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  • Writer's pictureShriyanka Dash

Do you possess rights even after being legally arrested? Know now!

Hello everyone!

The legal system in India is established on the platform of “innocent till proven guilty”. An unlawful arrest of an individual can be a violation of Article- 21 of the Indian Constitution that states, “no human shall be denied of his right to life and personal liberty except if established by law” which means that the process must be fair, clear and not arbitrarily or oppressive. Being arrested takes away one of your most important fundamental right to freedom, to protect which an arrested person is bestowed with another set of rights. In the previous blog post, we discussed our legal rights in a situation where a police officer arrives to arrest into his custody. In the present post, we shall learn about the rights one possess after being legally arrested.

The following are the legal rights you may exercise as an arrestee ( one who has been arrested):

1. Right to know the grounds of arrest: Article- 22(1) of the Indian Constitution stipulates that no police officer can arrest any individual without informing the accused the reason/ ground of his detainment/ arrest. Section- 50 of the Code of Criminal Procedure (CrPC) says that every police officer with authority to arrest someone without a warrant must inform the person getting arrested about the crime for which he is arrested and other relevant grounds for the arrest. This is the duty of the police officers which he cannot refuse.

2. The very next thing you have a right to do immediately after reaching the police station, irrespective of the police officer informing you about the same or not is, the right to get a person nominated by you (maybe family, friends etc) informed about your arrest and the venue at which you have been detained. The same is an obligation on part of the police officers who arrested you as per Section 50A of the Code of Criminal Procedure, 1873. Section- 50Aof CrPC makes it compulsory for the person/ police official arresting a person to inform of the arrest to any of his relatives or even friends who may have an interest in the same.

3. If it is a bailable offence, you have a right to get released on bail as soon as you are ready to furnish one (bail is a temporary release, after one of your family, friends or relatives gives written guarantee that you will not flee away and also assures your presence in court whenever asked for). Being informed about such a right is also a right and an obligation on part of the police officer.

4. If you are not released on bail, the next step of procedure which would be performed is a search on your body for articles such as wallet, gold ornament, any kind of weapon etc; and except your clothes every other thing found will be seized and kept in safe custody. It is a duty of the officer and your very right to receive a list of all your articles which has been seized. So, if you are not provided with one, you have all right to ask for it under Section 51 of the Code. Also, if you are a female, then the search shall be done only by a female officer or constable, with strict regard to decency. So, in case of any indecency faced by you during such search, you have a right to lodge a complaint against such a concerned officer.

5. A medical examination is a right of an arrestee under Section 54 of the Code, which is to be done as soon as possible after the arrest ( most probably within the first 48 hours of the arrest). Such medical examination is to be done by a registered medical practitioner (in case of a female arrestee, only by a female registered medical practitioner). The examination is done to keep a record of any injuries/marks of violence upon the arrestee and also, the approximate time of infliction of such injury. This is a right which protects the arrestee against police brutality inside the lock-up or jail. So, if any injuries or new injuries are found of the body of the arrestee, the officer-in-charge of the police station is answerable.

6. It is your right to contact a lawyer of your choice as soon as possible. Article 22(1) of the Constitution recognizes the arrested person’s right to consult and defended by a legal practitioner as a fundamental right. It states 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 he be denied the right to consult and to be defended by, a legal practitioner of his choice. Further Section 303 of CrPC also entails this as a right of the arrested person and provides that any person accused of an offence may of right be defended by a pleader of his choice in the case of Khatri (II) v. State of Bihar[5] the Supreme Court had categorically stated that the State is under a constitutional mandate to provide free legal aid to an arrested indigent person and that this constitutional mandate to provide legal aid does not arise only when the trial commences but also when the accused is for the first time produced before the Magistrate as also when he is remanded from time to time. Moreover, the right to free legal aid of an arrested indigent person cannot be denied even if the accused failed to apply for it. That unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial, as mentioned in a case named Suk Das v. The union territory of Arunachala Pradesh (1986) 2 SCC 401.

7. No police officer or anyone for that matter can force you to speak or become a witness against yourself. While interrogation, you have a right to silence/right against self-accusation (right to refuse to answer) with respect to any incriminating (answers to which have a strong tendency to point out the guilt of the accused) questions put before you. The constitution of India guarantees every person right against self-incrimination under Article 20 (3) “No person accused of any offence shall be compelled to be a witness against himself”.This is the reason why narco analysis, lie detector tests etc are a violation of Article 20(3). So if you think answering a particular question will result in proving your own guilt, then you have your constitutional right to silence with you.

8. If arrested you have a right to be taken before a magistrate without delay. Police cannot put you into lockup and sit to have snacks, only because they have a time limit of 24 hours before which they need to take you to the magistrate; the reasonable delay is however excused, provided reasons are recorded in writing. Whether the arrest is made without a 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 Cr.P.C. under section 56 and 76 which are as given below: Section 56. A person arrested to be taken before Magistrate or officer in charge of the 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. Section 76. The 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 for the journey from the place of arrest to the Magistrate’s Court.

9. You cannot be detained for more than 24 hours in police custody. Whether the arrest is without a warrant or under a warrant, the arrested person must be brought before the magistrate or court within 24 hours. (Section 57 provides: Person arrested not to be detained more than twenty-four hours- No police officer shall detain in custody a person arrested without a 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.

What is the difference between lock-up and jail?

In the former, the accused (one who is blamed/charged with the concerned crime) is kept in the police station lock-up, under the custody of police ice. In the latter, he is kept in jail under judicial custody. No police can go into jail, without the Magistrate’s written permission. An accused is always said to be safer in judicial custody(jail) than in the police custody(lockup), because police have rarely cared about an accused's safety, forgetting that he is still an accused; also he can be easily mistreated, harassed and threatened. When one gets arrested, he/she is always first kept in a lockup in the concerned police station, before they take him/her to magistrate(read point no.8). Only after a Magistrate orders him to judicial custody, he/she shall be transferred to a jail.

Frequently Asked Questions

1) Can a child be arrested?

Yes, this is true that the police can arrest children in case they believe that the child has committed a crime. Normally, police stations will have a child welfare protection officer ( Section 107 of Juvenile Justice Act 2015) and it is mandatory that in each district and city, there will be at least one special juvenile police unit. Whenever the police arrest any child on suspicion of committing a crime, this should normally be done by a Special Juvenile Police Unit. However in case, the regular police officer arrests the child, then the child should immediately be placed under the care of the Juvenile Police Unit, or designated Child Welfare Police officers.

The police have the power to arrest children who have run away from an institution where they were placed under the Juvenile Justice Act (Section 26 of Juvenile Justice Act 2015 ), such as an Observation Home (Section 47 of Juvenile Justice Act 2015) , Special Home or Place of Safety.

2) Can the police keep the arrested child in jail?

No, a child cannot be ever kept in a police lockup or regular jail. It is the duty of the police to bring you before the Juvenile Justice Bench within 24 hours (Section 10 of the Juvenile Justice Act 2015). In the case where the police do not release you immediately on bail, you can only be kept in an Observation Home (Section 12 of Juvenile Justice Act 2015) until you are taken to the Juvenile Justice Bench (within 24 hours). The police are itself responsible to inform a child welfare officer who is supposed to accompany the child to the Juvenile Justice Bench for the first hearing.

In case of Deoki Nandan Dayma v. State of Uttar Pradesh, it has been held by the court that the entry in the register of school mentioning the date of birth of student is admissible evidence with regard to determining the age of the juvenile or to show that whether the accused is juvenile or child.

Hope you are more aware than yesterday!

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