~Mehrul Arora
INTRODUCTION
Article 20 and 22 of the Constitution of India are the fundamental rights which provide a person protection in respect of conviction for offences and protection against arrest and detention in certain cases, respectively, and are the basis of the rights of an accused as mentioned under the various provisions of the Code of Criminal Procedure (hereinafter referred as Cr.P.C.).
A Magistrate under Section 44, police officer under Section 41 or a private person under Section 43 of Cr.P.C. may arrest an accused according to the provisions of these sections.
RIGHTS OF AN ACCUSED
According to Section 41B of the Cr.P.C., the police officer shall prepare a memorandum of arrest which shall be attested by at least one witness who is a family member of the accused or a respectable person from the locality in which the arrest is being made and in case the memorandum is not attested the police officer shall inform the arrested person that it is his right to inform a person of his choice about the same and the police officer shall bear a clear identification of his name while performing the above-mentioned duties.
According to Section 50(1) of the Cr.P.C. and Article 22(1) of the Constitution of India, when any person is being arrested without a warrant by a police officer or any other person, it is the duty of that police officer or person to communicate, and the right of the person being arrested to know the particulars and grounds on which he is being arrested. It was also held in the case of Udaybhan Shuki v. State of U.P.[1] that the right to be informed of the grounds of arrest is a precious right of the arrested person.
In case the police officer is arresting a person for a bailable offence, it his duty to inform that person that he is entitled to be released on bail and he may arrange sureties on his behalf [Section 50(2)].
If an arrest is being made under a warrant as provided under Section 75, then the person being arrested shall be notified the substance and if required shall be shown the warrant. In the cases of Satish Chandra Rai v. Jodu Nandan Singh[2] and Abdul Gafur v. Queen Empress[3], it was held that if the substance of the warrant is not notified, the arrest would be unlawful.
When, under Section 55 of the Cr.P.C., the police officer deputes a subordinate to arrest without a warrant, the person who is being arrested shall be notified the substance of the order or may also show him such an order, if required by such person.
Further, as per Section 50A as inserted by the Cr.P.C. (Amendment) Act, 2005, when a person is arrested either by a police officer or any other person, he shall be brought to the police station and shall be immediately informed about his right to inform a nominated person about the arrest and the place where the person is being held after getting arrested. And the person shall be restrained only to such an extent which is necessary to prevent his escape as per Section 49. In the case of D.K. Basu v. State of Bengal [4]4 the Supreme Court held that the time, place and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
When an arrested person is being searched and any of his articles is being seized, then the police officer shall prepare a receipt mentioning all the articles being seized and the same shall be given to the person arrested as per Section 51 of the Cr.P.C. Furthermore, in case a female has to be searched, then such a search shall be done by another female while maintaining the decency of the arrested female person [Section 51(2)].
It is the duty of the person keeping the accused in his custody to take reasonable care of his health and safety as provided in Section 55A of the Cr.P.C. and when the accused is being examined by a medical officer, then the copy of the report of such examination shall also be given to the accused or to the person nominated by the accused. This right has been given to the accused under Section 54. An accused can also be examined by a medical practitioner at the request of a police officer under Section 53.
The Supreme Court in the case of Smt. Selvi v. State of Karnataka[5] held that the test results of polygraph and BEAP/Brain fingerprinting test amount to testimonial compulsions and therefore bar of Article 20(3) of Constitution of India gets attracted to such tests. In the case of D.K. Basu v. State of West Bengal[6] it was held that the arrestee should be subject to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
When any person is arrested and being interrogated by the police, he has the right to meet an advocate of his choice as provided under Section 41D of the Cr.P.C. In Khatri v. State of Bihar[7] 7 the court held that the accused is entitled to free legal services not only at the stage of trial but also when first produced before the Magistrate and also when remanded.
As per Sections 56, 57 and 151 of the Cr.P.C. and Article 22(2) of the Constitution of India, any person who has been arrested by a police officer without warrant shall not be detained in the custody of the police officer for more than twenty-four hours and shall be presented before the Magistrate, in case of the absence of the of a special order of a Magistrate under Section 167. This time period of twenty-four hours shall exclude the necessary time required for journey from the place of arrest to the Magistrate’s Court.
In the case of Dwarkadas Haridas v. Ambalal Ganpatram[8] it was held that the right to be brought before a Magistrate within a period of not more than 24 hours of arrest has been created with a view-
(i) to prevent arrest and detention for the purpose of extracting confessions, or as a means of compelling people to give information;
(ii) to prevent police stations being used as though they were prisons – a purpose for which they are unsuitable;
(iii) to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge.
The Supreme Court has Strongly urged upon the State and its police authorities to ensure that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously observed. This healthy provision enables the magistrates to keep a check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found disobeyed, come heavily upon the police.[9]
According to Section 60A of the Cr.P.C., arrest has to be made strictly according to the Code or any other law time being in force providing for arrest. The accused has the right to receive the copy of police reports and other documents as mentioned in Sections 173(3), 207, 208 and 238 of Cr.P.C.
As per Section 273 of the Cr.P.C., all the evidence, whether during the course of trial or other proceeding, should be taken in the presence of the accused except in the case where the evidence of a woman below 18 years of age, who has been subjected to rape or any other sexual offence, is to be recorded, so as to ensure that the woman is not confronted by the accused. In the case of Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi[10] it was held that every person has a right to have a fair trial. A person accused of serious charges must not be denied of this valuable right. Appellant was not provided with an opportunity to cross-examine the fifty-six witnesses. Only one witness was cross-examined to complete the formality. Hence appellant’s conviction and sentence was set aside.
The Constitution of India under Article 20(2) and Cr.P.C. under Section 300 protect the accused from double jeopardy. Article 20(2) states that no person shall be prosecuted or punished for the same offence more than once, while Section 300 of the Cr.P.C. states that a person who has been tried by a court of competent jurisdiction for an offence and has been convicted for the same, cannot be tried again for such an offence if the conviction is still in force.
CONCLUSION
Even though a person is accused of an offence yet his fundamental rights, as enshrined in the Constitution of India, are not taken away from him and the same are secured through the various provisions as provided under the Code of Criminal Procedure and these provisions are amended by the legislature from time to time for the welfare of the accused person.
[1]1999 Cri LJ 274 (All).
[2] ILR 26 Cal 748.
[3] ILR 23 Cal 896.
[4] (1997) 1 SCC 416: AIR 1997 SC 610: 1997 AIR SCW 233
[5] AIR 2010 SC 1974.
[6] Supra 4.
[7] (1981) 2 SCC 493.
[8] 28 CWN 850, 853..
[9] Khatri (II) v. State of Bihar, 1981 SCC Cri 228, 233-34: (1981) 1 SCC 627; D.G& I.G. of Police v. Prem Sagar,
(1999) 5 SCC 700: 1999 SCC (Cri) 1036.
[10] Criminal Appeal No. 1091 of 2006.
About the author: Mehrul is a third-year B.A.LL.B. (Hons.) at Law College Dehradun, Uttaranchal University.
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Criminal Law Research & Review 
Very knowledgeable
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