Do you Know? One has “Certain Rights” even on “Arrest”

This article was submitted by Lomada Vani from Post Graduate College Of Law, Osmania University, Hyderabad for National Legal Writing Competition, 2016.

Well, what you read is true. Every arrested person has few rights which have been guaranteed by various statues of our country itself. These rights include rights at the time of arrest and also rights after the arrest.

There are three protections guaranteed by the Constitution under Article 20 which are:

  1. No person shall be convicted of any offence excepts for violation of a law in force at the time of commission of the act charged as an offence, nor be subjected to a penalty greater the that which might have been inflicted under the law in force at the time of the commission of the offence.
  2. No person shall be prosecuted and punished for the same offence more than once.
  3. No person accused of any offence shall be compelled to be a witness against himself”

As such it is clear that no person can be accused of any crime which was not a crime at the time of commission of the crime. That is to say if ‘X’ does forgery in the year 2000 and if forgery became crime only in the year 2001, then ‘X’ cannot be convicted for forgery as it was not a crime at the time of commission.

Another right is that one cannot be prosecuted more than once for same crime which means that if a person ‘X’ commits murder of ‘Y” and once ‘X’ is prosecuted and is held not guilty then, he shall be prosecuted again for the same offence that is murder of ‘Y”. He can however, he prosecuted and punished for any other offence or for same offence towards some other person say for murder of some ‘Z’.

Also, one cannot be compelled to be a witness against himself.

Firstly, let’s know when an arrest warrant is required? There are two broad classifications under which all the offences can be divided into. One is cognizable offences which are serious offences like murder, rape etc, and the police do not require a warrant to arrest an accused. The other one is non-cognizable offences which are less serious like public nuisance, simple hurt and like, where police should produce an arrest warrant in order to arrest the accused. Generally those offences which are punishable with less than three years of imprisonment are considered to be non-cognizable offences and an arrest warrant is necessary for all such crimes.

Now, you know that for non-cognizable offence, the accused cannot be arrested without a warrant which is given by a magistrate.

Secondly, let’s look into the rights of an accused at the time of arrest?

As per Criminal Procedure Code every police officer or other person arresting any person shall communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Further it should be communicated to him in the language understood by him.

Further the person arrested should also be informed about release on bail if he is accused of a bailable offence and should be asked to make the sureties ready for release.

Thirdly, now let’s see what rights does an arrested person have?

This right is a crucial and an important right. It is the right to be produced before the Magistrate within 24 hours from the time of arrest. That is to say that no person shall be kept in police custody for more than 24 hours.

Finally, we shall look at the rights at the time of the trial i.e., before conviction (guilty) or acquittal (not guilty).

At the time of the trail, the court should ensure a fair trial which includes right to equality and also following principles of natural justice. No court shall show any discrimination based on caste, creed, religion, sex or race during the court proceedings. Further the principles of natural justice include i) No person shall be unheard ii) No person shall be a judge in his own case.

The first principle says that both the parties are to be heard. No person can be convicted without according an opportunity to put forth their case. It also includes right to produce all the evidences which the accused relies upon and also all the witnesses on whom the accused depends upon to prove his case. Further the second principles lay down that any person who is interested in the case, related to any party in the case or in any way has any connection with the parties or the with the case cannot be a judge. All these rights constitute for a fair trial.

Also he has a right to speedy trial. This is very important because if the accused proves to be not guilty of any offence then it shall be unbearable agony for him to suffer for no reason. Hence all the criminal cases where a person is arrested shall be decided expeditiously.

Furthermore, a person shall also have a right to consult a legal practitioner. This way the accused shall have an opportunity to explain to the court as to how he is not guilty by applying the law and producing the evidence with the help of a legal practitioner.

Okay that looks fine, but, what if the accused does not have financial support to afford a legal practitioner? Well, here is the answer.

He has a right to get free legal aid. Free legal aid refers to having all the legal support from a fully qualified legal practitioner without any charge or fee. It shall be the duty of the state to provide for such practitioner if the accused is not in a position to hire an advocate.

Lastly, arrested person shall also have a right to be examined by a medical practitioner whenever he seeks any medical help.

I conclude by saying that just because a person is accused, he can neither be deprived of some fundamental human rights nor of various legal rights granted by our legislature.

October 18, 2016

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