Constitutional Rights and other Legal Rights

Article 20 of the Constitution of India prohibits:

  • Conviction or greater sentence for an offence under ex post facto criminal laws
  • Prosecution and punishment for the same offence more than once
  • Compelling a person accused of any offence to be a witness against himself

Article 21 protects against arbitrary:

  • Arrest
  • Detention and
  • Deprivation of life and personal liberty

Article 22 guarantee to a person arrested for any offence:

  • Right to be informed as soon as may be of the grounds of arrest
  • Right of freedom to consult and to be represented by a lawyer of his own choice
  • Right to be produced before a Magistrate within 24 hours of arrest and detention. Beyond the said period, person can be detained or arrested only on the order of the Magistrate.
  • Free legal aid is provided to those who cannot afford the same.

Section 50 CrPC provides for Communication of:

  • Grounds of arrest to the accused person
  • Right to be released on bail if a person is arrested not for a non-bailable offence and that he may arrange for sureties on his behalf

Sections 49, 54, 56 and 76 Cr PC put in effect Constitutional provisions to prevent arbitrary exercise of power to arrest

  • An arrested person cannot be subjected to more restraint than is necessary to prevent his escape. (Section 49 CrPC)
  • Use of handcuffs is permitted only in exceptionally rare cases to prevent escape or violence keeping in view the propensity of the arrested person
  • Medical examination of an accused by a medical practitioner. (Section 54 CrPC)
  • Expeditious production of a person arrested without a warrant, subject to provisions regarding bail, before a Magistrate or the officer in charge of a police station. (Section 56 CrPC)
  • No detention of a person arrested without warrant beyond 24 hr in the absence of a special order of a Magistrate under section 167 CrPC (Sec. 57 CrPC)
  • Production before a Magistrate within 24 hours of person arrested in execution of warrant. (Sec. 76 CrPC)

Section 47, 51, 100 and 165 Cr. PC while empowering search also lay down safeguards

  • Safe custody of articles seized from the person of an arrested person and giving of a receipt in this regard. (Sec. 51CrPC)
  • Association of witnesses, search in their presence and signing of the search list by them; occupant or his representative to be allowed to be present during the search and providing of a list of seized articles to the person searched. (Sec.100 and 165 CrPC)

Section 436, 437, 438 along with Sections 50(2) and 167 Cr PC provide for the procedure for release on bail.

  • Bail, on production of proper surety/bond, is a matter of right in case of bailable offences. (Sec. 436 CrPC).
  • In non bailable cases, the arrested person or his counsel can move the appropriate Court for bail, which may be granted or denied keeping in view the legal provisions and the facts and circumstances of the case.