I.

Any person has to be treated as a human being, irrespective of the fact that
such person is a criminal. The accused persons are also granted certain rights,
the most basic of which are found in the Indian Constitution. The basic
assumption behind these rights is that the government has enormous
resources available to it for the prosecution of individuals, and individuals,
therefore, are entitled to some protection from misuse of those powers by the
government. An accused has certain rights during the course of any
investigation; enquiry or trial of offence with which he is charged, and he
should be protected against arbitrary or illegal arrest. Given below are some
of the most important rights of an arrested person:

Rights Of Arrested Person

1. Right To Silence

The ‘right to silence’ has been derived from common law principles. It means
that normally courts or tribunals should not conclude that the person is guilty
of any conduct merely because he has not responded to questions which were
asked by the police or by the court. The Justice Malimath Committee in its
report was of the opinion that right to silence is very much needed in societies
where anyone can be arbitrarily held guilty of any charge. As per the law of
evidence, any statement or confession made to a police officer is not
admissible in a court of law. Right to silence is mainly concerned about
confession. The breaking of silence by the accused can be before a magistrate
but should be voluntary and without any duress or inducement.

As per Article 20(3) of Constitution of India guarantees every person has been
given a right against self-incrimination, it states that any person who has been
accused of any offence, shall not be compelled to be a witness against himself.
The same was again reiterated by a decision of Supreme Court in the case of
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 (investigation). The Supreme
Court again in the year 2010, held that narco-analysis, brain mapping and lie
detector test are in violation of Article 20(3) of the Constitution of India.
2. Right To Know The Grounds of Arrest

2.1) As per Section 50(1) of Cr.P.C., every person who is being arrested by
any police officer, without any warrant, is entitled to know the full particulars
of offence for which he is being arrested, and that the police officer is duty
bound to tell the accused such particulars and cannot deny it.

2.2) As per Section 55 of Cr.P.C., when any person is being arrested by any
police officer, who is deputed by a senior police officer, then such subordinate
officer shall before making such arrest, notify the person to be arrested the
substance of the written order given by the senior police officer specifying the
offence or other cause for which the arrest is to be made. If this provision is
not complied with, then the arrest would be rendered illegal.

2.3) if the person is being arrested under a warrant, then as per Section 75 of
Cr.P.C, any person who is executing such warrant must notify the person to
be arrested, the particulars of such warrant, or even show such warrant if
needed. If the substance of the warrant is not notified, the arrest would be
unlawful.

2.4) the Constitution of India also confers this right as one of the fundamental
rights. Article 22(2) of the 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.”

3. Information Regarding The Right To Be Released On Bail

Any person who is to be arrested without a warrant and is not accused of a

non-bailable offence has to be informed by the police officer that he is entitled
to be released on bail on payment of the surety amount.[1] This helps persons
who are arrested for bailable offences and are not aware of their right to be
released on bail.

4. Right To Be Taken Before A Magistrate Without Delay

Irrespective of the fact, that whether the arrest was made with or without a
warrant, the person who is making such arrest has to bring the arrested person
before a judicial officer without any unnecessary delay. Further, the arrested
person has to be confined in police station only and nowhere else, before taking
him to the Magistrate. These matters have been provided in Cr.P.C. under
sections 56 and 76 which are as given below:

Section 56 of Cr.P.C. states that “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”.

Section 76 of Cr.P.C. states that “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”.

Further, it has been mentioned in the proviso of Section 76 that such delay
shall not exceed 24 hours in any case. While calculating the time period of 24
hours, the time necessary for the journey is to be excluded. The same has
been enumerated in the Constitution as a Fundamental Right under Article
22(2). This right has been created with a view to eliminate the possibility of
police officials from extracting confessions or compelling a person to give
information.

If the police officials fails to produce an arrested person before a magistrate

within 24 hours of the arrest, the police officials shall be held guilty of wrongful
detention.

6. Rights at Trial

6.1) 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.

6.2) Right To A Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution,
however, the SC in the Hussainara Khatoon case has made it mandatory that
the investigation in the trial must be conducted “as expeditiously as possible.”

In cases, wherein the maximum punishment that can be imposed is 2 years,

once the accused is arrested, the investigation for the trial has to be completed
within the period of six months or stopped on receiving an order from the
Magistrate, unless the Magistrate receives and accepts, with his reasons in
writing, that there is cause to extend the investigation.

7. Right To Consult A 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 in Article 22(1) of
the Constitution of India, which cannot be denied in any case. Section 50(3)
of the Code also lays down that the person against whom proceedings are
initiated has a right to be defended by a pleader of his choice. This starts
begins as soon as the person is arrested. The consultation with the lawyer
may be in the presence of police officer but not within his hearing.

8. Rights Of Free Legal Aid

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 as is implicit in Article 21
of the Constitution . This right does not come into picture only at the time of
trial but exists at the time when the accused is produced the first time before
the magistrate, as also when remanded from time to time. The Supreme Court
further states that failure on the part of the state to inform the accused of this
right will vitiate the whole process of trial. Therefore, a duty is imposed on all
magistrates and courts to inform the indigent accused of 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 laid down that this constitutional
right cannot be denied if the accused failed to apply for it. It is 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.

9. Right To Be Examined By A Medical Practitioner

Section 54 of Cr.P.C. enumerates this right. It states that:

Section 54 of Cr.P.C:- “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 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.”

Important case

D.K. Basu v. State of W.B

Despite several attempts being made by issuing guidelines in various cases, to

eradicate the possibility of the committing torture by the police officials, there
were frequent instances of police atrocities and custodial deaths. Therefore,
the Supreme Court, in this case, issued some guidelines which were required
to be mandatorily followed in all cases of arrest or detention. Following are
some of the important ones-

1. The person who is going to arrest any accused should bear accurate, visible,
and clear identification along with their name tags with their designation.
2. The police officer who is arresting the arrestee must prepare a memo of arrest,
and it should be attested by at least one person who may either be a family
member of the arrestee or any other respectable person in the locality. The
memo must contain the date and time of arrest and must also be countersigned
by the arrestee.
3. If the person who has signed the memo of arrest is not a family member, relative
or friend of the arrestee, then the arrestee is entitled to have one friend or
relative being informed about his arrest as soon as possible.
4. The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.
5. Entry must be made in the diary at the place of detention regarding the arrest
of the person which shall also disclose the name of the next friend of the person
who has been informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is.
6. The police officer should, on the request of arrestee, record at the time of his
arrest major and minor injuries, if any, present on arrestee’s body, after
subjecting the arrestee to an examination. The “Inspection Memo” must be
signed both by the arrestee and the police official making such arrest, and one
copy of that memo must be provided to the arrestee.
7. Copies of all the documents including the memo of arrest, referred to above,
should be sent to illaqa Magistrate for his record.
8. The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation.
9. The court also ordered that in every district and state headquarters, a police
control room should be established, wherein every arrest which is being made
must be reported by the police officer making such arrest within 12 hours of
such arrest, and it should be displayed on a conspicuous notice board.

The Court also emphasized failure to fulfill the given requirements would
render the concerned officer liable for contempt of court along with
departmental actions, and such proceedings can be initiated in any High Court
having the territorial jurisdiction over the matter.

[1] Section 50(2) of Cr.P.C.

II. INTRODUCTION:
“Arrest” means:
“a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty;
the taking or keeping of a person in custody by legal authority, especially, in response to a
criminal charge.” [Legal Dictionary by Farlex]
The purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the
law. An arrest serves the function of notifying the community that an individual has been accused of a
crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can
be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not
looked upon with favor by the courts. The federal Constitution imposes limits on both civil and criminal
arrests.
ARREST HOW MADE:
Section 46 of Criminal Procedure Code (hereinafter Cr.P.C) –
(1) In making an arrest the police officer or other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be a submission to the custody by word or
action.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such
police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence
punishable with death or with imprisonment for life.
[(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise,
and where such exceptional circumstances exist, the woman police officer shall, by making a written
report, obtain the prior permission of the Judicial Magistrate of the first class within whose local
jurisdiction the offence is committed or the arrest is to be made.]{Ins. by Act 25 of 2005, S. 6 (w.e.f 23-
6-2006)}
RIGHTS OF ARRESTED PERSON:
There are two types of rights of arrested person: –
(i) At the time of arrest
(ii) At the time of trial
In India accused have more rights as compared to victim: –
(a) Right to be informed of ground of arrest.
Section 50 (1) of Cr. P.C.: Every police officer or other person arresting any person without warrant
shall forthwith communicate to him full particulars of the offence for which he is arrested or other
grounds for such arrest.
Object: – It is one of the principles of natural justice.
(b) Obligation of person making arrest to inform about the arrest etc. to a nominated person.
Section 50 A of Cr. P.C.: [(1) Every police officer or other person making any arrest under this Code
shall forthwith give the information regarding such arrest and place where as may be disclosed or
nominated by the arrested person for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is
brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such form as may be prescribed in
this behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person produced, to satisfy himself
that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such
arrested person.]
(c) Right to be informed of right to bail.
Section 50 (2) of Cr. P.C.: 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 on bail and that he may arrange for sureties on his behalf.
(d) Right to be produced before the Magistrate without delay.
Section 56 of Cr. P.C.: 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.
(e) Right of not being detained for more than twenty-four hours.
Section 76 of Cr. P.C.: 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 twenty-four hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate’s Court.
(f) Right of not being detained for more than twenty-four hours without judicial scrutiny.
Section 57 of Cr. P.C.: No police officer shall detain in custody a person arrested without warrant for a
longer period than under all circumstances of the case is reasonable, and such period shall not, in the
absence of 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.
RIGHT OF DEFAULT BAIL:
The proviso to Section 167(2) of Cr.P.C. clearly lays down that the total period of detention should not
exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty
days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused
shall be released on bail as mentioned therein. [CBI v. Anupam J. Kulkarni, 1992]
Proviso to sub-section (2) of Section 167 of the Code leaves no manner of doubt that during the
investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to the
amendments of Section 167 in 1978). [State of Haryana v. Mehal Singh, 1978 Cri LJ 1810]
The language of the proviso (a) to Section 167(2) of Cr.P.C. clearly states that after an accused is kept in
custody for the total period of sixty days, the Magistrate has no jurisdiction to pass orders for his detention
in custody provided the accused person is prepared to and does furnish bail. Of course if a person is
released on bail under this section he shall be deemed to be so released under the provisions of Chapter
XXXIII of Cr.P.C. for the purposes of that Chapter. [Ved Kumar Seth v. State of Assam, 1975]
Proviso to sub-section (2) of Section 167 of the Cr.P.C. leaves no manner of doubt that during the
investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to
amendment of Section 167 of Cr.P.C.). If during this period the investigation is not completed, the
Magistrate has no jurisdiction to remand the accused for further detention unless he had taken cognizance
of the offence in which case he cod order remand of the accused for the purpose of enquiry or the trial, as
the case may be. [State of Haryana v. Mehal Singh]
Where an application for bail under proviso to Section 167(2) Cr.P.C. is presented by police, the accused is
entitled to be released on bail under the proviso to Section 167(2) (if stipulated period under that section
was over at the time of making of such application for bail). [Gurmit Kaur v. State of Punjab, 1989 Cri LJ
1609]
In Prem Raj v. State of Rajasthan, the accused were arrested on charges inter alia under Section 302, 307
of Indian Penal Code. They had filed an application for bail to the Sessions Judge but it was rejected.
When the accused applied again to bail to the High Court under Section 439, it was held that Proviso (a) to
Section 167 (2) of Cr.P.C. being mandatory in character, the remand and detention of the accused beyond
the period of sixty days (prior to the amendment of Section 167 in 1978) was illegal and that the accused
were accordingly entitled to be enlarged on bail.
The release on bail on the default of the prosecution in filing charge-sheet within the prescribed period is
absolute in its terms. It is a release by virtue of the legislative command incorporated in the proviso to
Section 167(2) Cr.P.C. and not as a result of the exercise of the discretionary power by the Court. If there
is failure on the part of the investigating agency to file charge-sheet before the expiry of ninety or sixty
days, as the case may be, the accused in custody gets a right to be released on bail. After the expiry of
ninety or sixty days the Magistrate loses his power to remand a person. He has to pass an order of bail and
communicate the same to the accused intimating him to furnish the requisite bail bonds. But there is no
gainsaying of the fact that it is an order on default and it does not vest the person released on bail to remain
on bail till the conclusion of the trial. [M.P. Ramesh v. State of Karnataka, 1991 Cri LJ 1298]
CONCLUSION
Arrest has far reaching consequences; the social status and dignity of an individual suspect becomes at
stake, even his discharge cannot blot out the stigma consequent upon arrest. There are financial
implications for the arrested person and his family. The public suffers its repercussion as we. Naturally, it
needs to be ensured that arrests are not effected in a frivolous manner and that the rights of arrested
persons are fully guaranteed. Towards this effect, The Cr.P.C. lays down safeguards such that the rights of
persons enshrined in Art. 21 and 22(1) are not violated. However, it has been some time before the
statutory provisions have been understood in all its implication and they have been given effect to. Mostly
the criminal administration system ignores such safeguards and the judiciary for quite some time has been
lax about ensuring the proper observance of prisoner’s rights. So there have been many later declarations
and statutory enactments which reaffirm the faith in the rights of arrested persons. The endeavour is to
look into various rights of arrested persons, enshrined in statutes, conventions and judicial
pronouncements. [Padmaja Chakravarty, “Critical View of the Rights of Arrested Persons in India:
Conformity to Comparable International Standards”, indiankanoon.org]
Beside this, I feel an urge to point out the other side, i.e., victims, they have either less rights or they do not
have one. Our socialist, Court and even Cr.P.C. talks about the rights of arrested person, but there are no
such provisions to safeguard the interest of the victim. They are ignored fully or partially, later they
become the news of the media channels nowadays. Earlier or today itself, remedies are available to the
accused and not to who against the crime is committed. I admit the fact that there are some people who
suffer because they are falsely implicated into a case, but there are also those people who are benefitted
with these provisions.
Hence, I would like to conclude with that, our law system and police while investigating the case should be
so particular about the case that the victim should not suffer. It is duty upon the Court of Law that it should
not violates the right of liberty of any innocent person and at the same time also not infringes the rights of
victims.

III. Top 10 Rights Given to The

Arrested Person
BY VINITA · PUBLISHED SEPTEMBER 23, 2017 · UPDATED OCTOBER 3, 2017
Everyone is equal in the eye of the constitution while serving for justice. Even
the arrested person has his/her own rights to demand if not given. Logically,
these privileges are as imperative as the protection of any of the human right
against the violation. Similarly, an accused should be protected against any of
the illegal practices and anti-democratic acts during the beginning of time
when he got arrested.

Below are the top 10 rights listed, which is given to the accused, by the Indian
constitution –

1. Right to Silence
The foremost one is the right to silence which states that it’s the choice of
accused to stay quiet or not to say anything in his own favor or against until or
unless his lawyer is consulted or he is being presented in front of the
magistrate. In the indian constitution, clause (3) of Article 20(1) states that
“No person accused of any offense shall be compelled to be a witness against
himself.” Apparently this theory is the follow-up of maxim believing “NO MAN
IS BOUND TO ACCUSE HIMSELF.”
This law is basically a protection against incrimination before any of the
conviction being imposed. It is mainly concerned about confession. It’s totally
up to the accused that whom he finds to speak about the charges imposed on
him. Moreover he/she can also witness himself during the court trial and none
of the authority can deny his open confessions.
The Justice Malimath Committee wrote that “it was essentially the right to
refuse to answer and incriminate oneself in the absence of a proper charge.”

2. Right of not being detained for

more than24 hours without
judicial scrutiny
Another right is the right of not being detained for more than 24 hours
without judicial scrutiny is clearly stated under section 57 of the Code of
Criminal Procedure, 1973 in Indian constitution.
The section further elaborates that the police authorities cannot detain an
arrested person, without any warrant, in custody for more than 24 hours
under all the circumstances of the case is reasonable, without the official
order from the magistrate. Section 167 provides the information about the
time period which should not exceed 24 hours excluding the time of journey
from the place of arrest to the courtroom. Violation of right will be considered
the fault of police authorities and they will be held guilty for wrong detention.

3. Right to know the grounds of

arrest
Right to be informed is a fundamental right; similarly right to get informed
about the grounds and charges of arrest for which a person is being accused is
the derivation from RTI act.
As per Section 50(1) of Cr.P.C., any person who have been arrested without
any warrant then the police officer is liable to state all the propagandas of that
arrest taking place to the accused person. Moreover no police authority has
the right to deny this kind of RTI for the arrested person.

4. Right to get bailed

There are two types of offences, Bail able and Non- bail able offence. A person
who is arrested in the absence of a warrant and has his been accused of a
bailable offense then he enjoys the right to ask all the relevant requirements
of the bail including the information about surety amount.
This helps persons who are arrested for bailable offenses who are not aware
of their right to be released on bail.

5. Rights at Trial
Rights at trial for the arrested person involve two trial rights. They are-
Right To a Fair Trial
The Article 14 of Indian constitution guarantees the right to equality before
the law. The Code of Criminal Procedure also states that a fair trial is to be
done in an open courtroom. This logically promotes the prevention of
hindrances during the conviction is made.
Right To a Speedy Trial by the Constitution of India
Like the earlier ones this right has nothing to do with any article mentioned in
the constitution.
However, the SC in the Hussainara Khatoon case stated the speedy procedure
of courtroom trials, along with the investigation required in the trial. This
right ensures the enough time for investigation over the accused person’s
charges so that the justified verdict can take place without any wastage of
time.
For example, the law defines that if the case has maximum imprisonment of
2years then the investigation period should not exceed 6 months
Right at trials for the accused one ensures the fair court proceedings and also
the prevention of pendency, which I really feel is the only evil of Indian
judiciary.
6. Right to Consult a Legal
Practitioner
Anybody who has been arrested legally have right to consult a legal
practitioner of his own choice. This being a fundamental right in Article 22(1)
of the Constitution of India, is a right which cannot be denied in any case.
Section 50(3) of the Code also lies down that the person against whom
proceedings are initiated has a right to be defended by a pleader of his choice
since the arrest has taken place. The consultation with lawyer can take place
within or without the presence of police but surely not during a court hearing.

7. The Right to be examined by a

doctor
Being healthy is not a right in the Constitution of India but a requirement to
encourage the livelihood of humans so that he/she can be rewarded for good
deeds and paid off for the sins he have made.
Section 54 of Cr PC grants right to the arrested person to get medically
examined to enable him to effectively defend and protect himself. Medical
examination of a female should only be done by a lady doctor or only under
her supervision. It’s the duty of the person having custody of the accused to
take care of health and safety of him.

8. Right to inform a relative or a

friend
Whenever any difficulty strikes us down, family and friends are the people
who come into our heads as they are the people for the blessing in disguise.
Similarly, an arrested person has the right to have his relative or friend
informed about the fact, time and place of the arrest. Section 50-A, as
amended by the Code of Criminal
Procedure (Amendment) Act 2005, now statutorily consider this right to be
necessary for an accused person.
9. Freedom to communicate
magistrate
An arrested person is free inside the jail to communicate the magistrate to talk
about the issues he/she is dealing inside the jail whenever he wants to. The
arrested person has got the freedom to communicate to the Magistrate in any
case of torture done by the police officer when produced before the
Magistrate. The Magistrate can remand him to judicial custody if he is satisfied
with the accused after a detailed enquiry.
This right is to ensure the safety of the prisoners inside the jail. Even then
crimes inside the prisons is also a sensitive issue as often prisoners don’t
consider themselves safe behind the bars and consider fellow prisoners and
policemen as threat to themselves.

10. Right of the Accused to Produce

Evidence
Last but not the least, an accused even has right to produce witness in his
defence in case of police report. After the Examination and cross examination
of all prosecution witness, the whole proceeding is recorded simultaneously.
He may even call further for cross examination. Moreover, section 138 of
Indian evidence act states that the judge records the evidence of the witness
till the prosecution is done with his evidence.
See more- right to privacy

Conclusion
At the end we all are social animals and citizens of Indian society whose
protection is the responsibility of the police authorities even if a person is
held against some of the most serious charges. And all these rights ensures the
protections of accused or arrested ones as well who may have or have not
done an evil deed is the later matter of concern but the their safety is the
initial one.
Hence above all are the primary rights and all other rules are made to protect
these rights. Any rule that violates these rights would likely be considered
ultra vires in the terminology of constitution.

IV. What are the Rights of an Arrested Person?

Indian Laws and Regulations and the judicial verdicts elucidate on the rights of an arrested
person in India. Here it would be pertinent to mention that a person arrested is just deprived of
his liberty to move in apprehension of commission of crime by legal authorities. Hence, an
arrested person is not a convicted person until his/her guilt is duly proved in the Court of Law.

Why is arrest of a person necessary?

For securing attendance at trial– Trial of an accused is necessary as it will aid in determining
conviction or acquittal of the accused. Hence, the attendance of the accused at the time of trial is
a mandatory requirement. In order to secure the attendance of the accused the law provides for
arrest of the accused.
As a preventive measure– If relevant authorities apprehend that there is imminent danger of
commission of crime by a person, then it becomes necessary as a preventive measure to arrest
such person.
To obtain correct name and address- when a person on being interrogated by a Police Officer
refuses to provide his name and address then under certain circumstances as specified
under Section 42 of Code of Criminal Procedure. This provision provides for arrest if in the
presence of a police officer, a person has committed or has been accused of committing a non-
cognizable offence and on being demanded refuses to give his name or address.
Obstructing a Police Officer in Execution of his duty- Whoever obstructs a Police Officer in
execution of his duty is liable to be arrested by the Police Officer immediately. This is essential for
effective discharge of duties of a police officer.
For retaking a person escaped from custody- Under Section 41(1) (e) of CrPC any Police officer
may without an order from a Magistrate and without a warrant, arrest any person has escaped, or
attempts to escape, from lawful custody.
Rights of an arrested Person
Right to be informed of the grounds of arrest- This is a statutorily recognized right of an arrested
person to be informed about the grounds of arrest. Sections 50 and 50A of the CrPC imposes a
legal duty to communicate the arrested person grounds of his/her arrest without any delay.
Even Article 22(1) of the Constitution extends protection to arrested person and states that no
person who is arrested shall be detained in custody without being informed of the grounds for
such arrest.
Timely intimation of the grounds of arrest is imperative in order to avoid any mistake or
misunderstanding (if any) committed by the arresting authority.

One of the landmark authorities which enumerates the guidelines to be followed by arresting
authorities in the event of arrest or detention is the Supreme Court’s judgement in the case
of D.K. Basu v. State of West Bengal[1]. The decisions emanating from this caser also led to
the incorporation of Section 50A of CrPC which imposes a legal obligation on the Police to give
information regarding such arrest and place where the arrested person is being held to any of his
friends, relatives or such other persons as may be nominated by the arrested person for the
purpose of giving such information[2].
Right to be informed about the Right to Bail- under Section 50(2) of CrPC every Police Officer
arresting any person other than a person accused of a non-bailable offence is required to inform
the person arrested that he is entitled to be released on bail and that he may arrange for sureties
on his behalf.
Right to be produced before a Magistrate without delay- The CrPC under Sections 56 and
76 mandates that the person arrested shall be produced before the Magistrate or the Court
having jurisdiction in the case without unnecessary delay.
Right of not being detained for more than 24 hours- This provides that the arresting authority is
required to produce the arrested person without unnecessary delay before the Magistrate and in
no case such delay shall be more than 24 hours. However, the stipulated period of 24 hours
excludes the time necessary for the journey from the place of arrest to Magistrate’s Court[3]. If
this requirement is not followed by the arresting authority then the arrest will be deemed to be
unlawful[4].
Right to Consult a Lawyer– 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 arrested person and provides that any
person accused of an offence may of right be defended by a pleader of his choice.
Right of arrested person for free legal aid- This is not a statutorily recognized right however 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[6].
Right to be Examined by a Medical Practitioner- Section 54 of CrPC states that when an arrested
person alleges 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 direct the
examination of the body of such person by a registered medical practitioner. However, the
request shall not be made for the purpose of vexation or delay or for defeating the ends of justice.
Supreme Court’s Guidelines in D.K. Basu v. State of West Bengal
In this judgement, the Supreme Court had issued instructions to be followed by the arresting
authority at the time of detention of a person. They are as under:

 The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name togs with their designations.
The particulars of all such police personnel who handle interrogation of the arrestee must be
recorded in a register.
 That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at
the time of arrest a memo shall be attested by atleast one witness who may be either a member
of the family of the arrestee or a respectable person of the locality from where the arrest is
made. It shall also be counter signed by the arrestee and shall contain the time and date of
arrest.
 A person who has been arrested or detained and is being held in custody in a police station or
interrogation center or other lock-up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being informed, as soon as practicable,
that he has been arrested and is being detained at the particular place, unless the attesting
witness of the memo of arrest is himself such a friend or a relative of the arrestee.
 The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or town through the
legal Aid Organization in the District and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
 The person arrested must be made aware of this right to have someone informed of his arrest
or detention as soon he is put under arrest or is detained.
 An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been informed of
the arrest and the names and particulars of the police officials in whose custody the arrestee is.
 The arrestee should, where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any present on his/her body, must be recorded at that time. The
 “Inspection Memo” must be signed both by the arrestee and the police officer effecting the
arrest and its copy provided to the arrestee.
 The arrestee should be subjected to medical examination by trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the concerned Stare or Union Territory. Director, Health Services
should prepare such a penal for all Tehsils and Districts as well.
 Copies of all the documents including the memo of arrest, referred to above, should be sent to
the illaqa Magistrate for his record.
 The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.
 A police control room should be provided at all district and state headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at
the police control room it should be displayed on a conspicuous notice board.

[1] (1997)1 SCC 416

[2] Joginder Singh v. State of U.P. [(1994)4 SCC 260]
[3] Section 57 of CrPC
[4] Manoj v. State of M.P. (1999)3 SCC 715
[5] (1981)1 SCC 6279
[6] Suk Das v. Union territory of Arunachala Pradesh (1986) 2 SCC 401

V. ARREST: PROCEDURE AND RIGHTS OF ARRESTED

PERSON IN INDIA
WHAT IS ARREST?

This term “Arrest” is very common term that we pick up a lot in our day today life. Normally, we see
a person, who do or have done something against the law, get arrested. Generally, the term “arrest”
in its ordinary sense, means the apprehension or restraint or the deprivation of one’s personal
liberty. Let’s understand this term in Indian law, Criminal procedure Code, 1973 in its chapter V
(section 41 to 60) deals with Arrest of a person. Ironically, Code has not defined the term “Arrest”.
Every deprivation of liberty or physical restraint is not arrest. Only the deprivation of liberty by legal
authority or at least by apparent legal authority, in a professionally competent and adept manner
amounts to arrest. Thus, we can say arrest means ‘apprehension of a person by legal authority
resulting in deprivation of his liberty’. An arrest consists of taking into custody of another person
under authority empowered by law for the purpose of holding or detaining him to answer a criminal
charge and preventing the commission of a criminal offence. However, a person against whom no
accusation of crime has been made may be arrested /detained under a statute for certain purposes
like removal in safe custody from one place to another, for example – removal of a minor girl from
a brothel. One thing to be noted that ‘custody’ and ‘arrest’ don’t have same meaning. Taking of a
person into judicial custody is followed after the arrest of the person by Magistrate on appearance
or surrender. In every arrest there is custody but not vice versa. Thus, mere taking into custody of
a person an authority empowered to arrest may not necessarily amount to arrest. This code
propose two types of arrests: (i) arrest made in pursuance of a warrant issued by a magistrate (ii)
arrest made without such a warrant but made in accidence with some legal provision permitting
such arrest.

WHO CAN ARREST?

Arrest can be made by police officer, Magistrate or any private person, like you or me can also
arrest a person but that can made only in accordance with some legal provision permitting such
arrest. The code exempts the members of Armed forces from being arrested for anything done by
them in discharge of their official duties except after obtaining the consent of the government (Sec.
45).
Any private individual may arrest a person only when the person a proclaimed offender and the
person commits a non bailable offence and cognizable offences in his presence (sec. 43). Any
magistrate (whether Executive or judicial) may arrest a person without a warrant (sec. 44). Under
section 41, Arrest by police officer can be made without warrant only in cognizable offences
(sec.2(c)) and with warrant in non- cognizable offence (sec 2 (l)). Cognizable offences are of more
serious nature as compare to non cognizable offences i.e. Murder, kidnapping, theft, etc.
HOW ARREST IS MADE?

Sec. 46 describes the mode in which arrests are to be made (whether with or without warrant). In
making an arrest the police officer /other person making the same actually touches or confines the
body of the person to be arrested unless there be a submission to custody by words or
action. When the police arrests a person in execution of a warrant of arrest obtained from a
magistrate, the person so arrested shall not be handcuffed unless the police have obtained orders
from the Magistrate in this regard. The person making an arrest may use ‘all means’ necessary to
make arrest if person to be arrested resists or attempts to evade the arrest. A police officer may,
for the purpose of arresting without warrant any person whom is authorized to arrest, pursue such
person into any place in India (sec 48). Arrested person shall not be subjected to unnecessary
restraint and physical inconvenience unless it’s necessary to do so to prevent his escape (sec.
49).
RIGHTS OF ARRESTED PERSONS -:

Arrest of a person is made in order to ensure his presence at the trial in connection with any
offences to which he is directly or indirectly connected or to prevent the commission of a criminal
offence. In law, there is principle of “presumption of innocence till he has proven guilty” it requires
a person arrested to be treated with humanity, Dignity and respectfully till his guilt is proof. In a
free society like ours , law is quite careful toward one’s “personal liberty” and doesn’t permit the
detention of any person without legal sanction. Even article 21 of our constitution provides : “No
person shall be deprived of his life or personal liberty except according to procedure established
by law”. The procedure contemplated by this article must be ‘right, just and fair’ and not arbitrary,
fanciful or oppressive. The arrest should not only be legal but justified also, Even the Constitution
of India also recognize the rights of arrested person under the ‘Fundamental Rights ‘and here I will
inform you about those rights :-

 Right to be informed of the grounds of arrest under sec. 50 of crpc and article 22 of Indian
Constitution, it’s a fundamental right to be informed. It is the duty of the police officer to inform
you and also tell whether the offence is bailable or non bailable. Normally, Bailable offences
are those where bailable can be granted and it is right of the person to be granted bail and
Non- bailable offences are where bailable can’t be granted generally and it’s the discretion of
the court.
 In non- cognizable cases ,arrest are made with warrant and the person going to be arrested
have a right to see the warrant under Sec. 75 of crpc. Warrant of arrest should fulfill certain
requirements such as it should be in writing , signed by the presiding officer , should have
seal of court , Name and address of the accuse and offence under which arrest is made. If
any of these is missing, warrant is illegal.
 Under sec. 41 , police have a power to arrest a person without warrant as prompt and
immediate arrest is needed , no time to approach magistrate and obtain a warrant for example
in case where serious crime is has been perpetrated by a dangerous person or where
chances of that person absconding unless immediately arrested. Section 41 got amended in
2008/2010 because of misuse of power conferred by this section to police and amendments
targeted the power conferred to police officer must be exercised after reasonable care. Some
clauses were put to this section such as police officer must act reasonably that such arrest is
necessary. Not in all cases arrest in necessary, Notice of appearance before police
officer can be made if reasonable complaint has been made ,credible information has been
 received and suspicion exits of cognizable offence and if concern person continues to comply
with such notice and appears then arrest is not necessary but he don’t, arrest can be made.(
sec 41A)
 The police officer must be wearing a clear, visible and clear identification of his name which
facilitate easy identification. A memo of arrest must be prepared at the time of arrest – (i)
attested by least one witness, it can be family member or member of locality where arrest is
made (ii)counter signed by arrested person.
 Right of arrested person to meet an advocate of his choice during interrogation under sec.
41D and sec. 303 crpc.
 Arrested person have a right to inform a family member, relative or friend his arrest U/ sec 50
of crpc.
 Arrested person have right not to be detained for more than 24hrs, without being presented
before magistrate, it is to prevent unlawful and illegal arrests. This right is fundamental right
under article 22 of Indian constitution and supported under section 57 and 76 of crpc.
 Arrested person have right to be medically examined (Sec 54,55A) the person who is arrested
should be given the right to have his body examined by the medical officer when is produced
before a magistrate or at any time under custody, with a view to enabling him to establish that
the offence with which he is charged was not committed by him or that he was subjected to
the physical torture. With the insertion of 55A, “it shall be duty of a person having custody of
an accused to take reasonable care of the health and safety of the accused” and it attempt
to take care of “custodial violence”( torture, rape, death in police custody/lock-up) to some
extent.
 Arrested person have right to remain silent under Sec. 20(3) of Indian constitution so that
police can’t extract self – incriminating statement from a person without will or without his
consent.

SPECIAL PROTECTION TO FEMALES -:

 General rule is that Females are not be arrested without the presence of a lady constable and
further no female be arrested after sun-set but there are exception in some cases, where
crime is very serious and arrest is important then arrest can be made with special orders and
it depends on facts and circumstances of each case. Separate lock ups to be provided for
them.
 The salutary principle that the medical examination of a female should be made by female
medical practitioner has been embodied in sec 53(2).

In case of State of Maharashtra Vs Christian Community Welfare Council of India [(2003) 8 SCC
546]
In this case, SC departing from long tradition of not arresting women at night and not arrest women
in the absence of a female constable, The Supreme Court held that “We do agree with the object
behind the direction issued by the High court, We think a strict compliance with said direction, in
given circumstances, would cause practical difficulties to investing agencies and might even room
for evading the process of law by unscrupulous accused. While it is important to protect the female
sought to be arrested by the police from police misdeeds but it may not possible and practical to
have the presence of lady constable. It is issued to the arresting authority that while arresting a
female person , all efforts should be made to keep a lady constable present but in circumstances
where that arresting officers are reasonably satisfied that such presence of a lady constable is not
available or possible and or the delay is arresting caused by securing the presence of a lady
constable would impede the course of investigation, such arresting officer for reasons to be
recorded either before the arrest or immediately after the arrest be permitted to arrest a female
person for lawful reasons at any time of the day or night depending on the circumstances of the
case even without the presence of a lady constable”.

 Identification of Person – With new section inserted by the 2005 amendment , sec.54-A it
says that where a person is arrested on a charge of committing of offence and his identification
by any other person or persons is considered necessary for the purpose of investing of such
 offence, the court having the jurisdiction , may on the request of the officer in charge of a
police station , direct the person so arrested to subject himself to identification by any person
or persons in such manner as the court may deem fit”

Sec 54-A empowers the court to direct specifically the holding of the identification of the arrested
person at the request of the prosecution.

 Arrest to be made strictly according to the code (Sec 60A) – “No arrest shall be made except
in accordance with provision of this code or any other law for time being in force providing the
arrest”.

MISUSE OF POWER OF ARREST: –

Although, there have been may safeguard provided by the code and Constitution of India as
mentioned above but the fact remain that the power of arrest is being wrongly and illegally used in
large no. of cases in all over the country. The power is very often is utilized to extort monies and
other valuable property or the instance of the enemy of the person arrested. Even in civil disputes,
this power is being restored to a basis of a false allegation against the party to a civil dispute at the
instances of the opponent. The vast discretion given by Crpc to arrest a person even in case of a
bailable offence (not only where the bailable offence is cognizable but also where it is non –
cognizable) and further power to make preventive arrest (e.g. under section 151 of the crpc and
several city police enactments), clothe the police with extraordinary power which can be easily
abused. Neither there is any in- house mechanism in the police department to check such misuse
or abuse nor does the complaint of such abuse and misuse to higher police officers bear fruit
except in some exceptional cases.

CASE LAW:-

In law, there are always precedents that have to be followed. As, in case of “Arrest” we have
landmark judgments that have been given by Supreme Court of India which sets some rules in
favour of arrested person and putting some bars on powers of police officers with regard to arrest
and also prevent the misuse of this powers.

JOGINDER KUMAR VS STATE OF U.P [(1994) 4 SCC 260] ,In this case Apex Court ruled that an
arrested person being held in custody is entitled , if he so requests, to have one friend , relative or
other person interested in his welfare , told that he has been arrested and where he is being
detained. The police officer shall inform the arrested person when is brought to the police station
of this right. An entry shall be requested to be made in the diary as to who was informed of the
arrest. The Magistrate is obliged to satisfy himself that there requirements have been complied
with.

1. K BASU VS STATE OF WEST BENGAL [AIR 1997 SC 610] , This case is of the landmark in
which steps were taken to prevent “Custodial torture”. This matter was brought before the
court by Dr. D.K Basu, Executive Chairman of the Legal Aid Services, a NGO of West Bengal
through a PIL. He addressed a letter to the Chief justice drawing his attention to certain news
items published in the newspapers regarding deaths in the police lock – ups and custody.
This letter was treated as the writ petition by the Supreme Court. In this case, the Supreme
Court took a serious note of Custodial violence and death in police lock-up. To check the
abuse of police power, transparency of public action and accountability are two possible
safeguards. The apex court laid down guidelines (as preventive
measure) to be followed in all cases of arrest or detention till legislative measures are taken.
Some are the recent amendment made to the code codifies some of the Supreme Court
guidelines regarding arrest of a person laid down in D. K Basu case. i.e. like amendments to
sec. 41 like 41 A(Notice for appearance), 41B( Procedure of arrest and duties of officer
making arrest), 41C(control room at district), 41D(Right to arrested person to meet an
advocate of his choice during interrogation) section 50A (obligation of person making arrest
to inform about the arrest, etc., to nominated person), Right to arrested person to get
medically examined,etc. Even Court directed that these directions should be widely circulated
 as Court mentioned “Creating awareness about the rights of arrestee would be a step in the
right direction to combat the evil of custodial crime and bring in transparency and
accountability”.

STATE OF HARYANA VS DINESH KUMAR [(2008) 3 SCC 222]

In this case, the issue was what constitute arrest and custody in relation to criminal proceedings.
In other words, whether the manner in which respondent had appointed appeared before the
Magistrate and was released without being taken into formal custody could amount to arrest. The
respondent without surrendering to the police had appeared before the Magistrate with his lawyer
and was immediately granted bail. The high Court held that since the accused had neither
surrendered nor had taken into custody, it could not be said that he had actually been arrested.
The Supreme disagreed with the High Court. It held that even in such circumstances, the
appearance of the accused before the Magistrate amounts to arrest. It held that a person can be
in custody not merely when the police arrest him, produces him before a Magistrate and gets a
remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders
before the Court and submits to its directions. Supreme Court said that high court had erred in
coming to a finding that the accused had never been arrested since he had voluntarily appeared
before the magistrate and had been granted bail immediately.
ARNESH KUMAR VS STATE OF BIHAR [(2014) 8 SCC 273] In this case, the apex Court
emphasized the need for caution in exercising the drastic power of arrest by the police and also
by the Magistrate while authorizing detention of the accused. It would be prudent and wise for a
police officer that no arrest is made without a reasonable satisfaction reached after some
investigation as to the genuineness of the allegation. In short, the police officers do not
arrest accused unnecessarily and Magistrate do not authorize detention causally and
mechanically.]
CONCLUSION: –

Up to now we tried to understand the term “Arrest”, procedure of arrest, rights of the arrested
person and related case laws to the topics. Above mentioned each case has its own significance.
By going through Law Commission paper on Law of arrest, by we can read with data’s that how
power of arrest is being misused and more because of unawareness of people about their right.
We somehow console ourselves that these protectors of law and order must be doing right but we
have hundreds of cases where we witnessed of this power being misused. These report shows
high percentages of arrests are made even in bailable offences, bails are not granted to those
where getting bail is one’s right. Increasing percentage of no. of under trial prisoners in jails, we
can deal with the plight of this topic separately. Arrest has a diminishing and demoralizing effect
on the personality. He is outraged, alienated and becomes hostile. But there need to be balance
between security of state on one hand and individual freedom on other hand. There need to be
some checks on this power and more awareness need to be created among the peoples about
their rights, so that balance system can be form.