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Article 22 of the constitution of India speaks about the Protection from arrest and detention in specific situations
There are different conditions which have to be followed before arresting or detaining a person. Let’s discuss the various situations u/a 22 of the Indian Constitution.
- It provides protection against arrest and detentions in specific cases.
- In the event of an arrest, this article offers important procedural protections for people.
- This right is intended to stop arbitrary detention and arrest.
The following safeguards are mentioned in Article 22.
(1). Any person who is in custody has to be informed as to why he has been arrested. Further, he cannot be denied the right to consult an advocate.
(2). the arrested individual should be produced before a judicial magistrate within 24 hours of his arrest.
(3). these above two safeguards would not be applicable to enemy aliens or people arrested under any prevention detention law.
JOGENDER KUMAR V. STATE OF UTTAR PRADESH
Facts of the Case: The petitioner was called on by the SSP for some enquiry in the Police Station. The petitioner along with his brother goes to the police station after enquiry police kept the petitioner in his custody. Subsequently, the petitioner’s brother along with his relatives goes to the police to enquire about the well-being of his brother. They discovered that the petitioner had been transported to an unnamed location.
The police officers claimed that because the advocate was collaborating with them in a kidnapping case, he had been released and there had been no justification for keeping him in custody.
ISSUES: When and on what grounds can an arrest be made?
JUDGEMENT: The Hon’ble Apex Court had extensive discussions over a number of laws and reports. It was said that no arrests could be made because doing so would be legal for the police officer. Unless the crime is a serious offence, the officer making the arrest must have a good reason for believing that the arrest is necessary and justifiable.
Additionally, it was requested that the departmental guidelines be updated to state that a police officer making an arrest must also note the circumstances of the arrest in the case diary.
Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar
Facts of the Case: The writ of habeas corpus was filed before the Supreme Court regarding the release of 17 under-trial convicts which were disclosed in the Bihar newspaper. The government of Bihar then asked to reveal the year-by-year disintegration of under-trial inmates.
- Whether right to quick trial shall be included in Article 21 of the constitution?
- Whether it is permissible to require the provision of free legal representation?
Judgment: The apex Court rules out that all the 17 under-trial detainees have to be released as their detention is illegal and a violation of Article 21 of the constitution because they had already served more time in jail than the maximum period for which they should have been charged.
The State Government should appoint a lawyer at its own expense to file a bail application on behalf of under-trial detainees accused of crimes that are eligible for bail when they are brought before the Magistrates on subsequent remand dates. This will limit remand and enable a speedy trial to start.
D.K. BASU V. STATE OF WEST BENGAL
Facts of the Case: DK Basu was an Executive Chairman of the Legal Aid Sevices, WB. He filed a letter before the Supreme Court of India regarding custodial deaths in police custody and lockups published in a newspaper. His letter was treated as Writ Petition within the scope of PIL.
- Whether it is necessary to make guidelines for arrest and custody of the detained person?
- Whether police officers can be made liable for the custodial death of the detenue?
- Whether violations of Article 21 of the Detenu include deaths and violence committed while in custody.
- The Apex Court opined that, according to Article 21, prisoners and detainees should not be deprived of their fundamental rights, and only legal limitations may be placed on their exercise.
- It is the duty of the Police to inform relatives or friends of the arrested person within 8 to 12 after the arrest.
- The arrestee has a right to consult with their advocate even during interrogation.
- Non-compliance with these procedures by the police would result in contempt of court proceedings and liability thereto.
ARNESH KUMAR V. STATE OF BIHAR & Anr
Facts of the Case: The wife of the petitioner made an allegation of dowry against the petitioner and his parents for demanding a car, TVs, cash etc..,. And she was forced out of the home due to non-fulfilment of the demand. Subsequently, the petitioner filed an application for anticipatory bail before the court which got rejected by the session Judge and after that by the High Court.
- Whether if someone is suspected of committing a crime that is punishable by law, is an arrest necessary as a result of a complaint?
- Whether the appellant to be given anticipatory bail?
In the following case, the Supreme Court opined that the quickest way to harass the husband and his parents are section 498-A of IPC. Therefore, SC laid down the guidelines for police which has to be duly followed before arresting a person.
- An arrest should be made after checking the parameters laid down in section 41, Cr. PC. A police officer shall furnish proper reasons for the arrest before the Magistrate for further detention.
- The concerned Police officers will be subject to departmental action for failing to follow the aforementioned instructions, but they will also be subject to punishment for contempt of court, which will be brought before the High Court with territorial jurisdiction.
- A person accused of committing an offence punishable by imprisonment for a term that may be less than or greater than 7 years with or without a fine cannot be arrested by a police officer unless the officer is satisfied that the person has committed the offence. This is made clear by Sections 41 and 41A of the Criminal Procedure Code.
Nandini Satpathy V. P.L. Dani
Facts of the Case: The appellant, in this case, was the former CM of Orissa who has definite charges of corruption and during the enquiry, he refused to answer the questions claiming it is his right under article 20(3) of the Constitution. Subsequently, the appellant was made liable u/s 179 of IPC, for not giving the answers to the questions.
He challenges the verdict of the court before the High Court but HC refused to provide relief, which results in an appeal under article 132(1) of the Constitution before the Supreme Court by the Appellant.
- What does the vague phrase “compelled to be a witness against himself” that appears in section 20(3) of the constitution mean?
- What restrictions does the Criminal Procedure Code’s Section 16(2) impose?
- Does having evidence “written against oneself” involve a provable probability of guilt resulting from the response or a testimony inclination to incriminate?
The court determined that the pleader had to have committed an offence in order to utilize Article 20(3), as well as that he had to respond to his offensive queries, and that a woman had to be present as a witness. His testimony is impacted by the police station’s violation of section 160(1) of Crpc, and he is protected from being forced to answer inappropriate questions during the course of the investigation by section 161(2) of Crpc and Article 20(3) of the Constitution.
NAND LAL BAJAJ V. STATE OF PUNJB & ANR.
Facts of the Case: The issue of the case is that the defendant engaged in a particular form of black marketing for which he was arrested and held without receiving legal counsel in accordance with Section 11 of the statute. Petitioner again requested the Advisory Board for legal assistance which was rejected. It was awaited from the Advisory Board to act in a fair manner but they madly followed sec 11(4) of the Prevention of Black-Marketing Act and Maintenance of Supplies of Essential Commodities Act, 1980.
- Whether the right to be consulted and get legal assistance to exist with the accused or not?
- Whether a person arrested under Section 11 of the Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act, 1980, can request legal assistance?
In this decision, the Supreme Court referred to the Kavita v. State of Maharashtra& Ors, where it was held that legal assistance has to be provided u/s 11(4) of the said act.
That each case will determine whether a person has the right to legal protection and defence. In this instance, neither the detenue nor the advisory board had the procedural protections of Article-21, nor did Kavita have the right to legal representation because her imprisonment was carried out in accordance with Section 8 of the Act.
It is obvious that a detainee in such a situation cannot receive legal counsel, but it would also be unfair if the State received legal counsel. Given the severe flaw in the situation, further detention will be viewed as unlawful.
A.K. GOPALAN V. STATE of MADRAS
Facts of the Case: The petitioner was detained under the Preventive Detention Law; therefore he filed a writ of Habeas Corpus u/a 32 of the Constitution before the Supreme Court of India.
- Whether the detention of the petitioner is violates article 22 of the constitution?
- Whether the sec 7, and 8,9,10 of the act violate articles 13, 19, and 21 of the constitution?
Firstly, the Apex court declared that his detention does not violate article 22 because the arrest is clearly done with the “procedure established by law”.
Secondly, SC further opined that the relevant sections 7, 8, 9, and 10 are not invalid. Hence, SC declared that the said detention is legal.
Article 22 of the Indian Constitution cannot be regarded as perfect law as many debates and discussions had been held upon this article.
A person’s right to free speech, expression and life may be restricted under this law, and Parliament alone has the power to enact laws because it may make decisions that are arbitrary, contrary to the interests of the general public, and only if they go against the wishes or expectations of the state’s ruling party.
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