Rights of Arrested persons
1. Constitution [Artcle 22]
2.The CrPC, 1973
Joginder Kumar v. State Of U.P (1994)
D.K.Basu v. State of West Bengal (1997)D.K. Basu v. State of W.B.(1997) 1 SCC 416[Kuldip Singh and Dr AS Anand, JJ]
Arnesh Kumar v. State of Bihar (2014)Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
Provisions Rights of Arrested Person
Article 22(1) Right to be informed the grounds of arrest
Article 22(1) Right to consult legal practitioner of his choice
Article 22(2) Right to be produced before Magistrate
Article 22(2) No detention beyond 24 hours.
(1) Right to be informed the grounds of arrest – According to Article 22, clause (1) of
the Constitution of India no person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest
(2) Right to consult legal practitioner of his choice– According to Article 22(1)
arrested person shall not be denied the right to consult, and to be defended by, a
legal practitioner of his choice.
Constitution (Article 22, clause 1)
Arrested person shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.
D.K.Basu Case The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
Section 41D of Cr.P.C When any person is arrested and interrogated by the
police, he shall be entitled to meet an advocate of his
choice during interrogation, though not throughout
interrogation
(3) Right to be produced before Magistrate- According to Article 22, clause (2) every
person who is arrested and detained in custody shall be produced before the nearest
magistrate.
Article 22(2) Arrest in any circumstances either with or without warrant
Section 56 of Cr.P.C. Arrest without warrant
Section 76 of Cr.P.C. Arrest in execution of warrant
(4) No detention beyond 24 hours. According to Article 22(2) arrested person shall
not be detained in custody beyond 24 hours period without the authority of a
magistrate.
In Arnesh Kumar v. State of Bihar the Supreme Court said that an accused arrested
without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.
Article 22(2) Arrest in any circumstances either with or without warrant
Section 57 of Cr.P.C. Arrest without warrant
Section 76 of Cr.P.C. Arrest in execution of warrant
The Code of Criminal Procedure
Section 41B (c) Right to be informed his friend or relative(Section 41B )
Section 41D Right to meet an advocate of his choice
Section 49 Right not to unnecessary handcuffed
Section 50 (1) Person arrested to be informed of grounds of arrest
Section 50 (2) Person arrested to be informed about right to bail
Section 54 Right to be medically examined
Section 56 Right to be produced before Magistrate without delay
Section 57 No detention beyond 24 hours
There are the following rights of the accused under the Code of Criminal Procedure –
(1) Right to be informed his friend or relative (Section 41B ) – According to section
41B every police officer while making an arrest shall inform the person arrested,
unless the memorandum is attested by a member of his family, that he has a right to
have a relative or a friend named by him to be informed of his arrest. It was also
observed in D.K.Basu Case (1996).
(2) Right to meet an advocate of his choice (Section 41D) – According to section 41D
when any person is arrested and interrogated by the police, he shall be entitled to
meet an advocate of his choice during interrogation, though not throughout
interrogation. It was also observed in D.K. Basu Case (1996).
(3) No handcuffing without reasonable grounds – According to section 49 of
Cr.P.C. the person arrested shall not be subjected to more restraint than is necessary
to prevent his escape. Arrested person shall not be handcuffed without reasonable
grounds. The Supreme Court in Prem Shankar Shukla v. Delhi Administration301
observed, “Handcuffing is prima facie inhuman and, therefore, unreasonable, is
over-harsh and at the first flush, arbitrary. Absent fair procedure and objective
monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Art.
21.” If any police officer knowingly handcuffing, he will be liable under section 220
of the IPC.
(4)Person arrested to be informed of grounds of arrest – According to section 50 (1)
Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested
or other grounds for such arrest.
5)Person arrested to be informed about right to bail –
According to section 50(2) where a police officer arrests without 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.
(6) Right to be medically examined – As per section 54, when any person is arrested,
he shall be examined by a medical officer in the service of Central or State
Government.
(7) Right to be produced before Magistrate without delay– According to section 56, a
police officer making an arrest without warrant shall, without unnecessary delay and
subject to the provisions herein contained as to bail, take or send the person arrested
before a Magistrate having jurisdiction in the case, or before the officer in charge of a
police station.
(8) No detention beyond 24 hours– According to section 57, no police officer shall
detain in custody a person arrested without warrant for a longer period than under all
the circumstances of the case is reasonable, and such period shall not, in the absence
of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the
Magistrate’s Court.
(8) The right to free legal services – In Khatri and Others v. State of Bihar & Ors303
) Supreme Court held that the right to free legal services is clearly
an essential ingredient of just fair and reasonable procedure and it is implicit in
the guarantee of article 21 and the State is under a constitutional mandate to
provide a lawyer to an indigent arrested person.
There are some leading cases related to arrest and right of arrested person which are
the following –
case 1. Joginder Kumar v. State of Uttar Pradesh
Facts– Joginder Kumar v. State of Uttar Pradesh304 is leading case on the point of right of
arrested persons. Joginder Kumar who was 28 years was an advocate. SSP
Ghaziabad called him in his office for some inquiries. He along with his brothers
reached to the office at 10 a.m. on January 7, 1994. When 12.55 P.M. inquiries was
made, it was replied that he will be set free in evening. It was further informed that
Joginder had been sent to Mussoorie. On January 9, 1994, in the evening when the
brother of petitioner along with relatives went to P.S. Mussoorie to enquire about the
well-being of his brother, it was found that the petitioner had been taken to some
undisclosed destination. Under these circumstances, writ petition for habeas corpus
was filed. The Supreme Court said to ‘Senior Superintendent of Police’ to appear
along with Joginder Kumar to appear before the Supreme Court on January 14, 1994.
Judgment – It was laid down that his friend or relative shall be informed and who
had been informed it shall be entered into prescribed book. In this case, the Supreme
Court laid down the following guidelines –
(1) An arrested person being held in custody is entitled, if he so requests to have one
friend, relative or other person who is known to him or likely to take an interest in
his welfare told as far as is practicable that he has been arrested and where he is
being detained.
(2) The police officer shall inform the arrested person when he is brought to the
police station of this right.
(3) An entry shall be required to be made in the diary as to who was informed of the
arrest.
CASE 2. D.K. Basu, Ashok K. Johri v. State of West Bengal, State of U.P.
Facts of Case – Facts of the case can be divided into two parts
Facts (1) Shri D.K. Basu Case – Shri D.K. Basu, the Executive Chairman, Legal Aid
Services, West Bengal, a non-political organisation registered under the Societies
Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of
India (Hon’ble P.N.Bhagwati) drawing his attention to certain news items published
in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and India express
dated 17th August, 1986 regarding deaths in police lock-ups and custody. It was
requested that the letter must be treated as a writ petition under “public interest
litigation” category. Considering the importance of the issue rose in the letter being
concerned by frequent complaints regarding custodial violence and deaths in police
lock up, the letter was treated as a writ petition and notice was issued on 9.2.1987 to
the respondents.
Facts (2) – Ashok K. Johri Case – Shri D.K. Basu case was pending. A letter
addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon’ble Chief Justice of
(Justice R.S.Pathak) India drawing the attention of this Court to the death of one
Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was
also treated as a writ petition and was directed to be listed along with the writ
petition filed by Shri D.K. Basu
(Guidelines – The Supreme Court after considering the gravity of custodial death
laid down which eleven guidelines are the following –
(1). The police personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name tags
with their designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.
(2). That the police officer carrying out the arrest of the arrestee shall prepare a memo
of arrest at the time of arrest and such memo shall be attested by at least one
witness, who may either be a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. It shall also be countersigned by
the arrestee and shall contain the time and date of arrest.
(3). A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up, shall be entitled to have one
friend or relative or other person known to him or having interest in his welfare
being informed, as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
(4). The time, place of arrest 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 Organisation in the district and the police station of the
area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5). The person arrested must be made aware of this right to have someone informed
of his arrest or detention as soon as he is put under arrest or is detained.
(6). An entry must be made in the diary at the place of detention regarding the arrest
of the person which shall also disclose the name of the next friend of the person who
has been informed of the arrest and the names and particulars of the police officials
in whose custody the arrestee is.
(7). The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his/her body, must be
recorded at that time. The Inspection Memo must be signed both by the arrestee and
the police officer effecting the arrest and its copy provided to the arrestee.
(8). The arrestee should be subjected 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 State or Union Territory
concerned. Director, Health Services should prepare such a panel for all tehsils and
districts as well.
(9). Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate for his record.
(10). The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation.
(11). A police control room should be provided at all district and State headquarters,
where information regarding the arrest and the place of custody of the arrestee shall
be communicated by the officer causing the arrest, within 12 hours of effecting the
arrest and at the police control room it should be displayed on a conspicuous notice
board.
Failure to comply with these guidelines shall apart from rendering the concerned
official liable for departmental action, also render him liable to be punished for
contempt of court and the proceedings for contempt of court may be instituted in any
High Court of the country, having territorial jurisdiction over the matter.
Addition to the constitutional and statutory safeguards – The requirements,
referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be
strictly followed. These requirements are in addition to the constitutional and
statutory safeguards and do not detract from various other directions given by the
courts from time to time in connection with the safeguarding of the rights and
dignity of the arrestee
CASE 3. Arnesh Kumar v. State of Bihar
Arnesh Kumar v. State of Bihar306 is a leading case on sections 41(1)(b), 41A & 167 the
CrPC.
Fact- Marriage between Arnesh Kumar and Sweta was solemnized in 2007. Sweta
alleged that her husband and his family members were demanding Maruti car, eight
lakhs rs., an air conditioner, television set etc.
In anticipation of arrest for offence committed under section 498A307 of the IPC and
section 4308 of the Dowry Prohibition Act, 1961, Arnesh Kumar applied for
anticipatory bail which was rejected by Court of Session and later on it was also
rejected by the Patna High Court. Special Leave Petition (SLP) was filed before the
Supreme Court.
Decision of the Supreme Court – In this case mainly interpretation of section
41(1)(b) was involved. As we know that by 2009 amendment section 41 was
substituted drastically. The Supreme Court issued guidelines and said that section
41(1)(b) must be strictly followed. Section 41A deals with those cases when arrest
was not done under section 41. It was directed that if section 41 is violated arresting
authority will be responsible. If Magistrate does not strictly comply section 167, he
will also be responsible. In this case, the Court discussed the following important
points including guidelines –
(1) Effect of Arrest –Arrest curtails freedom, brings humiliation and casts scars
forever. So, there is needed to make balance between individual liberty and social
order
(2) Power of arrest and justification of it – In this case Supreme Court observed,
“Police officers make arrest as they believe that they possess the power to do so. We
believe that no arrest should be made only because the offence is non-bailable and
cognizable and therefore, lawful for the police officers to do so. The existence of the
power to arrest is one thing, the justification for the exercise of it is quite another.
Apart from the power to arrest, the police officers must be able to justify the reasons
thereof. No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would be prudent and wise for a
police officer that no arrest is made without a reasonable satisfaction reached after
some investigation as to the genuineness of the allegation.
section 41 is satisfied, the power of arrest needs to be exercised.
Before arrest first the police officers should have reason to believe on the basis of
information and material that the accused has committed the offence. Apart from
this, the police officer has to be satisfied further that the arrest is necessary for one or
the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41
CrPC.”
(3) Right of accused – An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and Section 57
Cr.P.C. to be produced before the Magistrate without unnecessary delay and in no
circumstances beyond 24 hours excluding the time necessary for the journey.
(4) Relation between section 167 and section 41– Before a Magistrate authorises
detention under Section 167 of the CrPC, he has to be first satisfied that the arrest
made is legal and in accordance with law and all the constitutional rights of the
person arrested are satisfied. If the arrest affected by the police officer does not
satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to
authorise his further detention and release the accused.
(5) Direction for all cases punishable up to seven years – The Court said that that
the directions issued in this case should not only apply to the cases under Section
498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but also such cases
where offence is punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years; whether with or without fine”.
(6) Guidelines – The Supreme Court observed, “Our endeavour in this judgment is
to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically”. The Court issued the following directions:
i. Direction to State Governments & no arrest without necessity – All the State
Governments to instruct its police officers not to automatically arrest when a
case under Section 498-A of the IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid down above flowing
from Section 41, Cr.PC;
ii. Check list – All police officers shall be provided with a check list309 containing
specified sub-clauses under Section 41(1) (b) (ii). It demands reasons and
materials for arrest.
iii. Forwarding of check list to Magistrate – The police officer shall forward the
check list duly filed and furnish the reasons and materials which necessitated
the arrest, while forwarding/producing the accused before the Magistrate for
further detention;
iv. Duty of Magistrate u/s. 167 of the CrPC – The Magistrate while authorising
detention of the accused shall peruse the report furnished by the police officer
in terms aforesaid and only after recording its satisfaction, the Magistrate will
authorize detention;
v. Decision not to arrest be informed to the Magistrate within two weeks – The
decision not to arrest an accused, be forwarded to the Magistrate within two
weeks from the date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent of police of the
district for the reasons to be recorded in writing;
vi. Notice to accused within two weeks under Section 41A from the date of
case– Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which may
be extended by the Superintendent of Police of the District for the reasons to
be recorded in writing;
vii. Consequences of failure to comply direction -Failure to comply with the
directions aforesaid shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable to be punished for
contempt of court to be instituted before High Court having territorial
jurisdiction.
viii. Punishment for Judicial Magistrate – Authorising detention without
recording reasons as aforesaid by the judicial Magistrate concerned shall be
liable for departmental action by the appropriate High Court.
Remarks –This case has completed near about ten years (2014 to 2024). Ratio of this
case is being followed frequently. Format of check list was prepared by many police departments including Delhi. Ratio of this case was also discussed by Kerala High Court in Gopika Jayan & Anr v. Faisal M.A., Sub Inspector of Police, Elamakkara Police Station and the Supreme Court decided Satender Kumar Antil v. Central Bureau of
Investigation & Anr. (July 11, 2022).
Mr. X is arrested without warrant and brought to the police station. He claims to be informed about his crime and the ground of his arrest. He also requests to inform his family about his arrest. He also insists that he should be produced before a magistrate within 24 hours of his arrest. Discuss his claim with relevant statutory provisions.
Answer: Mr. X’s claims are valid and legally supported. The police are obligated to inform him of the grounds of his arrest (section 50 (1) crpc ), inform his family or a nominated person about his arrest (sec 50A crpc ), and produce him before a magistrate within 24 hours( section 57 crpc ). Failure to adhere to these provisions would constitute a violation of Mr. X’s fundamental and legal rights.
