Arrest Without Warrant under the Bihar Special Armed Police Act, 2021: Are the Provisions Unconstitutional?

The newly enacted Bihar Special Armed Police Act, 2021 [Bihar Act 03, 2021] has been in discussions in and out the political circles of the state. The bill which was passed amidst unprecedented ruckus in the Legislative Assembly of Bihar on March 23 received the assent of the Governor the following day. The members of opposition in the assembly sat in protest of the bill outside the speaker’s office claiming that the act would mean giving police undeterred powers to exploit the public. There are claims and counterclaims from all the sections and they were alleged to have been manhandled and beaten by the police when they refused to vacate the office.

The two major concerns of the opposition regarding the bill are; that it gives police special powers to arrest anyone without warrant merely on the basis of apprehension and the other relating to bar over courts from taking cognizance of any offence committed by police officers; as it reflected upon from the claims in the briefing by the leader of opposition.

The government, on the other side claimed that there was nothing new in the act and it was being enacted to repeal the previously existing The Bengal Military Police Act, 1892 (V of 1892). The rationale being that no special state police in the country now uses the term ‘military’ in its name and so it was aimed to make it at par with the standard practice and the new provisions were being added to modernize the already existing Bihar Military Police (BMP).

The government categorically emphasised that the new act doesn’t apply to the Bihar Police, which shall continue to be governed by the Bihar Police Act (Bihar Act 1 of 2007) and it doesn’t affect the day-to-day governance of the state.

The act is drawn in lines of The Bengal Military Police Act, 1892 and consists of 23 sections and 3 schedules. After the enactment of the act, the battalions of the Bihar Military Police shall be now known as the Battalions of the Bihar Special Armed Police as provided by the Schedule-I of the act. Twenty-two such battalions have been notified under the schedule. The Schedule-III provides for new ranks of the force and the old ranks of the BMP shall now cease to exist.

New Provisions relating to arrest and search:

Section 7 of the Act gives a Special Armed Police Officer entrusted with the security of specified establishment, power to arrest a person without any order from a Magistrate and without a warrant. Section 7 (1) (ii) provides that such power may be exercised against a person against whom a reasonable suspicion exists of his having been concerned in, or found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing, a cognizable offence which relates to property belonging to, or in the premises of, any such specified establishment.

Section 8 provides for the power of a special police officer, not below the notified rank, to search without warrant in case he has reasons to believe that an offence under Section 7 has been committed and a search warrant can’t be obtained without affording such person to escape or to conceal evidence. Subsection 2 further provides that provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches under that Code shall, so far as may be, apply to searches under this section.

The state government expressed its intention towards using the erstwhile Bihar Military Police as special force in security of commercial establishments, airports etc. This is also in lines to the efforts of the state to bring new industries and investments in the state and provide conducive environment to them along with law and order.

The reading of Section 7 makes it abundantly clear that arrest under the section without warrant is to be made only when such special police officer is ‘entrusted with the security of specified establishment’ and shall not apply to their duties otherwise. No such power has been provided to the officers even during ‘active service’ (Section 2(ii)), defined as service during emergency law and order situations like breach of peace etc.

Section 9 of the act further provides that after such arrest, the concerned special police officer, shall make over the arrested person to a police officer or to the nearest police station in absence of a police officer without unnecessary delay.

The act nowhere specifies that the provisions of the Code of Criminal procedure, 1973 would not apply to the arrests made under the act. The provisions of the code along with all the guidelines of the Supreme Court in D.K.Basu vs. State of West Bengal (AIR 1997 SC 610) and Arnesh Kumar v. State of Bihar ((2014) 8 SCC 273) relating to arrests shall hold good during such arrests.

Further, these provisions are similar to the provisions of the Central Industrial Security Force Act, 1968 (Act 50 Of 1968), which further supports the assertion of the state, as the functions during which such powers are to be exercised are similar to the functions of the CISF. Section 7 of the Bihar Special Police Act is in lines with Section 11 of the CISF Act. Section 8 relating to search without warrant in the former is similar to Section 12 in the latter. Section 13 of the CISF Act also lays down the same procedure to be followed after arrest as laid down in Section 9 of the Bihar Act. Otherwise too, the provisions are not first of their kinds, as claimed, and statutes like The Narcotic Drugs and Psychotropic Substances Act, 1985 also provide for search and arrest without warrant, where deemed necessary.

The objections to the clause ‘reasons to believe’ also doesn’t find any basis as its meaning has been borrowed from the Indian Penal Code, 1860 (XLV of 1860), as per the Section 2 (xiii) of the Bihar Act.

Restriction on the power of courts to take cognizance:

Section 15 of the act reads, ‘No court shall take cognizance of any offence under this Act when the accused person is a special armed police officer except on a report in writing of the facts constituting such offence and with the previous sanction of an officer authorised by the Government in this behalf.’

This section applies only to the offence committed by such special police officers under the provisions of the act (Sections 11-13) and doesn’t protect them from any other malice done otherwise including malicious arrest of a person. As the said offences under the act are largely disciplinary and relating to the duty of such officers, considering the nature of their duty, such prior sanction would have been made necessary. Section 197 of the CrPC is on similar lines. Section 19 of the Prevention of Corruption Act, 1988 also bars courts from taking cognizance against a public servant under certain offences of the act. Hence there is no illegality in this provision. Judicial scrutiny of such offences is also possible based on a written complaint and after obtaining prior sanction and the special police officers are not immune to it.

Conclusion:

The provisions of the act stand on the test of constitutionality. But there are wide powers provided to the government to make rules under Section 18 of the act which shall be exercised with due diligence. Section 19 puts a prospective bar on that power by providing that all such rules made shall be laid before both the houses of the state legislature and shall cease to exist if the legislature doesn’t pass it, or shall apply with limitations if the legislature modifies them.

The state shall ensure that the powers under the act are not abused by the officials, as the nature of the force (erstwhile BMP) would be undergoing a change and though in a limited extent, they shall be dealing with the public directly for the first time. There are certain ambiguities in the drafting of the act, but Section 22 provides for the provision to remove any such difficulty for upto 5 years after the commencement of the act.