With the incidents that have happened time and again, while an accused or arrested person is in police custody, it needs to be cleared that even accused or arrested persons have certain rights. Such rights are important and are crucial to impart justice to all without any discrimination.
India is a country which follows the adversarial system of justice. This means that in our country, an accused is innocent until proven guilty. Rights available to the accused or arrested persons make it possible for the justice system to function properly, without prejudice. Principles of natural justice also need to be followed.
In this article, an attempt is made to view and analyse all the rights available to arrested persons so as to have a holistic understanding of the rights so available to arrested persons.
There are various rights that exist for the arrested persons. The rights exist and are available to the person being arrested before the arrest as well as at the time of arrest. Certain rights are available after the arrest as well.
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Reasonable grounds for Arrest: When a person is arrested without a warrant, the arresting police officer needs reasonable grounds to arrest the person. Section 41 of the Code of Criminal Procedure provides wide powers of arrest to the police. However, with wide powers comes great responsibility and the burden to prove that there were reasonable grounds for arrest lies on the police officer.
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Notice and Information: Under section 41A of the Code of Criminal Procedure requires the police officer has to give a notice of appearance to the person against whom suspicion exists. Section 41B on the other hand mentions that the arrested person has the right to have a relative or a person so named to be informed of his arrest.
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The manner in which a person is arrested: Section 46 provides for the manner in which an arrest should be made. The section offers wide discretion and powers to the arresting police officer. It should be known, that when a woman is being arrested, a woman police officer needs to be present. This is not a compulsion, but a preferred manner of arrest. If a woman police officer is not the arresting officer, then the woman being arrested cannot be touched by the officer making the arrest and the arrest can only be made by oral intimation of the woman being arrested and if she submits to being arrested. Another provision made, to protect women is that a woman cannot be arrested after sundown and before sunrise except where exceptional circumstances exist and there is prior written permission of the local magistrate.
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Use of unnecessary restraint in prohibited: There are safeguards against the excessive use of restraint by the arresting police officer against the person being arrested. Under section 49 of the Code of Criminal Procedure Code, the person being arrested should not be subject to more restraint than necessary. This basically means that the arresting police officer should exercise only reasonable amount of force and it should be just enough to prevent the person being arrested from escaping or avoiding arrest.
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Grounds of Arrest: The person being arrested has the right to know the grounds on which the arrest is being made. The details should be provided to the person at the time of arrest. The person arrested needs to be informed of the particulars of the offence for which the arrest is being made. Article 22(1) of the Constitution of India and section 50 of the Criminal Procedure Code provide for these rights.
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Right to bail: In a case where the person arrested is arrested for a bailable offence, it the duty of the police officer to inform the arrested person about his right to apply for and get bail. Under section 50 of the Code of Criminal Procedure, the officer is to guarantee that the person so arrested is informed of his right and entitlement to bail and that arrangement of sureties can be made. It is also the obligation of the arresting police officer to inform the person nominated by the arrested person of the arrest of the person under section 50A of the code.
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Right to medical examination: After a person is arrested, the person so arrested has the right to and can request to be examined by a medical practitioner under section 54 of the Code. Further, according to section 55A of the Code, the arrested person should be taken reasonable care of while in custody. The magistrate can direct a registered medical practitioner to conduct a medical exam of the arrested person’s body but the magistrate can deny request of the arrested person if the magistrate believes that this is done so as to delay or defeat the procedure which leads to justice.
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Arrested person to be taken to Magistrate: According to section 56, a person arrested without a warrant is to be taken before the officer in charge of the police station or a magistrate without any delay. It also needs to be noted that a person who is arrested without a warrant cannot be held for a period of more that 24 hours under reasonable circumstances. The person arrested is to be produced before a magistrate within 24 hours. Further, according to section 76, a person arrested while executing a warrant needs to be brought before the court without any inordinate delay.
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Right to Counsel: The person who is arrested also has the right to a counsel after his arrest. The arrested person can contact his choice of counsel. Further, under section 41D, the arrested person has the right to have his counsel present during interrogation.
As is clear, there are various rights of arrested persons. Also, if one reads the provisions that provide for these rights, it can be noticed that though they are rights of the arrested person, most of the provisions are framed in a manner that it makes it the duty of the police officer arresting the person. It is clear by this, that the police have a certain amount of duty of care and should see to it that these rights are not violated or infringed. It is clear that the police needs to be sensitised about these issues.
Authored by :-
Bhakti Parekh