Rights of Arrested Person Under BNSS
Rights of Arrested Person Under BNSS are conferred under the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Constitution of India. All humans are born with the right to life and personal liberty etc. Human rights are enriched under the constitution of India and the Universal Declaration of Human Rights.
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The rights of arrested person cannot be denied because he/she has been detained. The Indian Judicial System is based on the concept of "innocent till proven guilty". The arrest of a person can be a violation of Article 21 of the Constitution of India which states that "no person shall be deprived of his right to life and personal liberty except through a procedure established by law."
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| Rights of Arrested Person Under BNSS |
Rights of Arrested Person
The rights of arrested person have been discussed as below;
1. Right to Know the Grounds of Arrest
As per section 47of BNSS, it is stated that every police officer or any other person who is authorized to arrest a person without a warrant should give information to the arrested person about the offence for which he or she has been arrested and other grounds for such an arrest.
It is the right of an arrested person that the police officer must inform the arrested person about the offence for which he or she has been arrested and the police officer cannot refuse it.
As per section 48 of BNSS, it is the obligation of a person arresting to inform the arrest of any of his friends or relatives or any other in his interest. The police officer has to inform the arrested person that he has the right to information about the offence for which he is arrested and about his arrest to the nominated person as soon as he is put under custody.
As per section 55 of BNSS, it is stated that when the police officer authorized his subordinate to arrest the accused person without a warrant of a court, the subordinate needs to notify the accused person for what reasons he has been arrested which is in return and in that order specifying the offence what he has committed and other grounds of arrest.
As per section 77 of BNSS, it is stated that if the arrest of the accused person is under a warrant then the police officer or any other person who is executing the warrant shall notify the substance and grounds of the written order given by the senior officer in return stating the offence for which the accused has been arrested and if so required, shall show him the warrant and explain the grounds of arrest to him. These are the rights of arrested person under BNSS.
According to Article 20(1) of the Constitution of India, no police officer should arrest without informing the grounds for the arrest to the accused person.
2. Right to be Taken before the Magistrate without Delay
Rights of arrested person to appear before the Magistrate within 24 hours from the time of arrest excluding time for journey from the police station to the court.
However, if the arrest is with a warrant or without a warrant accused person has to be taken to the nearest Magistrate within 24 hours of such arrest and have to keep the accused person in the police station and nowhere else.
Article 22(2) of the Constitution of India, states that every person who is arrested or detained in custody is produced before the nearest Magistrate within 24 hours of such arrest excluding the time take place necessary from the place of arrest to the nearest magistrate.
Section 58 of BNSS, states that the person who is arrested without a warrant is not to be detained in the custody of the police for more than 24 hours. It is the right of an arrested person that the arrested person has to be present before the matches. The period of arrest does not include the journey from the place of arrest of the accused person to the nearest magistrate. The magistrate can order his detention for a term not exceeding 15 days on the whole.
Section 78 of BNSS, states that the person who is arrested with a warrant shall without necessary delay bring the person arrested before the court where he is required to be present.
3. Right to be Released on Bail
Rights of arrested person to be released on bail if the offence is of bailable offence as per Section 2(b) of BNSS, after paying or furnishing a security amount he can be entitled to bail and if the offence is non-bailable as per Section 2(b) then it's upon the discretion power of the court whether to grant bail or not in non-bailable offence.
According to section 47 of BNSS, where the accused is arrested without a warrant then the arrested person has a right to know the grounds of his arrest and particulars of the offence whether the offence is bailable or non-bailable offence does not matter.
4. Right to Fair Trial
Rights of arrested person to have a fair trial while taking the principles of natural justice, principles of equity, justice and good conscience into consideration.
There is no provision relating to the fair trial that has been provided under the Bharatiya Nagarik Suraksha Sanhita, 2023. However, the interest of the arrested person to have a fair and unbiased trial can be enumerated under Article 14 of the Constitution of India, which states that all persons are equal in the eyes of the law. The above statement itself says that for every right during his trial, the principle of natural justice should be followed.
5. Right to have a Free and Speedy Trial
The right to have a free and speedy trial has not been specifically enumerated in the Constitution nor the Criminal Procedure Code. However, in the case of Hussainara Khatoon vs State of Bihar, 1979, the Supreme Court made it mandatory that the investigation in the trial must be conducted as expeditiously as possible.
However, in the cases wherein the maximum punishment can be imposed is 2 years, once the accused is arrested, the investigation for the trial has to be completed within six months or stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation.
6. Right to Consult Advocate
Rights of arrested person to represent himself before the Magistrate through his/her legal advisor. According to Article 22(1) of the Indian Constitution, it is the fundamental right of the arrested person to address before the Magistrate within 24 hours of arrest.
However, according to Article 22(1), the arrested person is in the custody of the police and he/she has the right to have a legal practitioner to guide him regarding the gravity of the offence which he has committed and the ground and the remedy which he can provide the accused. If the offence is bailable, the legal practitioner can help him be released on bail by giving the surety amount.
Also, it is provided under section 340 of the Bharatiya Nagarik Suraksha Sanhita, 2023 that the person accused of an offence before the Criminal Court or against whom proceedings are instituted may of right to be defended by a pleader of his choice.
7. Right to Free Legal Aid
Rights of arrested person to have free legal aid service which has been provided by the legal services authority if his/her income is less than Rs. 1,50,000/-. However, the arrested person has to prove that by way of an income affidavit and thus he/she is entitled to have free legal aid service and can have a legal practitioner for himself/herself on his behalf to address the court proceedings.
As per section 341 of BNSS, it is stated that between the trial proceedings if the arrested person is not presented by a pleader, and where the court believes that he does not have enough means to appoint a pleader then his defence would be at the expense of the State and he can be entitled to have a free legal aid service and thus a legal practitioner to appear on behalf of the accused.
Article 39(A) has been inserted by the 42nd amendment which ensures that the State has to provide legal aid services to the accused to ensure equal opportunity in securing justice and shall not be denied to any citizen by reasons of economic and any other disabilities.
In the case of Khatri v/s State of Bihar, it was held that if the accused person is declared a needy person then the State has to provide free legal aid services to the accused person.
8. Right to be Silent
Rights of the arrested person to remain silent because the Magistrate has to know the gravity of the confession or statement which has been made by the accused is made by the arrested person voluntarily or not and this right has not been mentioned in any code.
This is the right which has been given to the accused from the common law principles. This right leads to the provision that has been mentioned under Article 20(3) of the Constitution of India, which says that no person accused of any offence shall be compelled to be a witness against himself i.e. the Principle of Self-Incrimination.
Article 20(3) of the Constitution of India guarantees that every person has a right against self-incrimination, it states that any person who has been accused of any offence, shall not be compelled to be a witness against himself.
In the case of Nandini Sathpathy v/s P.L. Dani, it was stated that no one can force any accused person to answer any question or give a statement and the accused has the right to remain silent during the process of interrogation.
9. Right to be Examined by the Medical Practitioner
Rights of arrested person to be examined by a medical specialist. Section 53 of BNSS, says the the examination of the arrested person by the medical practitioner on the request of the accused if he alleges that at the time when he was produced before the Magistrate or during the time of his detention contains proof which will disprove that the offence has been committed by him and will suspects other person who has committed the offence then the Magistrate after agreeing to his statement can assign a medical practitioner to collect the evidence for reaching the ends of justice.
In the case of Yoginder Singh v/s State of Punjab, it was stated that constitutional provisions i.e. Article 21 and 22(1) of the Constitution of India are necessary because;
- The accused has the right to inform his friends, relatives or any other person who is about whom or whom the information should reach so if the offence is the bailable offence he could bring the surety amount and the can be released on bail.
- The police officers are under the obligation directed by the State to inform about the ground and regarding the offence the accused has been arrested.
- The entry should be made in a diary to which the information of the arrest has been made by the accused.
D.K. Basu v/s State of West Bengal
Despite several attempts being made by issuing guidelines in various cases, to eradicate the possibility of the committing torture by the police officials, there were frequent instances of police atrocities and custodial deaths. Therefore, the Supreme Court, in this case, issued some guidelines that were required to be mandatorily followed in all cases of arrest or detention. Following are some of the important ones-
- The person who is going to arrest any accused should bear accurate, visible, and clear identification along with their name tags with their designation.
- The police officer who is arresting the arrestee must prepare a memo of arrest, and it should be attested by at least one person who may either be a family member of the arrestee or any other respectable person in the locality. The memo must contain the date and time of arrest and must also be countersigned by the arrestee.
- If the person who has signed the memo of arrest is not a family member, relative or friend of the arrestee, then the arrestee is entitled to have one friend or relative informed about his arrest as soon as possible.
- The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
- Entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- The police officer should, on the request of the arrestee, record at the time of his arrest major and minor injuries, if any, present on the arrestee’s body, after subjecting the arrestee to an examination. The “Inspection Memo” must be signed both by the arrestee and the police official making such arrest, and one copy of that memo must be provided to the arrestee.
- Copies of all the documents including the memo of arrest, referred to above, should be sent to Illaqa Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- The court also ordered that in every district and state headquarters, a police control room should be established, wherein every arrest that is being made must be reported by the police officer making such arrest within 12 hours of such arrest, and it should be displayed on a conspicuous notice board.
Frequently Asked Questions
What are the 3 rights of arrested person under BNSS?
The 3 rights of arrested person under BNSS are; 1) A person who is arrested and detained in custody will have to be informed of the reasons for such arrest. 2) Such a person shall be produced before the nearest magistrate within 24 hours of arrest. 3) Such a person has the right to consult a lawyer or engage a lawyer for his defence.
What are the rights of arrested person in India?
Every arrested person in India has the right to be informed about the grounds of their arrest, as per Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023. This section ensures that individuals are aware of the charges against them, allowing them to understand the reasons for their arrest.
What are the rights of arrested person in international law?
A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law.
What are the rights of arrested person under the RTI Act 2005?
A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is.........
What are the rights of arrested person in Article 20?
Article 20 (3) of the Constitution provides that “No person accused of any offence shall be compelled to be a witness against himself”. The right guaranteed under Article 20 (3) acts as a “protective umbrella against testimonial compulsion in respect of persons accused of an offence to be a witness against themselves”.
Conclusion
Rights of arrested person can be found in the Constitution of India and Bharatiya Nagarik Suraksha Sanhita, 2023. An arrested person has certain rights during any investigation, inquiry or trial of an offence with which he is charged and it is the right of an arrested person to he should be protected against arbitrary or illegal detention.