Constitutionality of Section 107 and 151 of Cr.P.C by Sini Sunny @ LexCliq

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For the purpose of arresting without a warrant, a police officer may pursue such an individual into any place in India as stated under Section 48. Section 49 of the Code says that the arrested person shall not be subject to any unnecessary restraint or physical inconvenience unless it is required to do so to prevent his escape.

Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.

Landmark Case Laws

Birendra Kumar Rai vs Union of India 1992 It was held that to make an arrest the police officer need not be handcuff the person, and it can be completed by spoken words  also if the person submits to custody himself.

It was held in the case of Bharosa Ramdayal vs Emperor, 1941, that if a person makes a statement to the police admitting himself of committing an offence, he would be considered to submitting to the custody of the police officer. Also, if the accused goes to the police station as directed by the police officer, he has again considered to have submitted to the custody. In such cases, physical contact is not required.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held by the court  that keeping a person in custody in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.

Medha Patkar v. State (2007): This is a case in MP regarding the Sardar Sarovar Project. Some landowners and other people who were affected by this project in MP gathered on the road, shouting slogans, demanding land for land and other rehabilitation measures.  The gathering was peaceful without disturbing public order and peace but despite this the Police took it upon themselves to beat the protestors and arrest all of them under Section 151 of CrPC and also summoned by the Magistrate under Section 107 of CrPC.There were women and children too among the protestors. When the protestors did not submit a personal bond then sending them to jail, still amounted to the 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 of Medha Patkar v. State (2007) 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 151provides 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 Indiagives a legal recognition to the laws in pursuance of preventive detention/arrest.

 

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. It is believed 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, I would like 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.

 

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