Provision of the day: what is an arrest and what are the rights of an arrested person.

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Provision of the day: what is an arrest and what are the rights of an arrested person.

Introduction & analysis

The code of criminal procedure doesn’t specifically define the term arrest. The term arrest merely means a seizure of forcible restraint, it is an exercise of the power to make a person deprived of his/her liberty by the legal authority in response to a criminal charge. The major purpose of arresting a person is to bring that person before the court. An arrest serves as a function of notifying the community about a person being arrested and has been accused of a crime and has been deterred from committing other crimes. Arrest means curtailment of personal liberty and preventing the free movement by applying authority under law.

Elements of an arrest

There must be a detention of the person.
There must be an intent to arrest under legal authority.
The act of arrest must include the actual confining of the person and must not be an oral declaration of arrest.

Who can arrest

Section 36 of Crpc states that A superior officer can conduct an arrest.
Section 42(2) and 157 of Crpc states that an officer-in-charge of a police station can conduct an arrest.
Section 43 of Crpc states that a private individual can conduct an arrest of another person when that individual is determined to be an offender.
Section 44 of Crpc states that a magistrate whether executive or judicial can conduct an arrest.
Section 130 and 131 of Crpc states that a military officer can arrest.
Section 42,42,151 of Crpc states that a police officer may arrest without warrant but only in certain conditions, which are as follows :-

The person who has committed any cognizable offence such as rape, murder etc.
The person who has been in possession of any stolen property.
The person who has been claimed as an offender under provisions of crpc or by orders of the state government.
The person who obstructs a police officer while performing his duty
The person who tries to escape from lawful custody or tries to escape from lawful custody

There are two types of rights available to the arrested person- one are the rights at the time of an arrest and other are the rights at the time of the trial.

Rights at the time of an arrest :-

Article 20(3) of the constitution of India guarantees every person the right against self incrimination and no person who has been accused of an offence shall be compelled to act as a witness against himself and it cannot be concluded that the person who’s quiet is guilty of any conduct merely because he was not answering the questions asked.

2. Right to know the grounds of his arrest.

Section 50(1) of Crpc states that every police officer or any other person making an arrest should communicate full information to the arrested person.

3. Right to be produced before the magistrate within 24 hours of arrest.

Section 56 of Crpc states that the arrested person should be taken to the magistrate without any delay.

CASES

4. Right not to be detained beyond 24 hours.

Section 57 of Crpc states that the arrested person shall be brought before court without any delay and the delay should not in any case exceed 24 hours exclusive of the time which is necessary for the journey from the place of arrest to the magistrates court.

5. Right to communicate the information of arrest to relatives, friends or any well wishers.

This case involved the order which was imposed by the magistrate for two months and then after every two months the commissioner used to issue the same order. And in this case the repetition of such order was challenged and the court held “ the parliament never intended the life of an order under section 144 of the code to remain in force beyond two months and the magistrate doesn’t hold the power to contemplate repetitive orders and if such orders are made it would clearly result into the abuse of powers so conferred.”

5. Right to communicate the information of arrest to relatives, friends or any well wishers.

6. Right to be informed about his right to be released on bail.

Right at the time of trial :-

1. Right to be produced before a registered medical officer for treatment and checkup.

Section 54 of Crpc states that the arrested person can ask for his examination by the medical practitioner when he thinks that such examination would give birth to such evidence which will lead to disprove the offence which he has been accused of.

2. Right to be defended through counsel.

Section 50(3) of Crpc states that the arrested person has the right to be defended by the pleader of his choice.

3. Right to speedy trial

The supreme court has made it mandatory in the case of khatoon that investigation in the trial must be conducted as quickly as possible.

4. Right to a fair trial

Article 14 of the Indian constitution talks about the right to equality and for that the proceedings of the case it must be fair and must be in open court so as to avoid secret designing.

Case laws

R.R chari v. State of uttar pradesh

In this case the apex court defined arrest as an act of being taken into custody and being charged with a crime. It also added that arrest means seizure of a person.

Swami Hariharanand saraswati v. Jailer I/C dist. Varanasi (1954)

In this case the apex court said that the arrested person must be produced before the magistrate within 24 hours otherwise his detention would be called illegal

Joginder kumar v. State of UP (1999 AIR 1349)

In this case the apex court held that there must be a justifiable reason to arrest a person and not merely because it is lawful to do so.

Conclusion

There’s an immediate need to bring changes in the criminal justice administration so that the powers given to the police are not misused and the state should start recognising its primary duty to punish only the wrongdoer and giving justice to the innocent. It is the duty of the police to protect the rights of the society which also includes the arrested people and for that it is the duty of the police to make sure that the handcuffs aren’t used unnecessarily and the accused is not harassed until proven guilty.