Legal and Constitutional Rights of a person in police custody

Mohit Matta
Jul 26, 2020
9 min read

The creation of a constitutional government is the most significant work of the distrust of human beings in human nature. It signalizes a profound conviction, born of experience, that human beings vested with authority must be restrained by something more potent than their own discretion. - Raymond Moley

This article mainly focuses on throwing some light on the Legal and Constitutional Rights of a Person in police custody or while the police are arresting a person.

It is a settled position of law that Ignorance of Law is not an option for anyone.

The Constitution of India is the law of all laws in the land. It not only guides but also ensures strict compliance of all the directions it has provided in itself in the course of the implementation of all civil, criminal, and other laws of the country.

The Constitution of India has prescribed certain constitutional standards by proclaiming these yardsticks in the form of fundamental rights of the accused persons.

Nothing rankles more in the human heart than a brooding sense of injustice. We can put off with illness but injustice makes us want to put things down and we then lose hope.

In a democracy and under the Indian Constitution, the police being representatives of the state are considered as public servants and the police station public property.

There are certain fundamental and primary rights, which cannot be violated in the enforcement of any substantive or procedural penal laws.

No doubt, all such substantive as well as procedural laws have, in themselves have built-in systems of checks and balances to ensure that on the one hand, the enforcement of the penal laws are in the best interest of the community at large

At the same time on the other hand, just, fair and reasonable procedures are followed in all such endeavors to safeguard the interest of the accused persons.

Some of the following crucial principles can be perceived in the penal policy and philosophy that condition the actual working of the criminal law, such as:

1) Principles of Natural Justice.

2) Presumption of Innocence.

3) Benefit of Doubt.

4) Burden of Proof, and

5) Requirement of Mens rea (a person's intention to commit a crime)

Constitutional Rights of a Person in Police Custody

The Constitution of India has under Chapter III enumerated the Fundamental Guarantees assured to a person in police custody under the law. Which are:-

Under Article 14

Right to equality. Article 14 assures that:- 'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

Under Article 20.

Right against ex post facto laws and in respect of conviction for offences.
Right against Double Jeopardy.
Right against Self-incrimination.

Under Article 22.

Right to a counsel of his choice.
Right of an arrested accused to be produced before a magistrate within 24 hours of arrest.

Under Article 21

Article 21 which states as under:- *No person shall be deprived of his life or personal liberty except according to the procedure established by law.'

Right of an accused against Double Jeopardy

Article 20(2) of the Constitution of India guarantees that: "No person shall be prosecuted and punished for the same offence more than once.

Article 20(2) of the Constitution of India is based on the celebrated maxim Nimo bis debit puniri pro uno delicto, which means that no one ought to be twice punished for one offence

Not only the Constitution of India but also the General Clauses Act, 1897 (vide section 26), and the Code of Criminal Procedure, 1973 (vide section 300) have recognized the same right of an accused person.

The provisions of section 300 of the Code of Criminal Procedure, 1973 are wider in their ambit in contrast to the Double Jeopardy clause of Article 20(2) of the Constitution of India.

The Right of Accused against Self-incrimination.

Article 20(3) of the Constitution of India states that no person accused of any offence shall be compelled to be a witness against himself. The principle of immunity from self incrimination is the outcome of the doctrine of presumption of innocence of the accused.

The Hon'ble Supreme Court in the case of Nandini Sathpathy V. P.L. Dani AIR 1978, SC 1025 clarified the scope of Article 20(3) with regards to section 161(2) of the Code of Criminal Procedure and the relation of the right of protection against self-incrimination and the right of the silence of an accused.

The ban on self-accusation and the right of silence, while an investigation or a trial is underway, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of an incriminatory matter.

Right of Silence of a Person in Police Custody

An accused person in police custody is conferred the right not to be questioned and neither the judge nor the prosecution was entitled at any stage to question the accused unless he chose to give evidence.

Unlike the right of a witness, he can not be compelled to answer a question, which may expose him to confess an incriminating statement.

Right against intrusion in privacy

The right of privacy was advanced in the year 1963 in Kharak Singh v. the State of U.P. The meaning of the term 'Personal Liberty' was considered by the Hon'ble Supreme Court in Kharak Singh's case.

This issue arose out of the challenge to Constitutional validity of the U.P. Police Regulations which provided or surveillance by way of visits and secret picketing of the domiciles.

Right to know grounds of arrest

Under Article 22(1) the right of the accused to be informed of the grounds of arrest in India is presently a Constitutional mandate. No doubt, the Code of Criminal Procedure, 1898 had the analogous provisions in sections 60 and 340.

And yet, the Constitution makers made a fundamental proposition to ensure the primacy of the right in practice and to cover all penal laws of the land.

The new Code of Criminal Procedure, 1973, has clearly ensured that every person being arrested without a warrant, save in cases of preventive detention, must be, forthwith informed of the grounds of arrest

Further improvement to the old Code was made by providing that if the arrest is made without a warrant in a bailable case, the person arrested should be further informed of his right to be released on bail after furnishing sureties

Article 22(1) of the Constitution of India states Ihat: "No person who is arrested shall be detained in custody without been informed, as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice."

Section 50(1) of the Code of Criminal Procedure, 1973 provides that every person being arrested without a warrant (other than under the preventive detention measures) has a right to be informed, forthwith, of the particulars of the offense or grounds of his arrest.

The right to be produced before a magistrate within 24 hours would be rendered futile if grounds of arrest are kept secret from the arrested person.

Right to Counsel of an Accused Person

Right to Counsel is a fundamental right under the Constitution of India by virtue of Article 22(1).

The right to legal defence was, in fact specifically well protected by the Code of Criminal Procedure, 1898 by section 340(1) before the constitution was adopted.

In the new Code of Criminal Procedure, 1973 the same provision was placed in section 303, which embodied the statutory right to counsel that could be invoked by a person accused of an offence, for the protection of his rights.

It was also observed that the Indian Evidence Act, 1872 by a specific provision under section 126 prescribes that all communications are to be treated as "privileged" between a client and his counsel

Such consultation must not only be between the accused and his lawyers but also with his friends and relations out of the hearings of the police officer.

"It is when the agency is not a third party, but both party and judge, the position of the private citizen is at its weakest." - Professor Swartz

Right to Legal Aid

Providing legal aid to a person who is unrepresented by a lawyer is a Constitutional obligation. The said right accrues not merely when the trial commences, but also when an accused is produced before a Magistrate

The Right to free legal advice is clearly an essential ingredient of a reasonable, fair, and just" procedure for a person accused of an offence.

It must be held implicit in the guarantee of Article 21 that the State is under a constitutional mandate to provide a lawyer to an accused unless he declines or objects.

Article 39 A of the Constitution of India provides that:- "The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, provide free legal aid, by suitable legislation or schemes or in any other way to secure that opportunities for securing justice are not denied to any citizen by reason of economic or other difficulties.

Personal Liberty of a person is of paramount importance and it cannot be cit out or cut down without a fair legal procedure.

Right against illegal detention

Article 22(2) of the Constitution of India, provides that- "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person be detained in custody beyond the said period without the authority of a magistrate."

An arrested person should not be confined in any place other than a police station before he is taken to the magistrate. Irrespective of the fact whether the arrest is with or without a warrant, the arrested person must be brought before the magistrate or court within 24 hours as per sections 56 and 76 of the Code of Criminal Procedure, 1973

Rights of Accused under the Code of Criminal Procedure, 1973.

(a) Right of an accused to be informed of the Grounds of Arrest, immediately after the arrest.

Section 50,55 and 75 of the Code of Criminal Procedure, 1973 can be said to be the procedural prescriptions for realizing the constitutional guarantee of the basic right conferred on an accused person concerning his right to know the grounds of his arrest.

(b) Right of the accused persons not to be subjected to unnecessary restraint.

Humane treatment of persons in custody or while under escort reflect the spirit of Article 5 of the Universal Declaration of Human Rights, 1948 which enjoins that-

" No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 10 of the International Covenant on Civil and Political Rights insists as under- "All persons deprived of their liberty shall be treated with respect or the inherent dignity of the human person."

These ideals are reflected adequately by section 49 of the Code of Criminal Procedure, 1973 which provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

(c) Protection against arbitrary or illegal detention in Custody

Sections 56, 57, 58 and 76 provide for the same

After arrest by the execution of the warrant, the warrant is deemed to be exhausted, and therefore, in order to continue the detention, if necessary, the arrested person will have to be produced before the magistrate for orders under section 167 of the Code.

(d) Right to be released on Bail

The important purposes of the arrest are to secure the presence of the accused person at the time of his inquiry or trial and to ensure that he is available to receive sentence on conviction

If release on bail is denied to the arrested accused, then it would mean that though he is presumed to be innocent till the guilt is proved beyond shades of reasonable doubt, he would be subjected to physical and psychological deprivations due to such incarceration.

(e) Right of a person whose premises is searched to be present or have his representatives to be present, during the search under a warrant and to have a copy of the seizure list as well as get a receipt of list of items seized.

Section 100(6) and 100(7) of the Code of Criminal Procedure provide for the same.

(f) Right of the Accused to have himself medically examined

Section 54 of the Code of Criminal Procedure, 1973 provides for examination of the arrested person by a medical practitioner at the request of the accused person.

The Magistrate is required to inform the arrested person about his right to claim medical examination by a medical practitioner in case of a complaint by him of torture or maltreatment in police custody.

(g) Right of accused to expect a fair and speedy investigation of the proceedings against him.

(h) Right to be defended by a Counsel of his own choice

Section 303 of the Code of Criminal Procedure, 1973 provides- "Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice."

(i) Right of an accused to Legal Aid at the expense of the Government in certain cases.

Section 304 of the Code of Criminal Procedure, 1973 confers on an accused person of insufficient means the right to engage a lawyer to defend him, and this facility is at the expense of the State.

Right against harassment and ill-treatment while in custody during the investigation.

The Police Act of 1861 no doubt prescribes the duty imposed on the police to detect cases. But, such results cannot be achieved by means not provided for.

Highlighting the correct stand in relation to "unwarrantable personal violence to any person, in custody,"

Case of custodial torture and third-degree methods were clearly seen in a recent case of custodial death of Jayraj and Bennix, a father and son duo.

Conclusion:

Ignorance of Law is not an excuse for any one! It is settled law and has been time and again reiterated by the Hon'ble Supreme Court of India in a plethora of judgments.

With the help of this Article, I intend to through some light upon for the kind consideration of my readers pertaining to the rights of the accused provided by the Constitution of India and other relevant laws.

As not knowing one's rights would subject them to unending exploitation.

With the help of this Article, I intend to through some light upon for the kind consideration of my readers pertaining to the rights of the accused provided by the Constitution of India and other relevant laws.

This article mainly focuses on throwing some light on the Legal and Constitutional Rights of a Person in police custody or while the police are arresting a person.

It is a settled position of law that Ignorance of Law is not an option for anyone.

The Constitution of India is the law of all laws in the land. It not only guides but also ensures strict compliance of all the directions it has provided in itself in the course of the implementation of all civil, criminal, and other laws of the country.

The Constitution of India has prescribed certain constitutional standards by proclaiming these yardsticks in the form of fundamental rights of the accused persons.

Nothing rankles more in the human heart than a brooding sense of injustice. We can put off with illness but injustice makes us want to put things down and we then lose hope.

In a democracy and under the Indian Constitution, the police being representatives of the state are considered as public servants and the police station public property.

There are certain fundamental and primary rights, which cannot be violated in the enforcement of any substantive or procedural penal laws.

No doubt, all such substantive as well as procedural laws have, in themselves have built-in systems of checks and balances to ensure that on the one hand, the enforcement of the penal laws are in the best interest of the community at large

At the same time on the other hand, just, fair and reasonable procedures are followed in all such endeavors to safeguard the interest of the accused persons.

Some of the following crucial principles can be perceived in the penal policy and philosophy that condition the actual working of the criminal law, such as:

1) Principles of Natural Justice.

2) Presumption of Innocence.

3) Benefit of Doubt.

4) Burden of Proof, and

5) Requirement of Mens rea (a person's intention to commit a crime)

Constitutional Rights of a Person in Police Custody

The Constitution of India has under Chapter III enumerated the Fundamental Guarantees assured to a person in police custody under the law. Which are:-

Right of an accused against Double Jeopardy

Article 20(2) of the Constitution of India guarantees that: "No person shall be prosecuted and punished for the same offence more than once.

Not only the Constitution of India but also the General Clauses Act, 1897 (vide section 26), and the Code of Criminal Procedure, 1973 (vide section 300) have recognized the same right of an accused person.

The provisions of section 300 of the Code of Criminal Procedure, 1973 are wider in their ambit in contrast to the Double Jeopardy clause of Article 20(2) of the Constitution of India.

The Right of Accused against Self-incrimination.

Article 20(3) of the Constitution of India states that no person accused of any offence shall be compelled to be a witness against himself. The principle of immunity from self­ incrimination is the outcome of the doctrine of presumption of innocence of the accused.

The ban on self-accusation and the right of silence, while an investigation or a trial is underway, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of an incriminatory matter.

Right of Silence of a Person in Police Custody

An accused person in police custody is conferred the right not to be questioned and neither the judge nor the prosecution was entitled at any stage to question the accused unless he chose to give evidence.

Unlike the right of a witness, he can not be compelled to answer a question, which may expose him to confess an incriminating statement.

Right against intrusion in privacy

The right of privacy was advanced in the year 1963 in Kharak Singh v. the State of U.P. The meaning of the term 'Personal Liberty' was considered by the Hon'ble Supreme Court in Kharak Singh's case.

This issue arose out of the challenge to Constitutional validity of the U.P. Police Regulations which provided or surveillance by way of visits and secret picketing of the domiciles.

Right to know grounds of arrest

Under Article 22(1) the right of the accused to be informed of the grounds of arrest in India is presently a Constitutional mandate. No doubt, the Code of Criminal Procedure, 1898 had the analogous provisions in sections 60 and 340.

And yet, the Constitution makers made a fundamental proposition to ensure the primacy of the right in practice and to cover all penal laws of the land.

The new Code of Criminal Procedure, 1973, has clearly ensured that every person being arrested without a warrant, save in cases of preventive detention, must be, forthwith informed of the grounds of arrest

Further improvement to the old Code was made by providing that if the arrest is made without a warrant in a bailable case, the person arrested should be further informed of his right to be released on bail after furnishing sureties

Article 22(1) of the Constitution of India states Ihat: "No person who is arrested shall be detained in custody without been informed, as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice."

Section 50(1) of the Code of Criminal Procedure, 1973 provides that every person being arrested without a warrant (other than under the preventive detention measures) has a right to be informed, forthwith, of the particulars of the offense or grounds of his arrest.

The right to be produced before a magistrate within 24 hours would be rendered futile if grounds of arrest are kept secret from the arrested person.

Right to Counsel of an Accused Person

Right to Counsel is a fundamental right under the Constitution of India by virtue of Article 22(1).

The right to legal defence was, in fact specifically well protected by the Code of Criminal Procedure, 1898 by section 340(1) before the constitution was adopted.

In the new Code of Criminal Procedure, 1973 the same provision was placed in section 303, which embodied the statutory right to counsel that could be invoked by a person accused of an offence, for the protection of his rights.

It was also observed that the Indian Evidence Act, 1872 by a specific provision under section 126 prescribes that all communications are to be treated as "privileged" between a client and his counsel

Such consultation must not only be between the accused and his lawyers but also with his friends and relations out of the hearings of the police officer.

Right to Legal Aid

Providing legal aid to a person who is unrepresented by a lawyer is a Constitutional obligation. The said right accrues not merely when the trial commences, but also when an accused is produced before a Magistrate

The Right to free legal advice is clearly an essential ingredient of a reasonable, fair, and just" procedure for a person accused of an offence.

It must be held implicit in the guarantee of Article 21 that the State is under a constitutional mandate to provide a lawyer to an accused unless he declines or objects.

Personal Liberty of a person is of paramount importance and it cannot be cit out or cut down without a fair legal procedure.

Right against illegal detention

Rights of Accused under the Code of Criminal Procedure, 1973.

(a) Right of an accused to be informed of the Grounds of Arrest, immediately after the arrest.

Section 50,55 and 75 of the Code of Criminal Procedure, 1973 can be said to be the procedural prescriptions for realizing the constitutional guarantee of the basic right conferred on an accused person concerning his right to know the grounds of his arrest.

(b) Right of the accused persons not to be subjected to unnecessary restraint.

Humane treatment of persons in custody or while under escort reflect the spirit of Article 5 of the Universal Declaration of Human Rights, 1948 which enjoins that-

These ideals are reflected adequately by section 49 of the Code of Criminal Procedure, 1973 which provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

(c) Protection against arbitrary or illegal detention in Custody

Sections 56, 57, 58 and 76 provide for the same

After arrest by the execution of the warrant, the warrant is deemed to be exhausted, and therefore, in order to continue the detention, if necessary, the arrested person will have to be produced before the magistrate for orders under section 167 of the Code.

(d) Right to be released on Bail

The important purposes of the arrest are to secure the presence of the accused person at the time of his inquiry or trial and to ensure that he is available to receive sentence on conviction

If release on bail is denied to the arrested accused, then it would mean that though he is presumed to be innocent till the guilt is proved beyond shades of reasonable doubt, he would be subjected to physical and psychological deprivations due to such incarceration.

(e) Right of a person whose premises is searched to be present or have his representatives to be present, during the search under a warrant and to have a copy of the seizure list as well as get a receipt of list of items seized.

Section 100(6) and 100(7) of the Code of Criminal Procedure provide for the same.

(f) Right of the Accused to have himself medically examined

Section 54 of the Code of Criminal Procedure, 1973 provides for examination of the arrested person by a medical practitioner at the request of the accused person.

The Magistrate is required to inform the arrested person about his right to claim medical examination by a medical practitioner in case of a complaint by him of torture or maltreatment in police custody.

(g) Right of accused to expect a fair and speedy investigation of the proceedings against him.

(h) Right to be defended by a Counsel of his own choice

Section 303 of the Code of Criminal Procedure, 1973 provides- "Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice."

(i) Right of an accused to Legal Aid at the expense of the Government in certain cases.

Section 304 of the Code of Criminal Procedure, 1973 confers on an accused person of insufficient means the right to engage a lawyer to defend him, and this facility is at the expense of the State.

Right against harassment and ill-treatment while in custody during the investigation.

The Police Act of 1861 no doubt prescribes the duty imposed on the police to detect cases. But, such results cannot be achieved by means not provided for.

Highlighting the correct stand in relation to "unwarrantable personal violence to any person, in custody,"

Case of custodial torture and third-degree methods were clearly seen in a recent case of custodial death of Jayraj and Bennix, a father and son duo.

Conclusion:

Ignorance of Law is not an excuse for any one! It is settled law and has been time and again reiterated by the Hon'ble Supreme Court of India in a plethora of judgments.

With the help of this Article, I intend to through some light upon for the kind consideration of my readers pertaining to the rights of the accused provided by the Constitution of India and other relevant laws.

As not knowing one's rights would subject them to unending exploitation.

Article 20(3) of the Constitution of India states that no person accused of any offence shall be compelled to be a witness against himself. The principle of immunity from self incrimination is the outcome of the doctrine of presumption of innocence of the accused.