Open Access Research Article
KNOW YOUR RIGHTS: THE IMPORTANCE OF INFORMING ARRESTED PERSONS OF GROUNDS OF ARREST AND RIGHT TO BAIL
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Article Details
KNOW YOUR RIGHTS: THE IMPORTANCE OF INFORMING
ARRESTED PERSONS OF GROUNDS OF ARREST AND RIGHT TO BAIL
AUTHORED BY - MOHD. HASAN1
& VAISHALI TALIYAN2
Abstract:
The right to be informed of the grounds for arrest and
the right to bail are fundamental principles of criminal justice
systems around the world. This abstract explores
the importance of informing arrested
persons of these rights.
First, informing arrested persons of the grounds for
arrest ensures that they are aware of the reasons
for their detention and can exercise their right to challenge the legality of
their arrest. This promotes transparency
and accountability in law enforcement and protects individuals from arbitrary detention.
Second, informing arrested persons of their right to bail allows
them to seek release from custody while awaiting trial or
sentencing. This is a crucial safeguard against pre-trial detention and helps to prevent the overuse of
imprisonment. Bail also enables individuals to better participate in their defense,
maintain their employment, and care for their families.
However, despite the importance of these rights,
they are often not fully respected in practice. Arrested persons may be held without
being informed of the grounds for arrest or denied bail without justification. This can result in unjust and prolonged
detention, which violates international human rights
standards.
In conclusion, informing arrested persons of the
grounds for arrest and their right to bail is
essential for promoting accountability and protecting the rights of
individuals in the criminal
1 LLB, LLM (pursuing),
Amity University, Noida
2 LLM (pursuing), Amity University, Noida
justice system. It is important that these rights are
upheld in practice to ensure fair and just treatment
of all persons in custody. The purpose of this study is to look at how
important it is to notify arrested
people about the "Grounds of their Arrest and Right to Bail." This
paper discusses the conduct of police
officer or other person in arresting the accused with or without a warrant as per Code of Criminal
Procedure, 1973. This study also deals with some pertinent questions related to say topic and
articulately explains their answers. Finally, it elucidates both constitutional and civil remedies
available to someone who has been arrested or detained illegally.
Keywords: Arrested person,
Trial, Bail, Grounds
of arrest, Human Rights, Safeguard.
1.1
Person Entitled
to Know Grounds of Arrest
The
Constitution of India mandates that
an arrestee, as soon as possible, must be informed of the grounds of his arrest3. The Code of Criminal Procedure, 1973 also
puts an obligation on a police officer
or other person making arrest to
forthwith communicate the person arrested the grounds of his arrest4.
Section 50 Code of Criminal Procedure, 1973 States that-
Person arrested
to be informed of grounds
of arrest and of
right to bail.
(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.
(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.
3 Constitution of India Article
22(1).
4 Code of Criminal Procedure, 1973 section 50.
This section provides that any person arrested without warrant shall
immediately be informed of the
grounds ofhis arrest, and, if the arrest is made in a bailable case the person
shall be informed of his right to be
releasedon bail. A similar provision in case of arrest with warrant obtains in section
75. Arrest without compliance of thisprovision will be illegal and will make the officer or person making such illegal arrest liable to all such remediesas are
available in case of an illegal arrest.
Section 50 is mandatory. If
particulars of offenceare not communicated to an arrested person his arrest and detention are illegal. If he
alleges by affidavit that hewas not communicated with full particulars of the offence the police
officer’s diary cannot be perused to verifyhis claim of oral communication of such particulars.5
The
provision providing that a person arrested must be informed of grounds of
arrest and of right to bail under
the Code of Criminal Procedure, 1973 enjoins
that every police officer or other person
arresting any person without warrant
will forthwith communicate to him full particulars of the offence
for which he is
arrested or other grounds of such arrest.
In
order to protect the rights and freedom of the accused people against whom ex
parte evidence is gathered during the
police investigation and who are
arrested on the basis of such evidence, the
provisions of the Code of Criminal Procedure,
1973 requiring that the person so arrested must be informed of the grounds of arrest and of the right to
bail are enacted as a matter of abundant
caution. This allows them to know at the initial stage why they are arrested
and also to exercise their right to remain free.
It
is only when the accused is apprehended on spot while committing the crime, and
handed over to the police, that a
presumption may be raised that the reasons for detention are within the knowledge
of the accused6.
Provisions
of the Code of Criminal Procedure, 1973
section 50 are not only in conformity with
the Constitution of India Article
22(1) but are also mandatory7. The non-compliance with the mandatory
5Ajitkumar Sarmah v
State of Assam,
1976 Cr LJ 1303(Gau).
6 Om
Prakash Dwivedi v State, (1996) Cr LJ 603 (All).
7 Govinda Prasad v State of West Bengal, (1975)
Cr LJ 1249 (Cal);
statutory and the constitutional provision amounts to non-compliance with the procedure
established by and renders the arrest and detention of the
arrestee illegal8
1.2
Why it is
so important to know the grounds of Arrest?
Knowing the grounds
of arrest is important for several reasons.
First,
it ensures that the person being arrested understands
why they are being taken into custody. This information is crucial for
the individual to be able to defend themselves in court and to prepare a legal defence.
Second, knowledge of the
grounds of arrest allows the person to challenge the arrest if they believe it is unjustified or illegal. For
example, if a person is arrested without a warrant and there are no
reasonable grounds for the arrest, they may be able to challenge the legality of the arrest in court
and seek compensation for any damages
they may have suffered as a result.
Third, knowledge of the
grounds of arrest is important for accountability and transparency in the criminal justice system. If the grounds for arrest are not clearly communicated to the person being arrested, it can lead to confusion
and mistrust of the police and the legal system. By ensuring that the grounds for
arrest are clearly communicated, it promotes
trust and confidence in the
system, and ensures that the police
are held accountable for their actions.
Provisions
of the Code of Criminal Procedure, 1973
section 50 are not only in conformity with
the Constitution of India Article
22(1) but are also mandatory9. The non-compliance with the mandatory
statutory and the constitutional provision
amounts to non-compliance with the procedure
established by and renders the arrest and detention of the arrestee illegal10.
8 Sheela Barse v State of Maharashtra, AIR 1983 SC 378.
9 N
Ratna Kumari v State of Odisha, (2014) Cr LJ 4433
(Ori).
10Ashok v State, (1987) Cr LJ 1750 (MP).
1.3
Communication to be in writing in all instances
section 50 of Cr.P.C
According
to the section 50 Code of Criminal Procedure, 1973, it is mandatory for the
police or arresting officer to inform
a person who has been arrested about the grounds of their arrest and their right to bail. While the provision
does not specify that this communication must be in writing in every
case, it is essential that the arrested person receives full particulars of the
offense for which they have been arrested
or the grounds for their arrest.
Failure to communicate full particulars of the offense or grounds of
arrest to the arrested person could
result in the arrest being deemed illegal. The liberty of citizens should not
be curtailed except in accordance
with the law, and therefore, even if the arresting officer communicates orally about the offense, it is imperative
to ensure that the arrested person receives complete information about the reasons for their arrest.
The communication referred to in the provision specifying that the person
arrested must be informed of grounds
of arrest and of right to bail under the Code
of Criminal Procedure, 197311,
need not be, in every case, in writing12
The liberty of citizens may not be curtailed
except in accordance with law. Even if oral communication
about the offence is made, but it is not known whether full particulars of the offence
were given to the arrested person
or not, the arrest would be illegal13.
In conclusion, the Code of Criminal
Procedure, 1973, mandates that the police or arresting officer must inform an arrested person about the grounds of
their arrest and their right to bail. While
the provision does not require the communication to be in writing in every
case, it is crucial that the arrested
person receives complete information about the offence or grounds for their arrest. Failure to do so may lead to
the arrest being deemed illegal, which is a violation of citizens' fundamental right to liberty. The importance of timely
and effective communication cannot be
overstated in the
11Code of Criminal Procedure, 1973 section 50(1).
12Sunil Chainani
v Inspector of Police, (1988) 2
Bom HCR 118
13Ajit Kumar Sarmah v State of Assam, (1976)
Cr LJ 1303 (Gau).
criminal
justice system, and it is imperative to ensure that every arrested person is informed of their
rights and the reasons for their arrest to uphold the principles of justice and fairness.
1.4
particulars of the offense
or grounds of arrest to be communicate to the arrested person
“Forthwith”,
means, “simultaneous with or immediately”14. Where grounds of arrest
are not communicated to the arrested
person, then though the case would ultimately be decided not on that ground but on merits,
the rejection of bail by the magistrate would be bad15.
In
view of Article 39A of the Constitution, the Supreme Court
has directed that whenever a person
is arrested by the Police and taken to the Police lock-up, the Police must
immediately give intimation of the fact of such arrest to the nearest
Legal Aid Committee
and such Committee must take immediate steps for
providing legal assistance to the arrested person at State cost, provided he is willing
to accept such legal assistance.16
The
Constitution of India, under Article 39A, ensures equal justice and free legal
aid to citizens. In line with this,
the Supreme Court has directed that whenever a person is arrested by the police and taken to the police lock-up, the
police must immediately inform the nearest Legal Aid Committee about the arrest. The Committee must then take
immediate steps to provide legal assistance to the arrested person at State cost, provided they are willing to accept
such assistance.
This direction ensures that the fundamental right of access to justice is
upheld, and even those who cannot
afford legal representation can receive legal aid. Furthermore, the requirement
of immediate intimation of arrest to
the Legal Aid Committee highlights the importance of timely and effective
communication in the criminal justice
system.
14Ashok v State, (1987) Cr LJ 175 (MP).
15Govind Prasad
v State of West Bengal, (1975) Cr LJ 1249 (Cal).
16Sheela v State
of Maharashtra, AIR 1983 S C 378
This provision dealing with person arrested to be informed of grounds of
arrest and of right to bail under the
Code of Criminal Procedure, 197317
is a new one, added on the recommendation
of the joint committee. Its stipulations are material and
may not to be overlooked. It brings the law
in conformity with the Constitution of
India18, enabling the arrested person to move for habeas corpus
to obtain his release19.
The
provisions dealing with protection against arrest and detention in certain
cases under the Constitution of India20, provide that a person who is
arrested will not be detained in custody without being informed, as soon
as may be, of the grounds for such arrest.
2.1 International Covenants
and the United
Nations on Human
Rights regarding illegal detention
The
concept of ‘human rights’ is not of recent origin. The expression was first
employed in the Declaration of United
Nations signed by the Allied Powers
on January 1, 1942. The concept owes
its origin, in western thought, to the Bill of Rights, 1689 which declared for
the first time that “excessive bail
ought not to be required nor excessive fine imposed, nor cruel and unusual punishment inflicted”. The French
Declaration on the Rights of Man and the Citizen also spoke of “freedom from arrest except in conformity
with the law”, in addition to “liberty, property, security and resistance to oppression” which were declared to be
the natural and inalienable rights of man. The first ten amendments to
U.S. Constitution effected in 1791, speak of all the above concepts and more. The Declaration of United nations dated
January 1, 1942 stated, inter alia,
“complete victory over their enemies is essential to defend life, liberty,
independence to preserve human rights and justice in their own lands
as well as in other lands”.
The Universal Declaration of Human Rights adopted by the General Assembly
of the United Nations on December 10,
1948 declared that no one shall be subject to arbitrary arrest, detention or exile (Article
9).
17 Under the Code of Criminal
Procedure, 1973 section
50.
18the Constitution of India Article
22(1).
19Govind Prasad v State of West Bengal, (1975) Cr LJ 1249 (Cal).
20 Article 22, The Constitution of India.
Article 9(1) of the International Covenant on Civil and Political Rights
1966 declares, inter alia, that
“everyone has the right to liberty and security of person (and that) no one
shall be subject to arbitrary arrest or detention”.
3.1
Remedies against
illegal arrest and detention
Knowing
the grounds of arrest is crucial because it helps individuals determine whether
or not their arrest was lawful. If an
arrest is made without proper legal justification, it is considered illegal and can result in unlawful detention. If an individual is
illegally arrested and detained, they have the right to seek legal remedies for the
violation of their fundamental rights.
One
of the primary remedies for illegal arrest and detention is the writ of habeas
corpus. This is a legal action that
allows a person who is being detained to challenge the lawfulness of their detention before a court. The writ
requires the detaining authority to produce the person in court and provide legal justification for their
detention. If the court finds that the detention is illegal, it may order the person's
release.
Additionally,
an individual who has been unlawfully arrested and detained may have the right
to sue for damages. This can include
compensation for any physical or emotional harm suffered as a
result of the illegal detention, as well as any financial
losses incurred.
Therefore, knowing the grounds of arrest is crucial because it can help
individuals determine whether or not
they have been illegally detained and can take legal action to seek redress for
any violations of their rights.
3.2
Constitutional remedies
available against illegal
arrest:
The
Constitution of India recognizes the right to personal liberty and freedom as
one of the fundamental rights under
Articles 19, 20, and 21. Article 21 specifically states that no person shall be deprived of his life or personal
liberty except according to the procedure established by law. This means that any arrest or detention made by the
authorities must be in accordance with the law and
should not violate the fundamental rights of the person being arrested or detained.
In
case the police have arrested or detained any person without proper authority
or by violating the
established procedure, such arrest and detention would be considered invalid and unconstitutional. To provide a constitutional remedy against such unlawful arrest or detention, the Constitution of India provides
the writ of habeas
corpus under Article 32 or 226.
The writ of habeas corpus is a legal order issued by the court that directs
the authority to produce a detained
person before the court and to justify the reasons for their detention. If the
court finds that the detention was
unlawful or without proper authority, it can order the immediate release of the person from detention.
Therefore, the writ of habeas corpus serves as a crucial constitutional
remedy to protect the right to
personal liberty and freedom guaranteed under the Constitution of India. It
empowers the courts to act as a check
against any arbitrary exercise of power by the authorities and ensures that the fundamental rights of citizens are protected.
3.3
Civil remedies available against illegal arrest:
Tort
is also called a civil wrong which
includes the restraining of a person wrongfully, by another person who
was not authorized under the law to do such act, which leads to restriction of freedom
of movement of the person who has been so restrained.
An
individual, who has suffered false imprisonment, can seek monetary compensation
either by filing a civil or criminal suit, depending on the situation. Section 19 of the Code of Civil Procedure, 1908 provides that one
can file a civil suit for compensation of damages.
Section 35A of the CPC deals with compensatory costs, under Section 357 of the Code of Criminal Procedure, 1973 the Court can award compensation.
Conclusion:
Arrested
Person is technically an innocent person as per criminal law as the accused is
presumed to be innocent until
proven guilty and his/her rights and liberties are fully
protected. In a democratic country
like India, under-trial prisoners or accused person have numerous rights under
Indian Constitution like Fundamental Rights- Right to life and personal
liberty, Right against self-incrimination, Right to maintain
silence, Right to equality and right to seek constitutional remedy etc. and under criminal
procedure also his rights
are protected.
It
is very important for every accused person to his constitutional and legal
rights and remedies on being
arrested. It is also a legal duty of the police to handle the accused with care
as the accused person is kept under
legal custody and he must be protected. In Hussainara
khatoon vs. State of Bihar21
the Supreme Court held that right to speedy justice is an essential part of
article 21of Indian constitution. It is also the duty of the State to take
measures for speedy trial and setup
fast-track courts throughout the State. There should be no handcuffing of the
accused person at the time of
arrest unless there are
justifying circumstances.
According
to the report of NCRB at least 60-70% of prison population consists of
under-trial prisoners and there is
need for liberal bail provisions for safeguarding the rights of the accused. The accused
also has a right to seek bail and get represented by a lawyer of his choice.
21 1979 AIR
1369
Article Information
KNOW YOUR RIGHTS: THE IMPORTANCE OF INFORMING ARRESTED PERSONS OF GROUNDS OF ARREST AND RIGHT TO BAIL
Authors: MOHD. HASAN, VAISHALI TALIYAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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