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Report No. 152

3.4. Article 22.-

Article 22(1) and 22(2) of the Constitution are also relevant for the present purpose, because one of their objects is to ensure that certain checks exist in the law to prevent abuse of the power of arrest and detention. Article 22(1) provides that no person who is arrested shall be detained in custody without being informed as soon as may be of the ground for such arrest, nor shall he 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 choice.

Article 22(2) provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

Both the provisions referred to above, have a vital importance to the theme of the present Report. The right to consult a lawyer is intended to enable the detained person, inter alia,

(a) to secure release, if the arrest is totally illegal,

(b) to apply for bail, if the circumstances so warrant,

(c) to prepare for his defence, and

(d) to ensure that while he is in custody, no illegality is perpetrated upon him.

The right to be produced before a Magistrate under Article 22(2) is intended, inter alia, to ensure that:

(i) there will be an independent scrutiny of the legality of the detention,

(ii) there will be an adequate and defective opportunity for seeking release on bail, and

(iii) there will be available an avenue where the person detained can ventilate his grievance that he might have against the treatment meted out to him in custody.

Realising the essential connection between the provisions of Articles 22(1) and Article 22(2), the courts have held that the provisions of clauses (1) and (2) of Article 22 are mandatory.1

1. Gopalan v. State of Madras, 1950 SCR 88; Hansmukh v. State of Gujarat, AIR 1981 SC 28; Statement of Madhya Pradesh v. Shobhram, AIR 1968 SC 1910 (1917).

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