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Safeguard against arrest and detention

 

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Right to be informed regarding grounds of arrest as said in A.K. Gopalan v. State of Madras, [AIR 1950 SCR 88]. Article 22 ensures four rights to a detained person.

  • Right to be informed regarding the grounds of arrest.
  • Right to consult and to be represented by lawyers of his own choice.
  • Right to be produced before the nearest Magistrate within 24 hours of his arrest.
  • Freedom from detention for specific period.

These are mandatory and have to be followed, meaning thereby that if not followed the person so arrested or detained shall have right to claim this right by writ.

Right to be informed of the ground of arrest: earliest opportunity to defend yourself. The object behind this is that the person arrested should know, why and for what offence, he was arrested. So that he will have earliest opportunity to remove the mistake or misapprehension or the misunderstanding made by the authority making an arrest. Grounds of arrest are to be informed to the detenue. Arrest and detention means, arrest and detention by non-judicial authority.

Right to consult and to be represented by legal practitioner: the person arrested has a right to consult a legal practitioner and this right to consult, defined by law is available to him not only at pre-trial stage but also at later stages.

The right to consult and be defended by a legal practitioner of his choice is guaranteed with a view to enable the detenue to prepare his defence. This right belongs to the arrested person not only at the pre-trial stage but  also at the stage of the trial before a criminal court or before a special tribunal and whether the arrest is made under the general law or under a special statute.

Read: Legal right of the person at the time of arrest

Earlier, it was held that a demand to consult a lawyer must be made by the person arrested and that the Court was not bound to provide him the help of a lawyer unless a request was made by him. But, it is now held that it is the constitutional duty of the state to provide a lawyer to the detenu to defend himself. In Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1377, the Supreme Court has laid down that it is the constitutional right of every person under Article 21, who is unable to engage a lawyer and secure legal service on account of reason such as poverty, indigence or incommunicado a situation, to have free legal service at state’s expense. Earlier, it was argued and appear and to defend by lawyer, but, after the case.

In Ranjan v. Union of India, [AIR 1983 SC 624], the right have been implemented. As this is the duty of state, and also contained in Article 39A of DPSP in which state has to provide free legal aid.

Right to be produced before nearest Magistrate

Nearest Magistrate means Magistrate found to be nearest to his arrest. It is immaterial whether it has jurisdiction to try or not. The right to be produced before the nearest magistrate is guaranteed with a view to avoid any miscarriage of justice. It is with the object of correcting and approving the executive action of arresting a person. It has been held that the Magistrate must apply his judicial mind to determine whether the arrest is regular or legal and in accordance with the law. The Magistrate, therefore, while authorising the extension of arrest must not act mechanically. He has to judicially scrutinise circumstances and if satisfied, can order the detention of the accused in police custody.

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