This Article is written by Parvati Ranawat on the Topic, useful for common man, i.e. “RIGHTS OF AN APPREHENDED PERSON”. An Apprehended person is the one who is being arrested for committing any crime. But not necessarily always, that’s why it’s very necessary for a prisoner to know its rights.
India is a country where democracy rules. Being a democratic country, India has a constitution that serves its citizens with basic fundamental rights; for instance right to life, right to equality, right to freedom; right to education, right to equality, right to freedom of religion etcetera. Rights are legal, social, or ethical principles of freedom. And these rights get seized if a person commits a crime. But in a democratic country, even the rights of an accused person cannot be interfered with.
In our nation’s criminal justice system; legal ethics is quite established; “let the thousand of criminals be let out, but a single innocent should not be punished”. The judiciary requires all cases to be proved beyond reasonable doubt as it is a principle of cardinal importance. The legal system also provides a term called lawful arrest. It is because; 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.
What is referred by the term ‘arrest’ ?
In the Law Lexicon’s Dictionary, the word Accused has been defined as; “A person against whom an allegation has been made that; he has committed an offense, or who is charged with an offense”.
In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest; as the act where a person is taken into custody to be formally charged with a crime. The court observed that in a Constitutional sense, it means the seizure of a person (body of a person).
Following are the rights of an arrested person
In the leading case of Meneka Gandhi v. Union of India it was interpreted that the procedure adopted by the state must, therefore, be just, fair and reasonable.
In the case of Kishore Singh Ravinder Dev v. the State of Rajasthan; it was said that the laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for safeguarding the rights of accused; with the view to protect his (accused) dignity as a human being; and giving him benefits of a just, fair and impartial trial.
The Constitution of India recognize the rights of arrested person under the ‘Fundamental Rights ‘; and here we will know about those rights :-
Rights to be informed the grounds of arrest :
This Right is mentioned in Section 50 of the Criminal Procedure Code, 1973.
Further, Subsection 1 states that; “every police officer or other person arresting any person; without a warrant shall forthwith communicate to him full particulars of the offense for which; he is arrested or other grounds for such arrest.”
Next, Section 55 states that when the senior officer designates the work of arresting to a subordinate officer then; he shall provide the accused with the written order given by the senior officer specifying the offense. Non-compliance with the provision will render the arrest illegal.
In non-cognizable cases, arrest are made through warrants; and section 75 gives a right to the arrested to see that warrant.
Requirements of warrant of arrest to be fulfilled:
- It should be in writing;
- It should have a seal of the court;
- It should be signed by the presiding officer;
- It should contain the name, address of the accused, and the offense under which he is being arrested.
If any of the aforementioned if not fulfilled then the arrest would be unlawful.
Article 22(2) of the Indian Constitution has endowed with this right the status of the fundamental right. It affirms that; “No person who his arrested shall be detained in custody without being informed, as soon as may be; for the grounds of such arrest nor shall be denied the right to consult; and to be defended by, a legal practitioner of his choice.”
The judgments of Joginder Singh v. State of U.P. And D.K. Basu v. State of West Bengal, have enacted the rules in Section 50-A; making it obligatory on the part of the police officer not only to inform the friend; or relative of the arrested person about his arrest; but also to make an entry in a register maintained by the police.
This is an essential right because when timely informed the accused can move the proper court for bail; or inappropriate conditions or a writ of Habeas Corpus, or to make abrupt arrangement for his defense.
Right to remain silent
It is the right of an apprehended person to remain silent under Article 20(3) of the Indian Constitution so that police can not extract a self- incriminating statements from a person without his consent.
It is justified from the case Nandini Sathpathy v. P.L. Dani where its pronouncement stated that no one can forcibly extract statements from the accused; who has the right to stay silent during the course of the investigation. By the administration of these tests, forcible intrusion into one’s mind is being restored; thereby nullifying the validity and legitimacy of the Right to Silence.
Right to be presented before a magistrate without a delay
It does not matter if the arrest is made by a warrant by any person or made by police officers without a warrant; the accused has to brought before the magistrate without any unnecessary delay. It is also the matter of fact that; the arrested person has to be put into the Police Station before presenting him in front of the magistrate; and not to be confined in any other place.
Section 56 of the Criminal Procedure Code
A person arrested to be taken before Magistrate by officer-in-charge of the police station. A police officer making an arrest without warrant shall, without unnecessary delay; and subject to the provisions herein contained as to bail, take; or send the person arrested before a magistrate having jurisdiction in the case; or before the officer-in-charge of the police station.
Section 76 tells that the accused person ha to be bright before the court without delay. The police officer executing the warrant of arrest shall; without any delay, bring the arrested person before the Court before which he is required by law to produce such person.
The case State v. Vipin Kumar Mehta states that this right is to save the accused from unnecessary harassment; and to seek his remedies within the statutory period fixed by the legislation.
The information about right to be released on bail
This right is for those persons; who may not know about their right to be released on bail in case of bailable offenses. It helps in reducing the feeling of discontentment towards the police by the locals. This right is stated under section 50(2) of the Criminal Procedure Code. It declares that; where a police officer arrests without a warrant any person other than a person accused of a non-bailable offense; he shall inform the person arrested that; he is entitled to be released in bail that he may arrange for on his sureties.
In Sushila Agrawal v. State (NCT of Delhi) it was submitted that in an event of arrest the person can be related on a bail.
Rights at Trial
Right to a fair trial: Every accused is entitled to be informed by the court before taking the evidence that; he is entitled to have his case tried by another court and if the accused subsequently moves; such an application for transfer of his case he to another court the same must be transferred. And if not done as mentioned above then it will violate Article 14 of the Constitution; which guarantees Right to Equality because then the trial won’t be fair.
Right to a speedy trial:
In the judgment of Hussainara Khatoon; the judgment passed by the Supreme Court is that the trial should be done as expeditiously as possible. After arresting the accused, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate.
No detention without judicial scrutiny for more than 24 hours
This right is recognized as the fundamental right under Article 22(2) of the Indian Constitution. Article 22(2) declares, “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest; excluding the time necessary for the journey from the place of arrest to the court of the magistrate; and no such person shall be detained in custody beyond the said period; without the authority of a magistrate.”
This right is supported by the Article 57 and Article 76 of the Criminal Procedure Code.
It is essential for the following reasons:-
- To prevent unlawful and illegal arrests;
- To afford an early recourse to a judicial officer independent of the police; on all the questions of bail or discharge ;
- So that the accused doesn’t have to face any compulsion by the police officials to get information; in other words, to prevent arrest and detention for the purpose of extracting confessions;
- So that police stations are not used as prisons- a purpose for which it is unsuitable.
Rights to be Medically Examined
The accused have the right to get his body examined by a medical practitioner any time in the custody; or when he is brought before the magistrate. It is granted in order to enable the accused to establish that he was subjected to physical torment; or to establish that the offense with what he is charged is not committed by him.
Section 54(A) which expresses the following:
That “It shall be the duty of a person having custody of an accused to take reasonable care of the health and safety of the accused. This right is also to safeguard the accused from “custodial violence” which means torture, rape, and death in custody.
Right to confer a legal practitioner and free legal aid
It is implicit in Article 21 of the constitution to provide the accused with free legal aid; and consult a legal practitioner of his choice; not only when the trial begins but also when the accused is first produced before the magistrate. It was held by the Supreme Court in Khatri v. State of Bihar.
This right would have no meaning if an accused is not duly informed about it by the court. That is why the Supreme Court called for all the magistrates and courts to inform the accused; about his access to the right to free legal aid and consulting a legal practitioner.
Further in Suk Das v. Union Territory of Arunachal Pradesh, it is laid down that this constitutional right can’t be denied; if the accused failed to apply for it. It is clear that unless refused, failure to provide free legal aid to an accused would vitiate the trial entailing setting aside of the conviction and sentence.
Production of Evidence: Right of the Accused
Section 138 of the Indian Evidence Act,1872; lays down the manner of examining a particular witness and creates three distinct rights viz., examination-in-chief, cross-examination, and re-examination so far as the examination of a witness is concerned.
The right of cross-examination available to the opposite party is a distinct and independent right. When accused declined to cross-examine the witness; and thereafter the said witness is not available for cross-examination; the evidence of such witness recorded is admissible in evidence but that will have to be true to that account; Nandram v. State of Madhya Pradesh, 1995.
Section 33 says, “Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated”
“No confession made to a police officer 1 shall be proved as against a person accused of any offense;” Section 25 of The Indian Evidence Act,1872.
There are hundreds of cases where police officials have misused this power; the power to arrest an accused person. When this power is misused and the accused faces problems and custodial violence then; he gets demoralized and it has a large impact on that individual’s personality. Police officials are recognized as the protector of the common man. It is their duty and responsibility to protect the common man from violence. And if they misuse it then a very hazardous message goes to the public out there. This “misusing of power” should be put to a halt.
It is also the duty of a citizen to keep himself aware of the rights; that have been granted to him by the constitution. The world, today, is full of fraudsters. So, all should be updated with their basic fundamental, human, and constitutional rights.
One never knows about the situation he is going to land in the next moment. So, it is advisable to know the rights of an accused person to protect oneself from unnecessary injury and harm. Remember, the person arrested is an accused and not criminal until proven guilty beyond reasonable doubts.