In this article, Nikita Sukhathankar pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the power of police to detain and arrest people.

Introduction

For decades, across the globe, there has been an ongoing debate on the validity of preventive arrest by the law enforcement. Preventive arrest simply put, is detaining a person who is likely to commit a cognizable offence in the future. A number of statutes and a variety of provisions have been passed by the legislation in order to prevent such occurrences. Two of the most frequently used pieces of legislation in India are Sections 107 and 151 of Code of Criminal Procedure, 1973.

What is an arrest?

The Code of Criminal Procedure fails to define the term ‘arrest’. Arrest in a general sense has always been associated with taking someone into police custody. In criminal law, it means apprehending someone who has committed an offence or is likely to commit an offence by taking them into custody by an authority, more often than not, by the police through the cessation of liberty, in order to put a criminal charge against that offender. Subsequently, preventive arrest is depriving someone of their liberty by taking them into police custody before the commission of the offence.

Code of Criminal Procedure and the relevant chapters

Historically, preventive arrest was notoriously used in India during the British rule under the Bengal Regulation— III of 1818 (the Bengal State Prisoners Regulation) which empowered the government to detain or arrest anybody on mere suspicion. Various other such statutes were enacted since then and until now such regulations exist. However, these regulations have been criticized by Human Rights activists since these provisions seldom lead to illegal arrests.

The Code of Criminal Procedure is a procedural statute that acts as a mechanism to punish the offenders under the substantive criminal law like the Indian Penal Code. Preventive arrest comes under Chapter VIII and Chapter XI.

Chapter VIII of Code of Criminal Procedure deals with ‘Security for keeping the peace and for good behaviour’ and particularly section 107 purports the power of the Executive Magistrate who has received information that a person is likely to commit breach of peace or disturb public tranquility in any way, to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

Subsequently, Chapter XI of Code of Criminal Procedure deals with ‘Preventive Action of the police’ and the objective of Section 151 is to vest power in the hands of the police to arrest a person without a warrant or an order from the Magistrate, in cases where they have knowledge of that person designing to commit a cognizable offence and there is a sufficient cause to believe that the commission of such offence cannot be otherwise prevented.

It is clear that the object of Sections 107 and 151 is to avert the commission of an undesirable offence and not punish for a certain crime committed.

Power of Police under Sections 107 and 151 of Code of Criminal Procedure

To understand the power of police under these statutes, it is imperative to examine what the sections exactly convey.

Section 107, Code of Criminal Procedure

(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond 1 [with or without sureties,] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.

In Madhu Limaye and Anr. v. SDM Monghyr and Ors. 1971, Supreme Court has explained the terms public tranquility and public order so that there are no grounds for confusion; the court held that public tranquility and public order partially overlap each other. While a person playing loud music may disturb public tranquility but not the order. The expression public order although includes tranquility, it also presupposes the absence of insurrection, riot or crimes of violence.

The executive magistrate mentioned in Section 107 is a part of the executive wing of the government and not the judiciary. This section has specifically vested powers in the hands of an Executive magistrate to show cause such person about whom s(he) may have received information as stated above. Such information may be received by a police who has witnessed the said person regarding whom the police may have an apprehension of committing a breach of peace or public tranquility. It is to be noted that section 107 does not vest any power in the hands of the police to arrest. However, according to a consultation paper on the law relating to arrest written in 1999, by the then chairman of law commission Justice B.P. Jeevan Redd, it was found that

“this provision (Section 107) does not empower a police officer to arrest such persons. Yet, the fact remains that a large number of persons are arrested under this provision as well.”

Simply put, Section 107 of the Criminal Procedure Code states that the executive magistrate has the power to apprehend any individual for not more than a year on information that a person is likely to disturb peace and public tranquility

Section 151, Code of Criminal Procedure

Section 151 empowers the police to arrest a person, without a warrant, whom they believe, may commit a cognizable offence. There are certain conditions laid down under Section 151 with regard to the arrest, like

• the commission of an offence that is anticipated by the police must be a cognizable one and
• it appears that the anticipated offence shall only be prevented by arrest.

Consequently, while Sections 107 and 151 may vest certain discretionary powers in the hands of the Executive Magistrate and the police respectively, it does not vest wide arbitrary powers.

Constitutional validity of sections 107 and 151 of Code of Criminal Procedure.

Numerous petitions have been filed questioning the constitutional validity with regard to the powers vested in the hands of the magistrate and the police under these sections.

Medha Patkar v. State (2007)

In this case, certain landowners of Madhya Pradesh and other persons affected by Sardar Sarovar Project gathered on the road, shouting slogans, demanding land for land and other rehabilitation measures. They raised no apprehension of committing a cognizable offence or disturbing public order or tranquility. Despite that, the police beat up the protestors along with women and children and arrested all of them under Section 151 of the Code of Criminal Procedure and were summoned by the Magistrate under Section 107. It was held that sending them to jail on the failure of furnishing personal bond was a violation of Article 21 of the Constitution of India.

Grounds to prove Section 107 and 151 to be intra-vires of the Constitution of India

The above case serves enough grounds for apprehension in people’s minds regarding preventive arrest laws in India. However technically, Sections 107 and 151 have been proven to be intra-vires to the Constitution of India on the following grounds:

1. Firstly, Section 151 provides for grounds of arrest thereby ruling out the argument of vesting wide discretionary and ‘arbitrary’ powers in the hands of the police which may be contrary to the principles of a democratic government.
2. Moreover, in Section 107, it is clearly mentioned that the Executive Magistrate must have information for a certain person potentially disturbing public tranquility or breach of peace. The Magistrate must be satisfied by such information about the said person and consequently, (s)he must issue a notice to show cause under Section 111 Code of Criminal Procedure.
3. The notice must contain specific details of the information received and the consequent reasons for show cause. The Magistrates do not only rely on the information received, but also inquire into the matter themselves or by some other agency or may call for a detailed report from the police.
4. Besides the provisions of sections 107 and 151, Article 22 of the Constitution of India gives a legal recognition to the laws in pursuance of preventive detention/arrest.

Ahmed Noormohmed Bhatti vs State Of Gujarat And Ors, 16 March, 2005

In this case, the bench comprising of N. Santosh Hegde J., B.P. Singh J. and S.B. Sinha held that

“The provision (Section 151) by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.”

Abuse of power under Sections 107 and 151 of the Code of Criminal Procedure

It is no surprise that, though laws may technically satisfy the provisions of the Constitution of India, they still violate rights of the individual by the arbitrary use of such powers.

In Ahmed Noormohmed Bhatti vs State Of Gujarat And Ors, 16 March, 2005, when the counsel for the petitioner contended that the guidelines given by Supreme Court in the case of D.K. Basu v. State of West Bengal, [1997] 1 SCC 416 with regard to preventive detention should be applicable for provisions like Section 151, the court held it was unnecessary since the limitations and guidelines in the statute itself were deemed enough. The bench further clarified that

“A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority.”

While the order of the High Court seemed theoretically sound, they have failed to take a pragmatic view of the issue. Although revocation of a statute for preventive justice does not practically seem appropriate, denial of the application of guidelines afforded by the Supreme Court in the case of D.K. Basu v. State of West Bengal regarding preventive detention for this provision did not seem justifiable either.

The statue may be intra-vires to the Constitution but it does lack specificity in terms of remedies available against illegal arrest under the said section and the possibility of the same cannot be denied. For instance, the arrest of Anna Hazare on August 2011 under Sections 107 and 151 was viewed as unconstitutional, against democratic principles and similar to the situation during National Emergency, by the retired IPS Officer- Kiran Bedi.

Section 107 is preventive section and not punitive, hence there will be no strong and legal grounds for incarcerating a person unless there has been an in-depth scrutiny of facts presented to the Executive Magistrate on the basis of which he decides the case. Time and again the higher courts have reiterated that the Executive Magistrates cannot exercise this power according to their whims and fancies, yet there have been cases of illegal arrest.

Sathi Sundaresh v. The State P.S.I. Of Moodigere

In this case, the Magistrate under the Sections 107 and 111 of the Code of Criminal Procedure detained the petitioners who were arrested under section 151 of Code of Criminal Procedure, in judicial custody for 6 days without offering them a chance to be heard. This case was tried without scrutiny into the issue and there was no order issued under the provisions of Section 111 of the Code of Criminal Procedure. Ideally, when the alleged offender is present in the court, an order under section 111 should be issued. If the offender is not present, section 112 of Code of Criminal Procedure is invoked. However, none of these sections were invoked and the order of detention was arbitrarily given. In this case, the High Court of Karnataka held that

“Provisions of the chapter(VIII) may be easily made an engine of injustice and oppression and the High court will exercise the closest scrutiny to prevent the same”.

Suggestions

The author would like to further make a few suggestions on how to combat such arbitrary and irresponsible use of the said provisions:

Implementation of guidelines provided by the Supreme Court for cases of preventive detention in D.K. Basu v. State of West Bengal.

It is understood that the guidelines that were issued by the Supreme Court in the case of D.K. Basu are pertaining to preventive detention under the preventive detention law. However, the motive behind giving these guidelines was to curb the arbitrary use of power by the law enforcement and it can be inferred by this article that the guidelines specified in the sections 107 and 151 have been time and again proven to be inefficient to curb control the misuse of the same.

Making inquiries by the authorized Magistrate.

Order of detention under section 107 should be substantiated by the Executive Magistrate by making inquiries as well as with the help of other agencies so that fundamental rights of the person so detained must not be compromised.

Strict penal charges for persons involved in the misuse of these provisions.

The author believes that strict penal charges for the people that themselves misuse or even abet such misuse of these provisions are pertinent. The concept of preventive arrest is comprehensible for the people who are studying the law or any individual who is in some way connected to the legal fraternity. They understand the repercussions of lack of such preventive arrest laws and perhaps do not believe that the need to make any changes in the same is necessary. However, the law is made for the people of this land, India is a democratic country and the welfare of the people is of the utmost importance to the State, hence, it is important for people to believe in preventive arrest laws in India and not think of it as a tool of a totalitarian regime.

Conclusion

It is understandable that the state needs to develop a mechanism to prevent crime from happening. It is clever to be able to stop crime even before it happened, however, a state that goes by the principle of letting 10 guilty persons escape but not 1 innocent incriminated, such measures of preventive arrest must be exercised with great caution. Every mistake under these sections of falsely incriminating an innocent contravenes the principles of natural justice and rule of law, the two legal principles that the Constitution of India finds its basis on.

It can be inferred hitherto, that a statutory provision which abides by the Constitution of India can be used to the detriment of an individual’s constitutional rights. The author believes that measures could be taken to abolish the abuse of power under Section 107 and 151 of Code of Criminal Procedure, if not abolish but reasonably controlled by the abovementioned suggestions.

Lastly, the author likes to conclude by making a general observation that, many times Sections 107 and 151 have been invoked against people that participate in protests, although there may be no substantial grounds to invoke them. However, during the violent protests of the Dalit groups in Maharashtra with regard to the ‘Bhima-Koregaon battle’, an official number of merely 300 protesters were arrested in Mumbai while there were infinitely more protesters violently vandalizing people’s property, threatening people to go home by pelting stones and the like. Police seemed to have no more authority than to stand helplessly while the city was under a state of terror. It is indispensable that power of the police under these sections must be used as a tool of preventing crime while also protecting the fundamental rights of the people and not of satisfying political exigencies or using it as a tool of oppression.

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