ROLE OF THE STATE IN EXCERCISING POWERS OF

PREVENTIVE ACTION UNDER CRPC.

SYNOPSIS:

1. INTRODUCTION.

2. HISTORICAL BACKGROUND.

3. MEANING OF ARREST.

4. EXECUTIVE NATURE OF PREVENTIVE MEASURES.

5. PREVENTIVE ACTION OF POLICE UNDER CRPC.

5.1. PREVENTION OF COGNIZABLE OFFENCE.

5.2. PREVENTION OF INJURY TO PUBLIC PROPERTY.

5.3. INSPECTION OF WEIGHTS AND MEASURES.

5.4. PREVENTIVE ARREST AFTER 24 HOURS.

6. JUDICIAL PERSPECTIVE.

7. CONCLUSION.

BIBLIOGRAPHY.

WEBLIOGRAPHY.
 ROLE OF THE STATE IN EXCERCISING POWERS OF
PREVENTIVE ACTION UNDER CRPC.

1.INTRODUCTION:

Criminal jurisprudence is a as much concerned with the preventive of offences, as it is with the
trial and punishment of the wrong doer. 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. The criminal
procedure code,1973 provides not only for taking punitive action on crimes already measures to
prevent commissioning of crimes a s well. A number of statutes and a variety of provisions have
been passed by the legislation in order to prevent such occurrence. the primary object of criminal
procedure is to provide machinery for the administration of substantive criminal law. The primary
object of criminal procedure is to provide a machinery for the administration of substantive
criminal law. The code therefore enacted elaborate provisions for investigation, trial in respect of
every crime alleged to committed. Therefore, the code enacted elaborate pre emptive measures to
provide for any preventive action to be taken by a police officer to prevent the commission of a
cognizable offence. Preventive jurisdiction, under the code of criminal proceeding is classified
under two broad heads. The first may called magisterial action; and the second police action. The
magisterial preventive jurisdiction is dealt within chapter 8 and 10, it is a quasi-judicial and quasi
executive. Case falling under the second head are purely executive, they fall into categories. These
matters are contained in section 149 to 153 of the code.

2. HISTORICAL BACKGROUND:

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 led to illegal arrests1.

1
K.Rajsekharan, “power to make preventive arrest by police”, http://lawyersclubindia.com, 2018, last visted oct
30,2019.
The code of criminal procedure is a procedural statute tat acts as a mechanism to punish the
offenders under the substantive. Criminal law like the Indian penal code. Preventive arrest comes
under chapter XI2. Preventive action of the police and the objective of sections 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.

3. MEANING OF ARREST:

The term arrest means apprehension of a person by legal authority so as to cause deprivation of
his liberty. The code of criminal procedure fails to define the term ‘arrest’. As per legal dictionary
by Farlex arrest means a seizure or forcible restraint; an exercise of the power to deprive a person
of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in
response to criminal charge. Arrest in a general sense has always been associated with taking
someone into police custody. It is a important tool for bringing an accused before the court and to
prevent him from absconding3. The purpose of the arrest is to bring the arrestee before a court or
otherwise to secure the administration of the law. 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.

4.EXECUTIVE NATURE OF PREVENTIVE MEASURES:

The preventive actions of the police discussed under the section 149-153 are executive in nature
but not judicial. However other preventive measures in the code are quasi-judicial in nature. In the
latter case, the police have no power to take action without orders of the executive or judicial
magistrate. Every police officer is obligated under 149 Crpc to prevent the commissioning of any
cognizable offence by actively intervening in the commissioning of an offence. The police officer
has a duty to go and interfere in preventing the cognizable offence. The officer must prevent the
offence at the best of his ability. Every officer receiving information of a design to commit any

2
Preventive action of police.
3
Someshwar savalg, preventive actions of the police under sections 149-153 of the code of criminal procedure,
http://shareyouressays.com,last visited Nov 1.
cognizable offence must communicate such information to the police officer to whom he is
subordinate or any other officer whose duty is either to prevent or take cognizance of the
commission of such offence. The police officer has the power to interfere in preventing an attempt
to commit any injury to any movable or immovable public property, including any public
landmark. However, a preventive arrest is neither punitive nor equal to preventive detention under
some other special detention laws. The arrest is only to prevent commission of any cognizable
offence in the near future. The provision of grounds of arrest under rues out the possibility of the
arbitrary exercise of wide discretionary powers by the police.

5.PREVENTIVE ACTION OF POLICE UNDER CRPC:

5.1. PREVENTION OF COGNIZABLE OFFENCES:

Section 149 of the Code provides that “every police officer may interpose for the purpose of
preventing, and shall, to the best of his ability, prevent the commission of any cognizable offence”.
This section implies that a police officer is empowered to take any preventive action to stop a
cognizable offence from being committed. A cognizable offence, as defined under Section 2 (c) of
the code, means “an offence for which the police has the power to arrest and investigate without
the written authority of the Magistrate”. It may be noted that this section provides for prevention
of cognizable offences only. Wider powers for the prevention of offences in general are to be found
in section. 23 of the police act, 1861.

Every officer receiving information of a design to commit any cognizable offence must
communicate such information to the police officer to whom he is subordinate or any other officer
whose duty is either to prevent or take cognizance of the commission of such offence. A general
reading of the provision makes it categorical that the powers under this provision are very wide.
The use of the words “to the best of his ability” signifies that the section can be used to arrest and
detain a person in custody, to search any place related to the commission of a cognizable offence
and require any person to be interrogated for the purpose of prevention of the crime. It may be
noted that the section uses the word “shall” in the provision. It implies that it is not the power or
right of the police officer to prevent a cognizable offence but a binding duty, breach of which can
result in departmental proceedings.
In Ayyappakutty v. State4, the court held that “display of photos of criminals are evidently
preventive action which the police could resort to under the code”.

Further, Section 150 provides that when an information with respect to an intention or design to
commit an act which shall be a cognizable offence under the Code, is received by a police officer,
such officer should transmit the information to his superior officer or any other officer whose duty
is to prevent and take cognizance of such offences (usually, the officer in charge of a police
station). The code vests power to arrest and investigate upon an officer of certain specific rank, for
instance, Sub-inspector. However, it is possible that at the time when the information is received
the officer in charge (Inspector or Sub-inspector, as the case may be) and all the sub-inspector of
police are absent from the station house and the information may be recorded by an officer of a
junior rank (such as a constable or Assistant Sub-inspector). Thus, since such officers have not
been empowered to take action under the code, it is their duty to transmit information to the police
officers to whom he is subordinate.

Section 151 empowers a police officer “to make an arrest without orders from a Magistrate and
without a warrant, the person designing the commission of a cognizable offence, if it appears to
such officer that the commission of the offence cannot be otherwise prevented”. Thus, Section 151
empowers the police officers with similar powers as in the investigation of a cognizable case. It
has been held that if a person is arrested under this section, and is thereafter detained under any
other preventive measures, as for instance, the defence of Indian rules, the order of detention would
be illegal5.

For the application of Section 151, the following essentials or requirements must be proved:

 The officer must have substantial knowledge of the design to commit an offence,
 The offence must be a cognizable offence according to Schedule 1 of the code,
 Arrest must not be the first recourse to prevent the offence,
 The officer must have a reasonable belief that the commission of the offence cannot
otherwise be prevented.

4
1987 cri LJ 1593 (ker).
5
Prem lai sharma, 1966 13 L.J.R. 395.
The Supreme Court has held that if the requirements for the exercise of power under Section 151,
Cr.P.C. are not fulfilled and the person is arrested, the arresting authority may be exposed to
proceedings under the law. It has further been said in Manikandan v. SI of Police that a person
arrested on a mere suspicion cannot be said to be a person against whom commission of a
cognizable offence or non-bailable offence is alleged or made out and so cannot, without more, be
remanded to judicial custody and should be enlarged on bail treating the case as that of a bailable
offence.

The rules laid down in the code for arrest shall apply mutatis mutandis to arrest under this provision
as well. Section 151 (2) provides that “no person arrested under Section 151 (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 authorized under the provisions of the code”. This provision is in
consonance with Section 57 of the code which provides for the procedure after arrest in general.
The section has to be read with Sections 76 and 167 of the code.

Section 76 provides that any person who is arrested shall be produced before the jurisdictional
Magistrate within 24 hours of his arrest. According to this provision, the investigation by a police
officer should be completed within 24 hours before the arrested person is produced and the
legislative intent behind this part is that the officer may produce the arrested person and all the
evidence before the Magistrate at once and initiate the trial. However, in a practical scenario, none
of this is possible. Therefore, the role of Section 167 becomes significant. According to Section
167, if the police are unable to complete the investigation within the stipulated time of 24 hours,
the Judicial Magistrate having jurisdiction of that area may extend the detention of the arrested
person by 15 days and may, from time to time, increase it to effectuate effective investigation. In
Shyam Dattaray, the court observed that the above rule shall also apply to arrest made under
Section 151. The authority of a police officer under this section is only limited and exceptional
power to prevent the commission of a cognizable offence; the power is in no sense, analogous to
the power of preventive detention. Under this section, a police officer has no power to keep a
person under arrest in anticipation of a contemplated order of detention. It has also been held that
if a police officer arrests a person because he belongs to a particular party, as for instance the
communist party, and that party has a programme to commit some offences in general, it would
be an abuse of the powers granted by section 1516.

5.2. PREVENTION OF INJURY TO PUBLIC PROPERTY:

Section 152 states that “a police officer may of his own authority interpose to prevent any injury
attempted to be committed in his view to any public property, movable or immovable or the
removal or injury of any public landmark or buoy or other mark used for navigation”. This section
is aimed at protecting any public property to be destroyed by acts of an individual. The term
‘public’ is defined under Section 12 of the Indian Penal Code, 1860as “public includes any class
of the public or community but that class must be numerically sufficient to be designated as
public”. The term community cannot mean the residents of a particular household but it has a wider
implication than that.

Further, “public property” connotes any property to which the public has access without any
restriction or with permission of the competent authority. In Ram Kishore v. State, the court
observed that public property also includes property belonging to the State camping grounds and
grounds left unoccupied for sanitary or recreational purposes.

5.3. INSPECTION OF WEIGHTS AND MEASURES:

As asserted before, the Code of Criminal Procedure aims to provide machinery for the
administration of substantive criminal law. The Indian Penal Code which the prime substantive
criminal law specifically deals with offences related to possession and use of false weights and
measures with the intention to deceive or defraud customers of such enterprises possessing the
false weights and measures. It has been occasionally noticed that several vendors possess and use
false weights and measuring instruments to increase their profits by unscrupulous means.
However, the penal laws take a stern look at these acts and such actions are made punishable under
Section 264 to 267 of the IPC. Now, the question is the determination of the fact whether false
weight is being possessed or used or made and sold.

6
Prahlad panda vs union of India 51 cr.L.J. 891.
For the above purpose Section 153 of the Criminal Procedure Code, 1973 empowers any officer
in charge of a police station to conduct a search in such places where he has a reasonable suspicion
that a false weight or measuring technique is being used, made or sold 7. The exercise of powers
under this provision is subject to the following conditions:

 The place to be searched must be within the local jurisdiction of the police station,
 The search must be conducted by an officer in charge of the police station or any other
officer not below the rank of Sub-inspector,
 The search must be conducted according to the procedure for general search under Section
103,
 The officer must have sufficient reason to believe that there are in such place “any weights,
measures or instruments for weighing which are false”,
 The intention of the owner or person in possession of such a place should be to deceive or
defraud any other person.

If the above conditions are fulfilled, the officer can conduct a search in such place without any
warrant or written authorization by the Magistrate and seize any such false weights or measuring
instruments discovered.

5.4. PREVENTIVE ARREST AFTER 24 HOURS:

When a person is arrested under the provision of preventive arrest, all the formalities of arrest
without warrant such as production before magistrate within 24 hours, informing him of the reason
of arrest etc. as provided for in the Crpc will ensue. If no proceedings are taken either for
demanding a security bound or for launching criminal proceedings in a crime against after the
arrest, he should be discharged before exceeding 24 hours. Even though preventive arrest is a
short-term measure, many a court says that the police and executive magistrates misuse it in some
unimaginable ways out of poor appreciation pf law or holistic negation of it.

7
A.K Gopalan vs union of India, 1962 ker. 215.
6.JUDICIAL PERSPECTIVE:

In Rajender singh Pathania and others Vs state of Nct of Delhi8 and others the supreme court holds
that the section 151 Crpc provides for the conditions under which a police officer may arrest a
person without a warrant from a magistrate. The officer can do it if he has come to know of a
design of the person concerned to commit any cognizable offence. A further condition is that the
arrest should be made only if it appears to the police officer that the offence cannot be otherwise
prevented. If these conditions are not fulfilled, the arresting officer could be preceded for violating
the articles 21 and 22 of the constitution.

Manikandan v SI of police9, held that a person arrested on a mere suspicion cannot be said to be a
person against whom commission of a cognizable or non bailable offence is alleged or made out
and so cannot, without more, be remanded to judicial custody and should be released on bail
treating the case as a bailable offence.

No person arrested under the above Section 151(1) shall be detained in custody for period
exceeding 24 hours from the time of his arrest unless his further detention is required or authorized
under any other provisions of this Code or of any other law for the time being in force.10

In Aldanish Rein Vs state of Nct of Delhi and Anr 11decided on 1 November 2018, the Delhi High
court issued a set of directions to avoid misuse of the powers under 151 and 107 Crpc. This
indicates that the matter is still live despite having numerous judgments on the matter.

8
(2011) 13 SCC 329.
9
2008 Cri LJ 1338 (ker).
10
Shyam Dattatray Betukar v. Executive Magistrate,Kalyan, 1999 Cri LJ 2676
11
1980 Cri LJ 756 (Kant).
7. CONCLUSION:

It is the major obligation of the state to keep up open request. 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 ten guilty
persons escape but not one innocent incriminated, such measures of preventive arrest must be
exercised with great caution. Every mistake under thee 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.
BIBLIOGRAPHY:

1. V. Kelkar, Lectures on Criminal Procedure, (6th ed. 2017).

2. N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure, (6th ed. 2018).
3. Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure, (18th 2006).
4. Dalbirbharti, police and people 106 (APH publishing, new Delhi, 1st 2006).

WEBLIOGRAPHY:

1.http://shodhgang.inflibnet.in.

2.http://shareyouressays.com.

3.http://lawyersclubindia.com.

4.http://lawbriefs.in.

5.http://blog.ipleader.in.