As the UPA faced all-round attacks for detaining Anna Hazare without warrant under sections 107 and 151 of the CrPC, a judgment of the Supreme Court against the “misuse” of preventive detention powers has come at a worst of time for the government with the court holding that the authorities were liable to be prosecuted for violating the fundamental rights of the detained citizen.
The top court said that a police officers could make the arrest under sections 107 and 151 of the CrPC only if “he has come to know of a design of the person concerned to commit any cognisable offence.”
“A further condition for the exercise of such powers, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer that the commission of the offence cannot be otherwise prevented. Section 151, therefore, expressly lays down the requirements for exercise of the power to arrest without an order form the magistrate and without warrant...”
“If these conditions are not fulfilled and, a person is arrested under section 151 CrPC, the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent in Article 21 and 22 of the Constitution,” a bench of Justices P. Sathasivam and B.S. Chauhan held.
The Delhi police also had arrested Mr Hazare just in front of his residence in Mayur Vihar, nearly 10 km away from JP Park, where prohibitory order under section 144 of the CrPC was clamped while there was no prohibitory order anywhere near his residence.
“The objective of sections 107 and 151 of CrPC are of preventive justice and not punitive. Section 151 should only be invoked when there is imminent danger to peace or likelihood of breach of peace under section 107. An arrest under section 151 can be supported when the person to be arrested designs to commit a cognisable offence,” the Supreme Court explained. The court said that any immediate action by the authorities under sections 107 and 151 could be resorted to only in a situation when it “appeared to be absolutely necessary to deal with the threatened apprehension of breach of peace promptly.”
“The jurisdiction vested in a magistrate to act under section 107 is to be exercised in emergent situation,” the top court said, adding that if the person arrested was able to prove that his detention was without reasons and had violated his fundamental rights, he was also entitled to claim compensation from the government.