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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.

feeblemindedness. 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 .63 As to the circumstances under which the accused were not represented by a lawyer a counter-affidavit filed by Mr. Some engaged pleaders of their choice at their cost. In some cases. Some accused stated that they did not want any lawyer to defend them. Advocate of the petitioners relied on Powell v. this was done. 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. to assign a counsel for him as a necessary requisite of due process of law. to whatever cause it may have been due. 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. However. illiteracy or the like. The Supreme Court while observing that the assignment of a counsel in the circumstances mentioned in the passage was highly desirable. 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. held that the judgement cannot rest wholly on American precedents. to some extent accounts for their not being represented by a lawyer cannot be ruled out. who investigated the case stated : Facilities were given to the accused to engage lawyers for their defence. a senior police officer. 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. The Supreme Court observed in this connection that suggestion of the High Court that the curious attitude adopted by the accused. Hanumantha Naidu. it is the duty of the Court whether requested or not. the accused declined to accept the pleaders appointed by the Tribunal for their defence.

By laying down the first principle the Court. Another important provision in this connection is S. 303 (earlier S. which corresponded to S. the trial should be held to be vitiated. 1898. Alabama. 340) of Criminal Procedure Code. (1) That it cannot be laid down as a rule of law that in every capital case where the accused is unrepresented.. a counsel should be provided to defend him. However. The Court could not show the courage to accept the principle of Powell v.C. 271 of the Hyderabad Cr.C. accepted the position that even in some capital cases the trial would be valid even if the accused is not represented by a lawyer. The court laid down following two principles in this regard. by laying down second principle. 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. (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. 1973. the Supreme Court at least sowed a seed for further development of law in this regard in future. 340 Cr. That Section is in these terms : .. in other words. This is a literal view of Article 22 (1). The provision which was material to the contention raised was S. P.” 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. P.64 a criminal proceeding.

may of right be defended by a pleader of his choice”. petitioner was a sepoy and subject to the Army Act. or against whom proceedings are instituted under this code. 302 of I. Any person accused of an offence before a Criminal Court. that consequently no such request was refused and that he cannot be said to have been denied his fundamental right of being defended by .C. In Ram Sarup v. 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. Union of India4 the facts were : Ram Sarup. on many occasions.65 “303. 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. He was charged on three counts under S. Petitioner alleged that he had expressed his desire. 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. He was found guilty of the three charges and sentenced to death. 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. He shot dead two sepoys. Before the Constitution come into force. 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.P. In reply it was stated that this allegation about the petitioner's requests and their being turned down was not correct. 69 of the Army Act read with S. and was tried by the General Court-Martial.

This negatived any suggestion of a request to the Military Authorities for permission to allow him representation by a practising lawyer and its refusal. His involved language could only mean that he could not contact his relations for their arranging a civilian lawyer for his defence. 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. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and . 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. 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. 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. The Court was not much impressed by the statement of the petitioner. But the Court was inclined to take hyper-technical approach to hold that Article 22(1) is not violated.L. In Nandini Satpathy v. 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. that he could not contact his relations for their arranging a civilian lawyer for his defence. 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. If the petitioner had made any express request for being defended by a counsel of his choice. P. he should have stated so straightforwardly in his petition. In this case too.66 counsel of his choice.

for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried. was the project. A rule is not laid down that the Police must secure the services of a lawyer. and in the context of Article 20(3) is an assurance of awareness and observance of the right to silence. will be obviated by this requirement. But if an accused person expresses the wish to have his lawyer by his side when his examination goes on. He cannot harangue the police but may help his client and complain on his behalf. The Court further observed that Article 20 (3) and Article 22 (1) may. without being exposed to the serious reproof that involuntary self-incrimination secured in secrecy and by coercing the will. Moreover. That will lead to „police station lawyer‟ system. caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated. although his very presence will ordinarily remove the implicit menace of a police station. it shall be granted before commencing or continuing with the questioning. be telescoped by making it prudent for the police to permit the advocate of the accused.67 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. Lawyer's presence is a constitutional claim in some circumstances in our country also. The Court referred to Miranda decision6 which had insisted that if an accused person asks for lawyer's assistance. Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination. in a way. at the stage of interrogation. if there be one. 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. this facility shall not be denied. P. an abuse which breeds other vices.C. Over-reaching Article 20(3) and Section 161(2) Cr. The Court observed that presence of a lawyer is asking for the moon in many cases until a public . to be present at the time he is examined.

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. to have one friend. if he so requests. The Supreme Court observed that no arrest can be made because it is lawful for the Police officer to do so.P. the Court took the help of Article 20 (3) and Miranda decision for this liberal interpretation.7 the Supreme Court held that right of arrested person upon request. Nandini Satpathy's Case makes a clear departure from the literal interpretation stance of the Supreme Court in earlier cases. The Police Officer must be able to justify the arrest apart from his power to do so. The justification for the exercise of it is quite another. 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 police need not wait more than for a reasonable while for an advocate's arrival. . However. The existence of the power to arrest is one thing.68 defender system becomes ubiquitous. The case added an additional fortification to the right to counsel. The Court enlarged this right to include right to counsel to any accused person under circumstances of near-custodial interrogation. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. The Supreme Court issued the following requirements : (1) An arrested person being held in custody is entitled. 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. State of U. In Joginder Kumar v. 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.

whether it occurs during investigation. i) The right to have some one i. his relative or friend informed about his arrest. interrogation or otherwise. iii) The right to know from the police officer about this right. Any form of torture or cruel.e. The precious right guaranteed by Article 21 of the Constitution cannot be denied to convicts. These protections from power must be held to flow from Articles 21 and 22 (1) and enforced strictly. inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution. The Supreme Court recognised three incidental rights of arrested person in this regard i. he shall be entitled. under-trials. . Section 56 (1) of the Police and Criminal Evidence Act. A new angle of approach was adopted to the interpretation of Article 22(1) but with the help of Article 21. We find a shift in judicial concern in Joginder Kumar's Case for ensuring constitutional right to arrested person. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rules of Law. .e.69 (2) The Police Officer shall inform the arrested person when he is brought to the police station of this right. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. The Supreme Court imposed corresponding duties on the police officers. 1984 in England provides : Where a person has been arrested and is being held in custody in a police station or other premises. (3) An entry shall be required to be made in the Diary as to who was informed of the arrest. ii) The right to consult privately with lawyer. The rights inherent in Article 21 and 22 (1) of the Constitution require to be jealously and scrupulously protected. 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 .

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. (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate. as soon as practicable.B.K. except according to procedure established by law by placing such reasonable restrictions as are permitted by law.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. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. Therefore. (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. the Supreme Court issued in D.70 detenus and other prisoners in custody. unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. State of W. that he has been arrested and is being detained at the particular place. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. visible and clear identification and name tags with their designations. (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 .Basu v. (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.

present on his/her body. where information regarding the arrest and the place of custody of the arrestee shall be communicated by the Officer causing the arrest. be also examined at the time of his arrest and major and minor injuries. by a doctor in the panel of approved doctors appointed by Director. (11) A police control room should be provided at all Districts and State headquarters. though not throughout the interrogation. where he so requests. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody. Health Services of the concerned State or Union Territory. (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. (9) Copies of all the documents including the memo of arrest. (10) The arrestee may be permitted to meet his lawyer during interrogation. Health Services should prepare such a panel for all Tehsils and Districts as well. (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. (7) The arrestee should. if any.71 and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. should be sent to illaqa Magistrate for his record. referred to above. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. Director. must be recorded at that time. within .

as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted. Speaking on the right to compensation to arrestee in case of custodial torture. In the assessment of compensation. which the state in law. having territorial jurisdiction over the matter. 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. the emphasis has to be on the compensatory and not on punitive element. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is . The objective is to apply balm to the wounds and not to punish the transgressor or the offender. 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.72 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. 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 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. which shall have the right to be indemnified by the wrong-doer. The requirements flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. is duty bound to do.

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. It is submitted that it is a case of out-right judicial legislation. The relief to address the wrong for the established invasion of the fundamental rights of the citizen under the public law jurisdiction is. The quantum of compensation will. The Supreme Court arrogated to itself the Constituent or at least legislative power in laying down eleven requirements in this connection. Legal Aid Services. in addition to the traditional remedies and not in derogation of them. In its anxiety to protect the interests of the arrested person.K. D. depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. This was a case of PIL.73 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. A letter by the Executive Chairman. may in a given case. The Supreme Court observed that with a view to bring in transparency. of course. Showing concern for the plight of the arrested person is one thing and exceeding one's jurisdiction . thus. the Court has exhibited an instance of judicial overactivism rather judicial waywardness. 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. Basu's Case not only travels a path of few steps ahead of Joginder Kumar but also takes a big leap forward. be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit. The case sounds death-knell to Montesquieu's theory of separation of powers amongst three organs of the State. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done.

The judicial pendulum swung to the other extreme in this case. what is required is doctrine of judicial selfrestraint should be followed. cannot have the status of law as its source is not legislature but judiciary. it is submitted. 3. 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. Though these eleven requirements comprise human rights jurisprudence and it would be in the fitness of the things. This judicial hegemony needs to be checked.Hoskot v. 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. if these were law.74 and encroaching on the field of another organ is another thing. As the other two organs of the state cannot control or check this judicial encroachment. at least a single right of appeal on facts. Where the procedural law provides for further appeals these . The judiciary needs now self-discipline. It may be noted that these requirements were held to flow from Article 21 and 22 (1) jointly. State of Maharashtra9 it was observed by the Supreme Court that generally speaking and subject to just exceptions. is basic to civilized jurisprudence. The judiciary should restrain from trespassing in the field of another organ under the guise of interpretation of the Constitution or doing complete justice. Every step that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and unconstitutional. Both these are State responsibilities under Article 21.4 RIGHT TO BE PROVIDED WITH A LAWYER BY THE STATE In M. where criminal conviction is fraught with long loss of liberty.H. these sweeping eleven requirements laid down by the Supreme Court.

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. the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution. an imperative processual piece of criminal justice where deprivation of life or personal liberty hangs in the judicial balance. inclusive of special leave to appeal for want of legal assistance. 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. Enough has been set out to establish that a prisoner. can claim.. The Indian socio-legal milieu makes free legal service at trial and higher levels. the necessary concomitant of right to counsel to prepare and argue his appeal. P. If a prisoner sentenced to imprisonment. Maneka Gandhi's Case has laid down that personal liberty cannot be cut out or cut down without fair legal procedure. who has to seek his liberation through the court process is lawyer's services. The inference is inevitable that this is a State's duty and not Government's charity. 304 Cr. Naturally. and in other situations courts cannot be inert in the face of Article 21 and 39-A. with procedural intricacies. power to assign counsel for such imprisoned individual 'for doing complete justice'. One of the ingredients of fair procedure to a prisoner.C. Of course. That discretion resides in the Court. . legal submissions and critical examination of evidence. 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.75 requirements will similarly apply. as part of his protection under Article 21 and as implied in his statutory right to appeal. Partial statutory implementation of the mandate is found in S. is virtually unable to exercise his constitutional or statutory right of appeal. Judicial justice. deprived of his freedom by court sentence but entitled to appeal against such verdict.

though offered legal aid by the Court. assign competent counsel for the prisoner's defence. To take further support for this implication it took help of Article 142 for doing complete justice. provided the party does not object to that lawyer. on reasonable grounds such as indigence or incommunicado situation.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. However. Article 22 (1) does not provide to arrested person. the Court shall. the gravity of the sentence and the ends of justice so require. right to be provided with a lawyer by the State. ii) The State shall pay to assigned counsel such sum as the court may equitably fix. preferred to argue himself. 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. if the circumstances of the case. The Court summarised the legal position as follows : i) Where the prisoner is disabled from engaging a lawyer. 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. 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. in M.76 In this case. It seems that after the decision of Maneka Gandhi giving a new . the party.

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. 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. 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. The Court added a further protection to this right by holding that if free legal services are not provided to such an accused. 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. 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. to have free legal services provided to him by the State. Hussainara Khatoon v. 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 .77 dimension to the Article 21. indigence or incommunicado situation. 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 trial itself may run the risk of being vitiated as contravening Article 21. the Supreme Court's judicial activism started blossoming in this regard.C. The Case of Ranjan Dwivedi v. indigence or incommunicado situation. P. 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.

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. but insofar as the Courts of Justice can indulge in some judicial law making within the interstices of the Constitution.78 to give financial assistance to him to engage a counsel of his choice on a scale equivalent to. or commensurate with. As is clear from the terms of Article 39 A.C. the duty of the Court in relation to the Directives came to be emphasized in the later decisions laying down certain broad propositions. if any. the Court possesses the power to grant free legal aid if the interests of justice so require. 304 of the Cr. it may be difficult for the accused to find sufficient means to engage a lawyer of competence. like the Fundamental Rights. The Courts therefore. which is envisaged in the Preamble. In such cases. Primarily. 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. the mandate in Article 39 A is addressed to the Legislature and the Executive. lies by way of making an application before the Trial Court under sub-section (1) of S. 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 . 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. P. and not by a petition under Article 32 of the Constitution. The remedy of the petitioner. the fees that are being paid to the counsel appearing for the State. 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. Many a time. The remedy of the petitioner therefore. the courts too are bound by this mandate.

. (1) of Section 304 of the Code are fulfilled.H. he may make necessary directions in that behalf. 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 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. The Court in Ranjan Dwivedi's case referred to M. It cannot be understood why the Court expressed its inability or helplessness to grant relief to the accused petitioner in the face of M. the Court shall assign a pleader for his defence at the expense of the State.79 Sub-sec. 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.H. 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. (1) where. in a trial before the Court of Session. S. The Court directed the petitioner to approach the Additional Sessions Judge under sub-section (1) of Section 304 of the code of Criminal Procedure. 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. 304 (1) of Criminal Procedure Code reads : 304.

P. The High Court declared that S. The conviction was upheld by the Additional Sessions Judge. By S. The respondents then moved the High Court of Madhya Pradesh. The State of Madhya Pradesh preferred the appeal to the Supreme Court. Section 63 provides : “No legal practitioner shall appear on behalf of or shall plead for or defend any party in a dispute. convicted and sentenced the respondents to a fine of 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. The case against the respondents was thereafter put up before the Nyaya Panchayat. case or proceedings pending before the Nyaya Panchayat”. 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.5 STATUTES BARRING APPEARANCE OF LAWYERS : The Madhya Bharat Panchayat Act was passed on June 17. 75 of the Act. The Nyaya Panchayat. 75 each. a Court established under the Madhya Bharat Panchayat Act. By S.80 3. . the Nyaya Panchayat is empowered to try certain offences committed within its jurisdiction including offence under S. Section 87 provides that subject to the provisions of S. quashed the conviction and sentences. 63. The facts of the case State of M. 447 of the Indian Penal Code. after trial. 89. any party may appear before a Nyaya Panchayat by a duly authorised representative. Shobharam12 were on a complaint of trespass the police registered a case against the respondents under S. 447 of the Indian Penal Code. v. 1949. 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. The respondents were later arrested by the police and released on the execution of surety bonds. 1949. The Nyaya Panchayat has power to impose a fine not exceeding Rs.

he may either be released on bail or be remanded into custody.. He has the right to consult his lawyer and to be defended by him. “He” therefore. (Mudholkar J. nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice”. and as the respondents were not detained at the time of the trial before the Nyaya Panchayat. Upon arrest. 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. 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.81 Majority consisting of Bachawat. advocate for the appellant submitted that “he” means a person who is arrested and detained.. 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. dissenting) held that Section 63 of the Madhya Bharat Panchayat Act. (with him Shelat J.J. Shelat and Hidaytullah JJ. The arrest of the accused on a . means “any person who is arrested”. The arrest of any person on a criminal charge is a step in an intended criminal proceeding against him.) observed that the pronoun “he” in the second part of Article 22(1) must refer to the last antecedent. The second part of Article 22 (1) reads : “. 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. and Sarkar C. Mr. the constitutional guarantee is not available to them. Sen. He argued that in State of Punjab v. Bachawat J.

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.C.. so he has no such right to counsel before the Nyaya Panchayat. Bachawat J. may of right be defended by a pleader. The right was not lost because they were released on bail. further observed that when any person is arrested. Section 340 (now S. He held that the right attaching to them on their arrest continued though they were not under detention at the time of the trial. 54 of Cr. and he must be allowed the right to be defended by counsel of his choice. It is at the trial in the Criminal Court that the accused defends or is defended by counsel. P.82 criminal charge has thus an intimate connection with his eventual trial on the charge. 303) of Cr. 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. he is deprived of his liberty. 1949 does not authorise any arrest and as a matter of fact. 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. the right of defence by a legal practitioner given by Article 22 (1) must extend to defence in a trial in a Criminal Court. provides that any person accused of any offence before a Criminal Court. He observed that most of the safeguards embodied in Clauses (1) and (2) of Article 22 are to be . The clear words of Article 22 furnish no basis for this limitation. P. the procedure laid down in Clause (1) of Article 22 must then be followed. 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. Bachawat J. In this background.C. therefore. the respondents were arrested by the police in the exercise of its powers under S. did not accept this line of reasoning.

If this proposition were accepted as true we might be in the Middle Ages. agreed with Bachawat J. 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. The word „defended‟ clearly includes the exercise of the right so long as the effect of the arrest continues. The first is the right to be told the reason of the arrest as soon as an arrest is made. The narrow meaning of the word 'defended' that the person who is arrested has a right to . Hidaytullah J. the bail requires him to remain present. 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.83 found in the Code of Criminal procedure. If this were not so then instead of providing for punishment of imprisonment. There are three rights and each stands by itself. 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. Bachawat J. 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. 63 of the Act violative of Article 22 (1) and so void. did not stand in danger of losing his personal liberty. 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. If he was exposed to penalty. And to this end without a right to be defended by counsel. (with him Shelat J. The Criminal Procedure Code allows the right to be defended by counsel but that is not a guaranteed right. 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. penal laws might provide for unlimited fines and it would be easy to leave the man free but a pauper. he had a right to be defended by counsel. This is. on this point and observed that when our Constitution lays down in absolute terms a right to be defended by one's own counsel.) held S.

The rights given by Article 22 (1) and (2) are absolute in themselves and do not depend on other laws. A person arrested and put on his defence against a criminal charge. 63 of the Act puts no ban on either of these rights. 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. which may result in penalty. 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.J. 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‟. S. The declaration is general and insists on legality of the action. cannot be accepted. 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. In addition there is the declaration that no person shall be deprived of his personal liberty except by procedure established by law. He observed that a person arrested has the constitutional right to consult a legal practitioner concerning his arrest. 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. he is not . Therefore. Mudholkar J. S. 63. 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. The Act is not concerned with arrest. 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.R. On the other hand. Such person has the Constitutional right to be defended by a legal practitioner.) took a contrary view on the point of validity of S. Sarkar C.84 consult a legal practitioner of his choice and to take his aid only to get out of the arrest. (with him J. The right to be defended by a legal practitioner is conferred not only on a person arrested.

of course. had the right to seek relief against the arrest through a legal practitioner. P. 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. 54 (1) of the Cr. . The Act expressly provides that the Nyaya Panchayat cannot inflict a sentence of imprisonment.C. He. The Act does not violate Article 22(1) and cannot be held to be invalid on that ground. The reason is that Articles 21 and 22 are concerned only with giving protection to personal liberty. the offence being cognizable. In this case the respondents though had been arrested. This is the only case where the Supreme Court had an opportunity to strike down a provision in law barring appearance of lawyer. That is strongly indicated by the language used in these Articles and by the context in which they occur in the Constitution. 1898. the procedural requirement in Article 22 (1) is not a constitutional necessity.85 entitled to the Constitutional right to defend himself 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. The Act does not give any power of arrest. 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. they had been arrested not under the Act but under S. So S. Though majority decision seems to be correct on superficial examination. 63 and the Act are valid. For such a law. 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. not even one in default of payment of fine.

86 3. There were heart rending tales of abduction of women and children on both sides of the border. therefore.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. an abducted person as defined in S. and in the latter case includes a child born to any such female after the said date. Ajaib Singh14. To implement that agreement Act 65 of 1949 was passed. a girl of about 12 years of age. The recovery police of Ferozpore. The Police Officers recommended in their report that she should be sent to Pakistan for restoration to her next of kin. 2 (1) (a). 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. The girl was a Muslim abducted by the petitioner during the riots of 1947 and was. on or after that day and before 1-1-1949 has become separated from his or her family. . 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. Abducted Persons (Recovery and Restoration) Act 65 of 1949. The expression „abducted person‟ is defined by S. 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. 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. 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 Women‟s Camp in Jullundhur City. The material facts were : The petitioner Ajaib Singh had three abducted persons in his possession.

enter and take into custody any person found therein who. after recording the reasons for his belief. 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). has reason to believe that an abducted person resides or is to be found in any place. 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. is an abducted person. 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. 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. which is important. 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. he may. in his opinion. 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. but S. 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. without warrant.87 Section 4 of the Act.

irrespective of its reason is arrest and as such. 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. R.C. not before a Magistrate but before the Civil Court which made the order. It is wholly immaterial why or with what purpose such arrest is made. arrests under warrants issued by a Court and arrests otherwise than under such warrants. The warrant ex facie sets out the reason for the arrest. on this hypothesis. attracts the application of the constitutional safeguards guaranteed by Article 22 (1) and (2).P. 38. 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. 1.P. If two constructions are possible. for example the arrest of a defendant before judgment under the provisions of O. or the arrest of a judgment debtor in execution of a decree under S. The Court further observed that broadly speaking. 55 of the Code will. be unconstitutional inasmuch as the Code provides for the production of the arrested person. C. namely. The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence.C. namely.75) of Cr. . In short.88 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. the warrant contains a clear accusation against the person to be arrested. The mere imposition of physical restraint. that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence. Section 80 (now S. arrests may be classified into two categories.

C. without an order from a Magistrate and without a warrant arrest a person. 55) for acquainting the person to be arrested without warrant with the .P. The point to be noted is that. R. authorises the court to issue a warrant for the arrest of a defendant before judgment in certain circumstances. 38. R 38 issue a warrant for the arrest of the judgment-debtor in execution of the decree. 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. The Court may under S.89 requires that the police officer or other person executing a warrant must notify the substance thereof to the person to be arrested. 57. and. 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. if so required. 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. Sections 55. C. there are other statutes which provide for arrest in execution of a warrant issued by a Court. It is also to be noted that there is no provision. It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested. 41. 151 and 401 (3) (now Ss. 41) sets out nine several circumstances in which a police officer may. 55 read with O. shall show him the warrant. S. except in S. 21. For example O. Section 54 (now S. 59 (now S. Criminal Procedure Code deal with arrests otherwise than under warrants issued by a Court under that Code. 56 (now S. 42. The Court pointed out that several sections in Chapter 5. 432) confer similar powers on police officers. 1. Apart from the Code of Criminal Procedure. as in the case of warrant of arrest issued by a Court under the Code of Criminal Procedure. 151.

173 and 174 of Sea Customs Act (8 of 1878) and S. Apart from the Code of Criminal Procedure. S. In the case of arrest under a warrant issued by a Court. exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. 61 (now S. 61 (now Ss. 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. there is less reason for making such production in that case a matter of a substantive fundamental right. 56 & 57) prescribe the procedure to be followed after a person is arrested without warrant. It is also perfectly plain that . 69 and S. For example Ss.90 grounds for his arrest. exceed twenty-four hours. 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. 64 of Forest Act (16 of 1927). the Court came to the conclusion that arrests without warrants issued by a Court call for greater protection than do arrests under such warrants. therefore. 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. there are other statutes which authorise the arrest of a person without a warrant issued by any Court. While considering whether the protection of Article 22 (1) and (2) extends to both categories of arrests. S. an arrest without warrant under these Acts also proceeds upon an accusation that the person arrested is reasonably suspected of having committed an offence. the judicial mind had already been applied to the case when the warrant was issued and. As in the cases of arrest without warrant under the Code of Criminal Procedure. and such period shall not. 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. In both cases. 167. in the absence of a special order of a Magistrate under S.

56 & 57) Cr.91 the language of Article 22 (2) has been practically copied from Ss. or is suspected to have committed. 60 and 61 (now Ss. as soon as may be. 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 .C. 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. 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. 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. 4 of the impugned Act. of the grounds for such arrest indicates that the clause really contemplates an arrest without a warrant of Court. 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.P. for a person arrested under a Court's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. 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. As to the validity of S. In other words.

4 of the impugned Act cannot be regarded as arrest and detention within the meaning of Article 22 (1) and (2). 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. The statement of the Court that Article 22 (1) and (2) reproduces the language of sections 60 and 61 (now Ss.P. Article 22 (1) and (2) used the word „arrested‟ without any qualification and without referring to warrant at all.15 This would be absurd. Merely because in the existing statutory law. 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.C. 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. 56 and 57) of the Criminal Procedure Code is not correct because Cr.92 camp under S. 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. 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. in the case of arrest under warrant. 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. provisions specifically refer to „arrest without warrant‟. It is a salutary practice of final tribunals like the Supreme Court not to decide more than is necessary in constitutional cases. 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. the protection is confined to arrests without warrant. .

M. Sri Krishna Sinha17. It was strange that the point was not discussed in the judgment and no reason in support of the view was stated. Advocate did not advance any argument to support the contention that privilege superseded fundamental right. The Court directed that Shri Mistry be released forthwith. Mistry. It is submitted that Gunupati's case is wrongly decided. 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). but was kept in detention in the Speaker's custody at Lucknow even till the time of petition. must yield to .S. In M. the person must be released. The provisions of Article 19 (1) (a) which are general. 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. There was no discussion about the merits of the contention raised on behalf of Mr. the implications thereof were not fully considered. 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 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. It is doubtful how far the Magistrate before whom such an arrested person is produced can examine the validity of the Speaker's order.93 In Gunupati Keshavram v. It was further alleged that Shri Mistry was not produced before a Magistrate within twentyfour hours of his arrest. Sharma v. Upon a literal application of Article 22 (2) it was held that since the arrested person was not produced before a Magistrate. 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.

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.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. 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.M. 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. In other words.S.Sharma's case which did not follow Gunupati's case. Sharma's case. B.94 Article 194 (1) and the latter part of its clause (3) which are special. 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. who was the member of the Bench which decided Gunupati's case. In In Re under Article 143 of Constitution of India18 popularly known as Keshav Singh's case.Desai19 was that S.M. So it was not necessary for the majority decision to deal with the point pertaining to the applicability of Article 22 (2).S.M. The contention of the petitioner in the case of Purshottam v. It is curious that Das J. delivered the judgment of the majority in M. 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. Sharma's case had incidentally commented on the decision in Gunupati's case. 46 (2) of the Income Tax Act under which Income Tax Officer issues the recovery certificate to the Additional Collector of . It is also important to note that there was no controversy about the applicability of Article 22 in M.M.S.S. In Keshav Singh's case the Supreme Court observed that the obiter observations made in the majority judgment in M.

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. The defaulter can get himself released by paying up the dues. In this case. 48. by arrest and imprisonment of the . It is a coercive process for recovery of public demand by putting pressure on the defaulter. 1864. 1922 read with S. 46 (2) of the Indian Income Tax Act violates Articles 14. that is to say. Ajaib Singh was not pressed.95 Bombay is void under Article 13 (1) in that the same offends Article 22 (1) and (2). 46 (2) of the Income Tax Act. 46 (2) contravenes the fundamental rights guaranteed by clauses (1) and (2) of Article 22. The Court further observed that these sections clearly set out the mode of recovery of arrears of revenue. in view of decision of this Court in the State of Punjab v. 21 and 22 of the Constitution. Article 22 of the Constitution. 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.Ebrahim20 the facts were as follows : The respondent had been arrested in pursuance of a warrant issued by the Collector of Malabar under S. In the case of Collector of Malabar v. The objection that S. either by the sale of the movable or immovable property of the defaulter. E. 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). Relying on Ajaib Singh's case and Purshottam's case the court held that neither S. 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. or by execution against his person i. 19. On behalf of the respondent it was contended that these sections of the Act and the Indian Income Tax Act did offend. S. 48 of Madras Revenue Recovery Act. 48 of the Madras Act nor S. inter alia.e.

who remanded them to jail custody as they refused to furnish bail-bonds. and by forming unlawful assembly. Therefore. One of the contentions raised by Madhu Limaye was that the orders for remand were bad and vitiated. 144. It was claimed that Madhu Limaye and others had committed offences under S. 56) but our Constitution makers were anxious to make these safeguards an integral part of fundamental . by which the arrears of revenue can be recovered. 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. They were produced before the Sub-Divisional Magistrate. v. In In re Madhu Limaye22 the facts were : Madhu Limaye and others were arrested and a case was instituted against them. The Criminal Procedure Code contains analogous provisions in Section 60 (now S. Here the arrest is not by way of punishment for mere default. the arrest is not for any offence committed or a punishment for defaulting in any payment. that where an arrest is made under S. 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.C. The arrest of the defaulter is one of the modes. pending investigation into the offences with which he is charged pending an inquiry or trial. In State of U. it was held that it was not necessary to produce such a person before the magistrate if he was produced before the High Court. 48 after complying with its provisions. P. 143. so that an independent authority exercising judicial powers may without delay apply its mind to his case. 188 and S. Penal Code (which is cognizable) by violating the orders made under S.P. Cr. Abdul Samad21 involving arrest and deportation of a person. The mode of arrest is no more than a mode for recovery of the amount due.96 defaulter.

97 rights.was awarded. In this case a member of the Legislature Assembly was arrested while en route to seat of Assembly and in consequence. the mischief or malice and the invasion may not be washed away or wished away by his being set free. 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. In appropriate cases the Court has the jurisdiction to compensate the victim by awarding suitable monetary compensation.23 the Court observed that when a person is imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded. 50. Compensation of Rs. State of J. The remand orders are patently routine and appear to have been made mechanically. This the state had failed to do. In Bhim Singh v. it was held that there was gross violation of his rights under Article 21 and 22 (2).000/. & K. 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. When police though obtained remand of arrested person without producing him before magistrate within requisite period. . the member was deprived of his constitutional rights to attend the Assembly Session.

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