Every right is a moral as well as legal entitlement to have or do something”
One of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence. In a democratic society even the rights of the accused are sacrosanct, though accused of an offence, he does not become a non-person. Rights of the accused include the rights of the accused at the time of arrest, at the time of search and seizure, during the process of trial.
DEFINITION
AS per the Merriam Webster (Dictionary) a right is qualities (such as adherence to duty or obedience to lawful authority) that together constitute the ideal of moral propriety or merit moral approval.
Whereas Collins (Dictionary) defines ‘Right’ as correct, appropriate, or acceptable.
THE SUPREME COURT OF INDIA in ‘R.R. Chari v. State of Uttar Pradesh’, defined arrest as the act of being 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).
In State of Punjab v. Ajaib Singh, the court observed that arrest is the physical restraint put upon an abducted person in the process of recovering and taking that person into legal custody with or without any allegation or accusation of any actual or suspected commission of the offence.
INTRODUCTION
The accused in India are afforded certain rights, the most basic of which are found in the Indian Constitution. An accused has certain rights during the course of any investigation; enquiry or trial of an offence with which he is charged and he should be protected against arbitrary or illegal arrest. Police have a wide powers conferred on them to arrest any person under Cognizable offence without going to magistrate, so Court should be vigilant to see that theses powers are not abused for lightly used for personal benefits and hence the rights of a person during arrest.
The primary purposes of criminal law are Deterrence, Retribution and Protection. Reformation & Rehabilitation are the silent purposes to improve the hues of society. “Once Criminal, Always a Criminal” can’t sustain the test of reasonableness, wisdom and conscience. All crimes are not same and so aren’t criminals. Gravity, nature and involvement define which yardstick of jurisprudential law is to be applied. However, application of yardstick is based on discretion to be exercised within the limit of law.
Though the police have been given various powers for facilitating the making of arrests, the powers are subject to certain restraints. These restraints are primarily provided for the protection of the interests of the person to be arrested, and also of the society at large. The imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested person. There are, however, some other provisions which have rather more expressly and directly created important rights in favour of the arrested person.
Why is arrest of a person necessary?
Trial of an accused is necessary as it will aid in determining conviction or acquittal of the accused. Hence, the attendance of the accused at the time of trial is a mandatory requirement. In order to secure the attendance of the accused the law provides for arrest of the accused. If relevant authorities apprehend that there is imminent danger of commission of crime by a person, then it becomes necessary as a preventive measure to arrest such person.
When a person on being interrogated by a Police Officer refuses to provide his name and address then under certain circumstances as specified under Section 42 of The Code of Criminal Procedure, 1973. This provision provides for arrest if in the presence of a police officer, a person has committed or has been accused of committing a non-cognizable offence and on being demanded refuses to give his name or address. Similarly a person might be arrested how causes obstruction to police in execution of his duty is liable to be arrested by the Police Officer immediately. This is essential for effective discharge of duties of a police officer.
Under Section 41(1) (e) of The Code of Criminal Procedure ,1973 any Police officer may without an order from a Magistrate and without a warrant, arrest any person has escaped, or attempts to escape, from lawful custody.
Rights Of An Arrested Person
Everyone is equal in the eye of the constitution while serving justice. Even the arrested person has his/her own rights to demand if not given. Logically, these privileges are as imperative as the protection of any of the human right against the violation. Similarly, an accused should be protected against any of the illegal practices and anti-democratic acts during the beginning of time when he got arrested. There are various rights of the arrested person in India guaranteed by the Constitution and the Code of Criminal Procedure, 1973.
The rights of a person during arrest emanates broadly from two laws:
- THE Constitution of India.
- THE Code of Criminal Procedure, 1973.
Amalgamation of these two laws gives various rights which are available to a person during arrest; few of such vital rights along with the relevant law are:
Right to know the grounds of arrest
Article- 22(1) of the Indian Constitution stipulates that no police official can arrest any individual without informing the accused the reason/ ground of his detainment/ arrest. Section- 50 of the Code of Criminal Procedure says that every police official with authority to arrest someone without a warrant must inform the person getting arrested about the crime for which he is arrested and other relevant grounds for the arrest. This is the duty of the police official which he cannot refuse. Section- 50A of Code of criminal Procedure makes it compulsory for the person/ police official arresting a person to inform of the arrest to any of his relatives or even friends who may have interest in the same.
Right to be produced before the Magistrate without unnecessary delay
Article- 22(2) of the Indian Constitution stipulates that the police official making an arrest must produce the arrested person before the Magistrate within 24 hours of the arrest failing to do so would make him liable for wrongful detention. Section 55 of Code of criminal Procedure states that in case a police official is making an arrest without a warrant, then he must produce the person arrested without any unnecessary delay before the Magistrate with jurisdiction or before a police officer in charge of the police station, depending upon the conditions of the arrest.
Right to be released on bail
Section- 50 (2) of Code of criminal Procedure provides that the arrested person has the right to get released on bail by making arrangement for the sureties or just inform him of his right when arrested without a warrant for an offence other than a non-cognizable offence.
Right to a fair and just trial
Article- 14 of the Indian Constitution states that”every individual is equal before the law” which means that all the sides in a legal dispute must be treated equally.
Right to consult a Lawyer
Article- 22 (1) of the Indian Constitution provides that every arrested person has the right to choose and elect his own lawyer to defend him in the court of law for whatever crime he may/ may not have committed. Section- 41D of Code of criminal Procedure allows prisoners to be able to consult with their lawyers even during their interrogation. Section- 303 of Code of criminal Procedure allows every alleged convict/ criminal the right to be defended by a lawyer of his choice even if the criminal proceedings against him have already begun.
Right to free legal aid
Article- 39A The government in an effort towards securing justice instituted Article- 39A to provide free legal aid to people in need.The same right to free legal aid is provided at the first instance of production of the accused before the Magistrate in the court.
Section- 304 of Code of criminal Procedure provides a very significant right to every accused who is set to appear before a Sessions Court to appoint him a lawyer (totally free of cost) at the expense of the State. The court may appoint him a representing lawyer if the accused has no sufficient means to appoint himself a lawyer for his case then.
Right to remain silent
The right to keep quiet does not have any mention in any Indian law; however, its authority can be derived from Code of criminal Procedure as well as the Indian Evidence Act.
The right to stay silent is principally related to the statement and confession made by the accused person in the court. In addition to this, it is the responsibility of the magistrate to perceive if any statement or confession made by the accused person was voluntarily or was after the use of force and manipulation. Therefore, police or any other authority for that matter is not allowed to compel an accused person to speak anything in the court.
Right to be examined by a Doctor
Section- 54 of Code of criminal Procedure asserts that if an arrested person claims that medical examination of his body would lead to a detail which would dismiss the fact of commission of the crime by him, or some detail that might lead to evidence towards commission of the crime by some other person against his body.
CONCLUSION
India faces a huge problem of illegal arrests as well as custodial deaths which are majorly caused due to illegal arrests. These problems undermine the essence of Article- 21 of the Indian Constitution as well as the fundamental human rights that are available to everyone under the Universal Declaration of Human Rights. The stipulations issued in D.K. Basu v/s West Bengal by the Supreme Court of India are not being properly executed and therefore, it is the need of the hour to try and execute the issued provisions and guidelines properly which can definitely bear better results which would ultimately help decrease the number of an illegal arrests and resulting custodial deaths.
The rights of the arrested person under Code of Criminal Procedure, 1973 and Constitution of India are to grant the accused person some basic rights for safety and living. All these rights ensure the protections of accused or arrested ones as well who may have or have not done an evil deed is the later matter of concern but their safety is the initial one.
There is imminent need to bring in changes in Criminal Justice Administration so that state should recognize that its primary duty is not to punish, but to socialize and reform the wrongdoer and above all it should be clearly understood that socialization is not identical with punishment, for its comprises prevention, education, care and rehabilitation within the framework of social defense.
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