PREVENTIVE ACTIONS OF THE POLICE
UNDER BHARATHIYA NAGARIK SURAKSHA SANHITA ,2023
Preventive Actions of the Police
This article is written by me, with the help of the book references, legal websites and made the
comparison with old act with new act and with the help of the bare act BHARATHIYA
NAGARIK SURAKSHA SANHITA, 2023 mentioned belowed on the foot notes along with
my assignment.
I. INTRODUCTION
Nevertheless, such an individual can't be kept in detention for more than twenty-four hours
from the hour of such arrest, except if his further confinement is required or approved under
the Code or under some other law. (S. 151) of Criminal procedure code replaces by Bharathiya
Nagarik Suraksha Sanhita ,2023 under section 170. “It has been contended that if any person
is arrested under this section, and is thereafter detained under any other preventive measure,
example, the Defense of India Rules, the order of that detention would be considered illegal.
The authority of a Police Officer under Bharathiya Nagarik Suraksha Sanhita ,2023 S. 170 is
just restricted and special when it comes to stopping the commission of a cognizable offense;
the force is, in no sense, comparable to the power of preventive detention. Under this section
in CrPC, 151 a Police Officer has no capacity to hold an individual apprehended fully in an
expectation of detention. It has been held similarly if a Police Officer captures an individual
belonging to a political group, for example the Communist Party, and that group or the party
has a programmed to commit a few offenses it would be a misuse of the authority conceded by
S. 170 BNSS, 2023.
It will be seen that this section imagines the satisfaction of the Police Officer which is subjective
to the officer concerned. In this manner, in a habeas corpus appeal, it isn't available to the High
Court to go into the inquiry with respect to whether the Police Officer was correct in arriving
at his decision. By and by, in suitable cases, the High Court can go into the question of correct
exercise of that decision. (A.K. Gopalan, — State of Madras 1950). Additionally, a Police
Officer may, of his own power intervene to prevent any injury endeavored to be submitted in
his view to any public property, or the evacuation or injury of any public or government
Ratanlal & Dhirajlal, The code of criminal procedure code,(23rd Edition, Lexis Nexis)
A.K. Gopalan vs State of Madras ,1950 AIR SC 27
landmark or some other imprint utilized for route. The expression public property includes
roads, houses, lamp-posts, landmarks and signposts.
Also, any official responsible in charge for a Police Station may, without a warrant, enter
wherever inside the area in limit of that Police Station, to examine or looking for any weight
or measures or gauging instruments on the off chance that he has a reason to suspect that such
place contains any false weights, measures or weighing instruments. On the off chance that any
such false weights, measures or instruments are discovered, the Officer may hold onto the
equivalent, and forthwith give data of such seizure to a Magistrate having jurisdiction of that
area.
(A) Aim
This project aims to determine the idea behind the law authorizing the police to prevent the
offences, maintenance of peace and maintain the public order under the chapter XII of
Bharathiya Nagarik Suraksha Sanhita ,2023 which has widened the field of certain powers
given, purpose fulfilled, actions identified and to know impact of the preventive clauses giving
such powers to the police in India.
(B) Objectives
• To critically examine the need of such preventive actions to the police and the reasons
for the power’s inquest to the police by the law.
• To critically examine the provisions regarding the preventive actions of Police in BNSS,
2023
• To examine the consequence of power used by the police under chapter XII of the
Bharathiya Nagarik Suraksha Sanhita ,2023.
(F) Scope of the Study
This research includes an analysis of the provisions allowed by law to police in way of
preventive action for the better society. From many clauses of preventive actions permitted to
various authorities this research is concerned with the preventive actions of the police which
grants police
II. PREVENTIVE ACTIONS OF POLICE UNDER BNSS , 2023
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 XII from Sec. 168-172 of Bharathiya
Nagarik Suraksha Sanhita ,2023 Police officials are also given powers which is given u/s 35,
39 and 170 of BNSS, 2023 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”, etc. given u/s 438 of CrPC, 1973, as well as BNSS 2023 482 ( Direction for grant of
bail to person apprehending must ) 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.as well as BNSS ,2023 u/s 194. 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’. In fact,
the success in prosecution mostly depends on the punctuality and ability with which the
investigation is done by the police.
Sections 168 to 172 talks about the provisions relating to preventive action of the police.
Such action of the police officer falls into following categories, viz.—
1. Prevention of cognizable offence,
2. Prevention of injury to public property, and
3.In petty cases, release within a period of 24 hr.
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:
(1) Prevention of Cognizable Offence
(1) As mentioned in BNSS, 2023 Section 168. ‘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’.
As per BNSS, 2023 (Section 169). ‘Every police officer receiving information of a design to
commit any cognizable offence shall communicate such information to the police officer to
whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance
of the commission of any such offence.
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As stated in (Section 170). ‘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 prevented’.
As per BNSS, 2023 u/s 170 sub-section (2) No person arrested under sub-section (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 provisions of this sanhita or of any
other law for the time being in force.
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 clarifythat 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”.
i. Scope and application
S. 170 permits possible arrests only if the person in question is thought to have a plan to commit
a cognizable offence. 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 justified. A person does not become an accused simply 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. Where a detenue 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. The person’s right who has been
arrested to inform anyone one about his arrest and toconsult his lawyer privately is fundamental
right guaranteed in Arts.21 and 22. It was also held that S. 170 is not unconstitutional.
ii. 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 justified.
(2) Prevention of Public Injury to Public Property
Section 171 of BNSS, 2023 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.
(3) In petty cases, release within a period of 24 hours
As per sec 172 (1) All persons shall be bound to conform to the lawful directions of a police
officer given in fullfillment of any of his duty under this Chapter.
Sub-section (2) A Police officer may detain or remove any person resisting , refusing, ignoring
or disregarding to confirm to any direction given by him under sub-section (1) and may either
take such person before a Magistrate or, in petty cases, release him as soon as possible within
a period of twenty-four hours.
III. STANDARD AND PROCEDURE FOR CROWD CONTROL
The police and the district authorities have a responsibility to facilitate these meetings, in which
citizens exercise their fundamental right to assemble publicly. Also living in democracy
requires the compliance of certain rules, to allow the State to discharge its accountability of
preserving peace and security for everyone at all times. These are giving past evidence about
the nature and time of protest and the course to be used by the demonstration. If these steps are
followed, the police and the authorities cannot do anything that will intervene in holding
peaceful protests.
It is always a likelihood that a public rally might become unruly, which can mean injury to life
and property. That is when its public assembly might become unlawful, which is welldefined
in Section 141 of the Indian Penal Code. Under those circumstances, the district authorities and
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the police are allowed to disperse the crowd to prevent injuries or harm. This might involve the
use of force in a controlled and specified way.
The principles governing the usage of force as described in the law and in police procedures
remains constant: force should only be resort to when it is absolutely required, it should be
minimum and proportionate to the situation and its use should be withdrawn as soon as the
danger to life and property diminishes.
(A) The Police Code of Conduct
To an extent, they should resort to a method of persuasion, advice and warning. If, however,
the use of force seems inevitable then only the irreducible minimum force required in the
circumstances should be used.
(B) Law
Executive magistrate or an officer- in charge of a police station are the only authorities that can
order the use of force. Force can only be used if an unlawful assembly or an assembly of five
or more people (likely to disturb public peace) does not disband on being ordered to or displays
a determination not to disperse. If such an assembly cannot be dispersed otherwise and such
dispersion is required in public interest, then the executive magistrate can order and resort to
armed forces to disperse such assembly. Even then, use of force should be minimum, and do as
little injury to person and property.
Law enforcement authorities also enjoy the same right of private defense as ordinary citizen
under the Bharathiya Nyaya Sanhita, 2023 to defend life and property, which in any situation
cannot exceed harm than it is necessary for defense.
(C) International Standards
As an accountable member of the international community, India has to follow the United
Nations standards, which are the base of many of our laws and regulations. To restate, the UN
Basic Principles state that the dispersal of non-violent unlawful assemblies should be avoided
and if it is not possible, then least force should be used. And in situation of violent unlawful
assemblies, firearms should only be resorted to if alternate less dangerous means are not
available and only to the minimum extent necessary.
IV. Instances of misuse of preventive action
The concept of preventive arrest is intelligible for the people who understand the law because they
can comprehend the repercussions of lack of such preventive action laws.
However, the laws are made for all the people of India which is a democratic country, and welfare is
of utmost importance to the State. So, it is important for common people to believe in these prevention
laws and not think of it as some tool to infringe fundamental rights.
Nilabati Behera v State Of Orissa and Ors on 24 March 1993
In this case, Suman Behera, son of Nilabati Behera was arrested by the Orissa Police for
investigation of the offence of theft (theft is a cognizable offence). Then, he was detained at the
police outpost. The next day, his dead body was found on the railway track. There were
lacerations on his body that indicated an unnatural death. A letter was sent by Nilabati Behera to
the Supreme Court which took suo moto action and converted it into a writ petition under Article
32 of the Indian Constitution. There was an inquiry made by the district judge which added
evidence of multiple injuries being inflicted on Suman during the police custody at Police
Outpost, Jeraikela. The police however argued in the petition filed by Nilabati Behera that Suman
Behera had managed to escape from their custody at about 3 a.m. on the night between the 1st
and 2nd December. They argued that despite their efforts of searching him, he could not be
apprehended and thereafter, his body was found on the railway track over which there was this
possibility of a train passing over him.
The court noted that there was no logical evidence of any search by the police to find Suman
Behera and also, it was reported by railwaymen that the police reached much later to take charge
of the body which raised questions to the credibility of their statement. The injuries according to
a doctor’s report were caused by a blunt object which also raised doubts of lathi blows.
The Hon’ble Supreme Court awarded a compensation of Rs. 1,50,000 to the mother of the
deceased and ordered a sum of Rs. 10,000 to be paid to the Supreme Court Legal Aid Committee.
Also, the Supreme Court directed the state of Orissa to initiate criminal proceedings against those
who were involved in the death of Suman Behera.
Sathi Sundaresh v. The State P.S.I Of Moodigere on 12 April 2007
In this case, the petitioners were on strike on 6.3.2007 intending to pressurize the local MLA and
Health Department to provide infrastructure facilities to the M.G.M Hospital at Moodigere. They
also raised the demand for appointment of doctors with specializations to the said hospital.
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The petitioners had gathered in front of the house of the local MLA during midnight of that day.
The Sub-Inspector of Police in the exercise of his power under Section 151 of CrPC arrested the
petitioners. The said fact was informed to the concerned executive magistrate on 6.3.2007 itself
by the police. The Taluka Executive Magistrate passed the order in exercise of his jurisdiction
under Section 107 of CrPC and directed the Sub-Inspector of police to send the petitioners to
judicial custody from 6.3.2007 to 12.3.2007.
But no person arrested under Section 151(1) of CrPC could be detained for more than 24 hours
from the time he was arrested unless his further detention was required or authorized under any
other provisions of CrPC or any other law for the being in force. The petitioners were produced
before the concerned executive magistrate within 24 hours of their arrest, but not before the
judicial magistrate. The executive magistrate had not passed any order in writing under Section
111 of CrPC or Section 116(3) of CrPC. So, the detention could not have been continued
under Section 113 or Section 116(3). Applicability of Section 167 of CrPC was also ruled out
before the executive magistrate.
So, the Executive Magistrate and the police obviously had no power, jurisdiction or authority to
keep the petitioners under the custody of six days.
Medha Patkar V. State of M.P And Anr. on 25th September 2007
In this case, Medha Patkar vs the State of M.P. And Anr., certain landowners and other persons
adversely affected the Sardar Sarovar Project gathered on the road for protesting. They shouted
slogans which were about demanding land and other rehabilitation measures. The police had
beaten up the protesters which included women and children also and arrested them under Section
151 of CrPC despite the fact that they raised no apprehension of committing a cognizable offence
or disturbing public order or tranquillity. The Supreme Court directed the State of Madhya
Pradesh to pay a compensation of Rs. 10,000 to the petitioner of this case and each male and
female protestors who were arrested by the police in the evening of 25.7.2007 and after that,
detained in Badwani and Indore Jails because their fundamental rights under Articles 19 and 21 of
the Indian Constitution had been violated.
V. CONCLUSION
Police is an integral part of our general public and plays a crucial job in the criminal
management of justice since police is essentially worried about the maintenance of the peace
and harmony and requirement of the peace and security of the individual and the property of
people. The police additionally need to stop the delinquency and atrocities against children and
women. Despite the fact that the objectives of the police are honorable however they have been
reprimanded and denounced for submitting acts which are simply opposite and this is on the
grounds that the vested forces given to them to satisfy their social obligation are fit for being
mishandled by them to stomp on the constitutional rights of the individuals in the public society.
It likewise brings down the respect of the official and shakes the establishment of the trust and
confidence imposed on them by the society.
Generally, the Police has worked under the strictures of secrecy acquired from frontier times.
This absence of transparency prompts doubt of corruption even where it is missing, making a
Police force lacking certainty and reliability. There is right now a lot of acknowledgment of
these weaknesses of the Police, especially regarding abuse of power and corruption. These are
exceedingly significant headings the Police need to take in a democratic society. Undoubtedly,
it is hard to perceive how a society can depict itself as a democratic just without democratic
policing. In any case, to date such changes have stayed in the open discussion of discussion
where there are numerous honest goals and minimal evident advancement. So, to deal with the
due methodology.
The advancement of a decent police-public relationship is basic. It must be reinforced so as to
achieve open contribution and collaboration in the proceeding with everyday working of the
police.
In particular, the nation must start to truly consider police changes at the middle and state level.
Regardless of the government or political group in force, police powers at both central and state
level must make sure to work for, secure, and safeguard the residents. By progressing in the
direction of settling issues emerging from the politicization of the police power, residents can
be certain that in any event, when a fair thoughtful dissent turns fierce, police powers will
reestablish open harmony and request in a legal, legitimate and sacred way.
*****
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