Table of Contents

INTRODUCTION:................................................................................................................2
SCHEME OF RESEARCH:..................................................................................................2
OBJECTIVE.......................................................................................................................... 3
HYPOTHESIS........................................................................................................................ 3
LIMITATION:........................................................................................................................ 3
REVIEW OF LITERATURE:..............................................................................................3
RESEARCH METHODOLOGY:.........................................................................................3
CHAPTER - I......................................................................................................................... 4
RIGHT UNDER INDIAN CONSTITUTION:.....................................................................4
CHAPTER - II........................................................................................................................ 5
RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST :...................................5
CHAPTER - III...................................................................................................................... 7
RIGHT TO CONSULT AND TO BE DEFENDED BY LEGAL PRACTITIONER :.....7
CHAPTER - IV.................................................................................................................... 16
RIGHT TO BE PROVIDED WITH A LAWYER BY THE STATE.................................16
CHAPTER - V...................................................................................................................... 24
RIGHT TO BE PRODUCED BEFORE A MAGISTRATE :............................................24
CONCLUSION..................................................................................................................... 33
BIBLIOGRAPHY................................................................................................................34

RIGHTS OF ARRESTED PERSON CRITICAL ANALYSIS

INTRODUCTION:
One of the basic tenets of our legal system is the benefit of the presumption of innocence of the
accused till he is found guilty at the end of a trial on legal evidence. In a democratic society even the
rights of the accused are sacrosanct, though accused of an offence, he does not become a non-person.
Rights of the accused include the rights of the accused at the time of arrest, at the time of search and
seizure, during the process of trial and the like.
The accused in India are afforded certain rights, the most basic of which are found in the Indian
Constitution. The general theory behind these rights is that the government has enormous resources
available to it for the prosecution of individuals, and individuals therefore are entitled to some
protection from misuse of those powers by the government. An accused has certain rights during the
course of any investigation; enquiry or trial of an offence with which he is charged and he should be
protected against arbitrary or illegal arrest. Police have a wide powers conferred on them to arrest
any person under Cognizable offence without going to magistrate, so Court should be vigilant to see
that theses powers are not abused for lightly used for personal benefits. No arrest can be made on
mere suspicion or information. Even private person cannot follow and arrest a person on the
statement of another person, however impeachable it is.
Though the police has been given various powers for facilitating the making of arrests, the powers
are subject to certain restraints. These restraints are primarily provided for the protection of the
interests of the person to be arrested, and also of the society at large. The imposition of the restraints
can be considered, to an extent, as the recognition of the rights of the arrested person. There are,
however, some other provisions which have rather more expressly and directly created important
rights in favour of the arrested person.

SCHEME OF RESEARCH:
This article is divided into 4 chapters dealing with the rights of arrested person in india, various
provisions under indian constitution and criminal procedure code, supreme courts decisions on
protection of rights (Role of Judiciary), various problems suffered by the prisoners, solutions for the
problems and suggestions.

OBJECTIVE
The main object of this research project is to understand the role of prisons in the light of
human rights of prisoners.
HYPOTHESIS
The prisoners are subject to serious human rights violations.
LIMITATION:
This research paper is done relying mostly on articles and essays published by authors online and
few on books written on the human rights, prison administration and prison reforms. Though such
books are referred they do not contribute to the bulk of the research and my research is mostly
confined with the online sources. The area of research is restrained only to the concept of prison
administration and the importance of human rights for prisoners.
REVIEW OF LITERATURE:
The existing literature on this research work mainly revolves around the published works of foreign
as well as Indian authors pertaining to the subject matter, well decided cases cited in Indian journals
and cases cited from other countries, and the articles published in the websites.
RESEARCH METHODOLOGY:
The research methodology adopted for the purpose of this project is the doctrinal method of
research. The various library and Internet facilities available for Law have been utilized for this
purpose. Most of the information is, however, from the Internet.

CHAPTER - I
RIGHT UNDER INDIAN CONSTITUTION:
First two clauses of Article 22 read as follows:

ARTICLE 12: 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.

CHAPTER - II
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.
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 liberty in the discharge of
what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of
1 A.I.R. 1969 S.C. 1014.

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.

CHAPTER - III
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.
As to the circumstances under which the accused were not represented by a lawyer a counteraffidavit 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

2 A.I.R. 1951 S.C. 217.

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 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

3 287 U.S. 45.

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 :
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 counter affidavits 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 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

4 A.I.R. 1965 S.C. 247.

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
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. Overreaching Article 20(3) and Section 161(2) Cr. P.C. will be obviated by this requirement. A rule is not

5 A.I.R. 1978 S.C. 1025.

6 (1966) 384 U.S. 436.

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 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 :

7 A.I.R. 1994 S.C. 1349.

(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.
(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, 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 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 A.I.R. 1997 S.C. 610.

(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 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 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 over activism 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 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.
CHAPTER - IV
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 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 sociolegal 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

9 A.I.R. 1978 S.C. 1548.

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.
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 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 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

10 A.I.R. 1979 S.C. 1377.

11 A.I.R. 1983 S.C. 624.

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 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.

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.
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 :

12 A.I.R. 1966 S.C. 1910.

... 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 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.

13 A.I.R. 1953 S.C. 10.

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 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 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 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.

CHAPTER - V
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 Women s 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

14 Ibid.

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.

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).
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. 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 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 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 non judicial 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 quasi criminal 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 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.
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 twenty four 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.

15 D.D. Basu, Commentary on the Constitution of India, Vol. D at 168-169 (7th ed.).
16 A.I.R. 1954 S.C. 636.

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 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 India 18 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

17 A.I.R. 1959 S.C. 395.

18 A.I.R. 1965 S.C. 745.

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 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
defaulter. The arrest of the defaulter is one of the modes, by which the arrears of revenue can be

19 A.I.R. 1956 S.C. 20

20 A.I.R. 1957 S.C. 688.

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 SubDivisional 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 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

21 A.I.R. 1962 S.C. 1506.

22 A.I.R. 1969 S.C. 1014.

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.

CONCLUSION
It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the in the
Constitution, the power of arrest given to the police is being misused till this day. It is also believed
that the police often use their position of power to threaten the arrested persons and take advantage
of their office to extort money. There have also been innumerable reports on custodial violence that
lead many to believe that deprivation of basic rights of the arrested persons has become
commonplace nowadays.
The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated that
the accused has the right to know the rights given to him under law and how to enforce such rights.

23 A.I.R. 1986 S.C. 494.

There have also been criticisms that the police fail to inform the persons arrested of the charge
against them and hence, let the arrested persons flounder in custody, in complete ignorance of their
alleged crimes. This has been attributed to the Colonial nature of our Criminal Justice System where
the duty of arrest was thrust upon the Indian officers while the Britishers drew up the charge against
the accused. Thus, it is entirely possible that the English origins of the Indian Criminal Justice
system may have resulted unwittingly in the rights of the arrested persons falling through the cracks.
There is imminent need to bring in changes in Criminal Justice Administration so that state should
recognize that its primary duty is not to punish, but to socialize and reform the wrongdoer and above
all it should be clearly understood that socialization is not identical with punishment, for its
comprises prevention, education, care and rehabilitation within the framework of social defence.
Thus, in the end we find that Rule of law regulates the functionary of every organ of the state
machinery, including the agency responsible for conducting prosecution and investigation which
must confine themselves within the four corners of the law.
It is the duty of the police to protect the rights of society. It must be remembered that this society
includes all people, including the arrested. Thus, it is still the polices duty to protect the rights of the
arrested person. Hence, in light of the discussed provisions, a police officer must make sure that
handcuffs are not used unnecessarily, that the accused is not harassed needlessly, that the arrested
person is made aware of the grounds of his arrest, informed whether he is entitled to bail and of
course, produced before a Magistrate within twenty-four hours of his arrest.

BIBLIOGRAPHY

http://www.pucl.org/from-archives/81nov/prisoner-rights.htm

http://www.ndtv.com/india-news/install-cctvs-at-all-prisons-in-india-supreme-court-1200079

http://www.legalserviceindia.com/article/l174-Prison-Reforms-In-Indian-Prison-System.html

http://www.humanrightsinitiative.org/index.php?option=com_content&id=199%3Asupremecourt-directives-on-police-reform&Itemid=98

http://online.wsj.com/public/resources/documents/AarushiVerdict.pdf

http://indiankanoon.org/doc/853252/

http://indiankanoon.org/doc/768175/

http://indiankanoon.org/doc/108844/

http://daily.bhaskar.com/news/UP-nithari-massacre-gruesome-killings-in-noidas-house-ofhorrors-and-the-story-behi-4318234-PHO.html

http://blogs.wsj.com/indiarealtime/2013/11/27/judgment-in-full-aarushi-talwar-murder-case/

http://ujala.uk.gov.in/files/Ch12.pdf

BARE ACTS

Constitution of India, 1950

Criminal procedure Code, 1973

The Indian Penal Code, 1860.

BOOK REFERRED

R.V.Kelkar, Criminal procedure code, 6th edition, Eastern Book Company.