Legal right of the person at the time of arrest
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It is sad to mention that very few of us actually know our legal right that too at the time of arrest. One shall, whether or not, a legal practitioner shall know her/his legal right to protect himself from unjust circumstances.
To protect the legal rights of the person emphasised in D.K. Basu v. State of Bengal [AIR 1997 SC 610] that custodial torture is a naked violation of human dignity and degradation which destroys to a very large extent the individual personality.
Further, section 41-B, 50-A, and 54 was introduced through CrPC (Amendment) Act, 2005 lay down the procedure of arrest of a person and duties of the officer making the arrest.
Section 41-B lays down the procedure of arrest of a person and duties of the officer making the arrest. Apart from preparing a memorandum of arrest, which shall be attested either by a member of the family of the arrested person or a respectable member of the locality, it is the duty of the police officer to inform the arrested person that he has a right to have a relative or a friend named by him to be informed of his arrest.
Section 50 further confers the right to the arrested to have full particulars of the offence and other grounds of arrest.
Section 50-A casts an obligation on the person making the arrest to inform about the arrest, the place where the arrested person is being held and the right of the arrested person to be brought to police station. To the person so nominated by the arrested person.
Section 54 makes an obligation on the arresting authority to ensure that the arrested person is examined by a government doctor or a registered medical practitioner.
Section 51 lay down the procedure before making the personal search of the accused. The searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. This rule is meant to avoid the possibility of implanting an object to be shown in the search. The ground of such arrest must be given to the accused. Where no such grounds are given, the search becomes illegal and thus it could lead to acquittal of the accused, or amount to compensation to the accused in case of the accused have to suffer harassment.
Section 53 further protects the person from illegal investigation or from illegal process to conduct legal investigation. It lays down the condition that medical examination will have to be done at the instance of a police officer not below the rank of sub-inspector. The person shall not be subjected, voluntarily or involuntarily, to polygraph and brain fingerprinting tests as these types of test is barred by Article 21 (3) of the Constitution of India. In Selvi v. State of Kernataka [AIR 2010 SC 1974] the Supreme Court mentioned that subjecting a person to polygraph and brain fingerprinting tests involuntarily has been held as amounting to forcible interference with his mental process. It is clear violation of right of privacy.
Section 53-A provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the registered medical practitioner employed in Government Hospital or in absence by local authority. It is necessary for the woman who was raped to go through DNA test. Denial or obstruction by, whomever, is penal.
Section 55-A lay down that it shall be duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. The constitution of India, under Article 22 (2) also provides for producing the arrested person before magistrate within 24 hours.
Section 57 mentioned that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place to the Magistrate’s court.