Rights of a person arrested

The Constitution of India is the grundnorm of the Indian Legal System which cannot be violated or transgressed by any authority in the country. All the actions and laws made by the legislature or the executive has to be in consonance with the principles enshrined under the Constitution. Any law or statute which is contrary to the provisions of this important Charter shall be declared void and shall have no effect whatsoever[1]. The Constitution of India guarantees to all the citizens of the country certain fundamental rights which cannot be taken away by means of any law or action on the part of the Government[2]. These fundamental rights are certainly basic human rights to which all the people are entitled. Therefore, these rights cannot be taken away even if the person is arrested and taken into police custody[3].

Besides the various fundamental rights enshrined under the Constitution of India, there are certain other rights which are available to an arrested person under the Code of Criminal Procedure, 1973. The rights so provided to an arrested person is to ensure that the objectives of equality and free and fair trial are achieved in the judicial proceedings that are instituted against him. This article focusses upon the rights which are available to an arrested person.

Right To Know The Grounds Of Arrest

Article 22(1) of the Constitution of India provides that the arrested person shall, as soon as possible, be informed of the grounds on the basis of which he is arrested or detained by the police. The reason for informing the arrested person of the ground of detention is to enable him to prepare for his defence when the matter is presented before the courts[4]. While communicating the grounds of detention, it must be made sure by the communicating authority that all the grounds of detention are communication in the language which the detainee is able to understand. The communication of grounds in a language not understood by the arrested person amounts to no communication at all[5].

Similarly, Section 50 of the Code of Criminal Procedure, 1973 enjoins upon the police officer or other person effecting an arrest of a person without warrant to inform the person arrested of the grounds on which he is being arrested[6]. Section 75 of the Code of Criminal Procedure, 1973 makes it obligatory for the police officer or other person executing the warrant of arrest to notify the substance of the warrant to the person arrested. If the person executing the warrant does not comply with the provisions of this section, the arrest effected by him would not be lawful[7].

Right Of Information To Family, Friends, Etc.

Section 50A enumerates another right which is available to an arrested person. It casts an obligation upon the police officer or any person who is making an arrest to give the information regarding the arrest to the family or relatives of the arrested person. The family or relative of the arrested person shall also be informed about the location where he is being detained. The purpose of this section is to ensure that the safety and liberty of the person is not being abused because of any unwarranted arrest effected by the authorities[8]

.

Right To Be Produced Before The Magistrate

Article 22(2) of the Constitution of India provides that every person who is detained in the police custody shall be produced before the nearest magistrate within a time period of twenty four hours of the arrest. However, it is imperative to note that the above time period of twenty four hours shall exclude the time required for the journey between the place of arrest to the court of the Hon’ble magistrate. The non compliance with this provision will make the arrest of the person illegal[9]. This requirement of Article 22 of the Constitution of India is incorporated under Section 76 of the Code of Criminal Procedure, 1973.

Read Also: Difference Between Regular Bail And Anticipatory Bail

Right To Be Released On Bail

Sub section 2 of section 50 of the Code of Criminal Procedure, 1973 provides that the person who is arrested without warrant for any offence other than a non bailable offence, then the police officer must inform that person of this right to be released on bail. Non compliance with the above requirement will make the arrest without a warrant invalid[10].

Right To Consult /Be Defended By A Lawyer

Article 22(1) of the Constitution of India provides the arrested person with a fundamental right to consult a lawyer of his choice. The arrested person has the right to avail the legal advice and be defended by a legal practitioner whom he thinks to be appropriate for the case. A similar right of legal consultation has also been provided under Section 41D of the Code of Criminal Procedure, 1973. Section 41D provides the right to the arrested person to meet an advocate of his choice at the time when he is being interrogated by the police. However, this right of consultation does not extend throughout the entire period of the interrogation.

Similarly, Section 303 of the Code of Criminal Procedure, 1973 provides a right to an arrested person to be defended by a lawyer in any proceedings instituted against him in a criminal court. The court must also provide an opportunity to the arrested person to engage another lawyer in case his lawyer is not present in the court on the particular date of hearing[11]. Also, the criminal case cannot be decided against the accused in case his counsel is absent in the court[12].

Right To Free Legal Aid

Section 304 of the Code of Criminal Procedure, 1973 provides the arrested person with the right of free legal aid. When the matter is proceeding before the Hon’ble Court and it appears to the court that the arrested person does not have enough resources or means to engage a legal practitioner, then it is the duty of the court to assign a pleader to the accused person. The pleader shall be assigned at the expense of the state.

A competent and an experienced lawyer must be engaged by the state for the purpose of the defence of the accused[13]. The state cannot deny this right to the arrested person by taking the plea of financial difficult[14]

. However, it is pertinent to note that when the lawyer is being engaged by the state for the arrested person, then the choice of the arrested person shall not be taken into consideration by the state[15].

This section is in consonance with the obligation of the state under Article 39A of the Constitution of India which provides for the equal justice and free legal aid to indigent citizens of  the country.

Right Of Medical Examination

Section 54 of the Code of Criminal Procedure, 1973 gives a right to the arrested person to get himself medically examined from a medical officer who is in the service of either the Central Government or the State Government. In case the medical officer is not available, then the examination may be done by a medical practitioner who is registered[16]. This section is incorporated in the Code so as to provide the arrested person with the opportunity to prove that he has not committed the alleged offence[17]. The record of medical examination can also be used to prove any torture or injury which may be inflicted upon the accused person by the police while being arrested or while under the custody[18].

Right Against Self Incrimination

Article 20(3) of the Constitution of India provides for the right to the accused person against self incrimination by providing that the accused person shall not become a witness against himself. It is a trite law that the accused has all the right to remain silent during the course of investigation. However, no adverse inference can be drawn against the accused because of this silence[19]. However, it has been clarified that compelling the accused to provide a specimen of his signature or fingerprint or footprint does not amount to a violation of Article 20(3) of the Constitution[20].

Right To Speedy Trial

The right to speedy trial is not written specifically as a fundamental right under Part III of the Constitution of India. However, it is recognised to be a part of Article 21 of the Constitution of India which provides for life and personal liberty[21]. The basic reason of recognising the right of speedy trial is to prevent the accused from pre-trial imprisonment, of relieving the accused of public suspicion and to ensure that the evidences are not lost because of the long delay in the trial[22]

Conclusion

The Constitution of India as well as the Code of Criminal Procedure, 1973 provides for various rights to the arrested person so as to protect him from the rigours of an unfair or arbitrary trial. These rights are guaranteed to the arrested person because of the fact that the person accused of an offence does not cease to be a human and is therefore, entitled to all the rights and protection that is guaranteed by the constitution to other citizens without any discrimination. The violation of any of the above rights will make the arrest of the person illegal.