Preventive Action of the Police | Section 168 to 172 BNSS

Preventive Action of the Police under the BNSS, 2023: Chapter XII, Sections 168 to 172, Preventive Arrest and the New Section 172

The police are not only an investigating agency. Their older and more constant function is to stop crime from happening, and Chapter XII of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the statutory expression of that function. Its five sections impose a duty to prevent cognizable offences, require information of a design to commit one to be passed on, permit an arrest to prevent the commission of an offence that cannot otherwise be prevented, permit interposition to protect public property, and, in a provision that is entirely new, require all persons to conform to the lawful directions of a police officer given in fulfilment of those duties.

The chapter deals with a power that is uncomfortable by its nature. An arrest under section 170 is an arrest of a person who has committed no offence. That is why the section is confined to a design to commit a cognizable offence which cannot otherwise be prevented, and why the detention it permits ends absolutely at twenty-four hours unless some other law authorises its continuance.

Figure 1: Chapter XII, section by section

1. The Duty to Prevent: Section 168

Section 168, BNSS 2023

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.

The section contains a power and a duty in a single sentence, and the difference between them matters. “May interpose” confers a power to intervene, which protects an officer who steps in and which makes his intervention lawful. “Shall, to the best of his ability, prevent” imposes a duty, breach of which is a dereliction, and which is the foundation of the liability of a police force that stands by while an offence is committed in its presence.

Three limits are built into it. The obligation is confined to cognizable offences. It is measured by the officer’s ability, so it is not an absolute guarantee of prevention. And it is a duty owed in the exercise of a public function rather than to any particular person, though a failure to discharge it in the face of an imminent and known danger has been treated as actionable in public law.

2. Information of a Design: Section 169

Every police officer receiving information of a design to commit any cognizable offence shall communicate such 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 any such offence.

The section is administrative in form and important in substance. A constable who learns of a design has neither the authority nor the resources to act on it, and the section makes it his duty to move the information upwards to the officer who can, and sideways to the officer whose duty it is to act. It is also the provision that creates the record: an officer who took no step can be asked what he did with the information he received, and the absence of any communication is itself evidence of the omission.

3. Preventive Arrest: Section 170

Figure 2: The conditions and the limits

Section 170, BNSS 2023

(1) 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.

(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Sanhita or of any other law for the time being in force.

3.1 The three conditions

Knowledge of a design. The officer must know of a design to commit the offence. That is more than a suspicion that the person is of a disposition to commit offences, and more than an apprehension that trouble may occur. There must be a design, that is a formed intention, and the officer must know of it. The material on which he acts should therefore be capable of being stated.
A cognizable offence. The design must be to commit a cognizable offence. A design to commit a non-cognizable offence does not attract the section, which is consistent with the scheme under which the police act on their own authority only in cognizable cases.
It cannot otherwise be prevented. This is the controlling condition. It must appear to the officer that the commission of the offence cannot be otherwise prevented: not that arrest is the most convenient course, or the most certain, but that nothing short of it will do. Dispersal, a warning, the removal of the means, a direction under section 172, or a report to a Magistrate for an order under section 163 are all alternatives that must be considered.

3.2 The limit

Sub-section (2) is absolute in its terms. No person arrested under the section shall be detained for more than twenty-four hours from the time of his arrest, unless his further detention is required or authorised under some other provision of the Sanhita or under any other law. There is no remand under section 187, because a remand presupposes an investigation into an offence and here no offence has been committed. If, within the twenty-four hours, no offence has been committed and no other law authorises detention, the person must be released.

📖 Ahmed Noormohmed Bhatti v. State of Gujarat, (2005) 3 SCC 647

Facts: The constitutional validity of section 151 of the Code of Criminal Procedure, 1973, which permits an arrest to prevent the commission of a cognizable offence, was challenged on the ground that it permits the arrest of a person who has committed no offence, on the subjective satisfaction of a police officer, and is therefore arbitrary and violates Articles 14, 19, 21 and 22.

Held: The Supreme Court upheld the provision. It held that a law is not invalid merely because it may be abused; the possibility of abuse is not a ground for striking down a statute that is otherwise valid, and the remedy lies in action against the abuse. The section is hedged with conditions: the officer must know of a design to commit a cognizable offence, and it must appear to him that the offence cannot otherwise be prevented. The power is available only for prevention, the detention is limited to twenty-four hours, and an officer who acts without the conditions being satisfied acts without jurisdiction and is liable in damages and to prosecution. So read, the provision is a reasonable measure for the prevention of crime and does not violate the Constitution.

Ratio: The preventive arrest power is valid. It is confined by the requirements of knowledge of a design, a cognizable offence, and the impossibility of prevention by other means, and by the twenty-four hour limit; and the possibility of abuse is not a ground of invalidity.

📖 Rajender Singh Pathania v. State (NCT of Delhi), (2011) 13 SCC 329

Facts: Police officers had shown a person as arrested under the preventive provision and had recorded proceedings that were alleged to be false, the complaint being that the preventive power had been used as a cover for an unlawful detention and that the record had been fabricated to justify it.

Held: The Supreme Court dealt severely with the misuse. It held that the preventive power is a serious inroad on liberty and that its exercise must be strictly in accordance with the conditions the section prescribes; the record must show the design of which the officer had knowledge and the reason why the offence could not otherwise be prevented. Fabrication of the record to justify a detention is a grave matter going beyond a procedural irregularity, and the Court directed action. It emphasised that the Magistrate before whom such matters come should scrutinise the record rather than accept the assertion of the officer, and that the ordinary safeguards on arrest apply to a preventive arrest as they do to any other.

Ratio: A preventive arrest must be justified on a record showing the design known to the officer and the impossibility of preventing the offence otherwise. The power is not a cover for detention, and the record is to be scrutinised, not assumed.

⚠ The safeguards of Chapter V apply to a preventive arrest

A preventive arrest is an arrest, and nothing in Chapter XII displaces Chapter V. The officer must bear visible identification and prepare a memorandum of arrest under section 36; must communicate the grounds under section 47; must inform a relative, friend or nominee and the designated police officer under section 48; must have the person medically examined under section 53; and must take reasonable care of his health and safety under section 56.

The grounds communicated under section 47 in such a case are necessarily the design of which the officer had knowledge and the reason why the offence could not otherwise be prevented. A statement that the person was arrested “under section 170” communicates nothing.

The twenty-four hour limit in section 170(2) runs alongside the limit in section 58 and Article 22(2), and in the case of a preventive arrest it is not extendable by a remand, because there is no offence to investigate.

4. Public Property: Section 171

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 or buoy or other mark used for navigation.

Three features distinguish the section from section 168. It is not confined to a cognizable offence; it applies to an attempted injury to public property whatever the offence involved. It requires the attempt to be made in his view, so it is a power to act on what he sees and not on information. And it is expressed as a power to interpose of his own authority, which means the officer need not seek instructions before acting.

The section is the counterpart, on the police side, of the citizen’s duty under section 31 to assist in the prevention of injury to public property. The Sanhita dropped the CrPC’s list of “railway, canal, telegraph or public property” from section 31 in favour of the general expression, and section 171 uses the same general language with the addition of landmarks and navigation marks.

5. Section 172: the New Provision

Section 172, BNSS 2023

(1) All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter.

(2) A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction given under sub-section (1), and may either take such person before a Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four hours.

5.1 What the section does

Section 172 has no counterpart in the Code of Criminal Procedure, 1973, and it fills a gap that was real. A police officer performing a preventive duty routinely gives directions: to move away from a place, to take a particular route, to stop obstructing a road, to disperse from a barricade. Under the old Code there was no general provision requiring compliance with such a direction and no power to deal with a person who ignored it short of arresting him for an offence. Section 172 supplies both.

Element	Content
Who is bound	All persons. The duty is general and is not confined to any class
What must be obeyed	The lawful directions of a police officer. A direction that is not lawful does not bind, and the word is the principal control on the section
Given in what capacity	In fulfilment of any of his duty under this Chapter, that is under sections 168 to 171. A direction given in some other capacity, or in the course of an investigation, is outside the section
The conduct that attracts sub-section (2)	Resisting, refusing, ignoring or disregarding a direction. The four words cover active defiance and passive non-compliance alike
What the officer may do	Detain or remove the person. “Remove” is the lesser measure and is what the situation will usually require: moving a person away from a place rather than taking him into custody
What follows	Either take him before a Magistrate, or, in petty cases, release him as soon as possible and in any event within twenty-four hours

⚠ Three points on section 172

“Lawful” is the whole of the protection. The section binds a person to conform only to a lawful direction. A direction that the officer had no authority to give, or that was given for a purpose outside Chapter XII, or that was itself unlawful, does not bind, and a person who declines to obey it commits no default under the section.

The power is confined to Chapter XII duties. Sub-section (1) refers to a direction given in fulfilment of a duty under this Chapter. The section does not create a general obligation to obey any police direction on any subject, and it does not extend to directions given in the course of an investigation or under the traffic or public-order statutes, which have their own provisions.

The release provision is the significant part. Sub-section (2) permits the officer, in petty cases, to release the person within twenty-four hours instead of producing him before a Magistrate. That avoids burdening the courts with trivial matters, but it also creates a power to detain for up to twenty-four hours on the officer’s own assessment, without any judicial scrutiny at all, and the section prescribes no record of the detention or of the direction disobeyed. That is the feature of the provision most likely to be tested.

6. Chapter XII and the Other Preventive Powers

Power	Who exercises it	What it does
Chapter XII, ss.168 to 172	A police officer, on his own authority	Prevents a cognizable offence: by interposing, by arrest where nothing else will do, by protecting public property, and by directions binding on all persons
Chapter IX, ss.125 to 143	An Executive Magistrate, or the convicting Court under section 125	Binds a person by a bond to keep the peace or to be of good behaviour, on an inquiry into the truth of information
Section 163	A District or Sub-divisional Magistrate, or an Executive Magistrate specially empowered	Forbids an act, by a written order stating the material facts, in urgent cases of nuisance or apprehended danger
Sections 148 to 151	An Executive Magistrate or a police officer, and in the last resort the armed forces	Disperses an unlawful assembly that has already gathered
Sections 165 to 167	An Executive Magistrate	Prevents a breach of the peace arising from a land or water dispute, by deciding actual possession or by attachment
Preventive detention laws	The executive, under a special statute	Detains a person without trial, subject to Article 22(4) to (7) and the Advisory Board machinery. It is not part of the Sanhita and is a different thing altogether from a preventive arrest under section 170

The last row deserves emphasis because the two are constantly confused. A preventive arrest under section 170 is an arrest by a police officer, for a maximum of twenty-four hours, to prevent a specific cognizable offence that cannot otherwise be prevented. Preventive detention is an executive order under a special statute detaining a person for months, subject to the constitutional safeguards in Article 22(4) to (7). Section 170 is in the Sanhita; preventive detention is not.

7. Key Takeaways

The position stated shortly

1. Chapter XII contains five sections, 168 to 172, corresponding to sections 149 to 152 of the CrPC, with section 172 entirely new. The CrPC provision on the inspection of weights and measures has not been carried forward.

2. Section 168 contains both a power to interpose and a duty to prevent, to the best of his ability, the commission of any cognizable offence.

3. Section 169 requires an officer receiving information of a design to commit a cognizable offence to communicate it to his superior and to any other officer whose duty it is to prevent or take cognizance of it.

4. Section 170 permits an arrest without a warrant and without a Magistrate’s order where the officer knows of a design to commit a cognizable offence and it appears to him that it cannot otherwise be prevented.

5. The detention under section 170 cannot exceed twenty-four hours unless further detention is required or authorised under the Sanhita or another law. There is no remand, because no offence has been committed.

6. The provision is constitutionally valid; it is hedged with conditions, and the possibility of abuse is not a ground of invalidity: Ahmed Noormohmed Bhatti.

7. The record must show the design known to the officer and the reason why the offence could not otherwise be prevented; fabrication of the record is a grave matter, and the Magistrate should scrutinise it: Rajender Singh Pathania.

8. The safeguards of Chapter V apply to a preventive arrest: memorandum, grounds, information to a relative, medical examination and care in custody.

9. Section 171 permits an officer to interpose of his own authority to prevent an injury attempted in his view to public property, a public landmark, a buoy or a navigation mark.

10. Section 172, which is new, binds all persons to conform to the lawful directions of a police officer given in fulfilment of a duty under this Chapter, and permits him to detain or remove a person who resists, refuses, ignores or disregards such a direction, taking him before a Magistrate or, in petty cases, releasing him within twenty-four hours.

8. Frequently Asked Questions

What is preventive action of the police under the BNSS?

The powers and duties in Chapter XII, sections 168 to 172: the duty to prevent cognizable offences, the duty to pass on information of a design to commit one, the power to arrest to prevent an offence that cannot otherwise be prevented, the power to interpose to protect public property, and the power to give directions binding on all persons.

When can the police make a preventive arrest?

Under section 170, where the officer knows of a design to commit a cognizable offence and it appears to him that the commission of the offence cannot otherwise be prevented. All three conditions must be satisfied, and the third is the controlling one: arrest is the last resort, not the first.

How long can a person be detained under section 170?

Not more than twenty-four hours from the time of his arrest, unless his further detention is required or authorised under some other provision of the Sanhita or any other law. There is no remand under section 187, because no offence has been committed.

Is preventive arrest the same as preventive detention?

No. A preventive arrest under section 170 is made by a police officer, lasts at most twenty-four hours, and is directed at preventing a specific cognizable offence. Preventive detention is an executive order under a special statute, lasts for months, and is subject to the constitutional safeguards in Article 22(4) to (7). Only the first is part of the Sanhita.

What is section 172 of the BNSS?

A new provision binding all persons to conform to the lawful directions of a police officer given in fulfilment of any of his duties under Chapter XII, and permitting the officer to detain or remove a person who resists, refuses, ignores or disregards such a direction, and either to take him before a Magistrate or, in petty cases, to release him within twenty-four hours.

Must a person obey every direction of a police officer under section 172?

Only a lawful direction, and only one given in fulfilment of a duty under Chapter XII. A direction the officer had no authority to give, or given for a purpose outside that Chapter, does not bind, and the word “lawful” is the principal control on the section.

Related Topics

Section 163 BNSS and the Former Section 144 CrPC
FIR under the BNSS, 2023: Section 173, Zero FIR and e-FIR
Security for Keeping the Peace and Good Behaviour: Sections 125 to 143
Arrest of Persons under the BNSS, 2023: Sections 35 to 62
Police Powers and Public Assistance: Sections 30 to 34, BNSS
Maintenance of Public Order and Tranquillity: Sections 148 to 167