CHAPTER - 3

RIGHTS OF ARRESTED PERSON UNDER ARTICLE 22(1) & (2)

3.1

INTRODUCTION :
First two clauses of Article 22 read as follows :
22. Protection against arrest and detention in certain cases (1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey from
the place of arrest to the court of the magistrate and no such person shall
be detained in custody beyond the said period without the authority of a
magistrate.

Article 22 (1) and (2) confers four following fundamental rights upon a
person who has been arrested :
i)

Right to be informed, as soon as may be, of the grounds for such

arrest.

ii)

Right to consult and to be defended by a legal practitioner of his

choice.

iii)

Right to be produced before the nearest magistrate within

twenty-four hours of his arrest excluding the time necessary for
the journey from the place of arrest to the Court of Magistrate.

iv)

Right not to be detained in custody beyond the period of twentyfour hours without the authority of the Magistrate.

3.2

RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST :

The object underlying the provision that the ground for arrest should be

communicated to the person arrested appears to be this. On learning about the

ground for arrest, the man will be in a position to make an application to the
appropriate court for bail or move the High Court for a writ of habeas corpus.

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Further, the information will enable the arrested person to prepare his defence
in time for purposes of his trial. For these reasons, it has been provided in
clause (1) of Article 22 that the ground for the arrest must be communicated to
the person arrested as soon as possible.
In re, Madhu Limaye1 the facts were : Madhu Limaye, Member of the
Lok Sabha and several other persons were arrested. Madhu Limaye addressed
a petition in the form of a letter to the Supreme Court under Article 32
mentioning that he along with his companions had been arrested but had not
been communicated the reasons or the grounds for arrest. It was stated that the
arrested persons had been merely told that the arrest had been made under
sections which are bailable. In the return filed by the State this assertion had
neither been controverted nor had anything been stated with reference to it.
One of the contentions raised by Madhu Limaye was that there was a violation
of the mandatory provisions of Article 22 (1) of the Constitution.
The Supreme Court observed that Article 22 (1) embodies a rule which
has always been regarded as vital and fundamental for safeguarding personal
liberty in all legal systems where the Rule of Law prevails. For example, the
6th Amendment to the Constitution of the United States of America contains
similar provisions and so does Article XXXIV of the Japanese Constitution of
1946. In England, whenever an arrest is made without a warrant, the arrested
person has a right to be informed not only that he is being arrested but also of
the reasons or grounds for the arrest. The court further observed that the two
requirements of Clause (1) of Article 22 are meant to afford the earliest
opportunity to the arrested person to remove any mistake, misapprehension or
misunderstanding in the minds of the arresting authority and, also to know
exactly what the accusation against him is so that he can exercise the second
right, namely of consulting a legal practitioner of his choice and to be
defended by him. Those who feel called upon to deprive other persons of

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liberty in the discharge of what they conceive to be their duty must, strictly
and scrupulously, observe the forms and rules of law. Whenever that is not
done, the petitioner would be entitled to a writ of Habeas Corpus directing his
release. In the present case, the return did not contain any information as to
when and by whom Madhu Limaye and other arrested persons were informed
of the grounds for their arrest. It had not been contended on behalf of the state
that the circumstances were such that the arrested persons must have known
the general nature of the alleged offences for which they had been arrested.
Hence, the Court held that Madhu Limaye and others were entitled to be
released on this ground alone.
3.3

RIGHT TO CONSULT AND TO BE DEFENDED BY LEGAL

PRACTITIONER :
In Article 22 (1) the opportunity for securing services of lawyer is

alone guaranteed. The Article does not require the state to extend legal aid as
such but only requires to allow all reasonable facilities to engage a lawyer to
the person arrested and detained in custody. The choice of counsel is entirely
left to the arrested person. The right to consult arises soon after arrest.
In Janardhan Reddy v. State of Hyderabad2 one of the main points
urged on behalf of the petitioners was that in criminal cases Nos. 17 & 18 of
1949, there was no fair trial, in as much as the persons accused in those cases
were not afforded any opportunity to instruct counsel and they had remained
undefended throughout the trial. So it was contended that the whole trial in
these cases was bad, because the accused were denied the right of being
defended by a pleader. Fourth para of the affidavit filed on behalf of the
petitioners read as follows :
The Court never offered to facilitate my communication with my
relations and friends or to adjourn the case or to appoint counsel at state
expense for my defence. In fact they said they would not adjourn the case
under any circumstances. Being ignorant, I did not know that I had any
right to ask for any of these things.

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As to the circumstances under which the accused were not represented

by a lawyer a counter-affidavit filed by Mr. Hanumantha Naidu, a senior
police officer, who investigated the case stated :
Facilities were given to the accused to engage lawyers for their
defence. In case in which the accused had no means to engage pleaders for
their defence and applied to the Tribunal for appointment of pleaders at
Government cost, this was done. In some cases, the accused declined to
accept the pleaders appointed by the Tribunal for their defence. Some
engaged pleaders of their choice at their cost. Some accused stated that
they did not want any lawyer to defend them.

Judges of the High Court had expressed the view that the contention
that the Tribunal did not give the accused an adequate opportunity to engage
lawyers was not well-founded. The Supreme Court observed in this
connection that suggestion of the High Court that the curious attitude adopted
by the accused, to whatever cause it may have been due, to some extent
accounts for their not being represented by a lawyer cannot be ruled out.
However, the Supreme Court further added that the Special Tribunal should
have taken some positive steps to assign a lawyer to aid the accused in their
defence.
Advocate of the petitioners relied on Powell v. Alabama3, in which the
Supreme Court of America observed as :
In a capital case where the defendant is unable to employ counsel
and is incapable of adequately making his own defence because of
ignorance, feeblemindedness, illiteracy or the like, it is the duty of the
Court whether requested or not, to assign a counsel for him as a necessary
requisite of due process of law.

The Supreme Court while observing that the assignment of a counsel in

the circumstances mentioned in the passage was highly desirable, held that the
judgement cannot rest wholly on American precedents, which are based on the
doctrine of due process of law, which is peculiar to the American Constitution
and also on certain specific provisions bearing on the right of representation in

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a criminal proceeding. The provision which was material to the contention

raised was S. 271 of the Hyderabad Cr. P.C., which corresponded to S. 340
Cr. P.C., 1898, which ran as follows :
Any person accused of an offence before a criminal court or against
whom proceedings are instituted under this code in any such Court may of
right be defended by a pleader.
The Supreme Court observed that this provision must be construed
liberally in favour of the accused and must be read along with the rules made
by the High Courts and the circular orders issued by them enjoining that
where in capital cases the accused has no means to defend himself, a counsel
should be provided to defend him. The court laid down following two
principles in this regard.
(1) That it cannot be laid down as a rule of law that in every capital
case where the accused is unrepresented, the trial should be held to be vitiated.
(2) That a court of appeal or revision is not powerless to interfere if it
is found that the accused was so handicapped for want of legal aid that the
proceedings against him may be said to amount to negation of a fair trial.
By laying down the first principle the Court, in other words, accepted
the position that even in some capital cases the trial would be valid even if the
accused is not represented by a lawyer. This is a literal view of Article 22 (1).
The Court could not show the courage to accept the principle of Powell v.
Alabama. However, by laying down second principle, the Supreme Court at
least sowed a seed for further development of law in this regard in future.
Another important provision in this connection is S. 303 (earlier S.
340) of Criminal Procedure Code, 1973. That Section is in these terms :

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303. Any person accused of an offence before a Criminal Court, or

against whom proceedings are instituted under this code, may of right be
defended by a pleader of his choice.
Before the Constitution come into force, this was probably the only
provision from which the right of the accused to have consultation between
him and his legal advisers appears to have been derived and sustained.
In Ram Sarup v. Union of India4 the facts were : Ram Sarup, petitioner
was a sepoy and subject to the Army Act. He shot dead two sepoys. He was
charged on three counts under S. 69 of the Army Act read with S. 302 of
I.P.C. and was tried by the General Court-Martial. He was found guilty of the
three charges and sentenced to death. One of the contentions raised by the
petitioner was that he was not allowed to be defended at the General CourtMartial by a legal practitioner of his choice and therefore, there had been a
violation of the provisions of Article 22 (1) of the Constitution. Petitioner
alleged that he had expressed his desire, on many occasions, for permission to
engage a practising civil lawyer to represent him at the trial but the authorities
turned down those requests and told him that it was not permissible under the
Military rules to allow the services of a civilian lawyer and that he would have
to defend his case with the counsel he would be provided by the Military
Authorities. In reply it was stated that this allegation about the petitioner's
requests and their being turned down was not correct, that it was not made in
the petition but was made in the reply after the State had filed its counteraffidavits in which it was stated that no such request for his representation by
a legal practitioner had been made and that there had been no denial of his
fundamental rights. The Supreme Court was of the opinion that the petitioner
made no request for his being represented at the Court-Martial by a counsel of
his choice, that consequently no such request was refused and that he cannot
be said to have been denied his fundamental right of being defended by

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counsel of his choice. The Court pointed out that the petitioner did not state in
his petition that he had made a request for his being represented by a counsel
of his choice. He had simply stated that certain of his relatives who sought
interview with him subsequent to his arrest were refused permission to see
him and that this procedure which resulted in denial of opportunity to him to
defend himself properly by engaging a competent civilian lawyer through the
resources and help of his relatives had infringed his fundamental right under
Article 22 of the Constitution. If the petitioner had made any express request
for being defended by a counsel of his choice, he should have stated so
straightforwardly in his petition. His involved language could only mean that
he could not contact his relations for their arranging a civilian lawyer for his
defence. This negatived any suggestion of a request to the Military Authorities
for permission to allow him representation by a practising lawyer and its
refusal. The Court held on the facts that there had been no violation of the
fundamental right of the petitioner to be defended by a counsel of his choice
conferred under Article 22 (1) of the Constitution.
In this case too, the Court took a technical view of the matter by
observing that the petitioner did not state in his petition that he had made a
request for his being represented by a counsel of his choice. The Court was
not much impressed by the statement of the petitioner, that he could not
contact his relations for their arranging a civilian lawyer for his defence. After
all a person who is arrested and confined has to take the help of somebody
else like relatives to make provision for engaging a lawyer. But the Court was
inclined to take hyper-technical approach to hold that Article 22(1) is not
violated.
In Nandini Satpathy v. P.L. Dani5 the Supreme Court observed that
Article 22 (1) directs that the right to consult an advocate of his choice shall
not be denied to any person who is arrested. This does not mean that persons
who are not under arrest or custody can be denied that right. The spirit and

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sense of Article 22 (1) is that it is fundamental to the rule of law that the
services of a lawyer shall be available for consultation to any accused person
under circumstances of near-custodial interrogation. Moreover, the observance
of the right against self incrimination is best promoted by conceding to the
accused the right to consult a legal practitioner of his choice. Lawyer's
presence is a constitutional claim in some circumstances in our country also,
and in the context of Article 20(3) is an assurance of awareness and
observance of the right to silence. The Court referred to Miranda decision6
which had insisted that if an accused person asks for lawyer's assistance, at the
stage of interrogation, it shall be granted before commencing or continuing
with the questioning. The Court further observed that Article 20 (3) and
Article 22 (1) may, in a way, be telescoped by making it prudent for the police
to permit the advocate of the accused, if there be one, to be present at the time
he is examined. Over-reaching Article 20(3) and Section 161(2) Cr. P.C. will
be obviated by this requirement. A rule is not laid down that the Police must
secure the services of a lawyer. That will lead to police station lawyer
system, an abuse which breeds other vices. But if an accused person expresses
the wish to have his lawyer by his side when his examination goes on, this
facility shall not be denied, without being exposed to the serious reproof that
involuntary self-incrimination secured in secrecy and by coercing the will,
was the project. Not that a lawyer's presence is a panacea for all problems of
involuntary self-crimination, for he cannot supply answers or whisper hints or
otherwise interfere with the course of questioning except to intercept where
intimidatory tactics are tried, caution his client where incrimination is
attempted and insist on questions and answers being noted where objections
are not otherwise fully appreciated. He cannot harangue the police but may
help his client and complain on his behalf, although his very presence will
ordinarily remove the implicit menace of a police station. The Court observed
that presence of a lawyer is asking for the moon in many cases until a public

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defender system becomes ubiquitous. The police need not wait more than for a
reasonable while for an advocate's arrival.
Nandini Satpathy's Case makes a clear departure from the literal
interpretation stance of the Supreme Court in earlier cases. The case added an
additional fortification to the right to counsel. The Supreme Court went a step
forward in holding that Article 22(1) does not mean that persons who are not
strictly under arrest or custody can be denied the right to counsel. The Court
enlarged this right to include right to counsel to any accused person under
circumstances of near-custodial interrogation. However, the Court took the
help of Article 20 (3) and Miranda decision for this liberal interpretation.
In Joginder Kumar v. State of U.P.7 the Supreme Court held that right
of arrested person upon request, to have some one informed about his arrest
and right to consult privately with lawyers are inherent in Articles 21 and 22
of the Constitution. The Supreme Court observed that no arrest can be made
because it is lawful for the Police officer to do so. The existence of the power
to arrest is one thing. The justification for the exercise of it is quite another.
The Police Officer must be able to justify the arrest apart from his power to do
so. Arrest and detention in police lock-up of a person can cause incalculable
harm to the reputation and self-esteem of a person. No arrest should be made
by Police Officer without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint and a
reasonable belief both as to the person's complicity and even so as to the need
to effect arrest. The Supreme Court issued the following requirements :
(1) An arrested person being held in custody is entitled, if he so
requests, to have one friend, relative or other person who is known to him or
likely to take an interest in his welfare told as far as practicable that he has
been arrested and where is being detained.

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(2) The Police Officer shall inform the arrested person when he is
brought to the police station of this right.
(3) An entry shall be required to be made in the Diary as to who was
informed of the arrest.
These protections from power must be held to flow from Articles 21
and 22 (1) and enforced strictly. The above requirements shall be followed in
all cases of arrest till legal provisions are made in this behalf.
Section 56 (1) of the Police and Criminal Evidence Act, 1984 in
England provides :
Where a person has been arrested and is being held in custody in a
police station or other premises, he shall be entitled, if he so requests, to
have one friend or relative or other person who is known to him or who is
likely to take an interest in his welfare told, as soon as practicable except . .
.

We find a shift in judicial concern in Joginder Kumar's Case for

ensuring constitutional right to arrested person. A new angle of approach was

adopted to the interpretation of Article 22(1) but with the help of Article 21.
The Supreme Court recognised three incidental rights of arrested person in
this regard i.e. i) The right to have some one i.e. his relative or friend informed
about his arrest; ii) The right to consult privately with lawyer; iii) The right to
know from the police officer about this right. The Supreme Court imposed
corresponding duties on the police officers.
Custodial death is perhaps one of the worst crimes in a civilised society
governed by the Rules of Law. The rights inherent in Article 21 and 22 (1) of
the Constitution require to be jealously and scrupulously protected. Any form
of torture or cruel, inhuman or degrading treatment would fall within the
inhibition of Article 21 of the Constitution, whether it occurs during
investigation, interrogation or otherwise. The precious right guaranteed by
Article 21 of the Constitution cannot be denied to convicts, under-trials,

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detenus and other prisoners in custody, except according to procedure

established by law by placing such reasonable restrictions as are permitted by
law. Therefore, the Supreme Court issued in D.K.Basu v. State of W.B.8 the
following requirements to be followed in all cases of arrest or detention till
legal provisions are made in that behalf as preventive measures.
(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars of all
such police personnel who handle interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall
prepare a memo of arrest at the time of arrest and such memo shall be attested
by at least one witness, who may be either a member of the family of the
arrestee or a respectable person of the locality from where the arrest is made.
It shall also be countersigned by the arrestee and shall contain the time and
date of arrest.
(3) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-up shall be
entitled to have one friend or relative or other person known to him or having
interest in his welfare being informed, as soon as practicable, that he has been
arrested and is being detained at the particular place, unless the attesting
witness of the memo of arrest is himself such a friend or a relative of the
arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must
be notified by the police where the next friend or relative of the arrestee lives
outside the district or town through the Legal Aid Organisation in the District

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and the police station of the area concerned telegraphically within a period of
8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put under arrest or
is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the name of the
next friend of the person who has been informed of the arrest and the names
and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the
time of his arrest and major and minor injuries, if any, present on his/her body,
must be recorded at that time. The Inspection Memo must be signed both by
the arrestee and the police officer effecting the arrest and its copy provided to
the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody, by a doctor in
the panel of approved doctors appointed by Director, Health Services of the
concerned State or Union Territory. Director, Health Services should prepare
such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred
to above, should be sent to illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all Districts and State
headquarters, where information regarding the arrest and the place of custody
of the arrestee shall be communicated by the Officer causing the arrest, within

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12 hours of effecting the arrest and at the police control room it should be
displayed on a conspicuous notice board.
The Court emphasized that failure to comply with the said requirements
shall apart from rendering the concerned official liable for departmental
action, also render him liable to be punished for contempt of Court and the
proceedings for contempt of Court may be instituted in any High Court of the
country, having territorial jurisdiction over the matter. The requirements flow
from Articles 21 and 22 (1) of the Constitution and need to be strictly
followed. The requirements are in addition to the constitutional and statutory
safeguards and do not detract from various other directions given by the
Courts from time to time in connection with the safeguarding of the rights and
dignity of the arrestee.
Speaking on the right to compensation to arrestee in case of custodial
torture, the Supreme Court observed that monetary or pecuniary compensation
is an appropriate and indeed an effective and sometimes perhaps the only
suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the State is
vicariously liable for their acts. The claim of the citizen is based on the
principle of strict liability to which the defence of sovereign immunity is not
available and the citizen must receive the amount of compensation from the
State, which shall have the right to be indemnified by the wrong-doer. In the
assessment of compensation, the emphasis has to be on the compensatory and
not on punitive element. The objective is to apply balm to the wounds and not
to punish the transgressor or the offender, as awarding appropriate punishment
for the offence (irrespective of compensation) must be left to the Criminal
Courts in which the offender is prosecuted; which the state in law, is duty
bound to do. The award of compensation in the public law jurisdiction is also
without prejudice to any other action like civil suit for damages which is

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lawfully available to the victim or the heirs of the deceased victim with
respect to the same matter for the tortuous act committed by the functionaries
of the state. The quantum of compensation will, of course, depend upon the
peculiar facts of each case and no strait jacket formula can be evolved in that
behalf. The relief to address the wrong for the established invasion of the
fundamental rights of the citizen under the public law jurisdiction is, thus, in
addition to the traditional remedies and not in derogation of them. The amount
of compensation as awarded by the Court and paid by the State to redress the
wrong done, may in a given case, be adjusted against any amount which may
be awarded to the claimant by way of damages in a civil suit.
This was a case of PIL. A letter by the Executive Chairman, Legal Aid
Services, West Bengal addressed to the Chief Justice of India drawing his
attention to certain news items published in the newspapers regarding deaths
in police lock-ups and custody was treated by the Supreme Court as a writ
petition.
The Supreme Court observed that with a view to bring in transparency,
the presence of the counsel of the arrestee at some point of time during the
interrogation may deter the police from using the third degree methods during
interrogation.
D.K. Basu's Case not only travels a path of few steps ahead of Joginder
Kumar but also takes a big leap forward. In its anxiety to protect the interests
of the arrested person, the Court has exhibited an instance of judicial overactivism rather judicial waywardness. The case sounds death-knell to
Montesquieu's theory of separation of powers amongst three organs of the
State. The Supreme Court arrogated to itself the Constituent or at least
legislative power in laying down eleven requirements in this connection. It is
submitted that it is a case of out-right judicial legislation. Showing concern for
the plight of the arrested person is one thing and exceeding one's jurisdiction

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and encroaching on the field of another organ is another thing. The Supreme
Court while interpreting a provision of the Constitution may fill in the
interstices but the zeal to artificially create such interstices and then fill it
should be deprecated. The judicial pendulum swung to the other extreme in
this case. The judiciary needs now self-discipline. This judicial hegemony
needs to be checked. As the other two organs of the state cannot control or
check this judicial encroachment, what is required is doctrine of judicial selfrestraint should be followed. The judiciary should restrain from trespassing in
the field of another organ under the guise of interpretation of the Constitution
or doing complete justice. Though these eleven requirements comprise human
rights jurisprudence and it would be in the fitness of the things, if these were
law, these sweeping eleven requirements laid down by the Supreme Court, it
is submitted, cannot have the status of law as its source is not legislature but
judiciary.
It may be noted that these requirements were held to flow from Article
21 and 22 (1) jointly.
3.4

RIGHT TO BE PROVIDED WITH A LAWYER BY THE STATE

In M.H.Hoskot v. State of Maharashtra9 it was observed by the

Supreme Court that generally speaking and subject to just exceptions, at least
a single right of appeal on facts, where criminal conviction is fraught with
long loss of liberty, is basic to civilized jurisprudence. Every step that makes
the right of appeal fruitful is obligatory and every action or inaction which
stultifies it is unfair and unconstitutional. Pertinent to the point are two
requirements : (i) service of a copy of the judgment to the prisoner in time to
file an appeal and (ii) provision of free legal services to a prisoner who is
indigent or otherwise disabled from securing legal assistance where the ends
of justice call for such service. Both these are State responsibilities under
Article 21. Where the procedural law provides for further appeals these

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requirements will similarly apply. One of the ingredients of fair procedure to a

prisoner, who has to seek his liberation through the court process is lawyer's
services. Judicial justice, with procedural intricacies, legal submissions and
critical examination of evidence, leans upon professional expertise and a
failure of equal justice under the law is on the cards where such supportive
skill is absent for one side. The Indian socio-legal milieu makes free legal
service at trial and higher levels, an imperative processual piece of criminal
justice where deprivation of life or personal liberty hangs in the judicial
balance. Partial statutory implementation of the mandate is found in S. 304 Cr.
P.C., and in other situations courts cannot be inert in the face of Article 21 and
39-A. Maneka Gandhi's Case has laid down that personal liberty cannot be cut
out or cut down without fair legal procedure. Enough has been set out to
establish that a prisoner, deprived of his freedom by court sentence but
entitled to appeal against such verdict, can claim, as part of his protection
under Article 21 and as implied in his statutory right to appeal, the necessary
concomitant of right to counsel to prepare and argue his appeal. If a prisoner
sentenced to imprisonment, is virtually unable to exercise his constitutional or
statutory right of appeal, inclusive of special leave to appeal for want of legal
assistance, there is implicit in the Court under Article 142 read with Articles
21 and 39-A of the Constitution, power to assign counsel for such imprisoned
individual 'for doing complete justice'. The inference is inevitable that this is a
State's duty and not Government's charity. Equally affirmative is the
implication that while legal services must be free to the beneficiary the lawyer
himself has to be reasonably remunerated for his services. Naturally, the State
concerned must pay a reasonable sum that the court may fix when assigning
counsel to the prisoner. Of course, the court may judge the situation and
consider from all angles whether it is necessary for the ends of justice to make
available legal aid in the particular case. That discretion resides in the Court.

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In this case, the party, though offered legal aid by the Court, preferred
to argue himself. The Court observed that even so it upheld the right to
counsel not in the permissive sense of Article 22(1) and its wider amplitude
but in the peremptory sense of Article 21 confined to prison situations. The
Court summarised the legal position as follows :
i)

Where the prisoner is disabled from engaging a lawyer, on

reasonable grounds such as indigence or incommunicado
situation, the Court shall, if the circumstances of the case, the
gravity of the sentence and the ends of justice so require, assign
competent counsel for the prisoner's defence, provided the party
does not object to that lawyer.

ii)

The State shall pay to assigned counsel such sum as the court
may equitably fix.

iii)

These benign prescriptions operate by force of Article 21

[strengthened by Article 19 (1) (d) read with sub-art (5)] from
the lowest to the highest court where deprivation of life and
personal liberty is in substantial peril.

Article 22 (1) does not provide to arrested person, right to be provided

with a lawyer by the State. However, in M.H. Hoskot's Case the Supreme
Court did not hesitate to imply this right in Article 22 (1) and 21 jointly while
pressing into service application of a Directive Principle of State Policy under
Article 39 A of Equal Justice and free legal aid. To take further support for
this implication it took help of Article 142 for doing complete justice. This is
an example of liberal interpretation of Article 22 (1) and other Articles of the
Constitution which carves out a right for the indigent prisoner or a prisoner in
incommunicado situation to be assigned counsel by the Court at the State's
cost. It seems that after the decision of Maneka Gandhi giving a new

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dimension to the Article 21, the Supreme Court's judicial activism started
blossoming in this regard.
The State Government must also provide at its own cost a lawyer to the
under-trial prisoner with a view to enable him to apply for bail in exercise of
his right under proviso (a) to Sub-section (2) of Section 167 of Cr. P.C. and
the Magistrate must take care to see that the right of the under-trial prisoner to
the assistance of a lawyer provided at State costs is secured to him. It is a
constitutional right of every accused person who is unable to engage a lawyer
and secure legal services on account of reasons such as poverty, indigence or
incommunicado situation, to have free legal services provided to him by the
State and the State is under a constitutional mandate to provide a lawyer to
such accused person if the needs of justice so require. If free legal services are
not provided to such an accused, the trial itself may run the risk of being
vitiated as contravening Article 21 and every State Government should try to
avoid such a possible eventuality. Hussainara Khatoon v. State of Bihar10
reiterates the right of every accused person who is unable to engage a lawyer
and secure legal services on account of reasons such as poverty, indigence or
incommunicado situation, to have free legal services provided to him by the
State. The Court added a further protection to this right by holding that if free
legal services are not provided to such an accused, the trial itself may run the
risk of being vitiated as contravening Article 21.
The Case of Ranjan Dwivedi v. Union of India11 raised a question
whether the right to be defended by a legal practitioner of his choice under
Article 22 (1) of the Constitution comprehends the right of an accused to be
supplied with a lawyer by the State. The Supreme Court held that the accused
petitioner who is being tried for murder before the Sessions Court is not
entitled to the grant of a writ of mandamus for the enforcement of the
Directive Principle enshrined in Article 39 A by ordaining the Union of India

78

to give financial assistance to him to engage a counsel of his choice on a scale

equivalent to, or commensurate with, the fees that are being paid to the
counsel appearing for the State. As is clear from the terms of Article 39 A, the
social objective of equal justice and free legal aid has to be implemented by
suitable legislation or by formulating schemes for free legal aid. The remedy
of the petitioner, if any, lies by way of making an application before the Trial
Court under sub-section (1) of S. 304 of the Cr. P.C. and not by a petition
under Article 32 of the Constitution.
The Court further observed that although in the earlier decisions the
Court paid scant regard to the Directives on the ground that the Courts had
little to do with them since they were not justiciable or enforceable, like the
Fundamental Rights, the duty of the Court in relation to the Directives came to
be emphasized in the later decisions laying down certain broad propositions.
One of these is that there is no disharmony between the Directives and the
Fundamental Rights because they supplement each other in aiming at the same
goal of bringing about a social revolution and the establishment of a Welfare
State, which is envisaged in the Preamble. The Courts therefore, have a
responsibility in so interpreting the Constitution as to ensure implementation
of the Directives and to harmonize the social objective underlying the
Directives with the individual rights. Primarily, the mandate in Article 39 A is
addressed to the Legislature and the Executive, but insofar as the Courts of
Justice can indulge in some judicial law making within the interstices of the
Constitution, the courts too are bound by this mandate. Many a time, it may be
difficult for the accused to find sufficient means to engage a lawyer of
competence. In such cases, the Court possesses the power to grant free legal
aid if the interests of justice so require. The remedy of the petitioner therefore,
is to make an application before the Sessions Court making out a case for the
grant of free legal aid and if the Court is satisfied that the requirements of

79

Sub-sec. (1) of Section 304 of the Code are fulfilled, he may make necessary
directions in that behalf.
S. 304 (1) of Criminal Procedure Code reads :
304. (1) where, in a trial before the Court of Session, the accused is
not represented by a pleader and where it appears to the Court that the
accused has not sufficient means to engage a pleader, the Court shall
assign a pleader for his defence at the expense of the State.

The Court in Ranjan Dwivedi's case referred to M.H. Hoskot's case and
Hussainara Khatoon's case and also observed that primarily the mandate in
Article 39 A is addressed to the Legislature and the Executive but insofar as
the Courts of Justice can indulge in some judicial law-making within the
interstices of the Constitution, the Courts too are bound by this mandate. Even
then the Court expressed its inability to grant remedy to the petitioner on the
ground that he sought writ of mandamus for the enforcement of the Directive
Principle enshrined in Article 39 A. The Court directed the petitioner to
approach the Additional Sessions Judge under sub-section (1) of Section 304
of the code of Criminal Procedure. It cannot be understood why the Court
expressed its inability or helplessness to grant relief to the accused petitioner
in the face of M.H. Hoskot and Hussainara Khatoon decisions of which it took
cognizance which clearly had held that right to counsel in case of indigent
accused is a fundamental right under Article 22 (1) and 21. The Supreme
Court could have easily brushed aside the technicality of petition being for the
enforcement of a Directive Principle of State Policy under Article 39 A and
given relief under Article 22 (1) and 21 which were enforceable fundamental
rights.

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3.5

STATUTES BARRING APPEARANCE OF LAWYERS :

The Madhya Bharat Panchayat Act was passed on June 17, 1949. By S.

75 of the Act, the Nyaya Panchayat is empowered to try certain offences

committed within its jurisdiction including offence under S. 447 of the Indian
Penal Code. The Nyaya Panchayat has power to impose a fine not exceeding
Rs. 100, but it has no power to inflict a substantive sentence of imprisonment
nor a sentence of imprisonment in default of payment of fine. By S. 89, the
decision of the Nyaya Panchayat in its criminal jurisdiction is final and not
appealable except that it is subject to revision by the Sessions Judge. Section
87 provides that subject to the provisions of S. 63, any party may appear
before a Nyaya Panchayat by a duly authorised representative. Section 63
provides :
No legal practitioner shall appear on behalf of or shall plead for or
defend any party in a dispute, case or proceedings pending before the Nyaya
Panchayat.
The facts of the case State of M.P. v. Shobharam12 were on a complaint
of trespass the police registered a case against the respondents under S. 447 of
the Indian Penal Code. The respondents were later arrested by the police and
released on the execution of surety bonds. The case against the respondents
was thereafter put up before the Nyaya Panchayat, a Court established under
the Madhya Bharat Panchayat Act, 1949. The Nyaya Panchayat, after trial,
convicted and sentenced the respondents to a fine of Rs. 75 each. The
conviction was upheld by the Additional Sessions Judge. The respondents
then moved the High Court of Madhya Pradesh. The High Court declared that
S. 63 is void to the extent that it denied the respondents the right to be
defended by a legal practitioner of their choice in the trial before the Nyaya
Panchayat, quashed the conviction and sentences. The State of Madhya
Pradesh preferred the appeal to the Supreme Court.

81

Majority consisting of Bachawat, Shelat and Hidaytullah JJ.

(Mudholkar J. and Sarkar C.J. dissenting) held that Section 63 of the Madhya
Bharat Panchayat Act, 1949 is violative of Article 22 (1) and is void to the
extent it denies any person who is arrested the right to be defended by a legal
practitioner of his choice in any trial of the crime for which he is arrested.
The second part of Article 22 (1) reads :
... nor shall he be denied the right to consult and to be defended by a
legal practitioner of his choice.
Mr. Sen, advocate for the appellant submitted that he means a person
who is arrested and detained, and as the respondents were not detained at the
time of the trial before the Nyaya Panchayat, the constitutional guarantee is
not available to them. He argued that in State of Punjab v. Ajaib Singh13 The
Supreme Court has restricted the constitutional guarantee embodied in the first
part of Article 22 (1) to persons arrested otherwise than under a warrant issued
by a Court and he submitted that this restricted interpretation should not be
given to the second part and the protection of the second part should be
extended to all persons. But he also submitted that in the context of Article 21
the right given by the second part of Clause (1) of Article 22 should be limited
to trials in which any person is deprived of his life or personal liberty or is in
jeopardy of being so deprived.
Bachawat J. (with him Shelat J.) observed that the pronoun he in the
second part of Article 22(1) must refer to the last antecedent. He therefore,
means any person who is arrested. He has the right to consult his lawyer and
to be defended by him, so that he may guard himself against the accusation for
which he is arrested. Clause (1) and (2) of Article 22 safeguard the rights of
the person arrested. The arrest of any person on a criminal charge is a step in
an intended criminal proceeding against him. Upon arrest, he may either be
released on bail or be remanded into custody. The arrest of the accused on a

82

criminal charge has thus an intimate connection with his eventual trial on the
charge. It is at the trial in the Criminal Court that the accused defends or is
defended by counsel. Section 340 (now S. 303) of Cr. P.C., therefore, provides
that any person accused of any offence before a Criminal Court, may of right
be defended by a pleader. In this background, the right of defence by a legal
practitioner given by Article 22 (1) must extend to defence in a trial in a
Criminal Court.
Bachawat J. further observed that when any person is arrested, he is
deprived of his liberty, the procedure laid down in Clause (1) of Article 22
must then be followed, and he must be allowed the right to be defended by
counsel of his choice. There is no reason to limit this right to a trial in which
he may be sentenced to death or to a term of imprisonment. There is no reason
to deny this right to him in a trial in which he is in jeopardy of being convicted
and sentenced to a heavy fine. The clear words of Article 22 furnish no basis
for this limitation.
It was suggested that the right of defence by counsel given by Article
22 (1) does not extend to a trial of an offence before the Nyaya Panchayat
because the Madhya Bharat Panchayat Act, 1949 does not authorise any arrest
and as a matter of fact, the respondents were arrested by the police in the
exercise of its powers under S. 54 of Cr. P.C. It was also suggested that the
trial of an offence before the Nyaya Panchayat is akin to an action for
recovery of money and as an arrested person has no constitutional right to be
defended by counsel in the action for recovery of money, so he has no such
right to counsel before the Nyaya Panchayat. Bachawat J. did not accept this
line of reasoning. He held that the right attaching to them on their arrest
continued though they were not under detention at the time of the trial. The
right was not lost because they were released on bail. He observed that most
of the safeguards embodied in Clauses (1) and (2) of Article 22 are to be

83

found in the Code of Criminal procedure. But the Constitution makes the
fundamental change that the rights guaranteed by Clauses (1) and (2) of
Article 22 are no longer at the mercy of the legislature. Bachawat J. (with him
Shelat J.) held S. 63 of the Act violative of Article 22 (1) and so void.
Hidaytullah J. agreed with Bachawat J. on this point and observed that
when our Constitution lays down in absolute terms a right to be defended by
one's own counsel, it cannot be taken away by ordinary law and it is not
sufficient to say that the accused who was so deprived of this right, did not
stand in danger of losing his personal liberty. If he was exposed to penalty, he
had a right to be defended by counsel. If this were not so then instead of
providing for punishment of imprisonment, penal laws might provide for
unlimited fines and it would be easy to leave the man free but a pauper. And
to this end without a right to be defended by counsel. If this proposition were
accepted as true we might be in the Middle Ages. The Criminal Procedure
Code allows the right to be defended by counsel but that is not a guaranteed
right. The framers of the Constitution have well-thought of this right and by
including the prescription in the Constitution have put it beyond the power of
any authority to alter it without the Constitution being altered. There are three
rights and each stands by itself. The first is the right to be told the reason of
the arrest as soon as an arrest is made, the second is the right to be produced
before a Magistrate within twenty-four hours and the third is the right to be
defended by a lawyer of one's choice. This is, of course so while the arrest
continues but there are no words to show that the right is lost no sooner than
he is released on bail. The word defended clearly includes the exercise of the
right so long as the effect of the arrest continues. Before his release on bail the
person defends himself against his arrest and the charge for which he is
arrested and after his release on bail against the charge he is to answer and for
answering which, the bail requires him to remain present. The narrow
meaning of the word 'defended' that the person who is arrested has a right to

84

consult a legal practitioner of his choice and to take his aid only to get out of
the arrest, cannot be accepted. In addition there is the declaration that no
person shall be deprived of his personal liberty except by procedure
established by law. The declaration is general and insists on legality of the
action. The rights given by Article 22 (1) and (2) are absolute in themselves
and do not depend on other laws. There is no force in the submission that if
there is only a punishment of fine and there is no danger to personal liberty the
protection of Article 22 (1) is not available. Personal liberty is invaded by
arrest and continues to be restrained during the period a person is on bail and
it matters not whether there is or is not a possibility of imprisonment. A
person arrested and put on his defence against a criminal charge, which may
result in penalty, is entitled to the right to defend himself with the aid of
counsel and any law that takes away this right offends against the
Constitution. Therefore, S. 63 of the Panchayat Act being inconsistent with
Article 22 (1) became void on the inauguration of the Constitution in so far as
it took away the right of an arrested person to be defended by a legal
practitioner of his choice.
Sarkar C.J. (with him J.R. Mudholkar J.) took a contrary view on the
point of validity of S. 63. He observed that a person arrested has the
constitutional right to consult a legal practitioner concerning his arrest. Such
person has the Constitutional right to be defended by a legal practitioner. This
right to be defended by a legal practitioner would include a right to take steps
through a legal practitioner for his release from the arrest. S. 63 of the Act
puts no ban on either of these rights. The Act is not concerned with arrest. The
right to be defended by a legal practitioner is conferred not only on a person
arrested. The right to be defended by a legal practitioner extends also to a case
of defence in a trial which may result in the loss of personal liberty. On the
other hand, where a person is subjected to a trial under a law which does not
provide for an order resulting in the loss of his personal liberty, he is not

85

entitled to the Constitutional right to defend himself at the trial by a legal

practitioner. The reason is that Articles 21 and 22 are concerned only with
giving protection to personal liberty. That is strongly indicated by the
language used in these Articles and by the context in which they occur in the
Constitution. It would follow that the requirement laid down in Article 22 (1)
is not a constitutional necessity in any enactment which does not affect life or
personal liberty. The Act expressly provides that the Nyaya Panchayat cannot
inflict a sentence of imprisonment, not even one in default of payment of fine.
The Act does not give any power of arrest. For such a law, the procedural
requirement in Article 22 (1) is not a constitutional necessity. The Act does
not violate Article 22(1) and cannot be held to be invalid on that ground. In
this case the respondents though had been arrested, they had been arrested not
under the Act but under S. 54 (1) of the Cr. P.C. 1898, the offence being
cognizable. The fact that the respondents were arrested under another law and
thereafter tried under the Act cannot give them the constitutional right to be
defended at the trial by a legal practitioner. It cannot be said that the fact of
arrest gives the arrested person the constitutional right to defend himself in all
actions brought against him. The Constitution makers did not intend that the
person arrested would have the right to be defended by a legal practitioner at a
trial which would not result in the deprivation of his personal liberty. He, of
course, had the right to seek relief against the arrest through a legal
practitioner. So S. 63 and the Act are valid.
This is the only case where the Supreme Court had an opportunity to
strike down a provision in law barring appearance of lawyer. Though majority
decision seems to be correct on superficial examination, the rationale adopted
by the minority judges and the cogent reasons given by them in holding the
person arrested would not have the right to be defended by a legal practitioner
at a trial which would not result in the deprivation of his personal liberty are
more convincing.

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3.6

RIGHT TO BE PRODUCED BEFORE A MAGISTRATE :

Whether the Abducted Persons (Recovery and Restoration) Act 65 of

1949 violates Article 22 and whether the recovery of a person as an abducted

person and the delivery of such person to the nearest camp can be said to be
arrest and detention within the meaning of Article 22 (1) and (2) was the
question elaborately dealt with by the Supreme Court in State of Punjab v.
Ajaib Singh14. This appeal arose out of a habeas corpus petition filed by one
Ajaib Singh in the High Court of Punjab for the production and release of one
Sardaran alias Mukhtiar Kaur, a girl of about 12 years of age. The material
facts were : The petitioner Ajaib Singh had three abducted persons in his
possession. The recovery police of Ferozpore, on 22-6-1951 raided his house
and took the girl into custody and delivered her to the custody of the Officer in
charge of the Muslim Transit Camp at Ferozpore from whence she was later
transferred to and lodged in the Recovered Muslim Womens Camp in
Jullundhur City. The girl was a Muslim abducted by the petitioner during the
riots of 1947 and was, therefore, an abducted person as defined in S. 2 (1) (a),
Abducted Persons (Recovery and Restoration) Act 65 of 1949. The Police
Officers recommended in their report that she should be sent to Pakistan for
restoration to her next of kin.
Serious riots broke-up in India and Pakistan in the wake of partition of
August 1947 resulting in a colossal mass exodus of Muslims from India to
Pakistan and of Hindu and Sikhs from Pakistan to India. There were heart
rending tales of abduction of women and children on both sides of the border.
On 11-11-1948 an Inter-Dominion Agreement between India and Pakistan
was arrived at for the recovery of abducted persons on both sides of the
border. To implement that agreement Act 65 of 1949 was passed.
The expression abducted person is defined by S. 2 (1) (a) as meaning
:

A male child under the age of sixteen years or a female of whatever

age who is or immediately before 1-3-1947, was a Muslim and who, on or
after that day and before 1-1-1949 has become separated from his or her
family, and in the latter case includes a child born to any such female after
the said date.

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Section 4 of the Act, which is important, provides that if any police

officer, not below the rank of an Assistant Sub-Inspector or any other police
officer specially authorised by the state Government in that behalf, has reason
to believe that an abducted person resides or is to be found in any place, he
may, after recording the reasons for his belief, without warrant, enter and take
into custody any person found therein who, in his opinion, is an abducted
person, and deliver or cause such person to be delivered to the custody of the
officer in charge of the nearest camp with the least possible delay.
The Supreme Court held that the Act did not offend against the
provisions of Article 22 of the Constitution.
The Constitution commands that every person arrested and detained in
custody shall be produced before the nearest Magistrate within 24 hours
excluding the time requisite for the journey from the place of arrest to the
Court of the Magistrate, but S. 4 of the Act requires the police officer who
takes the abducted person into custody to deliver such person to the custody of
the officer in charge of the nearest camp for the reception and detention of
abducted persons. The absence from the Act of the salutary provisions to be
found in Article 22 (1) and (2) as to the right of the arrested person to be
informed of the grounds of such arrest and to consult and to be defended by a
legal practitioner of his choice is also significant.
The sole point for the consideration of the Court was whether the
taking into custody of an abducted person by a police officer under S. 4 of the
Act and the delivery of such person by him into the custody of the officer in
charge of the nearest camp can be regarded as arrest and detention within the
meaning of Article 22(1) and (2).

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Advocate for the respondent brought to the notice of the Court various
definitions of the word arrest given in several and well-known law
dictionaries and urged in the light of such definitions that any physical
restraint imposed upon a person must result in the loss of his personal liberty
and must accordingly amount to his arrest. It is wholly immaterial why or with
what purpose such arrest is made. The mere imposition of physical restraint,
irrespective of its reason is arrest and as such, attracts the application of the
constitutional safeguards guaranteed by Article 22 (1) and (2).
The Court observed that the result of placing such a wide definition on
the term 'arrest' occurring in Article 22 (1) and (2) will render many
enactments unconstitutional, for example the arrest of a defendant before
judgment under the provisions of O. 38, R. 1, C.P.C. or the arrest of a
judgment debtor in execution of a decree under S. 55 of the Code will, on this
hypothesis, be unconstitutional inasmuch as the Code provides for the
production of the arrested person, not before a Magistrate but before the Civil
Court which made the order. If two constructions are possible, then the Court
must adopt that which will ensure smooth and harmonious working of the
Constitution and eschew the other which will lead to absurdity or give rise to
practical inconvenience or make well established provisions of existing law
nugatory.
The Court further observed that broadly speaking, arrests may be
classified into two categories, namely, arrests under warrants issued by a
Court and arrests otherwise than under such warrants. The warrant quite
clearly has to state that the person to be arrested stands charged with a certain
offence. The warrant ex facie sets out the reason for the arrest, namely, that
the person to be arrested has committed or is suspected to have committed or
is likely to commit some offence. In short, the warrant contains a clear
accusation against the person to be arrested. Section 80 (now S.75) of Cr.P.C.

89

requires that the police officer or other person executing a warrant must notify
the substance thereof to the person to be arrested, and, if so required, shall
show him the warrant. It is thus abundantly clear that the person to be arrested
is informed of the grounds for his arrest before he is actually arrested. Apart
from the Code of Criminal Procedure, there are other statutes which provide
for arrest in execution of a warrant issued by a Court. For example O. 38, R. 1,
C.P.C. authorises the court to issue a warrant for the arrest of a defendant
before judgment in certain circumstances. The Court may under S. 55 read
with O. 21, R 38 issue a warrant for the arrest of the judgment-debtor in
execution of the decree. The point to be noted is that, as in the case of warrant
of arrest issued by a Court under the Code of Criminal Procedure, a warrant of
arrest issued by a Court under the Code of Civil Procedure quite plainly
discloses the reason for the arrest and the person to be arrested is made
acquainted with the reasons for his arrest before he is actually arrested.
The Court pointed out that several sections in Chapter 5, Criminal
Procedure Code deal with arrests otherwise than under warrants issued by a
Court under that Code. Section 54 (now S. 41) sets out nine several
circumstances in which a police officer may, without an order from a
Magistrate and without a warrant arrest a person. Sections 55, 57, 151 and 401
(3) (now Ss. 41, 42, 151, 432) confer similar powers on police officers. S. 59
(now S. 43) authorises even a private person to arrest any person who in his
view commits a non-bailable and cognizable offence or any proclaimed
offender. A perusal of the sections referred to above makes it plain that the
reason in each case of arrest without a warrant is that the person arrested is
accused of having committed or reasonably suspected to have committed or of
being about to commit or of being likely to commit some offence or
misconduct. It is also to be noted that there is no provision, except in S. 56
(now S. 55) for acquainting the person to be arrested without warrant with the

90

grounds for his arrest. S. 69 and S. 61 (now Ss. 56 & 57) prescribe the
procedure to be followed after a person is arrested without warrant.
S. 61 (now S. 57) reads as under :
No police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of the case is
reasonable, and such period shall not, in the absence of a special order of a
Magistrate under S. 167, exceed twenty-four hours, exclusive of the time
necessary for the journey from the place of arrest to the Magistrate's Court.

Apart from the Code of Criminal Procedure, there are other statutes
which authorise the arrest of a person without a warrant issued by any Court.
For example Ss. 173 and 174 of Sea Customs Act (8 of 1878) and S. 64 of
Forest Act (16 of 1927). In both cases, the reason for the arrest is that the
arrested person is reasonably suspected to have been guilty of an offence
under the Act and there is provision in both cases for the immediate
production of the arrested person before a Magistrate. As in the cases of arrest
without warrant under the Code of Criminal Procedure, an arrest without
warrant under these Acts also proceeds upon an accusation that the person
arrested is reasonably suspected of having committed an offence.
While considering whether the protection of Article 22 (1) and (2)
extends to both categories of arrests, the Court came to the conclusion that
arrests without warrants issued by a Court call for greater protection than do
arrests under such warrants. The provision that the arrested person should
within 24 hours be produced before the nearest magistrate is particularly
desirable in the case of arrest otherwise than under a warrant issued by the
Court, for it ensures the immediate application of a judicial mind to the legal
authority of the person making the arrest and the regularity of the procedure
adopted by him. In the case of arrest under a warrant issued by a Court, the
judicial mind had already been applied to the case when the warrant was
issued and, therefore, there is less reason for making such production in that
case a matter of a substantive fundamental right. It is also perfectly plain that

91

the language of Article 22 (2) has been practically copied from Ss. 60 and 61
(now Ss. 56 & 57) Cr.P.C. which admittedly prescribe the procedure to be
followed after a person has been arrested without a warrant. The requirement
of Article 22 (1) that no person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest
indicates that the clause really contemplates an arrest without a warrant of
Court, for a person arrested under a Court's warrant is made acquainted with
the grounds of his arrest before the arrest is actually effected. There can be no
doubt that the right to consult a legal practitioner of his choice is to enable the
arrested person to be advised about the legality or sufficiency of the grounds
for his arrest. The right of the arrested person to be defended by a legal
practitioner of his choice postulates that there is an accusation against him
against which he has to be defended. The language of Article 22 (1) and (2)
indicates that the fundamental right conferred by it gives protection against
such arrests as are effected otherwise than under a warrant issued by a Court
on the allegation or accusation that the arrested person has, or is suspected to
have committed, or is about or likely to commit an act of a criminal or quasicriminal nature or some activity prejudicial to the public or the State interest.
In other words, there is indication in the language of Article 22 (1) and (2) that
it was designed to give protection against the act of the executive or other nonjudicial authority.
As to the validity of S. 4 of the impugned Act, the Supreme Court
finally observed that whatever else may come within the purview of Article 22
(1) and (2), the Court was satisfied that the physical restraint put upon an
abducted person in the process of recovering and taking that person into
custody without any allegation or accusation of any actual or suspected or
apprehended commission by that person of any offence of a criminal or quasicriminal nature or of any act prejudicial to the State or public interest and
delivery of that person to the custody of the officer in charge of the nearest

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camp under S. 4 of the impugned Act cannot be regarded as arrest and

detention within the meaning of Article 22 (1) and (2).
The pronouncement that the protection under Article 22 (1) and (2)
does not extend to arrest under warrant is in the nature of an obiter dicta. It is
a salutary practice of final tribunals like the Supreme Court not to decide more
than is necessary in constitutional cases. The decision of the Court that arrest
in Article 22 (1) and (2) refers to arrest upon an allegation or accusation of a
criminal or quasi-criminal nature was sufficient to dispose of the case before
the Court. Whether such arrest must be one under warrant or without warrant
was a question which was not necessary to be decided for the purpose of the
disposal of the case. The statement of the Court that Article 22 (1) and (2)
reproduces the language of sections 60 and 61 (now Ss. 56 and 57) of the
Criminal Procedure Code is not correct because Cr.P.C. provisions
specifically refer to arrest without warrant; Article 22 (1) and (2) used the
word arrested without any qualification and without referring to warrant at
all. Merely because in the existing statutory law, the protection is confined to
arrests without warrant, it cannot be inferred that the framers of the
Constitution did not intend to give this protection to arrests under warrant
also. The Court relied upon the argument that the object of production before a
Magistrate is to ensure the application of a judicial mind to the legal authority
and regularity of the arrest; in the case of arrest under warrant, there has
already been such application of a judicial mind at the time of issuing the
warrant. This argument is not convincing because in such case judicial mind is
applied ex parte and without hearing the person arrested. The argument is
oblivious of the fact that the right to consult and be defended by a legal
practitioner is a distinct right ensured by clause (1) of Article 22. If it is held
that clause (1) does not extend to arrests under warrant, the arrested person
shall have no constitutional right to consult or to be defended by a lawyer.15
This would be absurd.

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In Gunupati Keshavram v. Nafisul Hasan16 there was a petition under

Article 32 of the Constitution complaining that one Shri Homi Dinshaw
Mistry was under illegal detention and praying that he be released forthwith.
The petition alleged that Shri Mistry was arrested in Bombay and taken in
custody to Lucknow to be produced before the Speaker of the Uttar Pradesh
Legislative Assembly to answer a charge of breach of privilege. It was further
alleged that Shri Mistry was not produced before a Magistrate within twentyfour hours of his arrest; but was kept in detention in the Speaker's custody at
Lucknow even till the time of petition. The Supreme Court held this as a clear
breach of the provisions of Article 22 (2) of the Constitution which requires
that no such person shall be detained in custody beyond the said period
without the authority of a Magistrate. The Court directed that Shri Mistry be
released forthwith. It is submitted that Gunupati's case is wrongly decided.
Though the person was arrested in pursuance of an order of the Speaker of a
Legislative Assembly on a charge of breach of privilege, the implications
thereof were not fully considered. Upon a literal application of Article 22 (2) it
was held that since the arrested person was not produced before a Magistrate,
the person must be released. It is doubtful how far the Magistrate before
whom such an arrested person is produced can examine the validity of the
Speaker's order. There was no discussion about the merits of the contention
raised on behalf of Mr. Mistry. Advocate did not advance any argument to
support the contention that privilege superseded fundamental right. It was
strange that the point was not discussed in the judgment and no reason in
support of the view was stated.
In M.S.M. Sharma v. Sri Krishna Sinha17, it was held by majority that
Article 19 (1) (a) and Article 194 (3) (dealing with privileges of the Houses of
the State Legislatures) have to be reconciled and the only way of reconciling
the same is to read Article 19 (1) (a) as subject to the latter part of Article 194
(3). The provisions of Article 19 (1) (a) which are general, must yield to

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Article 194 (1) and the latter part of its clause (3) which are special. The
Supreme Court did not follow Gunupati's case so far as it gave primacy to the
fundamental right under Article 22 (2) over the privilege of the State
Legislature. The Supreme Court did not accept the argument that the
observations in Gunupati's case clearly establish that Article 194 (3) is subject
to the fundamental rights. The Court observed that the decision in Gunupati's
case proceeded entirely on a concession of counsel and cannot be regarded as
a considered opinion on the subject. It is curious that Das J. who was the
member of the Bench which decided Gunupati's case, delivered the judgment
of the majority in M.S.M.Sharma's case which did not follow Gunupati's case.
In In Re under Article 143 of Constitution of India18 popularly known
as Keshav Singh's case, the Supreme Court pointed out that the decision in
Gunupati's case dealt with the applicability of Article 22 (2) to a case falling
under the latter part of Article 194 (3) and the majority decision in M.S.M.
Sharma's case had incidentally commented on the decision in Gunupati's case.
It is also important to note that there was no controversy about the
applicability of Article 22 in M.S.M. Sharma's case. So it was not necessary
for the majority decision to deal with the point pertaining to the applicability
of Article 22 (2). In Keshav Singh's case the Supreme Court observed that the
obiter observations made in the majority judgment in M.S.M. Sharma's case
about the validity or correctness of the earlier decision in Gunupati's case
should not be taken as having decided the point in question. In other words,
the question as to whether Article 22 (2) would apply to such a case may have
to be considered by the Supreme Court if and when it becomes necessary to do
so.
The contention of the petitioner in the case of Purshottam v.
B.M.Desai19 was that S. 46 (2) of the Income Tax Act under which Income
Tax Officer issues the recovery certificate to the Additional Collector of

95

Bombay is void under Article 13 (1) in that the same offends Article 22 (1)
and (2). The objection that S. 46 (2) contravenes the fundamental rights
guaranteed by clauses (1) and (2) of Article 22, in view of decision of this
Court in the State of Punjab v. Ajaib Singh was not pressed. It was held that it
is a fallacy to regard arrest and detention of a defaulter who fails to pay
income-tax as a punishment or penalty for an offence. It is a coercive process
for recovery of public demand by putting pressure on the defaulter. The
defaulter can get himself released by paying up the dues.
In the case of Collector of Malabar v. E.Ebrahim20 the facts were as
follows : The respondent had been arrested in pursuance of a warrant issued
by the Collector of Malabar under S. 48, Madras Revenue Recovery Act,
1864. S. 46 (2) of the Income Tax Act, 1922 read with S. 48 of Madras
Revenue Recovery Act, 1864 did not afford opportunity to the arrested person
to appear before the Collector by himself or through a legal practitioner of his
choice and to urge before him any defence open to him and it did not provide
for the production of the arrested person within 24 hours before a Magistrate
as required by Article 22 (2). On behalf of the respondent it was contended
that these sections of the Act and the Indian Income Tax Act did offend, inter
alia, Article 22 of the Constitution. In this case, the arrest was not in
connection with any allegation or accusation of any actual or suspected or
apprehended commission of any offence of a criminal or quasi-criminal
nature. It was really an arrest for a civil debt in the process or the mode
prescribed by law for recovery of arrears of land revenue. Relying on Ajaib
Singh's case and Purshottam's case the court held that neither S. 48 of the
Madras Act nor S. 46 (2) of the Indian Income Tax Act violates Articles 14,
19, 21 and 22 of the Constitution. The Court further observed that these
sections clearly set out the mode of recovery of arrears of revenue, that is to
say, either by the sale of the movable or immovable property of the defaulter,
or by execution against his person i.e. by arrest and imprisonment of the

96

defaulter. The arrest of the defaulter is one of the modes, by which the arrears
of revenue can be recovered. Here the arrest is not by way of punishment for
mere default. Therefore, that where an arrest is made under S. 48 after
complying with its provisions, the arrest is not for any offence committed or a
punishment for defaulting in any payment. The mode of arrest is no more than
a mode for recovery of the amount due.
The provision for production of an arrested man before a magistrate is
not to be treated as a mere formality but as purposeful and designed to enable
the person arrested to be released on bail or other provision made for his
proper custody, pending investigation into the offences with which he is
charged pending an inquiry or trial. In State of U.P. v. Abdul Samad21
involving arrest and deportation of a person, it was held that it was not
necessary to produce such a person before the magistrate if he was produced
before the High Court.
In In re Madhu Limaye22 the facts were : Madhu Limaye and others
were arrested and a case was instituted against them. It was claimed that
Madhu Limaye and others had committed offences under S. 188 and S. 143,
Penal Code (which is cognizable) by violating the orders made under S. 144,
Cr. P.C. and by forming unlawful assembly. They were produced before the
Sub-Divisional Magistrate, who remanded them to jail custody as they refused
to furnish bail-bonds. One of the contentions raised by Madhu Limaye was
that the orders for remand were bad and vitiated. The Supreme Court observed
that clause (2) of Article 22 provides the most material safeguard that the
arrested person must be produced before a Magistrate within 24 hours of his
arrest, so that an independent authority exercising judicial powers may
without delay apply its mind to his case. The Criminal Procedure Code
contains analogous provisions in Section 60 (now S. 56) but our Constitution
makers were anxious to make these safeguards an integral part of fundamental

97

rights. Once it is shown that the arrests made by the police officers were
illegal it was necessary for the State to establish that at the stage of remand the
Magistrate directed detention in jail custody after applying his mind to all
relevant matters. This the state had failed to do. The remand orders are
patently routine and appear to have been made mechanically.
When police though obtained remand of arrested person without
producing him before magistrate within requisite period, it was held that there
was gross violation of his rights under Article 21 and 22 (2). In Bhim Singh v.
State of J. & K.23 the Court observed that when a person is imprisoned with
mischievous or malicious intent and that his constitutional and legal rights
were invaded, the mischief or malice and the invasion may not be washed
away or wished away by his being set free. In appropriate cases the Court has
the jurisdiction to compensate the victim by awarding suitable monetary
compensation. In this case a member of the Legislature Assembly was arrested
while en route to seat of Assembly and in consequence, the member was
deprived of his constitutional rights to attend the Assembly Session. The Court
held that responsibility for arrest lay with higher echelons of the Government
and it was fit case for compensating the victim by awarding compensation.
Compensation of Rs. 50,000/- was awarded.

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