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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: SHOBHARAM AND ORS.

DATE OF JUDGMENT: 22/04/1966

BENCH:

ACT: Madhyabharat  Panchayat Act (58 of 1949), s. 63-If  violates Art. 22 of the Constitution. Constitution of India, 1950, Art. 22(1)-Right of accused  to be  defended  by counsel-If ensures in  cases  when  accused cannot be sentenced to imprisonment.

HEADNOTE: 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 s. 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 Art.  22(1)  of  the Constitution and was therefore void. HELD:(Per  Sarkar C.J., and Mudholkar, J.): The  High  Court was in error in setting aside the conviction. Under  Art. 22(1) 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 v. Atma Ram Sridhar Vaidya,  [1951]  S.C.R. 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 Art. 22(1) and is void to the extent  that  it denies  any person who is arrested the right to be  defended

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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 s. 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 Art.  22(1), 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 Art.  22(1) 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 v. Ajaib Singh, [1953] S.C.R. 254, referred to. QUAERE:Whether  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 Art. 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 Art. 22(1), 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. s.  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 v. Aiaib Singh. [1953] S.C.R. 254 and  State of  Uttar  Pradesh  v.  Abdul  Samad  [1962].   S.C.R.  915. referred to.

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JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal 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 B.Sen and 1. N. Shroff, for the appellant. B.D. Sharma, for the respondents. A.V. Rangam, for Intervener No. 1. V.A.  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 C.J. and MUDHOLKAR J. was  delivered by  SARKAR C.J. The Judgment of BACHAWAT and SHELAT JJ.  was delivered  by  BACHAWAT  J.  HIDAYATULLAH  J.  delivered   a dissenting Opinion. Sarkar,   C.J.  On  a  complaint  of  trespass  the   police registered  a case against the respondents under S.  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 Art. 22(1) 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 Art. 22(1).  That provision has to be considered along with Art. 21 of the Constitution  and both are set out below:               "Art. 21.  No person shall be deprived of  his               life  or personal liberty except according  to               procedure established by law.               Art.  22(1).  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 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, s. 63 of the Act puts  no  ban  on

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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 Arts. 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 v. Atma Ram Sridhar Vaidya(1) Das, J. (as he then was) observed:               "...........  the implication of that  article               (Art. 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 Art. 22(1) 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)..[1915]1 S.O.R. 167,204. 243 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 Art. 22(1) is not a constitutional necessity. The Act does not violate Art. 22(1) 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  s.  54(1)  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 s. 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

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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 Art.  22(1)  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 Art.  22(1)? 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 Art. 22(1).  We think this would  be in consonance with the decision of this  Court  in Atma Ram Sridhar Vaidya’s case(1).  We do not think that the Constitu- (1) [1951] S.C.R. 167. 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  Art. 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 Art. 22(1) because it contains S.  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

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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 Art. 22(1).  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 s. 63  of  the Madhya  Bharat  Panchayat Act is  inapplicable  to  criminal trials  owing  to its inconsistency with Art. 22(1)  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 S. 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 s. 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 s. 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 Art.  22(1) of the Constitution.  They also submitted that S. 63 of  the Act  was rendered void by reason of Art. 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 v. Ajaib Singh and Anr.(1) had distinctly laid down that Art. 22(1) 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 s. 63 of the Panchayat  Act (in the setting of the powers of the Nyaya Panchayat) can be

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said to offend Art. 22(1) 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. (1)[1953] S.C.R. 254. 246 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  Art. 19.   Under  Art.  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:             "21.  Protection of life and personal liberty.                 No  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 particular,  law. nor 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 cls. (1) and, (2) which may  be  quoted here:               "22.  Protection against arrest and  detention               in certain cases.               (1)...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 choice.               (2)...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

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             authority of a magistrate. 247 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 Art. 22 say this.   Article 22, no doubt, advances in a way the  purpose of  Art.  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 Art. 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  Art.  22(1).  1 proceed to examine the question. Article  22(1)  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.  Art. 22(2) 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 case(1) 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 Art. 22(1) 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 Abducted Persons (Recovery and  Restoration) Act  1949  (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) [1953] S.C.R. 254, 248 was not the kind of arrest contemplated by Art. 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

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             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  v.  Abdul Sammad and Anr.(1) 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  case(1) 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  Art.  22(1) 22(2)  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  Art.  22(1)  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  Art. 22(1) lays down.  I find nothing in Art.  22(1)  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,  Art. 22(1) means what it says in its first part. I  now come to the latter part of Art. 22(1).   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 (1)[162] Supp. 3 S.C.R. 915. 249 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

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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 Smith(1), 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 him(1).  He was closely questioned by the examining (1) De Repubica Anglorum Bk. 11 c. 23 quoted by  Holdsworth, History of English Law Vol.  IX, p. 225. (2)  Stephen: History of Criminal Law Vol. 1. pp. 325,  330- 31. 250 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 punished(1).  Sir Walter Raleigh was also  denied assistance of counsel and was cross-examined by Popham  C.J. without  being  warned or confronted  with  witnesses  whose statements  were  used against him(1).   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 counsel(1).  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

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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 Reg. v.  Howes(1)  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. (1) State Trial 872-895.      (2) [1603] 2 S.T. I. (3) 85 T.549-563. North C.J.after examining the papers said- "forthat which contains the names of the witnesses,that  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". ibid p. 585. (4)  [1964] 1 W.L.R. 576. 251 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 counsel(1).  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 Art. 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

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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 Art. 22(1) 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 Art. 22(1) 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, s. 63 of the Panchayat.  Act  being inconsistent with Art. 22(1) ,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 practitioner,of his choice. (1)  [1964] IW.L.R. 576. 252 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 s. 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 s.  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 s. 63 of the Madhya Bharat Panchayat Act, 1949  is violative of Art. 22(1) of the Constitution and their trials and convictions were illegal.  The High Court accepted these

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contentions,  and by its order dated July 9.  1964  declared that  s.  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 s. 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 S. 76(5) of the Madras Village Courts  Act (Act 1 of 1887). The Madhya Bharat Panchayat Act was passed on June 17, 1949. By S. 75 of the Act, the Nyaya Panchayat is empowered to try certain offences committed within its jurisdiction including offences  under  s. 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.  By. s. 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 s. 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 Art.  22  of the Constitution.  The second part of Art. 22(1) 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 v.  Ajaib Singh   and  another(1),  this  Court  has  restricted   the constitutional guarantee embodied in the first part of  Art. 22(1)  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  Art.

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21 the right given by the second part of cl. (1) of Art. 22 (1)[1053] S.C.R. 254. 254 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 Art. 22(1) 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 Art. 22(1) 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  Art. 22(1)  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 22(1) 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 22(1) 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 Art. 22(1)?   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 Art. 22 thus come into play as soon as any person is arrested.  Clause (2) of Art. 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 v. The State(1):               "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 regard-               (1)[1959] S.C.R. 88, 325.               255               ing  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

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             by order of the magistrate." Clauses  (1) and (2) of Art. 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 Art. 22(1) 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 cl. (1) of Art.  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 v.  Atma  Ram  Sr.dhar Vaidya(1) that  Art.  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 v. The State(1) 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  cl. (1) of Art. 22 must then be followed,  and  he must  be allowed the right to be defended by counsel of  his choice.  No (1) [1951] S.C.R. 167,204. (2) [1950] S.C.R. 88. 256 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 Art.  22  furnish  no basis for this  limitation.   On  this branch of his argument, Mr. Sell submitted that "he" in  the second  part  of cl. (1) should be read as "any  person"  in order  that  this part of cl. (1) may not  suffer  from  the restricted interpretation of "arrest" given in Ajaib Singh’s case(1).   It  is impossible to accept this  argument.   The narrow  interpretation of the expression "arrest"  given  in

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that case is not a ground for giving an unnatural meaning to the  expression "he".  The context of cl. (1) 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  Art. 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 Art. 22(1) 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 s. 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. (1)[19531 S.C.R. 254. 257 As  soon as the respondents were arrested  without  warrants issued  by a Court, they acquired the rights  guaranteed  by cl. (1) of Art. 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 case(1), and are within the purview of cl.  (1) of Art. 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  v.  Suraj.Bali(2),  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

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did  not infringe any right of an accused who had  not  been arrested.  In Gurdial Singh v. The State(1), 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  Art.  22.   In Digambar Aruk v.  Nanda  Aruk(4),  the Orissa  High  Court held that no ’tight of the  accused  was infringed  by s. 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  Art. 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 s. 63 of the Madhya  Bharat  Pan- chayat  Act, 1949 is violative of Art. 22(1) 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 cls. (1) and (2) of  Art. 22  are to be found in the Code of Criminal Procedure.   But the  Constitution  makes  the fundamental  change  that  the rights  guaranteed  by cls. (1) and (2) of Art.  22  are  no longer at the mercy of the legislature.  No legislature  can enact a law which is repugnant to the (1)  [1953] S.C.R. 254. (2)  A.I.R. 1925 All 924. (3)  A.T.R. 1957 Punjab. 149. (4)  A.T.R. 1957 Orissa 28.1. 258 Constitution.  A pre-Constitution law which is  inconsistent with  the  provisions of Art. 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 s. 79(c) 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  s.  63  against them.  Even if s. 63  were  repealed  or struck  down before the trial, they would not  have  engaged any  counsel for their defence.  The existence of s.  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 s. 63 of the  Madhya  Bharat Panchayat   Act   is  violative  of  Art.   22(1)   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.

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