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Preventive Detention Only For 'Imminent Danger': SC

PTI 17 Aug 2011, 22:09:54 IST

New Delhi, Aug 17: Amid countrywide protests over the arrest of Anna Hazare, the Supreme Court has held that preventive detention law can be invoked only if there is “imminent danger to peace” and a person sought to be arrested is likely to commit a cognisable offence. 

A bench of justices P Sathasivam and B S Chauhan said that preventive detention of a person in apprehension of breach of peace is permissible only if the police is satisfied that the person is likely to commit a cognisable offence. 

“The object of the Sections 107/151 Cr.PC are of preventive justice and not punitive. S.151 should only be invoked when there is imminent danger to peace or likelihood of breach of peace under Section 107 Cr.P.C. An arrest under S.151 can be supported when the person to be arrested designs to commit a cognisable offence,” Justice Chauhan writing the judgement said.

The apex court passed the judgement while quashing the Delhi High Court direction for a CBI probe into the preventive detention resorted to by police of two persons in a drunken brawl case in capital's Jahangirpuri area. 

Hazare, spearheading the anti-corruption campaign, was arrested under the preventive detention by police early on Tuesday morning under Section 107/151 Cr PC before he proceeded from his Mayur Vihar place to the Jayaprakash Narayan Park.

“If a proceeding under Sections 107/151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is incumbent upon the authority concerned to take prompt action. The jurisdiction vested in a Magistrate to act under Section 107 is to be exercised in emergent situation.

“A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant have been laid down in Section 151,” the apex court said.

The apex court said police can resort to preventive detention only if it has come to know the “design of the person concerned to commit any cognisable offence” otherwise it would violate the victim's fundamental right. 

“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 be otherwise prevented.  The Section, therefore, expressly lays down the requirements for exercise of the power to arrest without an order from a Magistrate and without warrant.

“If these conditions are not fulfilled and, a person is arrested under Section 151 Cr.P.C., the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent in Articles 21 and 22 of the Constitution,” Justice Chauhan said.

In the present case, the bench said the high court had passed an order for CBI inquiry and compensation of Rs 25,000 each to the victims for the alleged illegal detention without properly examining the issue as to the allegations against the policemen-a head constable and two constables. 

“The issue of award of compensation in case of violation of fundamental rights of a person has been considered by this Court time and again and it has consistently been held that though the High Courts and this Court in exercise of their jurisdictions under Articles 226 and 32 can award compensation for such violations but such a power should not be lightly exercised.

These Articles cannot be used as a substitute for the enforcement of rights and obligations which could be enforced efficaciously through the ordinary process of courts.

Before awarding any compensation there must be a proper enquiry on the question of facts alleged in the complaint, the bench said. PTI