Can The Police Arrest You Before You Commit An Offense

Coverage of this Article

Key Takeaways

Chapter V of the Code for Criminal Procedure grants police officers the power to arrest.

Introduction

-The Police Act, 1860 and The Code for Criminal Procedure, 1973 are the key legislations that expound the powers granted to a police officer in India. 

Provisions in the Police Act, 1860

-The Police Act of 1860 established the principles of administration for Indian police forces, with its preamble stating that it is imperative to restructure the police and make it a more efficient tool for crime prevention and detection.

Provisions in the Code for Criminal Procedure, 1973

-The 1973 Code of Criminal Procedure grants police personnel significant powers such as the authority to investigate, search, and arrest. In addition, their supplementary duties include patrolling their jurisdiction to maintain safety.

Section 149, CRPC

-Section 149 provides the police with the power to prevent cognizable offenses. Murder, rape, dowry death, abduction, and other heinous crimes constitute cognizable offences. 

Section 150, CRPC

-This Section is regarding the information of design to commit cognizable offences.

Section 151, CRPC

-Section 151allows the police to make arrests without the need for a warrant before committing a crime.

Section 152, CRPC

-Section 152 empowers the police to prevent an injury to public property. It states that a police officer may, on his own authority, intervene to prevent any harm to public property, moveable or immovable, or the loss or injury of any public landmark, buoy, or any other mark used for navigation.

Misuse of the Power of Preventive Arrests

-Regardless of the safeguards established in the Code of Criminal Procedure and the Constitution of India, the truth remains that the power of arrest is wrongfully and unlawfully applied in a huge number of cases throughout the country.

Safeguards against Misuse

-If an individual is arrested under Section 151 CrPC or other sections without adhering to the necessary requirements of the law, the arrested person has the right to initiate proceedings against the arresting authorities for breaching the fundamental rights guaranteed by Articles 21 and 22 of the Constitution. 

Constitutional Validity of Preventive Arrests

-The constitutional validity of preventive arrests was questioned in the caseof Ahmed Noormohmed Bhatti v. State of Gujarat [(2005), SC 2115]. 

Conclusion

-The preventive arrest authority should only be employed when a cognizable offence is going to be committed and there is no other option except to arrest the accused to prevent the crime.

Key Takeaways

• Chapter V of the Code for Criminal Procedure grants police officers the power to arrest.
• Chapter XI of the CrPC, particularly Section 151 grants police officers the authority to make preventive arrests to avert a cognizable offense.
• A person apprehended as part of a preventive arrest cannot be kept in custody for more than 24 hours without being produced in front of a magistrate.
• An officer must have specific knowledge of an individual about to conduct a cognizable offence to be able to arrest him under Section 151.

Introduction

The Police Act, 1860 and The Code for Criminal Procedure, 1973 are the key legislations that expound the powers granted to a police officer in India. Through these legislations, the police are given the authority to not only take action against individuals who have committed crimes but also those whom they believe could commit one in the near future. The concept of preventive action or arrests by the police has been subject to much controversy due to its uncertain nature and potential misuse. It is often debated to be violative of the fundamental right to personal liberty, as punitive measures are imposed without the existence of a perceptible crime to punish.

Provisions in the Police Act, 1860

The Police Act of 1860 established the principles of administration for Indian police forces, with its preamble stating that it is imperative to restructure the police and make it a more efficient tool for crime prevention and detection.

Section 23, which elucidates the duties of police officers’ states that every officer must take all steps necessary to legally prevent the commission of offences and public nuisances.

Provisions in the Code for Criminal Procedure, 1973

The 1973 Code of Criminal Procedure grants police personnel significant powers such as the authority to investigate, search, and arrest. In addition, their supplementary duties include patrolling their jurisdiction to maintain safety. The obligations and responsibilities granted to police officers for conducting arrests are outlined in Chapter V of the Code of Criminal Procedure. Meanwhile, Chapter XI of the Code deals with preventive action of the police, specifically Sections 149, 150 and 151.

Section 149, CRPC

Section 149 provides the police with the power to prevent cognizable offenses. Murder, rape, dowry death, abduction, and other heinous crimes constitute cognizable offences. The Section provides every police officer with the authority to intervene and use his best endeavors to avert a cognizable offence. As a result, a police officer is entrusted both a duty and authority. This section was notoriously used on CAA-NRC protestors by the Mumbai police in 2020.

Section 150, CRPC

This Section is regarding the information of design to commit cognizable offences.It states that when a police officer receives knowledge about a probable plot to conduct a cognizable offence, he must notify the officer to whom he reports and any other officer who has the power to deal with the prevention of the conduct of the cognizable offence.

Section 151, CRPC

Section 151allows the police to make arrests without the need for a warrant before committing a crime. This clause was drafted during the British administration and was adopted by Independent India. It enabled rulers to conduct arrests under the guise of reasonable restriction.

Section 151(1) empowers a police officer who knows of or receives a design that has the potential to commit any cognizable offence to arrest such person without a warrant or the orders of a Magistrate, if the police officer believes that the commission of the offence cannot be prevented in any other way.

Section 151(2) states that the person apprehended should not be kept in custody for more than twenty-four hours from the time of his arrest unless the Magistrate orders longer detention.Furthermore, the police do not have the authority to release a person detained under this provision out on bail.

When a person is detained under the provision of preventative arrest, all procedures of arrest without a warrant - such as producing the person before a Magistrate within 24 hours, notifying him of the basis of his arrest, and so on, as outlined in the CrPC must be followed. If no steps are initiated after the detention, either to demand a security bond or to initiate criminal proceedings against the individual, he must be released within 24 hours.

If the police officer has no knowledge regarding the design to commit the cognizable offence, the arrest under Section 151 is illegal. The prospect of a breach of peace does not fall within the category of intent to conduct an offence. As a result, preventive arrests must be made only when the officer has specific knowledge of an individual about to conduct a cognizable offence and there are sufficient grounds to conclude that the offence cannot be averted by other means.

Section 152, CRPC

Section 152 empowers the police to prevent an injury to public property. It states that a police officer may, on his own authority, intervene to prevent any harm to public property, moveable or immovable, or the loss or injury of any public landmark, buoy, or any other mark used for navigation.

Misuse of the Power of Preventive Arrests

Regardless of the safeguards established in the Code of Criminal Procedure and the Constitution of India, the truth remains that the power of arrest is wrongfully and unlawfully applied in a huge number of cases throughout the country. This ability is frequently used to extract money and other valuable property, especially in the case of a rival of the person detained. Even in civil conflicts, this authority is used on the basis of a false claim made against a party to a legal dispute at the request of his opponent.

The vagueness and ambiguity of the language of the Code provides the potential for abuse of authority. Words such as ‘reasonable’, ‘believable’, ‘credible’, and phrases such as ‘if it appears to such officer’ as seen in Sections 41, 42, and 151 are objective, but their usage is very subjective. Because of the risk of repercussions, police personnel who manipulate these areas are rarely prosecuted. Furthermore, there is no in-house structure in the department to keep a check on police wrongdoing, providing the officers unrestrained leeway to engage in such unethical behavior. This overwhelming power not only leads to obstruction of justice and corruption in the police force, but also violates our fundamental constitutional rights.

Safeguards against Misuse

If an individual is arrested under Section 151 CrPC or other sections without adhering to the necessary requirements of the law, the arrested person has the right to initiate proceedings against the arresting authorities for breaching the fundamental rights guaranteed by Articles 21 and 22 of the Constitution. A victim of such unjust prosecution can now seek three types of relief: writ remedies, civil court compensation, and punitive measures against the defaulting police official. The recent Supreme Court decision in the Nambi Narayan case [2018 AIR SC 5112] clearly defines these remedies. Simultaneously, steps are being initiated to incorporate a new chapter on unjust prosecution into the CrPC, as recommended by the Law Commission of India in its 277th Report.

Constitutional Validity of Preventive Arrests

The constitutional validity of preventive arrests was questioned in the caseof Ahmed Noormohmed Bhatti v. State of Gujarat [(2005), SC 2115]. A three-judge bench of the Supreme Court, in this case,ruled that Section 151 cannot be deemed arbitrary solely due to the fact it may be abused by the relevant authorities. The court stated that a simple perusal of Section 151 of the Code of Criminal Procedure reveals the criteria under which a police officer may arrest a person without a Magistrate's order and without a warrant, if the criteria are not adhered to, proceedings against the defaulter may be initiated.Hence, the provision cannot be deemed arbitrary or ultra vires to the constitution as it has safeguards in the form of essential conditions laid down in the section itself. However, the Supreme Court had taken notice of the misuse and questioned the police about their understanding of public order.

Conclusion

The preventive arrest authority should only be employed when a cognizable offence is going to be committed and there is no other option except to arrest the accused to prevent the crime. However, such protocols are seldom followed and are frequently abused for personal advantage. It is logical that the state wants an efficient method for crime prevention. However, the ultimate goal of the state is to assure the preservation of people's rights and interests. As a result, preventive measures of police should be used with extreme discretion. Every error in wrongfully accusing an innocent person undermines the rule of law and natural justice principles. As a result, people who abuse the system should face severe legal consequences. Preventive arrest legislation should be subject to judicial scrutiny in order to restrict its usage. If a person is arrested, adequate proof must be presented to warrant the arrest.