“Every right is a moral as well as legal entitlement to have or do something”
“Every right is a moral as well as legal entitlement to have or do something”“Every right is a moral as well as legal entitlement to have or do something”
Every human is born with certain basic rights that he is entitled to for instance, right to live and right to freedom etc. Similarly every citizen of every country is presented with certain rights that are absolutely fair without any prejudice in the spirit of common brotherhood and conscience like the right to life, right to equality, right to freedom, right to education, right to equality, right to freedom of religion and many more. However, the same rights of a person can get surrendered if the person gets detained/ arrested for committing a crime. Although an arrested person too has certain rights that explained below.
The legal system in India is established on the platform of “innocent till proven guilty”. An unlawful arrest of an individual can be a violation of *Article- 21 of the Indian Constitution* that states, “no human shall be denied of his right to life and personal liberty except if established by law” which means that the process must be fair, clear and not arbitrarily or oppressive.
In this article we will understand the numerous rights that an arrested person has as provided under law prescribed by the Constitution of India:
*#What are the different rights of an arrested person?*
*1 - Right to know the grounds of arrest*
*#Article- 22(1)* of the Indian Constitution stipulates that no police official can arrest any individual without informing the accused the reason/ ground of his detainment/ arrest.
*#Section- 50* of the Code of Criminal Procedure (CrPC) says that every police official with authority to arrest someone without a warrant must inform the person getting arrested about the crime for which he is arrested and other relevant grounds for the arrest. This is the duty of the police official which he cannot refuse.
*#Section- 50A* of CrPC makes it compulsory for the person/ police official arresting a person to inform of the arrest to any of his relatives or even friends who may have interest in the same.
*#Section- 55* of CrPC states that in situations where a police official authorises his junior to arrest a person without a warrant, the junior official must notify the arrested person of the order of delegation that is given which must also mention the crime and the grounds of arrest.
*#Section- 75* of CrPC states that the police official executing the warrant must notify the substance to the arrested person and furnish the warrant of the arrest when required.
*2- Right to be produced before the Magistrate without unnecessary delay*
*#Article- 22(2)* of the Indian Constitution stipulates that the police official making an arrest must produce the arrested person before the Magistrate within 24 hours of the arrest failing to do so would make him liable for wrongful detention.
*#Section- 55* of CrPC states that in case a police official is making an arrest without a warrant, then he must produce the person arrested without any unnecessary delay before the Magistrate with jurisdiction or before a police officer in charge of the police station, depending upon the conditions of the arrest.
*#Section- 76* of CrPC states that the arrested person must be produced in court within 24 hours of his arrest, the same can must exclude the time duration which is required for the journey from the place of arrest to the Magistrate Court.
*3- Right to be released on bail*
*#Section- 50 (2)* of CrPC provides that the arrested person has the right to get released on bail by making arrangement for the sureties or just inform him of his right when arrested without a warrant for an offence other than a non-cognizable offence.
*Additional rights available to an arrested person*
*#Section- 55A* of CrPC asserts that maintaining reasonable heath care and safety of every arrested person will be the sole responsibility of the person (police official) who has the custody of the accused.
This principle was established to protect the arrested person from cruel and inhuman treatment in the prison.
*#Section- 358* of CrPC is another groundbreaking effort towards the principle of natural justice where the arrested person is provided with compensation when arrested unreasonably.
*#Section- 41A* of CrPC asserts that the police official must furnish notice to the person who has supposedly committed a cognizable offence to appear before him at a specified time, date and location.
*#Section- 46* of CrPC stipulates the mode of arrest of an accused person which includes submission to custody by the accused, physically touching the body, or to a body.
The police official must not cause death of the accused person while trying to arrest the person except when the person to be arrested is accused of an offence which is punishable with death or life imprisonment or when the accused person is trying to unnecessarily resist his arrest by turning violent and aggressive or when the accused is trying to escape.
*#Section- 49* of CrPC asserts that the police official must not restrain or detain the accused without a legal arrest.
The landmark case of D.K. Basu v/s West Bengal and Ors. concentrates on “the rights of an arrested person which further impels the police officer to act in a certain way”.
The court further observed that if the police official is unable to perform his duty properly, then he will be accountable for contempt of court and also for departmental inquiry. Such dispute can be initiated in any High Court that has the jurisdiction over the said dispute.
Regardless of numerous efforts to safeguard an accused person from unnecessary torture and inhuman conduct, number of custodial deaths and police atrocities are still common. Therefore, to overcome this, the Indian Apex court circulated 9 significant guidelines to protect an accused person which also included amendment to numerous sections of the CrPC which are as follows:
*#Section- 41B* Every police official authorised to conduct the investigation/ arrest must supply clear, visible and valid badge where the name and designation of the police official is clearly mentioned.
Besides this, the police official authorised to make an arrest must prepare a cash memo with complete details of the arrest like the date and time. The same document must have signatures of at least 1 family member or any one honourable person of the locality of the accused. The arrested person has to countersign the cash memo.
*#Section 41D* entitles an arrested person to a right to have 1 friend or relative or any other person who he wants by his side during his arrest.
The police must inform the person arrested about his right to inform someone immediately when the person is detained or put under custody.
Appropriate entry must be made in the diary and be maintained by the police which must furnish all the important information related to the arrest of the person which must further include the details of the person accompanying the arrested person and also the details of the person to whom information regarding the arrest has been made.
The official diary must also include the name and additional particulars of the police officials under whose custody the arrested person is. Moreover, a medical examination has to be conducted but after the request of the arrested person to put on record any minor or major injuries suffered by the arrested person. This inspection memo is supposed to be signed by both the police officials as well as the arrested person.
The arrested person has the right to meet his lawyer while in prison and during interrogation.
In addition to these, all the copies of the entire documentation must be sent across to the Magistrate for his record which must also include the arrest memo.
*#Section- 41C* Every arrest made by any police official must be informed to the District and the State headquarters within 12 hours of any arrest which also needs to be displayed on the conspicuous board.
*The Court in Yoginder Singh v/s State of Punjab observed that for the execution of Article- 21 as well as Article- 22(1) it is imperative that:-*
*#The arrested person has the right to inform his friend, relative or any other person in his interest about his arrest*
*#The police official must inform the arrested person all his rights right after detainment/ arrest of the accused* *person.*
*#The entry of the arrest with complete details must be made in a diary which must include the name of the person who has been informed about the arrest.*
India faces a huge problem of illegal arrests as well as custodial deaths which are majorly caused due to illegal arrests. These problems undermine the essence of Article- 21 of the Indian Constitution as well as the fundamental human rights that are available to everyone under the Universal Declaration of Human Rights. The stipulations issued in D.K. Basu v/s West Bengal by the Supreme Court of India are not being properly executed and therefore, it is the need of the hour to try and execute the issued provisions and guidelines properly which can definitely bear better results which would ultimately help decrease the number of an illegal arrests and resulting custodial deaths.