2005 Supreme(SC) 483

2005(2) Supreme 643
Supreme Court of India
(From Gujarat High Court)
N. Santosh Hegde, B.P. Singh & S.B. Sinha, JJ.
Ahmed Noormohmed Bhatii —Appellant
versus
State of Gujarat and Ors. —Respondents
Criminal Appeal No. 109 of 2001
Decided on 16-3-2005
Counsel for the Parties :
For the Appellant : Arvind K. Nigam, Ms. Kamini Jaiswal and Ms. Shomila Bakshi, Advocates.
For the Respondents : Yashank Adhyaru, Sr. Advocate, Ms. Hemantika Wahi, Madhukar Varma, Ms. Archana Palkar Khopde, Abhijat P. Medh, Aseem Mehrotra, Ashok Mohan, Mrs. Sunita Sharma and Ms. Sushma Suri, Advocates.

Important point
Section 151 Cr.P.C. providing arrest of a person to prevent the commission of cognizable offence by him is neither arbitrary nor unreasonable nor violative of fundamental rights under Articles 21 and 22 of the Constitution of India.

Headnote:Criminal Procedure Code, 1973—Section 151—Powers of police office to arrest without orders from Magistrate and without warrant, a person designing to commit cognizable offence—Writ Petition challenging constitutional validity of the provision—High Court dismissed petition holding that powers conferred upon police under the provision were defined so as to save it from the charge of being either arbitrary or unreasonable—Appeal—Provision could not be said to the arbitrary or unreasonable or infringing upon fundamental right to a citizen under Articles 21 and 22 of the Constitution—Requirement laid down in Joginder Kumar and D.K. Basu’s case apply also to an arrest made u/s 151 Cr.P.C. —The provision could not held to be arbitrary and unconstitutional merely because the authority vested with powers might abuse its authority.

       Held : 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. He can do so only if he has come to know of a design of the person concerned to commit any cognizable 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 be otherwise prevented. The Section, therefore, expressly lays down the requirements for the 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 of the Code of Criminal Procedure, the arresting authority may be exposed to proceedings under the law. Sub-section (2) lays down the rule that normally a person so arrested shall be detained in custody not for a period exceeding 24 hours. It, therefore, follows that in the absence of anything else, on expiry of 24 hours, he must be released. The release, however, is not insisted upon only when his further detention is required or authorized under any other provision of the Code or of any other law for the time being in force. It, therefore, follows that if before the expiry of 24 hours of detention it is found that the person concerned is required to be detained under any other provision of the Code of Criminal Procedure, or of any other law for the time being in force, he may not be released and his detention may continue under such law or such provision of the Code. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India. (Para 5)

       Counsel for the petitioner submitted that such requirements must be laid down in the case of an arrest under Section 151 of the Code of Criminal Procedure. Counsel for the respondents conceded that the requirements laid down in Joginder Kumar (supra) and D.K. Basu (supra) apply also to an arrest made under Section 151 of the Code of Criminal Procedure. As we have noticed earlier, Section 151 of the Code of Criminal Procedure itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in the provision itself. Those statutory guidelines read with the requirements laid down by this Court in Joginder Kumar (supra) and D.K. Basu (supra) provide an assurance that the power shall not be abused and in case of abuse, the authority concerned shall be adequately punished. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. Since several cases of abuse of authority in matters of arrest and detention have come to the notice of this Court, this Court has laid down the requirements which have to be followed in all cases of arrest and detention. (Para 10)