Table of Contents INTRODUCTION:................................................................................................................2 SCHEME OF RESEARCH:................................................................................ RESEARCH:.................................................................................................. .................. 2 OBJECTIVE..........................................................................................................................3 HYPOTHESIS........................................................................................................................3 LIMITA LIMITATION:............................................................................ TION:........................................................................................................................ ............................................ 3 REVIEW OF LITERATURE:..............................................................................................3 RESEARCH METHODOLOGY:......................................................................................... METHODOLOGY:......................................................................................... 3 CHAPTER - I.........................................................................................................................4 RIGHT UNDER INDIAN CONSTITUTION:.......................................... CONSTITUTION:.................................................................... ............................ 4 CHAPTER - II........................................................................................................................5 RIGHT TO BE INFORMED OF THE GROUNDS GROUNDS OF ARREST ARREST :................................. :........................ ...........5 ..5 CHAPTER - III......................................................................................................................7 RIGHT TO TO CONSULT CONSULT AND TO TO BE DEFENDED BY LEGAL PRACTITIONER PRACTITIONER :. . . . .7 CHAPTER - IV....................................................................................................................! RIGHT TO BE PROVIDED WITH A LAWYER BY THE STATE.................................! CHAPTER - V......................................................................................................................24 RIGHT TO BE PRODUCED PRODUCED BEFORE A MAGISTRATE MAGISTRATE :............................................ 24 CONCLUSION.....................................................................................................................33 BIBLIOGRAPHY................................................................................................................34
1
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 hich are found in the Indian !onstitution. 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 poers by the government. "n accused has certain rights during the course of any investigation# en$uiry or trial of an offence ith hich he is charged and he should be protected against arbitrary or illegal arrest. %olice have a ide poers conferred on them to arrest any person under !ognizable offence ithout going to magistrate, so !ourt should be vigilant to see that theses poers are not abused for lightly used for personal benefits. &o arrest can be made on mere mere suspic suspicion ion or inform informati ation. on. 'ven privat privatee person person cannot cannot follo follo and arrest arrest a person person on the statement of another person, hoever impeachable it is. Though the police has been given various poers for facilitating the making of arrests, the poers are sub(ect 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 e)tent, as the recognition of the rights of the arrested person. There are, hoever, some other provisions hich have rather more e)pressly and directly created important rights in favour of the arrested person.
SCHEME OF RESEARCH:
This article is divided into * chapters dealing ith the rights of arrested person in india, various provisions under indian constitution and criminal procedure code, supreme court+s decisions on protection of rights Role of udiciary, various problems suffered by the prisoners, solutions for the problems and suggestions.
OBJECTIVE
The main ob(ect of this research pro(ect is to understand the role of prisons in the light of human rights of prisoners. HYPOTHESIS
The prisoners are sub(ect to serious human rights violations. LIMITATION:
This research paper is done relying mostly on articles and essays published by authors online and fe on books ritten 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 ith 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 e)isting literature on this research ork mainly revolves around the published orks of foreign as ell as Indian authors pertaining to the sub(ect matter, ell decided cases cited in Indian (ournals and cases cited from other countries, and the articles published in the ebsites. RESEARCH METHODOLOGY:
The research methodology adopted for the purpose of this pro(ect is the doctrinal method of research. The various library and Internet facilities available for /a have been utilized for this purpose. 0ost of the information is, hoever, hoever, from the Internet.
CHAPTER - I RIGHT UNDER INDIAN CONSTITUTION: CONSTITUTION:
irst to clauses of "rticle 22 read as follos3
ARTICLE 2: %rotection against arrest and detention in certain cases 1 &o person ho is arrested shall be detained in custody ithout being informed, as soon as may be, of the grounds for such
nor shall he be denied the right to consult, and to be defended
arrest
by, a legal practitioner of his choice. 2 'very 'very person person ho ho is arreste arrested d and detained detained in custody custody shall shall be produced produced before before the nearest nearest magistrate ithin a period of tenty-four hours of such arrest e)cluding the time necessary for the (ourney from the place of arrest to the court of the magistrate and no such person person shall be detained in custody beyond beyond the said period ithout the authority authority of a magistrate. "rticle 22 1 and 2 confers four folloing fundamental rights upon a person ho has been arrested3 i
Right to be informed, informed, as soon as may be, of the grounds grounds for such arrest. ii Right
to
consult and to be defended by a legal practitioner of his choice. iii
Right Right to be produ produced ced befo before re the the nearest nearest magistr magistrate ate ith ithin in tent tenty-f y-four our hour hourss of his his arrest arrest e)cl e)cludi uding ng the time necessary for the (ourney from the place of arrest to the !ourt of 0agistrate.
iv iv
Righ Rightt not to be detain detained ed in custo custody dy bey beyond ond the perio period d of tenty tentyfo four ur hour hourss ithou ithoutt the autho authorit rity y of the 0agistrate.
CHAPTER - II RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST :
The ob(ect 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 ill be in a position to make an application to the appropriate a ppropriate court for bail or move the 4igh !ourt for a rit of habeas corpus. corpus . urther, the information ill enable the arrested person to prepare his defence in time for purposes of his trial. or these reasons, it has been provided in clause 1 of "rticle 22 that the ground for the arrest must be communicated to the person arrested as soon as possible. In re, Madhu Limaye 1 the facts ere3 0adhu /imaye, /imaye, 0ember of the /ok 5abha and several several other persons ere arrested. 0adhu /imaye addressed a petition in the form of a letter to the 5upreme !ourt under "rticle 62 mentioning that he along ith his companions had been arrested but had not been communicated the reasons or the grounds for arrest. It as stated that the arrested arres ted persons had been merely told that the arrest had been made 7under sections hich are bailable8. In the return filed by the 5tate this assertion had neither been controverted nor had anything been stated ith reference to it. One of the contentions raised by 0adhu /imaye as that there as a violation of the mandatory provisions of "rticle 22 1 of the !onstitution. The 5upreme !ourt observed that "rticle 22 1 embodies a rule hich has alays been regarded as vital and fundamental for safeguarding personal liberty in all legal systems here the Rule of /a prevails. or e)ample, the 9th "mendment to the !onstitution of the :nited 5tates of "merica contains similar provisions and so does "rticle ;;;I< of the apanese !onstitution of 1=*9. In 'ngland, henever an arrest is made ithout a arrant, the arrested person has a right to be informed not only that he is being arrested arrested but also of the reasons or grounds for the arrest. The court further observed that the to re$uirements of !lause 1 of "rticle 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 authority and, also to kno e)actly hat the accusation accusation against him is so that he can e)ercise the second right, namely of consulting a legal practitioner of his choice and to be defended by him. Those ho feel called upon to deprive other persons of liberty in the discharge of hat they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of 1 ".I.R. 1=9= 5.!. 1>1*.
la. ?henever that is not done, the petitioner ould be entitled to a rit of Habeas Corpus directing Corpus directing his release. In the present present case, the return did not contain contain any information information as to hen and by hom 0adhu /imaye and other arrested persons ere informed of the grounds for their arrest. It had not been contended on behalf of the state that the circumstances ere such that the arrested persons must have knon the general nature of the alleged offences for hich they had been arrested. 4ence, the !ourt held that 0adhu /imaye and others ere entitled to be released on this ground alone.
CHAPTER - III RIGHT TO CONSULT AND TO BE DEFENDED BY LEGAL PRACTITIONER :
In "rticle 22 1 the opportunity for securing services of layer is alone guaranteed. The "rticle does not re$uire the state to e)tend legal aid as such but only re$uires to allo all reasonable facilities to engage a layer 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 Janardha In Janardhan n Reddy v. State of Hyderabad 2 one of the main points urged on behalf of the petitioners as that in criminal cases &os. 1@ A 1B of 1=*=, there as no fair trial, in as much as the persons accused in those cases ere not afforded any opportunity to instruct counsel and they had remained undefended throughout the trial. 5o it as contended that the hole trial in these cases as bad, because the accused ere denied the right of being defended by a pleader. ourth para of the affidavit filed on behalf of the petitioners read as follos3 The !ourt never offered to facilitate my communication ith my relations and friends or to ad(ourn the case or to appoint counsel at state e)pense for my defence. In fact they said they ould not ad(ourn the case under any circumstances. Ceing ignorant, I did not kno that I had any right to ask for any of these things. "s to the circumstances under hich the accused ere not represented by a layer a counteraffidavit filed by 0r. 4anumantha &aidu, a senior police officer, ho investigated the case stated 3 acili acilities ties ere given given to the accused accused to engage engage layers layers for their defenc defence. e. In case in hich hich the accus accused ed had had no mean meanss to enga engage ge plea pleade ders rs for for thei theirr defe defenc ncee and and appli applied ed to the the Tribu ribuna nall for for appointmen appointmentt of pleaders pleaders at Dovernment Dovernment cost, this as done. In some cases, the accused declined to accept the pleaders appointed by the Tribunal for their defence. 5ome engaged pleaders of their choice at their cost. 5ome accused stated that they did not ant any layer to defend them. udges of the 4igh !ourt had e)pressed the vie that the contention that the Tribunal did not give the accused an ade$uate opportunity to engage layers as not ell-founded. The 5upreme !ourt observed in this connection that suggestion of the 4igh !ourt that the curious attitude adopted by the accused, to hatever cause it may have been due, to some e)tent accounts for their not being represented by a layer cannot be ruled out. 4oever, the 5upreme !ourt further added that the
2 ".I.R. 1=E1 5.!. 21@.
5pecial Tribunal should have taken some positive steps to assign a layer to aid the accused in their defence. "dvocate of the petitioners relied on o!e"" on o!e"" v. #"abama$, in hich the 5upreme !ourt of "merica observed as 3 In a capital case here the defendant is unable to employ counsel and is incapable of ade$uately making his on defence because of ignorance, feeblemindedness, illiteracy or the like, it is the duty of the !ourt hether hether re$uested or not, to assign a counsel for him as a necessary re$uisite of due process of la. The The 5uprem 5upremee !ourt !ourt hile hile observ observing ing that that the assignm assignment ent of a counsel counsel in the circum circumstan stances ces mentioned in the passage as highly desirable, held that the (udgement cannot rest holly on "merican precedents, hich are based on the doctrine of due process of la, hich is peculiar to the "merican !onstitution and also on certain specific provisions bearing on the right of representation in a criminal proceeding. The provision hich as material to the contention raised as 5. 2@1 of the 4yderabad !r. %.!., hich corresponded to 5. 6*> !r. %.!., 1B=B, hich ran as follos 3 7"ny person accused of an offence before a criminal court or against hom proceedings are instituted under this code in any such !ourt may of right be defended by a pleader.8 The 5upreme !ourt observed that this provision must be construed liberally in favour of the accused and must be read along ith the rules made by the 4igh !ourts and the circular orders issued by them en(oining that here in capital cases the accused has no means to defend himself, a counsel should be provided to defend him. The court laid don folloing to principles in this regard. 1 1
That That it cann cannot ot be laid laid don don as a rule rule of la la that that in ever every y capi capita tall case case her heree the the
accused is unrepresented, the trial should be held to be vitiated. 2 2
That That a cour courtt of appe appeal al or rev revisi ision on is is not not poer poerle less ss to int inter erfer feree if it is is found found tha thatt the the
accused as so handicapped for ant of legal aid that the proceedings against him may be said to amount to negation of a fair trial. Cy laying don the first principle the !ourt, in other ords, accepted the position that even in some capital cases the trial ould be valid even if the accused is not represented by a layer. This is a literal vie of "rticle 22 1. The !ourt could not sho the courage to accept the principle of
6 2B@ :.5. *E.
o!e"" v. #"abama. 4oever, #"abama. 4oever, by laying don second principle, the 5upreme !ourt at least soed a seed for further development of la in this regard in future. "nother important provision in this connection is 5. 6>6 earlier 5. 6*> of !riminal %rocedure !ode, 1=@6. That 5ection is in these terms 3 76>6 76>6.. "ny perso person n accus accused ed of an offe offenc ncee befo before re a !rim !rimin inal al !our !ourt, t, or agai agains nstt hom hom proceedings are instituted under this code, may of right be defended by a pleader of his choice8. Cefore the !onstitution come into force, this as probably the only provision from hich the right of the accused to have consultation beteen him and his legal advisers appears to have been derived and sustained. In Ram Sarup v. %nion of India & the facts ere 3 Ram 5arup, petitioner as a sepoy and sub(ect to the "rmy "ct. "ct. 4e shot dead to sepoys. 4e as charged on three counts under 5. 9= of the "rmy "ct read ith 5. 6>2 of I.%.!. I.%.!. and as tried by b y the Deneral !ourt-0artial. 4e as found guilty of the three charges and sentenced to death. One of the contentions raised by the petitioner as that he as not alloed to be defended defended at the Deneral !ourt0artial !ourt0artial by a legal practitioner practitioner of his choice and therefore, there had been a violation of the provisions of "rticle 22 1 of the !onstitution. %etitioner alleged that he had e)pressed his desire, on many occasions, for permission to engage a practising civil layer la yer to represent him at the trial but the authorities turned don those re$uests and told him that it as not permissible under the 0ilitary rules to allo the services of a civilian layer and that he ould have to defend his case ith the counsel he ould be provided by the 0ilitary "uthorities. "uthorities. In reply it as stated that this allegation allegation about the petitionerFs petitionerFs re$uests and their being turned don as not correct, that it as not made in the petition but as made in the reply after the 5tate had filed its counter affidavits in hich it as stated that no such re$uest for his representation by a legal practitioner had been made and that there had been no denial of his fundamental rights. The 5upreme !ourt as of the opinion that the petitioner made no re$uest for his being represented at the !ourt-0artial by a counsel of his choice, that conse$uently no such re$uest as refused and that he cannot be said to have been denied his fundamental right of being defended by counsel of his choice. choice. The !ourt !ourt pointed out out that the petitioner petitioner did not state in his petition petition that he had made made a re$uest for his being represented by a counsel of his choice. 4e had simply stated that certain of his relatives ho sought intervie ith him subse$uent to his arrest ere refused permission to see him and that this procedure hich resulted in denial of opportunity to him to defend himself properly by
* ".I.R. 1=9E 5.!. 2*@.
engaging a competent civilian layer through the resources and help of his relatives had infringed his fundamental right under "rticle 22 of the !onstitution. If the petitioner had made any e)press re$uest for being defended by a counsel of his choice, he should have stated so straightforardly in his petition. petition. 4is involved involved language language could only mean that he could not contact his relations for their arranging a civilian layer for his defence. This negatived any suggestion of a re$uest to the 0ilitary "uthorities for permission to allo him representation by a practising layer and its refusal. The !ourt held on the facts that there had been no violation of the fundamental right of the petitioner to be defended by a counsel of his choice conferred under "rticle 22 1 of the !onstitution. !onstitution. In this case too, the !ourt took a technical vie of the matter by observing that the petitioner did not state in his petition that he had made a re$uest re$uest for his being represented represented by a counsel counsel of his choice. The !ourt as not much impressed by the statement of the petitioner, that he could not contact his relations for their arranging a civilian layer for his defence. "fter all a person ho is arrested and confined has to take the help of somebody else like relatives to make provision for engaging a layer. Cut the !ourt as inclined to take hyper-technical approach to hold that "rticle 221 is not violated. In 'andini Satpathy v. .L. .L. (ani ) the 5upreme !ourt observed that "rticle 22 1 directs that the right to consult an advocate of his choice shall not be denied to any person ho is arrested. This does not mean that persons ho are not under arrest or custody can be denied that right. The spirit and sense of "rticle 22 1 is that it is fundamental to the rule of la that the services of a layer shall be available for consultation to any accused person under circumstances of near-custodial interrogation. 0oreover, 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. /ayerFs presence is a constitutional claim in some circumstances in our country also, and in the conte)t of "rticle 2>6 is an assurance of aareness and observance observance of the right to silence. The !ourt referred referred to Miranda decision Miranda decision9 hich had insisted that if an accused person asks for layerFs assistance, at the stage of interrogation, it shall be granted before commencing or continuing ith the $uestioning. The !ourt further observed that "rticle 2> 6 and "rticle 22 1 may, in a ay, be be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is e)amined. Overreaching "rticle 2>6 and 5ection 1912 !r. %.!. ill be obviated by this re$uirement. " rule is not
E ".I.R. 1=@B 5.!. 1>2E.
9 1=99 6B* :.5. *69.
laid don that the %olice must secure the services of a layer. That ill lead to Gpolice station layer system, system, an abuse hich hich breeds other other vices. Cut if an accused accused person e)presses e)presses the ish ish to ‟
have his layer by his side hen his e)amination goes on, this facility shall not be denied, ithout being e)posed to the serious reproof that involuntary self-incrimination secured in secrecy and by coercing the ill, as the pro(ect. &ot that a layerFs presence is a panacea for all problems of involuntary self-crimination, for he cannot supply ansers or hisper hints or otherise interfere ith the course of $uestioning e)cept to intercept here intimidatory tactics are tried, caution his client here incrimination is attempted and insist on $uestions and ansers being noted here ob(ections are not otherise fully appreciated. 4e cannot harangue the police but may help his client and complain on his behalf, although his very presence ill ordinarily remove the implicit menace of a police station. The !ourt observed that presence of a layer is asking for the moon in many cases until a public defender system becomes ubi$uitous. The police need not ait more than for a reasonable hile for an advocateFs arrival. 'andini Satpathy*s Case makes makes a clear clear departu departure re from from the literal literal interp interpreta retatio tion n stance stance of the 5upreme !ourt in earlier cases. The case added an additional fortification to the right to counsel. The 5upreme !ourt ent a step forard in holding that "rticle 221 does not mean that persons ho are not strictly under arrest or custody can be denied the right to counsel. The !ourt enlarged this right to include include right to counsel to any accused person under circumstances circumstances of near+custodia" interroation. interroation. 4oe 4oeve verr, the the !our !ourtt took took the the help help of "rti "rticl clee 2> 6 6 and and Miranda decisio decision n for this liberal liberal interpretation. In In Joinder -umar v. State of %. . the 5upreme !ourt held that right of arrested person upon re$uest, to have some one informed about his arrest and right to consult privately ith layers are inherent in "rticles 21 and 22 of the !onstitution. The 5upreme !ourt observed that no arrest can be made because because it is laful for the %olice %olice officer to do so. The e)istence e)istence of the poer to arrest is one thing. The (ustification for the e)ercise of it is $uite another. The %olice Officer must be able to (ustify the arrest apart from his poer to do so. "rrest and detention in police police lock-up of a person can cause incalculable incalculable harm to the reputation reputation and self-esteem self-esteem of a person. &o arrest should should be made by %oli %olice ce Offi Officer cer ith ithou outt a reaso reasona nabl blee satis satisfac facti tion on reach reached ed after after some some inve investi stiga gati tion on as to the the genuineness and bona fides of fides of a complaint and a reasonable belief both as to the personFs complicity and even so as to the need to effect arrest. The 5upreme !ourt issued the folloing re$uirements 3
@ ".I.R. 1==* 5.!. 16*=.
1 "n arrested person being being held in custody is entitled, if he so re$uests, re$uests, to have one friend, relative or other person ho is knon to him or likely to take an interest in his elfare told as far as practicable that he has been arrested and here is being detained. 2 The %olice %olice Officer shall inform inform the arrested person hen hen he is brought to the police station station of this right. 6 "n entry shall be re$uired to be made in the Hiary as to ho as informed of the arrest. These protections from poer must be held to f"o! from #rtic"es 21 and 22 /10 and /10 and enforced strictly. The above re$uirements re$uirements shall be folloed folloed in all cases of arrest till legal provisions provisions are made in this behalf. 5ection E9 1 of the %olice and !riminal 'vidence "ct, 1=B* in 'ngland provides 3 ?here a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so re$uests, to have one friend or relative relative or other person ho is knon knon to him or ho is likely to take an interest interest in his elfare told, as soon as practicable e)cept . . ?e find a shift shift in (udicia (udiciall concern concern in Joinder -umar*s Case for Case for ensuring constitutional right to arrested person. " ne angle of approach as adopted to the interpretation of "rticle 221 but ith the help of "rticle 21. The 5upreme !ourt recognised three incidental rights of arr ested person in this regard i.e. i i.e. i The right to have some one i.e. his i.e. his relative or friend informed about about his arrest# ii The right to consult private"y consult private"y ith ith layer# iii The right to no! from no! from the police officer about this right. The 5upreme !ourt imposed corresponding duties on the police officers. !ustodial death is perhaps one of the orst crimes in a civilised society governed by the Rules of /a. The rights inherent in "rticle 21 and 22 1 of the !onstitution re$uire to be (ealously and scrupulously protected. "ny form of torture or cruel, inhuman or degrading treatment ould fall ithin ithin the inhibi inhibitio tion n of "rtic "rticle le 21 of the !onstit !onstitutio ution, n, hethe hetherr it occurs occurs during during invest investigat igation ion,, interrogation or otherise. The precious right guaranteed by "rticle 21 of the !onstitution cannot be denied to convicts, under-trials, detenus and other prisoners in custody, e)cept according to procedure established by la by placing such reasonable restrictions
as are permitted permitted by la. la. Therefor Therefore, e, the 5upreme 5upreme !ourt !ourt issued issued in (.-.asu v. State of 3. 3.. . 4 the folloing re$uirements to be folloed 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 handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags ith their designations. The particulars of all such police personnel ho handle interrogation of the arrestee must be recorded in a register. 2 That the police police officer carrying carrying out the arrest of the arrestee shall shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one itness, ho may be either a member of the family of the arrestee or a respectable person person of the locality from from here the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 6 " person person ho has been been arreste arrested d or detained detained and is being being held in custod custody y in a police police station station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person knon to him or having interest in his elfare being informed, as soon as practicable, that he has been arrested ar rested and is being detained at the particular parti cular place, unless the attesting itness of the memo of arrest is himself such a friend or a relative of the arrestee. * The time, place of arrest and venue venue of custody of an arrestee must be notified by the police here the ne)t friend or relative of the arrestee lives outside the district or ton through the /egal "id Organisation in the Histrict and the police station of the area concerned telegraphically ithin a period of B to 12 hours after the arrest. E The The person person arrested arrested must be made made aare aare of this this right right to have have someon someonee inform informed ed of his arrest arrest or detention as soon as he is put under arrest or is detained. 9 "n entry must be made in the diary at the place of detention detention regarding regarding the arrest of the person hich shall also disclose the name of the ne)t friend of the person ho has been informed of the arrest and the names and particulars of the police officials in hose custody the arrestee is. @ The arrestee should, should, here here he so re$uests, be also e)amined e)amined at the time of his arrest and ma(or and minor in(uries, if any, present on hisher body, must be recorded at that time. The 7Inspection 0emo8 must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
B ".I.R. 1==@ 5.!. 91>.
B The arrestee should should be sub(ected sub(ected to medical e)amination e)amination by a trained doctor every *B hours during his detention in custody, by a doctor in the panel of approved doctors appointed by Hirector, 4ealth 5ervices of the concerned 5tate or :nion Territory. Hirector, 4ealth 5ervices should prepare such a panel for all Tehsils Tehsils and Histricts as ell. = !opies of all the documents including the memo of arrest, referred to above, should be be sent to i""a5a 0agistrate for his record. 1> 1>
The The arre arreste steee may may be be perm permitt itted ed to meet meet his his lay layer er dur durin ing g int inter erro roga gati tion on,, thou though gh not not thr throu ough ghou outt
the interrogation. 11 11
" poli police ce cont contro roll room room sho should uld be prov rovided ided at all all Hist Histri rict ctss and and 5tat 5tatee head head$ $uart uarter ers, s, her heree
information regarding the arrest and the place of custody of the arrestee shall be communicated by the Officer causing the arrest, ithin 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. The !ourt emphasized emphasized that failure to comply ith the said re$uirements re$uirements shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of !ourt and the proceedings for contempt of !ourt may be instituted in any 4igh !ourt of the country country,, having territorial territorial (urisdiction (urisdiction over the matter. matter. The re$uirements re$uirements flo from "rticles "rticles 21 and 22 1 of the !onstitution and need to be strictly folloed. The re$uirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the !ourts from time to time in connection ith the safeguarding of the rights and dignity of the arrestee. 5peaking on the right to compensation to arrestee in case of custodial torture, the 5upreme !ourt 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 5tate is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to hich the defence of sovereign sovereign immunity is not available available and the citizen must receive the amount of compensatio compensation n from the 5tate, hich shall have the right to be indemnified by the rong-doer. In the assessment of compen compensati sation, on, the emphas emphasis is has to be on the compensato compensatory ry and not on puniti punitive ve element element.. The The ob(ective is to apply balm to the ounds and not to punish the transgressor or the offender, as aarding aarding appropriate punishment punishment for the offence irrespective irrespective of compensation compensation must be left to the !riminal !ourts in hich the offender is prosecuted# hich the state in la, is duty bound to do. The
aard of compensation in the public la (urisdiction is also ithout pre(udice to any other action like civil suit for damages hich is lafully available to the victim or the heirs of the deceased victim ith respect to the same matter for the tortuous act committed by the functionaries of the state. The $uantum of compensation ill, of course, depend upon the peculiar facts of each case and no strait (acket formula can be evolved in that behalf. The relief to address the rong for the established invasion of the fundamental rights of the citizen under the public la (urisdiction is, thus, in addition to the traditional traditional remedies and not in derogation derogation of them. The amount of compensation compensation as aarded by the !ourt and paid by the 5tate to redress the rong done, may in a given case, be ad(usted against any amount hich may be aarded to the claimant by ay of damages in a civil suit. This as a case of %I/. " letter by the ')ecutive !hairman, /egal "id 5ervices, ?est Cengal addressed to the !hief ustice of India draing his attention to certain nes items published in the nespapers regarding deaths in police lock-ups and custody as treated by the 5upreme !ourt as a rit petition. The 5upreme !ourt observed that ith a vie to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using the third degree methods during interrogation. (.-. asu*s Case not only travels a path of fe steps ahead of Joinder -umar but but also takes a big leap forard. In its an)iety to protect the interests of the arrested person, the !ourt has e)hibited an instan instance ce of (udicia (udiciall over over activism activism rather (udici (udicial al ayard ayardnes ness. s. The The case sounds sounds death-k death-knel nelll to 0ontes$uieuFs theory of separation of poers amongst three organs of the 5tate. The 5upreme !ourt arrogated to itself the !onstituent or at least legislative poer in laying don eleven re$uirements in this connection. It is submitted that it is a case of out-right (udicial legislation. 5hoing concern for the plight of the arrested person is one thing and e)ceeding oneFs (urisdiction and encroaching on the field of another organ is another thing. The 5upreme !ourt hile interpreting a provision of the !onstitution may fill in the interstices but the zeal to artificially create such interstices and then fill it should be deprecated. The (udicial pendulum sung to the other e)treme in this case. The (udiciary needs no self-discipline. self-discipline. This (udicial hegemony needs to be checked. "s the other to organs of the state cannot cannot control control or check this (udicial encroachment, encroachment, hat is re$uired re$uired is doctrine doctrine of (udicial (udicial selfrestraint should be folloed. The (udiciary should restrain from trespassing in the field of another organ organ under under the guise of interpretation interpretation of the !onstitution !onstitution or doing complete complete (ustice. (ustice. Though Though these eleven re$uirements comprise human rights (urisprudence and it ould be in the fitness of the things,
if these ere la, these seeping eleven re$uirements laid don by the 5upreme !ourt, it is submitted, cannot have the status of la as its source is not legislature but (udiciary. It may be noted that these re$uirements ere held to flo f lo from "rticle 21 and 22 1 (ointly. (ointl y. CHAPTER - IV RIGHT TO BE PROVIDED WITH A LAWYER LAWYER BY THE STATE STATE
In M.H.Hosot In M.H.Hosot v. State of Maharashtra6 it as observed by the 5upreme !ourt that generally speaking and sub(ect to (ust e)ceptions, at least a single right of appeal on facts facts,, here here crimi criminal nal conv convict ictio ion n is fraug fraught ht ith ith long long loss loss of libe liberty rty,, is basic basic to civi civiliz lized ed (urisprudence. 'very step that makes the right of appeal fruitful is obligatory and every action or inaction hich stultifies it is unfair and unconstitutional. %ertinent to the point are to re$uirements 3 i service of a copy of the (udgment (udgment to the prisoner in time to file an appeal and ii provision provision of free legal services to a prisoner ho is indigent or otherise disabled from securing legal assistance here the ends of (ustice call for such service. Coth these are 5tate responsibilities under "rticle 21. ?here the procedural la provides for further appeals these re$uirements ill similarly apply. One of the ingredients of fair procedure to a prisoner, ho has to seek his liberation through the court process is layerFs services. udicial (ustice, ith procedural intricacies, legal submissions and critical e)amination of evidence, leans upon professional e)pertise and a failure of e$ual (ustice under the la is on the cards here such supportive skill is absent for one side. The Indian sociolegal milieu makes free legal service at trial and higher levels, an imperative processual piece of criminal (ustice here deprivation of life or personal liberty hangs in the (udicial balance. %artial statutory implementation of the mandate is found in 5. 6>* !r. %.!., and in other situations courts cann cannot ot be inert inert in the face face of "rtic "rticle le 21 and 6=-" 6=-".. Manea 7andhi*s Case Case has laid don that personal liberty cannot be cut out or cut don ithout fair legal procedure. 'nough has been set out to establish that a prisoner, prisoner, deprived deprived of his freedom by court sentence but entitled to appeal against such verdict, can claim, as part of his protection under "rticle 21 and as implied in his statutory right to appeal, the necessary concomitant of right to counsel to prepare and argue his appeal. If a prisoner sentenced to imprisonment, is virtually unable to e)ercise his constitutional or statutory right of appeal, inclusive of special leave to appeal for ant of legal assistance, there is implicit in the !ourt under "rticle 1*2 read ith "rticles 21 and 6=-" of the !onstitution, poer to assign counsel for
= ".I.R. 1=@B 5.!. 1E*B.
such imprisoned individual Ffor doing complete (usticeF. The inference is inevitable that this is a 5tateFs duty and not DovernmentFs charity. '$ually affirmative is the implication that hile legal services must be free to the beneficiary the layer himself has to be reasonably remunerated for his services. &aturally, the 5tate concerned must pay a reasonable sum that the court may fi) hen assigning counsel to the prisoner. Of course, the court may (udge the situation and consider from all angles hether it is necessary for the ends of (ustice to make available legal aid in the particular case. That discretion resides in the !ourt. In this case, the party, though offered legal aid by the !ourt, preferred to argue himself. The !ourt observed observed that even so it upheld upheld the right to counsel not in the permissive sense of "rticle 221 and its ider amplitude but in the peremptory sense of "rticle 21 confined to pris on situations. The !ourt summarised the legal position as follos 3 i
?her ?heree the pri priso sone nerr is disab disable led d from from enga engagi ging ng a lay layer er,, on on reaso reasona nabl blee grou ground ndss such such as indi indige genc ncee or incomm incommuni unicad cado o situatio situation, n, the !ourt shall, shall, if the circum circumstan stances ces of the case, the gravity gravity of the sentence and the ends of (ustice so re$uire, assign competent counsel for the prisonerFs defence, provided the party does not ob(ect to that layer. layer.
ii
The The 5tat 5tatee shall shall pay to assi assign gned ed cou couns nsel el suc such h sum sum as the the cour courtt may may e$uit e$uitab ably ly fi) fi)..
iii iii
These These beni benign gn prescr prescrip ipti tion onss oper operate ate by force force of "rt "rticl iclee 21 Jstr Jstren engt gthe hene ned d by "rti "rticle cle 1= 1 1 d d read ith sub-art EK from the loest to the highest court here deprivation of life and personal liberty is in substantial peril. "rticle "rticle 22 1 does not provide provide to arrested person, person, right to be provided provided ith a layer by the 5tate. 4oever, in M.H. in M.H. Hosot*s Case the Case the 5upreme !ourt did not hesitate to imply this right in "rticle 22 1 and 21 (ointly hile pressing into service application of a Hirective %rinciple of 5tate %olicy under "rticle 6= " of '$ual ustice and free legal aid. To take further support for this implication it took help of "rticle 1*2 for doing complete (ustice. This is an e)ample of liberal interpretation of "rticle 22 1 and other "rticles of the !onstitution hich carves out a right for the indigent prisoner or a prisoner in incommunicado situation to be assigned counsel by the !ourt at the 5tateFs cost. It seems seems that that after the decision decision of Manea 7andhi giving 7andhi giving a ne dimension to the "rticle 21, the 5upreme !ourtFs (udicial activism started blossoming in this regard. The 5tate Dovernment Dovernment must also provide at its on cost a layer to the under-trial under-trial prisoner ith a vie to enable him to apply for bail in e)ercise of his right under proviso a to 5ub-section 2 of
5ection 19@ of !r. %.!. and the 0agistrate must take care to see that the right of the under-trial prisoner to the assistance a ssistance of a layer provided at 5tate costs is secured to him. It is a constitutional right of every accused person ho is unable to engage a layer and secure legal services on account of reasons reasons such such as poverty poverty,, indigen indigence ce or incomm incommuni unicad cado o situat situation ion,, to have have free legal legal services services provided to him by b y the 5tate and the 5tate is under a constitutional mandate to provide a layer to such accused person person if the needs of (ustice so re$uire. re$uire. If free legal services are not provided provided to such an accused, the trial itself may run the risk of being vitiated as contravening "rticle 21 and every 5tate Dovernment should try to avoid such a possible eventuality. Hussainara -hatoon v. State of ihar 18 reiterates the right of every accused person ho is unable to engage a layer 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 5tate. The !ourt 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 "rticle 21. The !ase of Ran9an of Ran9an (!ivedi v. %nion of India 11 raised a $uestion hether the Gright to be defended by a legal practitioner prac titioner of his choice under "rticle 22 1 of the !onstitution comprehends the right ‟
of an accused to be supplied ith a layer by the 5tate. The 5upreme !ourt held that the accused petitioner ho is being tried for murder before the 5essions !ourt is not entitled to the grant of a rit of mandamus for mandamus for the enforcement of the Hirective %rinciple enshrined in "rticle 6= " by ordaining the :nion of India to give financial assistance to him to engage a counsel of his choice on a scale e$uivalent to, or commensurate ith, the fees that are being paid to the counsel appearing for the 5tate. "s "s is clear from the terms of "rticle "rticle 6= ", the social ob(ective ob(ective of e$ual (ustice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid. The remedy of the petitioner, if any, lies by ay of making an application before the Trial !ourt under sub-section 1 of 5. 6>* of the !r. %.! %.!.. and not by a petition under "rticle 62 of the !onstitution. The !ourt further observed observed that although in the earlier decisions decisions the !ourt paid scant regard to the Hirectives on the ground that the !ourts had little to do ith them since they ere not (usticiable or enforceable, like the undamental Rights, the duty of the !ourt in relation to the Hirectives came to be emphasized in the later decisions laying don certain broad propositions. One of these is that there is no disharmony beteen the Hirectives and the undamental Rights because they supplement
1> ".I.R. 1=@= 5.!. 16@@.
11 ".I.R. ".I.R. 1=B6 5.!. 92*.
each other in aiming at the same goal of bringing about a social revolution and the establishment of a ?elfare 5tate, hich is envisaged in the %reamble. The !ourts therefore, have a responsibility in so interpreting the !onstitution as to ensure implementation of the Hirectives and to harmonize the social ob(ective underlying the Hirectives ith the individual rights. %rimarily, the mandate in "rticle 6= " is addressed to the /egislature and the ')ecutive, but insofar as the !ourts of ustice can indulge in some (udicial la making ithin the interstices of the !onstitution, the courts too are bound by this mandate. 0any a time, it may be difficult for the accused to find sufficient means mea ns to engage a layer of competence. In such cases, the !ourt possesses the poer to grant free legal aid if the interests of (ustice so re$uire. The remedy of the petitioner therefore, is to make an application before the 5essions !ourt making out a case for the grant of free legal aid and if the !ourt is satisfied that the re$uirements of 5ub-sec. 1 of 5ection 6>* of the !ode are fulfilled, he may make necessary directions in that behalf. 5. 6>* 1 of !riminal %rocedure !ode reads 3 6>*. 1 here, in a trial before the !ourt of 5ession, the accused is not represented by a pleader and here it appears to the !ourt that the accused has not sufficient means to engage a pleader, the !ourt shall assign a pleader for his defence at the e)pense of the 5tate. The !ourt in Ran9an in Ran9an (!ivedi*s case referred case referred to M.H. to M.H. Hosot*s case and case and Hussainara Hussainara -hatoon*s case and also observed that primarily the mandate in "rticle 6= " is addressed to the /egislature and the ')ecutive but insofar as the !ourts of ustice can indulge in some (udicial la-making ithin the interstices of the !onstitution, the !ourts too are bound by this mandate. 'ven then the !ourt e)pressed its inability to grant remedy to the petitioner on the ground that he sought rit of mandamus for mandamus for the enforcement of the Hirective %rinciple enshrined in "rticle 6= ". The !ourt directed the petitioner to approach the "dditional 5essions udge under sub-section 1 of 5ection 6>* of the code of !riminal %rocedure. It cannot be understood hy the !ourt e)pressed its inability or helplessness to grant relief to the accused petitioner in the face of M.H. Hosot and Hussainara and Hussainara -hatoon decisions -hatoon decisions of hich it took cognizance hich clearly had held that right to counsel in case of indigent accused is a fundamental right under "rticle 22 1 and 21. The 5upreme !ourt could have easily brushed aside the technicality of petition being for the enforcement of a Hirective %rinciple of 5tate %olicy under "rticle 6= " and given relief under "rticle 22 1 and 21 hich ere enforceable fundamental rights.
STATUTES STATUTES BARRING BARRIN G APPEARANCE OF LAWYERS LAWYERS 3
The 0adhya Charat %anchayat "ct as passed on une 1@, 1=*=. Cy 5. @E of the "ct, the &yaya %anchayat %anchayat is empoered empoered to try certain offences offences committed committed ithin its (urisdiction (urisdiction including including offence offence under 5. **@ of the Indian %enal !ode. The &yaya %anchayat has poer to impose a fine not e)ceeding Rs. 1>>, but it has no poer to inflict a substantive sentence of imprisonment nor a sentence of imprisonment in default of payment of fine. Cy 5. B=, the decision of the &yaya %anchayat in its criminal (urisdiction is final and not appealable e)cept that it is sub(ect to revision by the 5essions udge. 5ection B@ provides that sub(ect to the provisions of 5. 96, any party may appear before a &yaya %anchayat by a duly authorised authorised representative. 5ection 96 provides 3 7&o legal practitioner shall appear on behalf of or shall plead for or defend any party in a dispute, case or proceedings pending before the &yaya %anchayat8. The The fact factss of the case case State of M.. v. Shobharam 12 ere on a complaint of trespass the police registered a case against the respondents under 5. **@ of the Indian %enal !ode. The respondents ere later arrested by the police and released on the e)ecution of surety bonds. The case against the respondents as thereafter put up before the &yaya %anchayat, a !ourt established under the 0adhya Charat Charat %anchay %anchayat at "ct, 1=*=. 1=*=. The The &yaya &yaya %anchay %anchayat, at, after after trial, trial, convic convicted ted and senten sentenced ced the respondents to a fine of Rs. @E each. The conviction as upheld by the "dditional 5essions udge. The respondents then moved the 4igh !ourt of 0adhya %radesh. The 4igh !ourt declared that 5. 96 is void to the e)tent that it denied the respondents the right to be defended by a legal practitioner of their choice in the trial before the &yaya %anchayat, $uashed the conviction and sentences. The 5tate of 0adhya %radesh preferred the appeal to the 5upreme !ourt. 0a(ority consisting of Cachaat, 5helat and 4idaytullah . 0udholkar . and 5arkar !.. dissenting held that 5ection 96 of the 0adhya Charat %anchayat "ct, 1=*= is violative of "rticle 22 1 and is void to the e)tent it denies any person ho is arrested the right to be defended by a legal practitioner of his choice in any trial of the crime for hich he is arrested. The second part of "rticle 22 1 reads 3
12 ".I.R. 1=99 5.!. 1=1>.
7... nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice8. 0r. 5en, advocate for the appellant submitted that 7he8 means a person ho is arrested and a nd detained, and as the respondents ere not detained at the time of the trial before the &yaya %anchayat, the constitutional guarantee is not available to them. 4e argued that in State of un9ab v. #9aib Sinh 1$ The 5upreme !ourt has restricted the constitutional guarantee embodied in the first part of "rticle 22 1 to persons arrested otherise than under a arrant issued by a !ourt and he submitted that this restricted interpretation should not be given to the second part and the protection of the second part should be e)tended to all persons. Cut he also submitted that in the conte)t of "rticle 21 the right given by the second part of !lause 1 of "rticle 22 should be limited to trials in hich any person is deprived of his life or personal liberty or is in (eopardy of being so deprived. Cachaat . ith him 5helat . observed that the pronoun 7he8 in the second part of "rticle 221 must refer to the last antecedent. 74e8 therefore, means 7any person ho is arrested8. 4e has the right to consult his layer and to be defended by him, so that he may guard himself against the accusation for hich he is arrested. a rrested. !lause 1 and 2 2 of "rticle 22 safeguard the rights of the person arrested. arrested. The arrest of any person on a criminal criminal charge is a step in an intended intended criminal proceeding proceeding against him. :pon 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 ith his eventual trial on the charge. It is at the trial in the !riminal !ourt that the accused defends or is defended by counsel. 5ection 6*> no 5. 6>6 of !r. %.!., therefore, provides that any person accused of any offence before a !riminal !ourt, may of right be defended by a pleader. In this background, the right of defence by a legal practitioner given by "rticle 22 1 must e)tend to defence in a trial in a !riminal !ourt. Cachaat . further observed that hen any person is arrested, he is deprived of his liberty, the procedure laid don in !lause 1 1 of "rticle 22 must then t hen be folloed, and he must be alloed the right to be defended by counsel of his choice. There is no reason to limit this right to a trial in hich he may be sentenced sentenced to death or to a term of imprisonment. imprisonment. There is no reason to deny this right to him in a trial in hich he is in (eopardy of being convicted and sentenced to a heavy fine. The clear ords of "rticle 22 furnish no basis for this limitation.
16 ".I.R. 1=E6 5.!. 1>.
It as suggested that the right of defence by counsel given by "rticle 22 1 does not e)tend to a trial of an offence before the &yaya %anchayat because the 0adhya Charat %ancha yat "ct, "ct, 1=*= does not authorise any arrest and as a matter of fact, the respondents ere arrested by the police in the e)ercise of its poers under 5. E* of !r. %.!. %.!. It as also suggested that the trial of an offence before the &yaya %anchayat 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 &yaya %anchayat. Cachaat . did not accept this line of reasoning. 4e held that the right attaching to them on their arrest continued though they ere not under detention at the time of the trial. The right as not lost because they ere released on bail. 4e observed that most of the safeguards embodied in !lauses 1 and 2 of "rticle 22 are to be found in the !ode of !riminal !riminal procedure. Cut the !onstitution !onstitution makes the fundamental fundamental change that the rights guaranteed guaranteed by !lauses 1 and 2 of "rticle 22 are no longer at the mercy of the legislature. legis lature. Cachaat . ith him 5helat . held 5. 96 of the "ct violative of "rticle 22 1 a nd so void. 4idaytullah . agreed ith Cachaat . on this point and observed that hen our !onstitution lays don in absolute terms a right to be defended by oneFs on counsel, it cannot be taken aay by ordinary la and it is not sufficient to say that the accused ho as so deprived of this right, did not stand in danger of losing his personal liberty. If he as e)posed to penalty, he had a right to be defended by counsel. If this ere not so then instead of providing for punishment of imprisonment, penal las might provide for unlimited fines and it ould be eas y to leave the man free but a pauper. "nd to this end ithout ithout a right to be defended defended by counsel. counsel. If this proposition proposition ere accepted as true e might be in the 0iddle "ges. The !riminal %rocedure !ode allos the right to be defended by counsel but that is not a guaranteed right. The framers of the !onstitution have ell-thought of this right and by including the prescription in the !onstitution have put it beyond the poer of any authority to alter it ithout the !onstitution 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 0agistrate ithin tenty-four hours and the third is the right to be defended by a layer la yer of oneFs choice. This is, of course so hile the arrest continues but there are no ords to sho that the right is lost no sooner than he is released on bail. The ord Gdefended
‟
clearly includes the e)ercise of the right so long as the effect of the arrest continues. Cefore his release on bail the person defends defends himself against his arrest and the charge charge for hich he is arrested arrested and after his release on bail against the charge he is to anser and for ansering hich, the bail re$uires him to remain present. The narro meaning of the ord FdefendedF that the person ho is arrested has a right to consult a legal practitioner 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 e)cept by procedure established by la. The declaration is general and insists on legality of the action. The rights given by "rticle 22 1 and 2 are absolute in themselves and do not depend on other las. 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 "rticle 22 1 is not available. %ersonal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it matters not hether there is or is not a possibility of imprisonment. " person arrested and put on his defence against a criminal charge, hich may result in penalty, is entitled to the right to defend hims himsel elff ith ith the the aid of coun counsel sel and and any la that that take takess aay aay this this righ rightt offe offend ndss again against st the the !onstitution. Therefore, 5. 96 of the %anchayat "ct being inconsistent ith "rticle 22 1 became void on the inauguration of the !onstitution in so far as it took aay the right of an arrested person to be defended by a legal practitioner of his choice. 5arkar !.. ith him .R. 0udholkar . took a contrary vie on the point of validity of 5. 96. 4e observed that a person arrested has the constitutional right to consult a legal practitioner concerning his arrest. 5uch person has the !onstitutional right to be defended by a legal practitioner. This right to be defended by a legal practitioner ould include a right to take steps through a legal practitioner for his release from the arrest. 5. 96 of the "ct puts no ban on either of these rights. The "ct is not concerned ith 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 e)tends also to a case of defence in a trial trial hich hich may resul resultt in the Gloss Gloss of person personal al liber liberty ty . On the othe otherr hand hand,, her heree a pers person on is ‟
sub(ected to a trial under a la hich does not provide for an order resulting in the loss of his personal libert y, he is not entitled to the !onstitutional right to defend himself at the trial by a legal practitioner. The reason is that "rticles 21 and 22 are concerned only ith giving protection to personal liberty. libert y. That That is strongly indicated by the language used in these "rticles and by the conte)t in hich they occur in the !onstitution. It ould follo that the re$uirement laid don in "rticle 22 1 is not a constitutional necessity in any enactment hich does not affect life or personal liberty. The "ct e)pressly provides that the &yaya %anchayat cannot inflict a sentence of imprisonment, not even one in default of payment of fine. The "ct does not give any poer of arrest. or such a la, the procedural re$uirement in "rticle 22 1 is not a constitutional necessity. The "ct does not violate "rticle 221 and cannot be held to be invalid on that ground. In this case the t he respondents though had been arrested, arres ted, they had been arrested not under the "ct but under 5. E* 1 of the !r. %.! %.!.. 1B=B, the offenc offencee being being cogniz cognizabl able. e. The The fact that the respond respondent entss ere arreste arrested d under under anothe anotherr la and thereafter tried under the "ct 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 !onstitution makers did not intend that the person arrested ould have the right to be defended by a legal practitioner at a trial hich ould not result in the deprivation of his personal liberty. 4e, of course, had the right to seek relief against the arrest through a legal practitioner. 5o 5. 96 and the "ct are valid. This is the only case here the 5upreme !ourt had an opportunity to strike don a provision in la barring appearance of layer. Though ma(ority decision seems to be correct on superficial e)amination, the rationale adopted by the minority (udges and the cogent reasons given by them in holding Gthe person arrested ould not have the right to be defended by a legal practitioner at a trial hich ould not result in the deprivation of his personal liberty are more convincing. convincing. ‟
CHAPTER - V RIGHT TO BE PRODUCED BEFORE A MAGISTRATE :
?hether the "bducted %ersons Recovery and Restoration "ct 9E of 1=*= violates "rticle 22 and hether the recovery of a person pers on as an abducted person and the delivery deliver y of such person to the nearest camp can be said to be arrest and detention ithin the meaning of "rticle 22 1 and 2 as the $uestion elaborately dealt ith by the 5upreme !ourt in State of un9ab v. #9aib Sinh 1&. This appeal arose out of a habeas corpus petition petition filed by one "(aib "(aib 5ingh in the 4igh !ourt of %un(ab %un(ab for the production and release of one 5ardaran a"ias 0ukhtiar a"ias 0ukhtiar Laur, a girl of about 12 years of age. The material facts ere 3 The petitioner "(aib 5ingh had three abducted persons in his possession. The recovery police of erozpore, on 22-9-1=E1 raided his house and took the girl into custody and delivered her to the custody of the Officer in charge of the 0uslim Transit !amp at erozpore from hen hence ce she she as later later trans transfe ferre rred d to and and lodg lodged ed in the the Reco Recove vered red 0uslim 0uslim ?omen men s !amp !amp in ‟
ullundhur !ity. The girl as a 0uslim abducted by the petitioner during the riots of 1=*@ and as, ther therefo efore, re, an abdu abduct cted ed perso person n as defin defined ed in 5. 2 1 1 a, a, "bduc bducte ted d %erso %ersons ns Rec Recov overy ery and and Restoration "ct 9E of 1=*=. The %olice Officers recommended in their report that she should be sent to %akistan for restoration to her ne)t of kin. 5erious 5erious riots broke-up broke-up in India and %akistan in the ake of partition of "ugust "ugust 1=*@ resulting resulting in a colossal mass e)odus of 0uslims from India to %akistan and of 4indu and 5ikhs from %akistan to
1* Ibid.
India. There ere heart rending tales of abduction of omen and children on both sides of the border. On 11-11-1=*B an Inter-Hominion "greement beteen India and %akistan as arrived at for the recovery of abducted persons on both sides of the border. To implement that agreement "ct 9E of 1=*= as passed. The e)pression 7abducted person8 is defined by 5. 2 1 a as meaning 3
" male child under the age of si)teen years or a female of hatever age ho is or immediately
before 1-6-1=*@, as a 0uslim and ho, on or after that day and before 1-1-1=*= 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.
5ection * of the "ct, hich is important, provides that if any police officer, not belo the rank of an "ssistant "ssistant 5ub-Inspect 5ub-Inspector or or any other police officer specially authorised authorised by the state Dovernment Dovernment 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, ithout arrant, enter and take into custody any person found therein ho, in his opinion, is an abducted person, and deliver or cause such person to be delivered to the custody of the officer in charge charge of the nearest camp ith the least possible delay. The 5upreme !ourt held that the "ct did not offend against the provisions of "rticle 22 of the !onstitution. The !onstitution commands that every person arrested and detained in custody shall be produced before the nearest 0agistrate ithin 2* hours e)cluding the time re$uisite for the (ourney from the place of arrest to the !ourt of the 0agistrate, but 5. * of the "ct re$uires the police officer ho 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 "ct of the salutary provisions to be found in "rticle 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 lega l practitioner of his choice is also significant. The sole point for the consideration of the !ourt as hether the taking into custody of an abducted person by a police officer under 5. * of the "ct 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 ithin the meaning of "rticle 221 and 2. "dvocate for the respondent brought to the notice of the !ourt various definitions of the ord Garrest given in several several and ell-knon ell-knon la dictionaries dictionaries and urged urged in the light of such definitions definitions ‟
that any physical restraint restraint imposed imposed upon a person must result in the loss of his personal personal liberty and must accordingly amount to his arrest. It is holly immaterial hy or ith hat 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 "rticle 22 1 and 2. The !ourt observed that the result of placing such a ide definition on the term FarrestF occurring in "rticle 22 1 and 2 ill render many enactments unconstitutional, for e)ample the arrest of a defendant before (udgment under the provisions of O. 6B, R. 1, !.%.!. or the arrest of a (udgment debtor in e)ecution of a decree under 5. EE of the !ode ill, on this hypothesis, be unconstitutional inasmuch as the !ode provides for the production of the arrested person, not before a 0agistrate but before the !ivil !ourt hich made the order. If to constructions are possible, then the !ourt must adopt that hich ill ensure smooth and harmonious orking of the !onstitution and esche the other hich ill lead to absurdity or give rise to practical inconvenience or make ell established provisions of e)isting la nugatory. nugatory. The !ourt further observed that broadly speaking, arrests may be classified into to categories, namely, arrests under arrants issued by a !ourt and arrests otherise than under such arrants. The arrant $uite clearly has to state that the person to be arrested stands charged ith a certain offence. The arrant arrant e: facie sets facie sets out the reason for the arrest, namely, that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence. In short, the arrant contains a clear accusation against the person to be arrested. 5ection B> no 5.@E of !r.%.!. re$uires that the police officer or other person e)ecuting a arrant must notify the substance thereof to the person to be arrested, and, if so re$uired, shall sho him the arrant. It is thus abundantly abundantly clear that the person to be arrested is informed informed of the grounds grounds for his arrest before he is actually arrested. "part from the !ode of !riminal %rocedure, there are other statutes hich provide for arrest in e)ecution of a arrant issued by a !ourt. or e)ample O. 6B, R. 1, !.%.!. authorises the court to issue a arrant arrant for the arrest of a defendant defendant before (udgment in certain circumstances. circumstances. The !ourt may under 5. EE read ith O. 21, R 6B issue a arrant for the arrest of the (udgment-debtor in e)ecution e)ecution of the decree. The point to be noted is that, as in the case of arrant of arrest issued by a !ourt under the !ode of !riminal %rocedure, a arrant of arrest issued by a !ourt under the !ode of
!ivil %rocedure $uite plainly discloses the reason for the arrest and the person to be arrested is made ac$uainted ith the reasons for his arrest before he is actually arrested. The !ourt pointed out that several sections in !hapter E, !riminal %rocedure !ode deal ith arrests otherise than under arrants issued by a !ourt under that !ode. 5ection E* no 5. *1 sets out nine several circumstances in hich a police officer may, ithout an order from a 0agistrate and ithout a arrant arrest a person. 5ections EE, E@, 1E1 and *>1 6 no 5s. *1, *2, 1E1, *62 confer similar poers on police officers. 5. E= no 5. *6 authorises even a private person to arrest any person ho in his vie commits a non-bailable and cognizable offence or any a ny proclaimed offender. " perusal of the sections referred to above makes it plain that the reason in each case of arrest ithout a arrant 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, e)cept in 5. E9 no 5. EE for ac$uainting the person to be arrested ithout arrant ith the grounds for his arrest. 5. 9= and 5. 91 no 5s. E9 A E@ prescribe the procedure to be folloed after a person is arrested ithout arrant. 5. 91 no 5. E@ reads as under 3 &o police officer shall detain in custody a person arrested ithout arrant for a longer period than under all al l the circumstances of the case is reasonable, and such s uch period shall not, in the absence of a special order of a 0agistrate under 5. 19@, e)ceed tenty-four hours, e)clusive of the time necessary for the (ourney from the place of arrest to the 0agistrateFs !ourt. "part "part from the !ode of !riminal !riminal %rocedure, there are other statutes statutes hich authorise the arrest of a person ithout a arrant arra nt issued by any !ourt. or e)ample 5s. 1@6 and 1@* of 5ea !ustoms "ct B of 1B@B and 5. 9* of orest "ct 19 of 1=2@. 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 "ct and there is provision in both cases for the immediate production of the the arrested person before a 0agistrate. "s in the cases of arrest ithout arrant under the !ode of !riminal %rocedure, an arrest ithout arrant under these "cts also proceeds upon an accusation that the person arrested is reasonably suspected of having committed an offence. ?hile considering hether the protection of "rticle 22 1 and 2 e)tends to both categories of arrests, the !ourt came to the conclusion that arrests ithout arrants issued by a !ourt call for
greater protection than do arrests under such arrants. The provision that the arrested person should ithin 2* hours be produced before the nearest magistrate is particularly desirable in the case of arrest otherise than under a arrant issued by the !ourt, for it ensures the immediate application of a (udicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by b y him. In the case of arrest under a arrant issued by a !ourt, the (udicial mind had already been applied to the case hen the arrant as 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 "rticle 22 2 has been practically copied from 5s. 9> and 91 no 5s. E9 A E@ !r.%.! !r.%.!.. hich admittedly prescribe the procedure to be folloed after a person has been arrested ithout a arrant. The re$uirement of "rticle 22 1 that no person ho is arrested shall be detained in custody ithout being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest ithout a arrant of !ourt, for a person arrested under a !ourtFs arrant is made ac$uainted ith 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 hich he has to be defended. The language of "rticle 22 1 and 2 indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherise than under a arrant issued by a !ourt 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 $uasicriminal nature or some activity pre(udicial to the public or the 5tate interest. In other ords, there is indication in the language of "rticle 22 1 and 2 that it as designed to give protection against the act of the e)ecutive or other non (udicial authority. authority. "s to the validity of 5. * of the impugned "ct, the 5upreme !ourt finally observed that hatever else may come ithin the purvie of "rticle 22 1 and 2, the !ourt as satisfied that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody ithout any allegation or accusation of any actual or suspected or apprehended commission by that tha t person of any offence of a criminal or $uasi criminal nature or of any act pre(udicial to the 5tate or public interest and delivery of that person to the custody of the officer in charge of the nearest camp under 5. * of the impugned impugned "ct cannot be regarded as arrest and detention ithin the meaning of "rticle 22 1 and 2.
The pronouncement that the protection under "rticle 22 1 and 2 does not e)tend to arrest under arrant arrant is in the nature of an obiter dicta. dicta. It is a salutary practice of final tribunals like the 5upreme !ourt not to decide more than is necessary in constitutional cases. The decision of the !ourt that Garrest in "rticle "rticle 22 1 and 2 refers refers to arrest 7upon an allegation allegation or accusation accusation of a criminal or ‟
$uasi-criminal nature8 as sufficient to dispose of the case before the !ourt. ?hether such arrest must be one under arrant or ithout arrant as a $uestion hich as not necessary to be decided for the purpose of the disposal of the case. The statement of the !ourt that "rticle 22 1 and 2 reproduces the language of sections 9> and 91 no 5s. E9 and E@ of the !riminal %rocedure !ode is not correct because !r.%.!. provisions specifically refer to 7arrest !ithout arrant8# arrant8# "rticle 22 1 and 2 used the ord Garrested Garrested ithout ithout any $ualification $ualification and ithout ithout referring referring to arrant arrant at all. ‟
0erely because in the e)isting statutory la, the protection is confined to arrests ithout arrant, it cannot be inferred that the framers of the !onstitution did not intend to give this protection to arrests under arrant arrant also. The !ourt relied upon the argument that the ob(ect of production before a 0agistrate 0agistrate is to ensure the application of a (udicial (udicial mind to the legal authority and regularity regularity of the arrest# in the case of arrest under arrant, there has already been such application of a (udicial mind at the time of issuing the arrant. This argument is not convincing because in such case (udicial mind is applied e: parte and parte and ithout hearing the person arrested. The argument is oblivious of the fact that the right to consult and be defended by a legal practitioner is a distinct right ensured by clause 1 of "rticle 22. If it is held that clause 1 does not e)tend to arrests under arrant, the arrested person shall have no constitutional right to consult or to be defended by a layer. 1E This ould be absurd. In 7unupati -eshavram v. 'afisu" Hasan 1; there as a petition under "rticle 62 of the !onstitution complaining that one 5hri 4omi Hinsha 0istry as under illegal detention and praying that he be released forthith. The petition alleged that 5hri 0istry as arrested in Combay and taken in custody to /uckno to be produced before the 5peaker of the :ttar %radesh /egislative "ssembly to anser a charge of breach of privilege. It as further alleged that 5hri 0istry as not produced before a 0agistrate ithin tenty four hours of his arrest# but as kept in detention in the 5peakerFs custody custody at /uckno /uckno even till the time of petition. The 5upreme 5upreme !ourt held this as a clear breach of the provisions of "rticle 22 2 of the !onstitution hich re$uires that no such person shall be detained in custody beyond the said period ithout the authority of a 0agistrate. The !ourt directed that 5hri 0istry be released forthith. It is submitted that DunupatiFs case is rongly decided.
1E H.H. Casu, Casu, !ommentary on the !onstitution of India,
19 ".I.R. 1=E* 5.!. 969.
Though the person as arrested in pursuance of an order of the 5peaker of a /egislative "ssembly on a charge of breach of privilege, the implications thereof ere not fully considered. :pon a literal application of "rticle 22 2 it as held that since the arrested person as not produced before a 0agistrate, 0agistrate, the person must be released. It is doubtful ho far the 0agistrate before hom such an arrested person is produced can e)amine the validity of the 5peakerFs order. There as no discussion about the merits of the contention raised on behalf of 0r. 0istry. "dvocate did not advance any argument argument to support support the contention contention that privilege privilege superseded fundamental fundamental right. It as strange that the point as not discussed in the (udgment and no reason in support of the vie as stated. In M.S.M. In M.S.M. Sharma v. Sri -rishna Sinha 1 , it as held by ma(ority that "rticle 1= 1 a and "rticle 1=* 6 dealing ith privileges of the 4ouses of the 5tate /egislatures have to be reconciled and the only ay of reconciling the same is to read "rticle 1= 1 a as sub(ect to the latter part of "rticle 1=* 6. The provisions of "rticle 1= 1 a hich are general, must yield to "rticle 1=* 1 and the latter part of its clause 6 hich are special. The 5upreme !ourt did not follo 7unupati*s case so case so far as it gave primacy to the fundamental right under "rticle 22 2 over the privilege of the 5tate /egislature. The 5upreme 5upreme !ourt did not accept the argument argument that the observations observations in 7unupati*s case case clearly establish that "rticle 1=* 6 is sub(ect to the fundamental rights. The !ourt observed that the decision in 7unupati*s case proceeded case proceeded entirely on a concession of counsel and cannot be regarded as a considered opinion on the sub(ect. It is curious that Has . ho as the member of the Cench hich decided 7unupati*s case, delivered case, delivered the (udgment (udgment of the ma(ority in M.S.M.Sharma*s in M.S.M.Sharma*s case hich case hich did not follo 7unupati*s case. case. In In In In Re under #rtic"e 1&$ of Constitution of India 14 popularly knon as -eshav as -eshav Sinh*s case, case, the 5upreme !ourt pointed out that the decision in 7unupati*s case dealt case dealt ith the applicability of "rticle 22 2 to a case falling under the latter part of "rticle 1=* 6 and the ma(ority decision in incidentally commented commented on the decision decision in 7unupati*s case. M.S.M. Sharma*s case case had incidentally case. It is also importa important nt to note note that that there there as no contro controver versy sy about about the applicabi applicability lity of "rtic "rticle le 22 in M.S.M. Sharma*s case. case. 5o it as not necessary for the ma(ority decision to deal ith the point pertaining to the applicability of "rticle 22 2. In -eshav In -eshav Sinh*s case the case the 5upreme !ourt observed that the obiter
1@ ".I.R. 1=E= 5.!. 6=E.
1B ".I.R. 1=9E 5.!. @*E.
obser observa vati tion onss made made in the the ma(o ma(orit rity y (udgm (udgmen entt in M.S.M. Sharma*s case abou aboutt the the vali validi dity ty or correctness of the earlier decision in 7unupati*s case should case should not be taken as having decided the point in $uestion. In other ords, the $uestion as to hether "rticle 22 2 ould apply to such a case may have to be considered by the 5upreme !ourt if and hen it becomes necessary to do so. The contention of the petitioner in the case of urshottam v. .M.(esai16 as that 5. *9 2 of the Income Ta) "ct under hich Income Ta) Officer issues the recovery certificate to the "dditional !ollector of Combay is void under "rticle 16 1 in that the same offends "rticle 22 1 and 2. The ob(ection that 5. *9 2 contravenes the fundamental rights guaranteed by clauses 1 and 2 of "rticle 22, in vie of decision of this !ourt in the State of un9ab v. #9aib Sinh as not pressed. It as held that it is a fallacy to regard arrest and detention of a defaulter ho fails to pay income-ta) as a punishment or penalty for an offence. It is a coercive process for recovery of public demand by putting pressure on the defaulter. The defaulter can get himself released by paying up the dues. In the case of Co""ector of Ma"abar v. <.
1= ".I.R. 1=E9 5.!. 2>
2> ".I.R. 1=E@ 5.!. 9BB.
recovered. 4ere the arrest is not by ay of punishment for mere default. Therefore, that here an arrest is made under 5. *B after complying ith its provisions, the arrest is not for any offence committed or a punishment for defaulting in any payment. The mode of arrest is no more than a mode for recovery of the amount due. The provision provision for production production of an arrested man before a magistrate magistrate is not to be treated as a mere formality but as purposeful and designed to enable the person arrested to be released on bail or other provision made for his proper custody, pending investigation into the offences ith hich he is charged pending an in$uiry or trial. In State of %.. v. #bdu" Samad 21 involving arrest and deportation of a person, it as held that it as not necessary to produce such a person before the magistrate if he as produced before the 4igh !ourt. In In In In re Madhu Limaye22 the facts ere 3 0adhu /imaye and others ere arrested and a case as instituted against them. It as claimed that 0adhu /imaye and others had committed offences under 5. 1BB and 5. 1*6, %enal !ode hich is cognizable by violating the orders made under 5. 1**, !r. %.!. and by forming unlaful assembly. They ere produced before the 5ubHivisional 0agistrate, ho remanded them to (ail custody as they refused to furnish bail-bonds. One of the contentions raised by 0adhu /imaye as that the orders for remand ere bad and vitiated. The 5upreme !ourt observed that clause 2 of "rticle 22 provides the most material safeguard that the arrested person must be produced before a 0agistrate ithin 2* hours of his arrest, so that an independen independentt authority authority e)ercising (udicial (udicial poers may ithout delay apply its mind to his case. The !rim !rimin inal al %roc %roced edur uree !ode !ode cont contain ainss anal analog ogou ouss prov provisi ision onss in 5ect 5ectio ion n 9> no no 5. E9 E9 but but our our !onstitution makers ere an)ious to make these safeguards an integral part of fundamental rights. Once it is shon that the arrests made by the police officers ere illegal it as necessary for the 5tate to establish that at the stage of remand the 0agistrate directed detention in (ail 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. mechanically. ?hen ?hen police police though though obtaine obtained d remand remand of arrested arrested person person ithou ithoutt produc producing ing him before before magistrate ithin re$uisite period, it as held that there as gross violation of his rights under
21 ".I.R. 1=92 5.!. 1E>9.
22 ".I.R. 1=9= 5.!. 1>1*.
"rticle 21 and 22 2. In him Sinh v. State of J. = -. 2$ the !ourt observed that hen a person is imprisoned ith mischievous or malicious intent and that his constitutional and legal rights ere invaded, the mischief or malice and the invasion may not be ashed aay or ished aay by his being set free. In appropriate cases the !ourt has the (urisdiction to compensate the victim by aarding aarding suitable monetary compensation. compensation. In this case a member of the /egislature "ssembly "ssembly as arrested hile en route to route to seat of "ssembly and in conse$uence, the member as deprived of his constitutional rights to attend the "ssembly 5ession. The !ourt held that responsibility for arrest lay ith higher echelons of the Dovernment and it as fit case for compensating the victim by aarding compensation. !ompensation of Rs. E>,>>>- as aarded.
CONCLUSION
It is generally believed that in spite of the various safeguards in the !r.%.!. as ell as the in the !onstitution, the poer of arrest given to the police is being misused till this day. It is also believed that the police often use their position position of poer to threaten the arrested persons and take advantage advantage of their office to e)tort money. There have also been innumerable reports on custodial violence that lead lead many many to belie believe ve that that depr depriv ivat atio ion n of basic basic righ rights ts of the the arres arrested ted perso persons ns has has beco become me commonplace noadays. The 0allimath !ommittee in its Report on the reforms in the !riminal ustice 5ystem has stated that the accused has the right to kno the rights given to him under la and ho to enforce such rights.
26 ".I.R. 1=B9 5.!. *=*.
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 !olonial nature of our !riminal ustice 5ystem here the duty of arrest as thrust upon the Indian officers hile the Critishers dre up the charge against the accused. Thus, it is entirely possible that the 'nglish origins of the Indian !riminal ustice system may have resulted unittingly in the rights of the arrested persons falling through the cracks. There is imminent imminent need to bring in changes changes in !riminal !riminal ustice "dministratio "dministration n so that state should should recognize that its primary duty is not to punish, but to socialize and reform the rongdoer and above all it should should be clearly clearly understo understood od that that sociali socializati zation on is not identical identical ith ith punish punishmen ment, t, for its comprises prevention, education, care and rehabilitation ithin the frameork of social defence. Thus, in the end e find that Rule of la regulates the functionary of every organ of the state machinery, including the agency responsible for conducting prosecution and investigation hich must confine themselves ithin the four corners of the la. 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 police+s duty to protect the rights of the arrested person. 4ence, 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 aare of the grounds of his arrest, informed hether he is entitled to bail and of course, produced before a 0agistrate ithin tenty-four hours of his arrest.
BIBLIOGRAPHY •
http3.pucl.orgfrom-archivesB1novprisoner-rights.htm
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http3.humanrightsinitiative.orginde).php http3. humanrightsinitiative.orginde).phpMoptionNcomcontentAidN1==P6"supremeMoptionNcomcontentAidN1==P6"supremecourt-directives-on-police-reformAItemidN=B
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http3indiankanoon.orgdocBE62E2
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BARE ACTS •
!onstitution of India, 1=E>
•
!riminal procedure !ode, 1=@6
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The Indian %enal !ode, 1B9>.
BOO# REFERRED R.V.#$%&'() C(*+*,'% (/$01($ /0$) ! $0**,) E'$(, B& C+',.
