What are the Rights of an Arrested Person?

25 Mar 2021  Read 25003 Views

“Innocent until proven guilty”, in context to this phrase, it’s very obvious that in India the burden of proof to prove any allegation lies upon the prosecution. Until and unless, an accused is proved guilty, he or she cannot be considered as a criminal. An accused who is sent behind the bars and undergoing trial is considered as an undertrial prisoner, people often mistook an accused person for a criminal. In reality, an accused person is an entity who has been alleged to have committed an offence.

Under the criminal justice system, an accused is a person against whom the First Information Report is registered. The law structure of India is such that it does not offer rights for the victims or prosecution but it also enshrines rights for an accused under which they can seek protection from criminal liability. The intent behind this gesture was basically to safeguard the rights of an accused person involved in a criminal trial who are mostly prone to get their rights violated.

Rights an Arrested Person Possesses

There are different sets of laws which provide different sets of rights to a person accused of an offence. The need for these rights comes along with the progress of the stages of a criminal matter, being the pre-trial stage rights, trial stage and post-trial stage rights. In general, the rights of an accused person whether at pre- trial, trial or post- trial stage are as follows. 

1. Right to be produced before the Magistrate without unnecessary delay

Every accused person has been vested with a right to be produced before the Magistrate having jurisdiction or a police officer in charge of the police station (Section 55 CrPC) within 24 hours without any unnecessary delay in accordance with the conditions of the arrest. By the police officer executing a warrant of arrest (Section 76 CrPC). Article 22(2) of our Constitution also provides a similar right to the arrested person and non- execution of which will hold police officers liable for wrongful detention.

2. Right to know about the accusations and offence under which the accused has been charged for

An accused person, when arrested by the police must be informed about the grounds of arrest Section 50 and 75 of CrPC governs this right. The accused must know about all the offences that have been alleged against him, it is a duty of an officer to declare complete particulars of the offence for which the accused is being arrested. The person conducting the arrest is also obligated to inform about the arrest to a nominated person.

3. Right against wrongful arrests

Any wrongful detainment of a person is against the law and every accused has a right against such arrests and detentions. These rights are provided by the Indian Constitution under Article 22 clause 2 and section 57 of the CrPC. Every police officer will produce the arrested person before the Magistrate within 24 hours of arrest. A writ of Habeas Corpus can also be sought as a remedy by the accused to challenge unlawful detention.

4. Right of privacy and protection against unlawful search

Our Indian Constitution clearly states that no person shall be deprived of their personal life and liberty except in accordance with the procedure of law under Article 21. Criminal law prescribes a procedure for the issue of a warrant in order to conduct searches at a person’s residence. The accused person does not lose this right even after his arrest.

5. Right against self-incrimination

Every such person who is engaged in a criminal proceeding provides a statement that enlightens the facts of the case. If an accused person is obligated to answer each question raised before him or her by any officer, the accused has the right to not answer those questions that can go against him or incriminate him, he cannot be forced to become a witness against him. Hence, right against self-incrimination which is provided under Section 161(2) of CrPC and Article 20 clause 3 of the Constitution governs right against self- incrimination.

6. Right against Double Jeopardy

Any person who is being accused of an offence has the right not to be tried and punished for the same offence more than once. If a person is accused of theft and imposed with imprisonment and fine by the Court cannot be tried and punished for the same offence subsequently. 


7. Right to keep silence

This is an unrecognized right but the authority of this right is derived from CrPC and Evidence Act. Whenever an accused person makes a statement or gives confession in the court, the court has the duty to find that the statement or confession made was voluntary or not. No arrested person can be forced or compelled to speak anything in the court.

8. Right to be Examined by the medical practitioner

The accused person should be informed about his right to be examined medically under Section 54 of CrPC in case he has any complaints of physical torture.

9. Right against the ex-post-facto law

Retrospective effect means the introduction of a new law and its implementation to take effect even before its introduction. In India, a person has a right against this type of effect of law. Under the Indian Constitution Art. 20 clause 1 states; “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”

10. Right to bail

An accused person in India has a right to be granted bail and be released from judicial custody except if they are accused of committing a non-bailable offence. However, even in the latter case, bail may be granted.  

11. Right to Legal Aid

Section 304 of CrPC enumerates 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 might appoint a pleader for his defence at the expense of the State.

Right to free legal aid for the purpose of securing justice is provided under Article 39A of Indian Constitution. This right has also been explicitly stated in the case of Khatri (II) V. State of Bihar. in which the Court elaborated on the right to provide free legal aid to the indigent accused person. The right of the accused person cannot be denied even when the accused fails to apply for it. 


Our Honourable Supreme Court had issued mandatory guidelines in the case of DK Basu v. State of West Bengal that has to be followed by the arresting authority while making arrest. An accused person is provided a natural right by our Indian Constitution that is; right to be heard without bias which is inherent in every person. No prejudice should hamper the right to justice of an accused. This right is an implied right protected by Article 21 of the constitution. In compliance with the legal system in India that enshrines “Innocent until proven guilty”, an accused person is empowered to hold certain rights as an arrested person that cannot be hindered whenever a police officer knocks on his door to make an arrest.

About the Author: Kakoli Nath | 269 Post(s)

Kakoli Nath is a legal Content Manager at Finology Legal who pursued BBA.LL.B (5 years integrated course). She is a patent analyst & had also done advanced certification in Forensics Psychology and Criminal Profiling from IFS, Pune.

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