Petitioners who had recently moved the Bombay High Court alleging that they had been illegally detained by the police and their counsels have now submitted certain observations by the apex court for the consideration of the High Court. The High Court is hearing a petition filed by activists Feroze Mithiboriwala of Awami Bharat and Aslam Gazi of Jamat-e-Islam whom the police had taken in preventive detention under Section 151 of the CrPC apprehending that they might commit some offence during the recent visit of US Secretary of State Hillary Clinton to Mumbai. Their petition was later clubbed with a similar petition by a Solapur-based professor who alleged that he was illegally detained by the police. The case will again come up for hearing on Wednesday. The High Court,during an earlier hearing,had observed that there is a need to go further into the interpretation of the Section to streamline detention powers of the police. Section 151 of CrPC requires that,firstly,there should be a design to commit a cognizable offence and secondly,detention should be the only way to prevent the offence. Apex court guidelines in various judgements go a step further saying design to commit an offence cannot be based on apprehensions of the authorities alone and it should be more than a possibility. Based on these judgements,the petitioners counsels have submitted that unless there is knowledge that a cognisable offence is going to be committed,Section 151 cannot be invoked. The submissions for courts consideration say that in matters where persons are trying to exercise their fundamental rights such as holding demonstrations and peaceful assembly,preventive arrest can be resorted to only when there is knowledge that the assembly or demonstration is not going to be peaceful and is going to be violent. The submissions state that even when there is such knowledge it needs to be further determined whether the offence can be prevented without detention and all these factor including the reasons must be recorded in writing by the police officer before taking anyone in preventive detention. The Supreme Court,in the Shahji Lokhande case,had held that persons detained under Section 151 cannot be treated on par with undertrials or convicts and it is necessary to frame rules for such persons. The SC in another case also observed that failure to follow these will amount to illegal arrest and entitles detainee to compensation.
