This article is written by Sushmita Choudhary from New Law College, Bharati Vidyapeeth Deemed University. It deals with the preventive actions that are provided to the Police under CrPC.
Table of Contents
Introduction
Powers of the Police are very wide and are mostly covered under The Code for Criminal Procedure Act, 1973, and The Police Act, 1860. The CrPC gives provisions not only for punitive actions to be taken after the commission of crimes but also for preventive actions to be taken for taking all the possible measures to prevent the commission of crimes. Powers of the preventive actions of the police have been highly debated from time to time.
Remember Anna Hazare’s Incident?
Thousands of people had taken to the streets across India to protest against the arrest of Anna Hazare, an anti-corruption activist, who was just some hours due to start his indefinite hunger strike to demand new and tough laws against political corruption. Hazare’s arrest under Section 107 of CrPC combined with preventive action law under Section 151 of CrPC had caused a huge public outrage across India. By the evening of that day, 13000 of his supporters were arrested in Delhi while protesting. In the light of this event, this action by the police and the executive magistrate was questioned and condemned all over India. Following the upsurge of popular anger which the ‘preventive’ arrest of Anna Hazare triggered, the Delhi Police released the anti-corruption crusader by nightfall.
Powers Of Police
The Code of Criminal Procedure, 1973 confers important powers on police officers like the power to investigate, search and arrest. Also, their ancillary tasks extend to patrolling their jurisdiction in order to ensure safety.
Power to register FIR
An officer in charge of a police station has the power to lodge an FIR (First Investigation Report) under Section 154 of the Code of Criminal Procedure, 1973. If upon receiving information, an officer in charge of a police station refuses to record the information and lodge an FIR relating to any cognizable offence under Section 2(c) CrPC, the aggrieved person may send the substance of that information to the concerned Superintendent of Police. If the SP is satisfied that the substance of such information designs the commission of a cognizable offence, he shall investigate the case himself or order any police officer subordinate to him to do the same, giving him the powers of an officer in charge of a police station.
Power to investigate and procedure of investigation
Section 156 gives power to any officer in charge of a police station to investigate a cognizable offence without an order from the magistrate and the proceedings cannot be called in question on the ground that such officer was not empowered to investigate under this section. When a competent magistrate receives information about a cognizable offence, he may also empower the police officer to investigate it.
Section 157 lays down the procedure for an officer in charge of a police station who,upon receiving information or otherwise for the commission of a cognizable offence, shall start investigating himself or through his subordinate and shall forthwith send a report to the respective magistrate. On completion of the investigation, he shall submit the report as per Section 173(2) which should contain:
- Names of the parties and nature of the information;
- Names of persons who appear to be related to the circumstances of the case;
- Whether any offence appears to have been committed and if so, by whom;
- Whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties;
- Whether he has been forwarded in custody under Section 170.
If the State Government by general or special order appoints a Superintendent of Police to submit the report on his behalf to the concerned magistrate, it can happen under Section 158.
Power to inquire and report on suicide, etc.
Section 174 of the code empowers police to inquire cases where a person has committed suicide, or has been killed by another, or by an animal or machinery by accident, or has died under circumstances that indicate suspicion of some other person committing the offence.
Power to require the attendance of witnesses
According to Section 160 of the Code, Police can order by writing any witness who appears to be acquainted with the facts and circumstances of the case to be present before him except the witnesses mentioned in Section 160(1) of the Code.
Power to make an arrest
Police have the power to arrest people for both Cognizable as well as Non-Cognizable offences. The police have no power to make an arrest without a warrant and without any order from the Magistrate for non-cognizable offence whereas, for cognizable offences, police can make an arrest without any warrant and orders from a Magistrate. Such an arrest for a cognizable offence is considered as a preventive action of the police. We are mainly going to deal with cognizable offences.
Preventive Action By The Police
Preventive measures to be taken by police have been given under Section 149, 150 and 151 of the CrPC.
Police to prevent cognizable offences
According to Section 149 of CrPC, every police officer is empowered to interpose and make his best efforts in preventing a cognizable offence. A police officer is therefore granted a duty as well as an authority at the same time. Cognizable offences are serious in nature like murder, rape, dowry death, kidnapping, etc.
Role of Section 149 in the CAA-NRC protests
The Mumbai Police on February 8, 2020, had served notices under Section 149 CrPC to the protestors at Nagpada in Mumbai. The notice stated that the sit-in was being carried out without any requisite permission from the police and also that the police had warned the protestors verbally. The police in the notice stated that the responsibility for any law and order that might arise in the future lies in the hands of the protestors. Some protestors refused to sign the notice.
Information of design to commit cognizable offences
According to Section 150 of CrPC, Every police officer on receiving information of a potential design to commit any cognizable offence, shall communicate such information to the officer whom he is subordinate to, and to any other such officer who has the authority to deal with the prevention of commission of such cognizable offence.
Arrest to prevent the commission of cognizable offences
According to Section 151(1), CrPC, a police officer by knowing of or receiving a design that has a potential to commit any cognizable offence may arrest such person so designing, without a warrant or the orders from a Magistrate, provided it appears to the police officer that the commission of the offence can’t be prevented by any other way.
Section 151(2), CrPC, says that the person so arrested shall not be detained in custody for more than twenty-four hours from the time of his arrest unless his further detention is ordered by the Magistrate.
Ahmed Noor Mohamad Bhatti V. State of Gujarat and Ors on 16 March 2005
This section has been debated from time to time. In the case of Ahmed Noor Mohamad Bhatti V. State of Gujarat, the Supreme Court upheld the constitutional validity of Section 151 of CrPC giving a police officer the power to arrest and detain a person without a warrant to prevent a cognizable offence ruling that the abuse of this power by the police officer cannot render this provision as arbitrary and unreasonable.
The Supreme Court also said that this preventive detention act was a necessary tool to prevent the commission of any cognizable offence or activities.
Prevention of injury to public property
According to Section 152 of CrPC, a police officer may interpose on his own if in his view, there is an attempt
- to injure public property whether movable or immovable;
- to remove or injure any public landmark;
- to remove or injure any buoy or other mark used for navigation.
The term ‘public’ has been defined under Section 12 of the Indian Penal Code.
Inspection of weights and measures
According to Section 153 of CrPC, any officer in charge of a police station is empowered to conduct or initiate a search in any such place where he has the suspicion that a false weight or measuring technique is being made or sold. Certain conditions have been laid down to exercise these powers:
- The place to be searched must lie within the local jurisdiction of the police station;
- The place can be searched by an officer-in-charge of the particular police station or any other police officer but not ranking below a Sub-inspector;
- The search must be conducted according to procedures laid out under Section 103 of CrPC;
- The officer conducting the search must have reasonable grounds to believe that there are false weights, measures or instruments being used in that place;
- The owner or person in possession of such a place should have the intention of deceiving or defrauding any other person.
So, considering the above conditions, the officer is empowered to conduct a search without any warrant or written order by the Magistrate.
Instances of misuse of preventive action
The concept of preventive arrest is intelligible for the people who understand the law because they can comprehend the repercussions of lack of such preventive action laws.
However, the laws are made for all the people of India which is a democratic country, and welfare is of utmost importance to the State. So, it is important for common people to believe in these prevention laws and not think of it as some tool to infringe fundamental rights.
Nilabati Behera v State Of Orissa and Ors on 24 March 1993
In this case, Suman Behera, son of Nilabati Behera was arrested by the Orissa Police for investigation of the offence of theft (theft is a cognizable offence). Then, he was detained at the police outpost. The next day, his dead body was found on the railway track. There were lacerations on his body that indicated an unnatural death. A letter was sent by Nilabati Behera to the Supreme Court which took suo moto action and converted it into a writ petition under Article 32 of the Indian Constitution. There was an inquiry made by the district judge which added evidence of multiple injuries being inflicted on Suman during the police custody at Police Outpost, Jeraikela. The police however argued in the petition filed by Nilabati Behera that Suman Behera had managed to escape from their custody at about 3 a.m. on the night between the 1st and 2nd December. They argued that despite their efforts of searching him, he could not be apprehended and thereafter, his body was found on the railway track over which there was this possibility of a train passing over him.
The court noted that there was no logical evidence of any search by the police to find Suman Behera and also, it was reported by railwaymen that the police reached much later to take charge of the body which raised questions to the credibility of their statement. The injuries according to a doctor’s report were caused by a blunt object which also raised doubts of lathi blows.
The Hon’ble Supreme Court awarded a compensation of Rs. 1,50,000 to the mother of the deceased and ordered a sum of Rs. 10,000 to be paid to the Supreme Court Legal Aid Committee. Also, the Supreme Court directed the state of Orissa to initiate criminal proceedings against those who were involved in the death of Suman Behera.
Sathi Sundaresh v. The State P.S.I Of Moodigere on 12 April 2007
In this case, the petitioners were on strike on 6.3.2007 intending to pressurize the local MLA and Health Department to provide infrastructure facilities to the M.G.M Hospital at Moodigere. They also raised the demand for appointment of doctors with specializations to the said hospital.
The petitioners had gathered in front of the house of the local MLA during midnight of that day. The Sub-Inspector of Police in the exercise of his power under Section 151 of CrPC arrested the petitioners. The said fact was informed to the concerned executive magistrate on 6.3.2007 itself by the police. The Taluka Executive Magistrate passed the order in exercise of his jurisdiction under Section 107 of CrPC and directed the Sub-Inspector of police to send the petitioners to judicial custody from 6.3.2007 to 12.3.2007.
But no person arrested under Section 151(1) of CrPC could be detained for more than 24 hours from the time he was arrested unless his further detention was required or authorized under any other provisions of CrPC or any other law for the being in force. The petitioners were produced before the concerned executive magistrate within 24 hours of their arrest, but not before the judicial magistrate. The executive magistrate had not passed any order in writing under Section 111 of CrPC or Section 116(3) of CrPC. So, the detention could not have been continued under Section 113 or Section 116(3). Applicability of Section 167 of CrPC was also ruled out before the executive magistrate.
So, the Executive Magistrate and the police obviously had no power, jurisdiction or authority to keep the petitioners under the custody of six days.
Medha Patkar V. State of M.P And Anr. on 25th September 2007
In this case, Medha Patkar vs the State of M.P. And Anr., certain landowners and other persons adversely affected the Sardar Sarovar Project gathered on the road for protesting. They shouted slogans which were about demanding land and other rehabilitation measures. The police had beaten up the protesters which included women and children also and arrested them under Section 151 of CrPC despite the fact that they raised no apprehension of committing a cognizable offence or disturbing public order or tranquillity. The Supreme Court directed the State of Madhya Pradesh to pay a compensation of Rs. 10,000 to the petitioner of this case and each male and female protestors who were arrested by the police in the evening of 25.7.2007 and after that, detained in Badwani and Indore Jails because their fundamental rights under Articles 19 and 21 of the Indian Constitution had been violated.
Conclusion
Police are an important part of our society to ensure a smooth and healthy running of it. It is understandable that the state requires a smooth mechanism for preventing crimes. However, the ultimate intention of the state is to ensure the protection of the rights and interests of the individuals. So, the measures of preventive actions by the police should be exercised with great caution. Every mistake of falsely incriminating an innocent person opposes the rule of law and principles of natural justice. Hence, the police should not misuse these provisions and strict legal actions should be taken against those misusing it.
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