Judgments on:Accused Persons’ Rights

on Arrest

Debashis

HRLN, Kolkata

Joginder Kumar’s case(1994) 4 SCC 260

• The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation, as to the genuineness and bona fides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest.

Joginder Kumar’s case(1994) 4 SCC 260

• Except in heinous offences, an arrest must be avoided if a police officer issues notice to the person to attend the police station and not leave the station without permission

Prem Shanker Shukla’s Case (1980) 3 SCC 526

• Right not to be handcuffed or chained or roped

• Also in Citizen for Democracy v. State of Assam [(1995) 3 SCC 743]

D.K. Basu’s caseAIR 1997 SC 610

• Apart from informing the person arrested of the above rights, the police should also inform him of his right to consult and be defended by a lawyer of his choice.

• He should also be informed that he is entitled to free legal aid at state expense

Prabha Dutt’s Case(1982) 1 SCC 1

• Right of Media persons to interview an arrestee in custody

Sheela Barse’s Case(1983) 2 SCC 96

• Whenever a person is arrested by the police and taken to the police lock up, the police will immediately give an intimation of the fact of such arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps for the purpose of providing legal assistance to the arrested person at State cost

Sheela Barse’s Case(1983) 2 SCC 96

• Preferably a lady Judge, shall make surprise visits to police lock ups in the city periodically with a view to providing the arrested persons an opportunity to air their grievances and ascertaining the conditions in the police lock ups and whether the requisite facilities are being provided and the provisions of law are being observed

Sheela Barse’s Case(1983) 2 SCC 96

• As soon as a person is arrested, the police must immediately obtain the name of any relative or friend and should get in touch with such relative or friend and inform him about the arrest

Shobharam’ CaseAIR 1966 SC 1910

• The right to counsel applies at all custodial interrogations and at all critical stages of a prosecution after formal proceedings have begun. These stages include post-indictment interrogations, arraignment, guilty plea, and trial.

Khatri & Ors -Vs.- Bihar(1981) 1 SCC 627

• Decisions of the court made without the accused having been provided a lawyer are not valid

• Accused to be informed by Court of right to free legal aid at State cost

• Accused is entitled to compensation for violation

Nandini Satpathy’s Case(1978) 2 SCC 424

• The right to consult an advocate of his choice shall not be denied to any person who is arrested.

• The spirit and sense of Article 22(1) is that it is fundamental to' the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation.

• Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a-legal practitioner of his choice.

Nandini Satpathy’s Case(1978) 2 SCC 424

• Lawyer's presence is a constitutional claim in some circumstances in, our country also, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence

Nandini Satpathy’s Case(1978) 2 SCC 424

• Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated.

• He cannot harangue the police but may help his client and complain on his behalf, although his very presence will ordinarily remove the implicit menace of a police station

Nandini Satpathy’s Case(1978) 2 SCC 424

• “…We realize that the presence of a lawyer is asking for the moon in many cases until a public defender system becomes ubiquitous...”

• The police need not wait more than for a reasonable time for an advocate's arrival. But they must invariably warn-and record that fact about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgement

Smt. Selvi & Ors Vs. Karnataka(2010) 7 SCC 263

• Article 20(3) not only a trial right but its protection extends to the stage of investigation also

• Compulsory involuntary administration of the Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the `right against self-incrimination' enumerated in Article 20(3) of the Constitution as the subject does not exercise conscious control over the responses during the administration of the test.

CHRI Vs. State of West BengalW.P. 56 of 2013 – Calcutta HC

• A panel of Legal Aid Lawyers should be present in each Court hearing remand applications, so as to ensure that arrestees who cannot afford a defence lawyer is provided with a lawyer at State’s cost right from the date of first production

Bal Bahadur Vs. Customs OfficerCrl. A. No. 12/2009 – Delhi HC

• To ensure quality legal aid –Separate panel of trial court lawyers comprising senior lawyers of not less than 10 years or more experience and associate lawyers of not less than five years' to defend the indigent accused facing trial for commission of offences punishable with sentence of seven years and more