Legal Advice You Need Immediately
Getting arrested can be a daunting experience for most people. In a country like India, where the legal and judicial processes are deeply sophisticated, complex, and overwhelming, knowing your rights, any legal processes involved, and the most appropriate way to respond is crucial. Every decision can remarkably affect your liberty and future when you're taken into custody. This blog aims to direct you through the appropriate things you should do in case you are arrested, with emphasis on rights under Indian law, especially the Code of Criminal Procedure (CrPC) and the updated Bharatiya Nagarik Suraksha Sanhita (BNSS).
What is an Arrest?
Legal Definition and Procedure
An arrest is the act of taking someone into custody to be detained and ultimately to face the consequences for a crime. It may be with or without a warrant, depending on the nature of the offence committed. Offences such as murder, rape, etc., are cognizable offences and entitle the police to arrest without a warrant, whereas offences like defamation, public nuisance, etc., are non-cognizable and generally require judicial sanction in the form of a warrant. The BNSS, in place of the CrPC, details protection from unreasonable arrest and unwarranted detention, wherein it is important to know the rights of an arrested individual for individual.
What are your Rights when you are Arrested?
Arrested persons are given several rights under the Constitution and the BNSS. These protections are imperative to prevent misuse and abuse of power and ensure that due process is followed appropriately.
These rights include:
Right to be informed of the grounds of arrest: As per Section 50 of CrPC, which is now Section 48 of BNSS, any person arrested without a warrant needs to be notified of all the details of the offence for which he is being arrested. This is also guaranteed as a fundamental right per Article 22(1) of the Constitution.
Right to Remain Silent: Under Article 20(3) of the Constitution, you have the right against self-incrimination, which further allows you to remain silent. If you ever think about whether you can refuse to talk to the police, the answer is yes. You have the right and should always wait until your criminal lawyer is present before answering any investigative question.
Right to represent yourself legally: You have the right to be able to consult and be defended by any legal professional of your choice. As per Section 41D of CrPC, which is now Section 38 of BNSS, you are entitled to legal help during the police interrogation. If you need a lawyer, now is your time to make that call and hire the best criminal lawyer in your area who is available to you.
Right to Be Produced Before a Magistrate Within 24 Hours: As per Section 57 of CrPC, which is now Section 58 of BNSS, it is mandated by law that an arrested person must positively be produced before a magistrate within 24 hours of arrest. Any failure to comply with the above makes the arrest unlawful.
Right to inform any person of your choice: As per guidelines of arrest underlined by the Supreme Court in the landmark judgement of D.K. Basu v. State of West Bengal, AIR 1997 SC 610, any person being arrested has the right to be able to inform any person, be it a relative or friend, about their arrest and the place they are being detained.
Right to be examined medically: Under Section 54 of CrPC and also underlined in BNSS, any person arrested needs to be medically examined by a registered medical professional, which is used as a safeguard essential to document any injuries or abuse that may have been caused during the arrest process.
What is the importance of Legal Help in India?
Legal procedures are inherently sophisticated, technical and time-sensitive. You may question the necessity of lawyers and if they are really needed, the answer to which is unequivocally yes. You may not even realise your rights are violated without adequate legal representation. From filing applications for bail to appearing in court, a competent criminal lawyer can ensure statutory and procedural compliance, challenge any illegal/unjust actions and protect your liberty.
If and when you are arrested, your first step should always be to seek legal representation via a criminal lawyer. It is much easier to find legal help in India today via legal aid programmes, bar associations and legal firms. Some initiatives offer legal help for senior citizens, women and differently-abled citizens via district and state legal services authorities.
Can a Lawyer get Arrested?
Lawyers can get arrested, given that they commit an offence. However, they can enjoyprofessional protections, especially when performing court-related duties. Under the guidelines laid out by the Bar Council and relevant case laws, the arrest of any lawyer in the courtroom without prior judicial approval can be viewed as contempt of court.
Is it Possible to undergo a Trial without a Lawyer?
From a technical perspective, it is possible to undergo a trial without a criminal lawyer, but practically, it is highly inadvisable. The deep complexity of criminal procedure, evidence law and trial advocacy makes a lack of professional legal representation highly disadvantageous. Self-representation has the chance of serious missteps that can irreversibly damage your case.
What Steps should you take when you are Arrested?
In cases where you or someone you know is arrested, you should follow the following steps -
- Stay calm and do not do anything physically to resist the arrest. Any type of physical resistance could lead to additional charges related to obstruction and assaulting a public servant.
- Explicitly enquire about the grounds on which you are being arrested under Sections 48-50 of BNSS and Sections 46–49 of CrPC.
- You have the right to contact any person you choose, so do not hesitate to contact a family member or friend.
- Take records of your arrest, such as the names of the officers, time, place, and any witnesses present.
- Request for a medical examination, ensuring its proper documentation
- Do not sign any statements or confessions made without your criminal lawyer present.
How should you file an Application for Bail?
The most common query is usually about the procedure to apply for bail. Bail is your right in most situations, given the offence is bailable.
For bailable offences:
- Bail can be released at the police station.
- You have to give a bail bond and surety.
- Police are obligated to release you.
For non-bailable offences:
- Your attorney has to file a bail application before a magistrate or a Session Court.
- Sections 437–439 of CrPC and analogous BNSS provisions apply.
- Courts will consider the nature of the offence, the threat of altering the evidence, and the possibility of flight before granting bail.
How can you get Bail in a Police Station?
You can get bail at the police station in cases of bailable offences. The arresting officer must inform you of your right to bail. You will be required to furnish a bail bond or surety. This process can be done more efficiently with the help and assistance of an experienced criminal lawyer familiar with the local legal procedures.
Call to Action
In cases where you or someone you know is arrested, although you shouldn't panic, you shouldn't delay things either. You should know your rights, document things every step of the way, and, most importantly, hire an experienced and qualified lawyer immediately, as your future may depend on it. If you urgently need legal help, you can consult a criminal lawyer near you or reach out to your local legal services provider.
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