Rights of an Arrested Person
The rights of an arrested person are fundamental to the criminal justice system, safeguarding individual liberties and preventing abuse by law enforcement.
The Bharatiya Nagarik Suraksha Sanhita (BNSS), introduced to replace the erstwhile Code of Criminal Procedure, consolidates and updates the procedural laws in India, emphasizing transparency, accountability, and efficiency in the administration of criminal justice. Central to this legislation is protecting the fundamental rights of individuals, particularly those of arrested persons. This article delves into the rights of arrested persons under the BNSS, incorporating relevant provisions, case laws, and references to highlight the significance of safeguarding individual liberties within the criminal justice framework.
Rights of an Arrested Person
1. Right to Be Informed of the Grounds of Arrest and Right to Bail
According to Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS):
Every police officer or any other person arresting an individual without a warrant is required to immediately inform the arrested person of the full particulars of the offence for which they are being arrested or the grounds for such arrest.
In cases where the arrest is made without a warrant for an offence that is not non-bailable, the police officer must inform the arrested individual of their entitlement to bail and allow them to arrange for sureties on their behalf.
This provision aligns with Article 22(1) of the Constitution of India, ensuring procedural fairness. In Joginder Kumar v. State of U.P., AIR 1994 SC 1349, The Supreme Court held that the arrested individual must be informed of the reasons for their arrest and their family or friends should be notified promptly.
In State of Rajasthan v. Balchand, AIR 1977 SC 2447, The court held that "bail is the rule and jail is an exception," underscoring the significance of liberty.
2. Right to RemainSilence
BNSS recognizes the right of an arrested individual to remain silent during custodial interrogation. This principle is derived from the constitutional protection against self-incrimination under Article 20(3). In Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025, The court ruled that compelling an accused person to answer questions or sign statements violates their fundamental right under Article 20(3).
3. Right to Be Produced Before a Magistrate
Section 58 of the BNSS mandates that an arrested person must be presented before a magistrate within 24 hours of their arrest, excluding travel time. This ensures judicial oversight to prevent unlawful detention.
4. Right of Arrested Person to Meet an Advocate of his choice during Interrogation
Section 38 states that any person who is arrested and interrogated by the police has the right to meet an advocate of their choice during the interrogation, though not for its entire duration.
In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369, The court recognized free legal aid as an essential component of Article 21, ensuring fair representation for the underprivileged.
In Khatri v. State of Bihar, AIR 1981 SC 928, the court held:
The right to free legal services is a fundamental component of a reasonable, fair, and just procedure for an accused person. It is inherently included within the guarantee of Article 21 of the Constitution. Consequently, the State is constitutionally obligated to provide legal representation to an accused when the circumstances and the interests of justice demand it, as long as the accused does not object. Moreover, the State must ensure free legal aid for those unable to afford legal services due to poverty, taking all necessary steps to fulfill this obligation.
5. Examination of Arrested Person by the Medical Officer
Section 53 of the BNSS provides that when a person is arrested, they must be examined by a medical officer in the service of the Central or State Government, or, if such an officer is unavailable, by a registered medical practitioner as soon as possible after the arrest. If the medical officer or practitioner deems it necessary, they may conduct additional examinations. In the case of a female arrested person, the examination must be conducted only by or under the supervision of a female medical officer, or, if unavailable, by a female registered medical practitioner.
The examining medical officer or practitioner is required to prepare a record of the examination, detailing any injuries or marks of violence on the arrested person and noting the approximate time these may have been inflicted. A copy of this examination report must be provided to the arrested person or someone nominated by them.
In D.K. Basu v. State of West Bengal, AIR 1997 SC 610, The court laid down guidelines for arrest and detention, emphasizing medical examination as a safeguard against custodial violence.
6. Health and Safety of Arrested Person
Section 56 mandates that the individual responsible for the custody of an accused must take reasonable measures to ensure the accused's health and safety.
7. Rights of Women and Vulnerable Groups
The BNSS includes specific provisions to protect the rights of women, children, and other vulnerable groups during arrest. For instance: Women cannot be arrested after sunset or before sunrise except in exceptional circumstances, as per Section 43. Special care must be taken to ensure that children and individuals with disabilities are treated humanely during arrest. In Sheela Barse v. State of Maharashtra, AIR 1983 SC 378, The court underscored the need for special protection of women and children in custody.
8. Right to Compensation for Unlawful Arrest
Section 399 of the BNSS empowers magistrates to award compensation to individuals subjected to wrongful arrest or detention. This provision seeks to deter misuse of power by law enforcement agencies. In Rudal Shah v. State of Bihar, AIR 1983 SC 1086, The Supreme Court awarded compensation to an individual unlawfully detained for 14 years.
9. Right to Fair Trial
While the right to a fair trial is not limited to the period post-arrest, BNSS ensures procedural guarantees to uphold this right throughout the criminal justice process. This includes the right to access evidence, cross-examine witnesses, and contest the legality of the arrest. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, The court ruled that procedures affecting personal liberty must be "fair, just, and reasonable."
Conclusion
The Bharatiya Nagarik Suraksha Sanhita marks a significant stride in enhancing the procedural rights of arrested persons, ensuring alignment with constitutional principles and international standards. By codifying safeguards against arbitrary actions, the BNSS reinforces accountability and transparency within the criminal justice system.
However, effective implementation, regular training of law enforcement personnel, and judicial vigilance remain critical to ensuring these rights translate into meaningful protection for individuals.
References
[1] Bharatiya Nagarik Suraksha Sanhita, 2023
[2] Code of Criminal Procedure, 1973
[3] Constitution of India, 1950
[4] Rights of an Arrested Person, Available Here
