Rights
of an Individual during and after arrest:
[[Rights
bear no meaning unless it is exercised. The authorities are going to be lax and
rights are going to be bookish unless it is ignited.]]
The
Supreme Court of India in case of “Joginder Kumar vs. State of U.P. & Others”,
“D. K. Basu vs. State of West Bengal and various other cases has gone through
thought process of individual rights during arrest and laid down certain
guidelines. Following guidelines issued by the Supreme Court of India and other
courts individual rights during and after the arrest are also enshrined in
police manuals. The Same are summarized point wise:
Before
Arrest:
** 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 apart from his power to
do so.
**No
arrest can be made in a routine manner on a mere allegation of commission of an
offence made against a person.
**
When a junior officer is deputed to arrest a person without a warrant, the SHO
must give a written order specifying the person to be arrested and the grounds
of such arrest. The deputed officer has to notify the substance of the order to
the person being arrested and if the person wants to see the order, even show
her/him the order of arrest.
Guidelines during Arrest:
** Police officers, carrying out arrest or interrogation must bear accurate, visible and clear identification and name tags with their designations.
** An
arrested person must be informed as soon as possible about the grounds of
arrest and her/his right to be represented by a lawyer.
**
The particulars of the officers handling arrest and interrogation must be
recorded in a register.
**
The police officer while arresting a person must make a memo of arrest, which
should be attested by at least one witness who is either a family or a
respectable member of the locality. The arrested person should also sign the
memo and a copy of the memo should be given to her/him.
Guidelines
after arrest:
**
Reasons for arrest and complete description of the arrested person must be
recorded in the case diary.
** An arrested person must be produced before the court within
twenty-four hours of arrest.
** In case a person is arrested for a bailable offence s/he must
be informed about her/his right to get bail.
** An arrested or detained person is entitled to inform a
friend, relative or any other person interested in her/his welfare about the
arrest and place of detention as soon as practicable. The arrested person must
be made aware of this right as soon as s/he is arrested or detained.
** An entry must be made in the diary at the place of detention
indicating the person to whom information of arrest has been given and also the
names of the persons in whose custody, the arrested person is being kept.
** A friend or relative of the arrested person must be notified
by the police about the time, date, place of arrest and the place of custody.
If that relative or friend lives outside the district or town, information
should be communicated telegraphically within 8-12 of the arrest through the
District Legal Aid Organisation and the concerned police station.
** Fetters or handcuffs are not be used as a matter of routine
or for convenience of the arresting or escorting officer.
** The police should not handcuff a person merely to humiliate
or harass her/him. The arrested person should not be handcuffed unless there is
a clear and present danger of her/him escaping and s/he is:
a) involved in serious non-bailable offences and has been
previously convicted of a crime; or
b) is of desperate character; or
c) is likely to commit suicide; or
d) is likely to attempt escape.
** If for any reasons the use of handcuffs is resorted to, such
reasons should be recorded in the Daily Diary Report. An accused person must not
be handcuffed to and fro from custody to the court, without permission of the
magistrate.
** Handcuffing is not necessary to prevent a prisoner from
escaping. There are other ways to prevent escape of persons in custody such as
increasing the strength of the armed escort or transporting them in
well-protected vans.
** The officer conducting the search of an arrested person
should prepare a memo of articles seized. A copy of the memo should be given to
the arrested person.
** Arrested persons should be held only in officially recognised
places.
** Care should be taken to ensure the safety and well being of
the detained person.
** Proper arrangements must be put in place to provide
subsistence, shelter and toilet facilities to those in custody. Detained
persons should be provided with adequate food, shelter, clothing as well as
easy access to medical services, exercise and items of personal hygiene.
** While a police officer can get an arrested person medically examined by a registered medical practitioner to get evidence about the commission of an offence, she/he must ensure that examination of women and girls should only be carried out by a woman medical practitioner.
** The substance of the medical examination report should be entered in the police station diary. All major and minor injuries on the arrested person should be recorded in a memo.
** Suitable arrangements must also be made for the treatment of any illness or injury.
** Medical examination of an arrested person should be carried out by a trained doctor, who is on the panel of approved doctors appointed by the Director, Health Services of the concerned state or union territory.
** The police officer should allow the arrested person to consult a lawyer of her/his choice. The lawyer can remain present during interrogation, if not for the whole but for a reasonable period of time.
** The police may be present at the time of the consultation, but sufficient privacy of conversation should be provided to the arrested person.
** No one (including arrested persons) should be subjected to torture, inhuman or degrading treatment.
** Accused persons cannot be forced into confessing guilt, or testifying against themselves.
** While a police officer can get an arrested person medically examined by a registered medical practitioner to get evidence about the commission of an offence, she/he must ensure that examination of women and girls should only be carried out by a woman medical practitioner.
** The substance of the medical examination report should be entered in the police station diary. All major and minor injuries on the arrested person should be recorded in a memo.
** Suitable arrangements must also be made for the treatment of any illness or injury.
** Medical examination of an arrested person should be carried out by a trained doctor, who is on the panel of approved doctors appointed by the Director, Health Services of the concerned state or union territory.
** The police officer should allow the arrested person to consult a lawyer of her/his choice. The lawyer can remain present during interrogation, if not for the whole but for a reasonable period of time.
** The police may be present at the time of the consultation, but sufficient privacy of conversation should be provided to the arrested person.
** No one (including arrested persons) should be subjected to torture, inhuman or degrading treatment.
** Accused persons cannot be forced into confessing guilt, or testifying against themselves.
**An arrested person cannot be made to sign any statement given
to the police in the course of investigation.
** An arrested person should not be photographed unless it is absolutely necessary. Permission of the Superintendent of Police or prior sanction of the Deputy Inspector General of Police or the Criminal Investigation Department must be taken before photographing the arrested person.
** Copies of all documents including the memo of arrest should be sent to the Area Magistrate.
** The nearest Legal Aid Committee should be informed as soon as an arrest is made so that the arrested person can take legal assistance.
** Information about the arrest and about the place where the arrested person is being detained must be sent to the State Police Headquarters within 12 hours of the arrest. This information should be prominently displayed in the police control room at both district and state headquarters.
Guidelines on Arrest of Women:
** As far as practicable women police officers should be associated where females are being arrested.
** Women and girls should not be called to the police station or to any place other than their place of residence for questioning.
** The time selected for questioning should not be intended to harass or embarrass the person being questioned. It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station.
** In case there is no separate lock up, women should be kept in a separate room.
** Girls and women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen.
** Body searches of females should only be carried out by women and with strict regard to decency.
** As far as possible, one of the two or more witnesses to the search must be women. Medical examination of women/girls should be carried only under the supervision of female medical practitioners
** All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their foetus should never be put at risk. Women must never be restrained during labour
** An arrested person should not be photographed unless it is absolutely necessary. Permission of the Superintendent of Police or prior sanction of the Deputy Inspector General of Police or the Criminal Investigation Department must be taken before photographing the arrested person.
** Copies of all documents including the memo of arrest should be sent to the Area Magistrate.
** The nearest Legal Aid Committee should be informed as soon as an arrest is made so that the arrested person can take legal assistance.
** Information about the arrest and about the place where the arrested person is being detained must be sent to the State Police Headquarters within 12 hours of the arrest. This information should be prominently displayed in the police control room at both district and state headquarters.
Guidelines on Arrest of Women:
** As far as practicable women police officers should be associated where females are being arrested.
** Women and girls should not be called to the police station or to any place other than their place of residence for questioning.
** The time selected for questioning should not be intended to harass or embarrass the person being questioned. It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station.
** In case there is no separate lock up, women should be kept in a separate room.
** Girls and women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen.
** Body searches of females should only be carried out by women and with strict regard to decency.
** As far as possible, one of the two or more witnesses to the search must be women. Medical examination of women/girls should be carried only under the supervision of female medical practitioners
** All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their foetus should never be put at risk. Women must never be restrained during labour