Author Mansi Malik,a fourth-year law student at Lovely Professional University, Phagwara, she is currently interning with Lexpeeps.in
“The article parlance about the rights of the arrested person in the Indian Constitution and code of criminal procedure.
Indian Constitution was presented to the nation on 26th January 1950. Indian Constitution is known as the supreme law of the land, a bag of borrowings. It lays down the principle and framework of government. Indian Constitution lays down salient features, for instance, Codified law, The Largest constitution in the world, Amendment combination of rigid and flexible, Parliamentary form of government, and Federalism. Fundamental Rights are stated in part III from an article (12-35) Article 22 of the Indian Constitution lays down the Fundamental Rights of an arrested person. Article 22 upholds the dignity, equality and unity to the nation.
Fundamental Rights are inherited from America. It prevents Despotic rule in the country.
Rights of Arrested Person
ACCORDING TO A.C DICEY THE CONCEPT OF RULE OF LAW, NO PERSON SHALL BE ARRESTED UNLESS A BREACH OF LAW.
- In respect of other rights, basic rights, for instance, right to live with dignity, right to practise freedom of religion, right to equality similarly, The Indian Constitution provides the right of the arrested person.
- No person shall be arrested or detained unless proven guilty, the unlawful arrest of any person within the territory of India is abridged, contravene or violation of article 21 (Fundamental Rights)
- According to the right guaranteed under article 21 that speaks about no person shall be denied the right to life and personal liberty except the procedure laid down by law. This means the process/ procedure of law must be fair and reasonable.
- Rights of arrested persons are provided in Indian Constitution and The Code of Criminal Procedure 1973.
Rights of Arrested Person under in the Criminal Code
- According to section 50, it states that No authority shall arrest a person without a warrant if it does so the authority must disclose the reason, or for what offence the person is being arrested with specific grounds. It is the procedure which binds the police authorities to follow such rule, regulation. Thus, the duty laid down under section 50 of Crpc shall not be abridged.
- Section 50A, of the code of Criminal Procedure laws laid down the procedure any Police authority arresting any person, must inform its relatives or to the person who has an interest in such arrested person. The duty cannot be refused by the authority.
- According to section 55, The arrest of any person done by a junior police officer without a warrant must disclose the arrest, and the grounds to the arrested person. The arrested person must be produced before the magistrate without any delay.
- The police official must furnish the warrant, to notify the grounds of arrest according to section 75 of the code of criminal procedure1973,
- Section 76 of the criminal code states that it is the right of an arrested person that he shall be produced before the magistrate within 24 hours. Duration of the journey must be excluded.
Right to be Released on Bail
- In non-cognizance offences, the arrested person has the right to be released on bail by furnishing security, sureties as per section 50 (2) of the code of criminal procedure
Right to Fair Trial
- The Indian Constitution lays down the procedure of fair trial as it is the nature of preamble. Absence of privilege in favour of any person stated in the rule of law. The Judiciary has laid down the various landmark judgments regarding the fair trial. Article 14 states Equality before the law and equal protection of the law.
- Equal treatment under equal circumstances. Speedy Trial must be upheld in the landmark case Hussainara Khatoon v. Home secretary. It was held that the trail must be disposed of as earlier as possible.
Right to Consult Lawyer
- According to Article 22 of the Indian Constitution, every arrested person has the right to defend his case and consult a lawyer of its own choice. for any offence/ crime committed by him to prove him innocent or guilty.
- During the period of Interrogation, the accused has the right to consult the lawyer according to law provided under section 41D of the code 1973.
- According to section 303, even if the criminal trial has proceeded against the accused person. The arrested person has the right to consult a lawyer.
Right to Legal Aid
- Right to provide free legal aid to needy people established under article 39A of the Indian Constitution. Khatri v. Bihar, it was held that the state (Article 12) must lay down the free legal aid to the poor. The right to free legal aid is a fundamental right it shall not be refused.
- In section 304 of the code of criminal procedure, right of an arrested person, who is to appear before the district session court must provide with free legal aid to poverty-stricken it must not be refused.
Right to Remain Silent
- According to section 20(2), No accused shall be compelled to be a witness against itself if the arrested person remains silent it doesn’t mean the. The arrested person gave confession and was held liable to be guilty in Nandini Satpathy v Dani.
- Arrested person cannot be forced/ compelled to speak during interrogation by police officials.
Right to Medical Examine
- Section 54 of the criminal code 1973, It is the right to an arrested person to get his/ her medical examination in order not to defeat evidence. And to ascertain the facts for the commission of the offence alleged.
Types of Arrest
- Arrest made by police officers in pursuance of a warrant issued by the magistrate
- Arrest made by police officers without pursuance of a warrant
- For both arrest procedure, the Rights of Arrested person is similarly provided under the Indian Constitution, 1950 and the Code of Criminal Procedure, 1973. It is the nature of preamble even the rights of the accused must be sacrosanct. Article 20(3) provides the right against self discrimination and the arrested person have rights to know the grounds of its arrest.
Judiciary Aspects in Right of Arrested Person
- Determining elements were laid down by Madras High court: –
- Roshan beevi v. Joint Secy – There must be a competent authority to arrest the person, there must be a breach of the law, detention of the arrested person must not be unlawful. There must be actual confinement of the arrested person.
- Khatri v. The state of Bihar – The supreme court held that it is the right of an arrested person to get free legal aid to poverty-stricken people. it is one of the fundamental rights which cannot be deprived.
- Joginder Singh v. State of Uttar Pradesh- Grounds of arrest were laid down in code of criminal procedure 1973, in section 50(1) right to know the grounds of arrest even if arrested without a warrant.
- Detention must be lawful. The arrested person must be produced before the magistrate within 24 hours of the arrest excluding the journey time. D.K Basu v. State of West Bengal
- Husssainara Khatoon case – Supreme court held that there must be a speedy and explicit trial, delay of justice must not be the excuse. The trial must be done as per the procedure laid down in the code of criminal procedure
Additional Rights of Arrested Person
- According to section 358 of the code, 1973. As per the principle of Natural justice, the unreasonable arrest of the person must compensate him.
- Police officials must notify the arrested person about the offence if it is cognizance offence as per section 46 of the code.
- Authorities shall not the cause death of the person to arrest him except if the offence done by him is punishable with death
- Unlawful detention is against the law according to section 49 if any police officials do so shall be punishable for contempt of court.
- In section 41B Every investigation, interrogation, the examination must be clear and visible. officials must make attempts to arrest even if the accused is trying to escape.
- Still, in the 21st century, there have been illegal arrests done at high peek, whether it is detention or counter. Police have taken the authority of the judiciary in its hand and irrespective of many attempts to arrest it uses the power and continues the counter arrest, or unlawful confinement or custodial deaths. Fundamental human rights are provided under the Indian constitution to deprive such unlawful acts. Thus, it is the high time to protect and lay down the stringent guidelines to respect the violation of article 21 and protection against the right to arrest.
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