What Rights does an Arrested Person Possess?

What is an arrest?

When an individual/person does anything against the law, the authorities can arrest him. Arrest generally means restraint or deprivation of one's liberty. The Code of Criminal Procedure, 1973 (CrPC) deals with the arrest of a person (Section 41-60).

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What is the purpose of the arrest?

An arrest in India can be made by law-enforcement officers, including police officers, constables, magistrates, etc. There is a provision in the criminal code that even allows a private individual to arrest a proclaimed offender and any person committing a non-bailable and cognizable offense. However, any private individual making any arrest (valid under the law) must take the arrested person to a police officer or a judge required to take him/her into custody. The main purpose of arrest is to cash the alleged offender in order to ensure that he/she does not tamper with the evidence from the crime scene or otherwise, and so that he/she can be present at the trial for the crime for which he's being charged.

The procedure of arrest

Depending upon the offense, an arrest can be made with or without a warrant . An arrest can be made anytime once a warrant of arrest has been issued. The person making an arrest can touch or confine the body of the person to be arrested if such person does not submit to the custody through words or action. Resisting an arrest is also a crime in India and such a person can be charged with a misdemeanor along with the charges of the alleged crime for which he/she is charged. An arrest warrant should be in writing, signed by the presiding officer, and should also have the seal of the court. If a person's name is mentioned in an FIR , the police will be required to conduct a preliminary investigation and then arrest the person. Handcuffing, like before, is not mandatory. The police must also be wearing a clear identification of/her name. A memo of arrest shall also be prepared at time of arrest, which shall be countersigned by the arrested person and by attesting at least one witness.

What rights do you have if you are arrested?

The accused person has been given some rights, most of which have been found in the Constitution of India and the Code of Criminal Procedure.

1. Right to be informed of grounds of arrest which have been made. Section 50(1) of the Code of Criminal Procedure, 1973 (CrPC) and Article 22(1) of the Constitution of India enforce this right.

2. Right to inform the relatives/ friends - The police officer making an arrest has to immediately give the information regarding such arrest and the place where the arrested person is being held to any of his/her friends, relatives, or such other persons as may be disclosed or nominated by the arrested person, as per Section 50A of Cr.P.C .

3. It is also the duty of the police officer to inform the person arrested of his/her rights.

4. Right to be informed of the right to bail as per Section 50(2) of Cr.P.C . The arrested person also has a right to be released on bail, when arrested without a warrant for an offense other than a non-cognizable offense.

5. Right to be produced before a magistrate without delay - It is illegal to keep a person in detention for more than 24 hours without the orders of the Magistrate as per Section 56 of Cr.P.C . and Article 22(2) of the Constitution of India. The right of not to be detained for more than twenty-four hours is also covered in Section 76 of Cr.P.C.

6. Right to consult a legal practitioner  - This right begins from the moment the arrest is made. It is required that the arrested person should contact his lawyer without any delay. This right is also covered under Article 22(1) of the Constitution of India, along with Section 41D of CrPC , and Section 303 of CrPC .

7. Manhandling and Handcuffing - It is illegal to manhandle a person at the time of the arrest.

8. A search of an arrested person who is female - In the case of a women offender, only female police can search another female. The search should be carried out in a decent manner. A male police officer cannot search a female offender. He can however search a woman's house.

9. Also, there exists a right to be examined by a medical practitioner.

10. An arrested person has a right to legal aid and a fair trial. Article 39-A states that the government in an effort to secure justice should endeavor to provide free legal aid to people in need.

11. The right to remain silent is also an important right. This has been ensured in CrPC and even the Indian Evidence Act .

12. Right against Handcuffing and Torture.

13. If your personal items are kept by the police, you have a right to receive a receipt for the same so that you can take them later when you are released on bail.

If a person commits an offense and he can anticipate that police can arrest him, he can always consult his lawyer to get him anticipatory bail . If that is not the case and a person is arrested without any warning there is no need to panic but to be informed about your rights and their duties towards you. Once the Police arrest the person, it becomes the responsibility of the police to take care of the arrested person.

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What to do if you are Arrested Without Warning?

Under what laws can police arrest you, which kind of offenses do the police have the power to arrest without warning, and how to handle a situation if this happens? Understanding answers to all these questions are important in order to deal with the criminal trial more smoothly.

Arrests are made by looking at the gravity of the offense which has been committed by the accused. The offense may be bailable or non-bailable in nature. Where an offense is bailable, the arrested person can get bail as a matter of right and it can be granted in the police station. Where it is a non-bailable offense bail is a matter of discretion of the court. If the arrested person gets bail it doesn't mean that the trial is over, the arrested person will have to visit the Police station and Court of law whenever he/she is told to do so. It is very important for the arrested person to communicate the same to their lawyer. If you don't have a lawyer, the Court will arrange a lawyer for you.

The first thing that should be kept in mind is that an arrested person possesses some rights which should be followed by the police officer. Secondly, If an arrest is made it can be with a warrant or without a warrant, if it is with a warrant the arrested person is entitled to see it. If a person commits an offense and he can anticipate that police can arrest him, he can always consult his lawyer to get him anticipatory bail . If that is not the case and a person is arrested without any warning there is no need to panic but to be informed about your rights and their duties towards you. Once the Police arrest the person, it becomes the responsibility of the police to take care of the arrested person.

Why do you need a Lawyer?

If you or someone you know is faced with an arrest, the first step, despite the charges or nature of the offense should be to engage the services of a criminal lawyer . With the numerous kinds & nature of offenses and the rights that flow along with such offenses, a lawyer's expertise will help ensure that the rights of the arrested person are protected at every step of the process of arrest and beyond. A criminal lawyer can help ensure that the protocol and law discussed above regarding arrest are followed by the police authorities properly and that no harm is caused to the arrested person. Only a lawyer can best advise on the course of action to be adopted upon arrest and ensure that the appropriate relief such as bail can be obtained at the earliest in the special circumstances of each case. Given the vast knowledge that the layman may not possess regarding the criminal justice system, a lawyer's guidance becomes extremely important during such sensitive situations. You can also ask a lawyer online a free legal question using LawRato's Ask a Free Question service.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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