Date: 5 October, 2020
by Nishtha Girdhar, UILS, Panjab University
In the case law of Joginder Kumar v State of U.P. 1994 SCC (4) 260, it was noted that “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.”
Vast discretionary powers of arrest coupled with the preventive detention measures often encourage arbitrary and unlawful arrests.
The misuse of power is often attributed to the vagueness of the language used in the Code of Criminal Procedure (hereinafter referred to as “Code”) among other lacunae. This has been reiterated by the Law Commission of India “The generality of language and the consequent wide discretion vesting in police officers is indeed enormous – and that has been the very source of abuse and misuse.”
Thus, the power of police to arrest without a warrant under Section 41 of the CrPC among other sections makes it imperative to regulate this power as well as delineate the rights of those arrested.
RIGHTS OF ARRESTED PERSON
Right to Be Informed of The Grounds of Arrest
Section 50 of the CrPC confers upon the arrestee the right to know the grounds of arrest upon his arrest.
Under Section 55 of the Code, the arrested person has the right to view the written order containing the particulars of the offence or other cause for which he is being arrested.
Article 22(1) of the Constitution states that no person can be detained in custody without being informed of the grounds of arrest.
The arrestee must be communicated the grounds of arrest in a language understood by him (Harikisan v. State of Maharashtra AIR 1962 SC 911)
Right of Bail
Section 50(2) states that persons being arrested without warrant must be informed of their right to bail, except in cases where a person is accused of non-bailable offence.
Section 436 provides for the release on bail of a person accused of a bailable offence. It was held by the hon’ble Supreme Court in Rasiklal v. Kishore Khanchand Wadhwani (2009) “The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative”
Right to Be Taken Before a Magistrate Without Delay
Sections 56 and 76 entitle the arrestee to be produced before a Magistrate without unnecessary delay.
Article 22 states that an arrested person must be produced before a Magistrate within 24 hours of arrest.
Right to Consult Legal Practitioner
Section 303 grants the accused the right to be defended by a legal practitioner of his choice.
Article 22(1) states that no person can be denied of their right to consult a legal practitioner.
Right to Free Legal Aid
Section 304 provides legal aid to accused at state expense in certain cases.
Article 39A provides for free legal aid to poor and weaker sections.
Suk Das v UT of Arunachal Pradesh, (1986) 2 SCC 401 reiterates the importance of free legal aid to indigent persons.
Right to be Examined by a Medical Practitioner
Section 53 of the Code details this right.
Right of Protection Against Self Incrimination
Article20(3) protects a person from forced self-incrimination. No person can be compelled to be a witness against himself.
Right of Protection Against Double Jeopardy
Article 20(2) of the Constitution incorporates the principles of autrefois convict and states that no person can be prosecuted and punished for the same crime more than once.
Section 49 prohibits the use of more restraint than is necessary to prevent escape of the arrestee.
Under Section 57, no person can be detained for more than 24 hours without being produced before a Magistrate.
Section 358 provides for compensation to persons groundlessly arrested.
Special Protections to Females
As per general practice, females cannot be arrested in the absence of a lady constable or after sun-set. There are certain exceptions to this norm.
Section 53(2) states that arrested females should be medically examined by or under supervision of female medical practitioners only.