Some basic
rights have been settled by the Supreme Court a long while ago, but
citizens need to be reminded of these. At the time of arrest a citizen
has a right to demand that the policeman arresting him identity him.
It’s not automatic that you will be handcuffed, and the law indicates
when you should be handcuffed. Secondly, you have a right to inform your
relatives. Finally, you have a right to consult with your lawyer. These
are three basic rights at the time of the arrest.
Can you ask the policeman
who arrests you to identify himself?
Yes, the
policeman making the arrest must identify himself? In D K Basu v State
of West Bengal (1997 (1) SCC 416) the Supreme Court has held that ‘the
police personnel carrying out the arrest and handling the interrogation
of the arrestee should bear accurate, visible and clear identification
and name tags with their designation. The particulars of all such police
personnel who handle interrogation of the arrestee must be recorded in a
register.’
Thus, not only the officer who arrests you, but all policemen who
interrogate you must carry clear identification with them. The policeman
who arrests you must also let you know the ground of arrest. While
making the arrest he is not expected to put handcuffs on you, as they
show in the films. He can do this only if it is necessary in order to
prevent your escape. Section 49 of the Code provides as follows :
‘49. No unnecessary restraint - The person arrested shall not be
subjected to more restraint than is necessary to prevent his escape.’
Can you insist that the
police inform your relatives / friends of the fact of your arrest?
Suppose that you are a bachelor living alone in an apartment in a city
you have recently shifted to. The police have come to arrest you. Can
you insist that your near and dear ones be informed? According to the D
K Basu judgement, the police officer that carries out the arrest must
prepare a memo of arrest at the time of arrest. This arrest memo must be
attested by at least one witness. This witness could be a member of your
family or a respectable person of the locality from where the arrest has
been made. You must countersign this arrest memo. Thus ordinarily your
near and dear ones would come to know either directly, or through the
person in the locality who has been informed.
In Basu’s case, the Court has held it to be the duty of the police to
inform you, that you have the right to have someone informed of your
arrest or detention as soon as you are put under arrest or detained. It
states clearly that ‘ 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
the particular place, unless the attesting witness of the memo of arrest
is himself such a friend or a relative of the arrestee.’
Right To Legal Advice
After your arrest by the police, you can ask them to allow you to
consult your lawyer. In Basu’s case the Supreme Court held that ‘ the
arrestee may be permitted to meet his lawyer during interrogation though
not throughout the interrogation.’ The right to consult a lawyer and
have him defend you is in fact a citizen’s fundamental right, guaranteed
to him by the Constitution. Article 22 (1) reads as follows :
‘ No person who is arrested shall be detained in custody without being
informed as soon as may be, of the grounds for such arrest, nor shall he
be denied the right to consult and to be defended by a legal
practitioner of his choice.’
While you are entitled to speak to and consult with your lawyer while
you are in police custody, you will have to pay his fees, as he is
privately engaged by you. The Government will not provide you with the
free services of a lawyer. In the UK on the other hand a Duty Solicitor
scheme is operational for some years now whereby legal aid provides for
the services of a lawyer free of cost even at this early stage of the
proceedings.
Possibly there are budgetary constraints here, which do not make such a
scheme feasible here as yet.
During the course of your trial however you will be entitled to the
services of a lawyer at State expense if you cannot afford one. The law
in this regard has been clearly laid down in the case of Khatri vs State
of Bihar (AIR 1981 SC 928). Regarding the liability of the State of
Bihar to provide legal services, the Court observed as follows:
‘We may point out to the State of Bihar that it cannot avoid its
constitutional obligation to provide free legal services to a poor
accused by pleading financial or administrative inability. The State is
under a constitutional mandate to provide free legal aid to an accused
person who is unable to secure services on account of indigence and
whatever is necessary for this purpose has to be done by the State. The
State may have its financial constraints and its priorities in
expenditure but, as pointed out by the Court in Rhen vs Malcolm 337 F
Supp. 995 :- “the law does not permit any Government to deprive its
citizens of constitutional rights on a plean of poverty.” It further
observed that ‘even this right to free legal services would be illusory
for an indigent accused unless the Magistrate or the Sessions Judge
before whom he is produced informs him of such right. It is common
knowledge that about 70 percent of the people in rural areas are
illiterate and even more than that percentage of people are not aware of
the rights conferred upon them by law. There is so much lack of legal
awareness that it has always been recognized as one of the principle
items of the programme of the Legal Aid movement in the country to
promote legal literacy. It would make a mockery of legal aid if it were
to be left to a poor ignorant and illiterate accused to ask for free
legal services.’
The Court did however opine that there could be cases where legal aid
may not be granted on grounds of social justice. It observed that ‘there
may be cases involving offences such as economic offences or offences
against laws prohibiting prostitution or child abuse and the like where
social justice may require that free legal services need not be provided
by the State.’
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