Arrest and right of an arrested person [50(1),

50(2), 57, 303, 304]

Section 50 of CrPC says that every police officer or any other person who is
authorised to arrest a person without a warrant should inform the arrested
person about the offence for which he is arrested and other grounds for such
an arrest. It is the duty of the police officer and he cannot refuse it. Section
50A of CrPC obligates a person making an arrest to inform of the arrest to
any of his friends or relative or any other person in his interest. The police
officer should inform the arrested person that he has a right to information
about his arrest to the nominated person as soon as he is put under custody.

Section 55 of CrPC states that whenever a police officer has authorised his
subordinate to arrest any person without a warrant, the subordinate officer
needs to notify the person arrested of the substance of written order that is
given, specifying the offence and other grounds of arrest. Section 75 of CrPC
says that the police officer(or any other officer) executing the warrant should
notify the substance to the person arrested and show him a warrant if it
required. Article 22(1) of the Constitution of India also states that no police
officer should arrest any person without informing the ground of arrest.

Right to be produced before the Magistrate without

unnecessary delay
Section 55 of CrPC states that a police officer making an arrest without a
warrant should produce the arrested person without unnecessary delay
before the Magistrate having jurisdiction or a police officer in charge of the
police station, subject to the conditions of the arrest. Section 76 of CrPC
states that the police officer executing a warrant of arrest should produce the
arrested person before the court before which he is required by law to
produce the person. It states that the person should be produced within 24
hours of arrest. While calculating the time period of 24 hours, it must exclude
the time which is required for the journey from the place of detaining to the
Magistrate Court. Article 22(2) of the Constitution states that the police
officer making an arrest should be produced before the Magistrate within 24
hours of arrest. If the police officer fails to produce before the Magistrate
within 24 hours, he will be liable for wrongful detention.

Rights to be released on Bail

Subsection(2) of Section 50 of CrPC states that when a police officer arrests
any person without a warrant for an offence other than non-cognizable
offence; he shall inform him that he has a right to release on bail and to
make an arrangement for the sureties on his behalf.

Rights to a fair trial

Any provision related to the right to a fair trial is not given in CrPC, but such
rights can be derived from the Constitution and the various
judgements. Article 14 of the Constitution of states that ”all persons are
equal before the law”. It means that all the parties to the dispute should be
given equal treatment.

Right to consult a lawyer

 Section 41D of CrPC states the right of the prisoners to consult his
lawyer during interrogation.
 Article 22(1) of the constitution states that the arrested person has
a right to appoint a lawyer and be defended by the pleader of his
choice.
 Section 303 of CrPC states that when a person is alleged to have
committed an offence before the criminal court or against whom
proceedings have been initiated, has a right to be defended by a
legal practitioner of his choice.

Right to free Legal Aid

Section 304 of CrPC states that when a trial is conducted before the Court of
Session, and the accused is not represented by the legal practitioner, or
when it appears that the accused has no sufficient means to appoint a
pleader then, the court may appoint a pleader for his defence at the expense
of the State. Article 39A obligates a state to provide free legal aid for the
purpose of securing justice. This right has also been explicitly given in the
case of Khatri (II) VS State of Bihar. The court held that “to provide free
legal aid to the indigent accused person”. It is also given at the time when
the accused is produced before the Magistrate for the first time along with
time commences. The right of the accused person cannot be denied even
when the accused fails to apply for it. If the state fails to provide legal aid to
the indigent accused person, then it will vitiate the whole trial as void. In the
case of Sukh Das vs Union Territory of Arunachal Pradesh, the court
held:- “The right of an indigent accused cannot be denied even when the
accused fails to apply for it”. If the state fails to provide legal aid to the
indigent accused person it will vitiate the whole trial as void.
Right to keep silence
Right to keep silent is not recognized in any law but it can derive its authority
from CrPC and the Indian Evidence Act. This right is mainly related to the
statement and confession made in the court. Whenever a confession or a
statement is made in the court, it is the duty of the Magistrate to find that
such a statement or the confession was made voluntarily or not. No arrested
person can be compelled to speak anything in the court. Article 20 (2) states
that no person can be compelled to be a witness against himself. This is the
principle of self- incrimination. This principle was reiterated by the case
of Nandini Satpathy vs P.L Dani. It stated, “No one can force any person to
give any statement or to answer questions and the accused person has a
right to keep silent during the process of interrogation”.

Right to be Examined by the medical practitioner

Section 54 of CrPC states that when the arrested person alleges that
examination of his body will lead to a fact which will disapprove the fact of
commission of an offence by him, or which will lead to commission of an
offence by any other person against his body, the court may order for
medical examination of such accused person at the request of him (accused)
unless the court is satisfied that such a request is made for the purpose of
defeating the justice.

Other Rights
Section 55A of CrPC states that it shall be the duty of the person, under
whose custody the arrested person is to take reasonable care of the health
and safety of the accused. The arrested person is to be protected from cruel
and inhuman treatment. Section 358 of CrPC gives rights to the
compensation to the arrested person who was groundlessly arrested. Section
41A of CrPC states that the police officer may give the notice to a person
suspected of committing a cognizable offence to appear before him at such
date and place. Section 46 of CrPC prescribes the mode of the arrest. i.e
submission to custody, touching the body physically, or to a body. The police
officer should not cause death to the person while making an arrest unless
the arrestee is charged with an offence punishable with death or life
imprisonment. Section 49 of CrPC states that the police officer should not be
more restrained than is necessary for the escape. Restraining or detention
without an arrest is illegal.

In D.K Basu vs State of West Bengal and others [8], this case is a landmark
judgement because it focuses “on the rights of the arrested person and it
also obligates the police officer to do certain activities”. The court also states
that if the police officer fails to perform his duty then he will be liable for
contempt of court as well as for the departmental actions. Such matter can
be instituted in any High Court having the jurisdiction over the matter.

In spite of various efforts in protecting the accused from the torture and
inhuman treatment, there are still instances of custodial deaths and the
police atrocities. So, the Supreme court issued 9 guidelines for the protection
of accused persons and the amendment of various sections of CrPC:- Section
41B– The police officer who is making an investigation must bear visible,
clear and accurate badge in which the name of the police officer along with
his designation is clearly mentioned. The police officer making an arrest must
prepare a cash memo containing a date and time of arrest which should be
attested by at least one member who can be his family member or any
respectable person of a locality. The cash memo should be countersigned by
the arrested person. Section 41D:- The arrested person is entitled to have a
right to have one friend, or relative or any other person who is having
interest in him informed about his arrest. The arrestee must be informed
about his right to have someone informed about his right immediately when
he is put under custody or is being detained.

 Entry is to be made in the diary which shall disclose the information

relating to the arrested person and it shall also include the name of
the next friend to whom information regarding the arrest is made. It
also includes the name and the particulars of the police officers
under whose custody the arrestee is. An examination is to be
conducted at the request of the arrestee and the major and minor
injuries if any found on the body must be recorded. The inspection
memo must be signed by the police officials and the arrested
person.
 The arrestee has the right to meet his lawyer during and throughout
the interrogation.
 Copies of all documentation are to be sent to the Magistrate for his
record. It also includes a memo of the arrest.
 Section 41C:- The court ordered for the establishment of state and
district headquarters, the police control room where the police
officer making an arrest shall inform within 12 hours of arrest and it
needs to be displayed on the conspicuous board.

Commencement of Proceeding before

Magistrate (204-210)
Scrutiny of the complainant before issues of process
The examination of the complainant is an initial process that strengthens the
entire proceedings. This process adds credibility to complaints in the
beginning stages. It is necessary to scrutinize the complaint before issuing
the process. Chapter XVI would come into play only after this examination is
over. The locus standi of the complainant is verified using this examination.
The Magistrate will also verify whether the complainant would come under
the exceptions provided in Section 195 to Section 199. The magistrate can
issue the process without postponing: when the prima facie case is made out
in the investigation. This process of scrutinizing the complainant has to be
done by the Magistrate himself and not by the advocate, however, the
concerned advocate can help in the process. Section 190 of the Code of
Criminal Procedure provides the condition to take cognizance of offences by
magistrates.

According to this section, the Magistrate can take cognizance when:

1. After receiving a police complaint;

2. After receiving complaints of facts which constitutes any offence;
3. After receiving information from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed;
4. The Chief Judicial Magistrate can empower any Magistrate of the
second class to take cognizance of offences which are within his
competence to conduct an inquiry or a trial.
The Magistrate can scrutinize the complaint and examine it completely before
issuing a process.

Examination of complainant
Section 200 of the Code of Criminal Procedure deals with the examination of
the complainant. The magistrate after taking cognizance of an offence has to
examine the complainant and witnesses present. This examination has to be
done upon oath. The magistrate also has the duty to note down the relevant
information found in such examination. The substance of such examination
should be given in writing and that has to be signed by the complainant and
the witnesses. The magistrate need not conduct this examination when:

1. If the complaint is made by a public servant who is acting or

purporting to act in the discharge of his official duties or a Court;
2. If the Magistrate makes over the case for enquiry or trial to another
Magistrate under Section 192.
If the magistrate in charge has examined the case and makes over the case
for enquiry or trial to another magistrate, then the latter magistrate does not
need to examine the cases again.
Inquiry or Investigation for further scrutiny of the
complainant
Section 202 of the act provides further scrutiny of the complainant. The
issuance of the process can be postponed if the Magistrate feels there is a
need for further investigation. The Magistrate will decide whether there is a
proper ground for conducting the proceeding. The scope of enquiry under
this section is restricted to the ascertainment of truth or falsehood made out
in the complaint.

Dismissal of complaint
Section 203 provides power to the Magistrate to dismiss a complaint. The
Magistrate can dismiss the complaint if he is of the opinion that there are no
sufficient grounds for conducting the proceedings. The Magistrate comes to
this conclusion after conducting an appropriate inquiry or investigation under
Section 202. The Magistrate can also dismiss the complaint if the processing
fee is not paid properly and this ground of dismissal is mentioned in Section
204. In the case of Chimanlal v Datar Singh, it was said that the dismissal of
a complaint is not proper if the Magistrate has failed to examine material
witness under Section 202. The Magistrate can dismiss the complaint or can
refuse the issue of the process when:

1. The Magistrate finds out no offence has been committed after the
complaint is reduced to writing according to Section 200;
2. If the Magistrate distrusts the statements made by the complainant;
3. If the Magistrate feels that there is a need to conduct further
investigation, then he can delay the issue of process.

Issuing a summons or warrant

Section 204 of this act provides the Magistrate power to issue a process if it
is found that there are sufficient grounds for carrying out the proceeding. The
Magistrate can issue a summons if it’s a summons case. A warrant is issued
in case of a warrant case. The Magistrate can also issue summons to the
accused in order to make him appear before the Magistrate concerned within
a certain date. No process shall be issued by the Magistrate if there are any
arrears in the payment of “process-fee” until the fee is paid within a
reasonable time. No summons or warrants can be issued against the accused
until a list of the prosecution witness has been provided. This section will not
affect the provisions provided in Section 87 of the act. Section 87 enables
the Magistrate to issue a warrant of arrest whenever it is necessary under
this section.
Power to dispense with the personal
attendance of the accused
Section 205 provides the Magistrate powers to dispense the personal
attendance of the accused in certain situations. The Magistrate can dispense
the personal attendance of the accused and permit him to appear by his
pleader if there are proper reasons. The Magistrate can also direct the
personal attendance of the accused in any stage of the investigation if it is
necessary. The exemption from personal appearance cannot be claimed as a
right but it is completely under the discretion of the court after applying
relevant judicial principles. The Magistrate considers various factors to
dispense attendance like:

1. Social status.
2. Customs and practice.
3. The distance at which the accused resides.
4. The necessity of personal attendance with regards to the offence
and the stages of the trail.

Special summons in cases of petty offences

The Magistrate can issue some special summons in cases of petty offences
according to Section 206 (2) For the purposes of this section,” petty offence”
means any offence punishable only with a fine not exceeding one thousand
rupees, but does not include any offence so punishable under the Motor
Vehicles Act, 1939 or under any other law which provides for convicting the
accused person in his absence on a plea of guilty. When a Magistrate takes
cognizance of petty offences the case can be summarily dismissed according
to Section 260, but sometimes the Magistrate will send the summons for the
person to appear in person or by pleader when it is needed. The reason for
such a decision has to be recorded.

Supply to the accused of copies of statements

and other documents
It is essential to supply relevant documents to the accused so that they can
understand the procedure followed and the status of the case. The
documents supplied might also be used for future reference whenever
necessary. The main need behind providing such documents is to avoid
prejudice during the trial. The non-supply of materials by the Magistrate that
is provided in Section 207 can be successfully used for setting aside a
conviction.
What is a First Information
Report
The term ‘First Information Report’ has not been defined in the Code of
Criminal Procedure. Rather the term has not been used except in section 207
which requires the Magistrate to furnish to the accused a copy of the First
Information Report recorded under section 154 (1) of the Code. The report
first recorded by the police relating to the commission of a cognizable case is
the First Information Report giving information on the cognizable crime.

It may be defined as follows:

1. It is a piece of information given to the police officer.

2. The information must relate to a cognizable offence.
3. It is a piece of information reported first in point of time.
4. The victim of the cognizable offence or someone on his/her behalf
gives information and lodges a complaint with the police.
This is the information on the basis of which investigation begins. The FIR
must be in writing.

Object
The main objective of filing F.I.R. is to set the criminal law in motion. And
also to enable the police officer to start the investigation of the crime
committed and collect all the possible pieces of evidence as soon as possible.

The various objects of recording F.I.R. are:

 To inform the District Magistrate and the District Superintendent of

Police, who are responsible for the peace and safety of the district,
of the offence, reported at the police station.
 To make known to the judiciary and judicial officers before whom
the case has to be ultimately tried, about the facts and scenario
which came out after the immediate occurrence of the crime.
 To safeguard and protect the accused against subsequent additions
or variations.

Essential Conditions of F.I.R.

In Moni Mohan v. Emperor, it was decided that the essential conditions of
F.I.R. are:

 It must be a piece of information.

 It must be in writing. If given in writing, should be reduced into
writing by the concerned police officer.
 The main act or crime should be cognizable in nature, not the ones
subsequent to the main act.
The F.I.R. must be in the nature of complaint or accusation with the object of
getting the law in motion.

Who can lodge an FIR?

An FIR may be filed by any person who either witnessed or has knowledge of
the commission of a cognizable offence. The police officer is under the
obligation to file such an FIR for the cognizable offence. The person against
whom an FIR is being filed can be the person who either committed an
offence, has knowledge of the commission of an offence, witnessed the
offence, or abetted in such an offence. The informant doesn’t need to have
first-hand information about the offence. Even an anonymous notice to the
police that contains information about such an offence can be treated as a
formal complaint. The police officer can also lodge an FIR himself if he has
knowledge that a cognizable offence has been committed

Steps for filing an FIR

The procedure to get an FIR lodged is fairly simple:

1. The moment a cognizable offence is committed or is apprehended,

you need to contact your nearest police station. The FIR must be
filed immediately, and there shall be no delay in filing the FIR. If, for
some reason, it gets delayed, then you need to provide reasonable
justification for the delay.
2. The informant has to tell the police officer the exact things and
circumstances that he knew or witnessed. You can describe the
incident either orally or in writing. However, it is the duty of the
police officer to reduce it in writing.
3. The report must be read back to the informant and signed by him.
Before signing the report, you must ensure its accuracy. You should
sign the report only after it has been carefully read and verified by
you.
4. It is the duty of the police officer to serve you with a free copy of
the FIR.
 5. The following things must be mentioned in the FIR-

 Name,
 Address;
 Date, time and location of the incident,
 FIR number,
 Name of the police station,
 Facts of the incident,
 Name and descriptions of the persons involved in the incident,
 Witnesses (if any).
 The major points of difference are:

F.I.R COMPLAINT

Complaint is defined u/s 2(d) of the Code as “any

allegation made orally or in writing to a Magistrate,
with a view to his taking action under this Code,
FIR is not defined under the code.
that some person, whether known or unknown,
has committed an offence, but does not include a
police report.[1]

FIR is lodged with an officer in

Complaint is filed with the Magistrate.
charge of a police station.

FIR relates to information as to

It may relate to the commission of any offence,
the commission of a cognizable
whether cognizable or non-cognizable.
offence.

The magistrate is empowered u/s 190 of Cr.P.C. to

The magistrate cannot take into
take cognizance of an offence upon a private
cognizance of an offence.
complaint.

It is not a substantive piece of

The complaint itself is substantial evidence.
evidence.

The FIR once lodged with the In a summons case, a complainant can withdraw a
police station cannot be complaint against all or any of the accused, at any
withdrawn by the informant. time before a final order is passed. (Sec. 257)
The informant is not bound to
The Complainant must take an oath before the
take an oath before the police
Magistrate.
officer while lodging FIR.

The informant would not be liable

for malicious prosecution if the The complainant is liable for malicious prosecution
information furnished by him is if the complaint is found to be false.
found to be incorrect or false.

condition requisite for initiation

of proceedings