Law and You >Procedural Laws > BNSS > Rights of Arrested Persons (Ss. 38, 47-48, 55-59 BNSS)
In any just and democratic society, the legal principle of “innocent until proven guilty” stands as a cornerstone of the criminal justice system. This principle is upheld by a range of legal protections known as the rights of the accused. These rights are designed to ensure fairness, prevent abuse of power, and maintain public trust in the judicial process. From the moment of arrest through trial and sentencing, the accused is entitled to specific safeguards, such as the right to legal counsel, the right to remain silent, and the right to a fair and speedy trial. Understanding these rights is essential not only for legal professionals but for all citizens, as they reflect a society’s commitment to justice, accountability, and human dignity. In this article, let us discuss various rights of arrested persons.
Presumption of Innocence:
The basic principle of criminal law jurisprudence that an individual is presumed to be innocent till the contrary is proved against him has been enshrined in Article 21 of Indian Constitution along with Article 14(2) of the International Covenant of Civil and Political Rights, 1966. Article 11 of the Universal Declaration of Human Rights declares that Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 casts a reasonable burden upon the prosecution to prove the case against the accused, as every accused has the right to have the benefit of presumption of innocence till his guilt is proved beyond reasonable doubt.
No Arrest without Warrant:
One of the foundational protections under criminal law is the principle that no person shall be arrested without a proper warrant, except in specific, legally defined circumstances. According to Section 35 BNSS, a Police Officer shall not arrest a person without warrant, unless there is a reasonable satisfaction about the person’s involvement in a cognizable offence.
This safeguard is a critical aspect of the rights of the accused, aimed at preventing arbitrary or unlawful detention by authorities. A warrant, issued by a competent judicial officer, serves as a legal check on the power of law enforcement, ensuring that arrests are made based on reasonable suspicion and legal justification. This principle not only upholds the presumption of innocence but also reinforces the rule of law by requiring accountability and procedural fairness in criminal investigations.
In Joginder Kumar v. State of U.P. (1994) 4SCC 260 case, the Court held that no arrest can be made because it is lawful for the police officer to do so. The police officer must be able to justify the arrest.
Rights to a Fair Trial:
No person shall be deprived of his life and liberty except according to the procedure established by law has been enshrined in Article 21 of the Constitution, whose scope has been extended by judicial interpretation by the Supreme Court. It gives protection not only against executive action but also against legislation.
This principle is also contained in Article 9 of the International Covenant on Civil and Political Rights 1966. Article 21 implies some inalienable rights for all people including the accused and the condemned. To reinforce the effect of Article 21, Article 20 and 22 specifically provide for certain express rights in respect of arrest, detention and conviction for offences.
The European Convention for the Protection of Human Rights and Fundamental Freedoms has incorporated this right as a basic human right and states in Article 6(1) that “every person charged has a right to fair trial” and in Article 6(2) that “everyone charged with a criminal offence will be presumed to be innocent until proven guilty according to law.”
Any provision related to the right to a fair trial is not given in the BNSS, but such rights can be derived from the Constitution and the various judgements. Article 14 of the Constitution of states that all persons are equal before the law. It means that all the parties to the dispute should be given equal treatment. Which guarantees a fair trial.
Right against Ex-Post Facto Operation of Criminal Law:
No person can be accused and convicted of an offence for an act, which was not an offence under the law in force on the date when it was committed. This is a guarantee against ex-post facto operation of Criminal Law. This principle has been enshrined in Article 20(1) of the constitution of India and Article 11(2) of the Universal Declaration of Human Rights which says that “No one shall be held guilty of any penal offence on account of any act or omission, which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”.
Article 20 (1) specifically lays down that no person shall be convicted of an offence which has not been declared so by a law in force, and if a person is convicted of an offence, he cannot be subjected to a more stringent punishment than what has been specified by the law having force at that given time.
Protection against Double Jeopardy:
No person can be punished for the same offence twice. This has been enshrined in the Indian Constitution in Article 20 (2) which lays down that no person can be prosecuted and convicted for the same offence more than once. According to Section 337 BNSS, if a person has been either acquitted or convicted by a Court of competent jurisdiction, he cannot be tried for the same offence again, nor for another offence on the same facts. However, if the consequences of the act tried for, constitute a separate and distinct offence, he may be tried for the consequent offence if it be established that the act had not resulted in the consequences at the time when the earlier trial had-taken place, or that the Court trying him of the previous offence was unaware of the consequences of his act.
Right to Get Medical Assistance:
When the person arrested is brought to the Police Station, he should, if he makes a request in this regard, be given prompt medical assistance. He must be informed on this right. Where the Police officer finds that the arrested person is in a condition where he is unable to make such request but is in need of medical help, he should promptly arrange for the same. This must also be recorded contemporaneously in a register. The female requesting for medical help should be examined only by a female registered medical practitioner.
Right of Silence and Immunity against Self-Incrimination:
The ‘right to silence’ has been derived from common law principles. It means that normally courts or tribunals should not conclude that the person is guilty of any conduct merely because he has not responded to questions which were asked by the police or by the court. As per the law of evidence, any statement or confession made to a police officer is not admissible in a court of law. Right to silence is mainly concerned about confession. The breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement.
According to Article 20(3) of the Constitution of India is fundamental right of an accused to remain silent to questions relating to the offence alleged against him. This privilege has been conferred upon by the Doctrine of Presumption of Innocence, which is considered as a cardinal principal in the administration of criminal justice in all countries.
This principle has been accommodated in the Sanhita under Section 351(2), which lays down that the accused shall not be administered oath. This provision follows from the principle tenet of criminal law that the burden of proof in all criminal cases is on the prosecution. Hence, the accused cannot be compelled to be a witness against himself. However, if in course of examination, the accused gives some answers which may be used as evidence against him, the prosecution is not barred from using them in course of the trial. Also, there is no bar against compelling the accused to produce documentary or real evidence which may be used against him in course of the trial.
In Nandini Sathpathy v. P. L. Dani, AIR 1978 SC 1025 case the Supreme Court held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation). The Supreme Court again in the year 2010, held that narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of India.
Right of Arrested Person to Meet an Advocate of His Choice during Interrogation:
S. 38 BNSS:
When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.
Section 38 BNSS states the right of the prisoners to consult his lawyer during interrogation. Article 22(1) of the constitution states that the arrested person has a right to appoint a lawyer and be defended by the pleader of his choice. Section 340 BNSS states that when a person is alleged to have committed an offence before the criminal court or against whom proceedings have been initiated, has a right to be defended by a legal practitioner of his choice.
The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Government. The place must be accessible and the relatives or friend of the person arrested must be informed of the place of interrogation taking place. The methods of interrogation must be consistent with the recognized rights to life, dignity and liberty and right against torture and degrading treatment.
Person Arrested to be Informed of Grounds of Arrest and of Right to Bail
S. 47 BNSS:
(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.
According to Section 47(1) BNSS, where the arrest is without a warrant, the person arrested has to be immediately informed of the ground of arrest in a language which he or she understands. Again, for this purpose, the Police if necessary may take the help of respectable citizens. These grounds must have already been recorded in writing in Police records. The person arrested should be shown the written reasons as well and also given a copy on demand
According to Section 47(2) BNSS, a police officer arrests any person without a warrant for an offence other than noncognizable offence; he shall inform him that he has a right to release on bail and to make an arrangement for the sureties on his behalf.
Timely information of the grounds of arrest serves the arrested person in many ways. It gives him an opportunity to remove any mistake, misapprehension or misunderstanding, if any, in the mind of the arresting authority. It also enables him to apply for bail, or for a writ of habeas corpus, or to make other expeditious arrangements for his defence.
Obligation of Person Making Arrest to Inform about Arrest, etc., to Relative or Friend:
S. 48 BNSS:
(1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information and also to the designated police officer in the district.
(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.
Under Section 48 BNSS, it is obligatory on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest etc., but also to make an entry in a register maintained by the police. The Magistrate is also under an obligation to satisfy himself about the compliance of the law by the police in this regard.
Procedure when Police Officer Deputes Subordinate to Arrest without Warrant:
S. 55 BNSS:
(1) When any officer in charge of a police station or any police officer making an investigation under Chapter XIII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.
(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section 35.
Section 55 of the BNSS outlines the procedure when a police officer deputes a subordinate to make an arrest without a warrant. It specifies that the officer in charge of a police station or an officer making an investigation under Chapter XIII of the BNSS must deliver a written order to the subordinate officer when deputing them to make an arrest without a warrant. The written order must specify the person to be arrested and the reason for the arrest (offense or other cause). Before making the arrest, the subordinate officer must inform the person about the substance of the order. If the person being arrested requests it, the subordinate officer must show them the written order.
This section doesn’t affect a police officer’s power to arrest under section 35 of the BNSS. In essence, Section 55 ensures that arrests without warrants, even when delegated, are done with proper authority and transparency.
Health and Safety of Arrested Person:
S. 56 BNS:
It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.
If the arrestee has been remanded to Police custody under the orders of the court, the arrestee should be subjected to medical examination by a trained Medical Officer every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. At the time of his release from the Police custody, the arrestee shall be got medically examined and a certificate shall be issued to him stating therein the factual position of the existence or nonexistence of any injuries on his person.
Person Arrested to be taken before Magistrate or Officer in Charge of Police Station:
S. 57 BNSS:
A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station
According to Section 57 BNSS, a police officer making an arrest without a warrant should produce the arrested person without unnecessary delay before the Magistrate having jurisdiction or a police officer in charge of the police station, subject to the conditions of the arrest.
Person Arrested not to be Detained more than Twenty-Four Hours:
S. 58 BNSS:
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.
According to Section 78 BNSS, the police officer or other person executing a warrant of arrest shall produce the arrested person before the court before which he is required by law to produce the person within 24 hours of arrest. The time necessary for the journey from the place of arrest to the Magistrate’s Court shall be excluded.
According to Section 77 BNSS, any person who is executing such warrant must notify the person to be arrested, the particulars of such warrant, or even show such warrant if needed. If the substance of the warrant is not notified, the arrest would be unlawful.
Article 22(2) of the Constitution states that the police officer making an arrest should produce the accused before the Magistrate within 24 hours of arrest. If the police officer fails to produce before the Magistrate within 24 hours, he will be liable for wrongful detention.
Right to Free Legal Aid:
In case of an indigent accused who is too poor to afford the services of a lawyer, the Constitution through Article 21 implicitly guarantees the right of free legal aid at the expense of the State. The right of free legal aid commences from the moment the accused is produced before the Magistrate for the first time in accordance with the requirement of Section 58 BNSS.
Article 39A of the Constitution obligates a state to provide free legal aid for the purpose of securing justice. In Khatri v. State of Bihar case, the court held that the State should provide free legal aid to the indigent accused person. The right of the accused person cannot be denied even when the accused fails to apply for it.
In Khatri(II) v. the State of Bihar case, the Supreme Court held that the state is under a constitutional obligation to provide free legal aid to an indigent accused person as is implicit in Article 21 of the Constitution. This right does not come into picture only at the time of trial but exists at the time when the accused is produced the first time before the magistrate, as also when remanded from time to time. The Supreme Court further states that failure on the part of the state to inform the accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid.
Section 341 BNSS states that when a trial is conducted before the Court of Session, and the accused is not represented by the legal practitioner, or when it appears that the accused has no sufficient means to appoint a pleader then, the court may appoint a pleader for his defence at the expense of the State.
In Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been laid down that this constitutional right cannot be denied if the accused failed to apply for it. It is clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence. The Court observed that this constitutional right has been given practical implication by its inclusion in the Code under Section 304 CRPC (S. 341 BNSS). Such an impoverished accused may apply for this right under that section for the fulfillment of his right. However, it cannot be denied simply because he had failed to apply for it.
In Ranchod Mathur Wasawa v. State of Gujarat, AIR 1974 SC 1143 case, Justice Krishna Iyer in his eloquent style said that it shall be the duty of the Court to ensure that the pleaders so appointed should have the competence to handle complex cases, and this practice of appointing lawyers should not be extended as a patronising gesture to raw entrants at the Bar. He further went on to say that the lawyer so appointed should be given sufficient time and facility to prepare for his defence so that the cause of justice may be served.
Police to Report Apprehensions:
S. 59 BNS:
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.
Evidence to Be Taken In Presence of Accused:
Section 308 of the BNSS requires that all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader to ensure fair trial. The right created by the section is further supplemented by S. 313 BNSS, which inter alia provides that wherever the law requires the evidence of a witness to be read over to him after its completion, the reading shall be done in the presence of the accused, or of his pleader if the accused appears by pleader and in a language understood by the accused person (S. 314 and 355(2) BNSS). Besides section 143 of the Bharatiya Sakshya Adhiniyam, 2023 gives the accused right to test the evidence by cross examination.
Conclusion:
In conclusion, the rights of arrested persons serve as a fundamental safeguard in any democratic legal system, ensuring that justice is administered fairly and human dignity is preserved. These rights — including the right to remain silent, the right to legal counsel, protection against unlawful detention, and the right to be informed of charges — are enshrined in national constitutions and international human rights instruments. They function not only to protect individuals from abuse of power but also to uphold the integrity of the justice system itself. While the enforcement of these rights may vary by jurisdiction, the underlying principles remain universal. It is crucial that both law enforcement agencies and the public remain informed and vigilant about these rights to prevent violations and promote accountability. Awareness and education about the legal protections afforded to arrested individuals help maintain a balance between state authority and individual freedom. Ultimately, a society that respects and enforces the rights of the accused reinforces its commitment to justice, fairness, and the rule of law. As legal systems evolve, continuous efforts are needed to strengthen these protections and ensure their effective implementation for all, regardless of social or economic status.