For decades across the globe, there has been a debate regarding the validity of preventive arrest by law enforcement. The preventive arrest is simply done to stop a person from committing a cognizable offence in future. Historically, the preventive arrest was infamously used in India during British rules which empowered the government to detain or arrest anybody on mere suspicion.

Section 151 of the Code deals with the power of arrest to prevent the commission of cognizable offences. It reads as below:

“151. Arrest to prevent the commission of cognizable offences.-(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.”

The Hon’ble Kerala High Court recently in the case of Anand Mahadevan Vs. State of Kerala¹ has observed and reiterated that the police cannot arrest a person in order to prevent the commission of cognizable offences under Section 151 of the Code of Criminal Procedure without the knowledge of the existence of a design to commit a cognizable offence and a belief that the commission of the offence can only be prevented when the said person is being arrested.

The single bench headed by Hon’ble Justice Bechu Kurian Thomas in the above-mentioned case observed that the police has been granted the extraordinary powers of arresting the person without a warrant in case of knowledge of a design in order to commit a cognizable offence and it being very important to avoid strict interpretation of Section 151 of the Code of Criminal Procedure for misuse of any such power.

The Court also cautioned that the misuse of Section 151 of the Code of Criminal Procedure would also amount to violation of Article 21 of the Constitution of India.

Facts of the case

1. The case heard by the Hon’ble Kerala High Court was a Petition under Section 482 of Code of Criminal Procedure wherein the Petitioner, a practicing Advocate had questioned the registration of crime against him.
2. The Petitioner was arrested in purported exercise of the power under Section 151 of the Code and FIR was registered against him. The crime was registered alleging the Petitioner to be a threat to the peaceful living of the public and that letting him on liberty would lead to breach of peace.
3. The Petitioner contended that though an FIR of the nature referred above had been registered against him, he was not arrested at all and was on the other hand merely called to the Police Station to give his personal details and was thereafter permitted to leave.
4. The Petitioner vehemently argued that he was not even informed that his arrest was recorded or that he was being implicated in a crime. The Petitioner even argued that the crime had been registered against him with oblique motives and that the proceeding pending against him was an abuse of the judicial process and therefore the said FIR required to be quashed.
5. The Learned Public Prosecutor upon instructions informed the Hon’ble Court that the Petitioner had been earlier arrayed as an accused in another crime which was subsequently quashed.
6. After hearing both sides, the Hon’ble High Court opined that knowledge of a design to commit the offence is the essence of the offence. The Hon’ble High Court observed that apart from the knowledge of the design to commit an offence, the Police Officer must also be of the belief that the commission of that offence cannot be prevented, otherwise than by the arrest of that person.
7. The Hon’ble High Court held that the provisions of Section 151 of the Code confers a power of detention and hence existing emergency must be shown to exist before exercising the power, as otherwise, there is a likelihood of misuse of the said power.
8. The Hon’ble High Court also cautioned that the misuse of Section 151 of the Code of Criminal Procedure would amount to violation of Article 21 of the Constitution of India. The Hon’ble Court observed that even though the FIR was registered against the Petitioner under Section 151 of the Code of Criminal Procedure, there was nothing to show that the police had knowledge of a design in order to commit an offence.
9. It was also held by the Hon’ble Court that in this situation, the registration of the FIR against the Petitioner was an abuse of the process of the Court and stated that the registration of a crime hangs as a Damocles sword over the Petitioner’s head and therefore it would be just to quash the FIR and all further proceedings therein.

The Hon’ble Apex Court in Joginder Kumar vs. State of Uttar Pradesh² & Ors had held that no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing and the justification for the exercise of its quite another. The police officer must be able to justify the arrest apart from his power to do so. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. There must be some reasonable justifications in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

Except in heinous crime, an arrest must be avoided if a police officer issues notice to person to attend the station House and not to leave the station without permission would do. There are inherent rights under Article 21 and 22(1) of the constitution and require to be recognised and scrupulously protected and for effective enforcement of these fundamental rights, the court issued guidelines.

Conclusion
To summarize, 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.

The arrest of a person has a demoralising and diminishing effect on his personality. The person so arrested becomes outrageous, alienated and hostile. So there should be a balance between the security of a state and individual freedom.

The only thing that can be done firstly, would be to inform people more about their rights and duties and to make them aware of the fact that they have the power to stop wrongs in the society or the people doing wrong by handling them to the authorities.

Notwithstanding the safeguards contained in the Code of Criminal Procedure and the Constitution referred to above, the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the country. Very often this power is utilized to extort monies and other valuable property or at the instance of an enemy of the person arrested.

By - Soumya Kamat