“Every right is a moral as well as legal
entitlement to have or do something”
As Indian constitution is wedded to Democracy and Rule of Law, the concept of free and fair trial is a constitutional commitment for which the cardinal principle of Criminal Law revolves around the Natural Justice wherein, even the accused or guilty person is treated with a human treatment. The law of the land requires the prosecution to stand at its own legs and to prove the guilt of the accused beyond the shadow of a reasonable doubt.
The accused persons are also granted certain rights, the most basic of which are found in the Indian Constitution. 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.
The constitution and the law of India provide numerous rights to the citizens of India, even when they are arrested in criminal or any case. It is very important for one to know that under which circumstances can they be arrested and what are their rights during and after the arrest. The Supreme Court of India has provided its citizens with several laws for safeguarding the arrest of an accused. Therefore it is fundamental for every person to know their rights during an interrogation or an arrest.
A person may be arrested for a different purpose. It may be either to save the person from the assault of the public or to prevent the convict from committing an offence.
Section 46 of CrPC states the mode of the arrest. In order to make an arrest, the officer is bound to actually confine the body of the person who is to be arrested until and unless there is submission to the custody by actions or words. The officer can only use force if the person to be arrested shows some resistance or tries to
escape. In case the arrest is of a woman, only women constable can make the arrest. The arrest should be either before sunset or after sunrise. However, the code does not give the right to cause the death of a person who is not accused of any offence which is punishable with death or imprisonment of life.
PRTECTION IN RESPECT OF CONVICTION FOR OFFENCES –
Article 20 grants protection against arbitrary and excessive punishment to an Accused person, whether citizen or foreigner or legal person like a company Or a corporation. It contains three provisions in that direction:
No ex-post-facto law: No person shall be (i) convicted of any offence Except for violation of a law in force at the time of the commission of the
Act, nor (ii) subjected to a penalty greater than that prescribed by the law In force at the time of the commission of the act.
No double jeopardy: No person shall be prosecuted and punished for the Same offence more than once.
No self-incrimination: No person accused of any offence shall be Compelled to be a witness against himself.
An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already done or which increases the Penalties for such acts. The enactment of such a law is prohibited by the first Provision of Article 20. However, this limitation is imposed only on criminal Laws and not on civil laws or tax laws. In other words, a civil liability or a tax Can be imposed retrospectively. Further, this provision prohibits only Conviction or sentence under an ex-post-facto criminal law and not the trial Thereof. Finally, the protection (immunity) under this provision cannot be Claimed in case of preventive detention or demanding security from a person. The protection against double jeopardy is available only in proceedings Before a court of law or a judicial tribunal. In other words, it is not available In proceedings before departmental or administrative authorities as they are Not of judicial nature.
PROTECTION OR SAFEGUARD OR REMEDIES: ARTICLE-22
Article 22 and 22 of the Indian constitution provide the following rights to the person arrested and detained in Custody under the ordinary law of crimes
Right to be informed of ground s of arrest: article 22
Article 22 (1) of the Constitution provides that a person arrested for an offence under ordinary law be informed as soon As may be the grounds of arrest.
In addition to the constitutional provision, Section 50 of Criminal Procedure Code also provides for the same. The grounds of arrest should be communicated to the arrested person in the language understood by him; otherwise it Would not amount to sufficient compliance with constitutional requirements.
Right to be defended by lawyer article 22
It is one of the fundamental rights enshrined in our Constitution. Article 22 (1) of the Constitution provides, inter alia, That no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice. The right of the accused to have a counsel of his choice is fundamental and essential to fair trial. The right is recognized Because of the obvious fact that ordinarily an accused person does not have the knowledge of law and the professional Skill to defend him before a court of law wherein the prosecution is conducted by a competent and experienced Prosecutor. This has been eloquently expressed by the Supreme Court of America in Powell v. Alabama. The Court Observed that “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard By counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged With crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar With the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted Upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and the Knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel At every step of the proceeding against him. Without it, though he be not guilty, he faces the danger of conviction because He does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the Ignorant and illiterate, or those of feeble intellect?
In Huassainara Khatoon (IV) v. Home Secretary, State of Bihar, the Supreme Court after adverting to Article 39-A of The Constitution and after approvingly referring to the creative interpretation of Article 21 of the constitution as Propounded in its earlier epoch-making decision in Maneka Gandhi v. Union of India. Article 22 (1) provides, “ No person who is arrested shall be detained in custody without being inform, 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 right begins from the moment of arrest i.e. pre-trial stage. The arrestee could also have consultation with his friends or relatives. The consultation with the lawyer may be in the Presence of police officer but not within his hearing.
Right to be produced before magistrate: article 22
As per Article 22 (2) of the Constitution provides that an arrested person must be taken to the Magistrate within 24 hours Of arrest. Similar provision has been incorporated under Section 56 of Criminal Procedure Code. 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.
In Hariharnand v. Jailor, the court been held that the arrested person will be entitled to be released, If twenty four hours Passed and the person arrested has not been produced before Magistrate. The magistrate before whom the arrested person Is presented is required to apply his judicial mind to determine be whether the arrest is regular and in accordance with Law.
Arrested person no detention beyond 24 hours except by order of the magistrate
Article 22(2) of the Constitution provides: “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.” The right to be brought before a Magistrate within a period of not more than 24 hours of arrest has been created with Aims:
prevent arrest and detention for the purpose of extracting confessions, or as a means of compelling people to give Information;
To prevent police stations being used as though they were prisons – a purpose for which they are unsuitable
Right to free legal aid article 39-a
The „right to counsel‟ would remain empty if the accused due to his poverty or indigent conditions has no means to Engage a counsel for his defence. The state is under a constitutional mandate (implicit in Article 21 of the constitution, Explicit in Article 39-A of the constitution-a directive principle) to provide free legal aid to an indigent accused person Sukhdas V. Union Territory of Arunachal Pradesh. In Khatri (II) V. State of Bihar, the Supreme Court has held that The State is under a constitutional mandate to provide free legal aid to an indigent accused person, and that their Constitutional obligation 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. However this Constitutional right of an indigent accused to get free legal aid may prove to be illusory unless he is produced before Promptly and duly informed about it by the court when he is produced before it. The Supreme Court has therefore cast a Duty on all Magistrate and courts to inform the indigent accused about his right to get free legal aid.
Right to speedy trial
Justice delayed is justice denied. This is all the more true in a criminal trial where the accused is not released on bail During the pendency of the trial and trial is inordinately delayed. However, the code does not in so many words confer Any such right on the accused to have his case decided expeditiously.
In Hussainara Khatoon (IV) V. State of Bihar, the Supreme Court considered the problem in all its seriousness and Declared that speedy trial is an essential ingredient of „reasonable, fair and just‟ procedure guaranteed by Article 21 and That it is the constitutional obligation of the state of devise such a procedure as would ensure speedy trial to accused. The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or Administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for This purpose has to be done by the State. It is also the constitutional obligation of this court, as the guardians of the Fundamental rights of the people, as a sentinel on the qui vie, to enforce the fundamental right of the accused to speedy Trial by issuing necessary directions to the State.The spirits underlying these observations have been consistently Rekindled by the Supreme Court in several cases.18This has again been expressed in Raj Deo Sharma v. State of Bihar Wherein the court ordered to close the prosecution cases, if the trial had been delayed beyond a certain period in specified Cases involving serious offences.
Rights Under Criminal laws-
There might be circumstances where prompt and immediate arrest is needed and there is no time to approach a magistrate and obtain a warrant, for instance in a case where a serious crime has been perpetrated by a dangerous person and there is every chance of the person absconding unless immediately arrested. Similarly there may be occasion where preventive action may be necessary in order to avert the danger of sudden outbreak of crime.
Section 41(CrPc):- When police may arrest without warrant: (i) A police officer may arrest without a warrant any person who has committed a cognizable offence and a credible info is existent.
found in possession of an incriminating substance
Has been proclaimed an offender under the code of by state
Deserter of armed forces or someone who obstructs in discharge of duties of police officer
Section41A: Notice of appearance before Police officer- Under this, the police officer may not arrest the person but give a notice to the person suspected of committing a cognizable offence to appear before him at a given date and place.
Section 41B: Procedure and duties of a police officer- A police officer should wear a proper uniform and identification plate (b) prepare a memo attested by one witness who is a member of the family and countersigned by the person arrested(c)inform the person arrested unless the memo is attested by a member of his family that he has the right to have a relative or a friend named by him to be inform about the arrest.
Section 41C: Control room in all districts- Govt. shall establish police control rooms in every district and at state level. (1) Names and address of the person arrested shall be displayed at the notice boards (2) create a database for the information of general public
Section 41D: Right of arrested person to meet an advocate of their choice during interrogation
These provisions are going a long way to prevent the wide discretionary powers of the police to be misused and creating a balance. Other important rights are
Section 50 (1): Person arrested shall be informed the grounds of his arrest. (2) When a person is arrested for a non bailable offence police shall inform him that he is entitled to be released on bail
Right to be taken to magistrate without any further delay: when any person is arrested bailable or non bailable, the person making the arrest must bring the arrested person before a judicial officer and the arrested person should not be confined to any other place other than the police station. These matters have been provided by Section 56 and 76. Also the person cannot be detained without any judicial scrutiny for more than 24 hours (section 56).
The above right has been strongly protected by the courts. The apex court had strongly urged the state and its police to follow these provisions and any authority failing to do such shall be guilty of wrongful detention
In Arnesh Kumar V State of Bihar [(2014) 8 SCC 273] Apex court was dealing with a 498A case and being aware of the misuse of this statute emphasized the need for caution in exercising the drastic power of arrest by the police and also advised to not issue detention casually and mechanically.
Right to Be Examined by a Medical Practitioner:
Section 54 of Cr.P.C. enumerates this right. 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.
In, Nandini Sathpathy v. P.L.Dani 1978 SCR (3) 608,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).
In, D.K. Basu v. State of W.B (1997) 1 SCC 416,the Supreme Court, in this case, issued some guidelines which were required to be mandatorily followed in all cases of arrest or detention which include, the arresting authority should bear accurate, visible, and clear identification along with their name tags with their designation, the memo be signed by the arrestee and family member, the family or the friend must be told about the arrest of the accused, The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation and many other.
The Law of India was structured in such a way that even if the person accused is found to be guilty by the Court of Trial he/she should not claim that they were not heard properly and provided the equal chance to present themselves. In a Criminal Matter, there are equal rights provided to an accused person for protection against the illegal procedure of investigation and trial. The Constitution of India and the Criminal procedure code both provides a handful of rights to all the persons involved in a criminal proceeding.
In the procession of the judicial system, the accused gets many opportunities to prove himself/herself to be innocent and stay updated of the on-going Criminal proceeding and keep himself/herself from making any coerced statements which can result in self-incrimination.
Indian polity by M. Laxmikant
Indian constitution law MP JAIN
By Bhanu Pratap