Article 22

Damodaram Sanjivayya National Law
University
Visakhapatnam, A.P., India
Article 22 Protection against arrest and detention in certain cases
Mr. A. Nageswara Rao
Aqib Khan 2015013

3rd Semester
ACKNOWLEDGEMENT
I would sincerely like to put forward my heartfelt appreciation to our Constitutional law
assistant Professor, Mr. A. Nageswara Rao for giving me a golden opportunity to take up
The project Article 22 Protection against arrest and detention in certain
cases we have tried my best to collect information about the project in various possible
ways to depict clear picture of given project topic.
2
CONSTITUTIONAL LAW
ARTICLE 22 PROTECTIONS AGAINST ARREST AND DETENTION IN CERTAIN CASES
CONTEXT
Chapters Pages
1. Introduction
2. Constitutional Provisions
3. Protection or safeguard or remedies: article-22
a. Right to be informed the grounds of arrest

b. Right to be defended by Lawyer
c. Right to be produced before magistrate
d. Arrested person no detention beyond 24 hours except by order of
the magistrate
e. Right to speedy trial
f. Right to Fair Trial
4. Bibliography
5. Conclusion
3
1. Introduction
A person in custody of the police, an under-trial or a convicted individual does not lose his
human and fundamental rights by virtue of incarceration. The two cardinal principles of criminal
jurisprudence are that the prosecution must prove its charge against the accused beyond shadow of
reasonable doubt and the onus to prove the guilt of the accused to the hilt is stationary on the
prosecution and it never shifts. The prosecution has to stand on its own legs so as to bring home the guilt
of the accused conclusively and affirmatively and it cannot take advantage of any weakness in the
defence version. The intention of the legislature in laying down these principles has been that hundreds
of guilty persons may get scot free but even one innocent should not be punished. Indian Constitution
itself provides some basic rights or safeguards to the accused persons which are too followed by the
authorities during the process of criminal administration of justice. There are some provisions which
expressly and directly create important rights in favour of the accused/arrested person.
4
2. Constitutional Provisions

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.
(3) Nothing in clauses (1) and (2) shall apply

(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a longer
period than three months unless
(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as,
Judges of a High Court has reported before the expiration of the said period of three months that there is
in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorized the detention of any person beyond the
maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) Such person is detained in accordance with the provisions of any law made by Parliament under sub
clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford him the earliest opportunity of making a
representation against the order.
1
The Constitution of India, 1950
5
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause
to disclose facts which such authority considers being against the public interest to disclose.
(7) Parliament may by law prescribe

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained
for a period longer than three months under any law providing for preventive detention without
obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause
(4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any
law providing for preventive detention; and
(c) The procedure to be followed by an Advisory Board in an inquiry under [sub-clause (a) of clause
(4)].
Explanation
2.1 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 twenty four hours (24 hours) without
the authority of the Magistrate.
6
3. Protection or safeguard or remedies: Article-22
Article 22[1] and 22[2] of the Indian constitution provide the following rights to the person
arrested and detained in custody under the ordinary law of crimes
A. Right to be informed 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 defense 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 addition to the constitutional provision, Section 50 of Criminal Procedure Code also provides
for the same. The grounds of arrest should be communicated to the arrested person in the language
understood by him; otherwise it would not amount to sufficient compliance with constitutional
requirements.
Relevant Case law

In Joginder Kumar v. State of U.P.2
The Supreme Court held that right of arrested person upon request, to have someone 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
2
(1994) 4 SCC 260
7
the person's complicity and even so as to the need to effect arrest. The Supreme Court issued the
following requirements:
(1) An arrested person being held in custody is entitled, if he so requests, to have one friend, relative or
other person who is known to him or likely to take an interest in his welfare told as far as practicable
that he has been arrested and where is being detained.
(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.
There is a shift in judicial concern in Joginder Kumar's Case for ensuring constitutional right to
arrested person. A new angle of approach was adapted to the interpretation of Article 22
(1) But with the help of Article 21. The Supreme Court recognized three incidental rights of arrested
person in this regard i.e.
i) The right to have someone 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.
8
In the cases of, Madhu Limaye & Ors Vs. [1968] INSC3 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 law. Whenever that is not done, the petitioner would be entitled to a writ
of Habeas Corpus directing his release. In the present case, the return did not contain any information as
to when and by whom Madhu Limaye and other arrested persons were informed of the grounds for their
arrest. It had not been contended on behalf of the state that the circumstances were such that the arrested
persons must have known the general nature of the alleged offences for which they had been arrested.
Hence, the Court held that Madhu Limaye and others were entitled to be released on this ground alone.
3
AIR 1969 SC 1014
9
B. Right to be defended by Lawyer
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 allowing 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.
It is one of the fundamental rights enshrined in our Constitution. Article 22 (1) of the
Constitution provides, inter alia, that no person who is arrested shall be denied the right to consult and
to be defended by a legal practitioner of his choice. The right of the accused to have a counsel of his
choice is fundamental and essential to fair trial. The right is recognized because of the obvious fact that
ordinarily an accused person does not have the knowledge of law and the professional skill to defend
him before a court of law wherein the prosecution is conducted by a competent and experienced
prosecutor. This has been eloquently expressed by the Supreme Court of America in Powell v.
Alabama4. The Court observed that The right to be heard would be, in many cases, of little avail if it
did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small
and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted
upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both
the skill and the knowledge adequately to prepare his defence, even though he has a perfect one. He
requires the guiding hand of counsel at every step of the proceeding against him. Without it, though he
be not guilty, he faces the danger of conviction because he does not know how to establish his
innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate,
or those of feeble intellect?
In Huassainara Khatoon (IV) v. Home Secretary, State of Bihar5, the Supreme Court after adverting to
Article 39-A of the Constitution and after approvingly referring to the creative interpretation of Article
4
287 US 45 (1932).
5
1980. 1 SCC 98: 1980 SCC (Cri) 40, 47: 1979 Cri LJ 1045
10
21 of the constitution as propounded in its earlier epoch-making decision in Maneka Gandhi v. Union
of India6, has explicitly observed as follows:
The right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair and just
procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.
This 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 and the State is
under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs
of justice so required, provided of course the accused person does not object to the provision of such
lawyer7. It has been categorically laid down by the Supreme Court that the constitutional right of legal
aid cannot be denied even if the accused failed to apply for it. It is now therefore clear that unless
refused, failure to provide legal aid to an indigent accused would vitiate the trial, entailing setting aside
of conviction and sentence. These questions are now of academic importance only. Because the
Supreme Court has now recognized that every indigent accused person has a fundamental constitutional
right to get free legal services for his defense. The Constitution as well as Section 303 of Code of
Criminal Procedure recognized the right of every arrested person to consult a legal practitioner of his
choice.
Article 22 (1) provides, No person who is arrested shall be detained in custody without being inform,
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. The right begins from the moment of arrest i.e. pre-trial
stage8.
The arrestee could also have consultation with his friends or relatives. The consultation with the lawyer
may be in the presence of police officer but not within his hearing9.
6
1978 1 SCC 248: AIR 1978 SC 597.
7
Supra Note 3
8
AIR 1954 Raj 241.
9
Sundar Singh v. Emperor 32 Cri LJ 339.
11
Relevant case laws
In Janardhan Reddy v. State of Hyderabad10 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 counter-affidavit
filed by Mr. Hanumantha Naidu, a senior police officer, who investigated the case stated:
Facilities were given to the accused to engage lawyers for their defence. In case in which the accused
had no means to engage pleaders for their defence and applied to the Tribunal for appointment of
pleaders at Government cost, this was done. In some cases, the accused declined to accept the pleaders
appointed by the Tribunal for their defence. Some engaged pleaders of their choice at their cost. Some
accused stated that they did not want any lawyer to defend them.
Judges of the High Court had expressed the view that the contention that the Tribunal did not give the
accused an adequate opportunity to engage lawyers was not well-founded. The Supreme Court observed
in this connection that suggestion of the High Court that the curious attitude adapted by the accused, to
whatever cause it may have been due, to some extent accounts for their not being represented by a
lawyer cannot be ruled out However, the Supreme Court further added that the Special Tribunal should
have taken some positive steps to assign a lawyer to aid the accused in their defence.
Advocate of the petitioners relied on Powell v. Alabama11, in which the Supreme Court of America
observed as:
10
AIR 1951 SC 217
11
Supra Note 2
12
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 criminal proceeding The
provision which was material to the contention raised was S. 271 of the Hyderabad Cr. P.C., which
corresponded to S. 340 Cr. P.C., 1898, which ran as follows: Any person accused of an offence before
a criminal court or against whom proceedings are instituted under this code in any such Court may of
right be defended by a pleader. The Supreme Court observed that this provision must be construed
liberally in favour of the accused and must be read along with the rules made by the High Courts and the
circular orders issued by them enjoining that where in capital cases the accused has no means to defend
himself, a counsel should be provided to defend him. The court laid down following two principles in
this regard.
(1) That it cannot be laid down as a rule of law that in every capital case where the accused is
unrepresented, the trial should be held to be vitiated.
(2) That a court of appeal or revision is not powerless to interfere if it is found that the accused was so
handicapped for want of legal aid that the proceedings against him may be said to amount to negation of
a fair trial By laying down the first principle the Court, in other words, accepted the position that even in
some capital cases the trial would be valid even if the accused is not represented by a lawyer. This is a
literal view of Article 22 (1).
The Court could not show the courage to accept the principle of Powell v. Alabama12. 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.
12
Ibid at.
13
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.
Similarly In the case of Ram Sarup v. Union of India134 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 Court- Martial 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
practicing 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 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 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
13
AIR 1965 SC 247
14
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 negatives any suggestion of a request to the Military Authorities for permission to allow him
representation by a practicing 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. Dani14 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 decision15 which had insisted that if an
accused person asks for lawyer's assistance, at the stage of interrogation; it shall be granted before
commencing or continuing with the questioning. The Court further observed that Article 20 (3) and
Article 22 (1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of
the accused, if there be one, to be present at the time he is examined. Over-reaching Article 20(3)
and Section 161(2) Cr. P.C. will be obviated by this requirement. A rule is not laid down that the
Police must secure the services of a lawyer. That will lead to police station lawyer system, an
abuse which breeds other vices. But if an accused person expresses the wish to have his lawyer
14
AIR 1978 SC 1025
15
(1966) 384 U.S. 436
15
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 intimidator 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.
16
C. Right to be produced before magistrate
As per Article 22 (2) of the Constitution provides that an arrested person must be taken to the Magistrate
within 24 hours of arrest Similar provision has been incorporated under Section 56 of Criminal
Procedure Code. A police officer making an arrest without warrant shall, without unnecessary delay and
subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate
having jurisdiction in the case, or before the officer in charge of a police station.
Relevant case laws
In Swami Hariharanand Saraswati & Ors. V. The Jailor I/C Dist. Jail16, case The court been held that
the arrested person will be entitled to be released, If twenty four hours passed and the person arrested
has not been produced before Magistrate. The magistrate before whom the arrested person is presented
is required to apply his judicial mind to determine be whether the arrest is regular and in accordance
with law.
D. Arrested person no detention beyond 24 hours except by order of the magistrate

Article 22(2) of the Constitution provides: 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. The
right to be brought before a Magistrate within a period of not more than 24 hours of arrest has been
created with aims:
(i) To prevent arrest and detention for the purpose of extracting confessions, or as a means of compelling
people to give information;
(ii) To prevent police stations being used as though they were prisons a purpose for which they are
unsuitable.
16
1954 CriLJ 1317
17
(iii) To afford an early recourse to a judicial officer independent of the police on all questions of bail or
discharge. If a police officer fails to produce an arrested person before a magistrate Within 24 hours of
the arrest, he shall be held guilty of wrongful detention
Relevant case laws

In Stae of Panjab V Ajab Khan17 the Supreme Court held valid the abduction person (Recovery and
restoration Act, 1949 under which an abducted person could be arrested and delivered to the officer in-
charge of the nearest camp. The arrest of an abducted person index the act was held not to constitute
arrest and detention because the person was not accused of any offence of a criminal or quasi-criminal
nature. Likewise, the removal of a minor girl from a brothel under the Bengal suppression of immoral
traffic Act, 1923 was held not to constitute arrest and detention Article 2218 the reason of a court is
informed of the grounds of his arrest.
Similarly in C.B.I. v. Anupam J. Kilkarni19 the Supreme Court has laid down detailed guidelines
governing arrest of an accused when investigation cannot be completed within 24 hours. The courts have
held that when a person is arrested under section 57 of Cr.P.C. He should be produced before the nearest
magistrate within 24 hours. The Judicial magistrate can authorized the detention of the accused in such
custody, i.e.. Either 15 days in the whole after the expiry of the period of 15 days the further remand can
only be in judicial custody. There cannot be any detention in the police custody after the expiry of first 4
days. If the investigation is not completed within the 90 days or 60 then then accused has to be released
on bail as provided under section 167 of the Cr.P.C20.
The period of 90 days or 60 days has to be computed from the date of detention as per the orders of the
magistrate and not from the date or arrest by the police
Thus, after the expiry of the first 15 days it should be only under judicial custody
This is a welcome ruling of the Supreme Court. This would save money under-trial prisoners from
police atrocities as they cannot be kept for undue long period in police lock-up and would help in speedy
investigation of crimes
17
AIR 1953 SC 10
18
Raj Bahadur singh v legal Rememberance, AIR 1955 SC 522
19
(1992) 3 SCC 141
20
The Criminal Procedure Code 1973,
18
Exception
Clause (3) of Article 22 provides two Exceptions to rule contained clause (1) and (2). It says that the
right given to arrested person under clause (1) and (2) are not available to following persons:
1. An enemy alien
2. A person arrested and detained under preventive detention law.
3. An enemy alien may, however seek the protection under clauses (4) and (5) of article. If the
arrested under a law of preventive detention, but subject to the law passed by the parliament
Right to speedy trial

Justice delayed is justice denied. This is all the more true in a criminal trial where the accused is not
released on bail during the pendency of the trial and trial is inordinately delayed. However, the code
does not in so many words confer any such right on the accused to have his case decided expeditiously.
In Hussainara Khatoon (IV) V. State of Bihar21, the Supreme Court considered the problem in all its
seriousness and declared that speedy trial is an essential ingredient of reasonable, fair and just
procedure guaranteed by Article 21 and that it is the constitutional obligation of the state of devise such
a procedure as would ensure speedy trial to accused. The State cannot avoid its constitutional obligation
to provide speedy trial to the accused by pleading financial or administrative inability. The State is under
a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done
by the State. It is also the constitutional obligation of this court, as the guardians of the fundamental
rights of the people, as a sentinel on the qui vie, to enforce the fundamental right of the accused to
speedy trial by issuing necessary directions to the State.22The spirits underlying these observations have
been consistently rekindled by the Supreme Court in several cases23.This has again been expressed in
Raj Deo Sharma v. State of Bihar24 wherein the court ordered to close the prosecution cases, if the trial
had been delayed beyond a certain period in specified cases involving serious offences.
The right to speedy trial came to receive examination in the Supreme Court in Motilal Saraf v. State of
J&K25. Dismissing a fresh complaint made after 26 years of an earlier complaint the Supreme Court
21
AIR 1995 SC 366
22
Madheshwardhari Singh v. State of Bihar, 1986 Cri LJ 1771 (Pat)
23
A.R. Antulay v. R.S Nayak, (1992) 1 SCC 225: 1992 SCC (Cri) 93.
24
1998 SCC(Cri) 1692
25
(2007) 1 SCC (Cri) 180
19
explained the meaning and relevance of speedy trial right thus: The concept of speedy trial is read into
Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under
our Constitution. The right to speedy trial begins with actual restraint imposed by arrest and consequent
incarceration, and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and
revision so that any possible prejudice that may result from impressible and avoidable delay from the
time of the commission of the offence will if consummates into a finality, can be averted.
Right to Fair Trial

The fair trial is the foremost requirement of criminal proceedings and it is utmost right of an accused. In
the recent case titled as Dr. Rajesh Talwar and another v. C.B.I, and another26 the Supreme Court
observed that Article 12 of the universal declaration of Human Rights provides for the right to a fair trial
what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of Criminal
jurisprudence and, in a way, an important facet of democratic polity and is governed by rule of law.
Denial of fair trial is crucifixion of human right.
Denial of fair trial is as much injustice to the accused as is to the victim and the society. It necessarily
requires a fair trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since
the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial
should be a search for truth and not about over technicalities and must be conducted under such rules as
will protect the innocent and punish the guilty. Justice should not only be done but should be seen to
have been done. Therefore, free and fair trial is a sine quo none of Article 21 of the Constitution. Right
to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance
in a fair trial could be Violative of Article 14 of Constitution, in so many judgments the Supreme Court
has expressed the importance of fair trial to accused27.
26
2013 (4) R.C.R.(Criminal) 687
27
Natasha Singh v. C.B.I., 2013 (3) R.C.R.(Criminal) 368
20
Conclusion
Preventive Detention is the most contentious part of the scheme fundamental rights in the Indian
constitutions. The Article 22 (3) of the Indian constitution provides that, if a person is arrested or
detained under a law providing for preventive detention, then the protection against arrest and detention
under Article 22 (1) and 22 (2) shall not be available.
Preventive detention should be carefully distinguished from punitive detention. Punitive detention is
punishment for illegal acts done. Preventive detention on the other hand is action taken beforehand
to prevent possible commitment of crime. Preventive detention thus is action taken on grounds of
suspicion that some wrong actions may be done by the person concerned.
Preventive detention can however be made only on four grounds.
The grounds for Preventive detention are
1. security of state,
2. maintenance of public order,
3. maintenance of supplies and essential services and defence,
4. Foreign affairs or security of India.
A person may be detained without trial only on any or some of the above grounds. A detainee under
preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21.
To prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.
Firstly, a person may be taken to preventive custody only for 3 months at the first instance. If the period
of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of
persons with qualifications for appointment as judges of High Courts. It is implicit, that the period of
detention may be extended beyond 3 months, only on approval by the Advisory Board.
Secondly, the detainee is entitled to know the grounds of his detention. The state however may refuse to
divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power
conferred on the state leaves scope for arbitrary action on the part of the authorities.
Thirdly, the detaining authorities must give the detainee earliest opportunities for making representation
against the detention. These safeguards are designed to minimize the misuse of preventive detention. It
is because of these safeguards that preventive detention, basically a denial of liberty, finds a place on the
chapter on fundamental rights. These safeguards are not available to enemy aliens.
21
Bibliography
Legislation
The Constitution of India, 1950
The Criminal Procedure Code, 1973
Books
Basu durga das: Commentary on the constitution of India.
M: Jain M.P.: Indian Constitutional law [vol. II]
Mhajan V.D.: The Constitution of India
Pandy J.N.Constitutional law of India.
Ramchandran V.G.: Fundamental Rights and Constitutional Remedies.
Cases
C.B.I. v. Anupam J. Kilkarni (1992) 3 SCC 141
Dr. Rajesh Talwar and another v. C.B.I, and another2013 (4) R.C.R.(Criminal) 687
Huassainara Khatoon (IV) v. Home Secretary, State of Bihar 1980. 1 SCC 98: 1980 SCC (Cri)
40, 47: 1979 Cri LJ 1045
Janardhan Reddy v. State of Hyderabad AIR 1951 SC 217
Joginder Kumar v. State of U.P (1994) 4 SCC 260
Madhu Limaye & Ors Vs. [1968] INSC AIR 1969 SC 1014
Maneka Gandhi v. Union of India1 1978 1 SCC 248: AIR 1978 SC 597.
Miranda (1966) 384 U.S. 436
Motilal Saraf v. State of J&K (2007) 1 SCC (Cri) 180
Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025
Natasha Singh v. C.B.I., 2013 (3) R.C.R.(Criminal) 368
Powell v. Alabama 287 US 45 (1932).
Raj Deo Sharma v. State of Bihar1998 SCC(Cri) 1692
Ram Sarup v. Union of India AIR 1965 SC 247
Stae of Panjab V Ajab KhanAIR 1953 SC 10
Sundar Singh v. Emperor 32 Cri LJ 339.
22

Article 22

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Article 22

Caricato da

Copyright:

Formati disponibili

Damodaram Sanjivayya National Law

Article 22 Protection against arrest and detention in certain cases

Mr. A. Nageswara Rao

Aqib Khan 2015013

ways to depict clear picture of given project topic.

ARTICLE 22 PROTECTIONS AGAINST ARREST AND DETENTION IN CERTAIN CASES

a. Right to be informed the grounds of arrest

f. Right to Fair Trial

Article 221 Protection against arrest and detention in certain cases

(3) Nothing in clauses (1) and (2) shall apply

(7) Parliament may by law prescribe

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

the authority of the Magistrate.

A. Right to be informed the grounds of arrest

Relevant Case law

Relevant case laws

D. Arrested person no detention beyond 24 hours except by order of the magistrate

Relevant case laws

Right to speedy trial

Right to Fair Trial

Potrebbero piacerti anche