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.
- 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.
2. 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.
3. 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
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.
It is understandable that the state needs to develop a mechanism to prevent crime from happening. 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.