Power of police to detain and arrest people under
Section 107 and 151 of Code of Criminal Procedure
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
(1) A police officer knowing of a design to commit
any cognizable offence may arrest, without orders from a Magistrate and without
a warrant, the person so designing, if it appears to such officer that the
commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub-section (1) shall
be detained in custody for a period exceeding twenty-four hours from the time
of his arrest unless his further detention is required or authorised under any
other provisions of this Code or of any other law for the time being in force.
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:
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.
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.
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.
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.
complaint under section 107 of crpc
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