Preventive Action of Police

Sections 168 to 172 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — re-enacting Sections 149 to 153 of the old Code of Criminal Procedure, 1973 with one new addition — collect the police's standing executive power to interpose before a cognizable offence is committed. The chapter is the police-side counterpart to the Magistrate's preventive jurisdiction under Sections 148 to 167 BNSS. While the Magistrate's preventive jurisdiction is quasi-judicial and quasi-executive, the preventive jurisdiction of the police under Chapter XII BNSS is purely executive — summary, immediate, and answerable to the writ courts where it strays into political detention or paper apprehension.

The chapter does three jobs. First, it creates a duty (not merely a discretion) on every police officer to prevent cognizable offences and to communicate intelligence about designs to commit them — Sections 168 and 169 BNSS. Second, it confers a narrow arrest power on the police officer who knows of a design to commit a cognizable offence and forms the opinion that arrest is the only way to prevent it — Section 170 BNSS, with a constitutional cap of twenty-four hours' custody. Third, it confers two minor inspection-and-protection powers — Section 171 BNSS for public property and Section 172 BNSS, newly inserted in the BNSS and absent from the CrPC, mandating that all persons conform to the lawful directions of a police officer in fulfilment of his duty under the chapter.

Section 168 BNSS — duty to interpose

Section 168 BNSS (previously Section 149 CrPC) is in deceptively brief language: every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. Two words deserve notice. Interpose is the operative verb — it is wide enough to cover everything from issuing an oral warning to physically intervening between the prospective offender and the victim, but it does not by itself authorise either arrest or any specific coercive act. The discretion to use particular coercive measures is conferred by the next sections of the chapter and by the general powers of arrest in Section 35 BNSS (previously Section 41 CrPC), discussed at length in our chapter on arrest of persons.

The second word is cognizable. The duty arises only in respect of cognizable offences as defined in Section 2(1)(g) BNSS (previously Section 2(c) CrPC) — those listed in the First Schedule as cognizable, and any offence under any other law for which the police may arrest without a warrant. The chapter on definitions and key concepts sets out the distinction in detail. For a non-cognizable offence the police can only enter a daily-diary entry and refer the informant to the Magistrate; the preventive duty under Section 168 does not extend that far. The text uses shall alongside may deliberately — the discretion is in the choice of method, the duty in the prevention itself.

Section 169 BNSS — duty to communicate information of design

Section 169 BNSS (previously Section 150 CrPC) imposes a corresponding intelligence-sharing duty. Every police officer receiving information of a design to commit any cognizable offence must communicate that information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of the offence. The provision is mechanical but vital: it operationalises the chain of command. A constable in a beat patrol who hears of a planned dacoity in another station's jurisdiction is not entitled to keep the intelligence to himself; he is bound to pass it up the line and across the boundary to the station that will need to act. The provision works hand-in-glove with the chapter on powers of police officers and aid to magistrates.

Section 170 BNSS — arrest to prevent a cognizable offence

Section 170 BNSS (previously Section 151 CrPC) is the operative coercive provision. A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. Sub-section (2) caps the detention at twenty-four hours from the time of arrest unless further detention is required or authorised under any other provision of the BNSS or of any other law for the time being in force. The cap is not a procedural courtesy; it is the constitutional anchor that brings the section in line with Article 22(2) of the Constitution.

Two ingredients, both verifiable

Two ingredients must be satisfied before an arrest under Section 170 is lawful. First, the police officer must know — not merely apprehend — that the person arrested has a design to commit a cognizable offence. Balraj v. Union of India, AIR 1967 Del 31, draws the line between knowledge and apprehension; mere suspicion is not enough. Second, it must appear to the officer that the commission of the offence cannot otherwise be prevented. The Madras High Court in Om Prakash, In re, AIR 1947 Mad 744, held that the formation of these two satisfactions is the subjective estimate of the officer charged with maintaining public order, and the Court will not lightly substitute its own view of the underlying facts.

That said, the Allahabad High Court in Mohammad v. Ram, AIR 1965 All 160, made clear that judicial review is not barred where the power has been exercised improperly. Sub-section (2) brings the entire arrest under the constitutional umbrella of Article 22(2): the Magistrate before whom the arrested person is produced must satisfy himself that the arrest was made in accordance with law. Prahlad v. Province of Orissa, AIR 1950 Orissa 107, set aside an arrest under Section 151 used for political preventive detention; the section cannot be hijacked for purposes outside it. Mohammad v. Ram reiterated that mere apprehension of a breach of the peace, without a definite design to commit a cognizable offence, will not do — for that, the bond regime under our chapter on peace bonds and good-behaviour bonds under Sections 125 to 143 BNSS is the correct route.

Constitutionality and the D.K. Basu safeguards

The Supreme Court in Ahmed Noormohmed Bhatti v. State of Gujarat, (2005) 3 SCC 647, decisively upheld the constitutionality of Section 151 CrPC against challenge under Articles 21 and 22 of the Constitution. The Court read the section together with the safeguards laid down in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. The guidelines, the Court held, are in-built in the section itself: the conditions for arrest are circumscribed by sub-section (1), and the period of detention is capped by sub-section (2). The safeguards in D.K. Basu — the inspection memo, the right to inform a friend or relative, the medical examination every forty-eight hours, the entry in the case diary — apply to every arrest, including a Section 170 BNSS arrest, and travel along with the chapter on rights of the arrested person.

Section 50A CrPC (now Section 48 BNSS), inserted by the 2005 amendment, requires the arresting officer to inform the arrestee of his right to have a nominated person told of his arrest. Section 46(4) CrPC (now Section 43(5) BNSS) bars the arrest of women after sunset and before sunrise except in exceptional circumstances and with the prior permission of the Judicial Magistrate of the first class within whose jurisdiction the offence is committed or the arrest is to be made; State of Maharashtra v. Christian Community Welfare Council of India, (2003) 8 SCC 546, prefers the presence of a lady constable but does not make the absence of one a ground for delaying a lawful arrest. Both provisions apply to Section 170 BNSS arrests.

The State amendment route — Maharashtra and beyond

Maharashtra has, by Act 7 of 1981, amended Section 151 CrPC to permit extended detention beyond twenty-four hours where the police officer or the officer in charge of the station has reasonable grounds to believe that the arrested person is likely to continue the design to commit, or is likely to commit, the cognizable offence after release, and that being at large is likely to be prejudicial to the maintenance of public order. The arrested person must be produced before the nearest Judicial Magistrate with a written report stating reasons for the continued detention. The Magistrate may remand from time to time, but no person shall be detained for a period exceeding fifteen days at a time and a total period exceeding thirty days from the date of arrest. The arrestee may make a representation against the order to the Court of Session, which may vacate the order if it considers further detention unnecessary or otherwise improper. The amendment has been brought into force in Maharashtra alone; it has no parallel in the BNSS, and the question whether the State amendment will continue to operate alongside Section 170 BNSS is open. The conservative answer is that, since the BNSS has expressly preserved State amendments to corresponding provisions of the CrPC under its repeal-and-savings clause in Section 531 BNSS, the Maharashtra amendment continues. Candidates writing on Maharashtra papers should know the provision; candidates writing on Central or other-State papers should know it exists but does not apply.

What Section 170 cannot do — and the misuse cases

The case law on misuse is rich and harsh. Medha Patkar v. State of M.P., 2008 CrLJ 47 (MP DB), set aside an arrest under Section 151 of project-affected persons squatting on a road and shouting slogans demanding rehabilitation; the High Court held the arrest unconstitutional under Articles 19 and 21, and directed compensation of Rs. 10,000 per arrestee with liberty to the State to recover the sums from the erring officers. The judgment is a useful exam authority: peaceful protest, even if disorderly, is not a design to commit a cognizable offence.

The arrest under Section 170 does not, by itself, authorise detention beyond twenty-four hours. Janardan v. State of Bihar, AIR 1968 Pat 22, held that the Magistrate's power to remand under Section 187 BNSS (previously Section 167 CrPC) can be exercised only where investigation into a cognizable offence has commenced; a person produced under Section 170 without an investigation having begun must be released forthwith. The intersection with the FIR regime is treated in our chapter on FIR and Zero FIR, and the consequential investigation is laid out in our chapter on police investigation powers under Sections 173 to 197 BNSS.

Remedies — habeas corpus, compensation, departmental action

Three remedial routes lie open to a person wrongfully arrested under Section 170. The first is habeas corpus under Article 226 — the High Court may issue the writ to test the legality of the detention, and the Magistrate's failure to apply his mind under sub-section (2) is itself a ground. The second is constitutional compensation under the line of cases beginning with Rudul Sah v. State of Bihar, (1983) 4 SCC 141, and developed through Bhim Singh v. State of J&K, (1985) 4 SCC 677, and D.K. Basu; the Medha Patkar award of Rs. 10,000 per arrestee was an application of this jurisprudence. The third is departmental and criminal action against the erring officer — the State Government's standing instructions on misuse of Section 151 CrPC have been treated as enforceable disciplinary norms in many High Court decisions. Candidates should remember the order of the remedies: writ first, compensation alongside, departmental action as a follow-through.

Section 170 vis-à-vis the special preventive-detention statutes

The Section 170 BNSS arrest must not be confused with the wholly separate regime of preventive detention under the National Security Act, 1980, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Unlawful Activities (Prevention) Act, 1967 (UAPA), or the various State public-security statutes. Section 170 BNSS is a statutory pre-arrest mechanism with a twenty-four-hour ceiling and a constitutional anchor in Article 22(2). Preventive detention is a distinct constitutional category under Article 22(3) to (7), with its own advisory-board safeguards and twelve-month outer limit. Prahlad v. Province of Orissa turned on this very confusion — the police had used Section 151 to do what only the District Magistrate acting under a preventive-detention statute could lawfully have done. The exam-going candidate should be quick to flag the misuse: any answer-script that conflates the two regimes will lose marks.

Section 171 BNSS — prevention of injury to public property

Section 171 BNSS (previously Section 152 CrPC) is brief: a police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark, buoy, or other mark used for navigation. The section operates in real-time and on personal observation — "in his view" excludes second-hand information, which would have to be processed under Sections 168 and 170. The substantive offences whose commission this preventive arm forestalls are now found in the BNS, replacing Sections 431 and 434 IPC. Read with Section 35 BNSS, the police officer may also arrest the person attempting the injury, where the offence is cognizable, even without recourse to Section 170.

The provision is not redundant. Without Section 171, a police officer witnessing an attempt to deface a public landmark would have to wait until the offence had been completed (or attempted within the meaning of Section 62 BNS) before arresting, by which time the damage would already have occurred. Section 171 authorises real-time, on-view physical interposition — pulling the would-be offender away, taking the implement out of his hand, or otherwise neutralising the attempt — without waiting for the legal threshold of an attempt to be crossed. The grammar of "interpose" is the same as in Section 168, but the trigger here is sharper: in-view, public-property, no-warrant, immediate.

Section 172 BNSS — duty to conform to police directions (NEW)

Section 172 BNSS is genuinely new — there is no exact CrPC counterpart. Sub-section (1) provides that all persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty under Chapter XII BNSS. Sub-section (2) authorises a police officer to detain or remove any person resisting, refusing, ignoring, or disregarding any direction given by him under sub-section (1), and either to take such person before a Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four hours. The provision codifies what had previously been an inferred and uncertain power — the implied authority of a police officer giving a lawful traffic, crowd-control, or cordon direction to require obedience.

The new section will be MCQ-banking material for state mains papers from 2024 onward. Three points to memorise. First, the duty under sub-section (1) attaches only to lawful directions — the unlawful order does not bind, and the Court will scrutinise the lawfulness on Section 172 challenges. Second, sub-section (2) confers an independent detention power that does not require a cognizable offence; the power can therefore be invoked at a barricade or a procession point even where no offence has been committed. Third, the twenty-four-hour ceiling for petty cases mirrors the constitutional cap in Article 22(2) and the corresponding cap in Section 170(2) BNSS — the BNSS keeps the chapter internally consistent.

Section 153 CrPC — inspection of weights and measures (omitted in BNSS)

Old Section 153 CrPC empowered the officer in charge of a police station to enter any place within his station limits, without a warrant, to inspect or search for false weights, measures, or weighing instruments, and to seize them and inform the Magistrate. The provision was the procedural arm of the offence under Section 264 IPC. The BNSS has not retained Section 153 verbatim within Chapter XII; the analogous regulatory and search powers are now distributed across the Legal Metrology Act, 2009, and the general search-warrant regime in Sections 96 to 105 BNSS, treated in our chapter on search warrants and seizure. Candidates writing on Chapter XII BNSS should flag this omission expressly — it is a small but instructive change in the architecture of the new Code.

Reading the chapter together with adjacent regimes

The preventive jurisdiction of the police is one rung in a longer ladder of preventive powers. The Magistrate's preventive arsenal — dispersal of unlawful assemblies, public-nuisance removal, urgent prohibitory orders — is treated in our chapter on the maintenance of public order and tranquillity. Where the apprehended danger concerns immovable property, the relevant preventive jurisdiction is in our chapter on disputes regarding immovable property. Where the apprehended offence is one for which a complaint must first be made, the chapter on conditions requisite for the initiation of proceedings sits in line. None of these regimes is alternative; they are concentric, and a single street altercation may simultaneously attract Section 168 BNSS (police duty to interpose), Section 163 BNSS (Magistrate's urgent prohibitory order), and Section 126 BNSS (peace bond) without conflict.

Comparative table — CrPC and BNSS

• S. 149 CrPC = S. 168 BNSS — duty to interpose to prevent cognizable offences.
• S. 150 CrPC = S. 169 BNSS — duty to communicate information of design.
• S. 151 CrPC = S. 170 BNSS — arrest to prevent cognizable offences; 24-hour cap.
• S. 152 CrPC = S. 171 BNSS — prevention of injury to public property.
• S. 153 CrPC — omitted in BNSS Chapter XII; analogous powers under special laws and Sections 96 to 105 BNSS.
• NEW: S. 172 BNSS — persons bound to conform to lawful directions of police; 24-hour detention ceiling for petty cases.

The chapter is short but examination-rich. The dual citation discipline — "under Section 170 BNSS (Section 151 CrPC), a police officer may, on knowledge of a design to commit a cognizable offence, arrest without warrant…" — should be the candidate's default. The constitutional anchor in Article 22(2), the four-corner safeguards from D.K. Basu, and the new Section 172 BNSS conformity-direction power, read together with the inherent powers of the High Court as a writ-court check, complete the picture of police preventive jurisdiction.

Frequently asked questions

What is the difference between an arrest under Section 170 BNSS and an arrest under Section 35 BNSS?

Section 35 BNSS (previously Section 41 CrPC) is the general power to arrest without a warrant for cognizable offences that have been or are reasonably suspected to have been committed; the focus is investigatory. Section 170 BNSS (previously Section 151 CrPC) is a narrow preventive power exercised only where the officer knows of a design to commit a cognizable offence and forms the opinion that the offence cannot otherwise be prevented; the focus is preventive. The Section 170 arrest cannot, on its own, sustain detention beyond twenty-four hours, whereas a Section 35 arrest connects to the regular investigation and remand chain under Section 187 BNSS.

Can a person arrested under Section 170 BNSS be remanded to custody by the Magistrate?

Only if an investigation has commenced. The Patna High Court in Janardan v. State of Bihar, AIR 1968 Pat 22, held that the Magistrate's power to remand under Section 167 CrPC (now Section 187 BNSS) presupposes the commencement of an investigation into a cognizable offence; absent that, the person produced under Section 151 CrPC must be released forthwith on expiry of twenty-four hours. The Supreme Court has reiterated this position. If, however, before twenty-four hours elapse, the police register an FIR and start investigation, the detention can be continued under the regular Section 187 BNSS regime.

Is Section 170 BNSS (Section 151 CrPC) constitutional under Articles 21 and 22?

Yes. The Supreme Court in Ahmed Noormohmed Bhatti v. State of Gujarat, (2005) 3 SCC 647, upheld the constitutionality of Section 151 CrPC. The Court held that the safeguards are in-built: the section circumscribes the conditions for arrest in sub-section (1) and caps detention at twenty-four hours in sub-section (2). The Court read the section together with the procedural safeguards laid down in Joginder Kumar v. State of U.P. (1994) and D.K. Basu v. State of West Bengal (1997). The Section 170 BNSS arrest must therefore comply with the inspection memo, right to inform a relative, medical examination, and case-diary entry requirements set out in those judgments.

What is new about Section 172 BNSS, and why does it matter?

Section 172 BNSS has no direct CrPC counterpart in Chapter XI. Sub-section (1) makes it a duty for all persons to conform to the lawful directions of a police officer given in fulfilment of his duty under Chapter XII BNSS. Sub-section (2) confers an independent power to detain or remove any person resisting, ignoring, or disregarding such direction, and to take him before a Magistrate or, in petty cases, release him within twenty-four hours. The section codifies what was previously implied — the binding force of a police direction at a barricade, traffic point, or crowd-control cordon — and creates a free-standing detention power that does not depend on the existence of a cognizable offence.

Can Section 170 BNSS be used to detain protesters demanding a public-policy change?

No, not on the facts of mere protest. The Madhya Pradesh High Court in Medha Patkar v. State of M.P., 2008 CrLJ 47 (MP DB), set aside the arrest under Section 151 CrPC of project-affected persons squatting on a road and shouting slogans demanding rehabilitation; the Court held the arrest unconstitutional under Articles 19 and 21 and awarded Rs. 10,000 per arrestee as compensation, with liberty to the State to recover the amounts from the erring officers. The judgment confirms that there must be a definite design to commit a cognizable offence — peaceful (or even disorderly) protest as such will not do.