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Arrest meaning Arrested Persons’ Rights Case Laws Sources

This article has been written by Spiti Ray, pursuing BA. LL.B. [4^th year] A keen legal buff with a passion for deciphering intricate laws.

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Arrest meaning

The term arrest has not been defined in the code of criminal procedure. It is Anglo-Norman in origin, derived from a French word meaning “to stop or stay.” Arrest means deprivation of a person of his liberty by legal authority, or at least by apparent legal authority. Every compulsion, physical restraint, or detention is not arrest, but when the restraint is total and the deprivation of liberty is complete, it would amount to arrest.

In a free society, like India, law does not tolerate the detention of any person without legal sanction. The right of personal liberty of a person is recognized as a fundamental right under Article 21 of our Constitution. Being a democratic country, India grants several civil rights to its citizens, and civil rights at the time of arrest are perhaps one of the most important rights. These rights form a framework against potential abuses and injustices.

Arrested Persons’ Rights

1. Right to know the ground of Arrest [Article 22(1) of the Constitution, Section 50(1), 55 and 75 of the code of criminal procedure and Section 47, 48 of the BNSS]

Article 22(1) of the Indian Constitution provides 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.” It enables the arrested person to move to the proper court for bail or, in appropriate circumstances, for a writ of habeas corpus to make expeditious arrangements for his defense.

According to Section 50(1) of CrPC, “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.”

Section 50A of CrPC enacts the rule that emerged from the decisions such as Joginder Kumar v. State of UP and D. K. Basu v. State of West Bengal. It makes it obligatory on the part of the police officer to inform the friend or relative of the arrested person about his arrest, but also to make an entry in the register maintained by the police. The magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard.

In addition to being informed of the grounds for arrest, individuals have the right to timely notification of their arrest to a friend, relative, or any other person of their choice. Section 48 of the BNSS imposes an obligation on the arresting authority to inform the arrested person about this right, enabling them to reach out to a trusted contact.

Along with this, Section 55 of the CrPC illustrates the ‘procedure when a police officer deputes a subordinate to arrest without warrant’. Such subordinate officer, before making an arrest, informs the person to be arrested of the substance of the written order given by the senior police officer.

Section 75 of the CrPC provides that “The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.”

Section 47 of the BNSS echoes this: “Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, 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.”

2. Right to be informed about the Released on Bail [Section 50(2) of CrPC,

Section 50 (2) of CrPC provides that when a police officer arrests a person without a warrant accused of a bailable offense, he shall inform him that he is entitled to be released on bail and that he may arrange for sureties on his behalf. It is not an absolute right and mainly depends on factors such as the severity and nature of the offense, the potential threat to society on release, and the likelihood of the arrested person fleeing away. This provision reduces the discontent of the public against the police.

3. Right to be taken before a Magistrate without Delay [Article 22(2) of the Constitution of India, Section 56, 57, 76, 167 of CrPC, Section 57 of the BNSS]

The accused person has another legal right under Indian law, which is the right to be taken before a Magistrate within 24 hours without delay. Despite the fact that whether the arrest was made with or without a warrant, the arrested person should be taken before a judicial officer without any delay. Article 22(2) of the Constitution of India states 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.”

This right of the arrested person is mentioned under Section 56 of CrPC: “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.” Also, a person arrested should not be detained for more than 24 hours, Section 57. Moreover, Section 76 of CrPC, 1973, illustrates that any person executing a warrant of arrest (such as police officers) should bring the person arrested before the Court without unnecessary delay. It also provides that the arrested person should not be confined in any place other than a police station before he is taken to the Magistrate. This applies to all the cases, irrespective of whether the arrest was made with or without a warrant. Section 167 of CrPC provides the procedure when the investigation cannot be completed within 24 hours. It also lays down the powers of Magistrate when the accused is produced before him within 24 hours of arrest. If the police officer fails to produce the arrested person before the Magistrate, he will be guilty of wrongful detention. These provisions have been created with a view to

· Prevent arrest and detention for the purpose of extracting confessions and compelling information from them

· Prevent Police Stations from being used as prisons, which they are not suitable for

· Afford early recourse to judicial officers to decide on all questions of bail or discharge.

Section 57 of the BNSS stipulates that an arrested person must be presented before a magistrate within 24 hours, preventing undue and prolonged detention without judicial oversight.

4. Right to consult a Legal Practitioner [Article 22(1), Article 39-A of the Constitution of India, Section 303, 41D of the CrPC, Section 341 of BNSS]

The arrested person has a right to consult a legal practitioner or a legal advisor, which has been identified under Article 22(1) of the Constitution of India. Further, it has been held by the Supreme Court that the state is under a Constitutional mandate to provide free legal aid to an indigent accused person. It does not only arise when trial commences but also attaches when the accused is presented before court for the first time.

Section 41A of CrPC has been inserted by amendment in 2009. Section 41A stipulates that the Police Officer in all cases where he decided not to make the arrest, issue notice to the person complained against to appear before him to make necessary inquiries. If he does not cooperate, the Police Officer may get him arrested after obtaining orders from the Magistrate. If such person complies and continues to comply with the notice, he shall not be arrested with respect to the offense referred to in the notice.

The Supreme Court in Arnesh Kumar v. State of Bihar issued directions to ensure that power under Section 41A CrPC is exercised properly. These directions are to be applicable to cases where the offense is punishable with imprisonment for a term that may extend to 7 years or less than 7 years, with or without a fine.

As per Section 303 of the CrPC, “Any person accused of an offense before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.” This right helps the accused person to safeguard his interests.

5. Right to be examined by the Medical Practitioner [Section 53, 54 of CrPC, Section 53 of the BNSS]

Provisions have been made for examination of arrested persons by medical practitioners under Section 53 of CrPC if, from the nature of the alleged offense, there is a reasonable ground for believing that an examination of the person will afford evidence. Section 51 empowers Police Officer not below the rank of Sub-Inspector to compel the accused person in custody to submit to medical examination.

Whenever the person of a female is to be examined under this section, examination shall be made only by or under the supervision of a female registered medical practitioner. Relying on the principles laid down by the Supreme Court in State of Bombay v. Kathi Kalu Oghad, it has been held that Section 53 of CrPC is not violative of Article 20(3) of the Constitution of India. An arrested person cannot be held to have been said to be a witness of himself.

Under Section 54 of the CrPC, any arrested person has the right to be examined by a medical officer in the service of the Central or State Government to enable him to defend and protect himself properly. It further states that in case the medical officer is not available, then the accused person is examined by a registered medical practitioner soon after the arrest is made. Provided that if the arrested person is a female, the examination of the body should be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, then the examination should be done by a female registered medical practitioner. A report of the examination is to be furnished to the arrested person or to the person nominated by such arrested person.

The Supreme Court in Sheela Barse v. State of Maharashtra held that the arrested person must be informed by the Magistrate about his right to be medically examined under Section 54 of CrPC.

Section 53 of the BNSS safeguards an arrested person’s right to request a medical examination, particularly when it could provide evidence important for their defense or disprove allegations.

6. Right to be Silent

It has been mentioned under Article 20(3) of the Constitution of India, “No person accused of any offense shall be compelled to be a witness against himself.” This is the principle of self-incrimination. The right to remain silent during the investigation process or trials or proceedings helps the arrested person avoid self-incrimination. The primary principle of this right is to ensure that no individual is forced to provide evidence that can be used against them in legal proceedings. This right is mainly related to statements and confessions made in court; it is the duty of the Magistrate to find whether such a violation was made voluntarily or not. No arrested person can be compelled to say anything in court.

7. Right to Free Legal Aid

Section 304 of the Code of Criminal Procedure, 1973, provides legal aid to the accused at state expense in specific kinds of cases. It depicts that “Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it seems to the Court that the accused has not sufficient means to engage a pleader, the Court shall appoint a pleader for his defense at the expense of the State.”

Section 341 of the BNSS binds the state to offer free legal assistance to poor accused individuals to prevent financial hardships from undermining their right to a fair trial.

8. Right to a Fair Trial/Speedy Trial

To succeed against the principle of Natural Justice, the person accused has the right to a fair trial. The right to a fair trial has not been specified under the provisions of CrPC, but the right to equality has been stated in the Supreme Law of Land, Indian Constitution. According to Article 14 of the Indian Constitution, all people are equal before the law. Together with this, in a judgment by the Supreme Court, it has been made compulsory to finish the investigation in the trial as early as possible.

Providing for an open court trial, Article 14 of the Constitution ensures equality before the law, with a focus on fairness and transparency in the judicial process. The doctrine of a speedy trial is reaffirmed in seminal cases such as Huissainara Khatoon vs. Home Secretary, State of Bihar. The Supreme Court, as headed by Justices P.N. Bhagwati and D.A. Desai, held that the right to speedy trial is a fundamental right under Article 21. Unlimited detention without trial is unconstitutional and a denial of personal freedom. Free legal assistance has to be made available to guarantee access to justice for everybody, particularly the poor. The ruling expanded the ambit of “life and personal liberty” to embrace prompt justice and humane treatment of prisoners. It emphasized structural discrimination against economically weaker sections and provided equal protection of the law.

The case resulted in the release of thousands of undertrial prisoners in India. It triggered criminal justice reforms, such as increased timelines for filing charge sheets and trials. It highlighted the judiciary’s function of protecting fundamental rights against procedural inefficacy. This judgment is still a cornerstone in Indian constitutional law, where justice would not be denied on the grounds of poverty or procedural delay.

Case Laws

Joginder Kumar vs. State of U.P. and Others (April 25, 1994)

In this case, the court observed the following guidelines:

1. An arrested person in custody is entitled to have one friend, relative, or other person interested in his welfare informed of his arrest.

2. He shall be informed of his rights by the Police Officer making the arrest.

3. An entry shall be made in Diary as to who was informed of his arrest.

D.K. Basu vs. State of West Bengal (December 18, 1996)

The Supreme Court further issued guidelines in this case. They are:

1. The Police Officer carrying out the arrest and handling the interrogation should bear an accurate and clear identification mark with their designation.

2. The police office carrying out the arrest shall prepare a memo of arrest, which shall be attested by at least one witness.

3. An arrested person shall be entitled to have his friend or relative informed of his arrest.

4. He must be aware of his rights to have someone informed of his arrest.

5. The arrestee must be examined at the time of arrest. Every major or minor injury must be recorded.

6. The arrestee must be subject to medical examination by a trained doctor every 48 hours.

7. The copies of all documents, including the memo of arrest, should be sent to the Magistrate for record.

8. The arrestee must be produced before the Magistrate within 24 hours of arrest.

9. He must be permitted to meet a lawyer of his choice during interrogation, though not throughout the interrogation.

10. A Police Control Room should be provided in every District and State Headquarters.

They were later adopted into the Criminal Procedure Code by way of amendment in 2009.

“Innocent until proven guilty,” the legal system of India depends on this statement ensuring that no wrong is done to an innocent person. Despite an individual being accused of a criminal offense, the person should be treated as a human being. The Indian Constitution illustrates certain rights to the arrested person to protect them from unlawful detention. Mostly, the laws related to arrest are defined under the various sections of the Code of Criminal Procedure, 1973, and now the Bharatiya Nagarik Suraksha Sanhita.