Preventive Action by a Police Officer under the Code of Criminal Procedure, 1973

By | July 23, 2019
Preventive Action by a Police Officer under the Code of Criminal Procedure

The primary object of criminal procedure is to provide machinery for the administration of substantive criminal law. 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. These matters are contained in Sections 149 to 153 of the Code. For expedience, these provisions or the circumstances in which the power can be exercised in divided into three parts.

Part I: 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”.

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. State[1], 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.

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.

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[2]. It has further been said in Manikandan v. SI of Police[3] 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[4]. 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.

Part II: 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[5].

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[6], the court observed that public property also includes property belonging to the State camping grounds and grounds left unoccupied for sanitary or recreational purposes.

Part III: 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.

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. 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[7].

References:-

  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).

[1] Ayyappakutty v. State, 1987 Cri. L.J 1593 (Ker).

[2] Ahmed Noormohmed Bhatti v. the State of Gujarat, (2005) 3 SCC 647.

[3] Manikandan v. SI of Police, 2008 Cri. L.J 1338 (Ker).

[4] Shyam Dattaray Beturkar v. Executive Magistrate, Kalyan, 1999 Cri. L.J 1338 (Ker).

[5] Jatindra Nath v. Manndra Nath, (1950) 51 Cri. L.J 1241.

[6] Ram Kishore v. State, 1973 Cri. L.J 1527 (HP).

[7] Code of Criminal Procedure, No. 2, Act of Parliament, §153(2), 1973 (India).

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Ashish
Author: Ashish

Ashish has a flair for legal research and writing on contemporary issues. He believes the law is not a course but a Value Education subject that everyone should be taught at the school level. Belonging to the legal fraternity, he owes a responsibility to the future law aspirants and tries to assist them through their law school until they chose a career in law.

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