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Presumption
of innocence of the accused, burden of proof on the prosecution ,
observance of principles of natural justice and requirement of mens rea
are among the basic features of our criminal justice system. Important
Constitutional and legal safeguards available against arbitrary law
enforcement are given in the following paragraphs:
Article
20 of the Constitution of India prohibits:
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Conviction
or greater sentence for an offence under ex post facto criminal laws.
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Prosecution
and punishment for the same offence more than once.
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Compelling
a person accused of any offence to be a witness against himself.
Article
21 protects against arbitrary:
Article
22 guarantee to a person arrested for any offence:
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Right
to be informed as soon as may be of the grounds of arrest,
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Right
of freedom to consult and to be represented by a lawyer of his own
choice,
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Right
to be produced before a Magistrate within 24 hours of arrest and
detention beyond the said period only on the order of the Magistrate.
Free
legal aid is provided to those who cannot afford the same.
It
is provided not only when trial commences but also during police custody
or during production before the magistrate for the first time or for
remand from time to time. Eligible persons for free legal aid in UT of
Chandigarh are:
(a)
a member of a Scheduled Caste or Scheduled Tribe;
(b)
a victim of trafficking in human beings or begar as referred to in
Article 23 of the Constitution;
(c)
a woman or a child;
(d)
a mentally ill or otherwise disabled person;
(e)
a person under circumstances of undeserved want such as being
a
victim of a mass disaster, ethnic violence, caste atrocity, flood,
drought, earthquake or industrial disaster; or
(f)
an industrial workman; or
(g)
in custody including custody in a protective home within the
meaning of clause (g) of section 2 of the Immoral Traffic
(Prevention) Act, 1956, or in a juvenile home within the meaning of
clause
(j) of Section 2 of the Juvenile Justice Act, 1986, or in a
psychiatric hospital/or psychiatric nursing home within the
meaning of clause (g) of section 2 of the Mental Health Act, 1987;
or
(h)
in addition to the persons mentioned in clauses (a) to (g) of
section
12 of
the Act, a citizen of India whose annual income from all
sources does not exceed fifty thousand rupees.
Section
50 CrPC provides for Communication of:
Sections
49, 54, 56 and 76 CrPC put in effect Constitutional provisions to prevent
arbitrary exercise of power to arrest.
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An
arrested person cannot be subjected to more restraint than is
necessary to prevent his escape. (Section 49 CrPC).
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Use
of handcuffs is permitted only in exceptionally rare cases to prevent
escape or violence keeping in view the propensity of the arrested
person.
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Medical
examination of an accused by a medical practitioner. (Section 54 CrPC).
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Expeditious
production of a person arrested without a warrant, subject to
provisions regarding bail, before a Magistrate or the officer in
charge of a police station. (Section 56 CrPC).
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No
detention of a person arrested without warrant beyond 24 in the
absence of a special order of a Magistrate under section 167 CrPC
(Sec. 57 CrPC).
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Production
before a Magistrate within 24 hours of person arrested in execution of
warrant. (Sec. 76 CrPC).
Section
47, 51, 100 and 165 Cr.PC while empowering search also lay down
safeguards.
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Safe
custody of articles seized from the person of an arrested person and
giving of a receipt in this regard.
(Sec. 51CrPC).
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Association
of witnesses, search in their presence and signing of the search list
by them; occupant or his representative to be allowed to be present
during the search and providing of a list of seized articles to the
person searched. (Sec.100 and 165 CrPC).
Section
436, 437, 438 alongwith Sections 50(2) and 167 CrPC provide for the
procedure for release on bail.
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Bail,
on production of proper surety/bond, is a matter of right in case of
bailable offences. (Sec. 436 CrPC).
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In
non bailable cases, the arrested person or his counsel can move the
appropriate Court for bail, which may be granted or denied keeping in
view the legal provisions and the facts and circumstances of the case.
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