By Aditya Singh Raghav
---
Preventive arrest under section 151
Preventive arrest is defined under Section 151 of The Criminal Procedure code, 1973 (CrPc) as an action taken by police authorities on a person on a suspicion that some wrongful act may be done by him in future. This section provides power to police to arrest any such person whom they strongly believe may commit a cognizable offence. Such arrest can be done without any warrant. Conditions of arrest under section 151:
- There should be some proof regarding preparation or design of such offence which may be in process and there is anticipation of cognizable offence. Person who is suspect of commission of cognizable offence in future should have connection with the design
- Police should be having information about commission of offence and reasons for their knowledge of a design to commit cognizable offence by a person. Section 151 can be applied when it appears to police that commission of cognizable offence cannot be prevented without arrest.
An order from Magistrate is not required for arresting a person if any information is received anticipating commission of offence but Article 22 of Indian Constitution provides “protection against arrest and detention in certain cases”. However, Article 22(3) states that such protection under Article 22(1) and 22(2) will not be available to person who is arrested or detained under preventive detention laws. Any breach of conditions required for preventive arrest results in violation of fundamental rights under Article 21 and 22 of the Indian Constitution. So if the police officer has no information about the design of commission of any cognizable offence then such arrest is illegal.
Grounds for Invoking section 151
Following grounds have been mentioned where section 151 can be invoked
1. Defence of state
2. Maintaining Public order
3. Security of state
4. Relation of state with foreign powers
5. Maintenance of supply of essential services
History of preventive arrest laws
After independence, framers of constitution suffered a lot due to preventive arrest laws during struggle time but constitutional righteous status was conferred to preventive arrest laws in India under section of Fundamental rights.
In the year 1950 “Preventive Detention Act” was piloted by Sardar Patel. This act emphasized that people disturbing peace in ordinary manner were not be arrested but one of the political leader working under A.K Gopalan was arrested for showing dissent. This made everyone realized that preventive arrest laws were introduced as a tool to curb political dissent in the country. India was the only major country to introduce preventive arrest laws during that time and such laws were not formulated even during world war time. In India people can be detained under these laws if police and the magistrate are satisfied with anticipation of cognizable offence and it is important to mention that when such prevent arrest laws were introduced in England during war time such arrest was subject to satisfaction of Great Britain’s Home ministers. shows the mischievous and unlawful thoughts behind introducing Preventive arrest laws in India even though they were not necessary at that time. Eminent jurist “Alladi Krishnaswamy Ayyar” termed preventive arrest laws as “necessary evil” as according to him individuals were preventively detained to undermine constitution’s sanctity, liberty of an individual and state’s security. It was assumed that Preventive arrest laws were framed for including safeguards for its use and misuse and not for prohibition of preventive arrest.
Preventive arrest – Case Study and Object of laws
To know the object of preventive arrest laws and its element we need to know what Supreme Court has said in cases related to preventive arrest.
- In Rajender Singh Pathania v. NCT of Delhi, Supreme Court said that to arrest a person there should be imminent threat which implies that section 151 can be invoked only when an individual poses imminent danger or threat to peace of society under section 107. Judgement stated that police must be satisfied with the design of committing cognizable offence and this design should come to knowledge of police officer before making preventive arrest. 2 important points discussed by justice B.S Chauhan and P. Sathasivam were:
- Role of magistrate was defined- prompt action need to be taken by concerned authorities if proceedings under section 107/151 are absolutely necessary to deal with threat of breach of peace, here magistrate should act according to section 107 when any such emergency arrives.
- Power of preventive arrest carries the objective of protection of society. This power is not to punish an individual but to prevent him from doing any wrong.
- In the Kubic Darusz vs Union of India (1990 AIR 605, 1990 SCR (1) 98) case, precautionary nature of detention laws was defined. It was observed by court that detention laws are not punitive in nature. Court held that the object of law is not to punish people but to intervene and prevent an individual from doing any wrong. Court stated that “no offence is proved, no charge is formulated, suspicion and reasonable probability are justified reasons for detention. There is no criminal conviction, which can only be warranted by legal evidence and thus it is an anticipatory action”.
Preventive arrest was differentiated from punitive detention in Pushpa Devi case (1987 AIR 1748, 1987 SCR (3) 46 )Court observed that though “detention” element remains same in both punitive as well as preventive detention, but main difference is in their objectives. Preventive arrest is an extraordinary measure taken by concerned authorities for safety of public, welfare of state, maintaining public order when threat is imminent and no punishment is given but in punitive detention, court punishes the wrongdoer whose crime has been proved in court of law with punishments like institutional treatment deterrence, retribution etc.
Mariappan vs The District collector (Mariappan vs The District Collector, 18 August, 2014) laid similar object of preventive arrest as laid in other judgements which is “prevention of commission of cognizable offences as object of preventive arrest laws and not to punish.”
It can be said that justification of preventive detention is suspicion or reasonable apprehension and reasonable probability of impending commission of an act prejudicial to state. Arrest is only to prevent commission of any cognizable offence in the near future.
Misuse of power
There is a serious concern regarding misuse of power of preventive arrest. Power of preventive arrest can be used arbitrarily by the police to satisfy the political master or other powerful people in the country.
If any provision of law is violated by the police officer, then the person wrongfully arrested can proceed against the arresting authority for violation of fundamental rights under Article 21 and 22 of Indian Constitution. It can be said that satisfaction of the concerned authority can be subjective and can result in misuse of power.
Protection against Arrest and Detention
Safeguards provided under Article 22 regarding misuse of power of preventive arrest are as follows:
Time period - article 22(4) states that arrest cannot exceed 3 months. Extension of this time period requires transfer of case to advisory board it depends to advisory board to approve such extension or not.
Article 22(2) states that the person arrested has to be presented before the nearest magistrate within 24 hours of the arrest. Individual cannot be kept arrested for more than 24 hours without producing him before magistrate excluding the time necessary for journey from place of arrest to the court of magistrate.
Under article 22(7) parliament has power to extend the detention of an individual for more than three months without referring to advisory board.
Grounds of arrest - Article 22(5) states that no person arrested shall be detained in custody without being informed the grounds for such arrest. State may refuse to divulge the grounds of detention if it is in public interest to do so.
Opportunity of representation - Article 22(5) also mentions that the person arrested must be provided opportunity to make a representation against such detention. There is right to consult and right to be defended by a legal practitioner of his choice.
Reasonable action - power under section 151 is exercised only when arrest is the only way to prevent the offence and it is important for police officer to record his reasons of knowledge about the design of commission of a cognizable offence which can be anticipated. Any arbitrary action by police officer will directly affect fundamental rights under article 22 and 19(1)(d).
Any violation of conditions will result in breach of fundamental rights of the person concerned under article 21 and 22 of Indian Constitution. Police officers need to act reasonably before arresting any person before the offence is committed.
These safeguards have been provided to minimize the misuse of power under section 151. So preventive detention finds a place in fundamental rights chapter as it directly has impact on liberty of an individual. However, these safeguards are not available to Alien enemies.
Preventive arrest laws: constitutional view
In India, these preventive arrest laws affect an individual’s liberty by violating his fundamental rights. It becomes important to balance an individual’s rights and the duties. When such laws are introduced it becomes important to balance interest of stakeholders, in this case it is interest of society and interest of individual. Sometimes decisions have to be made to choose one of them to choose either interest of people as law-abiding citizens or the interest of the accused who has violated the law.
In the landmark judgment of Nandini Satpathy v. P.I. Dani (1978 AIR 1025, 1978 SCR (3) 608), the court said that “emphasis between effective crime prevention and protection of constitutional rights might shift depending on the circumstances.” Court also observed that it is important that police officer should provide reasonable justification for the arrest and to protect the rights of an arrested individual, there must be “bona fides” reasons behind the arrest. The judgment laid down guidelines on how preventive arrest laws need to serve interest of both.
Section 151 was also given constitutional status by the court in Ahmed Noormohmed Bhatti v. State of Gujarat. Though such arrest power may result in arbitrary action by police officer but this cannot make arrest laws unconstitutional. An arrest without the warrant of magistrate can be made only if police officer has reasonable grounds to believe on the design of the person for commission of cognizable offence and arrest can be made if there is no other way to prevent the harm. Court held that “detention thereafter if required cannot be under section 151 of the code but has to be under relevant provisions.” This provision is not arbitrary or unreasonable or infringing upon fundamental rights of any citizen under constitution.
Supreme Court of India has made several judgements on the changing prospects of arrest laws in the country. One such judgement was given in the case of Joginder Kumar v. State of U.P (1994 AIR 1349, 1994 SCC (4) 260) wherein the court stated that scope of citizen’s rights is increasing along with increase in crimes. Interest of people and interest of state coexist and both rights of citizens and state’s duty to reduce crime in the country are to be taken care of.
From the above mentioned judgements it can be said that courts have done their best to maintain a balance between interest of society, individuals and states duty to curb crimes. These judicial precedents show preventive arrest laws from constitutional view and its connection with rights of individual.
Conclusion
Here we have studied what preventive laws are, power of police officers under section 151, misuse of such power, role of magistrates, safeguards against arrest and detention, grounds for invocation of section 151 and most importantly constitutional mandates and human rights connection with these preventive arrest laws through important judicial precedents. From time to time these arrest laws have adapted to the changing circumstances, formulated at the time when such laws were not required in the country to the time when their constitutionality was questioned in the courts. Courts have also focused on precautionary nature of these arrest laws and that arrest is only a preventive measure. Courts make sure that liberty of an individual is not affected from such arrest laws. For proper functioning of the state it is important that interest of society and individuals are taken care of but at the same time steps are being taken to reduce the crimes in the country. However, security and welfare of state and rights of an individual always has an upper hand but courts have always tried to maintain a balance in two competing interest.
---
Aditya is a 2nd year law student at National Law University Delhi. An adventurous person, he actively participates in sports activities and loves to go trekking. He is a football fan and you can easily find him discussing football matches with his friends. His interests include Commercial Law, Constitutional Law, Criminal Law and Competition Law.
No comments:
Post a Comment