05-10-2023

ARTICLE 22 CLAUSES (1) AND (2)

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SAFEGUARDS AGAINST ARBITRARY ARREST AND DETENTION

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.

ATUL KUMAR TIWARI’S CLASS

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PROTECTION AGAINST ARREST AND DETENTION

Clauses (1) and (2) of Article 22 give to every person some protection
against arrest and detention. The rights conferred are four in number:
1. the right to be informed about the grounds of arrest
2. the right to consult a legal practitioner of one's choice and to be defended
by him
3. the right to be produced within 24 hours before the nearest magistrate
excluding the time necessary to reach his court from the place of arrest
4. the right not to be kept in custody beyond the period of 24 hours
without the authority of a magistrate

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RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• It will be useful to the arrestee to be informed of the grounds of arrest.

• It is also the essence of the right to personal liberty that one will not be deprived of it unless there
are reasons to the contrary.
• those reasons must relate to some past conduct of the arrestee and not to the whims and
convenience of the person making the arrest.

• the prisoner will use the information by using all the resources at his command to prove his
Innocence and to be set free at the earliest possible date.

• So he may possibly apply for bail or may move to higher courts for the issue of the writ of habeas
corpus.
• If there is a prospect of prosecution he will also use the information to prepare his defence.

ATUL KUMAR TIWARI’S CLASS

… RIGHT TO BE INFORMED
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• But all this can be possible only if the information supplied is not cryptic like –
• ‘you have violated the such and such section of a particular Act’.
• The information supplied must be intelligible in the sense that the alleged violation of the law must
be communicated along with the facts in the context in which the law is said to have been violated.
• However, we must not go to the other extreme and expect the arresting authorities to be too
precise and definitive;*
• the communication in cases coming under Article 22(1) cannot be delayed in any case beyond the
time when the arrestee is produced before the magistrate where the police have to justify the
arrest without a warrant.
• Moreover, the police must have reasons with it when it decides to arrest somebody, and
• there cannot be, ordinarily, any justification for not telling the man arrested as to why he has been
arrested.
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RIGHT TO CONSULT AND TO BE DEFENDED BY A LEGAL

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PRACTITIONER OF ONE’S CHOICE

• This right emphasises the point that a criminal trial cannot be anything but before a duly-
empowered Court following a Legal procedure
• where legal practitioners would appear and argue the case.
• whether the right could be claimed in a trial where the trial court did not have the power to award a
punishment of imprisonment?

ATUL KUMAR TIWARI’S CLASS

State of M.P. v. Sobharam,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

(1966) Supp. SCR 239,

• where the trial was held before a Nyyaya Panchayat which did not have the power to inflict
the punishment of imprisonment.
• The majority clearly held that it did not make a difference and the provision of the law which
barred the lawyers from appearing before the panchayat was void.
• this right is available not only at the trial stage but also at the investigation stage.
• Though the counsel’s presence may not be permitted in the very room where the interrogation
was being done, he should be available to be consulted when accessory.
• The detenu has the right to talk to his counsel at a reasonable distance from the police so that
the privacy of consultation may be maintained.
• The police can insist that the detenu must always be within the range of their sight but not that
he should also be within the range of their hearing..

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PRODUCTION BEFORE THE MAGISTRATE

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• There are two rights in Article 22(2), but they are so interlinked that they
can be discussed together.
• nobody is unnecessarily arrested, and
• the arrestee has to be produced before a Magistrate

• means that the arrest and its necessity will have to be justified to him.
• The second thing that Article 22(2) ensures is that none is kept in custody
any longer than what the circumstances of a case may require.
• The danger is that it may be abused and the arrestee may be subjected
to physical and mental torture with a view to making him confess the
crime.*
ATUL KUMAR TIWARI’S CLASS

JOGINDER KUMAR V. STATE OF UTTAR PRADESH,

AIR 1994 SC 1349
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Facts:
• a lawyer was picked up from his residence and was taken to the police station to
be questioned.
• the family members remained in dark about his whereabouts because he was
not shown to have been arrested and he also did not communicate anything to
the family members.
• In the circumstances, the Supreme Court was moved for a writ of habeas
corpus.
• The police brought the lawyer to the court in response to the court's order and
simultaneously put up the defence that the lawyer was never under arrest and
was only assisting the police in the investigation.
• This was contested by the lawyer.

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… JOGINDER KUMAR
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

HELD:
• the court asked the District Judge of Ghaziabad to investigate and report. However, the
court made a very meaningful observation on the power of the police to arrest.
• The court recognised that every arrest was a compromise between the society's need
for security and the individual’s right to liberty and accordingly,
• in a per curiam order it said:
• “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 different.
The police officer must be able to justify the arrest apart from his power to do so”.

ATUL KUMAR TIWARI’S CLASS

D.K, BASU V. STATE OF WEST BENGAL,

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

AIR 1997 SC 610

• the Supreme Court had been moved by the executive chairman, Legal Aid services, West Bengal,
a non-political organisation registered under the Societies Registration Act, 1860
• to look into the cases of custodial death which were appearing in the media.
• The court took cognizance of it as a PIL but preferred to look into the problem on an all-India basis
as a recurring issue.
• Accordingly, notices were issued to the Union and the state governments and also to the Law
Commission of India to come forward with its suggestion in the matter.
• Abhishek Manu Singhvi, a senior member of the bar was requested to assist the court as amicus
curiae.

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… D.K, BASU
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• The judgement of the court cited the third report of the National Police Commission to say that
custodial violence and lockup death were having a serious demoralising effect on society.
• For this reason, the police commission in its report had opined that, for purposes of interrogation
during the investigation, an accused needed to be arrested only-
1. Where he was accused of a serious crime and his arrest was necessary to Infuse confidence
among terror-stricken victims or
2. Where it was apprehended that the accused might abscond and evade the process of law or
3. Where either for the reason of being a habitual offender or for the reason of being a person of
violent behaviour, he was likely to commit further offences.

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… D.K, BASU
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

THE GUIDELINES ARE 11 IN NUMBER AND ARE REQUIRED TO BE FOLLOWED BY THE

POLICE STRICTLY.

1.Persons making the arrest or handling the interrogation should bear accurate, visible
and clear identification and name tags with their designations
2. A memo should be prepared at the time of arrest and it should be attested either by a
family member of the arrestee or a respectable member of the locality and should also
be countersigned by the arrestee
• 3,4,5. A friend or relative of the arrestee should be informed of the arrest and of the
place where he was being detained. This should be done even where the person to be
informed lives in another district or place. The arrestee should also be told that he has a
right to get his relative or friend informed of his arrest.
• 6. The fact of the arrest, the name of the next friend of the arrestee, and the name and
particulars of the police officials in whose custody he has been put, should be entered in
the diary at the place of detention.

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… D.K, BASU
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• 7,8. The arrestee should be medically examined on his request at the time of his
arrest, and injuries if any, on his body must be recorded. This inspection memo
should be signed both by the arrestee and the police officer effecting the arrest.
A copy of the memo should be given to the arrestee. Thereafter, the arrestee is
to be examined every 48 hours by an approved and qualified doctor.
• 9. copies of all the aforesaid documents should be sent to the judicial magistrate
for his record
• 10. The arresttee may be permitted to meet his lawyer during the interrogation
though not throughout the interrogation
• 11. The respective police control room at state and district headquarters should
be informed about the arrest and other related facts, where it should be
displayed in a conspicuous manner.
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