The Criminal Procedure Code, 1973 (CrPC) provides not just for taking retaliatory action on crimes already committed however conjointly for taking potential measures to forestall authorization of crimes, as well.
Power of Police Officer to make arrest
A policeman has the inherent power to form arrest of an individual while not a warrant on 2 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 previous is completed below section forty one 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.
Preventive arrest under Section 151
The Section 151 of the CrPC states that a policeman will arrest an individual while not a warrant from the judicial official, once there’s a style 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 policeman has no info in relation to the planning of committing some cognoscible offence the arrest below the section 151 CrPC is against the law.
Apprehension or potential of breach of peace doesn’t return below the term style to commit AN offence.
Therefore the preventive arrest should be done only the officer has clear data of an individual coming up with to commit a cognoscible offence and there’s spare reason to
believe that the offence can not be prevented by the other means that.
Squatting on the general public road by some persons as a mark of protest doesn’t mean that they need a style to commit AN offence.
Sending such squatters to jail on the ground of disturbing public tranquility under Section 151 CrPC is illegal.
The person in remission below precautions mustn’t be detained for quite twenty four hours below police custody unless more detention of him is allowed below the other legal provision.
A person in remission below this section can not 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 should be AN extreme emergency to arrest him, without which the arrest is quite illegal.
In the preventive arrest, there must be definite material to show the design to commit some cognizable offence.
The decision to arrest an individual below preventive arrest should be taken by the policeman alone supported 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 merely to forestall commission of any cognoscible offence within the close to future.
The provision of grounds of arrest below Section 151 CrPC rules out the likelihood of the impulsive exercise of wide discretionary powers by the police.
Preventing an offence
Every policeman is indebted below Section 149 CrPC to forestall the commission of ANy cognoscible offence by actively intervening within the authorization of an offence.
The policeman contains a duty to travel and interfere in preventing the cognoscible offence.
The officer should stop the offence at the most effective of his ability.
Every officer receiving info of a style to commit any cognoscible offence should communicate such info to the policeman to whom he’s subordinate or the other officer whose
duty is either to forestall or take cognizance of the commission of such offence.
The police officer 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 twenty one and twenty two of the Constitution of the in remission person.
Three reliefs ar currently obtainable for a victim of such wrongful prosecution – official document 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 constant time action is being taken to feature a brand new chapter on wrongful prosecution within the CrPC, as per the advice of the Law Commission of India.
Executing bond for keeping the peace
At the tip of the twenty four hour amount of preventive arrest, the standard apply for the police is to gift the person in their custody, before the chief jurist for further action if any.
The Magistrate has enough powers to take further action under Section 107 CrPC.
The Section permits the jurist to serve show cause notice on why the person mustn’t be ordered to execute a bond.
On considering the reply if the jurist thinks thus, he will issue AN order stating that the person should execute a bond for keeping the peace or not heavy tranquility, for a period not exceeding one year.
Executive nature of preventive measures
The preventive actions of the police mentioned below the Sections 149 to 153 square measure government in nature however 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 someone is inactive below the availability of preventive arrest, all the formalities of arrest while not warrant – like production before jurist among twenty four hours, informing him of
the reason of arrest etc – as provided for in the CrPC will ensue.
If no proceedings square measure taken either for hard a security bond or for launching criminal proceedings during a crime against the person when the arrest, he ought to be discharged before exceeding 24 hours.
Even though preventive arrest could be a short-run live, many an writ says that the police and government Magistrates misuse it in some inconceivable explanations of poor appreciation of law or holistic negation of it.
- 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.
- 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 law officer could arrest someone while not a warrant from a jurist.
The officer will roll in the hay if he has return to grasp of a style of the person involved to commit any cognoscible offence.
A further condition is that the arrest ought to be created provided that it seems to the law officer that the offence can not be otherwise prevented.
If these conditions don’t seem to be consummated, the sensational officer might be preceded for violating the Articles twenty one and twenty two of the Constitution.
- 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.Power to make Preventive Arrest by Police.