Rashmi Mishra, pursuing LL.B.(3 Years) from Lloyd Law College, Noida.
RIGHTS OF ARRESTED PERSON
All human beings are born with some basic human rights which are fundamental in nature. When we talk about Rights of Arrested Person, it means rights of a person who is arrested, just because a person is arrested cannot be denied his basic human rights which he possesses by the virtue of being human. Hence, if a person gets arrested, he/she cannot be deprived of his/her basic human rights. As per the criminal jurisprudence, each and every person is ‘innocent until proven guilty’. Therefore, an innocent person cannot be destitute of his basic rights merely because that person is being arrested on the grounds of suspicion. The India faces a huge problem of illegal arrests & custodial deaths which are majorly caused due to illegal arrests. These problems undermine the essence of Article- 21 of the Constitution of India as well as the fundamental human rights that are available to everyone under the Universal Declaration of Human Rights.
MEANING OF ARREST:
As per Oxford’s Dictionary ‘Arrest means seizure of someone by legal authorities and to take them into custody’. Hence, it can be said that arrest is an exercise of the power to deprive a person of his /her liberty & the taking or keeping of a person in custody in lieu of legal authority, especially, in a criminal charge.
Mitra’s Legal and Commercial Dictionary, Third Edition (1979), gives the following definition of the word at page 77: “Arrest means the restraining of the liberty of a man’s person in order to compel obedience to the order of a Court of Justice, or to prevent the commission of crime, or to ensure that a person charged or suspected of a crime may be forthcoming to answer it.”
Therefore, it can be said that arrest consists of the actual seizure or touching of a person’s body with a view to his detention. Arrest is not completed unless the person who is sought to be arrested submits to the process and goes with the authorized arresting officer. An arrest may be made either with or without warrant.
As arrest deprives a person of his personal liberty given under Article 21, therefore, the procedure followed for arresting a person shall be just, fair & reasonable as declared by Hon’ble Court in Maneka Gandhi v. Union of India
Rights given to an Arrested Person can be broadly categorise into two categories:
- Rights that can be exercised at the time of Arreste. When a person’s personal liberty, as enshrined under Article 21 of the Constitution of India, is being infringed as per the procedure established by law.
- Rights that can be exercised at the time of Triale. When a person’s personal liberty is already been infringed as per the procedure established by law & now the formal examination of evidence & circumstances have been initiated by the judge in order to decide the guilt of accused i.e. arrested person.
- Right to remain Silent: The ‘right to silence’ has its origin from common law principles. Justice Malimath Committee in its report mentioned that right to silence is a concept which is of utmost importance in societies where anyone can arbitrarily be held guilty of any charge. Right to silence basically revolves around confession only.
Article 20(3) of Constitution of India guarantees, every person, the right against self-incrimination, and it has been stated under this article that no person, who has been accused of an offence, shall be compelled to act as a witness against himself.
The accused has the sole right of being silent during the course of investigation and interrogation – Nandini Sathpathy v. P.L. Dani[i]
- Relevant Provisions of CrPC related to the Rights of Arrested Person:
- As per Section 41 of CrPC, there can be no legal arrest if there is no information or reasonable suspicion that the person has been involved in a cognizable offence or commits offence(s). Section 41 empowers the arresting officer/police officer to arrest even without warrant in certain cases. The first line of the provision clearly states that ‘A police officer may arrest without warrant’ if the person has been concerned in any cognizable offence, or if any reasonable complaint has been made against that person, or some credible information against that person has been received, or if reasonable suspicion exists that person to be so concerned. In addition to this, if the person is a proclaimed offender or possess stolen property & can be reasonably suspected of committing the offence or who is suspected of being a deserter from any Armed Forces or who is a released convict & commits a breach of any rule u/s 356(5).
- Section 45 of CrPC gives an overriding effect to the provision over Section 41 to 44 of the code which depicts that members of Armed Forces cannot be arrested for anything done by them in discharge of official duties, however it includes a mandatory requirement to be fulfilled to give effect to the provision i.e. consent of the central government shall be obtained. If the consent of the CG has not been obtained then the said provision won’t be given any effect.
- Section 46 of CrPC envisages modes of arrest i.e. how an arrest shall be made which states that the person making the arrest shall actually touch or confine the body of the person to be arrested. But there is an exception to this mandatory requirement if there has been submission to the custody which could be express as well as implied i.e. by word or action.
- Section- 49 of CrPC asserts that the police official must not restrain or detain the accused without a legal arrest i.e. there shall be no unnecessary restraint. In the case of D.K. Basu v/s West Bengal and Ors[ii] it has been clearly stated that the rights of an arrested person impel the police officer to act in a certain & defined way.
- Section 50(1) CrPC provides right to know the Grounds of Arrest i.e. Every police officer or other person arresting any person without a warrant is in a mandatory obligation to communicate to him full particulars of the offence for which he is charged & is being arrested or other grounds for such arrest.
- Section 50(2) of CrPC provides the person who is arrested without a warrant shall be informed of the Right to Bail i.e. any person arrested without warrant shall be immediately informed of the grounds of his arrest as per the above mentioned provision, & if the arrest is made in a bailable case, the person shall be informed of his right to be released on bails. This provision can be applicable only in the cases of bailable offence. Section 50 is mandatory to be adhered to as it carries out the mandate of Article 22(1) of the Constitution of India.
- Section 54 of CrPC provides for Medical Examination of Arrested Person i.e. if the person who has been arrested, whether on charge or otherwise, alleges that examination of his body may afford evidence either in his favour or can work against any other person then Magistrate shall compulsorily direct medical examination of that arrested person by a medical officer in service of central or state government, or by registered medical practitioner, upon non-availability of such medical officer.
- The requirement to produce an arrested person before a Judicial Magistrate is a constitutional and legal requirement that must be abided to. The person so arrested shall be produced before a Judicial Magistrate within 24 hours of the arrest can be scrupulously observed in the case of Khatri v. State of Bihar[iii].
- Section 57 is concerned solely with the question of the period of detention which means the person arrested not to be detained more than 24 Hours without warrant exclusive of the time required for the journey from the place of Arrest to the Court of Magistrate.
- Section 303 of CrPC entails the right of arrested person which provides that any person accused of an offence vests with him the right be defended by a pleader of his own choice.
- Furthermore, Section 76 & 56 of the Code depicts a mandatory requirement that a person who has been arrested shall be produced before the Court of Magistrate without unnecessary delay.
- Women are guaranteed special rights against arrest which are as follows:
- Constitution of India: Constitution of India provides for provision authorizing the parliament to make special laws in respect of women. Article 15(3) states that ‘Nothing in this article shall prevent the State from making any special provision for women and children’. This provision enables the parliament to pass laws giving special privileges to women and discriminate with men for the betterment & upliftment of women.
- The code of civil procedure, 1908: Section 56 of CPC states regarding prohibition of arrest or detention of women in the execution of a decree for money i.e. The provision has an overriding effect over all the provisions of law which states that the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.
- Section 132 of the Code of civil procedure 1908 state regarding the exemption of certain women from personal appearance – As per Clause 1 of the said provision according to the customs & manners of the country if a woman who ought not to be compelled to appear in public shall be exempt from personal appearance in Court.
Clause 2 states that – Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code which provides that there are exceptions where the women can be arrested.
- Judicial Precedents against the Arrest of Women:
Now coming to the law laid by different courts, it is settled that women cannot be arrested in certain cases like execution of a decree for money which includes damages or compensation etc. wherein money is to be paid. The Constitution of India is a grund norm which enables all the other legislations to derive its power from. The Indian Constitution in Article 15(3) empowers the State to make laws in favour of women & children which enables the Parliament to pass such laws which are discriminatory in nature giving special privilege to women & children.
- The Hon’ble Court in V.M. ABDUL HAMEED Vs RAMANI[iv] held that woman who, was a judgment debtor in this case, can never arrested in civil prison in execution of a decree for the payment of money.
- In the case of MARY CHACKO Vs JANCY JOSEPH[v], it was held that when Civil Court is executing an order which is passed by the Forum, it cannot order arrest of a woman for recovery of the amount by the virtue of Section 56 of the CPC. Hence, it was held in the abovementioned case that woman cannot be arrested in recovery money in consumer court cases.
- In the case of Veena Madhukant v. State Bank of India, the issue which was raised in the said case was ‘Whether a woman can be arrested and detained in civil prison in proceedings for recovery of debt certified by the Debts Recovery Tribunal’ it was held that the recovery officer for the purpose of realising the debts which are due under the Banks and Financial Institutions Act, 1993 is not authorised to arrest and detain a woman in view of the specific provision.
- In the case of Smt. Kamlesh vs Sita Devi And Othersthe tribunal have ordered the arrest of a woman but the court after analysing the Provision of Section 56 of the Civil Code & Section 69 of the Punjab Act held that the Tribunal could not have ordered for the arrest & detention of the petitioner who is a lady. Hence, arrest warrant issued against woman was quashed & the order passed by the Tribunal was set aside.
It is necessary to provide rights to an arrested person to protect the faith of people in the system. An arrested person is given certain rights to avoid arbitrariness over him/her. By the time any person isn’t proven guilty by the court of law, he should be treated equally and he cannot be deprived of all of his liberties just because of an accusation which has not even been proven yet. Hence, by following the principle of Criminal Jurisprudence i.e. ‘innocent until proven guilty’ the rights shall be there and an innocent shall get fair chance to have access to all the means & rights available to him/her.
 1978 AIR 597, 1978 SCR (2) 621
[i] 1978 AIR 1025, 1978 SCR (3) 608
[ii] 1997 (1) SCC 416
[iii] AIR 1983 SC 378)
[iv] AIR 1940 Mad 153
[v] AIR 2005 Ker 291, 2005 (3) KLT 925