Visakhapatnam has become a hotbed of Andhra Pradesh politics. In January 2017, the then opposition leader Sri Y.S. Jagan Mohan Reddy, who is the present Chief Minister of Andhra Pradesh, was prevented from entering into the city of Visakhapatnam by the police. He was arrested at the airport. The current opposition party, i.e., Telugu Desam Party, was in power back then. Ironically, Sri N. Chandrababu Naidu, the present leader of the opposition, was recently refused in the same manner to enter the city.
Sri Y.S. Jagan Mohan Reddy, while he was the leader of the opposition, was given ‘Y’ category security, and the present opposition leader Sri N. Chandrababu Naidu is enjoying ‘Z+’ category of protection. Both of them, at relevant times, were under police supervision in terms of their security and their movement was systematically programmed. There was no scope for indulging in any offence overtly which is punishable for more than three years to make it cognizable offence.
In this backdrop, it has become necessary to examine the scope of Sec.151 of the Criminal Procedure Code 1973, which is often invoked by the ruling party to prevent the leaders from opposition parties to campaign against the policies of the ruling party.
Section 151 in The Code Of Criminal Procedure, 1973 says–
Arrest to prevent the commission of cognizable offences.
1. A police officer knowing of a design to commit any cognizable crime may arrest, without orders from a Magistrate and 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 subsections (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.
Section 151 CrPC is a provision contemplating the preventive action of the police. The said provision can be invoked by the police officer even before a person commits a crime. Generally, a person who is alleged to have committed a cognizable offence can be arrested by the police following the procedure contemplated under Sec.41A of Cr.P.C. in case if the offence is punishable up to 7 years and without the same for the offences punishable for more than seven years.
The power under Section 151 Cr.P.C. is akin to the State Preventive Detention Laws. A reading of the said provision shows that a police officer has to invariably conclude that design to commit a cognizable offence cannot be prevented without arrest.
Article 19(1)(d) of the Constitution of India confers a right upon the citizens to move freely throughout the territory of India. Article 21 of the Constitution stipulates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 19(1)(d) is subject to Article 19(5), which contemplates that the State is not precluded from making any law imposing reasonable restrictions concerning freedom of movement.
A reading of Article 21 of the Constitution shows that if the procedure established by law is followed in curtailing certain liberty of a person, the same does not constitute a violation of the said right.
The Hon’ble Supreme Court in Ahmed Noor Mohammed Bhatti’s case while examining Section 151, has held that the safeguard is provided in the statute itself. Therefore, the said provision cannot be held to be unreasonable or arbitrary.
The Hon’ble Supreme court in Rajender Singh Pathania & Ors vs. State Of Nct Of Delhi & Ors had held that Sec.151 of Code of Criminal Procedure itself stipulates conditions under which a police officer may arrest a person without an order from a magistrate and a warrant. The Apex Court further held that a police officer could arrest solely if he comes to know of a design of the person concerned to commit a cognizable offence.
The Hon’ble Supreme Court in Menaka Gandhi’s case held that the procedure established by law as contemplated under Article 21 of the Constitution should be reasonable, just and fair and should be free from unreasonableness and arbitrariness. The Hon’ble Supreme Court also held that the scope of “personal liberty” is not to be construed in a narrow and stricter sense. The Apex Court said that personal liberty should be understood in the broader and liberal sense by giving an expansive interpretation of Article 21 of the Constitution.
Sec.41A was incorporated in the Criminal Procedure Code by amendment, w.e.f., 1.11.2010. When the legislature, by including such a provision had protected rights of a person who is alleged to have committed a crime in relation to his arrest, the police should be more responsible when a person is being arrested even before commissioning a crime on the ground of preventive action.
In such type of cases, police should not lose sight of the fact that the persons are provided with security and the scope of the commission of a cognizable offence overtly is remote. Service of notice of arrest under Sec.151 Cr.P.C. without material evidence relating to the probability of commission of the crime by the said person constitutes a deprivation of personal liberty under Article 21 of the Constitution.
Such an exercise would be arbitrary exercise, and merely because the Code empowers to arrest, the police cannot resort to the same.
The police officer invoking Sec.151 Cr.P.C. should always be conscious of the fact that any arbitrary invocation would violate Article 19(1)(d) and Article 21 of the Constitution.