It is evident in our Constitution that every individual has certain fundamental rights, and infringement of such rights by any government institution leads to damages. Similarly, the criminals also have certain rights when or while they are being arrested. For a police officer, to arrest someone is not as simple as it seems, an arrest on a mere suspicion may lead to devastating effects on one’s life and reputation. It is prudent for every police officer to arrest only after complete scrutiny and satisfaction. And paramount of all, our legal system is developed on the principle of “innocent until proven guilty”. An unlawful arrest or confinement is a violation of one’s fundamental right under Article 21 of the Constitution, which bestows upon him the right to life and personal liberty. No individual appreciates any unsolicited encroachment by any police officer without solid evidence and satisfaction making the arrest and causing harm to their mental as well as physical well-being. Further, we will discuss the rights available to an arrested person:
1. Right to know the grounds of arrest: This right is defined under section 50 of the Criminal Procedure Code, stating that every police officer making an arrest without a warrant should intimate the accused on the grounds of arrest. This is also enshrined under Article 22(1) of our Constitution. If the arrest is sought via a warrant as per section 75 of the Code, the officer-in-charge is supposed to show the warrant to the person being arrested and also explain to him the grounds of arrest.
2. Right to ask for authorization, if the arrest is sought by any person other than the officer-in-charge:
– According to section 55 of CrPC, if the arrest is sought by some other person instead of by the officer-in-charge, then the subordinate officer or person allowed the authority to arrest should carry along a written authorization by the officer-in-charge of the police station, which shall include the details of the arrest such as the offence for which the arrest is being done, etc. If the arrest is made by a subordinate officer without valid written authorization, the arrest would be deemed illegal.
3. Right to remain silent: The accused or the person arrested has the right to remain silent and can opt to not answer any questions that he feels could be self-incriminatory in nature. This right is defined under article 22 of the Constitution. This is based on the maxim “Nemo tenetur prodere accusare seipsum ” i.e. no man is obligated to accuse himself through statements proving him to be a part of the offence.
4. Right to be released on bail: When the person is arrested for a bailable offence without a warrant, the officer making the arrest should brief the accused about all the particulars and also, that he can be released on bail. For that purpose, the accused can begin execution of bail sureties on his behalf.
5. Right to be taken to the Magistrate without any delay: As per sections 56 and 76 of the Criminal Procedure Code, it is the duty of the police officer to take the arrested person to the Magistrate within 24hrs of his arrest excluding the journey time. The police officers are not allowed to detain the person for more than 24hrs which would then amount to illegal detention. This right is also enshrined under article 22 of the Indian Constitution.
6. Right to Legal Counsel of your own choice: According to sec 50(3) of the Code and Article 22 of the Constitution, every accused arrested has a right to be represented by a legal counsel of his own choice. If the accused is unable to pay his own court fees, then the police officer in charge of the arrest is bound to refer the case of the arrested person to Legal Aid groups, to provide him free legal aid, stated as a mandate under Article 39A of the Indian Constitution.
7. Form of arrest: As per sec 70 of the Code, a warrant of arrest is a directory order by the Magistrate of that area consenting the police to make the arrest of the person stated in the report by the police. This warrant also includes a condition, that if the accused ensures his presence in the court on the day of trial and executes a bond on its behalf, then he shall be released. This kind of warrant is also called a ‘bailable warrant of arrest’. A warrant can only be issued by the Magistrate, if the police have reasonable justifications to do so otherwise a warrant cannot be issued merely on suspicion.
8. Right to be examined medically: Every arrested person has the right to be examined medically by a medical officer stating any injury marks of violence on the arrested person. This can be demanded by the arrested person if he believes that a medical test of his can prove all the allegations wrong against him, hence the Magistrate if satisfied may allow for the medical examination.
- Maintaining health and security of the person arrested: After the arrest, it is the duty of the officer in charge to maintain the health and safety of the arrested person till the time the person arrested is in their custody.
10. Right to a fair and speedy trial: As per the provision stated under Article 21 of the Constitution, every arrested person has a right to a fair and speedy trial. Ideally, for offences with imprisonment of up to 3 years, the investigation is supposed to finish within 6 months, as per section 167(5) CrPC.
Awareness about the rights of an arrested person is the need of the hour, as it puts a halt over the exploitative behaviour of the police by making illegal arrests and violating fundamental rights of various individuals. There are guidelines issued by the Apex court in the case of DK Basu v State of West Bengal, which are still not executed in an orderly manner by the police. Individuals need to know about their rights, to prevent themselves from the oppression by the police. Many police officers try to make the arrest on Fridays, due to the fact that the Magistrate court stays closed during the weekend, and the arrested person is kept into custody of the police till the court opens next week.
For more information or assistance regarding unlawful arrests, contact us at www.lawsimpl.com