Protections Available to a Person Against Arrest Under the Indian Constitution – Explained!

(1) and (2) of Article 22 ensure four safeguards for a person who is arrested, such as:

(i) No such person is to be detained in custody without being informed, as may be, of the grounds of his arrest,

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(ii) He shall not be denied the right to consult, and to be defended by a legal practitioner of his choice, Article 22 (1),

(iii) A person arrested and detained In custody is to be produced before the nearest magistrate within a period of 24 hours of his arrest excluding the time necessary for the journey from the place of arrest to the magistrate’s court, and

(iv) No such person is to be detained in custody beyond this period without the authority of the magistrate, Article 22 (2).

Regarding safeguard (i):

The words “as soon as” are important for they mean without unnecessary delay. If the ground of arrest is conveyed with delay, it must be justified by reasonable circumstances. In State of M.P. vs. Shobhram, AIR 1966 S.C. 1910, the Supreme Court has held that if the ground of arrest is delayed, it must be justified by reasonable circumstances. The right of being informed if the grounds of arrest are not dispensed with by offering to make bail to an arrested person.

Regarding safeguard (ii):

It postulates that there is an accusation against the person arrested against which he should be able to defend himself by engaging a legal practitioner of his choice. In Hansraj vs. State, AIR 1956 All. 641. The accused being licensed porters offered satyagrah at a railway station.

They were arrested on 29.3.55 under Sections 120 and 121 of the Railway Act and were tried and convicted on 31.3.55. No information was given to them about the date of trial, nor was told that under Article 22, they had right to consult a legal practitioner and to be defended by him. It was held that Article 22 (1) was violated and the trial was vitiated.

Regarding safeguard (iii):

It may be mentioned that it requires an arrested person to be produced before the magistrate within 24 hours of his arrest. 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.

It affords a possibility for immediate release in case the arrest is not justified. It can be extended beyond 24 hours only under judicial custody. It affords a possibility, if not an opportunity, for immediate release in the case the arrest is not justified.

Regarding safeguard (iv):

It means that if there is necessity of detention beyond 24 hours, it is possible only under judicial custody. Article 22 is designed to give protection against the act of the Executive or order of non-judicial authorities and applies to a person who has been accused of a crime or offence of criminal or quasi-judicial nature or same act prejudicial to the State or public interest.

In State of Punjab v. Ajaib Singh, AIR 1953 S.C. 10, the Supreme Court has held the Abducted Person (Recovery and Restoration) Act, 1949, valid as an abducted person could be arrested and delivered to the officer-in-charge of the nearest camp.

The arrest of an abducted person under the Act was held not to constitute “arrest and detention” because the person was not accused of an offence of a criminal or quasi-criminal nature.

Exceptions to clause (iii) of Article 22 provides two exceptions to the rule contained in clauses (1) and (ii) It provides that following persons are not entities for the above rights in case of their detention :

(a) An enemy alien;

(b) A person arrested and detained under a preventive detention law.

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