An Individual's Rights During Police Questioning

Author: Deepika Srivastava, Bharati Vidyapeeth University, Pune

Introduction

A major governing criminal law in India i.e. Criminal Procedure Code, 1973 which is now called Bharatiya Nagarik Suraksha Sanhita, 2023 gives a provision of arrests of persons accused of an offence or called for questioning by the investigating police officers or any other officer prescribed for the same. This arrest of a person can be with or without warrant. The Constitution of India has also provided us various fundamental rights and if these rights are violated one can approach the Supreme Court or High Court. A person called for questioning or arrested may also have some rights which they can exercise during such arrest.

Background

One of the most important and basic principles of India’s Legal system is that ‘The accused is presumed to be innocent until proven guilty’. Even an accused person also has some basic rights which he may exercise even after he has been taken into custody or during police questioning and he/she should not be treated in an inhuman way. The accused will possess these basic rights during pre-trial, trial and post- trial period. Every accused or arrested person should know their rights and how to exercise them and also how to avoid the violation of these rights.

Various Rights and Related Provisions

Under Section 41D , which was added by the 2008 Amendment Act for the purpose to avoid illegal arrest and illegal detention, of Criminal Procedure Code 1973, now Section 38 of Bharatiya Nagarik Suraksha Sanhita 2023, it is explicitly mentioned that an arrested person, during his interrogation is entitled to meet an advocate of his choice.
Under Section 46 of Criminal Procedure Code 1973, now Section 43 of Bharatiya Nagarik Suraksha Sanhita 2023, it is mentioned in clause 3 of the section that this section does not gives a right to cause the death of a person who is not accused of an offence punishable with death or with life imprisonment.
Under Section 49 of Criminal Procedure Code 1973, now Section 46 of Bharatiya Nagarik Suraksha Sanhita 2023, it is mentioned that an arrested person shall not be subjected to more restraint than is necessary to prevent his escape.
Under Section 50 of Criminal Procedure Code 1973, now Section 47 of Bharatiya Nagarik Suraksha Sanhita 2023, it is mentioned that an accused person has a right to know the grounds of his arrest and of right to bail. The police officer making the arrest should communicate full information with details of the offence for which the arrest is made. And where the person is arrested for a bailable offence he/she shall be informed that he is entitled to get bail and be released against some sureties.
Under 50A, added by the 2005 Amendment Act, of Criminal Procedure Code, 1973, now Section 48 of Bharatiya Nagarik Suraksha Sanhita 2023, creates an obligation for a police officer to inform about the arrest and place where the arrested person is being kept to any of friends, relatives or any other nominated person by the arrested person.
Under Section 56 and 57 of Criminal Procedure Code 1973, now Section 57 and 58 of Bharatiya Nagarik Suraksha Sanhita 2023, it is mentioned that any person arrested should be produced before a magistrate within 24 hours and an arrested person (without warrant) should not be kept in detention more than 24 hours without the special permission of magistrate, respectively.
Under Section 75 of Criminal Procedure Code 1973, now Section 77 of Bharatiya Nagarik Suraksha Sanhita 2023, an arrested person shall be notified of the substance of warrant.
Under Section 303 of Criminal Procedure Code 1973, now Section 340 of Bharatiya Nagarik Suraksha Sanhita 2023, the arrested person has a right to be defended by a legal counsel of his choice during the proceedings in the criminal court of law.
Under Section 304 of Criminal Procedure Code 1973, now Section 341of Bharatiya Nagarik Suraksha Sanhita 2923, the arrested person has the right to get free legal aid. For those persons who cannot afford legal counsel, the state must provide a lawyer at the state’s expense.

Constitutional Provisions

Article 22(1) of the Constitution of India states , “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.”
Article 22(2) of the Constitution of India states, “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
Article 21 of the Constitution of India guarantees the right to life and personal liberty. The right to a speedy trail is an inherent part of Article 21 of the Constitution. In the case of Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, Patna on 9 March, 1979 it was held that the Constitution provides an accused the right to a speedy trial, although this right is not explicitly stated in the Constitution.
Article 39A of the Constitution of India directs the state to provide for free legal aid.

Conclusion

Overall, the rights of an individual during police questioning is a crucial right in relation to maintaining their personal liberty under Article 21 of the Constitution of India. The Criminal Procedure Code, 1973 and The Constitution of India is a framework that guarantees that no one should be illegally arrested or detained during police custody and additionally it restricts the authorized and concerned police officers from misusing their powers by not treating the accused or arrested person with dignity and violating their basic fundamental rights during the arrests.

Every person whether accused or not, should know about their basic rights which they can exercise during such kind of interrogation, if it may happen.