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 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 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 the 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 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 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 277th Report.

Executing bond for keeping the 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 the 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 says 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

• 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 police officer may arrest a person without 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 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.