Powers of police under Code of Criminal Procedure
Powers of Police are very wide and are based on two main functions of Police. These functions are Maintaining of Law and Order and Investigation of illegal activities. The Police Act defines Police as an instrument for the prevention and detection of Crime.[i] The Police define most of its powers from the Code of Criminal Procedure, 1973 and the Police Act, 1861. Following are some of the Powers of Police;
Powers of Police to Investigate
The Investigation of Police starts when;
- When someone lodges an FIR(First Information Report).[ii]
- When a Police officer suspects commission of a cognizable offence.[iii]
- Whenever a competent magistrate orders the Police.[iv]
The Police have the power to investigate Cognizable as well as Non-Cognizable offences.[v] Police officers can investigate Cognizable offences without the magistrate’s orders. If a Police officer suspects the commission of a cognizable offence, he has the power to investigate under section 157 without the filing of FIR.[vi] Police also have the power to require the presence of witnesses in order to pursue an investigation. Males under 15 years and over 60 years of age, females, or mentally/physically disabled persons shall not be required to attend as a witness except for their residences.[vii] Police can examine these witnesses as well.[viii] Police also has the power to conduct a medical examination of rape victims.[ix]
Powers of Police to Arrest
Police have the power to arrest the persons as well. The Police can make the arrests for both Cognizable as well as Non-cognizable offences. For non-cognizable offences, a Police officer has no authority to arrest a person without warrant. However, a Police officer can arrest a person without a warrant for Cognizable offences.[x] In case of adequate grounds, the magistrate may extend the period of detention to 15 days. Also, the Police have the power to release the accused in case of lack of evidence.[xi]
Power of Preventive Arrest
The preventive arrest is the detaining of a person who is likely to commit an offence. It is a highly debated topic all over the world. In India, section 107 and section 151 of CrPC give the powers of Police for preventive detention mainly. In case an Executive Magistrate receives information that a person is likely to commit a breach of peace, he may order him to show cause. The magistrate may also order him to execute a bond to keep peace in such period.[xii] It is the duty of the Police to prevent Cognizable offences.[xiii] Also, the Police have the power to arrest a person without a warrant or an order from the magistrate in cases they have knowledge that such person is planning to commit a cognizable offence.[xiv]
Though, the Police can only make the arrest if it is the only way to prevent such offence. The idea behind these provisions is to avert the commission of an offence. The constitutional validity of these Sections has always been in controversy. Many persons have filed petitions questioning the validity of the provisions of the preventive arrest.[xv] In a case, certain landowners of MP were protesting after being affected by the Sardar Sarovar Project. Even though they posed no threat to commit cognizable offences but were still beaten up and arrested. The Court held that this was in violation of Article 21 of the Constitution.[xvi] However, section 151 already mentions the grounds of the arrests. Also, preventive arrest laws are given legal recognition under the Constitution of India.[xvii] So, these provisions cannot be said to be in violation of Articles 21 and Article 22.[xviii]
Abuse of Powers of Police under Preventive Arrest
There have been many instances when these powers have been misused by the Police as well. This was because of the arbitrary and unjust use of these powers. In a case, the persons arrested under section 107 and section 151 were not given a chance to be heard for 6 days. The case was tried without any scrutiny under issue. And, no order was issued under section 111 of the CrPC. The Karnataka HC held that this process was arbitrary and unjust as the Police didn’t follow proper procedure.[xix]
In the case of Ahmed Noormohmed Bhatti v State of Gujarat[xx], it was suggested that the guidelines given for the detainees must be followed in cases of Preventive arrests as well. The Court gave these guidelines in the case of D K Basu v State of West Bengal. The Court also held that a provision is not unreasonable or unconstitutional because of arbitrary exercise of it by the authorities. Proper scrutiny of each case is to be done to determine whether the arrest is unconstitutional or not.
Police is an important part of a healthy society. We always remember Police first when we are in trouble or under a threat. The powers of the Police are invested in them to have a smooth and healthy society. But, they ultimately have a duty to protects the rights and interests of the individuals. Due to this, they must use their powers with the utmost care and caution. The author notes that there are many instances where the Police have misused these provisions and there should be a proper check on these practices.
[i] The Police Act 1861, preamble.
[ii] Code of Criminal Procedure 1973, s 154.
[iii] ibid, s 157(1), 156(1).
[iv] Code of Criminal Procedure 1973, s 156(3).
[v] ibid, s 155, 156.
[vi] State of Maharashtra v Sarangdharsingh Shivdassingh Chavan (2011) 1 SCC 577.
[vii] Code of Criminal Procedure 1973, s 160.
[viii] ibid, s 161.
[ix] Code of Criminal Procedure 1973, s 164A.
[x] ibid, s 2(c), 2(l).
[xi] Code of Criminal Procedure 1973, s 169.
[xii] ibid, s 107.
[xiii] Code of Criminal Procedure 1973, s 149.
[xiv] ibid, s 151.
[xv] ‘Role of Police and its power to Investigate’ (Lawnn, 14 February 2017) <https://lawnn.com/role-police-power-investigate/> accessed 12 December 2018.
[xvi] Medha Patkar v State (2011) 8 SCC 55.
[xvii] Constitution of India 1950, a 22.
[xviii] Ahmed Noormohmed Bhatti v State of Gujarat (1999) SCC (Cri) 1014.
[xix] Sathi Sundaresh v The State PSI of Moodigere 2007 (4) CrLJ 649.
[xx] Supra Note xviii.
Try our all-in-one Legal Practice Management Software START FREE TRIAL!