YOUR RIGHTS AFTER AN ARREST: WHAT EVERY CITIZEN SHOULD KNOW

Every person has a right to be treated equally and as a human being irrespective of the fact that such person is a criminal. If a person is a criminal, the court even considers them as an innocent until proven guilty. This is a right of an accused person which is deemed to be inalienable even though he is charged with an offence.

Every person whether accused or not have a right which is called a 'personal liberty' and this right plays an important role in case a person is arrested. According to 'article 21' of the Indian constitution, there shall be no person who is deprived of his life or personal liberty except according to the procedure established by law. The police have a most important source of corruption which is arrest. But the Indian constitution has recognized several rights given to the arrested person. In layman language, a person who has broken a law is arrested. So the meaning of the term 'arrest' is that when a person when arrested lose some of their freedom and liberty. There is not a particular definition of the term arrest but there are some provisions within the Bhartiya Nagrik Suraksha Sanhita, 2023 which deals with arrest.

Rights of the Arrested Person

1. Grounds of Arrest: Right to be Informed

Right to be informed about the grounds on which such arrest is made is a fundamental right in the Indian constitution. According to 'article 22(2)' of the Indian constitution, no person who is arrested shall not be detained in custody without being informed of the grounds of such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. It is an important right for the arrested person as he may be an innocent. If an arrested person gets to know the grounds of his arrest then it enables him to apply for bail or for writ of habeas corpus.

As established in the case of Madhu Limaye vs. SDM Monghyr (1970), this right is protected under Sections 47(1), 55, 77 of BNSS and Article 22(2) of the Constitution of India.

2. Right to Remain Silent

When a person is arrested and interrogated by the police, he has a right to remain silent. He is not forced to answer each and every question asked to him during interrogation. The court or tribunal should also not consider him guilty just because he has not responded to the questions asked to him during interrogation. The juice Malimath committee is also of the opinion that a right to remain silent is a much needed right in the society where anyone can be held guilty of any charges. Also no person must be forcibly tortured by the police for any confession.

This right was upheld in the case of Nandini Sathpathy vs. PL Dani (1978) and is protected under Article 20(2) of the Constitution of India.

3. Right to be Taken Before a Magistrate Without Delay

Whether an arrest was made with or without warrant, the person making such an arrest is responsible to present the accused before the nearest magistrate within 24 hours of such arrest. These 24 hours must exclude the time taken for travelling from the place of arrest to the magistrate's court. The arrested person must not be confined in the police station only. This right has been introduced to stop the possibility of police officials from compelling an arrested person to give information.

As demonstrated in the case of State of Punjab v Ajaib Singh, this right is protected under Sections 57, 73, 78 of BNSS.

4. Right to Free Legal Aid

According to 'article 39A' of the Indian constitution, an accused person is facilitated with free legal aid in spite of the severity of the crime they have committed. This right does not activate only at the time of trial but exists at the time when the accused is produced before the magistrate for the first time. This is a 3-tier justice system in the totality present at every stage. It is the duty of all the magistrates and courts to inform the poor accused of his right to get free legal aid.

This right was established through landmark cases including Hussainara Khatoon vs. State of Bihar and M.H.Hoskote vs. State of Maharashtra, and is protected under Section 341 BNSS, Articles 21, and 39(A) of Constitution of India.

5. Right to be Examined by a Medical Practitioner

It is compulsory that the arrested person undergoes a medical examination by a medical officer in service of central or state government or by any registered medical practitioner. Also it is to be noted that the female arrestees can only be examined by female medical officer or a registered medical practitioner. This right also ensures if there was any torture by the powers of police that are given during interrogation or during custody.

As seen in the case of Anil Lohande v State of Maharashtra, this right is protected under Section 51 and 53 of BNSS.

6. Right to Consult a Legal Practitioner

Every arrested person has a right to consult and get defended by a legal practitioner of his own choice. This is a fundamental right enshrined within 'article 22(1)' of the Indian constitution which cannot be denied in any case. This right activates as soon as the person is arrested. The consultation with the lawyer maybe in the presence of a police officer but not within its hearing.

The case of Janardhan Reddy v State of Hyderabad exemplifies this right, which is protected under Sections 38, 47, 340 of BNSS and Article 22(1) of Constitution of India.

7. Right to be Released on Bail

When a person is arrested without a warrant and is not accused of a non bailable offence, then he has to be informed by the police officer about his right to be released on a bail on payment of the surety amount. A bail is granted by the court after taking into factors which includes nature or seriousness of the offence, the nature of evidence, etc.

This right, as established in Uday Mohanlal Acharya v. State of Maharashtra, is protected under Sections 47, 478, 480, 482 of BNSS.

8. Rights at Trial

The Indian judiciary system upholds a fair trial system enshrined in the Indian constitution as well as in the Bhartiya Nagrik Suraksha Sanhita, 2023. This right is inserted to make ensure that all the arrestees are treated fairly and equally during the trial irrespective of the fact that they are poor. In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused is arrested, the investigation for the trial has to be completed within the period of six months or stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.

This right has been upheld in cases such as Rattiaram v. Territory of Madhya Pradesh and Zahira Habibullah Sheik and Ors. v. Province of Gujarat and Ors, and is protected under Article 14 and 21 of Constitution of India. Blog by KHUSHI TAYAL

Fourth Year Law Student

Student of JIWAJI UNIVERSITY, GWALIOR