text stringlengths 5 5.67k |
|---|
My brother Bachawat has held the section to be inapplicable to criminal trials before the Panchayat courts. Ratio |
He has, however, set aside the order of the High Court on the ground that the respondents did not seek to exercise their right at the trial and cannot, therefore, be said to have been deprived of it. Ratio |
I agree with him on the first point but in view of the importance of the question which affects some other statutes and involves a very valuable right, I consider it necessary to express my views upon it. Ratio |
Article 22 is in Part III of the Constitution in a sub chapter headed "Right to Freedom". Ratio |
It is one of three articles immediately following article 19. Ratio |
Under article 19 certain fundamental rights are protected subject to restrictions which may be imposed on those Tights by law. Ratio |
Those restrictions are specified in relation to each of the guaranteed right in the article itself. Ratio |
We are not concerned with the rights or the restrictions because they do not touch the present matter. Ratio |
Article 20 which comes next consists of three clauses which are somewhat inadequately described by the marginal note "Protection in respect of conviction for offences". Ratio |
The first clause gives protection against retroactive penal laws. Ratio |
the second against double jeopardy and the third against testimonial compulsion. Ratio |
We are again not concerned with any of these rights. Ratio |
The next article is a general declaration relating to protection of life and personal liberty. Ratio |
It reads: "21.Protection of life and personal liberty.No person shall be deprived of his life or personal liberty except according to procedure established by law." STA |
It will be noticed that there is no mention here of any particular,nor of the articles that follow. Ratio |
Article 22, with which we are concerned, deals with several matters which are compendiously described in the marginal note as "Protection against arrest and detention in certain cases". STA |
It consists of seven clauses of which cls. (4) to (7) deal with preventive detention and the special requirements of such cases. Ratio |
They need not be considered here. Ratio |
Clause (3) excludes the operation of the first two clauses in respect of alien enemies and persons detained under any law providing for preventive detention. Ratio |
They do not touch our case. Ratio |
This leaves cls.(1) and, (2) which may be quoted here: "22.Protection against arrest and detention in certain cases.No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal... |
Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said pe... |
Articles 21 and 22 in a sense go together but, in my opinion, they cannot be treated as interrelated or interdependent. Ratio |
Article 21 prohibits arbitrary deprivation of life and personal liberty by laying down that these two possessions can only be taken away in accordance with procedure established by law. STA |
No authority ill India (legislative, executive or judicial) can deprive a person of his life or personal liberty unless it can justify its action under a procedure established by law. STA |
Article 21 does not indicate what that law must be nor does article 22 say this. Ratio |
Article 22, no doubt, advances in a way the purpose of article 21, when it specifies some guaranteed rights available to persons arrested or detained and lays down the manner in which persons detained preventively must ,be dealt with, But the force of the declaration in article 21 is much greater than that because it m... |
We are not concerned in this case with arbitrary deprivation of life and personal liberty. Ratio |
The respondents were considered to have committed an offence of criminal trespass and were arrested and tried by procedure established by law. Ratio |
The only defect in that procedure was that they were unable to get assistance of counsel because of a provision of law which they claim to be void by reason of article 22(1). Ratio |
1 proceed to examine the question. Ratio |
Article 22(1) is in two parts and it gives to persons arrested it two fold protection. Ratio |
The first is that an arrested person shall not be detained in custody without being told the grounds of such an arrest and the other is that he shall be entitled to consult and to be defended by a legal practitioner of his choice. Ratio |
article 22(2) gives a third protection and it is that every person arrested and detained in custody must be produced before the nearest Magistrate within 24 hours excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Ratio |
In Ajaib Singh 's case(1) it was held that by "arrest" in the article is meant physical restraint put on a person as a result of an allegation or accusation that he has committed a crime or an offence of a quasi criminal nature or that he has acted in a manner which is prejudicial to the State or public interest. PRE |
It was further held that as arrests under warrants issued by courts almost always indicate the reasons for the arrest and require the person executing the warrant to produce the person arrested Wore the court, such arrests are outside article 22(1) and (2). PRE |
It was thus held that the article was designed to give protection against the act of the executive or other non judicial authority. PRE |
That case arose under the (65 of 1949) under which persons abducted from Pakistan were rescued. PRE |
Such persons were taken in custody and delivered to the custody of an officer in charge of a camp for the purpose of return to Pakistan. PRE |
In deciding that this (1) ; , 248 was not the kind of arrest contemplated by article 22 the court examined what meaning could be given to the word arrest. PRE |
But the Bench guarded itself by observing as follows: ". . . it is not, however, our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection ". PRE |
The case cannot be treated as having laid down the law finally or exhaustively. Ratio |
Similarly, in State of Uttar Pradesh vs Abdul Sammad and Anr.(1) involving arrest and deportation of a person it was held by majority that it was not necessary to produce such a person before the Magistrate if he was produced before the High Court and the High Court remitted the person back to the same custody. PRE |
Mr. Justice Subba Rao dissented with this view. Ratio |
Abdul Samad 's case(1) was also not exhaustive because the majority observed: "In view of the very limited question before us we do not feel called upon to deal with the scope of article 22(1) 22(2) or of the two clauses read together in relation to the taking into custody of a person for the purpose of executing a law... |
I do not see how we can differentiate between arrests of different kinds. PRE |
Arrest is arrest, whatever the reason. PRE |
In so far as the first part of article 22(1) is concerned it enacts a very simple safeguard for persons arrested. PRE |
It merely says that an arrested person must be told the grounds of his arrest. PRE |
In other words, a person 's personal liberty cannot be curtailed by arrest without in forming him, as soon as is possible, why he is arrested. PRE |
Where the arrest is by warrant, the warrant itself must tell him, where it is by an order, the order must tell him and where there is no warrant or order the person making the arrest must give that information. PRE |
However the arrest is made, this must be done and that is all that the first part of article 22(1) lays down. PRE |
I find nothing in article 22(1) to limit this requirement to arrests of any particular kind. PRE |
A warrant of a court and an order of any authority must show on their face the reason for arrest. PRE |
Where there is no such warrant or order, the person making the arrest must inform the person the reason of his arrest. PRE |
In other words, article 22(1) means what it says in its first part. PRE |
I now come to the latter part of article 22(1). PRE |
Here again, the language is extremely clear. PRE |
The words "nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice" refer to a person who is arrested. PRE |
This is the sense of the (1)[162] Supp. 3 S.C.R. 915.249 matter and the grammatical construction of the words. Ratio |
It is contended by Mr. B. Sen that the article only affords a person to get released from arrest and the word 'defended ' means that the person who is arrested has a right to consult a legal practitioner of his choice and to take his aid to get out of the arrest. ARG |
He contends that if a person has already been released on bail either by the authority making the arrest or by an order of the court, the purpose of the article is served and occasion for the exercise of the guaranteed right is over. ARG |
He argued, therefore, that in the present case the section cannot be characterized as unconstitutional because the respondents were not under arrest during their trial Lind they were not in danger of losing their personal liberty in any way since the Nyaya Panchayat had no power to impose a sentence of imprisonment. AR... |
I do not agree. PRE |
As I have stated already a person who is arrested gets three rights which are guaranteed. PRE |
The first is that he must be told why he is arrested. PRE |
This requirement cannot be dispensed with by taking bail from him. PRE |
The need to tell him why he is arrested, remains still. PRE |
The next is that the person arrested must not be detained in custody more than 24 hours without being produced before a Magistrate. PRE |
This requirement is dispensed with when the person arrested is admitted to bail. PRE |
Otherwise it remains. PRE |
The third is that he gets a right to consult and to be defended by a legal practitioner of his choice. PRE |
This is of course, so while the arrest continues but there are no words to show that the right is lost no sooner than lie is released on bail. PRE |
The word 'defended ' clearly includes the exercise of the right so long as the effect of the arrest continues. PRE |
Before his release on bail the person defends himself against his arrest and the charge for which he is arrested and after his release on bail, against the charge he is to answer and, for answering which, the bail requires him to remain present, The narrow meaning of the word "defended" cannot be accepted. PRE |
The framers of our Constitution must have been aware of the long struggle that took place in England before the right to be represented by counsel and to be told the grounds of arrest was established. PRE |
No doubt the Crown was then concerned with traitors and other law breakers and in a desire to put them down denied them these privileges. PRE |
The system then was inquisitorial as against the accusatorial which we have adopted. PRE |
Although the trial was open (which was better than the continental trial behind doors), defence as late as 1640 meant in the words of Sir Thomas Smith(1), a mixture of formality and informality which consisted of an altercation between the accused and the prosecutor and his witness. PRE |
The prisoner was not told what charge he had to meet because lie was not informed why he was arrested and no copy of the indictment was handed to him(1). PRE |
He was closely questioned by the examining (1) De Repubica Anglorum Bk.11 c. 23 quoted by Holdsworth, History of English Law Vol.IX, p. 225.(2) Stephen: History of Criminal Law Vol.P.325, 330 31.250 Magistrate and then by the Judge at the trial and the prosecuting counsel. PRE |
Thus it was that Throckmorton, as an accused, was first subjected to lengthy cross examination and had to argue even points of law in which at least he got the better of the Judge and the King 's counsel and secured a verdict of not guilty from the jury. PRE |
It is, of course, a matter of history, which is well known, that the jury were themselves punished(1). PRE |
Sir Walter Raleigh was also denied assistance of counsel and was cross examined by Popham C.J. without being warned or confronted with witnesses whose statements were used against him(1). Ratio |
College had legal advice but he fared no better because at the trial his papers containing instructions for his defence were taken away from him on the ground; that this would be tantamount to getting assistance from counsel(1). Ratio |
By an Act of 1695 only persons accused of high treason were given assistance of counsel and by 6 and 7 William IV, c. 114 (in the year 1837) the Prisoners ' Counsel Act gave persons accused of felony the right to be defended by counsel. Ratio |
This history of English law makes it clear that the right to be defended by counsel and to be informed the reason for arrest is not an empty declaration coming to an end with release on bail. Ratio |
Nearer to our times we have the example of the United States of America. Ratio |
Right to counsel is considered so fundamental to a criminal trial that the Supreme Court of the United States ruled that there was a mistrial when Clarence Gideon could not afford a counsel and the State did not furnish one to him. Ratio |
Clarence Gideon was not charged with anything more serious than "the crime of breaking and entering with the intent to commit a misdemeanor, to wit, petty larceny". Ratio |
In the American Constitution there is no provision that an accused has a right to counsel but the Supreme Court stretched the due process clause to cover such a case. Ratio |
It is significant that at the retrial, with counsel, Gideon was acquitted of the charge on which he was first convicted. Ratio |
No doubt this was considered by the, Supreme Court of America from the point of legal aid to persons accused of crime and our laws view legal aid differently. Ratio |
Under our jurisdiction providing counsel to an accused who cannot afford one (,except in capital cases) is not a right. Ratio |
Our law in respect of legal aid is similar to that declared by the Lord Chief Justice of England in Reg.vs Howes(1) who pointed out that the right to be defended by counsel is (in all save murder and treason cases) one ultimately for the discretion of the court to confer or deny. Ratio |
North C.J.after examining the papers said "forthat which contains the names of the witnesses,that you have again for other matters, the instructions in point of law, if they had been written in the first person, in your own name, that we might believe it was your writing, it would have been something; but when it is wr... |
As we are not concerned with legal aid I need not say more but it is at least clear that when our Constitution lays down in absolute terms a right to be defended by one 's own counsel it cannot be taken away by ordinary law and it is not sufficient to say that the accused who was so deprived of this right, did not stan... |
If he was exposed to penalty, he had a right to be defended by counsel. Ratio |
If this were not so then instead of providing for punishment of imprisonment, penal laws might provide for unlimited fines and it would be easy to leave the man free but a pauper, and, that too without a right to be defended by counsel(1). Ratio |
If this proposition were accepted as true we might be in the Middle Ages. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.