RIGHTS OF ARRESTED PERSON

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arrest

INTRODUCTION:

“Arrest” means:

“a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” [Legal Dictionary by Farlex]

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the law. An arrest serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not looked upon with favor by the courts. The federal Constitution imposes limits on both civil and criminal arrests.

ARREST HOW MADE:

Section 46 of Criminal Procedure Code (hereinafter Cr.P.C) –

(1)   In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2)   If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3)   Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

 [(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] {Ins. by Act 25 of 2005, S. 6 (w.e.f 23-6-2006)}

RIGHTS OF ARRESTED PERSON:

There are two types of rights of arrested person: –

(i)                 At the time of arrest

(ii)               At the time of trial

In India accused have more rights as compared to victim: –

(a)    Right to be informed of ground of arrest.

Section 50 (1) of Cr. P.C.: Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

Object: – It is one of the principles of natural justice.

(b)   Obligation of person making arrest to inform about the arrest etc. to a nominated person.

Section 50 A of Cr. P.C.: [(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where as may be disclosed or nominated by the arrested person for the purpose of  giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such form as may be prescribed in this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.]

(c)    Right to be informed of right to bail.

Section 50 (2) of Cr. P.C.: Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

(d)   Right to be produced before the Magistrate without delay.

Section 56 of Cr. P.C.: Person arrested to be taken before Magistrate or officer in charge of police station. –A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

(e)    Right of not being detained for more than twenty-four hours.

Section 76 of Cr. P.C.: Person arrested to be brought before Court without delay. –The police officer or other person executing a warrant of arrest shall (subject to the provisions of Section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person:

Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

(f)    Right of not being detained for more than twenty-four hours without judicial scrutiny.

Section 57 of Cr. P.C.: No police officer shall detain in custody a person arrested without warrant for a longer period than under all circumstances of the case is reasonable, and such period shall not, in the absence of special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

RIGHT OF DEFAULT BAIL:

The proviso to Section 167(2) of Cr.P.C. clearly lays down that the total period of detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. [CBI v. Anupam J. Kulkarni, 1992]

Proviso to sub-section (2) of Section 167 of the Code leaves no manner of doubt that during the investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to the amendments of Section 167 in 1978). [State of Haryana v. Mehal Singh, 1978 Cri LJ 1810]

The language of the proviso (a) to Section 167(2) of Cr.P.C. clearly states that after an accused is kept in custody for the total period of sixty days, the Magistrate has no jurisdiction to pass orders for his detention in custody provided the accused person is prepared to and does furnish bail. Of course if a person is released on bail under this section he shall be deemed to be so released under the provisions of Chapter XXXIII of Cr.P.C. for the purposes of that Chapter. [Ved Kumar Seth v. State of Assam, 1975]

Proviso to sub-section (2) of Section 167 of the Cr.P.C. leaves no manner of doubt that during the investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to amendment of Section 167 of Cr.P.C.). If during this period the investigation is not completed, the Magistrate has no jurisdiction to remand the accused for further detention unless he had taken cognizance of the offence in which case he cod order remand of the accused for the purpose of enquiry or the trial, as the case may be. [State of Haryana v. Mehal Singh]

Where an application for bail under proviso to Section 167(2) Cr.P.C. is presented by police, the accused is entitled to be released on bail under the proviso to Section 167(2) (if stipulated period under that section was over at the time of making of such application for bail). [Gurmit Kaur v. State of Punjab, 1989 Cri LJ 1609]

In Prem Raj v. State of Rajasthan, the accused were arrested on charges inter alia under Section 302, 307 of Indian Penal Code. They had filed an application for bail to the Sessions Judge but it was rejected. When the accused applied again to bail to the High Court under Section 439, it was held that Proviso (a) to Section 167 (2) of Cr.P.C. being mandatory in character, the remand and detention of the accused beyond the period of sixty days (prior to the amendment of Section 167 in 1978) was illegal and that the accused were accordingly entitled to be enlarged on bail.

The release on bail on the default of the prosecution in filing charge-sheet within the prescribed period is absolute in its terms. It is a release by virtue of the legislative command incorporated in the proviso to Section 167(2) Cr.P.C. and not as a result of the exercise of the discretionary power by the Court. If there is failure on the part of the investigating agency to file charge-sheet before the expiry of ninety or sixty days, as the case may be, the accused in custody gets a right to be released on bail. After the expiry of ninety or sixty days the Magistrate loses his power to remand a person. He has to pass an order of bail and communicate the same to the accused intimating him to furnish the requisite bail bonds. But there is no gainsaying of the fact that it is an order on default and it does not vest the person released on bail to remain on bail till the conclusion of the trial. [M.P. Ramesh v. State of Karnataka, 1991 Cri LJ 1298]

CONCLUSION

Arrest has far reaching consequences; the social status and dignity of an individual suspect becomes at stake, even his discharge cannot blot out the stigma consequent upon arrest. There are financial implications for the arrested person and his family. The public suffers its repercussion as we. Naturally, it needs to be ensured that arrests are not effected in a frivolous manner and that the rights of arrested persons are fully guaranteed. Towards this effect, The Cr.P.C. lays down safeguards such that the rights of persons enshrined in Art. 21 and 22(1) are not violated. However, it has been some time before the statutory provisions have been understood in all its implication and they have been given effect to. Mostly the criminal administration system ignores such safeguards and the judiciary for quite some time has been lax about ensuring the proper observance of prisoner’s rights. So there have been many later declarations and statutory enactments which reaffirm the faith in the rights of arrested persons. The endeavour is to look into various rights of arrested persons, enshrined in statutes, conventions and judicial pronouncements. [Padmaja Chakravarty, “Critical View of the Rights of Arrested Persons in India: Conformity to Comparable International Standards”, indiankanoon.org]

Beside this, I feel an urge to point out the other side, i.e., victims, they have either less rights or they do not have one. Our socialist, Court and even Cr.P.C. talks about the rights of arrested person, but there are no such provisions to safeguard the interest of the victim. They are ignored fully or partially, later they become the news of the media channels nowadays. Earlier or today itself, remedies are available to the accused and not to who against the crime is committed. I admit the fact that there are some people who suffer because they are falsely implicated into a case, but there are also those people who are benefitted with these provisions.

Hence, I would like to conclude with that, our law system and police while investigating the case should be so particular about the case that the victim should not suffer. It is duty upon the Court of Law that it should not violates the right of liberty of any innocent person and at the same time also not infringes the rights of victims.

AUTHOR:
Smarika Azad
B. A., L.L.B (HONS.)
4th Year,
Faculty of Law,
Jamia Millia Islamia