iminal Appeal No 20 of 1965
Appeal from the Judgment and order dated July 9 1964 of the Madhya Pradesh High Court in Criminal Revision No 166 of 1963
241 BSen and 1
N Shroff for the appellant
BD Sharma for the respondents
AV Rangam for Intervener No 1
VA Seyid Muhammad Advocate General Kerala B R L Iyengar A G Pudessery and M R K K Pillai for Intervener No 2
B R G K Achar for intervener No 3 The Judgment of SARKAR CJ and MUDHOLKAR J was delivered by SARKAR CJ
The Judgment of BACHAWAT and SHELAT JJ
was delivered by BACHAWAT J HIDAYATULLAH J delivered a dissenting Opinion
Sarkar CJ
On a complaint of trespass the police registered a case against the respondents under section 447 of the Penal Code
The respondents were later arrested by the police and released on the execution of surety bonds whereby the sureties undertook to produce them as required by the police
The case against the respondents was thereafter put up before the Nyaya Panchayat a court established under the Madhya Bharat Panchayat Act 1949
In  hat court fresh bonds were executed by sureties on behalf of the respondents to ensure their presence during the trial
The Nyaya Panchayat after trial convicted and sentenced the respondents to a fine of Rs 75 each
The conviction was upheld by the Additional Sessions Judge Barwani
The respondents then moved the High Court of Madhya Pradesh in revision which set aside the conviction
Hence the present appeal
Section 63 of the Panchayat Act provides that no legal prac titioner shall appear on behalf of or shall plead for or defend any party in any dispute case or proceeding pending before the Nyaya Panchayat
The High Court observed that in view of the provisions of article 221 of the Constitution the section was void in respect of persons who were arrested
As the respondents had been arrested it set aside their conviction
The question in this appeal is whether the section violated article 221
That provision has to be considered along with article 21 of the Constitution and both are set out below article 21No person shall be deprived of his life or personal liberty except according to procedure established by law
article 221No 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 choice
It seems to us fairly clear that a person arrested has the constitutional right to consult a legal practitioner concerning 242 his arrest
It is also clear that a person arrested has the constitutional right to be defended by a legal practitioner
But against what is he to be defended
We think that the right to be defended by a legal practitioner would include a right to take steps through a legal practitioner for release from the arrest
Now section 63 of the Act puts no ban on either of these rights
It cannot be said to be invalid as denying these rights
We may add that the Act is not concerned with arrest and gives no power to arrest
But is the right to be defended by a legal practitioner conferred only on a person arrested We do not think so
In our opinion the right to be defended by a legal practitioner extends also to a case of defence in a trial which may result in the loss of personal liberty
On the other hand in our view where a person is subjected to a trial under a law which does not provide for an order resulting in the loss of his personal liberty he is not entitled to the constitutional right to defend himself at the trial by a legal practitioner
The reason is that articles 21 and 22 of the Constitution are concerned only with giving protection to personal liberty
That is strongly indicated by the language used in these Articles and by the context in which they occur in the Constitution
That also appears to be the view which has been taken by this Court
Thus in State of Bombay vs Atma Ram Sridhar Vaidya1 Das J as he then was observed    the implication of that article article 2 1 was that a person could be deprived of his life or personal liberty provided such deprivation was brought about in accordance with procedure enacted by the appropriate Legislature
Having so provided in article 21 the framers of our Constitution proceeded to Jay down certain procedural requirements which as a matter of constitutional necessity must be adopted and included in any procedure that may be enacted by the Legislature and in accordance with which a person may be deprived of his life or personal liberty
Those requirements are set forth in article 22 of the Constitution
It would follow that the requirement laid down in article 221 is not a constitutional necessity in any enactment which does not affect life or personal liberty
Now we find that the Act expressly provides that the Nyaya Panchayat cannot inflict a sentence of imprisonment not even one in default of payment of fine which it is authorised to impose
We also find that the Act does not give any power of arrest
The case against the respondents was one in which in the first instance a summons and not a war ant could issue and therefore no arrest was inevitably necessary
The arrest if any that could 1 19151 SOR 167204243 be made if a warrant came to be issued would have been under the Code of Criminal Procedure and not the Panchayat Act
The Act does not lay down any procedure or law entailing or justifying an order depriving a person of his personal liberty
For such a law the procedural requirement in article 221 is not a constitutional necessity
The Act does not violate article 221 and cannot be held to be invalid on that ground
It is true that in this case the respondents had been arrested but they had been arrested not under the Act but under section 541 of the Code of Criminal Procedure the offence being cognizable
A cognizable offence when tried by any of the courts created by the Code is punishable with imprisonment
But the Code by section 340 entitles an accused person to be defended by a lawyer
We are however not concerned in this case with a trial by a court created by the Code
The question in this appeal is whether the Panchayat Act is invalid
The Act does not deprive any arrested person of his constitutional right to take steps against the arrest or to defend himself in a trial which might occasion the loss of his personal liberty
It takes away no constitutional right at all
Can the fact that the respondents were arrested under an other law and thereafter tried under the Act give them the constitutional right to be defended at the trial by a legal practitioner We do not think so
We think it clear that it cannot be said that the fact of arrest gives the arrested man the constitutional right to defend himself in all actions brought against him
Take the case of these respondents
Suppose that after the arrest an action was started against them for recovery of damages for wrongful trespass
Could they say that in view of article 221 they had a constitutional right to appear by a legal practitioner in that action
Could they say that if the law under which the trial was held denied the right to be represented by a legal practitioner
it was invalid as offending article 221
We suppose the answer must plainly be in the negative
It would follow that it is not the fact of the arrest itself that gives the right to be defended by a lawyer in all matters
We may put the matter from a different point of view
Assume a case in which a law creating an offence provides that on conviction a person shall be sentenced to a certain term of imprisonment but states that it shall not be necessary to arrest the person accused of that offence before he is put up for his trial
We should suppose that in such a case the person would be entitled to the constitutional right of being defended at the trial by a legal practitioner and any provision that denies that right to him would be void as violating article 221
We think this would be in consonance with the decision of this Court in Atma Ram Sridhar Vaidya s case1
We do not think that the Constitu 1  244 tion could have intended that a person who ran the risk of loss of personal liberty as a result of a trial would not have the right to defend himself by a legal practitioner at the trial because he had not been arrested
There would be no principle to support such a view
Likewise we do not think that the Constitution makers intended that a person arrested would have the right to be defended by a legal practitioner at a trial which would not result in the deprivation of his personal liberty
He of course had the right to seek relief against the arrest through a legal practitioner
We would interpret the words nor shall he in article 22 as not being confined to a person who has been presently arrested but also as including a person who though not arrested runs the risk of loss of personal liberty
It seems to us that we would thereby be carrying out the spirit of the Constitution
The question before us is whether the Nyaya Panchayat Act is void as offending article 221 because it contains section 63
In our view it is not void because it does not give any power to deprive anyone of his personal liberty either by way of arrest before the trial or by way of a sentence of imprisonment as a result of the trial
It would appear that the High Court took the same view when it said that the section was void in the case of persons arrested
In our opinion the High Court was in error
The validity of an Act cannot depend on the facts of a case but on its terms
The fact that the respondents were arrested under another statute cannot in our opinion make the Act void
A question was mooted at the Bar that since at the trial the respondents were not under arrest having been released on execution of bonds they were no longer entitled to the constitutional right conferred by article 221
As at present advised we are not inclined to accede to this view
We consider it unnecessary to pursue this matter further in the present case
For the reasons earlier stated in our view the Act is per fectly valid
No question therefore arises of the conviction being bad on the ground that the Act was invalid
In our view the High Court was in error in setting aside the conviction
We would therefore allow the appeal set aside the judg ment of the High Court and restore that of the courts below it
Hidayatullah J
In my opinion this appeal should fail
The short question in this appeal is whether section 63 of the Madhya Bharat Panchayat Act is inapplicable to criminal trials owing to its inconsistency with article 221 of the Constitution
The Panchayat Act was passed on June 17 1949 and under its provisions the Nyaya Panchayats are empowered to try certain offences including the offence of criminal trespass punishable under section 447 Indian Penal Code
The Act however places a limitation on the powers of these courts by enacting that they can impose a sentence 245 of fine but not imprisonment
The respondents were arrested by the Police without a warrant from a Magistrate for an alleged offence under section 447 Indian Penal Code and were released on bail
After investigation the case was sent for trial before the Nyaya Panchayat Barwani
Fresh bail bonds were obtained from them by the Nyaya Panchayat
The respondents were fined Rs 75 each but no sentence of imprisonment in lieu of fine was imposed on them
The respondents were not defended by a lawyer at the trial pre sumably because of section 63 of the Act which reads No legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute case or proceedings pending before the Nyaya Panchayat
The respondents filed an application for revision before the Additional Sessions Judge Barwani but were unsuccessful
They then filed a second application for revision in the High Court of Madhya Pradesh and inter alia contended that the trial was vitiated because they were deprived of their right to be defended by counsel guaranteed under article 221 of the Constitution
They also submitted that section 63 of the Act was rendered void by reason of article 13 in view of its inconsistency with this guaranteed right
A learned single Judge of the High Court referred the second point for con sideration by a larger Bench but the Divisional Court declined to consider it because in its opinion the decision of this Court in the State of Punjab vs Ajaib Singh and Anr1 had distinctly laid down that article 221 was not applicable to persons held in custody or bail under an order of a court and therefore the point did not arise for decision
The case was remitted to the learned single Judge who by the order under appeal July 9 1964 allowed the application for revision holding that the trial was vitiated as the respondents were deprived of their fundamental right to be defended by a counsel of their choice
He accordingly set aside their conviction but did not record an acquittal
The question thus arises whether section 63 of the Panchayat Act in the setting of the powers of the Nyaya Panchayat can be said to offend article 221 and for that reason to be void in so far as it takes away the right of a person who is arrested to be defended by a legal practitioner of his choice in a trial before the Nyaya Panchayat
My brother Bachawat has held the section to be inapplicable to criminal trials before the Panchayat courts
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
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
Article 22 is in Part III of the Constitution in a sub chapter headed Right to Freedom
It is one of three articles immediately following article 19
Under article 19 certain fundamental rights are protected subject to restrictions which may be imposed on those Tights by law
Those restrictions are specified in relation to each of the guaranteed right in the article itself
We are not concerned with the rights or the restrictions because they do not touch the present matter
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
The first clause gives protection against retroactive penal laws
the second against double jeopardy and the third against testimonial compulsion
We are again not concerned with any of these rights
The next article is a general declaration relating to protection of life and personal liberty
It reads 21Protection of life and personal libertyNo person shall be deprived of his life or personal liberty except according to procedure established by law
It will be noticed that there is no mention here of any particularnor of the articles that follow
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
It consists of seven clauses of which cls 4 to 7 deal with preventive detention and the special requirements of such cases
They need not be considered here
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
They do not touch our case
This leaves cls1 and 2 which may be quoted here 22Protection against arrest and detention in certain casesNo 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 choice
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
Articles 21 and 22 in a sense go together but in my opinion they cannot be treated as interrelated or interdependent
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
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
Article 21 does not indicate what that law must be nor does article 22 say this
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 makes law as the sole basis of State action to deprive a person of his life and personal liberty
We are not concerned in this case with arbitrary deprivation of life and personal liberty
The respondents were considered to have committed an offence of criminal trespass and were arrested and tried by procedure established by law
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 221
1 proceed to examine the question
Article 221 is in two parts and it gives to persons arrested it two fold protection
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
article 222 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
In Ajaib Singh s case1 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
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 221 and 2
It was thus held that the article was designed to give protection against the act of the executive or other non judicial authority
That case arose under the 65 of 1949 under which persons abducted from Pakistan were rescued
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
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
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 
The case cannot be treated as having laid down the law finally or exhaustively
Similarly in State of Uttar Pradesh vs Abdul Sammad and Anr1 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
Mr Justice Subba Rao dissented with this view
Abdul Samad s case1 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 221 222 or of the two clauses read together in relation to the taking into custody of a person for the purpose of executing a lawful order of deportation   I consider that there is room for further deliberation on the point
I do not see how we can differentiate between arrests of different kinds
Arrest is arrest whatever the reason
In so far as the first part of article 221 is concerned it enacts a very simple safeguard for persons arrested
It merely says that an arrested person must be told the grounds of his arrest
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
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
However the arrest is made this must be done and that is all that the first part of article 221 lays down
I find nothing in article 221 to limit this requirement to arrests of any particular kind
A warrant of a court and an order of any authority must show on their face the reason for arrest
Where there is no such warrant or order the person making the arrest must inform the person the reason of his arrest
In other words article 221 means what it says in its first part
I now come to the latter part of article 221
Here again the language is extremely clear
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
This is the sense of the 1162 Supp 3 SCR 915249 matter and the grammatical construction of the words
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
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
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
I do not agree
As I have stated already a person who is arrested gets three rights which are guaranteed
The first is that he must be told why he is arrested
This requirement cannot be dispensed with by taking bail from him
The need to tell him why he is arrested remains still
The next is that the person arrested must not be detained in custody more than 24 hours without being produced before a Magistrate
This requirement is dispensed with when the person arrested is admitted to bail
Otherwise it remains
The third is that he gets a right to consult and to be defended by a legal practitioner of his choice
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
The word defended  clearly includes the exercise of the right so long as the effect of the arrest continues
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
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
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
The system then was inquisitorial as against the accusatorial which we have adopted
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 Smith1 a mixture of formality and informality which consisted of an altercation between the accused and the prosecutor and his witness
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 him1
He was closely questioned by the examining 1 De Repubica Anglorum Bk11 c 23 quoted by Holdsworth History of English Law VolIX p 2252 Stephen History of Criminal Law VolP325 330 31250 Magistrate and then by the Judge at the trial and the prosecuting counsel
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
It is of course a matter of history which is well known that the jury were themselves punished1
Sir Walter Raleigh was also denied assistance of counsel and was cross examined by Popham CJ without being warned or confronted with witnesses whose statements were used against him1
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 counsel1
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
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
Nearer to our times we have the example of the United States of America
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
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
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
It is significant that at the retrial with counsel Gideon was acquitted of the charge on which he was first convicted
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
Under our jurisdiction providing counsel to an accused who cannot afford one except in capital cases is not a right
Our law in respect of legal aid is similar to that declared by the Lord Chief Justice of England in Regvs Howes1 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
North CJafter examining the papers said forthat which contains the names of the witnessesthat 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 written in the second person you should do so and so by which it appears to be written by another person it is an ill precedent permit such things that were to give you counsel in an indirect way which the law gives you not directly
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 stand in danger of losing his personal liberty
If he was exposed to penalty he had a right to be defended by counsel
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 counsel1
If this proposition were accepted as true we might be in the Middle Ages
The Criminal Procedure Code allows the right to be defended by counsel but that is not a guaranteed right
The framers of the Constitution have well thought of this right and by including the prescription in the Constitution have put it beyond the power of any authority to alter it without the Constitution being altered
A law which provides differently must necessarily be obnoxious to the guarantee of the Constitution
There is nothing in the words of the Constitution which permits any authority to alter this condition even on grounds of public interest as is the case with the guaranteed rights in article 19
Nor can we by a niggling argument lessen the force of the declaration so explicit in its terms or whittle down its meaning by a specious attempt at supposed harmony between rights which are not interdependent
There are three rights and each stands by itself
The first is the right to be told the reason of the arrest as soon as an arrest is made the second is the right to be produced before a Magistrate within twenty four hours and the third is the right to be defended by a lawyer of one s choice
In addition there is the declaration that no person shall be deprived of his personal liberty except by procedure established by law
The declaration is general and insists on legality of the action
The rights given by article 221 and 2 are absolute in themselves and do not depend on other laws
There is no force in the submission that if there is only a punishment of fine and there is no danger to personal liberty the protection of article 221 is not available
Personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it matters not whether there is or is not a possibility of imprisonment
A person arrested and put on his defence against a criminal charge which may result in penalty is entitled to the right to defend himself with the aid of counsel and any law that takes away this right offend s against the Constitution
In my judgment therefore section 63 of the Panchayat Act being inconsistent with article 221 came void on the inauguration of the Constitution in so far as it took away the right of an arrested person to be defended by a legal practitionerof his choice
My brother Bachawat has reached the same conclusion but has reversed the order of the High Court and restored the conviction and penalty on the ground that no request was made at the trial for permission to be defended by counsel
I find it difficult to accept this result
It is true that the contention raised in the High Court has the appearance of an after thought because no complaint was made before the Sessions Judge
But it is nevertheless a question of a fundamental right
Since a request to bring in counsel would have been doomed to failure I feel I should not hold that the respondents go by default
As this objection is taken in the criminal case itself albeit at a late stage and not by a belated collateral proceeding I would allow the High Court order to stand
After all the prosecution will be free to start the case again if it is so desired and the accused will have the opportunity to defend themselves with the assistance of counsel if they so care
I would therefore dismiss the appeal
Bachawat J On or about November 15 1962 on receipt of a first information report charging the respondents with an offence under section 447 of the Indian Penal Code the Station Officer
Barwani registered the offence and arrested the respondents
The arrests were made without warrants issued by a magistrate
Subsequently the respondents were released by the Station Officer on execution of bail bonds with sureties for appearance in the Court of Nyaya Panchayat Barwani and other courts
On November 20 1962 the Station Officer submitted to the Nyaya Panchayat Bar wani a charge sheet against all the respondents
On the same day the respondents appeared before the Nyaya Panchayat and executed fresh bonds with sureties for appearance before the Nyaya Panchayat
The case was heard on several days and on January 31 1963 the Nyaya Panchayat convicted all the respondents under section 447 and sentenced each of them to pay a fine of Rs 75  
On April 9 1963 the Additional Sessions Judge Barwani dismissed a revision application filed by the respondents
The respondents filed a revision petition before the High Court of Madhya Pradesh Indore Bench and contended for the first time that section 63 of the Madhya Bharat Panchayat Act 1949 is violative of article 221 of the Constitution and their trials and convictions were illegal
The High Court accepted these contentions and by its order dated July 9 1964 declared that section 63 is void to the extent that it denied the res pondents the right to be defended by a legal practitioner of their choice in the trial before the Nyaya Panchayat quashed the convictions and sentences and directed that they be dealt with in accordance with law
The State of Madhya Pradesh now appeals to this Court on a certificate granted by the High Court
Mr B Sen appeared on behalf of the appellant
Mr Sharma who was appointed as amicus curiae by an order of this Court argued the case of the respondents
In view of the constitutional 253 questions raised in this case notices were issued to the Advocates General of all the States
Mr lengar appeared on behalf of the Advocate General of Kerala and he stated that there was no provision similar to section 63 of the Madhya Bharat Panchayat Act in the State of Kerala
Mr Rangam appeared on behalf of the Advocate General of Madras and he drew our attention to section 765 of the Madras Village Courts Act Act 1 of 1887
The Madhya Bharat Panchayat Act was passed on June 17 1949
By section 75 of the Act the Nyaya Panchayat is empowered to try certain offences committed within its jurisdiction including offences under section 447
The Nyaya Panchayat has power to impose a fine not exceeding Rs 100  but it has no power to inflict a substantive sentence of imprisonment nor a sentence of imprisonment in default of payment of fine
Section 79 provides that if at any time it appears to the Nyaya Panchayat a that it has no jurisdiction to try any case before it or b that the offence is one for which it cannot award adequate punishment or c that the complaint is such or that it is so complicated that it should be tried by a Court of Justice the Nyaya Panchayat shall return the complaint to the complainant directing him to file it before a Sub Divisional Magistrate having jurisdiction to try the case
section 89 the decision of the Nyaya Panchayat in its criminal jurisdiction is final and not appealable except that it is subject to revision by the Sessions Judge
Section 87 provides that subject to the provisions of section 63 any party may appear before a Nyaya Panchayat by a duly authorised 1 preventative
Section 63 provides No legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute case or proceedings pending before the Nyaya Panchayat
 The question is whether this section infringes article 22 of the Constitution
The second part of article 221 reads nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice
Mr Sen submitted that he means a person who is arrested and detained and as the respondents were not detained at the time of the trial before the Nyaya Panchayat the constitutional guarantee is not available to them
Alternatively he submitted that he means any parson
He argued that in the case of The State of Punjab vs Ajaib Singh and another1 this Court has restricted the constitutional guarantee embodied in the first part of article 221 to persons arrested otherwise than under a warrant issued by a Court and he submitted that this restricted interpretation should not be given to the second part the two parts should be read independently of each other and the protection of the second part should be extended to all persons
But he also submitted that in the context of article 21 the right given by the second part of cl1 of article 22 11053 SCR 254254 should be limited to trials in which any person is deprived of his life or personal liberty or is in jeopardy of being so deprived
He pointed out that the Nyaya Panchayat has no power to inflict a sentence of imprisonment and be therefore submitted that the constitutional guarantee embodied in the second part of article 221 did not apply to a trial before a Nyaya Panchayat
It will thus appear that Mr Sen asked us on the one hand to give a liberal interpretation to the second part of article 221 by applying it to all persons whether arrested or not and whether arrested under or without a warrant issued by a Court and on the other hand he asked us to give it a restricted interpretation by limiting its operation to a trial in which the accused is in jeopardy of being deprived of life or liberty
Mr lengar submitted that he means any person who is arrested
He argued that the second part of article 221 is an injunction on the arresting and detaining authority not to prevent consultation and defence by a legal practitioner and it gives no right to be defended at a trial
Mr Rangam adopted the arguments of Mr lengar
Mr Sharma submitted that he means any person who is arrested and that any person who is arrested has the right to be defended at the trial for the offer for which he is arrested
Our duty is to listen to the clear words of the Constitution understand its message and then interpret it
Article 221 reads No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest  
Every person is prima facie entitled to his personal liberty
If any person is arrested he is entitled to know forthwith why he is being deprived of his liberty so that he may take immediate steps to regain his freedom
Article 221 then continues  nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice
 Who is this he in the second part of article 221
The pronoun he must refer to the last antecedent
He therefore means any person who is arrested
He has the right to consult his lawyer and to be defended by him so that he may guard himself against the accusation for which he is arrested
Both parts of cl 1 of article 22 thus come into play as soon as any person is arrested
Clause 2 of article 22 then goes on to give every person who is arrested and detained the right to be produced before a magistrate within 24 hours and the right to freedom from detention beyond the said period without the authority of a magistrate
Das J therefore observed in A K Gopalan vs The State1 Clauses 1 and 2 of article 22 lay down the procedure that has to be followed when a man is arrested
They ensure four things a right to be informed regarding grounds of arrest b right to consult and to be defended by a legal practitioner of his choice c right to be produced before a magistrate within 24 hours and d freedom from detention beyond the said period except by order of the magistrate
Clauses 1 and 2 of article 22 safeguard the rights of the person arrested
The arrest of any person on a criminal charge is a step in an intended criminal proceeding against him
Save where the magistrate dispenses with his personal attendance and permits him to appear by a pleader the first step in a criminal proceeding is to bring the accused before the magistrate
The trial before the magistrate proceeds when the accused appears or is brought before him
 The attendance of the accused before the magistrate is secured by summons or by arrest under or without a warrant
Upon arrest he may either be released on bail or be remanded into custody
If he is released on bail the bail bond ensures his attendance at the trial
Summonses warrants arrests without warrant and bail bonds are all machinery for securing the attendance of the accused before the Court
The arrest of the accused on a criminal charge has thus an intimate connection with his eventual trial on the charge
It is at the trial in the criminal Court that the accused defends or is defended by counsel
Section 340 of the Code of Criminal Procedure therefore provides that any person accused of any offence before a criminal Court may of right be defended by a pleader
In this background the right of defence by a legal practitioner given by article 221 must extend to defence in a trial in a criminal Court
Article 21 guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law
Article 22 guarantees the minimum rights which any person who is arrested shall enjoy
In support of his contention that the right of defence of the arrested person given by cl1 of article 22 should be restricted to trial of offences in which the accused is in jeopardy of being deprived of his life or liberty Mr Sen relied upon the observations of Das J in State of Bombay vs Atma Ram Srdhar Vaidya1 that article 22 sets forth certain procedural requirements which as a matter of constitutional necessity must be adopted and included in any procedure that may be enacted by the legislature and it accordance with which a person may be deprived of his life or personal liberty
He also relied upon the following ob servations of Das J in A K Gopalan vs The State1 at p 325 Clauses 1 and 2 of Article 22 lay down the procedure that has to be followed when a man is arrested
 For the purposes of this case let us give these observations their full effect
When any person is arrested he is deprived of his liberty the procedure third down in cl1 of article 22 must then be followed and he must be allowed the right to be defended by counsel of his choice
No law which permits deprivation of his personal liberty by arrest can deny him this right
Why should this right be limited to a trial in which he may be sentenced to death or to a term of imprisonment
Why should this right be denied to him in a trial in which he is in jeopardy of being convicted and sentenced to a heavy fine
The clear words of article 22 furnish no basis for this limitation
On this branch of his argument Mr Sell submitted that he in the second part of cl1 should be read as any person in order that this part of cl1 may not suffer from the restricted interpretation of arrest given in Ajaib Singh s case1
It is impossible to accept this argument
The narrow interpretation of the expression arrest given in that case is not a ground for giving an unnatural meaning to the expression he
The context of cl1 suggests that he refers to any person who is arrested
But let us assume that it is possible to give a more liberal interpretation to he and the operation of the second part of the clause should be extended to any person
Even on this view we find no warrant for giving a restricted interpretation to the second part of the clause by reference to article 21 and for saying that the right to be defended by counsel is limited to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment
It has been suggested that the right of defence by counsel given by article 221 does not extend to a trial of an offence before the Nyaya Panchayat because the Madhya Bharat Panchayat Act 1949 does not authorise any arrest and as a matter of fact
the respondents were arrested by the police in the exercise of its powers under section 54 of the Code of Criminal Procedure
We are unable to accept this suggestion
Suppose a statute sets tip a special criminal Court for the trial of certain offences and it gives no power to the police to arrest any person
Nevertheless the police has under its general powers under the Code of Criminal Procedure authority to arrest any person concerned in any cogniscible offence
If in the exercise of these powers the police arrests some person on the accusation of a crime for which he is liable to be tried before the special criminal Court the arrested person has the constitutional right to be defended by counsel at the trial before the special criminal Court in respect of the offence for which he was arrested
It has also been suggested that the trial of an offence before the Nyaya Panchayat is akin to an action for recovery of money and as an arrested person has no constitutional right to be defended by counsel in the action for recovery of money so also he has no such right in a trial of all offence before the Nyaya Panchayat We are unable to accept this line of reasoning
A person arrested on the accusation of a crime has the constitutional right to be defended by counsel at a subsequent trial of the crime for which he is arrested
He cannot therefore claim this right in a subsequent action against him for recovery of money but he can claim this right in a subsequent trial of the offence before the Nyaya Panchayat
As soon as the respondents were arrested without warrants issued by a Court they acquired the rights guaranteed by cl1 of article 22
It is true that they were subsequently released on bail and at the time of the trial before the Nyaya Panchayat they were not being detained
But the right attaching to them on their arrest continued though they were not under detention at the time of the trial
The right was not lost because they were released on bail
The respondents were arrested otherwise than under a warrant issued by a Court on the accusation that they had committed crimes
Their arrests therefore satisfy the test laid down in Ajaib Singh s case1 and are within the purview of cl1 of article 22
We express no opinion on the question whether the test of an arrest laid down in that case is exhaustive
We may now briefly notice a few decisions under other Pan chayat Acts
In Lal Bachan Singh vs SurajBali2 the Allababad High Court held that a provision of the U P Panchayat Raj Act 26 of 1947 under which no counsel was permitted to appear in the Court of the Panchayati Adalat did not infringe any right of an accused who had not been arrested
In Gurdial Singh vs The State1 the Punjab High Court held that a provision of the Punjab Gram Panchayat Act 4 of 1953 under which the accused was not allowed to be defended by counsel of his choice did not infringe any right under article 22
In Digambar Aruk vs Nanda Aruk4 the Orissa High Court held that no tight of the accused was infringed by section 94 of the Orissa Gram Panchayat Act 15 of 1948 which prohibited any legal practitioner from appearing before an Adalti Panchayat having power to award a sentence of imprisonment in lieu of fine
The reports of the two last cases do not set out full facts
Presumably in both cases the accused were not arrested at all and if so there could be no infringement of any right under article 22
We do not approve of these decisions if and so far as they might have held that the right of an arrested person to be defended by a legal practitioner of his choice before the Panchayati Adalat was not infringed by the provisions precluding such defence
We therefore hold that section 63 of the Madhya Bharat Pan chayat Act 1949 is violative of article 221 and is void to the extent it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial of the crime for which he is arrested
Most of the safeguards embodied in cls1 and 2 of article 22 are to be found in the Code of Criminal Procedure
But the Constitution makes the fundamental change that the rights guaranteed by cls1 and 2 of article 22 are no longer at the mercy of the legislature
No legislature can enact a law which is repugnant to the Constitution
A pre Constitution law which is inconsistent with the provisions of article 22 is to the extent of such inconsistency void
The next question is whether the trial and convictions were illegal
During the trial the respondents never claimed that they should be defended by counsel
Had they wanted the assistance of counsel the Nyaya Panchayat might have under section 79c returned the complaint for being filed before a magistrate
They were happy and content to be tried before the Nyaya Panchayat without the assistance of counsel
There was no occasion for enforcing the provisions of section 63 against them
Even if section 63 were repealed or struck down before the trial they would not have engaged any counsel for their defence
The existence of section 63 on the statute book did not cause them any prejudice
In the circumstances the High Court ought not to have quashed the trial and convictions
In the result we declare that section 63 of the Madhya Bharat Panchayat Act is violative of article 221 of the Constitution and is void to the extent that it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial of the crime for which he is arrested
Subject to this declaration the appeal is allowed the order of the High Court is set aside and the convictions and sentences passed by the Nyaya Panchayat Barwani are restored
ORDER In view of the majority the Appeal is allowed the judgment of the High Court is set aside and that of the Courts below is restored


Summary:
The respondents were arrested by the police for the offence of trespass and were released on bail
They were tried and sentenced to pay a fine by the Nyaya Panchayat a court established under the Madhya Bharat Panchayat Act 1949 with powers to impose only a sentence of fine
The conviction was set aside by the High Court on the ground that section 63 of the Act which provides that no legal practi tioner shall appear on behalf of any party in a proceeding before the Nyaya Panchayat violated article 221 of the Constitution and was therefore void
HELDPer Sarkar CJ and Mudholkar J The High Court was in error in setting aside the conviction
Under article 221 a person arrested has the constitutional right to consult a legal practitioner concerning his arrest and a person who has been arrested as well as one who though not arrested runs the risk of loss of personal liberty as a result of a trial have the constitutional right to be defended by an advocate of their choice
But in a trial under a law which does not provide for an order resulting in the loss of his personal liberty he is not entitled to the constitutional right because the Article is concerned only with giving protection to personal liberty
241 H 242 C 244 B C
The Act does not give any power to deprive any one of his personal liberty either by way of arrest before the trial or by way of sentence of imprisonment as a result of the trial nor does it deprive an arrested person of his constitutional right to take steps against the arrest or to defend himself at a trial which might occasion the loss of his personal liberty
The fact that the respondents were arrested under another statute namely the Criminal Procedure Code cannot make either the section or the Act void
242 G H 243 C D 244 D E State of Bombay vs Atma Ram Sridhar Vaidya 1951 SCR 167 204 followed
QUAERE
Whether respondents were not entitled to the constitutional right because at the trial they were on bail
244 E Per Bachawat and Shelat JJ
 Section 63 of the Act is violative of article 221 and is void to the extent that it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial for the crime for which he is arrested
but the order of the High Court quashing the conviction should be set 240 aside because the respondents did not claim that they should be defended at the trial by counsel and the circumstances of the case the existence of section 63 on the statute book did not cause them any prejudice
257 G 258 B C As soon as the respondents were arrested without warrants issued by a court they acquired the rights guaranteed by article 221 and they continued to have those rights though they were released on bail at the time of trial
The rights include the right to be defended even in a trial in which they were in jeopardy of only being sentenced to a fine
because the pronoun he in the second part of article 221 refers to any person who is arrested  
If in the exercise of the general powers under the Criminal Procedure Code the police arrest a person on the accusation of a crime for which he is liable to be tried before a Special Criminal Court the arrested person has the constitutional right to be defended by counsel at the trial before the Special Criminal Court in respect of the offence for which he was arrested
Even if the word he means any person there is no warrant for giving a restricted interpretation and limiting the right to be defended by counsel to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment
256 A D F G 257 A B State of Punjab vs Ajaib Singh   referred to
QUAEREWhether the tests of an arrest laid down in Ajaib Singh s case are exhaustive
257 C
Per Hidayatullah J dissenting The appeal should be dismissed
Under article 22 a person who is arrested for whatever reason gets three independent rights
The first is the right to be told the reasons for the arrest as soon as an arrest is made the second is the right to be produced before a Magistrate within 24 hours and the third is the right to be defended by an advocate of his choice
When the 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 the right did not stand in danger of losing his personal liberty
The words nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice in article 221 refer to a person who is arrested
Personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it is not sufficient to say that the accused who was so deprived prisonment
Before his release on bail he 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 be present
Therefore
section 63 of the Act being inconsistent with the Article is void
Though the contention was raised for the first time in the High Court since it is a question of fundamental right it must be upheld
248 H 249 D F 251 A B F H 252 B
State of Punjab vs Aiaib Singh
 and State of Uttar Pradesh vs Abdul Samad 1962
SCR 915
referred to