Clear & Unequivocal “Charge” Rather Than Mere Allegations Essential For Sustaining Preventive Detention Orders: J&K High Court

A bench comprising Justices Atul Sreedharan and Puneet Gupta underlined that the grounds of detention must lay down the charge against the detinue that is precise, unequivocal and unambiguous.

“The detinue must be in a position for give a specific reply/rebuttal to the charge and that is only possible where charge is specific and precise. Else, the detinue is only able to give a bare denial by stating that the allegation is false”, the bench underscored.

It reasoned that once the charge is specific regarding the date, time and the specific act of the detinue which requires him to be taken into preventive detention then, the detinue is able to give a specific response of denial rather than a bare denial.

These observations came in an appeal challenging the decision of a Single Judge, who had upheld a detention order issued under the preventive detention laws.

Challenging the Single bench judgment, the detenu appellant had argued that the grounds of detention must be specific and supported by concrete evidence, not merely based on generalized or vague allegations. He further contended that the District Magistrate had failed to apply his mind independently and relied solely on the dossier provided by the police without verifying the authenticity or specificity of the charges.

On the other hand, the respondent, representing the State, maintained that the detention order was justified, arguing that preventive detention laws allow for detaining individuals based on reasonable suspicion of their involvement in activities prejudicial to public order. The State argued that the nature of such laws requires a degree of flexibility and that precise charges, akin to those in a criminal trial, are not necessary.

Court's Observations

The Division Bench, while deliberating on the case, posed three critical questions to itself:

In response to these questions, the Court made the following observations:

Difference between Allegation and Charge

 The Court observed that there is a fundamental difference between an allegation and a charge. An allegation is a claim or assertion that someone has done something wrong, whereas a charge is a formal accusation backed by evidence, necessary for legal proceedings. In the context of preventive detention, while allegations may form the basis for suspicion, they do not suffice for the issuance of a detention order, which requires a clear and unequivocal charge.

Application in Criminal Trials vs. Preventive Detention

The Court recognized that while preventive detention laws are distinct from criminal trials, requiring less stringent standards of proof, the difference does not eliminate the need for a charge. The Court emphasized that even under preventive detention laws, a charge though not as detailed as in a criminal trial must still be precise, specific, and backed by some material evidence.

“While, in proceedings under the preventive detention laws, the onus probandi of giving a convincing explanation to the imputations levelled by the detaining authority, is on the detinue and if the same satisfies the detaining authority or the advisory board, his detention may be revoked”, the bench remarked.

Requirements in Grounds of Detention

The Court concluded that the grounds of detention must contain a charge rather than just an allegation. A charge provides the necessary clarity and specificity, ensuring that the individual being detained understands the exact reasons for their detention, which is crucial for safeguarding their rights.

“The opportunity to represent to the abovementioned authorities is not a hollow formality. To detain a person only based on allegations without there being any material to substantiate those allegations would imperil the fundamental right of the individual enshrined in article 21 of the Constitution”, the court highlighted. Underscoring the pivotal role of the District Magistrate in the process of preventive detention, the court emphasized that upon receiving a request from the police, along with a dossier, the District Magistrate must independently evaluate the materials provided.

Terming the grounds of detention in the instant case as vague without any specific reference to date, time and place the court stated that the imputation that the appellant was in contact with secessionists is a bald allegation and not a charge.

Acknowledging that intelligence sources may be protected keeping in view their vulnerability the court emphasised that specific charges must still be communicated to the detainee with necessary redactions.

“.. To take a stand that no details of the allegations shall be given, and if the same is upheld by this Court, the environment created would be such that anyone and everyone with whom the establishment of the day has an issue, which is not related to public safety/order or security of the state, can still be taken onto preventive detention raising the bogey of either public order or security of the state without giving any specific material in the grounds of detention to the detinue to rebut”, the bench opined.

In light of these considerations, the court allowed the appeal and ordered the appellant to be set at liberty.

Case Title: Showkat Ali Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 230

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