The Rights of an Arrested Person

Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law.

So the twenty-four hours is not a concession the Code makes. It is a constitutional guarantee that the Code repeats and works out in detail.

Section 47: the right to be told why

Sub-section (1). Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

Two words carry the weight. Forthwith means at the time of the arrest, not at the police station and not when the charge sheet is filed. Full particulars means more than the section number: enough for the person to know what he is said to have done.

Sub-section (2). Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform him that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

That second right is easily missed and it is very practical. In a bailable offence, bail is a matter of right. A person who does not know that will sit in a lock-up over a weekend for no reason. Section 47(2) makes telling him somebody's duty.

Section 48: the right to have somebody informed

Sub-section (1). Every police officer or other person making an arrest shall forthwith give the information regarding the arrest and the place where the arrested person is being held to:

• any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose; and
• the designated police officer in the district.

The second limb is new in substance and it matters. Under the old Code the information went to a nominated person. The Sanhita adds a second recipient inside the police force whose whole job under section 37(b) is to maintain and display the names and addresses of persons arrested. So there is now a record outside the arresting officer's own station.

Sub-section (2). The officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.

Sub-section (3). An entry of the fact of who has been informed shall be made in a book kept in the police station in the form the State Government provides by rules.

Sub-section (4). It is the duty of the Magistrate before whom the arrested person is produced to satisfy himself that sub-sections (2) and (3) have been complied with.

Sub-section (4) is the enforcement. The right would be worthless if nobody checked, so the Sanhita makes checking a judicial duty, and a Magistrate who signs a remand order without asking has not done his job.

Section 38: the right to a lawyer during interrogation

When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

The two halves of that sentence are both deliberate.

"During interrogation" means the right operates while the questioning is going on, not only after it. That is what makes it useful.

"Though not throughout" means the advocate is not entitled to sit through the whole of it. The right is to meet, not to attend as of right from beginning to end.

The section is the statutory form of what the Supreme Court held in D.K. Basu and, before it, in Nandini Satpathy v. P.L. Dani, which is worked in [The Powers of the Investigating Officer].

Sections 56 to 60: custody, production and release

Section 56, health and safety. It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. One line, and it is the provision a custodial death is measured against.

Section 57, production. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

Section 58, the twenty-four hours. 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 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whether having jurisdiction or not.

Four things in that sentence and all four are examinable.

The primary rule is reasonableness, not twenty-four hours. The period must not be longer than is reasonable in all the circumstances. Twenty-four hours is a ceiling on top of that, not a licence to hold somebody for a day.

The journey time is excluded. So a person arrested at a distance is not released because the road was long.

"Whether having jurisdiction or not". He must be produced before the nearest Magistrate's Court, and the fact that it is not the court that will try the case is no answer.

The only extension is a special order under section 187, which is the remand provision.

Section 59, reporting. Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant within the limits of their stations, whether or not they have been admitted to bail.

Section 60, discharge. No person who has been arrested by a police officer shall be discharged except on his bond, or bail bond, or under the special order of a Magistrate.

Section 60 stops the informal release. A person taken into custody cannot simply be let go on a nod; there must be a bond, a bail bond, or a Magistrate's order, so that the arrest and the release are both on record.

The cases

Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260. The facts and the holding on the necessity of arrest are worked in [When the Police May Arrest Without a Warrant]. What belongs here is the second half of the judgment. The Court held that an arrested person has the right, on request, to have a friend, relative or other person interested in his welfare told, as far as practicable, that he has been arrested and where he is being detained; that the police officer shall inform him of that right when he is brought to the police station; that an entry shall be made in the diary as to who was informed; and that it is the duty of the Magistrate before whom he is produced to satisfy himself that these requirements have been complied with. The Court said in terms that these protections must be held to flow from articles 21 and 22(1) and be enforced strictly.

Set that against section 48 and the correspondence is exact, sub-section by sub-section. Section 48(1) is the right to have someone informed. Section 48(2) is the duty to tell him of it at the station. Section 48(3) is the entry. Section 48(4) is the Magistrate's duty to check. The only difference is that the Sanhita drops the words "on request": the officer must inform the relative whether or not he is asked.

D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. The facts and the eleven requirements are worked in [How an Arrest Is Actually Made]. Three of them belong to this chapter: the arrestee must be told of his right to have someone informed as soon as he is put under arrest; an entry must be made in the diary at the place of detention naming who was informed and the officers in whose custody he is; and he may meet his lawyer during interrogation, though not throughout. That last phrase is now section 38 word for word.

A worked example

Imran is arrested without a warrant at Sion at 8 p.m. on a Friday for an offence punishable with four years, which is non-bailable.

At the moment of arrest. The officer must forthwith communicate to him full particulars of the offence or the other grounds for the arrest, under section 47(1). He must prepare the memorandum under section 36. Because the offence is non-bailable, section 47(2) does not apply, so there is no duty to tell him he is entitled to bail.

Immediately after. The officer must forthwith inform a relative or friend nominated by Imran, and the designated police officer of the district, of the arrest and the place where he is held, under section 48(1).

At the police station. The officer must tell Imran of that right, under section 48(2), and make an entry in the station book of who was informed, under section 48(3).

During interrogation. Imran is entitled to meet an advocate of his choice, though the advocate is not entitled to be present throughout, under section 38.

By Saturday evening. He must be produced before a Magistrate. The twenty-four hours runs from the arrest at 8 p.m. on Friday and excludes the time necessary for the journey to the court. The Magistrate need not be the one with jurisdiction over the case.

Before the Magistrate. The Magistrate must satisfy himself that sections 48(2) and 48(3) were complied with, under section 48(4). If they were not, he says so on the record.

Change the offence to one that is bailable. Now section 47(2) bites: the officer must tell Imran that he is entitled to be released on bail and may arrange sureties. And under section 60 he can be discharged on his bond or bail bond without troubling a Magistrate.

Distinctions

What this does NOT mean

Twenty-four hours is not an entitlement to hold somebody for twenty-four hours. Section 58 begins with reasonableness; the twenty-four hours is the outer limit.

The journey time is excluded, not added. The clock does not run while the person is being taken to court, and that is the meaning of "exclusive of the time necessary for the journey".

Section 38 does not give a right to have a lawyer present throughout interrogation. The words are "though not throughout interrogation".

Section 48 is not conditional on a request. Unlike Joginder Kumar, which spoke of the right "upon request", section 48(1) makes it the officer's duty to give the information forthwith.

And a person arrested cannot simply be let go. Section 60 requires a bond, a bail bond, or a special order of a Magistrate.

Quick revision

• Section 47(1): forthwith communicate full particulars of the offence or other grounds. Section 47(2): in a bailable case, tell him he is entitled to bail and may arrange sureties.
• Section 48(1): inform a nominated relative or friend and the designated police officer in the district, of the arrest and the place of detention. (2) tell him of the right at the station. (3) make an entry in a book. (4) the Magistrate must satisfy himself that (2) and (3) were done.
• Section 38: right to meet an advocate of his choice during interrogation, not throughout.
• Section 56: duty of the person having custody to take reasonable care of the health and safety of the accused.
• Section 57: take or send him before a Magistrate or the officer in charge of a police station without unnecessary delay.
• Section 58: no longer than is reasonable, and not beyond twenty-four hours excluding journey time, save under a special order under section 187.
• Section 59: report all warrantless arrests to the District Magistrate, or the Sub-divisional Magistrate if he so directs.
• Section 60: discharge only on a bond, a bail bond, or a special order of a Magistrate.
• Constitutional base: articles 21, 22(1) and 22(2).

Test yourself

1. State the twenty-four hour rule accurately. Under section 58, read with article 22(2), a person arrested without warrant may not be detained longer than is reasonable in all the circumstances, and in no case beyond twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whether that Court has jurisdiction or not, except under a special order of a Magistrate under section 187.

2. Whom must the arresting officer inform of the arrest? Any of the arrested person's relatives, friends or other persons disclosed or nominated by him, and the designated police officer in the district, under section 48(1).

3. What must the Magistrate check when the arrested person is produced? That the person was told of his rights at the police station and that the entry of who was informed was made, under section 48(4).

4. Is an arrested person entitled to have his lawyer present throughout his interrogation? No. Section 38 entitles him to meet an advocate of his choice during interrogation, though not throughout.

5. When must a person be told that he is entitled to bail? Where a police officer arrests without warrant a person other than one accused of a non-bailable offence, under section 47(2).

6. May a police officer release an arrested person without any formality? No. Section 60 requires a bond, a bail bond, or the special order of a Magistrate.

7. Which parts of section 48 come from Joginder Kumar? All four sub-sections correspond to the directions in that case, save that section 48(1) drops the requirement that the arrested person must ask before a relative is informed.