BY POOJA TOOR
LEGAL INTERN, H.K. LAW OFFICES
In a literary sense, arrest means the action of seizing someone and taking them into legal custody. It means deprivation of personal liberty of the accused. Whenever an offence is committed by any person, he is taken into custody to investigate and inspect the case Thus, after an arrest, a person’s liberty is under full control of the authority arresting him/her. But every deprivation of liberty or physical restraint should not be interpreted as the arrest. Only the deprivation of liberty by a legal authority in a professionally competent and skillful manner amounts to arrest.
Every human being has some basic rights like right to freedom and personal liberty, right to speech and expression, and right to move freely. These rights are inherent in all human beings. However, it does not imply that the arrest of a person is violative of his fundamental rights because arrest is legally necessary to curb crime and civil wrong from the society. Therefore, to ensure a just & fair trial, even an arrested person is guaranteed some rights. The main aim is to provide a fair chance of representation to the defence and avoid the exploitation of the innocent. These rights are discussed as follows-
- RIGHT TO KNOW ABOUT GROUNDS OF ACCUSATION-
The arrested person has the right to know, at what grounds he is being arrested. Section 50, 55 and 75 of the CrPC govern this right of the arrested person. Section 50 and 50 A state that it is the duty of the officer arresting the accused to inform him/her about each offence he has been alleged to commit and to inform one of their friends or family about the arrest being held. They are obliged to inform the arrested person about their right to inform a person nominated by him/her.
- RIGHT TO BE PRODUCED BFFORE THE MAGISTRATE WITHOUT ANY DELAY-
Under section 55 and 76 of the CrPC the accused person shall be presented before the magistrate having jurisdiction or a police officer who is in charge of the police station, before 24 hours of arrest without any unnecessary delay. This is one of the important features of a fair trial. This has also been stated in article 22 of the Indian constitution and non-compliance to this rule by the police officials may amount to wrongful detention.
- RIGHT TO CONSULT A LAWYER-
Article 22(1) of the constitution states that the arrested person has a right to appoint a lawyer and be defended by the pleader of his choice. Section 303 and 41D of the CrPC also deal with the same right and ensure that the arrested person gets a fair chance to choose a lawyer of his choice so that the trial can be conducted in a just and fair manner without any prejudice.
- RIGHT TO GET BAIL-
It is the duty of the police officer arresting the accused to inform him/her about their right to get bail in case of a bailable offence. Bailable offences are basically those offences in which a person can be released on bail because these kinds of offences are less serious in nature. Section 50(2) lays down the legal provision in this regard.
- RIGHT TO A FAIR TRIAL-
One of the most important rights of every arrested or accused person is to get a fair trial. The court has laid down a significant emphasis on the importance of a fair trial while delivering some landmark judgements.
- RIGHT TO FREE LEGAL AID-
Article 39 A of the constitution and section 304 of the CrPC provide the right to free legal aid to the arrested person. It has been enshrined in the law to provide justice to those who cannot afford to hire a personal legal practitioner or advisor or lawyer for them. It provides a fair chance of representation to the accused. The court may ask the accused itself or if it seems the court that the accused does not have proper means and access to legal aid then the court may appoint a defence counsel for the accused or arrested person so that there is no chance that he/she is deprived of a fair trial.
- RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER-
An arrested person has right to get examined by a medical practitioner wherever the court is satisfied that such a medical examination may disclose the reality of a fact. Section 54 of CrPC states the provision in this regard.
- RIGHT TO KEEP SILENCE-
There are certain provisions in the constitution and the CrPC which allow an arrested person to keep silent, while being examined by the police officer or the magistrate. The main aim is to ensure that the accused does not gives any statement or confession under any influence.
- RIGHT TO COMPENSATION ON GROUNDLESS ARREST-
It is also legally stated in the law that if any person is falsely accused of any offence and arrested by the police officials without any valid ground then the person can demand compensation for the same.
- RIGHT AGAINST DOUBLE JEOPARDY-
A person cannot be tried and punished for the same offence for more than once. This rule has been laid down to avoid any kind of exploitation of the accused by punishing them again and again for the same offence. This will go against the principles of justice. Constitution also saves the accused person from ex post facto laws. It prohibits retrospective laws in the field of criminal law. This implies that a person cannot be punished for an offence retrospectively, meaning thereby that an act committed in past cannot be made an offence under the law at present.
These were some of the basic rights of an arrested person which people should be generally aware of in order to make sure that justice prevails around them. Rights given to an arrested person discharge a very significant role throughout the trial because it provides the accused a chance to prepare his defence, to represent their side of the case and save them from any kind of exploitation and influence. The constitution of the country, the Universal Declaration of Human Rights and the procedural codes lay down the numerous rights that safeguard the arrested person. The concept of fair trial is also based on these rights itself. Infringement of rights of any arrested person, violates the principle of fair trial and imparts injustice. In various landmark judgements like the case of Huissainara khatoon vs Home Secretary, State of Bihar and D.K Basu vs State of West Bengal and others the honourable Supreme Court of India has laid down the significance of such rights, the procedure to be followed while making an arrest with and without warrant, the scope of powers of the police and the rights of the arrested person. Such time to time and regular interpretations of the law by the honourable courts is very essential to protect the interests of both prosecution as well as the defence so that judiciary can function smoothly and the aim of becoming an effective and efficient judicial framework can be achieved.