CrPc Assignment

Topic-: Rights of Arrested Person

Submitted By

MOHAMMAD ZIYA ANSARI

BALLB (HONS)
SEMESTER-VIII
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB-072
MID SEM PROJECT

Submitted To

Zakiuddin Khairoowala Sir

Guest Faculty, Faculty of Law

Aligarh Muslim University

ALIGARH-202002 (INDIA)

2020-21

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 SYNOPSIS

1- INTRODUCTION.

2- WHY RIGHTS OF ARRESTED PERSON IS CRUCIAL?

3- RIGHTS AN ARRESTED PERSON POSSESS.

4- OTHER RIGHTS.

5- CONCLUSION.

6- BIBLIOGRAPHY.

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 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE ZAKIUDDIN

KHAIROOWALA SIR FOR GUIDING ME IMMENSELY

THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION &

SUPPORT. I MUST THANKS TO MY CLASSMATES FOR THEIR
TIMELY HELP & SUPPORT FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL

THOSE WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS
THE COMPLETION OF THIS PROJECT.

THANKING YOU

MOHAMMAD ZIYA ANSARI

BALLB-4th Year GI-6492

17BALLB-72

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1-INTRODUCTION: -

All human beings are born with the Right to Life, Right to Personal Liberty, etc. Human rights
are enshrined under the Constitution of India and the Universal Declaration of Human Rights. A
person cannot be denied of his rights on the grounds that he/she has been detained. The various
rights of an arrested person can be inferred from the Code of Criminal Procedure, the
Constitution of India and various landmark judgements. The Indian legal system is based on the
concept of, “innocent till proven guilty”. The arrest of a person can be a violation of Article 21
of the Constitution that states, “no person shall be deprived of his right to life and personal
liberty except a procedure established by law”. It means that the procedure must be fair, clear
and not arbitrarily or oppressive.

One of the basic tenets of our legal system is the benefit of the presumption of innocence of the
accused till he is found guilty at the end of a trial on legal evidence. In a democratic society even
the rights of the accused are sacrosanct, though accused of an offence, he does not become a
non-person. Rights of the accused include the rights of the accused at the time of arrest, at the
time of search and seizure, during the process of trial and the like.

2- WHY RIGHTS OF ACCUSED ARE CRUCIAL?

The benefit of the presumption of innocence of the accused till the time he is actually found guilty
at the ending of a trial substantiated with evidence, is one of the basic tenets of our legal system.
It is a characteristic of our democratic society that even the rights of the accused are deemed to be
sacrosanct, and even though he is charged with an offence however that does not render him as a
non-person. Our statute is quite careful towards anyone’s “personal liberty” and hence doesn’t
permit the detention of any person without proper legal sanction.

It is provided by the article 21 of our constitution that there will be no person who shall be deprived
of his life or personal liberty except according to procedure established by law. The procedure laid
down by this article must be followed in a ‘right, just and fair’ and not in any arbitrary, fanciful or

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oppressive manner. It is expected that the arrest should not only be legal but justified also. Even
the Constitution of India, recognizes the rights of arrested person under the Fundamental Rights.

Hence, the accused has been provided with certain rights under the law and the general rationale
behind these rights is that the government has conferred enormous resources for the prosecution
of individuals’, and therefore accused are entitled to some protection from misuse of those powers
by the government.

In the leading case of Kishore Singh Ravinder Dev vs. State of Rajasthan, it was said that in India
the constitutional, evidentiary and procedural laws have made elaborate provisions in regard to
protecting the rights of accused and with a view to protect his dignity as a human being and
providing him benefits of a just, fair and impartial trail.

However, in yet another case of Maneka Gandhi vs Union of India, it was held by the court that
no matter what the procedure the state takes into action, the basic rule of it being carried out in a
just, fair and reasonable way should be adhered to.

3- RIGHTS AN ARRESTED PERSON POSSESSES: -

There are different sets of laws which provide different sets of rights to a person accused of an
offence. The need for these rights comes along with the progress of the stages of a criminal
matter, being the pre-trial stage rights, trial stage and post-trial stage rights. In general, the rights
of an accused person whether at pre- trial, trial or post- trial stage are as follows.

a-Right to remain silence

The ‘right to silence’ has its origin from common law principles. So, in general sense the courts or
tribunals should not conclude that the person is guilty of any conduct merely because he was not
responding to questions which were raised by the police or by the court. Even the Justice Mallimath
Committee in its report opinioned that right to silence is a much-needed concept in societies where
anyone can arbitrarily be held guilty of any charge. Right to silence revolves around confession

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basically. Also, since according to law of evidence, any statement or confession made to a police
officer is not admissible in a court of law, it needs to be observed that in case the accused confesses
Infront of the magistrate then such confession should be voluntary.

Article 20(3) of Constitution of India guarantees every person the right against self-incrimination,
and it has been stated under this article that no person, who has been accused of an offence, shall
be compelled to act as a witness against himself. This same rule has been reiterated by a decision
of Supreme Court in the case of Nandini Sathpathy v. P.L. Dani and it was held by the court in this
case that no one can forcibly extract any statement from the accused and no matter what, the
accused has the sole right of being silent during the course of investigation and interrogation.

It was held by the Supreme Court again in the year 2010 that narco-analysis, brain mapping and
lie detector test are in violation of Article 20(3) of the Constitution of India and that by
administration of these tests, forcible intrusion into a person’s mind is being conducted which
further nullifies the validity and legitimacy of this right.

b-Right to Know the Grounds of Arrest

1. According to Section 50(1) of CrPc., an accused who is being arrested by any police officer,
without any warrant, has the right to know the full particulars of offence for which he is being
arrested, and so it’s the undeniable duty of the police officer to inform the accused of the
particulars.

2. Under section 55 of CrPc., it is the right of the accused to know in case of being arrested, the
written order against him, specifying the offence or other cause for which the arrest is being made.
The arrest will be illegal in case of non-compliance of this provision.

3. In case when the person is being arrested under a warrant, then according to Section 75 of CrPc,
any person who is executing such warrant must notify the person who is being arrested, the content
of such warrant, or show the warrant if required. If under any circumstance the substance of the
warrant is not notified, the arrest would be unlawful.

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4. The constitution of India recognises this as fundamental right also. Under Article 22(2) of the
constitution, it has been said that person who is arrested shall not be detained in custody without
being informed as soon as possible of the grounds for which such arrest nor shall he be denied the
right to consult, and to be defended by a legal practitioner of his choice.

The rules regarding this were upheld in the cases of Joginder Singh vs. State of U.P. and D.K.
Basu vs. State of West Bengal, that it is mandatory under Section 50-A on the part of the police
officer to not only inform the friend or relative of the arrested person about his arrest etc. but also
to make an entry about the same in the register maintained by the police. It is the duty of the
magistrate to satisfy himself about the compliance of the police in this regard.

c. Information Regarding the Right To Be Released On Bail: -

Section 50(2) CrPc. provides that “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 in bail that he may arrange for sureties on his.” This will certainly be of
help to persons who may not know about their rights to be released on bail in case of bailable
offences. As a consequence, this provision may in some small measures, improve the relations of
the people with the police and reduce discontent against them.

d- Right to Be Taken Before A Magistrate Without Delay

Whether the arrest is made without warrant by a police officer, or whether the arrest is made
under a warrant by any person, the person making the arrest must bring the arrested person
before a judicial officer without unnecessary delay. It is also provided that the arrested person
should not be confined in any place other than a police station before he is taken to the
magistrate. These matters have been provided in CrPc. under section 56 and 76 which are
as given below:

56. 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.

76. 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 24 hours exclusive of the time necessary

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for the journey from the place of arrest to the Magistrate’s Cou

d- Right of Not Being Detained for More Than 24 Hours Without Judicial Scrutiny
Whether the arrest is without warrant or under a warrant, the arrested person must be
brought before the magistrate or court within 24 hours. Section 57 provides as follows:

57. Person arrested not to be detained more than twenty-four hours- 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 167, exceed twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate’s Court.

This right has been further strengthened by its incorporation in the Constitution as a fundamental
right. Article 22(2) of the Constitution proves 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.” In case of arrest under a warrant the proviso to Section 76
provides a similar rule in substance.

The right to be brought before a magistrate within a period of not more than 24 hours of
arrest has been created with a view-
i. To prevent arrest and detention for the purpose of extracting confessions, or as a means of
compelling people to give information;

ii. To prevent police stations being used as though they were prisons- a purpose for which they
are unsuitable;

iii. To afford to an early recourse to a judicial officer independent of the police on all questions
of bail or discharge.

In a case of Khatri (II) v. State of Bihar, the Supreme Court has strongly urged upon the state
and its police authorities to ensure that this constitutional and legal requirement to produce an
arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously
observed. This healthy provision enables the magistrate to keep check over the police
investigation and it is necessary that the magistrates should try to enforce this requirement and
where it is found disobeyed, come heavily upon the police.

If police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention.

In a case of Poovan v. Sub- Inspector of Police, it was said that whenever a complaint is
received by a magistrate that a person is arrested within his jurisdiction but has not been
produced before him within 24 hours or a complaint has made to him that a person is being
detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon the
police officer concerned; to state whether the allegations are true and if so; on what and under

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whose custody; he is being so helped. If officer denies the arrest, the magistrate can make an
inquiry into the issue and pass appropriate orders.

f- Rights at Trial

1. Right to A Fair Trial-

The Constitution under Article 14 guarantees the right to equality before the law. The Code of
Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This
provision is designed to ensure that convictions are not obtained in secret. In some exceptional
cases the trial may be held in camera. Every accused is entitled to be informed by the court
before taking the evidence that he is entitled to have his case tried by another court and if the
accused subsequently moves such application for transfer of his case to another court the same
must be transferred. However, the accused has no right to select or determine by which other
court the case is to be tried.

2. Right to A Speedy Trial-

The Constitution provides an accused the right to a speedy trial. Although this right is not
explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of
India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation in
trial should be held “as expeditiously as possible”. In all summons trials (cases where the
maximum punishment is two years imprisonment) once the accused has been arrested, the
investigation for the trial must be completed within six months or stopped on an order of the
Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is
cause to extend the investigation

g. Right to Consult A Legal Practitioner

Article 22(1) of the Constitution provides that no person who is arrested shall be denied the right
to consult a legal practitioner of his choice. Further, as has been held by the Supreme Court that
state is under a constitutional mandate (implicit in article 21) to provide free legal aid to an

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indigent accused person, and the constitutional obligation to provide free legal aid does not arise
only when the trial commences but also attaches when the accused is for the first time produced
before the magistrate, as also when remanded from time to time. It has been held by the Supreme
Court that non- compliance with this requirement and failure to inform the accused of this right
would vitiate the trial. Section 50(3) also provides that any person against whom proceedings are
instituted under the code may of right be defended by a pleader of his choice. The right of an
arrested person to consult his lawyer begins from the moment of his arrest. The consultation with
the lawyer may be in the presence of police officer but not within his hearing.

h. Rights of Free Legal Aid

In Khatri (II) v. State of Bihar, the Supreme Court has held that the state is under a constitutional
mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and
the constitutional obligation to provide free legal aid does not arise only when the trial
commences but also attaches when the accused is for the first time produced before the
magistrate, as also when remanded from time to time. However, this constitutional right of an
indigent accused to get free legal aid may prove to be illusory unless he is promptly and duly
informed about it by the court when he is produced before it. The Supreme Court has therefore
cast a duty on all magistrates and courts to inform the indigent accused about his right to get free
legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal
Pradesh, wherein it has been categorically laid down that this constitutional right cannot be
denied if the accused failed to apply for it. It’s clear that unless refused, failure to provide free
legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction
and sentence.

i. Right to Be Examined by A Medical Practitioner

Section 54 now renumbered as Section 54(1) provides: 54. Examination of arrested person
by medical practitioner at the request of the arrested person
When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is

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produced before a Magistrate or at any time during the period of his detention in custody that the
examination of his body will afford evidence which will disprove the commission by him of any
offence or which will establish the commission by any other person of any offence against his
body, the Magistrate shall, if requested by the arrested person so to do direct the examination of
the body of such person by a registered medical practitioner unless the Magistrate considers that
the request is made for the purpose of vexation or delay or for defeating the ends of justice.

j- Right of The Accused To Produce An Evidence

The accused even has right to produce witness in his defense in case of police report or private
defense. After the Examination and cross examination of all prosecution witness i.e., after the
completion of the prosecution case the accused shall be called upon to enter upon his defense and
any written statement put in shall be filled with the record. He may even call further for cross
examination. The judge shall go on recording the evidence of prosecution witness till the
prosecution closes its evidence.

The accused in order to test the veracity of the testimony of a prosecution witness has the right to
cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a right to
confront only witnesses. This right ensures that the accused has the opportunity for cross-
examination of the adverse witness. Section 33 of Indian Evidence Act tells when witness is
unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing
commission. The testimony at a formal trial is one example of prior testimonial statements which
can be used as documentary evidence in a subsequent trial.

When in the course of investigation an accused or any other person desiring to make any
statement is brought to a magistrate so that any confession or statement that he may be deposed
to make of his free will is record. Confession statements by accused to the police are absolutely
excluded under Section 25, Evidence Act.

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4- OTHER RIGHTS: -

• Section 55A of CrPc states that it shall be the duty of the person, under whose custody
the arrested person is to take reasonable care of the health and safety of the accused.
• The arrested person is to be protected from cruel and inhuman treatment.
• Section 358 of CrPc gives rights to the compensation to the arrested person who was
groundlessly arrested.
• Section 41A of CrPc states that the police officer may give the notice to a person
suspected of committing a cognizable offence to appear before him at such date and
place.
• Section 46 of CrPc prescribes the mode of the arrest. i.e., submission to custody,
touching the body physically, or to a body. The police officer should not cause death to
the person while making an arrest unless the arrestee is charged with an offence
punishable with death or life imprisonment.
• Section 49 of CrPc states that the police officer should not make more restrained than
in necessary for the escape. Restrain or detention without an arrest is illegal.

In D.K Basu vs State of West Bengal and others, this case is a landmark judgement because it
focuses “on the rights of the arrested person and it also obligates the police officer to do certain
activities”. The court also states that if the police officer fails to perform his duty, then he will be
liable for contempt of court as well as for the departmental actions. Such matter can be instituted
in any High Court having the jurisdiction over the matter.

5- CONCLUSION: -
It is generally believed that in spite of the various safeguards in the CrPc. as well as the in the
Constitution, the power of arrest given to the police is being misused till this day. It is also
believed that the police often use their position of power to threaten the arrested persons and take
advantage of their office to extort money. There have also been innumerable reports on custodial
violence that lead many to believe that deprivation of basic rights of the arrested persons has
become commonplace nowadays.

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The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated
that the accused has the right to know the rights given to him under law and how to enforce such
rights. There have also been criticisms that the police fail to inform the persons arrested of the
charge against them and hence, let the arrested persons flounder in custody, in complete
ignorance of their alleged crimes. This has been attributed to the Colonial nature of our Criminal
Justice System where the duty of arrest was thrust upon the Indian officers while the Britishers
drew up the charge against the accused. Thus, it is entirely possible that the English origins of
the Indian Criminal Justice system may have resulted unwittingly in the rights of the arrested
persons falling through the cracks.

It is the duty of the police to protect the rights of society. It must be remembered that this society
includes all people, including the arrested. Thus, it is still the police’s duty to protect the rights of
the arrested person. Hence, in light of the discussed provisions, a police officer must make sure
that handcuffs are not used unnecessarily, that the accused is not harassed needlessly, that the
arrested person is made aware of the grounds of his arrest, informed whether he is entitled to bail
and of course, produced before a Magistrate within twenty-four hours of his arrest.

6- BIBLIOGRAPHY: -

a- Diva Rai, Rights of An Arrested Person, https://blog.ipleaders.in/rights-

of-an-arrested-person/
b- Mehak Gandhi, Arrested Person Rights Under CrPc,
https://lawtimesjournal.in/arrested-persons-rights-under-crpc/
c- Preeti Singh, Rights of Arrested Person,
http://www.legalservicesindia.com/article/1635/Rights-of-Arrested-
Person.html
d- https://blog.finology.in/criminal-law/rights-of-arrested-person

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