Legal Rights of an Arrested Person in India: Complete Guide

By Advocate Ganta Surya Kiran | 19 Law Chambers, Visakhapatnam | Criminal Law

Arrest is one of the most disorienting experiences any person can face. Furthermore, the shock and fear of arrest leads many people to make statements, sign documents, or waive rights that permanently damage their legal position. However, every arrested person in India has a comprehensive set of constitutional and statutory rights from the moment of arrest through every stage of custody. Knowing these rights or having an advocate who knows them makes a decisive difference. Advocate Ganta Surya Kiran at 19 Law Chambers provides immediate assistance to arrested persons and their families across Visakhapatnam and Andhra Pradesh.

Rights Before Arrest — Prevention is Always Better

Before addressing rights after arrest note that prevention is always the better strategy. Specifically: if you anticipate arrest apply for anticipatory bail immediately. Furthermore, a valid anticipatory bail order means police must release you on bail immediately upon arrest without taking you to the lock-up at all. Read: Anticipatory Bail India. Moreover, if police serve a Section 41A notice asking you to appear for questioning contact an advocate before attending. Consequently, proper legal preparation before arrest avoids the trauma of custody entirely.

Rights at the Moment of Arrest — Article 22

The Constitution of India guarantees these rights from the very moment of arrest. Specifically:

Right to Know Grounds of Arrest: Police must immediately and clearly inform you in a language you understand the specific offence for which they are arresting you. Furthermore, a vague statement like “for investigation” is insufficient they must state the specific section and offence. Consequently, if police do not explain the grounds ask clearly: “Under which section and for which offence are you arresting me?”

Right to Consult an Advocate: You have the absolute right to consult a lawyer of your choice from the very moment of arrest. Moreover, police cannot refuse this right under any circumstances — regardless of the seriousness of the alleged offence. Consequently, your first action upon arrest should be to call your advocate or ask a family member to do so. Call 19 Law Chambers immediately: +91 99495 92127.

Right to Inform a Family Member: You have the right to have one person — a family member, relative, or friend informed of your arrest and the place of custody immediately. Furthermore, police must assist you in making this communication not obstruct it. Consequently, give the police officer the exact name and phone number of the person to be informed.

Rights During the Arrest Process — DK Basu Guidelines

The Supreme Court in D.K. Basu v. State of West Bengal (1997) issued mandatory guidelines for every arrest now statutory under Section 50A CrPC. Specifically, police must:

Prepare an arrest memo specifying time and place of arrest signed by a witness. Furthermore, the witness should ideally be a family member or a respectable person from the locality not a police officer. Moreover, conduct a medical examination of the arrested person at the time of arrest and every 48 hours during custody. Additionally, produce the arrested person before a Magistrate within 24 hours including travel time. Consequently, any violation of these mandatory procedures is actionable against the individual officer.

Identification Requirement: All arresting officers must wear accurate, clearly visible name tags throughout the arrest and custody process. Moreover, they must carry their official identity cards and show them if asked. Consequently, note the names and badge numbers of all officers involved this information is critical for any complaints against police misconduct.

Rights in the Police Lock-Up

After arrest and before Magistrate production you may be held in a police lock-up. Specifically, during this period, you retain these rights:

Right to Food and Water: Police must provide adequate food and water. Furthermore, denying food or water as a coercive measure is illegal. Right to Sleep: Sleep deprivation as an interrogation technique is specifically prohibited — and constitutes torture under international human rights standards. Right to Medical Treatment: If you are injured from any cause police must immediately arrange medical treatment. Moreover, refusing medical treatment to an injured arrested person is a serious criminal and human rights violation. Right Against Third-Degree Methods: Physical torture, electric shocks, and coercive interrogation methods are criminal offences against the interrogating officer regardless of the alleged crime.

Right to Silence: You have the absolute right to remain silent during police questioning. Specifically, Article 20(3) of the Constitution protects you from being compelled to be a witness against yourself. Moreover, confessions made to police officers are generally inadmissible as evidence only confessions made voluntarily before a Magistrate are admissible. Consequently, exercise your right to silence and wait for your advocate before responding to any police questioning.

Rights at Remand — Before the Magistrate

Police must produce you before a Magistrate within 24 hours of arrest failing which your detention becomes illegal. Specifically, at the remand hearing:

Challenge the Arrest: Your advocate can challenge the legality of the arrest arguing that police did not follow Section 41 CrPC checklist or DK Basu guidelines. Furthermore, the Magistrate must examine whether the grounds for arrest are satisfied. Consequently, a Magistrate who finds the arrest illegal must order immediate release.

Apply for Bail: Your advocate applies for bail before the Magistrate at the remand stage. Moreover, for bailable offences bail is a right and the Magistrate must grant it. For non-bailable offences the Magistrate considers bail based on the evidence and the nature of the offence. Read: Bail Application Process India.

Right to Judicial Custody Instead of Police Custody: If the Magistrate does not grant bail insist on judicial custody (jail) rather than police custody (returned to police lock-up). Furthermore, police custody allows police to continue interrogation which can be physically coercive. Judicial custody prevents further police interrogation without Magistrate permission.

What to Do if Your Rights Are Violated

Immediate Actions: Call your advocate immediately and describe every specific violation time, officer name, and exact nature of the violation. Furthermore, get medical examination done at a government hospital immediately after release documenting any physical injuries. Moreover, file a complaint simultaneously before: the Superintendent of Police, AP Human Rights Commission, and through Habeas Corpus before the High Court. Read: Police Harassment Complaint India.

Frequently Asked Questions

Q: Police are holding my brother for 3 days without producing him before a Magistrate. What should I do?
File a Habeas Corpus petition before the High Court of Andhra Pradesh immediately. Furthermore, this is the most urgent writ jurisdiction the High Court can produce your brother before the court within 24 hours of the petition being filed. Moreover, simultaneously file a complaint to the SP and DGP. Read: Writ Petition High Court AP.

Q: Can police arrest me for a civil dispute — unpaid loan or rent?
No — civil disputes do not support criminal arrest. Specifically, failure to repay a loan is not a criminal offence unless it involves cheating or breach of trust. Furthermore, a landlord cannot get you arrested for non-payment of rent. Consequently, if police attempt to arrest you for purely civil matters challenge the arrest immediately before the Magistrate with your advocate. Read: Police Arrest Rights India.

Q: I signed a confession under police pressure. Can I retract it?
Yes — confessions made to police are not admissible as evidence regardless. Specifically, only confessions made voluntarily before a Magistrate after the Magistrate satisfies themselves of voluntary consent are admissible. Furthermore, retract the forced statement at the earliest opportunity before the Magistrate. Free legal aid: NALSA — nalsa.gov.in | Free Legal Aid in AP.

Also read: How to File FIR India | FIR Quashing Petition High Court AP | Best Criminal Lawyers Vizag

📍 30-6-12, First Floor, Opp. Prema Samajam, Daba Gardens, Visakhapatnam — 530020 📞 +91 99495 92127 | 🌐 19lawchambers.com | 📺 @19LawChambers

Police Custody vs Judicial Custody in India: Key Differences

By Advocate Ganta Surya Kiran | 19 Law Chambers, Visakhapatnam | Criminal Law

When a person is arrested and produced before a Magistrate the Magistrate decides whether to send them to police custody or judicial custody. Furthermore, these two forms of custody are fundamentally different in where you are held, what police can do, and what rights you have. Knowing this distinction helps both accused persons and their families understand the legal process and take the right actions. Advocate Ganta Surya Kiran at 19 Law Chambers represents clients at every stage of the custody process across Andhra Pradesh.

What is Police Custody (Police Remand)?

Police custody — also called police remand means the accused is held at a police station or police lock-up under the direct control of the investigating officer. Specifically, courts send an accused to police custody when: the investigation is at a critical stage, the accused needs to be physically present for investigation site visits, recovery of evidence, confrontation with witnesses, or identification of co-accused. Furthermore, police custody allows the investigating officer to interrogate the accused directly.

Maximum Period: Total police custody cannot exceed 15 days in any case under Section 167 CrPC. Moreover, police custody can be granted only in the first 15 days of arrest after which the accused must be in judicial custody even if investigation continues. Consequently, the 15-day limit on police custody is an absolute protection against prolonged police interrogation.

Your Rights in Police Custody: Right to meet your advocate privately police cannot monitor your conversations with your advocate. Right to medical examination every 48 hours. Right to food, water, and basic facilities. Right to inform family of your location and custody status. Importantly, police cannot deny your advocate access under any circumstances during police custody. Read: Legal Rights Arrested Person India.

What is Judicial Custody (Judicial Remand)?

Judicial custody also called judicial remand means the accused is held in a jail or correctional facility under the control of the prison administration not police. Specifically, once the 15-day police custody period expires the Magistrate sends the accused to judicial custody. Moreover, judicial custody can continue for: up to 60 days total for offences punishable with death, life imprisonment, or imprisonment of 10 or more years, and up to 90 days for other offences before a chargesheet must be filed.

Key Distinction: During judicial custody police cannot interrogate the accused without specific Magistrate permission. Furthermore, police must make a specific application to the Magistrate explaining why police custody is needed again and the Magistrate can refuse. Consequently, judicial custody provides significantly stronger protection against coercive interrogation.

Default Bail — Critical Right: If police fail to file chargesheet within 60 days (for serious offences) or 90 days (for less serious offences) the accused acquires an absolute right to bail under Section 167(2) CrPC. Specifically, this is called Default Bail or Bail on Statutory Right. Moreover, this right cannot be waived by the court — it belongs exclusively to the accused. Consequently, if you have been in judicial custody approaching these deadlines your advocate must file a bail application before the deadline expires. Read: Bail Application Process India.

The Magistrate’s Remand Decision — What Influences It

At the remand hearing usually within 24 hours of arrest the Magistrate considers several factors. Specifically: whether the investigation requires police custody for specific purposes, the severity of the alleged offence, the accused’s criminal antecedents, the risk of flight or evidence tampering if released on bail, and the accused’s family circumstances and community ties. Furthermore, your advocate argues against police custody at the remand hearing specifically highlighting: the weak investigation basis, low flight risk, and the accused’s cooperation willingness. Consequently, a well-argued remand opposition sometimes achieves bail at the very first hearing.

Practically — Why Judicial Custody is Better Than Police Custody

From the accused’s perspective judicial custody in jail is significantly preferable to police custody in a lock-up. Specifically: no police interrogation without Magistrate permission, better physical conditions than police lock-ups, family visits are permitted in jail under prison rules, medical facilities are available in jail, and the approach of the 60/90-day deadline creates leverage for default bail. Moreover, police often grant police custody remand to continue interrogation which can involve pressure tactics. Consequently, always argue for judicial custody rather than police custody at the remand hearing.

Frequently Asked Questions

Q: Police are asking for 14 days police remand. Can the Magistrate give less?
Yes — the Magistrate has full discretion on the period of police custody. Specifically, courts regularly grant 2 to 7 days police custody instead of the requested 14 days particularly for first-time offenders or when the investigation appears sufficient. Furthermore, your advocate argues at the remand hearing that shorter custody is appropriate given the specific investigation needs stated by police. Consequently, always appear before the Magistrate with an advocate at the very first remand hearing.

Q: My relative has been in judicial custody for 58 days. What should I do?
File a bail application immediately specifically citing the approaching 60-day deadline for default bail. Furthermore, if the chargesheet is not filed by the 60th day file the default bail application on exactly that day do not wait a single additional day. Moreover, if the court refuses default bail despite the statutory deadline passing without chargesheet immediately file a writ petition before the High Court of AP. Read: Writ Petition High Court AP.

Q: Can police visit my relative in judicial custody for questioning?
No — not without specific Magistrate permission. Specifically, if police want to interrogate a person in judicial custody they must file an application before the Magistrate explaining the specific investigative need and the Magistrate must be satisfied before granting permission. Furthermore, if police are visiting your relative in jail without Magistrate permission file an immediate complaint with the Prison Superintendent and the Magistrate. Free legal aid: NALSA — nalsa.gov.in | Free Legal Aid in AP.

Also read: Police Arrest Rights India | Anticipatory Bail India | Best Criminal Lawyers Vizag

📍 30-6-12, First Floor, Opp. Prema Samajam, Daba Gardens, Visakhapatnam — 530020 📞 +91 99495 92127 | 🌐 19lawchambers.com | 📺 @19LawChambers

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