Arrest and Rights of arrested persons

Meaning of Arrest

The term arrest, stands for the meaning that apprehension of a person by legal
authority so as to cause deprivation of liberty.

Furthermore, arrest can also be understood as a seizure or forcible restraint. It is

an exercise of power in order to deprive a person of his or her liberty and involves
the keeping of a person in custody by legal authority, especially, in response to a
criminal charge.

Under criminal law, arrest is an important tool in order to bring an accused before
the court and to not let him abscond.

Process of making an arrest under the CrPC

It is under the section 46 of the code which states the mode of with or without
warrant. In order to make an arrest the police officer /other person making the
same, is bound to actually touch or confine the body of the person who is
supposed to be arrested until unless there is a submission to custody by words or
action.

It is to be noted here that in cases when the police arrests a person in execution
of an arrest warrant issued by a magistrate, there shall be no handcuffing of the
person to be arrested until unless the magistrate has ordered to do so.

In cases where a woman is to be arrested, her submission to custody shall be

presumed on an oral intimation of arrest unless the circumstances indicate the
contrary, or unless there is female police officer, the male officer making the
arrest shall not touch the woman who is to be arrested.
It is when person to be arrested forcibly resists the endeavour to be arrested, or
attempts in any manner to evade the arrest, then the police officer or other person
affecting the arrest may use all means necessary to give effect to the arrest.

The code however under any circumstance does not give right to cause death of
a person who is not accused of any offence which is punishable with death or
with imprisonment for life.

No women shall be arrested after sunset and before sunrise except under
exceptions and where such exceptional circumstances exist, it is the duty of the
woman police officer to make a written report, and obtain the prior permission of
the Judicial Magistrate of the first class with competent jurisdiction of the offence
for which such arrest is to be made.

Why rights of Accused are crucial ?

The benefit of the presumption of innocence of the accused till the time he is
actually found guilty at the ending of a trial substantiated with evidence, is one
of the basic tenets of our legal system. It is a characteristic of our democratic
society that even the rights of the accused are deemed to be sacrosanct, and even
though he is charged with an offence however that does not render him as a non-
person. Our statute is quite careful towards anyone’s “personal liberty” and
hence doesn’t permit the detention of any person without proper legal sanction.

It is provided by the article 21 of our constitution that there will be no person who
shall be deprived of his life or personal liberty except according to procedure
established by law. The procedure laid down by this article must be followed in
a ‘right, just and fair’ and not in any arbitrary, fanciful or oppressive manner. It
is expected that the arrest should not only be legal but justified also. Even the
Constitution of India, recognizes the rights of arrested person under the
Fundamental Rights.

Hence, the accused has been provided with certain rights under the law and the
general rationale behind these rights is that the government has conferred
enormous resources for the prosecution of individuals’, and therefore accused are
entitled to some protection from misuse of those powers by the government.

Consequently, accused has vested in him certain rights during the course of any
investigation; enquiry or trial of an offence with which he is charged and hence,
he should be protected against any form of arbitrary or illegal arrest. It is to be
noted that no arrest can be formed on the basis of mere suspicion or information.
No matter how much the degree of suspicion is or however impeachable it is, no
private person is allowed to follow and arrest a person on the statement of another
even private person cannot follow and arrest a person on the statement of another
person.

In the leading case of Kishore Singh Ravinder Dev vs. State of Rajasthan, it was
said that in India the constitutional, evidentiary and procedural laws have made
elaborate provisions in regard to protecting the rights of accused and with a view
to protect his dignity as a human being and providing him benefits of a just, fair
and impartial trail.

However, in yet another case of Maneka Gandhi vs Union of India, it was held
by the court that no matter what the procedure the state takes into action, the basic
rule of it being carried out in a just, fair and reasonable way should be adhered
to.

Available rights

There are two types of rights available to the arrested-

1) Rights at the time of arrest

2) Rights at the time of trial

Below has been explained the rights available under both these categories:

Right to remain silence:

The ‘right to silence’ has its origin from common law principles. So in general
sense the courts or tribunals should not conclude that the person is guilty of any
conduct merely because he was not responding to questions which were raised by
the police or by the court. Even the Justice Malimath Committee in its report
opinioned that right to silence is a much needed concept in societies where anyone
can arbitrarily be held guilty of any charge. Right to silence revolves around
confession basically. Also since according to law of evidence, any statement or
confession made to a police officer is not admissible in a court of law, it needs to
be observed that in case the accused confesses infront of the magistrate then such
confession should be voluntary.

Article 20(3) of Constitution of India guarantees every person the right against
self-incrimination, and it has been stated under this article that no person, who
has been accused of an offence, shall be compelled to act as a witness against
himself. This same rule has been reiterated by a decision of Supreme Court in the
case of Nandini Sathpathy v. P.L.Dani and it was held by the court in this case
that no one can forcible extract any statement from the accused and no matter
what, the accused has the sole right of being silent during the course of
investigation and interrogation.

It was held by the Supreme Court again in the year 2010 that narco-analysis, brain
mapping and lie detector test are in violation of Article 20(3) of the Constitution
of India and that by administration of these tests, forcible intrusion into a person’s
mind is being conducted which further nullifies the validity and legitimacy of this
right.

Right To Know The Grounds of Arrest

1. According to Section 50(1) of Cr.P.C., an accused who is being arrested by any

police officer, without any warrant, has the right to know the full particulars of
offence for which he is being arrested, and so it’s the undeniable duty of the police
officer to inform the accused of the particulars.

2. Under section 55 of Cr.P.C., it is the right of the accused to know in case of

being arrested, the written order against him, specifying the offence or other cause
for which the arrest is being made. The arrest will be illegal in case of non
compliance of this provision.

3. In case when the person is being arrested under a warrant, then according to
Section 75 of Cr.P.C, any person who is executing such warrant must notify the
person who is being arrested, the content of such warrant, or show the warrant if
required. If under any circumstance the substance of the warrant is not notified,
the arrest would be unlawful.

4. The constitution of India recognises this as fundamental right also. Under

Article 22(2) of the constitution it has been said that person who is arrested shall
not be detained in custody without being informed as soon as possible of the
grounds for which such arrest nor shall he be denied the right to consult, and to
be defended by a legal practitioner of his choice.

The rules regarding this were upheld in the cases of Joginder Singh vs. State of
U.P. and D.K. Basu vs. State of West Bengal, that it is mandatory under Section
50-A on the part of the police officer to not only inform the friend or relative of
the arrested person about his arrest etc. but also to make an entry about the same
in the register maintained by the police. It is the duty of the magistrate to satisfy
himself about the compliance of the police in this regard.

Informing regarding the right to be released on bail

It is to be seen that any person who is to be arrested without a warrant and who is
accused of bailable offence that he be informed by the police officer about his
right regarding to be released on bail by payment of the surety amount.

Right of an arrested person to be taken before magistrate without delay

It is the duty of the authorised person making an arrest that the arrested person be
bought before a judicial officer without any unnecessary delay, no matter how the
arrest is made with or without warrant. Along with this provision it has to be seen
that the arrested person should be taken and confined in a police station only and
no other place. The same has been stated in section 56 and 76 of Cr.P.C.
Section 56 of Cr.P.C. states that the person who is arrested is required to be taken
before a magistrate or officer in charge of police station. Also in cases where the
police officer makes an arrest without warrant, then in such case the arrested
person shall be taken to the magistrate with competent jurisdiction or before the
in charge of police station without any delay.

Section 76 of Cr.P.C. states that the arrested person needs to be bought before the
court without any unnecessary delay. In accordance with the provisions of section
71 in regard with the police officer or other person executing a warrant of arrest,
they shall without unnecessary delay and due to security purposes bring the
person arrested before the Court before which he is required by law to produce
such person.

It has also been mentioned in the provision of Section 76 that in any case that
such delay shall not exceed 24 hours. In the process of calculating the time period
of 24 hours, the time necessary for the journey is to be excluded. The reason
behind creating this right is to eliminate the possibility of police officials from
extracting confessions or compelling a person to give information.

In case of failure of production of an arrested person before a magistrate within

24 hours of the arrest, the police officials shall be held guilty of wrongful
detention.

Rights at Trial

Right to A Fair Trial

Right to equality has been granted under article 14 of the constitution. It has been
provided under the Code of Criminal Procedure that for a trial to be fair, it must
be an open court trial. In order to prevent secret designing and obtaining of
convictions this provision has been designed. The trial can be held in camera as
well in certain exceptional conditions.

Right to a speedy trial

Regardless of this right not being mentioned in the constitution, the SC in the
Hussainara Khatoon case has made it mandatory that the investigation in the trial
must be conducted “as expeditiously as possible.”

In cases, where the maximum punishment to be imposed is 2 years, once the

accused is arrested, it is important that the investigation for the trial gets
completed within the period of six months or is stopped after order from
magistrate has been recieved, unless the Magistrate receives and accepts, with his
reasons in writing, that there is cause to extend the investigation.

Right To Consult A Legal Practitioner

It is the right of every arrested person to consult a legal practitioner of his own
choice. This has also been enshrined as a fundamental right in Article 22(1) of
the Constitution of India, which is undeniable in all cases. Section 50(3) of the
Code also states that the person against whom proceedings are initiated has a right
to be defended by a pleader of his choice. This right begins as soon as the person
is arrested.

Rights of Free Legal Aid :

The Supreme Court in the case of in Khatri(II) v. the State of Bihar held that the
state is under a constitutional obligation as is implicit in article 21 of the
constitution as well to provide free legal aid to an indigent accused person . It is
important to note the fact that this right starts at the time of trial and continues till
the accused is produced the first time before the magistrate and also when
remanded from time to time. The Supreme Court has emphasised the importance
of this right by stating that that failure on the part of the state to inform the accused
of this right will vitiate the whole process of trial. Therefore, it is a binding duty
imposed on all magistrates and courts to inform the indigent accused of his right
to get free legal aid. The apex court has taken a step further in Suk Das v. Union
Territory of Arunachal Pradesh, wherein it has laid down that this constitutional
right cannot be denied if the accused failed to apply for it.

Right To Be Examined By A Medical Practitioner:

Section 54 of Cr.P.C. enumerates this right and it states that examination of
arrested person by medical practitioner at the request of the arrested person. When
an arrested person, whether on a charge or otherwise alleges at the time when he
is produced before a Magistrate or at any time for which he is detained in custody
that the examination of his body will afford evidence which will lead to
disproving the commission of offence by him or which will establish the
committing of offence by any other person against his body, the Magistrate shall,
direct the examination of the body of such person by a registered medical
practitioner. The Magistrate needs to rely on his better judgement to see that the
request is not made for the purpose of vexation or delay or for defeating the ends
of justice.

Frequently Asked Questions

1) Can a child be arrested?

Yes this is true that the police can arrest children in case they believe that the
child has committed a crime. Normally, police stations will have a child welfare
protection officer ( Section 107 of Juvenile Justice Act 2015) and it is mandatory
that in each district and city, there will be at least one special juvenile police unit.
Whenever the police arrests any child on suspicion of committing a crime, this
should normally be done by a Special Juvenile Police Unit. However in case the
regular police officer arrests the child, then the child should immediately be
placed under the care of the Juvenile Police Unit, or designated Child Welfare
Police officers.

The police has the power to arrest children who have run away from an institution
where they were placed under the Juvenile Justice Act (Section 26 of Juvenile
Justice Act 2015 ), such as an Observation Home (Section 47 of Juvenile Justice
Act 2015) , Special Home or Place of Safety.

2) Can the police keep the arrested child in jail?

No, a child cannot be ever kept in a police lockup or regular jail. It is the duty of
the police to bring you before the Juvenile Justice Bench within 24 hours (Section
10 of Juvenile Justice Act 2015). In case where the police does not release you
immediately on bail, you can only be kept in an Observation Home (Section 12
of Juvenile Justice Act 2015) until you are taken to the Juvenile Justice Bench
(within 24 hours). The police is itself responsible inform a child welfare officer
who is supposed to accompany the child to the Juvenile Justice Bench for the first
hearing.

In case of Deoki Nandan Dayma v. State of Uttar Pradesh it has been held by the
court that the entry in the register of school mentioning the date of birth of student
is admissible evidence with regard to determining the age of juvenile or to show
that whether the accused is juvenile or child.

3) Are Children tried as Adults?

No. When the Juvenile Justice Board decides that a child should be tried as an
adult after a Preliminary Assessment, it sends the case to a Children’s Court. The
Children’s Court may be an existing Sessions Court that is dealing with child-
specific laws, or a special court set up for the purpose of dealing with crimes
under the Juvenile Justice Act.