Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSIY

CONSTITUTIONAL LAW
TITLE:-
“CONSTITUTIONAL PROTECTION GIVEN TO
AN ARRESTED PERSON”

SUBMITTED TO- SUBMITTED BY-

Prof. Atul Kumar Tiwari KAVERI MISHRA
Constitutional Law 230101068
RMLNLU, Lucknow B.A.LLB.(Hons.) 2 nd yr
Semester III

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 DECLARATION

I hereby declare that the project CONSTITUTIONAL

PROTECTION GIVEN TO AN ARRESTED PERSON
submitted by me to Dr. Ram Manohar Lohiya National Law
University, Lucknow, Uttar Pradesh in partial requirement for
the award of the degree of B.A. L.L.B(Hons.) is a record of
bonafide project work carried out by me under the work
reported in this project has not been submitted, and will not be
submitted either in part or in full, for the award of any other
degree or diploma in this institute or any other university.

Kaveri Mishra

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 ACKNOWLEDGEMENT

I have taken a lot of efforts for this project. However, this

would not have been possible without the kind support and
help of many individuals. I owe a great many thanks to many
people who helped and supported me during the writing of
this project: CONSTITUTIONAL PROTECTION GIVEN
TO AN ARRESTED PERSON I express my deep gratitude to
my teacher for the subject Prof. Atul Kumar Tiwari for giving
me his exemplary guidance, monitoring and constant
encouragement throughout the project. Words are inadequate
in offering my deep sense of gratitude for his precious
guidance.
I would like to express my gratitude towards my parents for
their kind support and encouragement which helped me in the
completion of this project. My thanks and appreciations also
go to my colleagues in developing the project and people who
willingly helped me out with their abilities. I would also like
to thank the librarians of Dr. Madhu Limaye Library who
extended their assistance to me by helping me out consult the
relevant books.

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 Contents
DECLARATION BY CANDIDATE ................................................................................................. 3
ACKNOWLEDGEMENT .................................................................................................................... 4
1. INTRODUCTION ............................................................................................................................. 5
2. RIGHT TO BE INFORMED ABOUT THE GROUNDS OF ARREST .......................................... 6
3. THE RIGHT TO BE CONSULTED AND BE REPRESENTED BY LAWYER OF ONE’S
CHOICE. ........................................................................................................................................... 8
4.THE RIGHT TO BE PRODUCED BEFORE A MAGISTRATE WITHIN 24 HOURS ................ 10
5. FREEDOM FROM DETENTION BEYOND THE SAID PERIOD ............................................. 11
6. CONLCUSION ................................................................................................................................ 12
7. BIBLIOGRAPHY ............................................................................................................................ 13

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 1.INTRODUCTION
One of the basic tenets of our Indian legal system is the benefit of presumption of innocence. The
accused shall be treated as an innocent until he is found guilty. In the same way, Indian constitution
has also upheld rights for an arrested person. The constitution of India plays an extremely
significant role in the safeguard of these rights and upholding the same in the court of law. Among
the rights granted by the supreme authority of the nation, the fundamental rights are the basic and
prime ones that can be enjoyed by each citizen of the state and any infringement of these rights are
subject to judicial review1. Through article 21 and 22 liberty to an individual is upheld in the form
of personal liberty and preventive detention. The right to life and personal liberty granted by Article
21 of the Constitution goes hand in hand with Article 22 as both talks about the liberties provided
to the citizen and some of the exceptional circumstances under which these rights are unavailable
or restricted. But over-all the laws of India that is constitutional, evidentiary and procedural have
made elaborate provisions for safeguarding the rights of the arrested person with the view to protect
his dignity and give him benefits of a just fair and impartial trial2.
Clause (1) and (2) of the constitution Article 22 guarentee four rights on a person who is arrested for
any offense under an ordinary. They are:-
a) The rights to be informed ‘as soon as may be’ of grounds of the arrest.
b) The right to be consulted and be represented by lawyer of one’s choice.
c) The right to be produced before a magistrate within 24 hours.
d) The freedom from detention beyond the said period except by the order of the magistrate.
The above-mentioned fundamental rights guaranteed to arrested persons are available to both
citizens and non-citizens and not to any persons arrested and detained under any law providing for
preventive detention. Now let us look at each of these rights, the provision under which it is
mentioned, famous case laws regarding the same and their analysis.

1
Rachit Garg, Article 22: Significant or paradoxical? (18th August 2021) Available at
https://blog.ipleaders.in/article-22-significant-paradoxical/#Introduction
2Kishor Singh v. State of Rajasthan, 1981 AIR 625.

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 2. RIGHT TO BE INFORMED ABOUT THE GROUNDS OF ARREST
Article 22 (1) of the constitution reads as follows- “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 practitioner of his choice3.” The first
part of the article 22(1) makes up the first and one of the primary right available to an arrested
person. The major object of the right to be informed of the grounds of arrest is to enable the person
to make an application to the appropriate court for bail, or to move the court for a writ of habeas
corpus, as well as to prepare his defence in time for his trial4. Sufficient particulars must be
furnished in a language understood by the person so that the arrested person may understand why
he has been arrested5. It is to be noted that a mere information to the arrested person that ‘he is
been arrested’ without giving any explanation of any alleged acts for which such action has been
taken against him, is considered not to be a sufficient compliance within article 22(1) of the
constitution.
Another important point that has to be considered is the meaning and ambit of the words ‘as soon
as may be’ under article 22(1). The words 'as soon as may be' have been held to mean as early as
is reasonable in the circumstances of the case, though it has been said that no definite period of
time can be laid down as reasonable in all case6. Another interesting point that has to be noted is
the informing the ground of arrest shall play a pivotal role during the hearing of a writ of Habeas
Corpus. In a proceeding for the writ of habeas corpus, the court can pronounce as to whether the
arresting authority has communicated the grounds of detention ‘as soon as possible’, and if it finds
that a reasonable time has already passed and the arrested person has not yet been informed of the
grounds of his arrest, it can order his immediate release7. Since in habeas corpus proceeding the
material date for determining the validity of the detention is the date of return, it was held that if
the court finds that a reasonable time for communicating the grounds had expired before the date
of the return, a communication subsequent to the return cannot save the detention of the petitioner
from invalidity, for the detention became invalid as soon as the reasonable time expired 8.

3 INDIA CONST. Art.22(1).

4 Vimal Kishore v. State of U.P, A.I.R 1956 AII 59.

5 Harikishan v. State of Maharashtra, A.I.R 1962 S.C.

6 Tarapada De v. State of West Bengal, A.I.R 1951 174.

7 State of Bombay v. Atma Ram, 1957 S.C.R 167.

8 State of Bombay v. Atma Ram, 1957 S.C.R 167.

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In Joginder Kumar v. State of UP 9 the supreme court has laid down guidelines governing arrest of
a person during the investigation. This is intended to strike down balance between the needs of
police on one hand and the protection of human rights of citizens from oppression and injustice at
the hands of law enforcing agencies. The court also has held that a person is not liable to arrest
merely on the suspicion of complicity in an offense. There has to be some reasonable justification
in the opinion of the police officer effecting the arrest that such arrest was necessary and
unjustified. When a person arrested without warrant alleges by affidavit that he was not
communicated with full particulars of the offence leading to his arrest in the face of such affidavit,
the police diary cannot be perused to verify the police officer's claim of oral intimation of such
particulars. Even if such oral communication was made, whether full particulars were
communicated not being known the arrest and detention of the person is illegal 10. The national
police commission in its third report has pointed out the powers of the police of arrest and has
created number of rules that has to be followed by the police while making an arrest. Significant
importance is given to article 22 and its requirements in this report 11. The court has said that even
though these conditions and requirements are not exhaustive, the police shall follow the same and
the DGP of each state shall issue necessary instruction requiring due observance of this
requirement. Now that we have looked into the first available to an arrested person we shall
proceed to look at the 2nd right provided under article 22(1) of the constitution.

9
Joginder Kumar v. State of UP, (1994) 4 SCC 260.

10 10 Ajith Kumar v. State of Assam, 1976.

11 Dr. JN Pandey, CONSTITUIONAL LAW OF INDIA, 380 (57th ed., 2020).

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 3. THE RIGHT TO BE CONSULTED AND BE REPRESENTED BY LAWYER OF
ONE’S CHOICE.
The second right provided under this article12 is the right to consulted and represented by the
lawyer of one’s own choice. The court has clearly held that the person arrested has a right to consult
a legal advisor of his choice as soon as he is arrested and also to have an interview with his lawyer
out of the hearing of the police13. However, this article does not guarantee any absolute right to be
supplied of a lawyer by the state14. Another important point that has to be noted is this article does
not give right to engage a lawyer who is disabled or debarred under the law15. The right guaranteed
is only to have the 'opportunity' to engage a competent lawyer of one's choice. But where a trial is
held without informing the accused of the date fixed for trial and without giving him an opportunity
of getting into communication with his legal advisor the conviction is liable to be set aside 16. In
NandiniSathpathy v. P.L.Dhani17 , it was observed that the spirit and sense of Art.22 (1) is that it
is fundamental to the rule of law that the services of a lawyer shall be available for consultation to
any accused person under circumstances of near custodial interrogation. The Court however,
clarified that the lawyer cannot harangue the police, but may help his client and complain on his
behalf. The right to consult and be defended by a legal practitioner is not to be interpreted as
sanctioning or permitting the presence of a lawyer during police interrogation. The role of a lawyer,
as per our legal system, mainly focuses on court proceedings.
Maneka Gandhi judgement18 saw a revival in the view of the court. Prior to the said judgement,
the view of the court was that it was not bound to provide the help of a lawyer unless a specific
request was made. But after this judgement and number of other precedents which followed the
same pattern, the court was bound to provide assistance of a lawyer to a person arrested under
ordinary law also. Another important principle that has to be noted is that the right to counsel is
not limited only to the persons arrested, but can be availed of by any person who is in danger of

12 INDIA CONST. Art. 22(1).

13Moti Bai v. State, A.I.R 1954 Raj.

14Janardhan v. State of Hyderabad, (1951) S.C.R 344.

15Public Prosecutor v. Venkata, A.I.R 1961 A.P 105.

16Hansraj v. State, A.I.R 1956 AII 641.

17Nandini Sathpathy v. PL Dani, 8 (1978) 2 SCC 424.

18Maneka Gandhi v. Union of India, AIR 1978 SC 597.

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losing his personal liberty19. To understand the ambit of Article 22(1) we can take the example of
Ajmal Kasab’s case20, the accused here was a Pakistani national and was offered a lawyer at the
time of his arrest but he denied. Thereafter he made a request for a lawyer from his home country.
When he was convinced that no aid would be given from, the demand for lawyer was made by him
and was immediately provided with one. Here it cannot be said that the constitutional right of the

19State of MP v. Shobhram and ors, AIR 1966, S.CR 345.

20Mohammed Ajmal Mohammed Amir Kasab alias Abu Mujahid v. State of Maharashtra, AIR 2012 SC 3565.

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 4.THE RIGHT TO BE PRODUCED BEFORE A MAGISTRATE WITHIN 24
HOURS
Another important protection provided to an arrest person is that he must be produced before the
magistrate within 24 hours of his arrest. The said protection is available under article 22(2) of the
constitution. It is as follows 21- “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 period without the authority of a
magistrate.” It can be extended beyond 24 hours only under judicial custody. It affords a
possibility if not an opportunity, for immediate release in case the arrest is not justified. This
provision is not to be treated as a mere formality. Its purpose is to enable the person arrested to be
released on bail, or other provision made for his proper custody, while the investigation is pending
for the offences with which he is charged pending an enquiry or trial22. Clause 2 of Article 22 not
only confirm but also liberalizes the provisions contained in section 61 of the Code of Criminal
Procedure by extending this right also to the person arrested and detained pursuant to a warrant
duly issue by magistrate23. It is also held that if the twenty-four hours have passed without
compliance with the requirement of the clause, the arrested person is entitled to be released
immediately24. It is certain from the words 'within twenty-four hours of such arrest' that the right
to be produced before a magistrate arises as soon as a person is arrested, and a compliance with
the clause at any-time afterwards does not satisfy the constitution25.
In another case it was held that the words 'nearest magistrate' refers to a magistrate acting in a
judicial capacity, as under section 167 of the Criminal Procedure Code. Hence when a person is
arrested under section 64 of the Code, read with U.P. Social Disability Act, the arrested person
must be produced before such a magistrate26. Thus, the producal before the magistrate is utmost
important and also it has to followed thoroughly. Failure to produce before the magistrate within 24
hours might lead to the release of the arrested person. All in all, the police should adhere to the rules
as it is important in protecting the fundamental right of the arrested person as well as in conducting a
fair process.

21
21 INDIA CONST. Art. 22(2).
22
State of UP v. Abdul Samad, A.I.R 1954 AII 601.
23
Gunupati Keshavram Reddy v. Nasiful Hasan & State of UP, AIR 1954 SC 636.
24
Harharanand v. Jailor, A.I.R 1954 AII 601.
25
State of U.P v. Abdul Samad, A.I.R 1962 SC 1506.
26
Eshaw V. State of U.P, A.I.R 1957 AII 782.

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 5. FREEDOM FROM DETENTION BEYOND THE SAID PERIOD
The second part of the article 22(2) reads-… “no such person shall be detained in custody beyond
the said period without the authority of a magistrate.” Now this is an essential right for the
protection of an arrested person. Article 22 is designed to give protection against the act of the
executive or order of non-judicial authorities and applies to a person who has been accused of a
crime or of offense of criminal or quasi-criminal nature or some act prejudicial to the state or public
interest 27. If there is a failure to produce the arrested person before the nearest magistrate within
twenty-four hours it would make the arrest illegal. In State of Punjab v. Ajab Singh28 the supreme
court held valid the abducted person (recovery and restoration) act 1949, under which an abducted
person could be arrested and delivered to the officer-in-charge of the nearest camp. The arrest of
an abducted person under the act was held not to constitute arrest and detention because the person
was not accused of any offence of a criminal or quasi criminal nature29.

The supreme court has laid down detailed guidelines governing arrest of an accused person when
investigation cannot be completed within 24 hours30. The court has held that when a person is
arrested under section 57 of Cr.P.C he should be produced before the nearest magistrate within 24
hours. The judicial magistrate can authorise the detention of the accused in such custody, i.e either
police, or judicial from time to time but the total period of detention in the police custody after the
expiry of first 15 days, the further remand can only be in judicial custody. There cannot be any
detention in the policy custody after the expiry of first 15 days.

Over all the court has made the point clear by highlighting that an arrested person has to be released
from detention immediately after completion of 24 hours. Anything failing the time zone shall
make the arrest illegal and will lead to immediate freedom of the arrested person.

27
Supra 10 at 382.
28
State of Punjab v. Ajab Singh, AIR 1953 SC141.
29
B.P Srivastava, Right against arbitrary arrest and detention under article 9 of the covenant as recognized and
protection under Indian law, 11 JILI, 29 45 (1969).
30
C.B. I v. Anupam J.Kulkarni, (1992) 3 SCC 141.

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 6. CONLCUSION
The provision which safeguards the rights of the arrested person play a significant role in the
upholding the fundamental rights. The fundamental rights of the individual are the most precious
rights in our constitution. They are termed as the ‘heart and soul of the constitution’. Rights of an
arrested person are to be upheld as India has been a staunch follower of the principle of innocent
until found guilty. Protecting the rights of an arrested person go a long way in administration of
justice as well. This well help in safeguarding the credibility of the justice delivery mechanism and
ensuring smooth running mechanism. Through this paper the researcher has tried to analyse the
rights available to the arrested person. The paper presents the rights through analysis of number of
judicial pronouncements that have guaranteed the protections and also explained the application
of the same.

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 BIBLIOGRAPHY
Cases
1. Ajith Kumar v. State of Assam, 1976 CriLJ1303. ............................................................9
2. C.B. I v. Anupam J.Kulkarni, (1992) 3 SCC 141............................................................ 14
3. Eshaw V. State of U.P, A.I.R 1957 AII 782. .................................................................. 12
4. Gunupati Keshavram Reddy v. Nasiful Hasan & State of UP, AIR 1954 SC 636 ........... 12
5. Hansraj v. State, A.I.R 1956 AII 641. ............................................................................ 10
6. Harharanand v. Jailor, A.I.R 1954 AII. 601 .................................................................... 12
7. Harikishan v. State of Maharashtra, A.I.R 1962 S.C .........................................................8
8. Janardhan v. State of Hyderabad, (1951) S.C.R 344 ....................................................... 10
9. Joginder Kumar v. State of UP, (1994) 4 SCC 260...........................................................9
10. Kishor Singh v. State of Rajasthan, 1981 AIR 625 ...........................................................7
11. Maneka Gandhi v. Union of India, AIR 1978 SC 597. ................................................... 10
12. Mohammed Ajmal Mohammed Amir Kasab alias Abu Mujahid v. State of Maharashtra,
AIR 2012 SC 3565 ........................................................................................................ 11
13. Moti Bai v. State, A.I.R 1954 Raj. 24............................................................................. 10
14. Nandini Sathpathy v. PL Dani, 8 (1978) 2 SCC 424. ...................................................... 10
15. Public Prosecutor v. Venkata, A.I.R 1961 A.P 105 ........................................................ 10
16. State of Bombay v. Atma Ram, 1957 S.C.R 167 ..............................................................8
17. State of MP v. Shobhram and ors, AIR 1966, S.CR 345. ................................................ 11
18. State of Punjab v. Ajab Singh, AIR 1953 SC141. ........................................................... 14
19. State of U.P v. Abdul Samad, A.I.R 1962 SC 1506. ....................................................... 12
20. State of UP v. Abdul Samad, A.I.R 1954 AII 601 .......................................................... 12
21. Tarapada De v. State of West Bengal, A.I.R 1951 174 .....................................................8
22. Vimal Kishore v. State of U.P, A.I.R 1956 AII 59............................................................8

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