“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Article 1 of Universal Declaration of Human Rights (UDHR)
RIGHTS OF AN ARRESTED PERSON
1. Right to know the grounds of arrest.
2. Information regarding the right to be released on bail.
3. Right to be taken before a Magistrate without delay.
4. Right to consult a legal practitioner of his own choice.
5. Rights of free legal aid.
6. Right to be examined by a medical practitioner.
The Supreme Court, in the case of D.K. Basu v. State of W.B, issued some guidelines which were required to be mandatorily followed in all cases of arrest or detention. Following are some of the important ones:
|The person who is going to arrest any accused should bear accurate, visible, and clear identification along with their name tags with their designation.|
|The police officer who is arresting the arrestee must prepare a memo of arrest, and it should be attested by at least one person who may either be a family member of the arrestee or any other respectable person in the locality. The memo must contain the date and time of arrest and must also be countersigned by the arrestee.|
|If the person who has signed the memo of arrest is not a family member, relative or friend of the arrestee, then the arrestee is entitled to have one friend or relative being informed about his arrest as soon as possible.|
|The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.|
|Entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.|
|The police officer should, on the request of arrestee, record at the time of his arrest major and minor injuries, if any, present on arrestee’s body, after subjecting the arrestee to an examination. The “Inspection Memo” must be signed both by the arrestee and the police official making such arrest, and one copy of that memo must be provided to the arrestee.|
|Copies of all the documents including the memo of arrest, referred to above, should be sent to illaqa Magistrate for his record.|
|The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.|
|The court also ordered that in every district and state headquarters, a police control room should be established, wherein every arrest which is being made must be reported by the police officer making such arrest within 12 hours of such arrest, and it should be displayed on a conspicuous notice board.|
|The Court also emphasized failure to fulfill the given requirements would render the concerned officer liable for contempt of court along with departmental actions, and such proceedings can be initiated in any High Court having the territorial jurisdiction over the matter.|
CONSTITUTIONAL AND LEGAL RIGHTS
Article 20 of the Constitution of India prohibits:
|Conviction or greater sentence for an offence under ex post facto criminal laws|
|Prosecution and punishment for the same offence more than once|
|Compelling a person accused of any offence to be a witness against himself|
Article 21 protects against arbitrary:
|Deprivation of life and personal liberty|
Article 22 guarantees to a person arrested for any offence:
|Right to be informed as soon as may be of the grounds of arrest.|
|Right of freedom to consult and to be represented by a lawyer of his own choice.|
|Right to be produced before a Magistrate within 24 hours of arrest and detention. Beyond the said period, person can be detained or arrested only on the order of the Magistrate.|
|Free legal aid is provided to those who cannot afford the same.|
Section 50 CrPC provides for Communication of:
|Grounds of arrest to the accused person.|
|Right to be released on bail if a person is arrested not for a non-bailable offence and that he may arrange for sureties on his behalf.|
Sections 49, 54, 56 and 76 Cr PC put in effect Constitutional provisions to prevent arbitrary exercise of power to arrest:
|An arrested person cannot be subjected to more restraint than is necessary to prevent his escape. (Section 49 CrPC).|
|Use of handcuffs is permitted only in exceptionally rare cases to prevent escape or violence keeping in view the propensity of the arrested person.|
|Medical examination of an accused by a medical practitioner. (Section 54 CrPC)|
|Expeditious production of a person arrested without a warrant, subject to provisions regarding bail, before a Magistrate or the officer in charge of a police station. (Section 56 CrPC)|
|No detention of a person arrested without warrant beyond 24 hr in the absence of a special order of a Magistrate under section 167 CrPC (Sec. 57 CrPC)|
|Production before a Magistrate within 24 hours of person arrested in execution of warrant. (Sec. 76 CrPC)|
Section 47, 51, 100 and 165 Cr. PC while empowering search also lay down safeguards:
|Safe custody of articles seized from the person of an arrested person and giving of a receipt in this regard. (Sec. 51CrPC).|
|Association of witnesses, search in their presence and signing of the search list by them; occupant or his representative to be allowed to be present during the search and providing of a list of seized articles to the person searched. (Sec.100 and 165 CrPC).|
Section 436, 437, 438 along with Sections 50(2) and 167 Cr PC provide for the procedure for release on bail:
|Bail, on production of proper surety/bond, is a matter of right in case of bailable offences. (Sec. 436 CrPC).|
|In non bailable cases, the arrested person or his counsel can move the appropriate Court for bail, which may be granted or denied keeping in view the legal provisions and the facts and circumstances of the case.|