Rights of Arrested Persons under Code of Criminal Procedure
That accused in India are afforded certain rights safeguards with respect to arrest and preventive
detention. The most basic of these rights and safeguards are found in the Indian Constitution, the
“Supreme Law of the Land”.
The safeguards against arrest and preventive detention have been enshrined in the article 22 mentioned
as fundamental right (Part III) which deals with ‘Protection against Arrest and Detention in certain
cases’.
Even in a democratic polity like India the provisions of arrest and preventive detention can be misused
thus certain basic constitutional and procedural safeguards are provided so as to prevent any possible
misuse by the state. These safeguards in a legal system protect citizens against arrest and detention and
thus ensure Civil and individual Liberty.
The presumption 'innocent till proven guilty' has long been considered in the Indian legal context and
forms the basis of such protection and safeguards. Thus, the accused is accustomed to several rights in
advent of any arrest under which they can seek protection from criminal liability.
The following rights are provided to the accused of an offence at the time of arrest :
1) Right To Silence – Any person subject to arrest has a right to remain silent. It is a common law
principle which flows from article 20(3) which states ‘no person accused of an offence shall be
forced to be a witness against himself’. Thus, the arrested person has right against “Self
Incrimination” and may choose to remain silent during the course of arrest.
The same was held in Nandini Sathpathy v. P.L.Dani, wherein it was held that no one can
forcibly extract statements from the accused and that the accused has the right to keep silent
during the course of interrogation.
2)Right To Know Grounds of Arrest – The accused has the right to know the grounds of arrest. The
Article 22(1) of Indian Constitution 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'.
There are safeguards even in the procedural law in this regard, Sec 50(1) of CRPC requires that person
arrested by a police officer without warrant will be entitled to know full particulars of the offence and
reason for such and arrest. If the person is being arrested under a warrant then under sec 75 of CRPC,
any person who is executing the warrant must notify the person to be arrested, particulars of warrant
and even present such warrant if needed.
3) Right To Consult Legal Practitioner – Every person who is arrested has a right to consult a legal
practitioner of his own choice. This has been enshrined as a fundamental right under article
22(1).
In Procedural law, section 50 of CRPC lays down that the person against whom proceedings are
to be initiated choose a legal practitioner as soon as the person is arrested. The consultation
with the lawyer maybe in presence of police officer but not within his hearing.
4) Right To Free Legal Aid – The article 39A under the Directive Principles of State Policy (Part IV)
of constitution implies an obligation on the state to provide free legal aid by suitable legislations
or any other scheme to secure justice to all citizens despite economic and other disabilities.
The Supreme Court in the case of in Khatri(II) v. the State of Bihar has held that the state is
under a constitutional obligation (implicit in Article 21) to provide free legal aid to an indigent
accused person. The right does not only come into picture during trial but exists even at the
time used is produced before the magistrate.
5) Right To be presented before Magistrate without Delay – The article 22(2) states that every
person who is arrested shall be produced before the nearest magistrate within 24 hours
excluding the time necessary for the journey from place of arrest to the Court of magistrate.
Under CRPC, there are similar safeguards under section 56, a person arrested without warrant,
without unnecessary delay and subject to bail provision shall be presented before magistrate of
competent jurisdiction. The section 76 of CRPC requires that arrested person should be brought
before the court without delay by the police officer or any other person executing the warrant
of arrest.
These rights against arrest are however not provided to two species of people – Enemy Aliens and
persons under Preventive Detention as per article 22(3)
