Wednesday, 30 August 2017

Shradha Arora

Rights of an Arrested person in India

Rights of an Arrested person

One of the basic principles on which the Indian Legal System is based on the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence. This principle embodied in the Indian Legal System offers certain rights which are available to the person who is accused of committing a crime. The provisions related to such rights are found in The Indian Constitution, 1950 and The Code of Criminal Procedure, 1908. These rights found in the stated statutes clearly reflect the intention of the legislature that hundreds of guilty persons may got scot free but even one innocent should not be punished.

The rights available under the Constitution of India, 1950
 
1. Protection against Ex Post Facto Law: An ex post facto law as laid down under Clause (1) of Article 20 of the Indian Constitution says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 11, para 2 of the Universal Declaration of Human Rights, 1948 provides freedom from ex-post facto laws.
 
2. Doctrine of “autrefois acquit” and “autrefois convict: This doctrine has been laid down under Article 20 (2) of the Indian Constitution and Section 300 of the Code of Criminal Procedure, 1908. According to this doctrine an accused cannot be punished/convicted for the same crime again. This is called as Right against double jeopardy.

3. Prohibition against self incrimination: Article 20 (3) of the Indian Constitution lays down that no person can be forced to be a witness is his own case. Article 20(3) embodies the general principles of English and American jurisprudence that no one shall be compelled to give testimony which may expose him to prosecution for crime.

4.Right to be produced before the Magistrate: As per Article 22 of the Indian Constitution, Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for such journey from the place of arrest to the court of magistrate and no person shall be detained in custody beyond the said period without the authority of the magistrate.

5.Right to Silence:
The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. The Justice Malimath Committee writes about the origin of the right to silence that “it was essentially the right to refuse to answer and incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.”

Rights available under The Code of Criminal Procedure, 1908


1. Right to a copy of Police Report and other documents As per Section 207 of the Code of Criminal Procedure, 1908, an accused has the right to be furnished with the FIR, the Police Report (Section 154) , the recorded statements (Section 161) and any other cofessions. (Section 164)

2. Right to be discharged when no sufficient ground:
As per Section 227 of the Code of Criminal Procedure, 1908 in case the judge is of the opinion there exists no sufficient ground for arrest, the accused has a right to be discharged.

3.Right to present evidence: According to the provision laid down under Section 243 (1), the accused has the right to present evidence and defend himself in the case against him.

4. Right to be defended: The accused has the right to be defended as laid down under Section 303 of the Code of Criminal Procedure 1908 along with Article 22 of The Constitution of India, 1950.

5.Right to be present when the evidence is taken: As per the provision laid down under Section 273 of the Code of Criminal Procedure, 1908 the accused has the right to be present and this is obligatory upon the Magistrate.

6.Legal Aid by State in certain cases:
In Khatri v. State of Bihar, the Supreme Court has held that the state is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time.

Conclusion
The above list makes it clear that the Indian Legal System offers a variety of rights for the protection of the accused. However, it is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the in the Constitution, the power of arrest given to the police is being misused till this day. It is also believed that the police often use their position of power to threaten the arrested persons and take advantage of their office to extort money. There have also been innumerable reports on custodial violence that lead many to believe that deprivation of basic rights of the arrested persons has become commonplace nowadays.