtra, AIR 1962 SC 911.
  9. Criminal Procedure Code, 1973, Section 55.
  10. Criminal Procedure Code, 1973, Section 75.
  11. Satish Chandra Rai vs Jodu Nandan Singh, ILR (1899) 29 Cal 748.
  12. India Const. art. 21.
  13. India Const. art. 34A.
  14. Hussainara Khatoon vs State of Bihar, 1979 SCR (3) 532.
  15. Criminal Procedure Code, 1973, Section 304
  16. Khatri and Ors (II) vs State of Bihar, (1981) 1 SCC 635.
  17. Suk Das vs Union Territory of Arunachal Pradesh, 1986 SCR (1) 590.

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