Lawwatch

Power to make Preventive Arrest by Police

The Criminal Procedure Code, 1973 (CrPC) provides not only for taking
punitive action on crimes already committed but also for taking possible
measures to prevent commissioning of crimes, as well.

Power of Police Officer to make arrest

A police officer has the inherent power to make arrest of a person
without a warrant on two circumstances:-

  • one is when he has committed a cognizable offence, and

  • the other is when the person is suspected to have some design to
    commit a cognizable offence.

The arrest on the former is done under section 41 of the CrPC for a past
criminal act done by him. The latter is done under section 151 CrPC for
a future possibility of crime, the legal provisions of which are
provided for in its Sections 106 - 124 & 129 - 153.

This write up is exclusively about the latter one.

Preventive arrest under Section 151

The Section 151 of the CrPC states that a police officer can arrest a
person without a warrant from the judicial magistrate, when there is a
design to commit any cognizable offence in future.

To apply Section 151 CrPC to a person by a police officer, there must
be:-

  • Some design to commit a cognizable offence

  • The information about it must have been received by the police
    officer

  • The person to be arrested must be connected with the design

  • The officer must have reasons to think that the commission of the
    offence cannot be prevented without the arrest of the person

If the police officer has no information in regard to the design of
committing some cognizable offence the arrest under the section 151 CrPC
is illegal. Apprehension or possible of breach of peace does not come
under the term design to commit an offence. Therefore the preventive
arrest must be done only when the officer has clear knowledge of a
person designing to commit a cognizable offence and there is sufficient
reason to believe that the offence cannot be prevented by any other
means.

Squatting on the public road by some persons as a mark of protest does
not mean that they have a design to commit an offence. Sending such
squatters to jail on the ground of disturbing public tranquility under
Section 151 CrPC is illegal.

The person arrested under preventive measure should not be detained for
more than 24 hours under police custody unless further detention of him
is authorized under any other legal provision. A person arrested under
this section cannot be detained in jail, as well.

Similarly the police have no authority to release the person under
preventive arrest, on bail. To put some person in preventive arrest
there must be extreme emergency to arrest him, without which the arrest
is quite illegal.

In preventive arrest, there must be definite material to show the design
to commit some cognizable offence. The decision to arrest a person under
preventive arrest must be taken by the police officer solely based on
his own exercise of discretion and application of mind.

However a preventive arrest is neither punitive nor equal to preventive
detention under some other special detention laws. The arrest is only to
prevent commission of any cognizable offence in the near future. The
provision of grounds of arrest under Section 151 CrPC rules out the
possibility of arbitrary exercise of wide discretionary powers by the
police.

Preventing an offence

Every police officer is obligated under Section 149 CrPC to prevent the
commission of any cognizable offence by actively intervening in the
commissioning of an offence. The police officer has a duty to go and
interfere in preventing the cognizable offence. The officer must prevent
the offence at the best of his ability.

Every officer receiving information of a design to commit any cognizable
offence must communicate such information to the police officer to whom
he is subordinate or any other officer whose duty is either to prevent
or take cognizance of the commission of such offence.

The police office has the power to interfere in preventing an attempt to
commit any injury to any movable or immovable public property, including
any public landmark.

Police officer can be proceeded against

There has a serious concern nowadays that the power of preventive arrest
is being used arbitrarily by police to satisfy the political masters or
other people in power in the society.

If a person is arrested under Section 151 CrPC or other sections without
following the due provisions of law, the person can proceed against the
arresting authority for violating the fundamental rights inherent in
Articles 21 and 22 of the Constitution of the arrested person.

Three reliefs are now available for a victim of such wrongful
prosecution - writ court remedies, civil court compensation and punitive
action against the erring police official. The SC judgment in Nambi
Narayan case recently well establishes these remedies. At the same time
action is being taken to add a new chapter on wrongful prosecution in
the CrPC, as per the recommendation of the Law Commission of India in
its 277^th^ Report.

Executing bond for keeping peace

At the end of the 24 hour period of preventive arrest, the usual
practice for the police is to present the person in their custody,
before the Executive Magistrate for further action if any.

The Magistrate has enough powers to take further action under Section
107 CrPC. The Section enables the Magistrate to serve show cause notice
as to why the person should not be ordered to execute a bond. On
considering the reply if the Magistrate thinks so, he can issue an order
stating that the person must execute a bond for keeping peace or not
disturbing tranquility, for a period not exceeding one year.

Executive nature of preventive measures

The preventive actions of the police discussed under the Sections 149 to
153 are executive in nature but not judicial. However other preventive
measures in the Code are quasi-judicial in nature. In the latter case,
the police have no power to take action without orders of the Executive
or Judicial Magistrate.

Preventive arrest ends after 24 hours

When a person is arrested under the provision of preventive arrest, all
the formalities of arrest without warrant - such as production before
Magistrate within 24 hours, informing him of the reason of arrest etc -
as provided for in the CrPC will ensue.

If no proceedings are taken either for demanding a security bond or for
launching criminal proceedings in a crime against the person after the
arrest, he should be discharged before exceeding 24 hours.

Even though preventive arrest is a short term measure, many a court
order say that the police and Executive Magistrates misuse it in some
unimaginable ways out of poor appreciation of law or holistic negation
of it.

Materials for additional reading

  1. In Pravin Vijaykumar Taware vs The Special Executive
    Magistrate
    decided on 18
    June, 2009, the High Court of Bombay held that the State Government
    should immediately take steps to train all its Executive Magistrates
    so that they understand as to how the provisions of Chapter VIII of
    the CrPC have to be applied.

  2. In Rajender Singh Pathania & Ors vs State Of Nct Of Delhi &
    Ors
    the Supreme Court holds
    that the Section 151 CrPC provides for the conditions under which a
    police officer may arrest a person without a a warrant from a
    Magistrate. The officer can do it if he has come to know of a design
    of the person concerned to commit any cognizable offence. A further
    condition is that the arrest should be made only if it appears to
    the police officer that the offence cannot be otherwise prevented.
    If these conditions are not fulfilled, the arresting officer could
    be preceded for violating the Articles 21 and 22 of Constitution.

  3. In Aldanish Rein vs State Of Nct Of Delhi &
    Anr
    decided on 1 November
    2018, the Delhi High Court issued a set of directions to avoid
    misuse of the powers under Section 151 and 107 CrPC. This indicates
    that the matter is still live despite having numerous judgments on
    the matter.

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or his website at www.lawwatch.in