Arrest Without Warrant To Commit Cognizable Offence Violates Article 21

Section 151 and Power to a Police Officer

Section 151 of India's Code of Criminal Procedure (CrPC) empowers a police officer to arrest a person without a warrant if the officer believes the person is likely to commit a cognizable offence or disturb public peace and order. The section gives the police officer the power to take preventive measures to ensure that the person does not commit an offense or create a disturbance. This provision is a valuable tool for law enforcement agencies to maintain public order and safety.

However, the exercise of this power is subject to certain limitations. The police officer must reasonably believe that the person is likely to commit an offense or create a disturbance. The belief must be based on specific and credible information and not merely on vague or general suspicion. Moreover, the person arrested under Section 151 must be produced before a magistrate without unnecessary delay. The magistrate may then either release the person or order him to be detained further if the magistrate is satisfied that there is sufficient ground for such detention.

It is important to note that the power under Section 151 is an extraordinary power, and its use must be justified by the circumstances of the case. The Supreme Court has held that the power under this section must be used sparingly and with great caution.

In conclusion, Section 151 of the CrPC is a significant provision that empowers law enforcement agencies to take preventive measures to maintain public order and safety. However, the exercise of this power must be done within the limits of the law and with due regard for the rights of the individual.

Article 21

Article 21 of the Constitution of India is one of the most important and fundamental provisions that guarantee the protection of every individual's life and personal liberty. It states, "No person shall be deprived of his life or personal liberty except according to the procedure established by law."

The right to life and personal liberty is a fundamental right inherent to every individual, and the state is obligated to protect and respect this right. Article 21 has been interpreted expansively by the judiciary, which has held that it includes the right to physical existence and the right to live with dignity and freedom. This article has been interpreted to include various rights, such as the right to privacy, the right to livelihood, the right to a fair trial, the right to health, the right to education, and the right to a clean and healthy environment.

The protection of Article 21 is not limited to citizens but extends to all persons, including non-citizens and foreign nationals. The provision also prohibits arbitrary detention or imprisonment and requires everyone to be given a fair and reasonable opportunity to defend themselves. The Supreme Court of India has significantly protected the right to life and personal liberty under Article 21. The Court has passed several landmark judgments that have expanded the scope and meaning of Article 21 and have given a wide interpretation to the term "procedure established by law."

Hence, Article 21 is a fundamental right that protects every individual's life and personal liberty. It is an essential provision that ensures that the state upholds and respects the dignity and freedom of all individuals. The protection of Article 21 is critical for the functioning of a democratic society, and its interpretation and implementation must be done with great care and attention.

Regarding this, “Kerala High Court” has given a landmark decision in that the Hon’ble High Court said that “Police cannot make an arrest under Section 151 of the Code of Criminal Procedure (arrest to prevent the commission of cognizable offenses) unless they have "knowledge of the existence of a design to commit a cognizable offense and a belief that the commission of the offense is imminent."

According to the Hon’ble High Court, Since the police have been given extraordinary powers of arresting without a warrant in the event that they have knowledge of a design to commit a cognizable offense, a single bench of "Justice Bechu Kurian Thomas" noted that a strict interpretation of section 151 was important to avoid any misuse of such powers: "The object of Section 151 of the Code is one of preventive justice, and before invoking the said provision, there must be evident that there is imminent danger." For a police officer to have the authority to make an arrest under Section 151 of the Code, the officer must have a reasonable suspicion that a cognizable offense is about to be committed and that, without arrest, the offense is likely to be committed. As a corollary, a police officer cannot make an arrest under Section 151 of the Code without a warrant from the Magistrate if they have no information of a purpose or an impending danger to commit a cognizable offense.

As per the help of the above-described landmark decision, it could be explained that Article 21 of the Constitution of India guarantees the right to life and personal liberty to every individual, which is a fundamental right inherent to every person. This right imposes restrictions on the power of police officers while exercising their power under Section 151 of the Code of Criminal Procedure (CrPC). Section 151 of CrPC empowers a police officer to arrest a person without a warrant if the officer believes the person is likely to commit a cognizable offense or disturb public peace and order. However, the exercise of this power is subject to certain limitations and restrictions imposed by Article 21 of the Constitution of India.

Restrictions imposed by Article 21 on the power of police officers

The restrictions imposed by Article 21 on the power of police officers include the following:

•  The police officer must believe that the person will likely commit an offense or create a disturbance. The belief must be based on specific and credible information and not merely on vague or general suspicion.
• The police officer must follow the due process of law while arresting a person under Section 151 of CrPC. This includes informing the person of the reasons for the arrest and producing the person before a magistrate without unnecessary delay.
• The police officer must ensure that the person arrested is not subjected to any kind of physical or mental torture, inhumane or degrading treatment, or any other violation of their right to life and personal liberty.
• The police officer must ensure that the person arrested is not detained for a period longer than necessary and that the person is given a fair and reasonable opportunity to defend themselves.

Conclusion 

                Article 21 of the Constitution of India imposes significant restrictions on the power of police officers while exercising their power under Section 151 of CrPC. The exercise of this power must be done within the limits of the law and with due regard for the rights of the individual. The protection of Article 21 is critical for the functioning of a democratic society, and its interpretation and implementation must be done with great care and attention.

Frequently Asked Questions

Questions 1.

What is Article 21 of the Indian Constitution, and why is it relevant to the issue of arresting someone without a warrant for committing a cognizable offence?

Answer:

Article 21 of the Indian Constitution guarantees the right to life and personal liberty. It is relevant to the issue of arresting someone without a warrant for committing a cognizable offence because such an arrest may violate an individual's fundamental right to personal liberty.

Question 2:

What is the difference between a cognizable offence and a non-cognizable offence, and why does it matter when it comes to making an arrest?

Answer:

A cognizable offence is an offence that can be investigated and arrested without a warrant, while a non-cognizable offence requires a warrant for investigation or arrest. The distinction is important because it determines the authority of the police to make an arrest without a warrant.

Question 3:

Can someone be arrested without a warrant for committing a non-cognizable offence? Why or why not?

Answer:

No, someone cannot be arrested without a warrant for committing a non-cognizable offence. In such cases, the police must obtain a warrant from a magistrate before making an arrest.

Question 4:

What are the circumstances under which a police officer can arrest someone without a warrant for committing a cognizable offence?

Answer:

A police officer can arrest someone without a warrant for committing a cognizable offence if the offence is serious in nature and the officer has reasonable grounds to believe that the arrest is necessary to prevent the accused from absconding or tampering with evidence.

Question 5:

What are the potential consequences for police officers who make an arrest without a warrant for a cognizable offence, violating Article 21?

Answer:

Police officers who make an arrest without a warrant for a cognizable offence violating Article 21, may face disciplinary action or legal consequences. The arrested person may also file a complaint against the police officer for wrongful arrest.

Question 6:

Are there any exceptions to the requirement for a warrant when arresting someone for a cognizable offence? If so, what are they?

Answer:

There are a few exceptions to the requirement for a warrant when arresting someone for a cognizable offence, such as in cases of hot pursuit, preventive detention, or when the accused is a proclaimed offender.

Question 7:

How can someone challenge an arrest made without a warrant for a cognizable offence, and what are the potential remedies or outcomes?

Answer:

An individual who has been arrested without a warrant for a cognizable offence can challenge the arrest by filing a writ petition in the appropriate court, seeking release on the grounds of violation of their fundamental rights. The court may order the release of the arrested person if it finds that the arrest was illegal or unconstitutional.

Question 8:

What steps can be taken to prevent wrongful or illegal arrests for cognizable offences without a warrant and to ensure that Article 21 rights are protected?

Answer:

To prevent wrongful or illegal arrests for cognizable offences without a warrant, police officers should be trained to follow proper procedures and obtain necessary warrants when required. The public can also be educated about their rights and empowered to hold police officers accountable for any rights violations. Additionally, independent oversight mechanisms can be established to investigate complaints of police misconduct and ensure that Article 21 rights are protected.

 

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