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Please don't violate the copyright of this blog. Please cite it as Halder Debarati (2020). Rights of the arrested persons under Criminal Procedure Code : Simplified understanding . Published on 11-05-2020 @ https://victimologybydebarati.blogspot.com/2020/05/rights-of-arrested-persons-under.html
Before
understanding the rights of the arrested persons, we must understand that there
are some hairline differences between rights of the accused persons and rights
of the arrested persons. ‘Accused
persons’ is a broader term which includes arrested persons. But accused persons
can include persons who are accused of committing civil offences, petty
offences etc, where arrest may not be made. Accused person’s rights may include
six broad rights :
ü Right to defend himself
ü Right to get legal aid and legal counselling
ü Right to fair hearing and principles of natural
justice
ü Right to bail (in case the accused person is accused
of any bailable offences)
ü Right against arbitrary arrest and detention where
such arrest and detention are not necessary.
ü Rights against custodial torture.
The relationship between the two terms may be shown through
the following diagram:
Arrested
persons on the other hand may necessarily mean those who may have committed
offences in the category of cognizable offences or non-cognizable offences
where arrest may necessarily be made.
In
the Criminal Procedure Code, Law of arrest has been discussed mainly under
Chapter 5 (Ss 41-60A). Rights of the arrested persons is an inherent part of
law of arrest. This right can be studied under following heads:
S.41 of the Cr.P.C discusses about when arrest may be done
made without warrant by the police.
This section provides the following conditions when such arrest may be made:
(1) Any police officer may without an order from a
Magistrate and without a warrant, arrest any person-
(a) who has been concerned in any cognizable offence,
or against whom a reasonable complaint has been made, or credible information
has been received, or a reasonable suspicion exists, of his having been so
concerned; or
(b) who has in his possession without lawful excuse, the
burden of proving which excuse shall lie on such person, any implement of
house- breaking; or
(c) who has been proclaimed as an offender either
under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably
be suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the
execution of his duty, or who has escaped, or attempts to escape, from lawful
custody; or
(f) who is reasonably suspected of being a deserter
from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a
reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India, would have
been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in
India; or
(h) who, being a released convict, commits a breach of
any rule made under sub- section (5) of section 356(which speaks about The
State Government may, by notification, make rules to carry out the provisions
of this section relating to the notification of residence or change of, or
absence from, residence by released convicts.); or
(i) for whose arrest any requisition, whether written
or oral, has been received from another police officer, provided that the
requisition specifies the person to be arrested and the offence or other cause
for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the
requisition.
Further Section 41A of Cr.P.C also discusses as when
arrest may and may not be made. It says
that “the police officer may, in all cases where the arrest of a person is not
required under the provisions of sub-section (1) of section 41, issue a notice
directing the person against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists that
he has committed a cognizable offence, to appear before him or at such other
place as may be specified in the notice.” It further says “Where such a notice
is issued to any person, it shall be the duty of that person to comply with the
terms of the notice.” In such cases, arrests may not be made technically.
But, it further says “Where such person complies and
continues to comply with the notice, he shall not be arrested in respect of the
offence referred to in the notice unless, for reasons to be recorded, the
police officer is of the opinion that he ought to be arrested”. It again says,
“Where such person, at any time, fails to comply with the terms of the notice,
it shall be lawful for the police officer to arrest him for the offence
mentioned in the notice, subject to such orders as may have been passed in this
behalf by a competent Court”. In such cases, arrest may be made.
S.42 of the Cr.P.C further lays down another ground
for arrest : it says, “When any person who, in the presence of a police
officer, has committed or has been accused of committing a non-cognizable
offence refuses, on demand of such officer, to give his name and residence or
gives a name or residence which such officer has reason to believe to be false,
he may be arrested by such officer in order that his name or residence may be
ascertained.”. It further says “When the true name and residence of such person
have been ascertained, he shall be released on his executing a bond, with or
without sureties, to appear before a Magistrate if so required”:
Provided that, if such person is not resident in
India, the bond shall be secured by a surety or sureties resident in India.
Should the true name and residence of such person not
be ascertained within twenty-four hours from the time of arrest or should he
fail to execute the bond, or, if so required, to furnish sufficient sureties,
he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
However, the rights of the arrested persons remained
ignored for a long time. In the case of D.K. Basu vs State of West Bengal , AIR
1997, SC 610(623), The courts laid down certain guidelines that could be taken
as rights of the arrested persons. These are as follows:
(1) 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.
(2) That the police officer carrying out the arrest of
the arrestee shall prepare a memo of arrest at the time of arrest a such 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.
(3) A person
who has been arrested or detained and is being held in custody in a police
station or interrogation centre 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.
(4) 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
Organisation in the District and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
(5) 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.
6) 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 he next friend of the person who has been informed of the arrest an the
names and particulars of the police officials in whose custody the arrestee is.
(7) 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.
(8) 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 panel for all
Tehsils and Districts as well.
(9) Copies of all the documents including the memo of
arrest, referred to above, should be sent to the illaqa Magistrate for his
record.
(10) The arrestee may be permitted to meet his lawyer
during interrogation, though not throughout the interrogation.
(11) 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.
The guidelines of D.K. Basu case had been incorporated
in Chapter 5 through the following Sections:
Ø
Section
41B – Procedure of arrest and duties of officer making arrest: Every police
officer while making an arrest shall,- bear an accurate, visible and clear
identification of his name which will facilitate easy identification; prepare a
memorandum of arrest which shall be,- attested by at least one witness, who is
a member of the family of the person arrested or a respectable member of the
locality where the arrest is made; countersigned by the person arrested; and
inform the person arrested, unless the memorandum is attested by a member of
his family, that he has a right to have a relative or a friend named by him to
be informed of his arrest.
Ø
Section
41C – Control room at districts: The State Government shall establish a police
control room, in every district; and at State level. The State Government shall
cause to be displayed on the notice board kept outside the control rooms at
every district, the names and addresses of the persons arrested and the name
and designation of the police officers who made the arrests. The control room
at the Police Headquarters at the State level shall collect from time to time,
details about the persons arrested, nature of the offence with which they are
charged and maintain a database for the information of the general public.
Ø
Section
41D – Right of arrested person to meet an advocate of his choice during
interrogation: When any person is arrested and interrogated by the police, he
shall be entitled to meet an advocate of his choice during interrogation,
though not throughout interrogation.
Rights of arrested persons must also include
discussions on immunities for members and armed forces and judicial officers. S. 45 of CrPC in this regard says “Notwithstanding
anything contained in sections 41 to 44 (both inclusive), no member of the
Armed Forces of the Union shall be arrested for anything done or purported to
be done by him in the discharge of his official duties except after obtaining
the consent of the Central Government. The State Government may, by
notification, direct that the provisions of Sub-Section (1) shall apply to such
class or category of the members of the Force charged with the maintenance of
public order as may be specified therein, wherever they may be serving, and
thereupon the provisions of that Sub-Section shall apply as if for the
expression “Central Government” occurring therein, the expression “State
Government” were substituted.” One of the good examples could be the case of
Jammu and Kashmir human shield case where the army official who was
allegedly considered as the person who directed to tie a man with the jeep, was
not tried by regular courts. In case of arrest of judicial officers, Cr.P.C
does not offer any specific guidelines. But in the case of Delhi Judicial
service association vs State of Gujarat AIR 1991 SC 2176, it was observed
that arrest of judicial officer must be done under intimation to the District
Judge or the High court. In case of need for immediate arrest a technical or
formal arrest may be effected and Such arrest may be communicated immediately
to district and sessions judge & chief Justice of the concerned high court.
Now comes the question as how arrests should be made? S.46 of the Cr.P.C provides the answer which says
that arrest must be made by touching the body of the person, which in clear
terms means confining the person. This Section says as follows:
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. 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. 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.
We therefore get to see that if the accused is trying
to escape from the arrest, the police officer can use some force. But S.46
prohibits using any force which may cause death or grave bodily injury
especially to accused persons who are not charged with offences punishable with
death or life imprisonment.
However, when a woman is to be arrested, this
provision further states as followed:
Provided that where a woman is to be arrested, unless
the circumstances indicate to the contrary, her submission to custody on an
oral intimation of arrest shall be presumed. Only female police officers may execute the
physical arrest and male police officer
shall not touch the person of the woman for making her arrest.
Now, coming to the apprehension of children who are
in conflict with law, the criminal justice machinery has to follow Juvenile
Justice Care and Protection Act, 2015, read with Chapter 5 of the Criminal
Procedure Code. The three points that must be remembered in this regard are as
follows:
ü
Arrest
must not be made until and unless it is necessary to detain the child
ü
Arrest
must be done by SJPU. Female police officers are given priority in such
cases
ü
Police
officer must act as the guardian of the child until he has been submitted to
the observation home or is submitted to
his parents etc after admonishing/bail
The Juvenile Justice Care and Protection Act read with
Chapter 5 of the Cr.P.C further emphasizes
the following rights :
Medical examination
Right to legal aid
No custodial torture
Justice in the interest of child
Rights of the arrestee also includes certain duties of
the police officers. Let us now look into these duties and rights in the
following Sections:
Arrests made under S.47:
What can be done when an offender escapes from arrest
and hides in any property ?
police officer should be allowed free ingress thereto,
and afford all reasonable facilities for a search therein.
What happens when such ingress may not made ?
Police officer can
break open any outer or inner door or window of any house or place,
What happens when such place is an apartment and in
occupancy of a woman including Pardanashin woman ?
She should be allowed to withdraw and police may then
break open the apartment and enter it.
What happens when the police or any other person
empowered with a duty to arrest the offender, is detained in a place
Any police officer or other person authorised to make
an arrest may break open any outer or inner door or window of any house.
When can search be made of arrested persons ?
Section 51 discusses about Search of arrested persons
and it says as follows:
Whenever a person is arrested by a police officer under
a warrant which does not provide for the taking of bail, or under a warrant which provides for the
taking of bail but the person Arrested cannot furnish bail, and whenever a
person is arrested without warrant, or by a private person under a warrant, and
cannot legally be admitted to bail, or is unable to furnish bail search can be
made
It further says,
The officer making the arrests or, when the arrest is
made by a private person, the police officer to whom he makes over the person
arrested, may search such person, and place in safe custody all articles, other
than necessary wearing-apparel, found upon him and where any article is seized
from the arrested person, a receipt showing the articles taken in possession by
the police officer shall be given to such person.
What happens when a female offender needs to be
searched ?
Whenever it is necessary to cause a female to be
searched, the search shall be made by another female with strict regard to
decency.
There are also several duties of police officers to
ensure rights of the arrested persons who is making the arrest. These are as
follows:
ü
Section
49 (No unnecessary restraint) :The person arrested shall not be subjected to
more restraint than is necessary to prevent his escape.
ü
Section
50( Person arrested to be informed of grounds of arrest and of right to bail):
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. 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.
ü
Section
50A Obligation of person making arrest to inform about the arrest to inform
about the arrest, etc., to a nominated person:
Every police
officer or other person making any arrest under this Code shall forthwith give
the 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
disclosed or nominated by the arrested person for the purpose of giving such
information.
The police
officer shall inform the arrested person of his rights under subsection (1) as
soon as he is brought to the police station.
An entry of
the fact as to who has been informed of the arrest of such person shall be made
in a book to be kept in the police station in such form as may be prescribed in
this behalf by the State Government.
It
shall be the duty of the Magistrate before whom such arrested person is
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.
ü
Section
55A – Health and safety of arrested person: It shall be the duty of the person
having the custody of an accused to take reasonable care of the health and
safety of the accused.
ü Duties of police officer to ensure medical test of the
arrested persons under specific circumstances:
ü
Section
53 – Examination of accused by medical practitioner at the request of police
officer: When a person is arrested on a charge of committing an offence of such
a nature and alleged to have been committed under such circumstances that there
are reasonable grounds for believing that an examination of his person will
afford evidence as to the commission of an offence, it shall be lawful for a
registered medical practitioner, acting at the request of a police officer not
below the rank of sub-inspector, and for any person acting in good faith in his
aid and under his direction, to make such an examination of the person arrested
as is reasonable necessary in order to ascertain the facts which may afford
such evidence, and to use such force as is reasonably necessary for that
purpose.
Whenever the person of a female is to be examined
under this section, the examination shall be made only by, or under the
supervision of, a female registered medical practitioner.
ü
Section
53A – Examination of person accused of rape by medical practitioner
When a person is arrested on a charge of committing an
offence of rape or an attempt to commit rape and there are reasonable grounds
for believing that an examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a registered medical
practitioner employed in a hospital run by the Government or by a local authority
and in the absence of such a practitioner within the radius of sixteen
kilometers from the place where the offence has been committed by any other
registered medical practitioner, acting at the request of a police officer not
below the rank of a sub-inspector, and for any person acting in good faith in
his aid and under his direction, to make such an examination of the arrested
person and to use such force as is reasonably necessary for that purpose.
The registered medical practitioner conducting such
examination shall, without delay, examine such person and prepare a report of
his examination giving the following particulars, namely-
the name and address of the accused and of the person
by whom he was brought,
the age of the accused,
marks of injury, if any, on the person of the accused,
the description of material taken from the person of
the accused for DNA profiling, and”.
other material particulars in reasonable detail.
The report shall state precisely the reasons for each
conclusion arrived at.
The exact time of commencement and completion of the
examination shall also be noted in the report.
The registered medical practitioner shall, without
delay, forward the report of the investigating officer, who shall forward it to
the Magistrate referred to in section 173 as part of the documents referred to
in clause (a) of Sub-Section (5) of that section.
ü Medical examination in other cases
ü
Section
54 – Examination of arrested person by medical officer
When any person is arrested, he shall be examined by a
medical officer in the service of Central or State Government, and in case the
medical officer is not available, by a registered medical practitioner soon
after the arrest is made;
The medical officer or a registered medical
practitioner so examining the arrested person shall prepare the record of such
examination, mentioning therein any injuries or marks of violence upon the
person arrested, and the approximate time when such injuries or marks may have
been inflicted.
Where an examination is made under sub-section (1), a
copy of the report of such examination shall be furnished by the medical
officer or registered medical practitioner, as the case may be, to the arrested
person or the person nominated by such arrested person.
Provided that where the arrested person is a female,
the examination of the body shall be made only by or under the supervision of a
female medical officer, and in case the female medical officer is not
available, by a female registered medical practitioner.
ü Other essential duties of police officer towards
arrested person
ü Immediate production of the arrested person before magistrate
:
ü
S.56–
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.
ü No detention beyond 24 hours :
ü
Section
57 – 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.
Reporting about apprehension, bail etc to Executive
magistrates
ü
Section
58 – Police to report apprehensions: Officers in charge of police stations
shall report to the District Magistrate, or, if he so directs, to the
Sub-divisional Magistrate, the cases of all persons arrested without warrant,
within the limits of their respective stations, whether such persons have been
admitted to bail or otherwise
ü How to ensure identity of the arrested person?
ü
Section
54A – Identification of person arrested
Where a person is arrested on a charge of committing
an offence and his identification by any other person or persons is considered
necessary for the purpose of investigation of such offence, the Court, having
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.
Provided that, if the person identifying the person
arrested is mentally or physically disabled, such process of identification
shall take place under the supervision of a Judicial Magistrate who shall take
appropriate steps to ensure that such person identifies the person arrested using
methods that person is comfortable with. The identification process shall be
video graphed
ü Specific obligations under the Criminal Procedure Code
for arrest:
Please don't violate the copyright of this blog. Please cite it as Halder Debarati (2020). Rights of the arrested persons under Criminal Procedure Code : Simplified understanding . Published on 11-05-2020 @ https://victimologybydebarati.blogspot.com/2020/05/rights-of-arrested-persons-under.html
