PREVENTIVE ACTIONS OF THE POLICE

This final draft is submitted to partially fulfil this semester's project work
assigned in Criminal Law II.

Submitted to: Submitted by:

Ms Preety Anand Pragya Swaraj
(Faculty of Criminal Law) B.B.A., L.LB(HONS.)

Roll no-2623

4th SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY, MITHAPUR

PATNA-800001

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 TABLE OF CONTENTS

SR.NO PARTICULARS PAGES

1 INTRODUCTION 3-4

2 PREVENTIVE ACTIONS OF POLICE UNDER CRPC 5-7

3 STANDARD AND PROCEDURE FOR CROWD 8-9

CONTROL

4 THE EFFECT OF POLICE ACTIONS IN INDIA 10-11

CONCLUSION 12
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BIBLIOGRAPHY 13

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 INTRODUCTION

Criminal jurisprudence is as much concerned with the prevention of offences, as it is with the
trial and punishment of the wrong-doer. Therefore, Chapter XI of the Act contains certain
provisions regarding preventive action to be taken by the Police in certain circumstances. S.
149 empowers every Police Officer to interpose for the purpose of preventing the commission
of any cognizable offence to the best of his ability. 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 S. 23 of the Police Act, 1861.
Moreover, under S. 150, every Police Officer receiving any information of any design to
commit any cognizable offence must communicate such information to his superior Police
Officer. So also, any Police Officer, knowing of a design to commit any cognizable offence,
may arrest, without any order from the Magistrate and without a warrant, the person about to
commit the offence, if it appears to such Officer that he cannot otherwise prevent the
commission of the offence.
However, such a person cannot be detained in custody for more than twenty-four hours from
the time of his arrest, unless his further detention is required or authorised under the Code or
under any other law. (S. 151). It has been held that if a person is arrested under this section,
and is thereafter detained under any other preventive measure, as for instance, the Defence of
India Rules, the order of detention would be illegal. (Prem Lai Sharma,—1966 13 L.J.R. 395).

The authority of a Police Officer under S. 151 is only a 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 political 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 S. 151. (Prahlad Panda,—51 Cr. L.J.
891).
It will be seen that the section envisages the subjective satisfaction of the Police Officer
concerned. Therefore, in a habeas corpus petition, it is not open to the High Court to go into
the question as to whether the Police Officer was justified in coming to his conclusion.
Nevertheless, in appropriate cases, the High Court can go into the question of proper exercise

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of that discretion. (A.K. Gopalan, —1962 Ker. 215)1. Similarly, a Police Officer may, of his
own authority interpose to prevent any injury attempted to be committed in his view to any
public property, or the removal or injury of any public land-mark or buoy or any other mark
used for navigation. The expression public property includes public roads, buildings, lamp-
posts, landmarks and milestones.
Similarly, any officer in charge of a Police Station may, without a warrant, enter any place
within the limits of that Police Station, for the purpose of inspecting or searching for any weight
or measures or weighing instruments if he has reason to believe that such place contains any
false weights, measures or weighing instruments. If any such false weights, measures or
instruments are found, the Officer may seize the same, and forthwith give information of such
seizure to a Magistrate having jurisdiction.

1
AIR 1950 SC 27.

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 PREVENTIVE ACTIONS OF POLICE UNDER CRPC, 1973

The functions of the police are to deal with the finding and investigation of crime, arrest of
offenders, gathering of evidences etc. Their functions also involve regular patrolling and
preventive action against possible wrong doers. The primary task assigned to the police, in
order to prevent crime, is to make arrest of the wrongdoers and suspected criminals and take
them into their custody.
These powers of the police are given in the Chapter XI from Sec. 149-153 of Code of Criminal
Procedure, 1973. Police officials are also given powers which is given u/s 41, 42 and 151 of
CrPC, 1973, to make an arrest without a warrant taking into consideration just the
circumstances. Lawful functions of the police include “conditional release of accused on
bond”2, etc. given u/s 438 of CrPC, 1973, interrogation of offenders and suspects, search and
seizure. The search and seizure can be conducted by the police with or without a warrant only
if it is reasonable.
The police officials are legally bound to maintain inquest register which also includes law
relating to inquest register u/s 174 of CrPC, 1973. If in any case a person dies due to unnatural
or doubtful circumstances, the police have to record that information in the Inquest Register.
‘Police also plays a crucial role in the prosecution by assisting the prosecutor’3. In fact, the
success in prosecution mostly depends on the punctuality and ability with which the
investigation is done by the police4.
Sections 149 to 153 talks about the provisions relating to preventive action of the police. Such
action of the police officer falls into following categories, viz.—
(i) Prevention of cognizable offence,
(ii) Prevention of injury to public property, and
(iii) Inspection of weights and measures.
In the very nature of these situations, there can be no judicial inquiry in a case of police action,
because the police have to act on their own initiative depending upon the urgency of the case.
The powers conferred to the police from these sections are as follows:
(A) Prevention of Cognizable Offence

2
1 Ratanlal & Dhirajlal, The Code of Criminal Procedure, (18th ed., 2006).
3
1 Sarkar & Manohar, The Code of Criminal Procedure, (9th ed, 2007).
4
Ibid.

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(1) As mentioned in CrPC Section 149. ‘Police to prevent cognizable offences-Every police
officer may interpose for purpose of preventing the commission of a cognizable offence, i.e.,
an offence for which he could arrest without a warrant’. (Section 149).
As per CrPC (Section 150). ‘On getting any information of a design to commit a cognizable
offence, the police officer has to communicate such information to the higher officer and to
any other officer whose duty is either to avert or take cognizance of the commission of any
such offence’.
As stated in (Section 151). ‘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 him that a commission of the offence cannot be otherwise averted’.
Also, it states – ‘Legislature changed- Sub Section (2) is the new provision, it wasn’t included
in the section 151 of old code of 1898, the joint committee of the parliament observed’5-
That the committee is required to clarify certain points concerning the preventive arrest made
by a police officer under the provision of this clause under the section so as to decrease the
scope for abuse or misuse of the power. Firstly, it is important to clarify that all the provisions
of the code were applicable to arrest without warrant, e.g., production before magistrate within
a specified time informing the person who is arrested on the grounds of his arrest, etc. should
as far as may be, applicable to any person arrested under this provision of the CrPC. Secondly,
the person who is arrested should have the right to be released on bail if he is otherwise entitled
to be so released. The purpose is that if after the arrest no proceedings are introduced against
him either to demand a security bond from him or for launching proceedings, in connection
with an offence, against him as an accused he should be discharged. Finally, it is also crucial
that the release from arrest should be from the orders of a magistrate as otherwise the provision
is likely to be abused”.
Further New sub-clause (2) also includes and seeks to provide for the above”
1. Scope and application
S. 151 permits possible arrests only if the person in question is thought to have a plan to commit
a cognizable offence6. If for committal of cognizable offence, an arrestee has designed can
affect the maintenance of peace and order, his detention for certain days ordered by the
magistrate would be proper and justified7. A person does not become an accused simply

6
Jagdish Chandra Bhatia v. State, 1983 CrLJ NOC 235 (del); Ahmed Noorbhai Bhatti v State of Gujarat,
2005(2) Crimes 26(SC).
7
Rajesh Ramarao Raut v.State of Maharashtra, (2003) 4 Rec Cri 174.

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because an FIR is lodged against him or he is arrested or detained by the police. Such a person
can be described as an accused when there are reasons to believe that the accusation or
information against him is well founded or investigated.8Where a detenu cannot furnish
security and the magistrate had well-ordered his detention in judicial custody without any
enquiry and without applying his judicial mind, the order of such detention was held illegal.9
The person’s right who has been arrested to inform anyone one about his arrest and to consult
his lawyer privately is a fundamental right guaranteed in Arts.21 and 22.10 It was also held that
S. 151 is not unconstitutional.

2. Justification for the arrest

Sometimes it may be possible that a person arrested under this section, does not plan or prepare
to commit a cognizable offence and the police are wrongly mistaken, even then, if the police
are acting under an honest impression or on data and appearance, and from which a reasonable
man would infer the design or possibility of the commission of a cognizable offence, then the
arrest is justified11.
(B) Prevention of Public Injury to Public Property
Section 152 confers power on a police officer to prevent any injury attempted to be committed
in view to any public property whether immovable or immovable or removal of any kind of
injury to a public landmark or other marks for navigation and it’s essential that the attempt
must be made in view of police officer.
(C) Inspection of Weights and Measures
Section 153 also confers power on an officer in charge of a police station that he may for the
purpose of inspection may enter any place to check for false weights for measures and may
seize the same and report the seizure to a magistrate having the area jurisdiction.

8
Uma Shankar Sahay v State of Bihar, 1998 CrLJ 2807.
9
Arunsingh v State of MP, 1984 CrLJ 1616 MP.
10
Joginder Kumar v State of UP, AIR 1994 SC 1349.
11
Kanhaiyalal Dongarwal v Sugansingh 1961(2) CrLJ 875.

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 STANDARD AND PROCEDURE FOR CROWD CONTROL

The police and the district administration have a duty to facilitate these meetings, in which
citizens exercise their fundamental right of public assembly. At the same time, living in
democracy requires the observance of certain rules, to allow the State to discharge its
responsibility of maintaining peace and security for everyone at all times. These are giving
prior information about the nature and time of protest and the route to be used by the procession.
If these steps are taken, the police and the administration cannot do anything that will interfere
in holding peaceful protests12.
There is always the possibility that a public rally will become unruly, which can mean damage
to life and property. This is when a public assembly becomes unlawful, which is defined in
Section 141 of the Indian Penal Code. 13Under these circumstances, the district administration
and the police are permitted to disperse the crowd to prevent injuries or damage. This may
entail the use of force in a controlled and specified manner.
The principle governing the use of force as explained in the law and in police procedures
remains constant: force should only be used when it is absolutely necessary, it should be
minimum and proportional to the situation and its use should be discontinued as soon as the
danger to life and property subsides.

The Police Code of Conduct

As far as practicable, the methods of persuasion, advice and warning should be used. If
however, the use of force becomes unavoidable then only the irreducible minimum force
required in the circumstances should be used14.

LAW
Only an executive magistrate or an officer- in charge of a police station16 can order the use of
force. Use of force can only be resorted to if an unlawful assembly or an assembly of five or
more people (likely to disturb public peace) does not disperse on being ordered to or shows a
determination not to disperse.17 If the assembly cannot be dispersed otherwise and it is
necessary in public interest, then the executive magistrate can order armed forces to disperse

12
Précis on Crowd Control By Sh. P.P.S Sidhu, IPS (Retd.).
13
Standards and Procedure for Crowd Control , Commonwealth Human Rights Initiative, July 2005.
14
Principle 4, Code of Conduct for the Police in India.

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the assembly. Even then, every officer must use as little force, and do as little injury to person
and property15
Law enforcement agencies enjoy the same right of private defence as ordinary people under
the Indian Penal Code to protect life and property, which in any case cannot cause more harm
than is necessary for defence16.

15
Section 130 Code of Criminal Procedure, 1973 (CrPC).
16
Section 99 Indian Penal Code, 1860 (IPC).

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 THE EFFECTS OF POLICE ACTIONS IN INDIA

The primary duty of police officials is to serve mankind, to prevent crime, to uphold and protect
human rights and to investigate and detect and activate the prosecution of offences, to curb
public disorder, to deal with major and minor crisis and help those who are in distress 17 . But
it is often seen that while discharging official duties, police officials do not undertake their
responsibilities in a proper way and abuse their power for personal or official gain. They break
their social contract and indulge in various unscrupulous activities. Such illegal action or
inappropriate action can be defined as police misconduct. These improper actions by police
officials or use of excessive power than that is reasonably necessary lead to miscarriage of
justice, discrimination and involve obstruction of justice. Though the goals and objectives of
police are noble but they have been criticized and condemned for committing acts which are
just contrary and this is because the powers given to them to fulfill their social responsibilities
are capable of being abused by them to trample the constitutional rights of the community. A
society always demands from police the highest standards of conduct particularly those of
honesty, impartiality and integrity because of their professional responsibility. But abuse of
powers by the police officials has become an open scenario in Indian society. Police
misconduct or illegal actions can be of various types, some of them are briefly discussed below.
Police misconduct includes:

• Illegal or false arrest or false imprisonment

• Falsification of evidence, falsifying a police report
• Committing perjury on the witness stand or witness tampering
• Police brutality
• Bribing and lobbying
• Unwarranted surveillance, searches and seizure of property

POLICE BRUTALITY
Police brutality is an example of violation of civil rights, where an officer misuses his power
and tortures an individual with a force that is much higher than what is required. This has
resulted in various custodial deaths, the record of which is still to be found and to be produced

17
Policing in India: a Crisis of Confidence and Credibility, Tharron McIvor.

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before law. The case of Nilabati Behra v/s State of Orissa & Ors 18. is a glaring example of
death caused by police brutality. In this particular case the state was held liable and was directed
to pay compensation to the appellant. This brutal act of police was regarded as a gross violation
of the rights enshrined in Article 21 of the Indian Constitution. Police brutality also includes
negligence on the part of police officers. It is the duty of police to provide proper and reasonable
care to every person in his custody immaterial of the fact that he is guilty or innocent.
Unnecessary harassment to the person in custody or to any person in general is not accepted
and is highly disregarded. Even the person in lock up should be dealt by the police in
accordance with the power confirmed on it but not in any way they want. Police officials should
refrain from taking action which are prohibited by law and does not fall part of it. In Saheli v/s
19
Union of India the Supreme Court of India awarded Rs. 75,000 as damages to the mother of
the child who died as a result of police beating.
The Supreme Court in series of judgments held the state responsible for police misconduct or
abuse of power. It was also held that the doctrine of sovereign immunity cannot be used as a
tool for defense in public law, making pecuniary compensation as the golden remedy for
violation of fundamental rights. The Supreme Court in Bhim Singh Versus State of J & K 20.
directed the State Government to pay a compensation of Rs 50,000 for illegal arrest and
detention of Bhim Singh by the police in order to prevent him from attending the Assembly
Session. The brutality of police has to be investigated and reviewed properly. Sec 197 of CrPC
which provides certain immunities to the public servants from prosecution, for any
misappropriate act done during the discharge of duty, needs to be amended and few stringent
laws need to be enacted to check this type of corruption in future. For a civilized society, the
courts need to be vested with little more of judicial attention which give them the power to
look into every complaint and bring the offenders of police brutality to justice. Strict
instructions need to be given to police force that unnecessary use of power cannot save them
from the eye of law. Sec 197 of CrPC also gives power to the Government to interfere by way
of giving approval or sanction in case a police official needs to be prosecuted for any criminal
action.

18
[(1993(2) SCC 746].
19
[AIR 1990 SC 513].
20
[(1985) 4 SCC 677; AIR 1986 SC 494].

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 CONCLUSION
Police is part and parcel of our society and plays a vital role in the criminal administration of
justice because police are primarily concerned with maintenance of the peace and enforcement
of the law and order and security of the person and the property of individuals. The police also
have to prevent the juvenile delinquency and atrocities against women and the children.
Though the goals of the police are noble but they have been criticized and condemned for
committing acts which are just contrary and this is because the vested powers given to them to
fulfill their social responsibility are capable of being abused by them to trample the constitution
rights of the people in the society. It also lowers the dignity of the officer and shakes the
foundation of the trust and faith imposed on them by the society. Traditionally, the Police has
operated under the strictures of secrecy inherited from colonial times. This lack of transparency
leads to suspicion of corruption even where it is absent, creating a Police force lacking
confidence and credibility. There is currently much recognition of these shortcomings of the
Police, particularly with respect to corruption and abuse of powers. These are all important
directions the Police need to take in a democratic society. Indeed, it is difficult to see how a
society can describe itself as democratic in the absence of democratic policing. However, to
date such reforms have remained in the public forum of debate where there are many good
intentions and little obvious progress. So to manage the due procedure. The promotion of a
good police-public relationship is imperative. It must be strengthened in order to bring about
public involvement and cooperation in the continuing day-to-day functioning of the police.
Most importantly, the country must begin to seriously consider police reforms at the centre and
state level. Irrespective of the government or political party in power, state and central police
forces must remember to work for, protect, and defend the citizens. By working towards
resolving problems arising from the politicization of the police force, citizens can be sure that
even when a democratic civil protest turns violent, police forces will restore public peace and
order in a lawful, legal and constitutional manner.

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 BIBLIOGRAPHY

Primary Sources
• Code of Criminal Procedure,1973
• Indian Penal Code, 1860
• Constitution of India.

Secondary Sources
Books
• Ratanlal & Dhirajlal, The Code of Criminal Procedure, (18th ed., 2006).
• Sarkar & Manohar, The Code of Criminal Procedure, (9th ed, 2007).

Articles & Journals

• Précis on Crowd Control By Sh. P.P.S Sidhu, IPS (Retd.).

• Standards and Procedure for Crowd Control , Commonwealth Human Rights
Initiative, July 2005.
• Policing in India: a Crisis of Confidence and Credibility, Tharron McIvor.
• Preventive Actions of the Police, Manish Sharma, International Journal of Law and
Management

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