Otherwise, it could be deemed violation of fundamental rights

Even as the correctness of the preventive custody of social activist Anna Hazare under Section 151 of the Criminal Procedure Code is being questioned, the Supreme Court has cautioned the police to invoke this provision only when there is an imminent danger to the peace or likelihood of breach of peace under Section 107 Cr.PC.

Such a preventive arrest could be made only if it “appears to the police officer concerned that the commission of an offence cannot otherwise be prevented,” said a Bench of Justices P. Sathasivam and B.S. Chauhan

Writing the judgment, Justice Chauhan pointed out that Section 151 Cr.PC “lays down conditions” and “expressly lays down the requirements for exercise of the power to arrest without an order from a magistrate and without a warrant”. But, the Bench said, “if these conditions are not fulfilled and a person is arrested under Section 151 Cr.PC, the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent under Articles 21 and 21 of the Constitution”.

The object of Sections 107 and 151 is “preventive justice and not punitive. Section 151 should be invoked only when there is an imminent danger to peace or a 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. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot otherwise be prevented.”

The Bench said: “The jurisdiction vested in a magistrate to act under Section 107 is to be exercised in an emergent situation.”

Order set aside

In the instant case, Virender Kumar and two other police officials were directed by the Delhi High Court to pay a compensation of Rs.25,000 each to Sanjeev Kumar Singh and Dalip Gupta for having taken them into preventive custody under Section 151 Cr.PC after the CBI submitted a report. The present appeal by Rajender Singh Pathanian, who conducted the enquiry, is directed against this order.

The Bench set aside the impugned order on the grounds that the High Court had passed the order merely on the basis of a status report from the CBI without hearing any of the persons against whom the allegations of abuse of power had been made.