Table of Contents
Introduction
The rights of arrested persons in India are crucial safeguards enshrined in the Constitution and the Bharatiya Nagarik Suraksha Sanhita, 2023 (Old Criminal Procedure Code (CrPC)) to protect personal liberties, prevent abuse of power, and ensure fair treatment of individuals in police custody. These rights are recognized both in the Constitution and by various judicial precedents to ensure that arrests are made legally and with respect for human rights. Below is a detailed explanation of the rights of arrested persons in India:
The Rights of arrested persons
Right to Know the Grounds of Arrest
The right to know the grounds of arrest is a fundamental right under Article 22(1) of the Constitution, which provides that no person who is arrested shall be detained without being informed of the reasons for their arrest. This ensures that the arrested individual is made aware of the accusations against them so that they can seek legal remedies or consult a lawyer for defense.
Section 47 (1) of Bharatiya Nagarik Suraksha Sanhita, 2023 and Section 50(1) of the (Old Criminal Procedure Code (CrPC)) mandates that when a person is arrested without a warrant, the arresting officer must immediately inform the arrested person of the offense or the grounds for their arrest.
Section 55 of both (new BNSS) and (old CrPC) requires that if a subordinate officer is making the arrest on behalf of a senior officer, the arrested person must be informed of the substance of the written order from the senior officer specifying the reason for the arrest.
Section 77 of New (BNSS) and Section 75 of the CrPC mandates that if the arrest is made under a warrant, the police officer must notify the substance of the warrant to the arrested person. If this procedure is not followed, the arrest is considered illegal.
These provisions ensure that the arrested person is promptly informed of the reasons for the arrest, providing them with an opportunity to contest it, apply for bail, or seek legal redress.
Right to Information Regarding Bail
Under Section 47 (2) of Bharatiya Nagarik Suraksha Sanhita, 2023 and Section 50(2) of the CrPC, an arrested person (who is not accused of a non-bailable offense) must be informed of their right to be released on bail. The officer must also inform them that they can arrange for sureties to be released from custody. This right is essential because many individuals, especially those unfamiliar with the legal system, may not know their right to bail. Informing them about it can speed up the legal process and help reduce unnecessary detention.
Right to be taken Before a Magistrate Without Delay
The Constitution and BNSS and old CrPC guarantee that arrested individuals must be brought before a Magistrate as soon as possible.
Section 57 and 78 of BNSS and Section 56 and Section 76 of the CrPC specify that the arrested person must be brought before a Magistrate or judicial officer without unnecessary delay.
Section 58 of BNSS and Section 57 of CrPC further states that the arrested person should not be kept in any place other than a police station before being presented to the Magistrate.
Article 22(2) of the Constitution mandates that no person shall be held in custody for more than 24 hours without being brought before a Magistrate. This ensures judicial scrutiny of arrests, preventing unlawful detention and abuse of power by the police.
Right to not being detained for more than 24 Hours without Judicial Scrutiny
Under Section 58 of BNNS and Section 57 of the CrPC and Article 22(2) of the Constitution, an arrested person must be produced before a Magistrate within 24 hours of arrest, excluding the time required for the journey to the Magistrate’s court. If the arrested person is not produced within this time frame, it amounts to unlawful detention. The main purpose of this provision is to protect individuals from unlawful detention and police excesses. The arrested person can be questioned by the Magistrate, who can review the legality of the arrest and decide on bail or further detention. Failure to comply with this requirement leads to wrongful detention and the police officer may face legal consequences, including departmental action.
Right to Consult a Legal Practitioner
Article 22(1) of the Constitution grants every arrested person the right to consult a legal practitioner of their choice. The arrested person is entitled to legal representation from the moment of their arrest. This provision ensures that arrested individuals have access to legal assistance to protect their rights, especially when facing charges or a potential trial. Section 340 of BNSS and Section 303 of the CrPC further reinforces this right, ensuring that an individual against whom proceedings are instituted has the right to be defended by a lawyer of their choice. The consultation with a lawyer may take place in the presence of a police officer, but not within their hearing. This ensures the privacy and confidentiality of the consultation.
Right to Free Legal Aid
The Supreme Court in cases such as Khatri v. State of Bihar has emphasized the constitutional mandate to provide free legal aid to indigent accused persons. This right is rooted in Article 21 of the Constitution, which guarantees the right to life and personal liberty. This obligation does not arise only when the trial commences, but also when the accused is first produced before the Magistrate, as well as when they are remanded in police custody. The Court has ruled that failure to inform the accused about this right to free legal aid would vitiate the trial. In Suk Das v. UT of Arunachal Pradesh, the Supreme Court held that the constitutional right to free legal aid cannot be denied even if the accused fails to request it. Failure to provide legal aid can lead to the setting aside of the conviction and sentence.
Right to Medical Examination
Section 53 of BNSS and Section 54 of the CrPC grants an arrested person the right to be medically examined. This is vital for protecting the arrested person from torture, ill-treatment, or to establish that the offense they are charged with was not committed by them. The Supreme Court has stated that the arrested person must be informed by the Magistrate about their right to be medically examined. Section 54 of BNSS and Section 54-A of the CrPC also provides for police identification of an accused upon request, as part of the investigative process.
Guidelines given by Supreme Court in Joginder Kumar v. State of U.P. Case
the Supreme Court laid down specific guidelines to protect arrested individuals:
- An arrested person has the right, upon request, to have a friend, relative, or someone else informed of their arrest and where they are being detained.
- Police officers are required to make an entry in the arrest register, documenting who was informed of the arrest.
- These guidelines are intended to safeguard against police abuse and ensure transparency in the arrest process.
Conclusion
The rights of arrested persons are vital for the protection of individual liberties and to prevent arbitrary detention or police misconduct. The legal provisions outlined above, including those under the Constitution and the CrPC, ensure that arrested individuals are informed of their rights, have access to legal representation, and are not subjected to unnecessary or unlawful detention. The Supreme Court has reinforced these protections through several landmark rulings, ensuring that police and judicial authorities adhere strictly to these requirements to safeguard personal liberty.
