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" A police officer knowing of a design of 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 can not be otherwise prevented".

The power given under this provision impinges on one of the important liberties of an individual. Hence it is necessary that exercise of that power, there should be strict compliance with the requirements, of the law. In these cases, as mentioned earlier, the arrests of the petitioners were said to have been made under section 107 of the code, S. 107 does not deal with any offence. That provides for taking preventive steps to restrain a person from committing breach of the peace or from disturbing the public tranquillity, or doing any wrongful act that may probably occasion a breach of the peace. Or disturb the public tranquillity. Proceedings under section 107 of the code cannot be considered as prosecutions for offence. The term 'offence' is defined in section 4 of the Code thus -

"offence means any act or omission made punishable by any law for the time being in force."

Section 107 does not provide for any punishment. A person proceeded against under that provision cannot be said to be prosecuted for an offence, nor any action taken under that provision can be considered as a punishment. What is required under section 151 of the code is that the officer concerned must know that the person to be arrested is designing to commit a cognizable offence. An "apprehension" that he may commit an offence is not sufficient under that provision, apprehension is not the same thing as knowledge. The former is a mere feeling. Latter is a definite conclusion. Further eve, mere knowledge that the person concerned would endanger peace or tranquillity need not result in a cognizable offence. Again, the possibility of the commission of a cognizable offence does not mean that he is designing to commit such an offence. Lastly, it is not said that it appeared to the officer concerned that the commission of the offence could be otherwise prevented. From the facts proved, it is clear, there was enough time to seek orders from Magistrate. From whichever angle we see, it is clear that the arrests of the petitioner were not in accordance with law.

After the Magistrate had taken all these steps, he could then direct detention of these persons in custody untill such bonds were executed or untill the conclusions of the enquiry in case no such bonds were executed."

(10) The learned Government counsel contended before me that it is likely that the police officers had arrested the petitioners as they knew that they had designed to commit some cognizable offence. The police officers do not say so. What they stated in their affidavits, runs counter to that contention. This is something totally new. I do not know how the government counsel is able to put forward that contention. Obviously he is somehow trying to justify the illegal detention of the petitioners.