The word Arrest is not defined under the code of criminal procedure. Rights of an arrested person are defined under the code of criminal procedure.
What is arrest?
Meaning of Arrest: – An arrest is the act of apprehending and taking a person into custody, usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in a criminal justice system
Arrest means seizure or forced restraint; an exercise of the power to deprive a person of his freedom; by legal authority to detain or keep a person, in particular, in response to a criminal charge.
What are the four essentials of arrest?
The vital elements required to institute arrest are: –
- Arrest should be intended under legal authority,
- There should be confiscation or detention of the person,
- The person must be in the lawful custody,
- The act of arrest should include the actual detention of the person and should not be a verbal declaration of the arrest.
What are the two types of arrest?
The two types of arrest are: –
- Arrest with warrant: – In all warrant cases, an arrest can be made, in summons cases if it is necessary for bringing accused in court.b in case of breach of Bond for appearance. Reasons to believe that the accused has absconded or will not obey the summons. etc. arrest warrant can be issued upon receiving a complaint, in case of information provided by a person, not a police officer, knowledge of the magistrate himself. Arrest made in compliance with a warrant issued by a magistrate
- Arrest without warrant: – This occurs when a police officer is entitled to arrest an accused person without a warrant. While there are a number of grounds, the police usually arrest without a warrant any person who has been, or is reasonably suspected of having been involved in an arrestable offence.
When police may arrest without a warrant?
Section 41 is the main section for situations when the police can arrest without warrant.
It lays down following grounds when a police officer can arrest without a warrant: –
- Any cognizable offence like murder, rape, kidnapping, theft, etc. or
- Possessing any housebreaking weapon without any legal right,
- Those who have been declared as culprits either under CRPC or by order of the State Government or
- Who has the possession of any stolen property or
- Who obstructs a police officer in performing his duty or who has survived, or tries to flee, from legal custody or
- Who is suspected to be frustrated by any armed forces of the Union
- Which is related to any law relating to extradition or
- Who, being a convicted criminal, violates any rule made under sub-section (5) of section 356 CrPC or
- whose arrest has been demanded by any other police officer for any offence and appears that the person might lawfully be arrested without a warrant by the officer who issued the persons arrest.
What are rights of an arrested person?
The benefit of presuming the accused is innocent until he is found guilty at the end of the trial with evidence is one of the core principles of our legal system. It is a feature of our democratic society that even the rights of the accused are considered sacred, and even though he is charged with a crime but cannot be treated as a non-person.
Our law is quite careful about one’s liberty and therefore does not allow any person to be detained without proper legal sanction.
What are the available rights of an arrested person?
There are two types of rights available to the arrested person: –
- Rights at the time of the arrest
- Right to remain silent
- Right to know the grounds of arrest
- Information regarding the right to be released on bail
- Right to be taken before a Magistrate without delay
- Right to be taken before Magistrate or officer in charge of Police Station
- Right to be brought before the court without any delay
- Right not to remain in custody for more than 24 hours without any judicial inquiry
- Rights at the time of trial in Court
- Right to A Fair Trial
- Right to a speedy trial
- Right to consult a legal practitioner
- Rights of free legal aid
- Right to be examined by a medical practitioner
Explanation
1. Rights at the time of the arrest
- Right to remain silent: – It has its origins from the common law principles of a right to silence. Therefore courts or tribunals in the general sense should not conclude that the person is guilty of any conduct only because he was not answering the questions which were raised by the police or the court. Article 20 (3) of the Constitution of India guarantees every person the right against self-oppression, and under this article, it is stated that any person who has been accused of a crime, should not be forced to act as a witness against himself. It was held by the Supreme Court in the year 2010 that narco-analysis, brain mapping and lie detector tests violate Article 20 (3) of the Constitution of India and forcible intrusion into a person by the administration of these tests. The mind is being operated which further nullifies the validity and legitimacy of this right.
- Right to know the grounds of arrest: – According to Section 50 (1) of CrPC, an accused who is being arrested by any police officer, without any warrant, has the right to know the full details of the crime for which he is to be arrested, and also it is the undeniable duty of the police officer to inform the accused of the particular. Under Section 55 of CrPC, the accused has the right in case of arrest, to know the written order made against him, specifying the offence or other reason for which the arrest is being made. An arrest would be illegal in the case of non-compliance of this provision. If a person is being arrested under a warrant, according to Section 75 of CrPC, whoever is executing such a warrant should inform the person who is being arrested, or show warrants if necessary. If the substance (reason) of the warrant is not notified under any circumstances, the arrest will be unlawful. The Constitution of India also recognizes this as a fundamental right. Under Article 22 (2) of the Constitution, it is stated that a person who is arrested shall not be detained without notifying the grounds for such arrest nor he shall be deprived of his right to counsel and to be defended by the legal practitioner of his own choice.
- Information regarding the right to be released on bail: – Section 50 (2) CrPC provides that where a police officer arrests a person for a bailable offence without any warrant, it is the duty of the police officer to inform the arrested person that he has a right to be released on bail and that he may arrange of sureties for it.
- Right to be taken before a Magistrate without delay: – Whether the arrest is made by a police officer with warrant or without warrant, it is the duty of the police officer to bring the arrested person before the magistrate without any delay. It is also provided that the arrested person should not be confined to any place other than a police station before being taken to the magistrate. These cases are provided in CrPC under section 56 and 76.
- Right to be taken before Magistrate or officer in charge of police station: – According to Section 56, a police officer who is arresting without a warrant has to take that person to the court without any unnecessary delay and subject to the provisions herein contained as to bail, take or send the arrested person before a Magistrate who is having jurisdiction in the case, or before the officer in charge of a police station.
- Right to be brought before the court without delay: – According to Section 76, the police officer or other person executing the warrant of arrest (for protection as per the provisions of section 71) shall bring the arrested person to court without undue delay, for which he is required by law to produce such a person.
- Right not to remain in custody for more than 24 hours without any judicial inquiry: – Whether the arrest is without a warrant or with a warrant, the arrested person must be brought before a magistrate or court within 24 hours. According to Section 57, a person arrested shall not be held in custody for more than twenty-four hours. No police officer can detain any person who is arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed more than 24 hours, in the absence of a special order of a Magistrate under section 167, exclusive of the time necessary for the journey to the magistrate’s court from the place of arrest.
2. Rights at the time of Trial
- Right to a Fair Trial: – The right to equality is provided under Article 14 of the Constitution. It has been provided under the Code of Criminal Procedure that the trial should be fair and it must be in an open court. This provision has been designed to prevent secret designing and acquiring the culprits. The trial can be conducted in-camera as well as in some exceptional situations.
- Right to a speedy trial: – Despite this right not being mentioned in the constitution, in the Hussainara Khatoon case, the SC has mandated that the investigation in the trial be conducted as fast as possible. In such cases, where the maximum sentence is for 2 years, once the accused is arrested, it is important that the trial of the case be completed within a period of six months or stopped after the order of the magistrate.
- Right to consult a Legal Practitioner: – It is the right of every arrested person to consult a legal practitioner of their choice. It is also enshrined in Article 22 (1) of the Constitution of India as a fundamental right, which is undisputed in all respects. Section 50 (3) of the Code also states that the person against whom proceedings are initiated has the right to defend by a lawyer of his choice. This right starts as soon as the person is arrested.
- Rights of free legal aid: – In the case of Khatri (II) vs. State of Bihar, the Supreme Court held that the state is under a constitutional obligation as enshrined in Article 21 of the Constitution as well as to provide free legal aid to an indigent accused.
- Right to Be Examined By A Medical Practitioner: – Section 54 of CrPC enumerates this right and states that the examination of the arrested person by the medical practitioner at the request of the arrested person. In Sheela Barse vs. State of Maharashtra, the Supreme Court has held that an arrested accused person should be informed by a magistrate of his right to medical examination under Section 54 of the Code of Criminal Procedure, if he has a complaint of physical torture or torture in police custody. The Supreme Court has cautioned lower courts not to take a casual approach to custodian torture.
Case laws of rights of an arrested person
The apex court defined the arrest as an act of formally detaining a person. The court observed that in a constitutional sense, it means the confiscation of a person (a person’s body).
In this case, the court observed that arrest is the physical restraint of a person put upon an abducted person in the process of recovering and taking a person into legal custody with or without any allegation or accusation of any actual or suspected commission of the offence.
In this case, the court held that no one can forcibly extract any statement from the accused and, no matter, the accused has the sole right to remain silent during investigation and inquiry.