LAW OF CRIMES – 2

RIGHTS BESTOWED UPON AN ARRESTED PERSON

SUBMITTED TO :
SUBMITTED BY:

DR. JULIAN SEAL PASARI TEJASWA

MOHANTA

ASSISTANT PROFESSOR, LAW

SEMESTER – IV ‘B’

NUSRL, RANCHI
ROLL NO – 966
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NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI, JHARKHAND

TABLE OF CONTENTS
RESEARCH PROBLEM.................................................................................................3

RESEARCH QUESTION................................................................................................3

RESEARCH METHODOLOGY.......................................................................................4

CHAPTER I: INTRODUCTION.......................................................................................4

CHAPTER II: RIGHTS POSSESSED BY AN ARRESTED PERSON .....................................5

CHAPTER III – SCOPE OF S.50 OF CRPC WITHIN THE AMBIT OF ART. 22(1) OF THE
CONSTITUTION OF INDIA............................................................................................8

CHAPTER IV – CONCLUSION....................................................................................10
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RESEARCH PROBLEM
India faces a huge problem of illegal arrests as well as custodial deaths every year. These
problems send us on the back foot and make us question the very essence of the fundamental
rights provided to a human that are supposed to be available to everyone. Indian Laws and
Regulations and the judicial verdicts elucidate vastly on the rights of an arrested person in India,
however here it would be pertinent to mention that a person who is arrested is mostly just
deprived of his rights and liberties. The majority of the times, the victims of these illegal arrests
are those who are poor and unaware of their rights, this way the authorities have an upper hand.
A person is arrested for securing attendance at the trial – Trial of an accused is necessary as it
will aid in determining conviction or acquittal of the accused. Hence, an arrested person is not a
convicted person until his/her guilt is duly proved in the Court of Law.

RESEARCH QUESTION
Q.1 What are the rights of an arrested person given under Code of Criminal Procedure?

Q.2 What is the scope and significance of S. 50(1) of Criminal Procedure Code with
respect to A. 22(1) of the Constitution of India?

RESEARCH METHODOLOGY
Doctrinal method of research is used in the course of this research paper. The methodology
involves analysis of contents from secondary resources such as books, journals and online
resources
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CHAPTER I: INTRODUCTION
The first thing that needs to be discussed while discussing the rights provided to a person upon
arrest is the legal meaning of ‘Arrest’ – “Arrest means the deprivation of a person of his liberty
by legal authority or at least by apparent legal authority”1.

Now the question arises that, what is the need for making an arrest? An arrest is made to a person
who has been accused of committing a crime or for breaking a law. The purpose of arresting a
person is to secure the attendance of that accused at the trial which is necessary in determining
the conviction or the acquittal of the accused.

Every human being deserves to have their personal liberty, and if the personal liberty of a person
is hampered, then it violates his/her fundamental right. However, a person who has performed
noncompliance of any law can be deprived of his liberty but only through legal means. The same
has been provided in the Constitution of India: “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” 2 Further, the procedure that
must be taken should be just and fair, and not arbitrary or oppressive.

Rights available to a person arrested are of two types:

 Rights at the time of arrest.

 Rights at the time of trial.

While both of these rights are important for a person who has been arrested, the rights available
to a person at the time of arrest acts as restrain upon the powers of the authority facilitating the
arrest. While there are a number of rights which can be invoked on arrest, one right remains the
most crucial one, which is – “Right to know the grounds of arrest”. It has been defined in Section
50 of the Criminal Procedure Code which will be discussed in brief in this research paper.

1
R.V Kelkar, Criminal Procedure 71 (6th ed. 2019)
2
Constitution of India, Art. 21
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CHAPTER II: RIGHTS POSSESSED BY AN ARRESTED PERSON

In this chapter, we will be discussing about the rights of a person at the time of arrest and the
rights at the time of trial.

RIGHTS AT THE TIME OF ARREST :

 RIGHT TO REMAIN SILENT: The constitution of India guarantees every person the right
against self incrimination under Article 20 (3) “No person accused of any offense shall be
compelled to be a witness against himself”. In the case of Nandini Sathpathy v. P.L
Dani3, The Supreme Court of India said that no one can forcibly extract statements from
the accused, who has the right to keep silent during the course of interrogation. By the
administration of these tests, forcible intrusion into one’s mind nullifies the validity and
legitimacy of the Right to Silence. Therefore, an arrested person cannot be compelled to
speak if he/she does not wish to.
 INFORMATION REGARDING THE RIGHT TO BE RELEASED ON BAIL: Section 50(2) of
Criminal Procedure Code provides that “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”. This means that when a person is arrested for a bailable offence,
he has to be informed about his right to be released on Bail.
 RIGHT TO BE TAKEN BEFORE A MAGISTRATE WITHOUT DELAY: Whether the arrest has
been made with a warrant or without one, the arrested person has to be taken
 before a judicial officer without unnecessary delay which should be less than 24 hours. 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 for
in the Criminal Procedure Code under Section 564 & 765

3
AIR 1978 SC 1025
4
The Code of Criminal Procedure, 1973, S. 56 - A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, lake or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of a police station
5
The Code of Criminal Procedure, 1973, S. 76 - The police officer or other person executing a warrant of arrest shall
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.
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 RIGHT OF NOT BEING DETAINED FOR MORE THAN 24 HOURS WITHOUT JUDICIAL

SCRUTINY: Any person who has been arrested possesses the right to not be detained for
more than 24 hours without any judicial inspection. Section 57 of the Criminal Procedure
Code provides that “No police officer shall detain in custody a person arrested without
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” 6. In the case of Khatri(II) v. State of Bihar, the
Supreme Court has strongly urged upon the state and its police authorities to ensure that
this constitutional and legal requirement to produce an arrested person before a Judicial
Magistrate within 24 hours of the arrest be scrupulously observed, it is necessary that the
magistrates should try to enforce this requirement and where it is found disobeyed, that is
if the police officer fails to produce an arrested person before a magistrate within 24
hours of the arrest, he shall be held guilty of wrongful detention7.
 RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER : The likes of this has been
defined in Section 54 of the Criminal Procedure Code which is – Examination of arrested
person by medical practitioner at the request of the arrested person. A person under arrest
may at any point during his/her custody ask for a medical examination which he believes
would provide evidence for his innocence or any other reason unless the Magistrate
considers that the request is made for the purpose of vexation or delay or for defeating the
ends of justice.

RIGHTS AT THE TIME OF TRIAL

 RIGHT TO CONSULT A LEGAL PRACTITIONER: Article 22(1) of the Constitution provides

that no person who is arrested shall be denied the right to consult a legal practitioner of
his choice. Further, as has been held by the Supreme Court that state is under a
constitutional mandate (implicit in article 21) to provide free legal aid to an indigent
accused person, and the constitutional obligation to provide free legal 8 aid does not arise
only when the trial commences but also attaches when the accused is for the first time

6
The Code of Criminal Procedure, 1973, S. 57
7
AIR 1981 SC 928
8
Constitution of India, Art. 39A
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produced before the magistrate. The right of an arrested person to consult his lawyer
begins from the moment of his arrest.
 RIGHT OF THE ACCUSED TO PRODUCE EVIDENCE : The accused has the right to produce a
witness in his defence in case of police report or private defence. After the completion of
the prosecution case the accused shall be called upon to enter upon his defence and any
written statement put in shall be filled with the record. The accused in order to test the
veracity of the testimony of a prosecution witness has the right to cross-examine him.
Section 138 of Indian Evidence Act gives the accused the right to confront the witnesses.
This right ensures that the accused has the opportunity for cross-examination of the
adverse witness.
 RIGHT TO A SPEEDY TRIAL: Supreme Court in its landmark judgment in the case of
Hussainara Khatoon v. Home Secretary State of Bihar 9 held that speedy trial is a part of
Article 21 of the Constitution guaranteeing right to life and liberty. The Apex Court in
this case also observed that if a person is deprived of his liberty under a procedure which
is not ‘reasonably fair and just’, such deprivation would be violative of his Fundamental
Right under Article 21 and he would be entitled to enforce such Fundamental Right and
secure his release.

9
AIR 1979 SC 1360
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CHAPTER III – SCOPE OF S.50 OF CRPC WITHIN THE AMBIT OF ART. 22(1) OF
THE CONSTITUTION OF INDIA
Section 50 of The Code of Criminal Procedure, 1973 has laid down that – A person who has
been arrested shall be informed of the grounds on which the arrest has been made and the right to
bail. The provision provides that:

(1) 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.
(2) 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.

Coupled with this provision, the Constitution of India has vested in its people the right via
Article 22(1) 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”

The Supreme Court of India in its landmark judgment held that “Article 22(1) embodies a rule
which has always been regarded as vital and fundamental for safe guarding personal liberty in all
legal systems where the rule of law prevails. The two requirements of clause (1) of Article 22 are
meant to afford the earliest opportunity to the arrested personal to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting authority and, also, to know
exactly what the accusation against him is, so that he can exercise the second right namely of
consulting a legal practitioner of his choice and to be defended by him”10.

Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55 of CrPC., such subordinate officer shall, before making the arrest, notify to 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. Non- compliance with
this provision will render the arrest illegal.11

Thirdly, in case of arrest to be made under a warrant, Section 75 of CrPC provides that “the
police officer or other person executing a warrant of arrest shall notify the substance thereof to

10
(1969) 1 SCC 292
11
1976 CriLJ 1303
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the person to be arrested, and if so required, shall show him the warrant.” If the substance of the
warrant is not notified, the arrest would be unlawful.12

The rules regarding this were upheld in the cases of Joginder Kumar v. State of U.P 13 and D.K
Basu v. State of West Bengal14, and the court also held it to be mandatory under Section 50-A on
the part of the police officer to not only inform the relative or friend of the arrested person about
his arrest but also to make an entry about the same in the register maintained by the police
without any delay.

The above mentioned case laws and provisions make it clear that section 50 of CrPC is a very
crucial right to any person facing arrest. This right gives the power to the accused facing arrest
the chance of denying arrest on the basis that he has the right to know the grounds of the arrest,
and if the person is not provided with the reason and ground for the arrest, the arrest can be
claimed to be illegal and the custody of that person would be forceful.

The Madhya Pradesh High court in one of its cases held that “Section 50(1) CrPC requires full
particulars of the offence or other grounds for his arrest. In a way, these expressions carry the
provision of Article 22(1) of the Constitution of India a little further as a limb of procedure
established by law under Article 21 of the Constitution of India. If there could ever have a debate
about the extent of the requisite information contemplated under Article 21(1) of the Constitution
of India, it was set at rest by Section 50(1) CrPC the section confers a valuable right and a non-
conformation to its mandatory provisions is non-conformation to the provisions established by
law”15 which was also held by the Calcutta High Court in the case of Govind Prasad v. State of
West Bengal16.

This provision basically provides for the safeguarding of the interest of the person facing arrest
so that he does not experience illegal or unlawful arrests but also helps the authority in securing
the accused person for a trial.

12
(1899) ILR 26 Cal 748
13
(1994) 4 SCC 260
14
(1997) 1 SCC 416
15
2007 (4) MPHT 125
16
(1975) CriLJ 1249 Cal
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CHAPTER IV – CONCLUSION
Some rights provided to the citizens are basic in nature; everyone should be able to enjoy these
rights even if they are being accused of committing a crime or breaking a law, because in the
eyes of law, each and every person is innocent until proven guilty.

The same treatment should be given to a person who is facing arrest because that person is in
need of those rights the most in order to protect his dignity and liberty. The Supreme Court of
India has made sure by virtue of numerous cases that a person facing arrest has some basic rights
to defend himself from the accusations made against him/her.

In conclusion, the rights which are available to the person facing arrest should be absolute so that
the arresting authority or the accusing party is not able to oppress the accused and there cannot
be a situation which would result in making illegal or unlawful arrests.