Preventive detention only for imminent danger: SC

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.

New Delhi: 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 CrPC 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 CrPC. 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 CrPC 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 CrPC, 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

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.


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