What Are Your Rights After an Arrest?

An arrest in India is when a person is taken into the custody of the police officials either with the presentation of a warrant or without it. An arrest is basically confining the person or restraining the movement of a person. An arrest can be made with or without a warrant, depending on the nature of offense committed by the person. 

It is essential to know what rights a person has when arrested. This ensures misuse of power by the police officials and can also help in speedy trials. If your rights are violated then you can file a petition either under the Constitution of India or the CrPC. Misuse of power by the police officials might also attract suspension from duty or any other punishment. 

If you’ve been arrested or expect legal trouble, our criminal lawyers team can help. The criminal lawyers at the Prime Legal team will ensure hassle free trials and legal guidance. 

 

Legal Definition of Arrest in India

The CrPC does not explicitly define arrest, but the provisions of CrPC explicitly mentions the procedure of arrest and the rights of the arrested person. Section 41 to 60 of the CrPC discusses the legal framework of arrest, when an arrest can be made, and the right of the person arrested. 

Arrest is the act of taking into custody an individual who is accused of committing an offense. When a person has committed a non-cognizable offense then they cannot be arrested without a warrant, whereas when a person is accused of committing a cognizable offense then they can be arrested by the police officials without a warrant. Arrest is physically restraining a person from movement which also takes their right to liberty. 

Every arrest involves custody but not every custody is arrest. A person is arrested when he is accused of committing a crime whereas a person can be taken into custody only for interrogation purposes. A person can be in custody without being arrested. Arrest is legally restraining a person’s liberty whereas custody is a period of time when a person remains in the confinement of police or judicial custody.

 

Your Rights after an Arrest in India

When a person is arrested, they have the following rights that can be exercised:

1. Right to Be Informed About the Grounds of Arrest:

Article 22(1) of the Indian Constitution and Section 50 of the CrPC provides that if a person is arrested without a warrant, then they must be informed about the grounds of arrest. 

The individuals should be conveyed about the reason or the offense for which they are arrested. The grounds should be reiterated to the arrested person immediately after the arrest is made. The persons who are arrested with a warrant, such warrant shall mention the grounds for which a person is being arrested. 

An FIR plays a crucial role as it is the first time when the offense is being narrated. It is the basis for the start of the investigation. Learn more about the FIR process here.  

After the investigation is done, the police officials file a chargesheet in the court which mentions the details of the investigation and on such a basis the court frames the charges. 

 

2. Right to Remain Silent:

Article 20(3) of the Indian Constitution shields a person from self incrimination which means that an individual cannot be forced or compelled to provide information which can put them in question or incriminate themselves. 

 

3. Right to Legal Representation:

Section 41D of the CrPC and Article 22(1) of the Constitution of India grants power to the arrested person to have a legal counsel of their own choice. They can opt for a legal representation of their own choice. 

If you or someone you know is seeking legal representation, reach out to the best criminal lawyers in Bangalore for immediate legal representation. 

 

4. Right to Be Presented Before a Magistrate Within 24 Hours:

Section 57 of the CrPC and Article 22(2) of the Indian Constitution makes it mandatory for the police officials to present the arrested person before the magistrate within 24 hours of arrest. This 24 hours excludes the travelling time from the police station to the magistrate’s place. 

This procedure ensures transparency in the process of arrest and prevents the persons from illegal detention or arrest. 

 

5. Right to Free Legal Aid:

Article 39A of the Indian Constitution states that every state should provide free legal aid services to people who are unable to afford one. A person should not suffer only because they don’t have financial resources to provide themselves with legal aid. 

 

6. Right to Medical Examination:

The arrested person shall be provided with proper medical examination by a qualified medical practitioner as per the provision of Section 54 of the CrPC. Also, when a female is arrested, the medical examination shall be done by a female medical practitioner only. 

 

7. Informing Regarding the Right to Be Released on Bail:

When a person is arrested, they must be informed about the nature of offense, whether the offense for which they are arrested is bailable or non-bailable. 

If the arrested person is accused of a bailable offense, then the police officer must facilitate the procedure of bail, and the arrested individuals can apply for bail immediately if the offense allows.

If the person is arrested for a non-bailable offense, an application can be made in the court for bail. Such bail remains at the discretion of the court or magistrate. To gain more knowledge, understand how to apply for bail with proper legal support. 

 

8. Right to Inform a Relative or a Friend:

The guidelines in the case of D.K. Basu, it is made necessary for a police official making the arrest to inform a relative or a friend of the arrested person about his arrest within12 hours of the arrest. 

 

Arrest of  Women and Children: Additional Protections

As per the provision of Section 46(4) of the CrPC, a woman shall not be arrested after sunset and before sunrise. Such arrest can be made only with required prior judicial permission and in the presence of a lady constable or a lady police officer. If such steps are not followed, then the arrest can be nullified. 

The Juvenile Justice Board under the Juvenile Justice (Care and Protection of Children) Act, 2015, provides protection to children below 18 years of age from harsh arrest. The act ensures a child-friendly process of arrest. Under this act, the children arrested are tried by the Juvenile Justice Board, and only under certain circumstances, children from 16 to 18 years of age are tried as adults. 

 

Common Violations of Arrest Rights

The followings are the common violations of arrest rights:

• Police misconduct or illegal detentions: Misconduct from the part of police officials may lead to illegal detentions. If a police official does not inform the grounds of arrest, refuse to comply with the procedures of bail, or uses undue force while arresting, then the arrest of the person might be declared to be unlawful. Also, the police official cannot use unnecessary restraint while arresting the person. 
• Not produced before magistrate: When the arrested person is not presented to the magistrate within 24 hours of arrest, such arrest can be challenged in the court. 
• No access to lawyer: The right of an arrested person is violated when they are not given access to lawyers or legal representation. If the person is financially not well-off, then it is the duty of the state to provide free legal aid to such an arrested person. 

 

What to Do If Your Rights Are Violated?

It is the duty of the state to protect the rights of the arrested person. But, when the rights of the arrested persons are violated they can do the following:

1. They can file a writ petition under Article 32 of the Indian Constitution in the Supreme Court of India or under Article 226 of the Indian Constitution in the High Courts invoking writ of Habeas Corpus. 
2. The relative or friend or lawyer of the arrested person can also approach the NHRC, State Human Rights Commission, or any other competent to seek remedy.
3. The lawyer can also file to claim compensation, punishment or departmental enquiry against such violations of rights of the arrested person. 

 

Why Legal Representation is Crucial After Arrest?

Legal representation is important as the lawyer will help you in protecting your rights when arrested. Legal representation is important for the following reasons:

• Immediate Bail: Lawyers or legal professionals can help in speedy bail processes rather than depending on the police officials to carry out the bail procedure. This can protect the arrested person from illegal detention. 
• Avoiding police pressure or forced confessions: A lawyer will make sure that this client is not forced to make any confessions. The lawyer will protect the client and make him understand his right to remain silent, and save them from self incrimination mentioned under Article 20(3) of the Indian Constitution. 
• Strategic defense: An experienced legal professional will ensure that the procedures for bail are conducted smoothly and it is not delayed. They can make proper defense, challenging the FIR, and planning defense strategy. 

If you or someone you know seeks clarifications regarding their rights in India, speak to top criminal lawyers in Bangalore at Prime Legal who can clarify all your doubts and navigate you through the complexities of the criminal justice system smoothly. 

 

Conclusion

The Indian Criminal Procedure and the Indian Constitution protects the rights of the arrested person and makes sure that the proper measures are taken to compensate the persons who are illegally detained. The legal framework ensures that the rights, liberty and dignity of the Indian citizens are protected. The provisions of CrPC and the Indian Constitution ensures that the arrests made are not arbitrary or coercive in nature. 

If you think that your rights are violated and you seek any clarification regarding the same, reach out for legal counselling to have a better understanding and knowledge of your rights as a citizen and how one can protect it. 

Contact us now if you or your loved one is facing arrest or criminal charges, we at Prime Legal would help you in every way we can to protect you from illegal violations of your rights.