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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

RIGHTS OF AN ARRESTED PERSON

Jigyasa Joshi, Vivekananda Institute of Professional Studies

INTRODUCTION

To procure the attendance of the accused at his trial the Code contemplates two methods, i.e.,
either by issuing a summons to him or by his arrest and detention. The Judicial Officer has
been given the discretioni, subject to the provisions of the Code, to opt from either of the
methods on the information generally obtained from the police or complainant. However,
issuing of summons shall be the first recourse or preference, the Magistrate may issue a
warrant, if he thinks fit by explaining his reasons in writing. Absconding of accused or
intentional omission to attend the court are probable consequences of issuing the summons.
Hence, S. 174 of Indian Penal Code, 1860 penalise the disobedience of summons with the
punishment of 6 months or with fine upto Rs. 1,000 or with both. The most effective method
of securing the presence of the accused is issuing the warrant of arrest. Arrest is also necessary
in the following cases:

1. In the case of a person who has made attempts or has escaped the lawful custody or a
person who obstructs a police officer from executing his duty. 2

2. It appears to the police officer that arrest is the only way to prevent the commission of
the crime from the design of the crime. 3

3. When the person refuses to give his name or address or has reason to believe the
information is false in case he has given them and after ascertaining them, he shall be
released on bond, with or without security. 4

4. In the case of a habitual offender or person found under suspicious circumstances.

'S. 204(1) read along with S. 87 of the Criminal Procedure Code, 1973.
2 S. 41(e) of the Criminal Procedure Code, 1973.
3 S. 151(1) of the Criminal Procedure Code, 1973. However, he cannot be detained for more than 24 hours on
this ground according to sub- section (2) of S. 151.
a S. 42(1) and (2) of the Criminal Procedure Code, 1973. If a police officer is unable to ascertain the details or
the accused cannot execute a bond, he shall be presented before the Judicial Magistrate.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

Arrest is the apprehension or restraint on the liberty of a person by someone authorised to do

so. Authorised persons are Police and governmental authorities like Directorate of Revenue
Intelligence, Directorate of Enforcement, Coast Guard, CRPF, BSF, CISF, State Armed Police,
Intelligence Agencies like the Intelligence Bureau, R.A.W., CBI, CID, Tariff Police, Mounted
Police and ITBP. Arrest under the Code can be divided into two categories of arrest made in
pursuance of a warrant issued by a Magistrate and the arrest made without such warrant but
made in accordance with some legal provision permitting such arrest. 5 Police officers, Judicial

Magistrate6 or private citizens in case of emergencies have the discretion to make an arrest in
the latter scenario. However, in Binoy Jacob v. CBI8 The Delhi High Court has held that
discretion of the Investigating agencies to arrest does not mean whim, fancy or wholly arbitrary
exercise of discretion. Actual touching or confinement of the body of the person to be arrested
must be done by the police officer or any such person making the arrest unless the person
submits himself to the police officer either by action or words. 9 However, in case of a woman
being arrested only a female police officer shall touch her.10 She must not be arrested after
sunset and before sunrise unless in exceptional circumstances in which the woman police
officer shall obtain prior permission of the Judicial Magistrate of first class within whose local
jurisdiction the offence is committed or the arrest is to be made."1 If such person forcibly resist
or attempts to evade then necessary means must be used to effect the arrest. 12 subject to sub-
section 3 to S. 46 of Cr.P.C. which clearly mentions that such persons do not have the right to
cause death of a person who is not accused of an offence punishable with death or with
imprisonment for life. While arresting a person the police authority shall not use more force
than necessary to stop the person from escaping.13

The police authority commits custodial violence rampantly as the means for moving forward
during investigation is a known fact which has also been recognised by the Indian judiciary as
the statement given to the police officer in custody is not admissible as a confession and any

5
R.V. Kelkar, R.V. Kelkar's Criminal Procedure Pg 49 Sixth Edition (2014).
e S. 44 of Cr.P.C.
7 S. 43 of Cr.P.C.
8 (1993) Cri LJ 1293 (Del).
9 S. 46(1) of Cr.P.C.
0 Proviso to S. 46(1) of Cr.P.C.
" S. 46(4) of Cr.P.C.
12 S. 46(2) of Cr.P.C.
13 S. 49 of Cr.P.C.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

fact discovered by the statement given by such person must be proved in the court of law. 14
Number of unnatural deaths in prisons has increased by 10.74% and among the 165 un-natural
deaths of inmates, 116 inmates have committed suicide, 20 died in accidents, 10 were murdered
by inmates, 1 inmate died due to assault by outside elements during 2019 and the cause of the
death is yet to be known for 66 inmate deaths. 5 In 2020, the NHRC also recorded 1,569 deaths
in judicial custody across the country. The NCAT recorded at least 18 deaths in prison custody
as a result of torture, 51 cases of deaths due to alleged denial of timely and appropriate medical
treatment to the prisoners and 34 cases of suicide in prisons. 16 On 17 September 2020, the
Ministry of Home Affairs informed the Lok Sabha that 113 persons died in police custody from
1 April 2019 to 31 March 2020 but the NCAT recorded deaths of 111 persons in police custody
in 2020 despite India having one of the strictest lockdowns in the world for months. On June
23, another man was beaten to death by the police for violating lockdown norms in Tamil Nadu.
Around ten days ago, three members of a family charged with theft committed suicide after
alleged police torture in Goa. A Muslim youth named Junaid died after being allegedly beaten
up in police custody a couple of weeks ago in Nuh district, Haryana."7 It invokes Article 21 of
the Constitution of India in which the expression "right to life and personal liberty" includes
the right to live with human dignity, thus including within itself a guarantee against torture and
assault by the State or its functionaries. 18 Any form of torture or cruel, inhuman or degrading
treatment falls within the inhibition of Article 21, whether it occurs during investigation,
interrogation or otherwise. 19 Except in the manner permitted by law the constitutional right
cannot be abridged.

RIGHTS OF AN ARRESTED PERSON

The latin maxims salus populi est suprema lex (safety of people is the supreme law) and
salus reipublicae est suprema lex (safety of the state is the supreme law) co-exist and lie at

the heart of the doctrine that the welfare of an individual must yield to that of the community.
The action of the State, however, must be "right, just and fair". Using any form of torture for
extracting any kind of information would neither be 'right nor just nor fair' and

14 S. 25, 26 and 27 of The Indian Evidence Act, 1872.

1s Prison Statistics India-2019, National Crime Records Bureau, Ministry of Home Affairs.

'6 National Campaign Against Torture (NCAT), India Torture Report 2020, Pg no. 8, (2021).
17 Navjeet Punia, Sathankulam deaths: A year on, scourge of custodial violence in India remains unabated,
National Herald (12 July, 2021 9:00 IS.T.)
18 Gyanesh Rai And Another vs State Of U.P. And 9 Ors (2015).
19 Ibid.

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impermissible. 20 It is violative of Article 21. A crime-suspect must be interrogated and indeed

be subjected to sustained and scientific interrogation determined in accordance with the
provisions of law. However, he cannot be tortured or subjected to third degree methods with a
view to elicit information, extract confession or drive knowledge about his accomplices,
weapons etc.

Arrest commences with the restraint placed on the liberty of the accused and not with the time
of arrest recorded by the arresting officer.2 1 Arrest should be made after reaching a reasonable
satisfaction after some investigation about the genuineness and bonafides of a complaint and a
reasonable belief, both as to the person's complicity and the need to effect arrest, not because
it is lawful for a police officer to do so.22

For balancing the protection of societal interest and individual liberty, an arrested person must
have certain rights which are as follows:

RIGHT TO KNOW THE GROUNDS OF ARREST

Irrespective of being a case of arrest with or without warrant, the grounds of arrest should be
informed without delay. 23

In case of arrest without warrant, the arrested person has the right to be informed of the grounds
of arrest or communication of full particulars of the offence. 24 Apart from police officer, the
subordinate officer authorized by senior officer 25 also has the duty to notify the person to be
arrested about the substance of the written order specifying the offence or other reasons of
arrest. The arrest evinces to be illegal on non-compliance with this provision 26
.

In case of arrest with warrant, the person executing the warrant shall notify the substance of
the warrant or if necessary show them 27 . The arrest renders to be unlawful if the content is not

20 VIII th International Symposium on Torture - speech by hon'ble Dr. Justice A.S. Anand, (then) Chief Justice
of India (1999) 7 SCC (Jour) 10
21 Ashak Hussain Allah Delha v. Collector of Customs (1990) Cri Lj 2201 (Bom).

22 Joginder Kumar v. State (1994) (4) SCC 260.

3 S. 58 of Cr.P.C.
24 S. 50(1) of Cr.P.C.
2s u/s. 55 of Cr.P.C.

26 Ajit Kumar v. State of Assam (1976) Cri LJ 1303 (Gau).

27 S. 75 of Cr.P.C.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

notified 28

.
It is a constitutionally protected 29 right and has been regarded as fundamental and vital for the
safeguard of personal liberty in all legal systems where the rule of law prevails. 30
Communication of the grounds of arrest must be done in the language understood by them;
otherwise it would not amount to sufficient compliance with the constitutional requirement.3 1

The arresting authority must 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. 32

RIGHT TO BE INFORMED OF BAIL

In case of arrest without warrant of a person other than the accused of non-bailable offence the
police officer has the duty to inform such person that he is entitled to be released on bail and
may arrange sureties on his behalf.33 The persons unknown of the fact that being released on
bail in bailable offence is a matter of right are certainly benefited from this provision.

RIGHT TO BE TAKEN BEFORE A MAGISTRATE WITHOUT DELAY

Whether the arrest is made with warrant 34 or without warrant3 5 the police officer or any other
person making the arrest shall produce the arrested person before the magistrate or officer in
charge of a police station 36
.

RIGHT OF NOT BEING DETAINED FOR MORE THAN 24 HOURS WITHOUT

JUDICIAL SCRUTINY

In absence of a special order of magistrate u/s. 167 in case of arrest without warrant37 or in case
of arrest with a warrant3 8 arrested persons cannot be detained in custody for a period more than

28 Satish Chandra Rai v. Jodu Nandan Singh, ILR (1899) 26 Cal 748.
29 Art. 22 of the Constitution of
India.
30 Madhu Limaye, re, (1969) I SCC 292: 1969
Cri LJ 1440.
3' Harikisan v. State of Maharashtra, (1962) I Cri LJ 797: AIR 1962 SC 911, 914.
2 S. 50A of Cr.P.C.

3 S. 50(2) of Cr.P.C.
a S. 56 of Cr.P.C. subject to the provisions of bail.
3s S. 76 of Cr.P.C. subject to the provisions of s. 71.
e Ibid. at footnote 11.
3 S. 57 of Cr.P.C.
38 Proviso to s. 76.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

24 hours excluding the time necessary for the journey from the place of arrest to the court. 39

It has been recognised as a fundamental right 40 Therefore compliance must be observed

scrupulously by the magistrate. The right has been created with the view to prevent arrest and
detention for the purpose of extraction of confessions or as a means of compelling people to
give information; to prevent the police station from being used as a prison; to afford an early
recourse to a judicial officer independent of the police on all questions of bail or discharge. 4 1

Failure in production of of the arrested person before magistrate within 24 hours holds him
liable of wrongful detention 42 and arrested person must be released 43 . Illegal detention may
entail award of compensation by the court. 44

RIGHT TO CONSULT A LEGAL PRACTITIONER

Consultation and defence by a legal practitioner of ones choice cannot be denied 45 and begins
at the moment of their arrest 4 6
.

The spirit and sense of Art. 22 (1) is that it is fundamental to the rule of law that the services
of a lawyer shall be available for consultation to any accused person under circumstances of
near-custodial interrogation. 47 Moreover, the observance of the right against self-incrimination
is best promoted by conceding to the accused the right to consult a legal practitioner of his
choice. 48 Right to a lawyer/legal aid to suspects arises before questioning, when they become
aware that they are the subject of investigation, and are in custodial settings. 49

The state is under constitutional mandate to provide free legal aid 50 to the indigent arrested

39 Art. 22(2) of the Constitution of India.

40 Ibid.

41 Mohd. Suleman v. King Emperor, (1925-26) 30 CWN 985, 987 (FB) (per Rankin J).
42 Sharifbai v. Abdul Razak, AIR (1961) Bom 42.
43 Ibid. at footnote 16.
as DG and IG of Police v. Prem Sagar (1999).
4s Art. 22(1) of the Constitution of India.
46 Llewelyn Evans, re, (1926).
47 Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners,
developed in consultation with the Open Society Justice Initiative by United Nations Office on Drugs and
Crime, February 2014.
48
Nandini Sathpaty v P.L Dani 2 AIR 1978 SC 1025.
a9 Paramhansa Jadab v State AIR 1964 Ori 144.
so Hussainara Khatoon v. State of Bihar, (1980) I SCC 98: 1980 SCC (Cri) 40, 45: 1979 Cri LJ 1045.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

persons from the initial production of such persons before the magistrate. 1 unless refused,
failure to provide legal aid would vitiate the trial.s2

A prompt legal assistance by lawyer at the time a person is arrested by the police may
provide 3 :-

a. Assistance to understand why he has been arrested.

b. Protection against intimidation, ill-treatment and torture.

c. Assistance to understand and navigate the criminal justice process.

d. Actualization of procedural rights.

e. Ensuring bail in Bailable offences at the police station itself.

RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER.

On the request of the Police officer5 4 or as an obligation the arrested person has the right to
be medically examined by a registered medical practitioner. A female can be examined by a
female medical practitioner only. 56 The magistrate must inform the arrested accused person
about the right to be medically examined in terms of s.54.s5

PREVENTIVE MEASURES

In addition to the statutory and constitutional requirements, the Supreme Court has laid down
the following requirements in D.K. BASU V. STATE OF WEST BENGALs8 which shall be
adhered to in all the cases of arrest or detention till legal provisions are made regarding them:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designation

si Khatri v. State of Bihar, (1981) I SCC 627,632: 1981 SCC (Cri) 228: 1981 Cri LJ 470.
s2 Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401:1986 SCC (Cri) 166: 1986 Cri LJ 1084.
s3 LEGAL SERVICES: A Comprehensive Compilation of Act, Rules, Regulations, Schemes, Guidelines
Standard Operating Procedures, Campaigns and Formats related to Legal Services, Manualjharkhand State
Legal Services Authority.
s4 S. 53(1) of Cr.P.C. with the view to facilitate investigation.
ss S. 54(1) of Cr.P.C. with the view to prove himself innocent or that he was subjected to physical injury.
se S. 53(2) and 54(1) of Cr.P.C.
s' Sheela Barse v. State of Maharashtra (1983) 2 SCC 96.
58 1997.
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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

which must be recorded in a register.

(2) A 'memo of arrest' shall be prepared by the police officer carrying out the arrest at the
time of arrest and must be attested by at least one witness who may either be a family member
of the arrestee or a respectable person of the locality from where the arrest is made. It shall be
counter signed by the arrestee. It must contain the time and date of arrest.

(3) The arrestee must be made aware of the right to have someone informed of his arrest or
detention as soon as he is put under arrest or is detained.

(4) A person 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 that he has been arrested and about his place of detention, as
soon as practicable. If the attesting witness of the memo of arrest is himself then this
requirement is not mandatory.

(5) Within 8-12 hours of the arrest, place of arrest and venue of custody of an arrestee shall be
notified, telegraphically, by the police through Legal Aid Organisation in the district and the
police station of the area concerned to the next friend or relative of the arrestee if they live
outside the district or town.

(6) At the place of detention an entry must be made in the diary regarding the arrest which
shall disclose the name of the next friend of the person who has been informed of the arrest
and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should be examined at the time of his arrest on his requests. Any major or
minor injuries present on their body must be recorded at that time. The "Inspection Memo"
must be signed by the arrestee and the police officer effecting the arrest. Its copy must be
provided to the arrestee.

(8) The arrestee should be medically examined every 48 hours during his detention in custody
by a trained doctor on the panel of approved doctors appointed by the Director of Health
Services of the state or union territory. The Director of 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, should be sent to the illaqa
Magistrate for his record.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

(10) During interrogation the arrestee may be permitted to meet his lawyer.

(11) A police control room where information regarding the arrest and the place of custody of
the arrestee shall be communicated within 12 hours of effecting the arrest by the officer causing
the arrest, should be provided at all district and state headquarters. The information regarding
the arrest should be displayed on a notice board.

Failure to comply with these requirements shall render the concerned official liable for
departmental action and contempt of court, the proceedings for which may be instituted in any
High Court having territorial jurisdiction over the matter. The requirements flow from Art. 21
and 22(1) of the Constitution hence must be strictly followed and would apply with equal force
to the other governmental agencies also. Other directions given by the courts from time to time
in connection with the safeguarding of the rights and dignity of the arrestee do not trivalize
these requirements.

MONETARY COMPENSATION

"The right to compensation is some palliative for the unlawful acts of instrumentalities which
act in the name of public interest and which present for their protection the powers of the state
as shield."

- Rudul Sah v. State of Bihar and Another [1983] 3 S.C.R. 508.

In Smt. Nilabati Behera Alias Lalit ... v. State Of Orissa And Ors 59 Apex court held that 'The
award of compensation in a proceeding under Article 32 by this court or by the High Court
under Article 226 of the Constitution is a remedy available in public law, based on strict
liability for contravention of fundamental rights to which the principle of sovereign immunity
does not apply, even though it may be available as a defence in private law in an action based
on tort'.

Prosecution of the offender is an obligation of the State in case of every crime but the victim
of crime needs to be compensated monetarily also as it is a well accepted proposition in most
of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an
effective and sometimes perhaps the only suitable remedy for redressal of the established
infringement of the fundamental right to life of a citizen by the public servants and the state is

s9 1993 AIR 1960, 1993 SCR (2) 581.

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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

vicariously liable for their acts. 60 The court cannot stop by giving a mere declaration where the
infringement of the fundamental right is established. 6 1 It must proceed further and give
compensatory relief, not by way of damages as in a civil action but by way of compensation
under the public law jurisdiction for the wrong done; due to breach of public duty by the state
not protecting the fundamental right to life of the citizen. 62 This compensation shall be given
to the state by the offender.

PUNITIVE PROVISIONS

Some punitive provisions are contained in the Indian Penal Code which seek to punish
violation of the right to life which are as follows:

1. The officer or authority who detains or keeps a person in confinement with a corrupt
or malicious motive shall be punished with imprisonment upto 7 years or fine or both. 63

2. Wrongful confinement for the purpose of extorting confessions or any information

which may lead to detection of an offence or misconduct is punishable with
imprisonment upto 3 years and fine. 64

3. Similarly, Section 331 provides punishment of imprisonment upto 10 years and fine for
those who inflict injury or grievous hurt on a person to extort confession or information
regarding commission of an offence.

4. Torture during interrogation and investigation is punishable under I.P.C. 65

.

Section 29 of the police act, 1861 penalises any unwarrantable personal violence by the police
officer to any person in his custody with a penalty not exceeding pay of three months, or
imprisonment upto three months, with or without hard labour, or both.

CONCLUSION

To secure the presence of a person in the courtroom during the proceedings of the trial, a person

60 D.K. Basu v. State of West Bengal (1997).

6' Smt. Kamla Devi v. Government of Nct of Delhi and Anr., III (2004) ACC 335, 2005 ACJ 216, 114 (2004)
DLT 57, 2004 (76) DRJ 739.
e2 Ibid. at 60.
6 S. 220 of I.P.C.
e S. 348 of I.P.C.
s S. 330 of I.P.C.
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Indian Journal of Law and Legal Research Volume III Issue I ISSN: 2582-8878

is arrested. They are kept in custody so that the investigation can move forward and the arrestee
is interrogated for the same purpose for which the police takes recourses to methods like third
degree etc. This unbridled torture and deaths in the custody by the police is a serious issue in
the society due to the nature of the crime. The issue has been raised time and again by various
Think Tanks, courts of the country, N.G.O.s, and Law Commission of India, however, the
legislature has yet to perform its role. The Supreme Court of India has highighted various
provisions of I.P.C. and other Acts and set guidelines and principles through various decisions
that must be followed while arresting a person. The rights of an arrested person can be divided
into four broad categories:

1. Constitutional and statutory provisions

2. Preventive measures

3. Punitive measures

4. Monetary compensation.

SUGGESTIONS

Administration has not taken effective actions, the judiciary, however, has suggested different
methods or ways for effective implementation of the rights of an arrested person and curb the
problem of custodial violence through judgments:

1. Raghubir Singh v. State of Haryana 66 the Apex Court has held that "the State, at the
highest administrative and political levels, must organize special strategies to prevent
and punish brutality by police methodology. Otherwise, the credibility of the rule of
law in our Republic vis-a-vis the people of the country will deteriorate......"

2. Prakash Kapadia v. Commissioner of Police (Ahmedabad City) 67 the High Court of

Gujarat opined that CCTV cameras must be installed and asked for a response from the
state about the feasibility of its implementation. The state replied that it is in the interest
of everyone to install cameras and further submitted the progress in the work.

ee AIR 1980 Supreme Court 1087.

7 2014 SCC ONLINE GUJ 11365.

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3. Dr. Ashwini Kumar v. Union of India, Ministry of Home Affairs 68 the court held that
under the doctrine of separation of powers, co- existence of judicial review and judicial
restraint, the writ petition regarding directing parliament to formulate legislation based
on the United Nation Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment shall be rejected. Simultaneously, the court
referred to D.K. Basu v. State of West Bengal and Smt. Nilabati Behera Alias Lalit v.
State Of Orissa and Ors. to deal with custodial violence which depends on case to case.

For effective administration two factors must always be taken care of, viz., transparency and
accountability. However, it is easier said than done, a holistic approach is required for tackling
and for the reformation of an issue so deep-rooted, following are some suggestions regarding
the same:

1. Implementation of the 273rd Law Commission Report which recommended that

proceedings under criminal law must take place against the one who is accused of
committing custodial torture either policemen, military or paramilitary personnel, must
be done.

2. New scientific techniques for investigation must be introduced to lessen the burden on
Police Officers and help in investigating the cases authentically.

Following measures to keep a check on the abuse of the police power have been mentioned in
the judgment of D.K. Basu v. State of West Bengal:

1. Proper development of the work culture, training and orientation of police force
consistent with basic human values shall be given attention. Training methodology of
the police needs restructuring.

2. Efforts must be made to change the attitude, they should be made sensitive to the
constitutional ethos. The approach of the police personal handling investigations also
needs to be amended so that they do not resort to questionable forms of interrogation.

e8 (2019) 12 SCALE 125.

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3. The presence of the counsel of the arrestee at some point of time during the
interrogation may deter the police from using third degree methods during
interrogation.

13