Human being’ and the rights guaranteed to him are the most important thing in this world. The benefit of presumption of innocence of the accused person till the time he is actually found guilty at the ending of a trial, is one of the basic tenets of our legal system. The norms of criminal law is that “if a thousand people may get acquitted, one innocent person should not be punished”. An unlawful arrest of an individual can be a violation of Article 21 of Constitution of India.
Rights of an arrested person and relevant legal provisions:
Right to know the ground of arrest
Article 22(1) of Constitution of India stipulates that no police officer can arrest any individual without informing the accused the reason of his detention.
Section 50(1) of Code of Criminal Procedure (CrPc) says, every police or other individual capturing any individual without warrant might forthwith convey to him full particulars of offence for which he is captured or different reason of his arrest.
Section 50A of CrPc provides mandatory for the police official or other person making any arrest to give information about the arrest and place where the arrested person is being held to any of his relative or such other person nominated by arrested person.
Right to be produced before the Magistrate without unnecessary delay
Section 55 of CrPc 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 condition of arrest.
Section 76 of CrPc states that the person arrested must be produced in court within 24 hours of his arrest. The delay shall not in any case exceed 24 hours exclusive of time journey from the place of arrest to Magistrate’s court.
Right to be released on bail
Section 50(2) of CrPc provides that any person arrested without warrant shall be immediately informed the ground of his arrest, and if the arrest is made in bailable case, the person shall be informed of his rights to be released on bail.
Right to consult a lawyer
Article 22(1) of Constitution of India provides that no person who is arrested shall be denied the denied the right to consult and to be defended by a legal practitioner of his choice. The right of the accused to have a counsel of his choice is fundamental and essential to fair trial.
Section 41D of CrPc says prisoners have right to meet advocate of his choice during interrogation.
Right to free legal aid
Article 39A of Constitution of India provides free legal aid to people in need.
Section 304 of CrPc provides that if the accused is not represented by a pleader in a trial before the Court of Session, the Court may appoint him a lawyer if the accused has no sufficient means to appoint himself a lawyer for his case.
Protection to females
The general choose is that females are not to be arrested without the presence of a lady constable and no female to be arrested after sun-set but there are some exceptions in this. Separate lock ups to be provided for women prisoners.
Every year thousands of people are illegally arrested by police official. The Hon’ble Supreme Court of India in “D.K. Basu v. State of W.B” has laid down certain basic requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. There should be no violations of any human rights.
Ajit Kumar v. State of Assam, 1976 CriLJ 1303
Khatri v. State of Bihar II (1981) 1 SCC 635
Avinash Ankit is an advocate in the Supreme Court of India. He hails from Samastipur (Bihar).