Rights of an Arrested Person under the

Constitution & Cr. P. C.

SUBMITTED BYANNIE MAMPILLYBBA LL.B (HONS)

SEM VROLL NO. 07

SCHOOL OF LEGAL STUDIESCUSAT

Etymology French word – Arreter = to stop or stay

Arrest = restraint of a personParaphrased in the Indian precedent :

Directorate of Enforcement v. Deepak Mahajan(AIR 1994 SC 1775; (1994)3 SCC 440;

1994 CrLJ 2269)

What is an arrest?

The act of being taken into custody to be formally charged with a crime. In a Constitutional sense, an arrest is a seizure of a person.

R. R. Chari v. State of Uttar Pradesh

(AIR 1951 SC 207)

Arrest means the apprehension or restraint or the deprivation of one’s personnel liberty. The question whether a person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personnel liberty to go wherever he pleases.

Directorate of Enforcement v. Deepak

Mahajan(AIR 1994 SC 1775)

Definitions by the Apex Court of India

• Rights of an arrested person includes inter alia:

Rights at the time of arrestRights at the time of search and seizureRights during trial

Rights of an arrested person

WHY ?

Art.22(1) : Constitution of India Sec.50,Cr.P.C. : without warrant-particulars of the

offence/grounds for arrestSubordinate officer making arrest-u/Sec.55, Cr.P.C -

notify substance before arrestSec.75,Cr.P.C : with warrant-notify substance-show

warrantJoginder Kumar v. State of UPAli Mustafa Abdul Rahman Moosa v. State of

Kerala, (1994)6 SCC 569

1. Right to be informed of the ground of arrest

How can I GET OUT ?

Sec.50 : Criminal Procedure Code Arrest without warrant – non-bailable offence – released on

bail – sureties arranged Existence of prima facie case disentitles to bail :

Prakash Kadam & Ors. v. Ramprasad Viswanath Gupta (2011)6 SCC 189

2. Right to released on bail when arrested for bailable offence

Art. 22(2) : Constitution of India (Time for Journey is excluded) Sec. 56 & 57 : Criminal Procedure Code

(person arrested not to be detained for more than 24hrs)

Sec. 76 : Cr. P. C. (Person arrested to be brought before Court without delay)

Art22(5)-burden of proof on detaining authority-detained person-basis of detention-mandatorily given : Icchu Devi Choraria v. UOI, 1980 SCC 531

Preventive detention is an exception to this right : Rekha v. State of Tamil Nadu, (2011)5 SCC 244

3. Right to be produced before the nearest competent magistrate within 24 hrs from the time of arrest

4. Right to inform relative or friend about arrest and place of detention

Sec. 50A : Cr. P. C. (Obligation of person making arrest

to inform about the arrest, etc., to a nominated person)Supreme Court Judgment : D. K. Basu v. State

of West BengalA friend or relative shall be informed:• About the arrest - Sec.50A (1)• Place of arrest – Sec 50A (1)• Rights of arrested person – Sec 50A (2)

Art. 22(1) : Constitution of India Supreme Court Judgment : D. K. Basu v. State of West Bengal Lawyers in Criminal Courts are necessities and

not luxuries : Gideon v. Wainwright, 372 US 335 (1962) Every poor accused is entitled to be provided with free legal aid. This

right commences from the time of arrest : Khatri & Ors. v. State of Bihar & Ors

The nearest legal aid committee is to be informed about the arrest of an accused seeking legal aid : Sheela Barse v. State of Maharashtra

If the defending Counsel is absent another counsel practicing in the Criminal side should be appointed as amicus curiae : Mohd. Sukur Ali v. State of Assam, (2011)4 SCC 729

5.Right to legal aid

Art.21 : Constitution of India Not to be abused Custodial Torture is a naked violation of human dignity : D. K.

Basu v. State of West Bengal Dignity of the arrested person should be protected. Public

display or parading of the arrested person is not permitted : State of Maharashtra v. Ravikant S. Patil 1991 SCC 373

Not to be tortured during the interrogation : Haricharan & Ors. v. State of Madhya Pradesh & Ors., (2011)4 SCC 159

6. Right to uphold human dignity

Sec.49 : Code of Criminal Procedure Not to be handcuffed If handcuffs or fetters are used valid reason to be

substantiated If not substantiated the officer will be guilty of misconduct

and pay compensation Delhi Judicial Services Assn., Tiz Hazari Court v. State of Maharashtra Judicial Officers shall not be handcuffed

7. Right against unnecessary restraint

Sec. 54 : Criminal Procedure Code (Examination of an arrested person by

medical officer) SC Judgment : D.K. Basu v. State of West Bengal Arrested Person can demand An arrested person shall be subject to medical

examination every 48 hours The examination result shall be recorded by the

medical practitioner A facsimile of the report shall be given to the arrested or the

nominated person as the case may be If any injuries found the concerned officers will be punished

8. Right to medical examination

Sec. 51 : Criminal Procedure Code Sec. 437 : Criminal Procedure Code SC Judgment : Sheela Barse v. State of

Maharashtra Juvenile Justice Act

9. Special rights for women & juveniles

10. Right to Compensation

• Where a person is arrested arbitrarily or unreasonably h/she shall be adequately compensated : Bhim Singh v. State of Jammu & Kashmir, Rudul Shah v. State of Bihar

• Police atrocities/ Custodial death/ Custodial violence – compensation mandatory : Narmada Bai v. State of Gujarat & Ors., (2011)5 SCC 79

1. Right to be informed of the ground of arrest

2. Right to bail

3. Right to be produced before magistrate

4. Right to inform relative or friend

5.Right to legal aid

6. Right to uphold human dignity

7. Right against unnecessary restraint

8. Right to medical examination

9. Special rights for women & juveniles

10. Right to Compensation

Rights of an Arrested

person – A Nutshell

LANDMARK DECISIONS :SUPREME COURT OF

INDIA

JOGINDER KUMAR V STATE OF U.P AND OTHERS 1994 SCC 260

(Basis of Arrest)

• Joginder Kumar-called to SSP office-inquiries-illegally detained over a period of 5 days-undisclosed location-family filed habeas corpus

• SC Directives:1. Arrests not to be made in routine manner. The necessity

should be justifiable2. A friend/relative should be informed of arrest & place of

detention(obligation on part of arresting officer)3. Duty of Magistrate – Affirm the above requirements are

complied

NANDINI SATPATHY V P.L. DANI AIR 1978 SC 1025

1. An arrested person cannot be coerced or influenced into giving a statement pointing to her/his guilt : Art.20(3)

2. The arrested person must be informed of her/his right to remain silent and also of the right against self incrimination.

3. The person being interrogated has the right to have a lawyer by her/his side if s/he so wishes.

D.K BASU V STATE OFWEST BENGAL AIR 1997 SC 610(Encyclopaedia of the Law of Arrest)

• D. K. Basu,Evecutive Chairman, West Bengal Legal Aids Services-letter to Chief Justice of India-explicating & emphasising custodial deaths/violence-letter treated as Writ Petition by the Supreme Court

• SC Directives :1. Use of any form of torture to extract information is not permitted.2. Particulars of all personnel handling interrogation of an arrested person

must be recorded in a register.3. A memo of arrest stating the time and place of arrest must be prepared by

the police officer carrying out an arrest. Attested by-one witness-either a family member/respectable of locality-counter-signed by the arrested.

4. The arrested is entitled to inform a friend/relative/other person interested in her/his welfare

5. The arrested person may be allowed to meet her/his lawyer during interrogation but not throughout the interrogation.

6. Right to be medically examined7. The police officer making the arrest must inform the police control room

within 12 hours of the arrest.

SHEELA BARSE V STATE OF MAHARASHTRA 1983 SCC 96(Treatment of Women & Legal Aid)

• Sheela Barse-journalist & activist-prisoners’ rights-wrote to Supreme Court-Bombay Central Jail-women prisoners assaulted-inadequacy of legal aid-seriousness of matter-Writ Petition admitted

1. Interrogation of females must be in the presence of female policepersons.2. Females should be kept in separate lock-ups under the supervision of female

constables3. The police must inform the nearest Legal Aid Committee as soon as an arrest

is made and the person is taken to the lock-up.4. The Legal Aid Committee should take immediate steps to provide legal

assistance to the arrested person at State cost, provided such person is willing to accept legal assistance.

5. The magistrate before whom an arrested person is produced shall inquire from the arrested person whether s/he has any complaints against torture and maltreatment in police custody. The magistrate shall also inform such person of her/his right to be medically examined.

PREM SHANKAR SHUKLA V DELHI ADMINISTRATION 1980 SCC 526

1. Handcuffs are to be used only if a person is: a) involved in serious non-bailable offences, has been previously

convicted of a crime; and/or b) is of desperate character- violent, disorderly or obstructive; and/or c) is likely to commit suicide; and/or d) is likely to attempt escape.

2. The reasons for handcuffing should be apparent in the Daily Diary Report.3. Once an arrested person is produced before the court, the escorting officer

must take the court’s permission before handcuffing her/him to and fro from the court to the place of custody.

4. The magistrate before whom an arrested person is produced must inquire whether handcuffs or fetters have been used. If the answer is yes, the officer concerned must give an explanation.

Sunil Batra v Delhi Administration 1978 SCC 494

• fetters/handcuffs should only be used if a person “exhibits a credible tendency for violence or escape”

Delhi Judicial Services Association, Tiz Hazari Court v. State of Assam AIR 1991 SC 2176

• Unless there is a justifiable reason no Judicial Officer shall be handcuffed or fettered

CITIZENS FOR DEMOCRACY V STATE OF ASSAM 1995 SCC 743

1. It is necessary to take the magistrate’s permission before handcuffing a person who has been remanded to judicial or police custody.

2. A person arrested in the execution of an arrest warrant [issued by a magistrate] must not be handcuffed unless prior permission has been taken from the magistrate.

3. In an arrest without warrant, the police is only allowed to handcuff on the basis of concrete proof that the person is prone to violence; has a tendency to escape; or is so dangerous and desperate that there is no other practical way to restrain her/his movement. Even then the officer may use handcuffs only till the time the person is taken to the police station and thereafter to the magistrate’s court.

4. Violation of the Court’s directives by a police officer of whatever rank or any member of the jail establishment is punishable summarily under Contempt of Courts Act, 1971 in addition to other provisions of the law.

SUPREME COURT CASES 2011

HARICHARAN & ORS. v. STATE OF M. P. & ORS(2011)4 SCC 159

• Judgment by B. Suresh Reddy & S.S. Nijjar JJ.

• Theft & lurking trespass-suspect-deceased arrested-illegally detained-3rd degree torture-electric shock to scrotum-extract confession-fact established by medical evidence

• Verdict : “Using any form of torture for extracting information is neither right nor fair nor just.”

MOHD. SUKUR ALI v. STATE OF ASSAM(2011)4 SCC 729

• Judgment by Markandey Katju & Gyan Sudha Misra JJ.• Accused brought to Court-Counsel absent-convicted-criminal

appeal-Supreme Court• Held : “If the defending Counsel doesn’t appear another

counsel practicing in criminal side should be appointed as amicus curiae. Right to representation by a counsel is a fundamental right.”

• As stated by the founding fathers of our Constitution, “Na vakeel, na daleel, na appeal”(no lawyer, no hearing, no appeal)

NARMADA BAI v. STATE OF GUJARAT & ORS(2011)5 SCC 79

• Judgment : P. Sathasivam & Dr. B. S. Chauhan

• Ram Jethmalani appearing for respondent

• Police atrocities/custodial death or violence-fake encounter-compensation

• Decided : Compensation to petitioner- as per the Report of CBI

REKHA v. STATE OF TAMIL NADU(2011)5 SCC 244

• Judgment by Markandey Katju & Gyan Sudha Misra JJ.

• Preventive detention is an exception to Art.21, but it cannot override Art.21

• Art.22 cannot be read in isolation.It must be read along with Arts. 19 & 21.

• As Art.22(3) specifically excludes Cl. (1) & (2) an arrested person is not entitled to legal aid nor can he be produced before the Magistrate within 24 hrs

PRAKASH KADAM & ORS. v. RAMPRASAD VISWANATH GUPTA & ANR, (2011)6 SCC 189

• Judgment by Markandey Katju & Gyan Sudha Misra JJ.

• Accused policemen-allegedly killed deceased in a false Police encounter-illegal detention-High Court cancelled bail-case-Supreme Court

• Dismissing the Appeal, SC held: “Misuse of bail cannot be permitted. Existence of prima facie case against the appellants disentitles them to bail”

State of Delhi v. Ram Avatar(7 July 2011)

• Judgment delivered by B. S. Chauhan J. & Swatanta Kumar J.• The respondent was arrested under the Narcotic Drugs and

Psychotropic Substances Act, 1985• Illegal substances were discovered from his house and hence

he was arrested• The Court convicted him• He appealed to the Supreme Court that he was arrested

without a valid warrant and Police treated him inhumanly• As the illicit objects were apparently taken from his home &

the ill treatment by the Police officers were not proved in the medical examination, the Supreme Court upheld the High Court Verdict

That’s all YOUR HONOUR !!