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Friday, September 30, 2011

Q. What are the constitutional provisions with respect to protection during the custody of persons under general laws?

Q. What are the constitutional provisions with respect to protection during the custody of persons under general laws?
Ans. The Sections (1) and (2) of Article 22 provide the following protection to persons in custody under the general process of law—
(1) The person in custody should be informed, as soon as possible about the grounds of taking such persons in custody.
(2) Such person has the right to seek legal remedies and o consult the legal practitioner of his choice.
(3) 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.
(4) Every person who is detained beyond 24 hours without being prod uced to the nearest court has the right to be freed from such custody.
In Madhya Pradesh Vs.
Shobharam case (1966), the Supreme Court decided that the right to know the grounds of arrest continues even after the person is released on bail after such arrest. In Tarpad Vs. State of West Bengal case (1951), the court ruled that if there is delay in informing the arrested person the grounds of such arrest, there must be reasonable cause for such delay.
In terms of the rulings of the Supreme Court in Hussain Arra Khatton Vs. State of Bihar, if a person is unable to bear the expenses of hiring a legal practitioner, such person has the right to avail free legal aid. And if the free legal aid is not made available o such person, it would be considered as violation of Article 21. However, a formal request is necessary by such person to avail free legal aid.
It should be mentioned that the time taken in journey in producing a detained person before the nearest court is not counted in the prescribed period of 24 hours. If the arrested person is released on bail within the period of 24 hours, there is no binding to produce such a person before the nearest court within a period of 24 hours of his arrest.
The following two categories of persons are not entitled to get the protections during detention, which are available under Article 21(1) and (2).
(1) Persons arrested or detained under preventive detention measures.
(2) A person who for the time being is an enemy alien.

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