Answer:

Article 21 of Indian Constitution provides few sparkles of hope to the lives of arrested, undertrials and convicts. The treatment of such people has to be humane and in the manner prescribed by law. In Maneka Gandhi v. Union of India {AIR 1978 SC 597} the Supreme Court held that State and for that matter the police as its principal law enforcing agency have the undoubted duty to bring offenders to book. Even so, the law and procedure adopted by the State for achieving this laudable social objective have to conform to civilized standards. The procedure adopted by the State must, therefore, be just, fair and reasonable.

I have been asked this question many times, “Why do criminals need rights when they have criminally violated rights of others?” Well, criminal jurisprudence is based on studies on criminals’ behaviour, impact of crimes on victims, criminals and society etc.

The primary purposes of criminal law are Deterrence, Retribution and Protection. Reformation & Rehabilitation are the silent purposes to improve the hues of society. “Once Criminal, Always Criminal” can’t sustain the test of reasonableness, wisdom and conscience. All crimes are not same and so aren’t criminals. Gravity, nature and involvement define which yardstick of jurisprudential law is to be applied. However, application of yardstick is based on discretion to be exercised within the limit of State law.

In my everyday endeavour to make our society a better place to live, I am launching Series – ‘Know Your Rights’, in which I would provide elemental information pertaining to varied subjects and intriguing aspects of law. Today I am writing about Rights of an Arrested Person.

The powers for making an arrest by police are subject to restraints and judicial supervision and scrutiny to protect the fundamental right to life under Article 21 of the Constitution of India of all persons. Imposition of such restraint is clearly the recognition of rights of the arrested person. Chapter-V of the Criminal Procedure Act (CrPC) contains provisions relating to arrest of persons, restrains and judicial supervision & scrutiny.

RELEVANT LEGAL PROVISIONS QUA IMPORTANT RIGHTS OF AN ARRESTED PERSON:

i. WHEN POLICE IS ARRESTING WITHOUT WARRANT: Under Section 41 of CrPC wide powers are conferred on police to arrest, mainly in cognizable offences, without having to go to Magistrate for obtaining warrant of arrest. There can be no legal arrest if there is no information or reasonable suspicion that the person has been involved in a cognizable offence or commits offence(s), specified in Section 41.

The burden is on the police officer to satisfy the court before which the arrest is challenged that he has reasonable ground of suspicion. In exception to the above, Section 45 of CrPC provides that members of Armed Forces cannot be arrested for anything done in discharge of official duties, except after obtaining consent of the central government.

ii. ARREST HOW MADE – Section 46 of CrPC envisages modes of arrest i.e. submission to custody, touching the body physically or confining the body. Arrest is restraint on personal liberty. Unless there is submission to custody, by words or by conduct, arrest can be made by actual contact. In case force is required, it should be no more than which is justly required and this section does not give a right to cause death of a person, who is not accused of an offence punishable with the death or with imprisonment for life.

Where a woman is to be arrested, unless the police officer is a female, the police officer shall not touch the person of the woman for making an arrest and arrest would be presumed on her submission to custody on oral intimation. After sunset and before sunrise, no woman can be arrested, except in exceptional circumstances and upon prior written permission from the local Magistrate.

iii. NO UNNECESSARY RESTRAINT – Section 49 of CrPC provides that there should be no more restraint than is justly necessary to prevent escape i.e. reasonable force should be used for the purpose, if necessary; but before keeping a person under any form of restraint there must be an arrest. Restraint or detention without arrest is illegal.

Explanation:

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