RIGHTS OF AN ARRESTED PERSON
The arrested person has some rights mentioned under the Bhartiya Nagarik Suraksha Sanhita before the Code of Criminal Procedure, 1973, and under the Constitution of India. As it is said, “a person is innocent until proven guilty”, hence there are some essential rights mentioned below:
Article 22(1) states that no person who is arrested shall be detained in custody without being informed,
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”
Article 22(3) mentioned under clause (1) and (2) shall apply to the person who is an enemy alien and has been detained under any law providing for preventive detention.
Right to be informed of the Right to Bail-
The person arrested holds the right to be informed about the right to bail who is arrested without a warrant under a bailable offence, it is the police’s duty to inform the arrested person about his right to bail.
Right to Medical Examination-
When any person has been arrested, he shall be examined by the medical officer, mentioning any injuries or marks of violence; if the medical officer is not available, then it should be recorded by the medical practitioner as soon as the arrest is made.
Right to meet the advocate of his own choice during interrogation-
As per section 38 of Bharatiya Nagarik Suraksha Sanhita
“When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.”
Section 38 recognizes that any person who gets arrested holds the right to meet his lawyer, the lawyer he chooses; although it is not mandatory to have the presence of the advocate all the time during the interrogation.
Article 22(1) mentions that
No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Right to know Grounds of Arrest (Section 50(1) CrPC and Article 22(1), Constitution of India)
The arrestee has a right to get to know the grounds of the arrest. The police personnel need to show the written order by his senior where it is mentioned to arrest the person on what grounds they are arresting the individual and it is the right of the person who is being arrested. And if the police are arresting after issuing the warrant, then the police personnel are supposed to let the person know the grounds of arrest after the arrest.
Right to provide Warrant (Section 75 CrPC)
If the arrest made with the warrant, then the police have to show the warrant to the accused, and this right has been given under the Code of Criminal Procedure.
As per Section 77, BNSS
“The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.”
Right to Silence
After getting arrested, the police will interrogate the accused and it is not mandatory for the accused to answer, the accused has the right to stay silent and no one neither the police nor the prosecution can use it against the accused before the court. The accused cannot be forced to give testimony against himself. It is also called Right against Self-Incrimination which is mentioned in the Article 20(3). As per Article 20(3)
“As person accused of any offence shall be compelled to be a witness against himself”
Right to Bail (Section 50(2)
If the person arrested under the bailable offence, then the police need to tell the accused about his right to bail as it might be possible that the accused is not aware if he has been arrested under the bailable offence or not. If the offence is bailable, accused must be told that he/she can get release on bail by arranging sureties in case of bailable offense.
Right to be Presented without Delay (Section 57 & 76, CrPC and Article 22(2), Indian Constitution)
The police have to present the accused before the court of Magistrate within 24 hours of the arrest, and it excludes the time of traveling from the police station to the Magistrate. It is also called right to be taken before the Magistrate without any delay which is mentioned under section 57 and 76. The police cannot keep the accused in the lockup more than 24 hours without the judicial scrutiny whether he has been arrested with or without warrant. It is to prevent the unlawful arrest and in case the accused is innocent then he can apply for the bail.
Article 22(2) states that;
“Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate”
Right to Free Legal Aid
As per Article 39a
“The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
If the accused is not financially capable of getting the lawyer, then it is the duty of the State to provide the free legal aid to the accused
Section 341(1), BNSS
“Where, in a trial or appeal before a Court, the accused is not represented by an advocate, and where it appears to the Court that the accused has not sufficient means to engage an advocate, the Court shall assign an advocate for defense at the expense of the State”
The arrested person has the right to legal aid, which is a fundamental right in India. The state is required to provide free legal aid. If the arrested person is unable to afford legal aid, then the State must provide free legal aid.
Right to Fair and Speedy Trial
This provision has been rolled out so that the conviction order of any accused cannot be given secretly. There are many cases where the proceedings are in-camera so that no outside person can see the proceeding. With speedy trial we mean that if the accused is arrested for the crime for which the maximum punishment is 2 years, then the police have to complete the investigation within 6 months.
Right to Medical Examination
The arrested person has the right to ask for the medical examination then he has the right to be medically examined, and the accused has the right to produce any witness for his defense or after the cross examination by the prosecution.
The accused can ask for his medical examination, and it is the duty of the police to take care of the health and safety of the accused.
As per Section 56, BNSS;
“It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused”
As per Section 53, BNSS;
“When any person is arrested, he shall be examined by a medical officer in the service of the Central Government or State Government, and in case the medical officer ins not available, by a registered medical practitioner soon after the arrest is made:
Provided that if the medical officer or the registered medical practitioner is of the opinion that one more examination of such person is necessary, he may do so:
Provided further that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner”
Right against Unnecessary Detention (Section 57 &76, CrPC)
The police have to send the arrested person before the Magistrate without any delay and if they fail so then the detention becomes illegal.
As per Section 58, BNSS,
“No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court, whether having jurisdiction or not”
Right to Medical Examination
Section 53 &56 BNSS
Right of Inform a Relative of Friend (Section 48, BNSS)
Section 48, BNSS, says that
“Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends, or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information and also to the designated police officer in the district “
The accused has all the right to inform the relative or the friend about the detention and it is the duty of the police to inform the accused’s friends or family regarding his arrest.