Module details Name

Subject Name Social Work

Paper Name Legal Literacy
Module MODULE XII: Criminal Law II- Rights on Arrest
Paper Coordinator Advocate Maharukh Adenwalla
Module Writer Advocate Monica Sakhrani
Keywords Criminal Law; Rights on Arrest; Article 20 and 22; Torture
Summary The module looks at the rights of arrestees in India. It looks at
the constitutional provisions and the provisions under
ordinary criminal law. It also highlights the main judgments
of the Supreme Court on the issue. It also lays down the law
relating to bail.
Content reviewer Prof Manish Jha, Professor and Dean, School of Social Work,
Tata Institute of Social Sciences

INTRODUCTION
This module is the second in Criminal Law and looks at the rights of arrestees. It delineates
the constitutional provisions relating to rights on arrest, namely Articles 20 and 22 and
discusses the important cases of the Supreme Court of India on this issue.

OBJECTIVES
1. To look at the constitutional provisions relating to rights on arrest
2. To learn about the the Supreme Court judgments on the rights of arrestees.

LEARNING OUTCOMES
1. Gain an overview of the constitutional rights of arrested persons.
2. To learn about the Supreme Court judgments on rights of arrestees.

1. CONSTITUTIONAL PROVISIONS RELATING TO ARREST

The provisions relating to the rights on arrest are contained in Part III of the Constitution
and they are fundamental rights. They are Article 20 and 22 and contain the following
rights:
a) No person shall be convicted of any offence except for violation of a law in force
at the time of the commission of the act charged as an offence (Criminal law to
be prospective in application and not retrospective) (Article 20 (1)- This means
that if on the date of the act, it was not an offence, then if later a law is brought in
making it an offence, it can only be applicable after the law is made and not
before. Civil laws can have retrospective application but not criminal law as since
my life and liberty is at stake, I should be in the know that a particular act is an
offence when I do something so that I can desist from doing it.
b) No person shall be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence
(Article 20 (1)- The second part of the article also stops the state from dealing
with a person with more stringent punishment than that which was imposed on
the date of the offence. Thus if an act is an offence and later is amended to bring
in more stringent punishment, then I should be dealt the same punishment that
was stipulated on the date of commission of the offence even if my trial and
conviction take place later. However if the punishment is reduced then I should
get the benefit of this lenient punishment.
c) No person shall be prosecuted and punished for the same offence more than once
(Rule of Double Jeopardy) (Article 20 (2)- This rule of double jeopardy means
that after my acquittal only an appeal can be filed, the matter cannot be
 reinvestigated. This is to bring finality a trial and investigation and not keep
harassing the person with fresh cases for the same act/offence.
d) No person accused of any offence shall be compelled to be a witness against
himself (Article 20 (3)- This is the right to silence of the accused. However the
Supreme Court in State of Bombay Vs. KathiKaluOghad (AIR1961SC1808) held
that the mere questioning of an accused person by a police officer, resulting in a
voluntary statement, which may ultimately turn out to be incriminatory, is not
'compulsion'. Also merely making of oral or written statements, production of
documents or giving materials, giving thumb impressions or impressions of foot
or palm or fingers or specimen writings or showing parts of the body by way of
identification are not included in the expression 'to be a witness'. 'To be a
witness' in its ordinary grammatical sense means giving oral testimony in Court
according to the Supreme Court.
e) No person who is arrested shall be detained in custody without being informed,
as soon as maybe, of the grounds for such arrest (Article 22 (1)- Apart from being
a fundamental right, this is also a right laid down in the CrPC which states that
every police officer or other person arresting a person without a warrant shall tell
him the full particulars of the offence for which he is arrested or other grounds
for such arrest. When the offence is a bailable offence, the accused shall be
informed by the police officer that he is entitled to be released on bail (Section 50
of CrPC). Apart from the accused, his relative or friend named by him also has
the right to be informed of his arrest.
f) No person who is arrested shall be denied the right to consult and to be defended
by, a legal practitioner of his choice (Article 22 (1)- Notonly does the accused
have a right have legal representation, but he also has a right to legal aid. In cases
where the accused is an indigent person entitled to legal aid and his case has been
unrepresented by a lawyer, then the conviction is liable to be set aside as held by
the Supreme Court in Khatrivs State of Bihar(1981) 1 SCC 627). The Supreme
Court has held that while the accused cannot demand a particular lawyer however
the assistance offered must be effective for meaningful defense. Assigning an
inexperienced lawyer will not discharge the obligation of the State (Kishore vs.
State of HP, 1991(1) SCC 286).
g) 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 from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said period
without the authority of a magistrate (Article 22 (2)- Failure to produce a person
before the Magistrate within this period would render any custody beyond this
period illegal detention. This will give rise to right to criminally prosecute the
police for wrongful detention and wrongful restraint. Apart from this, since it is
violation of a fundamental right, the victim of illegal detention also has a right to
compensation.
Apart from these provisions, Article 21, which states that no person shall be deprived of his
life or personal liberty except according to procedure established by law, has been used to
evolve the jurisprudence of prisoners’ rights, which we shall look at in the next section. The
issue of bail and the rights on bail will be looked at in the next module where we shall be
looking at rights of the arrestees under the Code of Criminal Procedure.

2. SUPREME COURT ON RIGHTS OF ARRESTEES

In this section we shall be looking at some of the landmark judgments of the Supreme Court
on rights of arrestees. We have divided the section on the basis of the thematic areas that the
Court has dealt with.
a) Arrest
 i. Joginder Kumar vs. State of Uttar Pradesh, 1994(4) SCC 260 the court
In this case, the court held that no arrest can be made because it is lawful for the
police officer to do so. The existence of the power of arrest is one thing. The
justification for the exercise of it is quite another. The police officer must be able to
justify the arrest apart from his power to do so. Arrest and detention in police lockup
of a person can cause incalculable harm to the reputation and self-esteem of the
person. No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against the person. It would be prudent for a police
officer in the interest of protection of constitutional rights of a citizen and perhaps in
his own interest that no arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness and bonafides of a complaint
and a reasonable belief both as to the person's complicity and even so as to the need
to effect arrest.

ii. D.K. Basuvs State of West Bengal (1997 Cri.L.J. 743)

In this landmark judgment the Supreme Court issued several directions to prevent
abuse of the powers to arrest and torture and also held forth on the right to
compensation. The directions issued have to be mandatorily followed by all the
departments making an arrest and hence have been set out in great detail below:
 The police personnel carrying out the arrest and handling the interrogation of the
arrest should bear accurate, visible and clear identification and name tags with
their designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register;
 The Police Officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one
witness, who may either be a member of the family of the accused or a
respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date of arrest;
 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
being detained at a particular place, unless the attesting witness of the memo of
arrest is himself, such a friend or a relative of the arrestee;
 The time, place of arrest and venue of custody of an accused must be notified by
the police where the next friend or relative or the accused lives outside the district
or town through the Legal Aid Organisation in the district and the police station
of the area concerned telegraphically within a period of 8 to 12 hours after the
arrest;
 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;
 An 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;
 It shall be the duty of the Magistrate before whom the arrestee is produced to
satisfy himself that these requirements have been complied with;
 The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his body, must be recorded
at that time. The "Inspection Memo" must be signed by both the arrestee and the
police officer effecting the arrest and its copy provided to the arrestee;
 The arrestee should be subjected to medical examination by a trained doctor
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. Director, Health Services should prepare such a panel for all
Tehsils and Districts as well;
 Copies of all the documents including the memo of arrest, referred to above,
should be sent to the illaqa Magistrate for his record;
 The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation;
 A police control room should be provided at all Districts and State headquarters,
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.
 Failure to comply with the said requirements shall apart from rendering the
concerned official liable for departmental action, also render him liable to be
punished for contempt of Court and the proceedings for contempt of court may be
instituted in any High Court of the country having jurisdiction over the matter;
 These requirements would apply with equal force to the other governmental
agencies also, like Directorate of Revenue Intelligence, Directorate of
Enforcement, Coastal Guard, Central Reserve Police Force, Border Security
Force, the Central Industrial Force, the State Armed Police, Intelligence agencies
like the Intelligence Bureau, R.A.W., Central Bureau of Investigation, CID,
Traffic Police, Mounted Police and ITBP

b ) Rights of Women Prisoners

(i) SheelaBarsevs State of Mahrashtra (1993 Cri.L.J. 642)

Women accused should be kept in separate lock ups from male arrestees and police
lock ups in reasonably good localities of the city should be selected where only
female suspects should be kept and they should be guarded by female constables.
The Supreme Court further held that the interrogatories of females should be
carried out only in the presence of female police officers / constables.

(ii) R.D. UpadhyayVs.State of A.P, (AIR 2006 SC 1946)

• In this judgment, the Supreme Court dealt with the rights of women prisoners whose
children are in jail with them. The court issued directions for medical facilities and
special diet for pregnant women, lactating mothers and young children who live with
their mothers in prison. The court also held that uniformly a child could live with his or
her prisoner mother until the age of 6 years and thereafter in the absence of any relative,
would shift to a children’s home. But the mother had the right to meet the child once
every week and be released when the mother is released. As far as possible, the child
shall not be transferred to an institution outside the town or city where the prison is
located in order to minimize undue hardships on both mother and child due to physical
distance. The court also held that no stigma should be attached to the child due to the
birth in the prison and the birth certificate issued to the child should only contain the
district name and not the name of the prison. The court further held that till the child was
in prison, crèche and nursery facilities be provided for the child outside the prison. The
Court directed the State Legal Services Authorities shall take necessary measures to
periodically inspect jails to monitor that the directions regarding children and mother are
complied with in letter and spirit.

c) Rights of Prisoners
(i) Sunil BatraI (Sunil Batra vs. Delhi Administration, 1978 (4) SCC 494)
b) In this judgment, which was a letter written to the Supreme Court converted into a
PIL, the court prohibited solitary confinement while permitting separate confinement.
The court held that this should be done with the permission of a Court or when the
prisoner requested the same. The difference between solitary confinement and
separate confinement is that the prisoner has a separate cell but is not secluded or
segregated from the rest of the jail and allowed to leave his cell.
(ii) Sunil Batra II (Sunil Batra vs. Delhi Administration (II),1980 (3) SCC
488)
In the second judgment the Supreme Court directed District Magistrates to
inspect the jails every week and perform the following functions:
 Inspect the barracks, cells, wards, workshed and other buildings of the jail
generally and the cooked food;
 Ascertain whether considerations such as health, cleanliness and security are
attended to, whether proper management and discipline are maintained in
every respect, and whether any prisoner is illegally detained or is detained for
an undue length of time while awaiting trial;
 Examine jail registers and records;
 Hear, attend to all representations and petitions made, by or on behalf of
prisoners;
 Direct, if deemed advisable, that any such representation or petitions be
forwarded to the government; and
 No prisoner shall be punished for any statement made by him to a visitor
unless an inquiry made by magistrate results in a finding that it is false.

The court also directed that the Magistrate should keep a grievance box in each
ward to which free access shall be afforded to every inmate. It should be kept
locked and sealed by him and on his periodical visit, he alone or his surrogate
should open the box, find out the grievances, investigate their merits and take
remedial action if justified.

d) Rights against Torture

(i) Citizens for Democracy vs. State of Assam, 1995(3) SCC 743
In this case, it was held that handcuffing is violative of Article 21. As a rule,
handcuffs or other fetters shall not be forced on a prisoner- convicted or undertrial-
while lodged in a jail any where in the country or while transporting or in transit from
one jail to another or from jail to court and back. The police and the jail authorities,
on their own, shall have no authority to direct the handcuffing of any inmate of a jail
in the country or during transport from one jail to another or from jail to court and
back. The court held that when the police or other authorities feel the need for
handcuffing for security reasons they should get the permission to do so from the
concerned court.

(ii) Smt. NilabatiBehera vs. State of Orissa, 1993(2)SCC 746

In this case as well as other cases including D.K.Basu’s case, the Supreme Court held
that torture violates Article 21. In this case which was about the custodial death of a
boy by the police the state was directed to pay compensation to the mother for
violation of the boy’s right to life. It was held that award of compensation for
established infringement of the indefeasible rights guaranteed under Article 21 of the
Constitution is a remedy available in public law since the purpose of public law is not
only to civilise public power but also to assure the citizens that they live under a legal
system wherein their rights and interests shall be protected and preserved.

e) Speedy Trial
(i) A.R.Antulay vs. R.S.Nayak, 1992(1) SCC 225
In this judgment, the Supreme Court held that the right to speedy trial is part of
Article 21 and encompasses all the stages, namely the stage of investigation, inquiry,
trial, appeal, revision and retrial.The Court also held that while determining whether
undue delay has occurred (resulting in violation of right to speedy trial) one must
have regard to all the attendant circumstances including nature of offence, number of
accused and witnesses, the workload of the court concerned, prevailing local
conditions and so on- what is called, the systemic delays. It is true that it is the
obligation of the State to ensure a speedy trial and State includes judiciary as well,
but a realistic and practical approach should be adopted in such matters instead of a
pedantic one was the opinion of the Court.

(ii) In Re Inhuman Conditions in 1382 Prisons (AIR 2016 SC 993)

In this judgment, the Supreme Court lamented that the conditions in prisons have not
changed despite many judgments and also that the majority of the inmates in prisons
are undertrials whose cases are pending. The Court directed that Under Trial Review
Committee comprising of the District Judge, as Chairperson, the District Magistrate
and the District Superintendent of Police as members established in every District,
within one month of the order. This was to be ensured by the Member Secretary of
NALSA will, in coordination with the State Legal Services Authority and the
Ministry of Home Affairs. The Court also directed that Under Trial Review
Committee should consider the cases of all under trial prisoners who are entitled to
the benefit of Section 436A of the Code (have completed more than half the term of
the maximum sentence). The court directed the Committee to meet every quarter and
the Secretary of the District Legal Services Committee to attend the meetings. The
Under Trial Review Committee should specifically look into aspects pertaining to
effective implementation of Section 436 of the Code of Criminal Procedure and
Section 436A of the Code of Criminal Procedure so that undertrial prisoners are
released at the earliest and those who cannot furnish bail bonds due to their poverty
are not subjected to incarceration only for that reason. The Under Trial Review
Committee was directed to also look into issue of implementation of the Probation of
Offenders Act, 1958 particularly with regard to first time offenders so that they have
a chance of being restored and rehabilitated in society. The Court also directed the
District Legal Services Committee to also appoint an adequate number of competent
lawyers are empanelled to assist undertrial prisoners and convicts, particularly the
poor and indigent, and that legal aid for the poor does not become poor legal aid and
also look into the issue of compoundable offences with the effort being to effectively
explore the possibility of compounding offences rather than requiring a trial to take
place.

CONCLUSION
In this module we have looked specifically at Articles 20 and 22 of the Constitution
of India which form the backbone of prisoners rights in India. We have then looked at
some of the landmark judgments of the Supreme Court relating to rights of arrestees.
In the next module we shall continue to look at the rights of accused persons with
reference to the Code of Criminal Procedure.