Wednesday, 8 March 2017

Rajat Malhotra

Rights of an arrested person

lawji-rights of an arrested person

One of the fundamental Right of our system is that the advantage of the presumption of innocence of the accused until he's found guilty at the top of an effort on legal proof. in a very democratic society even the rights of the accused are inviolable, though accused of an offence, he doesn't become a non-person. Rights of the accused include the rights of the defendant at the time of arrest, at the time of search and seizure, throughout the method of trial and also the like.

In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it absolutely was afore mentioned that the constitutional law, Evidentiary and procedural law have created elaborate provisions for safeguarding the rights of accused with the read to safeguard his (accused) dignity as a human being and giving him edges of a simply, honest and impartial trail. But in another leading case of Meneka Gandhi v. Union of india it was understood that the procedure adopted by the state should, therefore, be just, honest and reasonable.

Rights of Arrested Persons under ordinary laws:

Clauses (1) and (2) of Art. 22 guarantee four rights on a person who is arrested for any offence under an ordinary law-

a)  The right to be informed ‘as soon as may be’ on ground of arrest,

b)  The right to consult and to be represented by a council/ lawyer of his will,

c)  The right to be produced before a nearby Magistrate within 24 hours,

d)  The freedom from custody beyond the said period except by the order of the Magistrate.

e)  Information regarding the right to be released on bail,

f)  Right of the accused to produce an evidence

These fundamental rights guaranteed to arrested persons by clauses (1) and (2) of article 22 are available to both citizen and non-citizens and not to persons arrested nd detained under any law providing for preventive detention.

a) The rights to be informed the grounds of arrest-

It is necessary to enable the arrested person to know the grounds of his arrest to prepare for his defense. Article 22 is in the nature of a directive to the arresting authorities to disclose the grounds of arrest of the accused immediately. The words used in Article 22 (1) are ‘as soon as maybe’ which means as nearly as is reasonable in the situation of a particular case.[1] If the grounds of arrest delayed it must be justify by ‘reasonable circumstances’. This right of being informed on the grounds of arrest is not dispensed with by offering to make bail to the arrested person.[2]

In joginder kumar v. State of UP [3], The supreme court has laid down guidelines governing arrest of a person during an investigation. This is intended to strike a balance between the needs of police on one hand and protecting the human rights of citizen from operation in justice at the hands of law enforcing agencies.

b) The right to consult and to be represented by a council/ lawyer of his will-

One of the fundamental rights within the constitution of India is the right to counsel. This right typically provides that anyone who is accused of a crime has the right to receive legal aid from the lawyer. The right to counsel is also found in numerous international, regional, similarly as domestic legal authorities.

In hussainara khatoon v. home secretary, Bihar,[4] the Supreme court has held that it is the constitution of India gives right of every accused person who is unable to engage a lawyer and secure legal service s on account of reasons such as property, indigence or incommunicado situation, to have free legal services provided to him by the state and the state is under the duty to provide a council/ lawyer to such person if the needs of justice so require. If free legal aid is not provided, the trial itself may be vitiated as contravening article 21 of the constitution of India.

c) The right to be produced before a nearby Magistrate within 24 hours-

Whether the arrest is formed without warrant by a officer, or whether or not the arrest is formed underneath a warrant by someone, the person upholding the arrest should bring the accused before a judicial officer without unnecessary delay. It’s conjointly on condition that the arrested person shouldn't be confined in anywhere aside from a police office before he's taken to the jurist. These matters are provided in cr.P.C under section 56 and 76.

d) Information regarding the right to be released on bail-

Section 50(2) Cr.P.C. means that “where a police officer arrests without warrant any person other than a person accused of a non- bail able offence, he should inform the person arrested that he is entitled to be released in bail that he may arrange for the confidence on his behalf.” This will certainly be of help to persons who may not know about their rights to be released on bail in case of bail able offences. As a consequence, this provision may in some small measures, improvise the relations of people with the police and reduce discontent against them.

e) Right Of The Accused To Produce An Evidence-

The accused even has right to provide witness in his defense just in case of police report or private defence. once the Examination and cross examination of all prosecution witness i.e. after the completion of the prosecution side the accused shall be referred to as upon to get his defence and any written statement put in shall be crammed with the record. He could even call further for cross examination. The judge shall continue recording the proof of prosecution witness until the prosecution closes its proof.

The accused so as to check the truthfulness of the testimonial of a prosecution witness has the proper to cross-examine him. Section 138 of Indian evidence Act, 1872 offers accused has a right to confront solely witnesses. This right ensures that the accused has the chance for interrogation of the adverse witness. Section 33 of Indian evidence Act tells when witness is inaccessible at trial, a testimonial statement of the witness perhaps dispensed by issuing commission. The testimony at a formal trial is one example of previous testimonial statements which might be used as documentary proof during a later trial.

f) Right to be produce before magistrate-

The arrested person has a right to be produced before the magistrate within 24 hours of his arrest. It can be extended beyond 24 hours only under the judicial custody. It affords the possibility, if not an opportunity, for immediate release in case the arrest is not justified.

[1] Tarapada dev v. State of west Bengal, AIR 1951 SC 174

[2] State of MP v. Shobharam , AIR 1966 SC 1910.

[3] (1994) 4 SSC 260

[4] AIR 1979 SC 1377