Protections Given To Accused Under Indian Laws

Basic rights of the human being such as the right to life and personal liberty, right to live life with dignity etc., are guaranteed to each individual by Indian Constitution. Apart from this, the Universal Declaration of Human Rights sets out fundamental human rights which are universally protected.

Indian legal system follows the principle of ‘innocent until proven guilty‘. The court shall think an accused person is innocent until he is proved guilty. If an accused gets arrested, he shall not be deprived of his rights which are detailed below.

Bare Acts

Protections Given To Accused Under Indian Laws

These are the 13 rights or protections given to an accused/arrested person under various Indian Laws, like the Constitution, CrPC, and CPC.

  1. No unnecessary restraint – Section 49 CrPC
  2. Right to know the grounds of arrest – Section 50 CrPC and Article 22(1)
  3. Constitutional protection to arrested person – Article 22(1)
  4. Right to information of arrested person – Section 50A (1) CrPC
  5. Notification of substance of warrant
  6. Right to be produced before a magistrate within 24 hours – Section 76 CrPC and Article 22(2)
  7. Right to a speedy trial
  8. Right to consult a lawyer of his choice
  9. Right against self-incrimination – Article 20(3)
  10. Right to free legal aid
  11. Right to get medically examined
  12. Right to compensation – Section 358 CrPC
  13. Right to health and safety – Section 55A CrPC

1. No unnecessary restraint – Section 49 CrPC

No unnecessary restraint should be applied to the arrested person than is necessary to prevent his escape. The Hon’ble apex court has framed guidelines in the below case law regarding handcuffing of arrested persons.

Case Law 1: Citizens for Democracy vs State of Assam & Others – When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police have also obtained orders from the magistrate for the handcuffing of the person to be so arrested [Para 19].

Case Law 2: Sunil Batra etc. vs Delhi Administration and Ors. – The Hon’ble Court pronounced that under-trials shall be deemed to be in custody but not undergoing punitive imprisonment. Fetters (a chain or manacle, typically placed around the ankles used to restrain a prisoner), especially bar fetters, shall be shunned as violative of human dignity, within and without prisons.

2. Right to know the grounds of arrest – Section 50 CrPC and Article 22(1)

This right is protected by section 50 of the Code of Criminal Procedure, 1973, which says – Person arrested to be informed of grounds of arrest and of right to bail.

Every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

Where a police officer arrests without a warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Constitutional protection to arrested person – Article 22(1)

Article 22 clause 1 of the Indian Constitution mandates the information to be provided to the arrested person regarding the grounds of arrest.

Note: (Section 55 CrPC) – If any subordinate police officer is making the arrest, he shall have the authorization letter from his senior specifying the permission, offence and grounds of arrest.

4. Right to information of arrested person – Section 50A (1) CrPC

This right is protected under section 50A.1 CrPC. The police officer making the arrest shall forthwith 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 to give such information.

5. Notification of substance of warrant

The police officer/other person executing the warrant of the arrest shall notify the substance thereof to the arrested person and, if required, shall show him the warrant.

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6. Right to be produced before a magistrate within 24 hours – Section 76 CrPC and Article 22(2)

Section 76 of CrPC and Article 22 clause 2 of the Indian Constitution provide that the accused must be produced before the magistrate within 24 hours of arrest excluding the time of journey.

7. Right to a speedy trial

In Hussainara Khatoon vs Home Secretary, State of Bihar, the court held- “the trial is to be disposed of as expeditiously as possible”.

8. Right to consult a lawyer of his choice

  1. Section 41(d)of CrPC – Right of an arrested person to meet an advocate of his choice during interrogation though not throughout the interrogation.
  2. Section 303 of CrPC – Any person accused of an offence before a criminal court may of right be defended by a pleader of his choice.
  3. Article 22(1) – No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall be denied the right to consult and to be defended by a legal practitioner of his choice.

9. Right against self-incrimination – Article 20(3)

It is based on the maxim – ‘nemo debet prodere ipsum’, which means privilege against self-incrimination. Article 20 clause 3 guarantees the right against self-incriminate, which was reflected in Nandini Satpathy vs P.L.Dani.

Section 304 CrPC – Legal aid to accused at State expense in certain case

In a trial before the Sessions Court, if the accused is not represented by a pleader, and where it appears to the court that the accused has no sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the state.

Article 39A – Equal justice and free legal aid

The state shall secure that the operation of the legal system promotes justice, based on equal opportunity and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason or economic disabilities.

Order 33 Rule 17 of CPC – Defence by an indigent person

Any defendant who desires to plead a set-off or counter-claim may be allowed to set up such claim as an indigent person. The rules contained in this order shall, so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.

High Court Amendment (Bombay) – In Order 33 Rule 17, the substitution is as follows:
Any defendant who desires to plead a set-off / counter-claim may be allowed to set off such claim as an indigent person. The rules contained in this order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint, and if he is required to issue a third party notice, the third party notice shall also be deemed to be a plaint for the purpose of this rule.

Case Law – Khatri vs the State of Bihar, Sukh Das vs UT of Arunachal Pradesh: “The right of indigent accused cannot be denied even when the accused fails to apply for it”. If the state fails to provide legal aid to the indigent accused who got arrested, the entire trial becomes void.

11. Right to get medically examined

Section 54 CrPC states that if the court is duly satisfied to the extent that medical examination of the accused is necessary to defeat the justice, then the court may order medical examination of the same.

12. Right to compensation – Section 358 CrPC

Section 358 CrPC: If an accused person is groundlessly arrested, the accused is entitled to compensation.

13. Right to health and safety – Section 55A CrPC

Section 55A CrPC: It is the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.

Supreme Court Guidelines For Arrested Persons

Case Law – D.K. Basu vs State of West Bengal, 1996:

The Hon’ble apex court has laid the following guidelines with respect to the arrest of persons, which are as follows:

  1. The official carrying out the arrest shall bear a clear identification of his identity.
  2. The police person making the arrest shall make a memo with respect to the same.
  3. The facts of arrest shall be disclosed to the arrested person’s friend, relative or any other person of his interest.
  4. The time, place, venue of the custody shall be disclosed to his person’s friend, relative or any other person of his interest (if the person to be informed stays at a faraway place, then Legal Aid Office and Police Station of the area concerned) within 12 hours after arrest.
  5. An entry with the details like the name of the arrested person, his informant relative, police officers attached, etc. and should be kept at the place of detention.
  6. The arrestee must be examined for any injuries in his body. The same must be recorded and signed by both police officer and arrestee, and a copy must be provided to the arrested person.
  7. The arrested person must be examined by a trained medical doctor every 48 hours.
  8. Copies of all documents made, including the arrest memo, shall be forwarded to the magistrate.
  9. The arrested person shall be permitted to meet his lawyer during the interrogation but not throughout the process.
  10. All the information regarding the arrested persons shall be forwarded to the police control room within 12 hours of arrest and displayed on the notice board.

Conclusion

The Supreme Court’s direction on arrest in D.K. Basu vs State of West Bengal wherein the court laid down the rules for the arrest, detention and interrogation of any person is not being followed widely which gives rises to the custodial deaths and ill-treatment of the accused.

Despite the Hon’ble apex court’s direction on installing CCTV at all police stations, the same is not followed widely. Strict implementation of the guidelines and orders of the court has to be followed to make the State machinery more effective.

Government must make the Human Rights Organization more effective for curbing custodial deaths, tortures, etc.


ABOUT THE AUTHOR
Author Amit Das WritingLaw
This article is written by Amit Kumar Das, B.Tech, LLB. He is a practicing advocate from Odisha High Court & Puri District Courts.
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