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What SC says on preventive arrest

delhi Updated: Aug 18, 2011 00:37 IST
HT Correspondent
HT Correspondent
Hindustan Times
Preventive detention law

Preventive detention law can be invoked only if there is "imminent danger to peace" and the person sought to be arrested is likely to commit a cognisable offence, the Supreme Court has said.

A bench of justice P Sathasivam and justice BS Chauhan said preventive detention of a person in apprehension of breach of peace was permissible only if the police were satisfied that the person was likely to commit a cognisable offence.

Anti-corruption campaigner Anna Hazare was arrested by the Delhi Police on Tuesday morning under Section 107/151 of the Criminal Procedure Code barely an hour before the beginning of his fast.

"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 CrPC An arrest under S.151 can be supported when the person to be arrested designs to commit a cognisable offence," the bench said in a judgment on August 12.

"A further condition for the exercise of such power, which must also be fulfiled, 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," it said.

However, the bench said, "If these conditions are not fulfiled 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."

The bench quashed a Delhi high court direction for a CBI probe into the preventive detention of two persons by Delhi Police. The duo had allegedly indulged in a drunken brawl.

The bench said: "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.