CONSTITUTIONAL AND LEGAL RIGHTS OF CITIZENS :
Presumption of innocence of the accused, burden of proof on the prosecution, observance of principles of natural justice and requirement of mens-rea are among the basic features of our criminal justice system.
Article 20 of the Constitution of India prohibit
• Conviction of 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 witness against himself.
Article 21 protects against arbitrary:
• 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 only on the order of the Magistrate.
Free legal aid is provided to those who cannot afford the same. It is provided not only when trial commences but also during police custody or during production before the magistrate for the first time or for remand from time to time. Eligible persons for free legal aid in Mizoram are:
a) a member of Scheduled Caste or Scheduled Tribe;
b) a victim of trafficking in human beings or beggar;
c) a woman or a child;
d) a mentally ill or otherwise disabled person;
e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
f) an industrial workman; or
g) in custody including custody in a protective home within the meaning of the Immoral Traffic (Prevention) Act, 1956, or in a juvenile home within the meaning of the Juvenile Justice Act, 1986, or in a psychiatric hospital/or psychiatric nursing home within the meaning of the Mental Health, 1987; or
h) a citizen of India whose annual income from all sources does not exceed fifty thousand rupees.
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 non-bailable offence and that he may arrange for sureties on his behalf.
Sections 49, 56 and 76 CrPC 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.
• No detention of a person arrested without warrant beyond 24 in the absence of a special order of a Magistrate under section 167 CrPC (Section 57 CrPC).
• Production before a Magistrate within 24 hours of person arrested in execution of warrant.
Section 47, 51, 100 and 165 CrPC 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. (Section 51 CrPC).
• 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. (Section 100 and 165 CrPC).
Section 436, 437, 438 alongwith Section 50(2) and 167 CrPC 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.
• 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 circumstances of the case.
SPECIAL RIGHTS OF WOMEN AND CHILDREN :
• A woman can be searched, only by another woman with strict regard to decency. (Section 51 and 100 CrPC).
• Any female occupant, who as per custom does not appear in public and not being the person to be arrested, has to be afforded reasonable opportunity to withdraw before entering a place for arresting a person who may be hiding there.
• No male under the age of 15 years or a woman can be summoned by police as witnesses to depose about the facts and circumstances in a case under investigation at any place other than the place in which such male person or woman resides. (Section 160 CrPC). Nothing is an offence which is done by a child under seven years of age. (Sec. 82 IPC).
• Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. (Sec. 83 IPC).
The Juvenile Justice (Care and Protection of Children) Act, 2000 interalia prohibits;
• Lodging of children in jails and police lock-ups and lays down procedures including norms for investigation and trial in cases of juvenile crimes.
• Publication of names and other details of juveniles who are involved in any proceeding under the Act.
• Trial of juveniles with adults.
• Juvenile Boards and Courts in matters concerning bail and normally a juvenile shall not be denied bail. It also sets out procedure for rehabilitation and social reintegration of children.
GUIDELINES LAID DOWN BY THE HON’BLE SUPREME COURT IN D.K.BASU CASE :
The Hon’ble Supreme Court, in D.K.Basu Vs State of West Bengal, has laid down specific guidelines required to be followed while making arrests.
i. 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 designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
ii. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of the arrest.
iii. 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.
iv. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
v. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
vi. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
vii. The arrestee should, where he so request, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded t that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
viii. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
ix. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
x. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
xi. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on conspicuous notice board.
DUTIES OF AND EXPECTATIONS FROM PEOPLE :
• Please take initiative to check the crime. A private citizen can arrest or cause a person to be arrested if any non-bailable and cognizable offence is committed in his presence or a proclaimed offender comes across them. (Sec. 43 CrPC).
• Allow free ingress to a place if a police officer having authority to arrest/search or any person acting under a warrant of arrest/search, has reasons to believe that the person to be arrested has entered into or is within such a place. (Sections 47 & 100 CrPC).
• Assist the police officer if your assistance is sought by him to join a search. Refusal to do so when asked in writing, without reasonable cause, is an offence under section 187 IPC. (Sec 100 CrPC).
• Give correct evidence whenever associated in any investigation or trial. Do not give false information to the police to avoid wastage of police resources and to avoid penal action for making false or malicious or prank calls.
• Co-operate with the police in action against anti social elements and in maintaining law and order.
• Protect public property and do not indulge in acts, which damage or deface public property or places.
• All road users must be guided by the objective of enhancing road safety and must pay heed to the legitimate directions and suggestions of traffic police personnel and observe traffic norms and regulations.
• Help injured persons in road accidents by taking them to nearby hospitals and by informing the police. If desired, one would not be asked to be a witness in the case or otherwise put to any inconvenience.
• The driver of the motor vehicle responsible for a road accident is duty bound to take all reasonable steps to secure medical attention for the injured person by conveying him to the nearest medical practitioner or hospital unless it is not practicable to do so on account of mob fury or any other reason beyond his control. Failure in this regard punishable. (Section 134 Motor Vehicle Act, 1988).
• It is a duty of every registered medical practitioner or the doctor on duty in a hospital to immediately attend to the injured person and render medical aid without waiting for procedural formalities unless the injured person or his guardian (in case of a minor) desires otherwise (Section 134 Motor Vehicle Act 1988). Failure in this regard is punishable. (Section 134 Motor Vehicle Act, 1988).
• Community Policing initiatives must be given whole-hearted support. Security environment, particularly to curb crimes like thefts and burglaries, can be greatly enhanced if the local community takes initiative to improve physical security arrangement of the neighborhood and individual houses/establishments and deploys adequate number of watchmen.
• Be truthful and forthright while going to police for redressal of complaints. Avoid the unholy practice of exaggerating or maneuvering facts to attract operation of criminal laws or to enhance their severity. This is particularly unfortunate when such complaints are pushed through devious recommendations or monetary inducements. Such sort sighted actions strike at the root of the law and are among the factors responsible for many of the ills, like malicious investigations and burking, affecting policing. Chandigarh Police version, though may not be covered by criminal laws, would be given due consideration. All efforts would be made to resolve the same under the alternate complaint resolution mechanism as many such disputes lead to future crimes or breach of peace.
• Cherish our Constitutional values. All citizens in our democratic polity have equal stake in the rule of law.
• Do not ask or expect police to resort to unlawful or questionable means while dealing with crime or criminals or public disorder. Any such action abetted or acquiesced, in self-interest for quick results, is unsustainable. Your option shoul be against bypassing the rule of law.
• Our constitutional and legal processes have the capacity to evolve strategies to deal with the emerging treats. And you must be vigilant to prevent hijacking of the agenda in this regard by any vested interests, who generally are vociferous and often claim to reflect public opinion.