The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) represents a watershed reform in India’s criminal procedural law, replacing the 1973 Code of Criminal Procedure (CrPC). Among the numerous structural, technological, and procedural innovations introduced, one of the most important is the rationalisation of preventive powers of the police under Chapter XII (Sections 168 to 172).

This chapter, titled Preventive Action of the Police, codifies the duties and powers of law enforcement to act before the commission of offences, reflecting a policy shift toward proactive policing aligned with modern governance standards.

Preventive policing, conceptually, stands at the intersection of public safety, civil liberty, and state accountability. It allows the police to act not merely reactively after a crime but preemptively to avert harm. However, such authority is also fraught with the risk of misuse, arbitrariness, and encroachment upon fundamental rights.

Therefore, the new legislative framework seeks to preserve the delicate balance between social order and individual freedom. The provisions under BNSS 2023 revisit this balance by refining the language of the corresponding provisions in the CrPC (Sections 149–153) and modernising their application.

In this article, we will examine the legal philosophy, scope, and implications of preventive action by the police under BNSS 2023, exploring how the statutory evolution aligns with constitutional mandates and contemporary policing challenges.

Chapter XII of BNSS 2023

Chapter XII of the BNSS encompasses five sections (Sections 168–172). Each provision delineates a specific aspect of preventive authority vested in the police:

1. Section 168 – Police to prevent cognizable offences.
2. Section 169 – Information of design to commit cognizable offences.
3. Section 170 – Arrest to prevent commission of cognizable offences.
4. Section 171 – Prevention of injury to public property.
5. Section 172 – Persons bound to conform to lawful directions of police.

Together, these sections encapsulate the preventive mandate of the police, ranging from intelligence-based intervention to lawful use of arrest powers to deter offences and protect public property.

While these provisions are largely drawn from their CrPC counterparts, they have been linguistically streamlined and contextually updated to reflect modern administrative realities, particularly the integration of technology and accountability mechanisms.

Section 168: Police to Prevent Cognizable Offences

This section imposes a duty, not merely a power, upon every police officer to prevent the commission of any cognizable offence. The language of duty underscores the constitutional and statutory responsibility of the State to safeguard citizens’ life, liberty, and property under Article 21 of the Constitution.

Scope and Nature

The section echoes the principle that prevention is superior to prosecution. It requires police officers to employ all lawful means to thwart imminent offences that fall within the cognizable category, those in which police may arrest without a warrant. This encompasses offences involving violence, property crimes, organized criminal acts, and others specified under the Bharatiya Nyaya Sanhita (BNS), 2023.

In practice, the duty manifests through:

• Surveillance and patrolling in vulnerable areas.
• Gathering intelligence from local sources and informants.
• Intervening in ongoing unlawful assemblies or potential riots.
• Issuing warnings or directions to individuals whose conduct indicates preparation for a crime.

The emphasis on lawful means curtails arbitrary intrusion. Police actions must be reasonable, proportionate, and guided by necessity.

The preventive framework under Section 168 thus extends beyond physical intervention; it calls for strategic anticipation rooted in community intelligence and risk assessment.

Judicial Interpretation (Parallel with CrPC Section 149)

In the context of CrPC 1973, Indian courts have consistently upheld that the preventive powers of the police are mandatory in character but must be exercised judiciously. In State of Gujarat v. Memon Mahomed Haji Hasan (1967 AIR SC 1885), the Supreme Court emphasised that preventive measures cannot be a cloak for harassment but must be based on credible information of potential criminality.

The same rationale applies under the BNSS regime, where technological tools such as surveillance footage, digital records, and real-time communication data enhance evidence-based policing.

Comparative Reflection

Globally, preventive policing parallels the concept of “community policing” and “early intervention models” seen in jurisdictions like the United Kingdom and Singapore.

However, BNSS 2023 distinguishes itself by codifying this duty within a statutory framework, thereby binding the police institutionally to preventive vigilance while still subjecting officers to accountability under departmental and judicial review.

Section 169: Information of Design to Commit Cognizable Offences

Section 169 complements the preventive duty by mandating that police officers receive, assess, and act upon information of an intended offence. It requires officers to communicate such information to their superiors and take necessary steps to forestall the act.

Legal Obligation and Procedural Flow

The section obliges any police officer who becomes aware, through credible intelligence, reports, or personal observation, of a design to commit a cognizable offence, to inform his superior authority and to adopt immediate lawful measures to prevent its occurrence.

This provision institutionalises the principle of information responsibility within the police hierarchy, ensuring that preventive measures are not isolated acts of individual discretion but coordinated efforts rooted in procedural oversight.

The Intelligence Dimension

Under the BNSS framework, Section 169 implicitly integrates with the digital communication and data-sharing infrastructure envisaged across the Sanhita. The police are expected to utilise audio-visual electronic means, as defined in Section 2(a), for transmitting preventive intelligence.

This reflects a move toward a digitised crime prevention ecosystem in which data analytics, predictive policing algorithms, and centralised crime databases form the backbone of preventive operations.

Ethical and Legal Cautions

The receipt of “information” under this provision must be distinguished from suspicion without basis. The Supreme Court, in Joginder Kumar v. State of Uttar Pradesh (1994 4 SCC 260), held that police action on mere suspicion violates the liberty of the citizen unless founded upon reasonable justification. BNSS 2023 preserves this equilibrium by requiring that every preventive act be lawful and reasoned.

Section 170: Arrest to Prevent Commission of Cognizable Offences

This provision grants the police limited preventive power of arrest, enabling them to detain individuals to prevent the commission of an imminent cognizable offence. It represents one of the most sensitive intersections between state power and personal liberty.

Substantive Content

Where a police officer receives credible information that a person is planning or attempting to commit a cognizable offence, and no other means exist to prevent it, he may arrest the person without a warrant.

However, such arrest must strictly conform to the safeguards outlined under Section 62 (arrest to be made strictly according to Sanhita) and Sections 47–48 (rights of the arrested person).

Checks and Balances

The authority conferred under Section 170 cannot be viewed in isolation; it coexists with constitutional jurisprudence governing preventive detention and arbitrary arrest. The officer must establish:

• The imminence of the offence (not remote or speculative).
• The necessity of arrest as the only viable preventive measure.
• The proportionality of restraint vis-à-vis the anticipated harm.

In D.K. Basu v. State of West Bengal (1997 1 SCC 416), the Court laid down exhaustive guidelines against custodial abuse, which continue to inform the application of preventive arrest powers. BNSS 2023, by codifying the procedural safeguards and mandating communication of arrest details to relatives or friends (Section 48), upholds these protections even within the preventive domain.

Practical Implementation

The provision enables police officers to neutralise imminent threats, such as gang mobilisations, planned communal violence, or organized cyberattacks, without waiting for the offence to crystallise.

Yet, every preventive arrest invites scrutiny under judicial review, as the detained person must be produced before a magistrate within twenty-four hours (Section 58). This ensures transparency and judicial oversight over preemptive deprivations of liberty.

Section 171: Prevention of Injury to Public Property

This section reiterates the duty of the police to protect public property from injury or destruction. The concept of public property extends to government buildings, infrastructure, transport systems, monuments, and any asset vested in the public domain.

Philosophical Context

The provision’s inclusion as a separate section underscores a recognition of contemporary threats, vandalism, mob violence, arson during protests, and damage to public infrastructure, that have recurrently strained law enforcement capacities.

The State’s obligation to safeguard communal assets is an extension of the doctrine of public trust, which holds the government accountable as a trustee of public resources.

Operational Duties

Police officers are mandated to:

• Prevent attempts to destroy or damage public property.
• Disperse gatherings aimed at vandalism.
• Seize tools or materials used in the act of destruction.
• Coordinate with civil administration to secure vulnerable sites during unrest.

The preventive thrust here complements the Prevention of Damage to Public Property Act, 1984, yet under BNSS 2023, it carries procedural force as part of the police’s statutory duties, not merely as an ancillary obligation.

Accountability Mechanism

Any omission by a police officer to act under this section may constitute dereliction of duty, inviting disciplinary and criminal consequences.

At the same time, excessive use of force in the name of protecting property remains subject to judicial scrutiny under Articles 14 and 21 of the Constitution.

Section 172: Persons Bound to Conform to Lawful Directions of Police

Section 172 provides the procedural underpinning for effective preventive action. It mandates that every person must comply with lawful directions issued by a police officer in the discharge of his preventive duties under Sections 168–171.

Nature of Obedience

The obedience envisaged is not blind submission but lawful compliance. Directions must be within the bounds of the officer’s authority and intended to prevent cognizable offences, injury to public property, or disturbance of public peace.

Disobedience, when willful, may attract penal consequences under the BNS provisions dealing with obstruction of public servants.

Rule of Law Perspective

This provision reinforces the legitimacy of preventive policing by ensuring cooperation from the citizenry. It also clarifies that the police cannot issue arbitrary or extraneous orders—only those grounded in law.

The interpretative threshold of “lawful direction” remains judicially reviewable, ensuring constitutional conformity.

Preventive Action and the Constitutional Framework

The preventive powers under BNSS 2023 must be harmonised with the fundamental rights framework. Article 19(1)(d) (freedom of movement) and Article 21 (right to life and personal liberty) serve as bulwarks against overreach.

However, these rights are subject to reasonable restrictions in the interest of public order.

Doctrine of Reasonableness and Proportionality

The doctrine, articulated in Modern Dental College v. State of Madhya Pradesh (2016 7 SCC 353), requires that any preventive measure infringing liberty must:

1. Serve a legitimate state objective (prevention of crime).
2. Be rationally connected to that objective.
3. Be least restrictive among available options.
4. Maintain a balance between social benefit and individual cost.

The BNSS implicitly embeds this doctrine by coupling preventive powers with procedural safeguards, reporting obligations, judicial supervision, and explicit duties rather than unbounded discretion.

Policy Rationale and Modern Implications

1. Shift from Reactive to Proactive Policing: Traditional policing in India has often been reactive, engaging the criminal justice system only after harm occurs. BNSS 2023 pivots the paradigm toward anticipatory governance, emphasising preemptive protection through information-led interventions.
2. Integration of Technology: By defining “audio-video electronic” communication (Section 2(a)), the Sanhita mandates electronic recording and transmission in preventive processes. This digitalisation minimises human error, increases transparency, and creates a verifiable audit trail of police action.
3. Strengthened Accountability: The codification of preventive duties as statutory obligations introduces administrative accountability. Non-performance may invite departmental inquiry, while abuse of authority may attract judicial censure. This dual pressure enhances responsible exercise of discretion.
4. Coordination with Executive Magistracy: Preventive policing under BNSS intersects with Chapter IX (Security for Keeping the Peace and Good Behaviour), empowering Executive Magistrates to require bonds from individuals likely to disturb public tranquility. The synergy between preventive policing and magisterial oversight creates a layered mechanism for preemptive order maintenance.

Critical Evaluation

While the preventive architecture is commendable, it raises perennial concerns regarding overreach. The power to arrest to prevent an offence or to issue directions curbing movement and assembly can easily slide into authoritarian misuse. Therefore, implementation must rest on transparency, documentation, and training.

The magistrate’s role remains central. Every preventive arrest or major intervention must be reported and reviewed. Courts retain the power to scrutinise the legality of such actions under Articles 226 and 32, ensuring that preventive powers do not metamorphose into instruments of repression.

Preventive policing achieves legitimacy when embedded within community partnership models, neighbourhood watch systems, local crime prevention committees, and participatory vigilance networks. BNSS 2023’s architecture encourages such collaborative engagement through lawful information sharing under Section 169.

Verdict

The preventive action of police under the BNSS 2023 is a conscious legislative re-engineering of India’s criminal procedural framework. It retains the essence of the CrPC’s preventive philosophy but refines it to suit the demands of a technologically sophisticated and rights-sensitive democracy. By delineating clear duties, lawful methods, and accountability standards, the Sanhita aspires to professionalise preventive policing.

Yet, the ultimate success of these provisions lies not in the statute but in their application. Preventive policing must not degenerate into pretextual control or political surveillance. Instead, it must embody the constitutional ideal of ordered liberty—where security and freedom coexist in measured harmony.

The BNSS, in this respect, reaffirms that the first duty of the police is not merely to detect crime but to prevent it. However, the power to prevent must always remain a servant of justice, never its master.

Follow The Legal QnA For More Updates…