Rights of Accused
The author of this blog is Amit Kumar, student of 2nd year BA LLB (Hons), SGT UNIVERSITY, GURUGRAM
No person 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 such journey from the place of arrest to the court of the magistrate and no person shall be detained in custody beyond the said period without the authority of the magistrate.
Nothing in clauses (1) and (2) shall apply-
to any person for the time being an enemy alien
to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of any person for a period longer than three months unless-
an advisory Board consisting of persons who are qualified to be appointed as, Judges of High Court has reported before the expiration of the said period that there is, in its opinion sufficient cause for such detention:
Provided that nothing in this clause shall authorize such detention beyond the period specified by any law made by Parliament
(5)When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making such order to disclose the facts which such authority considers to be against the public interest to disclose.
'Preventive detention' means the detention of a person without trial in such circumstances that the evidence before the authority is not sufficient to make out a legal charge or to secure the conviction of the detenue by legal proof, but still may be sufficient to justify his detention. The object of preventive detention is to prevent a person from doing something. No offence is proved, nor any charge formulated: and the justification is suspicion or reasonable probability and not criminal conviction which only can be warranted by legal evidence.
The object of the framers of the Constitution to give Constitutional status to preventive detention was that though they recognized the need for such laws, they wanted to provide safeguards to prevent abuse of power. The procedural requirements are mandatory and any violation would render the detention invalid.