Preventive Detention Can Be Ordered Irrespective Of Ongoing Or Concluded Criminal Proceedings: J&K High Court
Upholding the validity of a preventive detention order the Jammu and Kashmir and Ladakh High Court has reaffirmed that preventive detention can be ordered irrespective of ongoing or concluded criminal proceedings.
The court emphasized that such detention may occur “before, during, or after prosecution, with or without prosecution, and even after discharge or acquittal,” making it clear that preventive detention serves a distinct purpose from punitive measures in criminal law.
Clarifying the mandate of preventive detention and its independence from criminal prosecution a bench of Justice Javed Iqbal Wani observed,
“… Preventive detention may be made before, during or after the criminal prosecution, inasmuch as it can be made with or without prosecution and in anticipation or after discharge or even acquittal of a person. Thus, pendency of prosecution is no bar to the passing of order of detention. So is also not an order of preventive detention has a bar to any prosecution”.
The case stemmed from the preventive detention of an individual under the J&K Public Safety Act, 1978, which was challenged through a petition filed by his mother. The petitioner contended that her son had been wrongfully detained based on his involvement in a criminal case concerning the possession of an unlicensed revolver, which, she argued, should not have led to preventive detention.
She further asserted that the authorities had failed to inform the detenu of his right to make a representation to the detaining authority and the government, as mandated by law.
The petitioner also raised procedural issues, alleging that a representation filed by her on her son's behalf was never considered and that the detention was based on a non-existent Istghasa (complaint) filed before the Executive Magistrate.
In opposition, the government counsel argued that the detention was valid and had been executed in compliance with the provisions of the Public Safety Act. They maintained that the detenu's actions were prejudicial to public order, justifying the preventive detention order issued against him.
Addressing the core argument regarding the detenu's involvement in a criminal case, the Court observed that “preventive detention is anticipatory and not punitive in nature,” and that it is not necessary for a criminal prosecution to be in place before such detention is ordered. Justice Wani further clarified that criminal prosecution and preventive detention operate independently, stating that “pendency of prosecution is no bar to the passing of an order of detention.”
On the contention that the detenu had not been informed of his right to make a representation to the detaining authority, the Court examined the record and found that the detenu had been duly informed of this right through a communication dated 02.05.2024.
Justice Wani remarked, “Informing the detenu about his right to make a representation, be it before the Government or the Detaining Authority, is sufficient compliance with the statutory requirement provided under the Act of 1978. Thus, the aforesaid ground urged by the counsel for the petitioner pales into insignificance”.
Regarding the claim that the representation filed by the petitioner's mother was not considered, the Court found this to be factually incorrect, noting that the representation had been received and duly considered within the prescribed timeframe.
“.. perusal of the detention record produced by the counsel for the respondents tends to show that the said representation stands received by the respondents on 22.05.2024 and considered on 29.05.2024, thus, manifestly suggesting that the mandate law in this regard stands adhered to by the respondents”.
The petitioner's argument that the detention was based solely on the alleged involvement in an FIR was also rejected by the Court. Justice Wani emphasized that preventive detention is not contingent on criminal cases alone and can be imposed if a person's activities are found to be prejudicial to public order. He further clarified that “involvement in a criminal case or registration of an FIR is not imperative for detaining a person under preventive detention.”
The Court also addressed the issue of the allegedly non-existent Istghasa referred to in the detention order. Justice Wani noted that the Istghasa had not been relied upon for the detention order but was mentioned only to demonstrate the detaining authority's awareness of the facts surrounding the case. As such, this argument was also dismissed.
Another point raised by the petitioner was that the detaining authority had referred to the detenu's actions as affecting “law and order” rather than “public order.” The Court held that this argument was legally untenable, as the detention record clearly indicated that the detenu's activities were deemed prejudicial to public order under Section 8 of the Public Safety Act.
“.. notwithstanding the use of expression “law and order‟ at one or two places in the grounds of detention, as the Detaining Authority while summing up the grounds of detention as well as in the order of detention has specifically and without any ambiguity provided that the detenue is detained on account of his activities being prejudicial to public order clearly referring to Section 8 of the Act of 1978”, the bench remarked.
In conclusion, the High Court dismissed the petition, maintaining that the preventive detention order had been passed validly and in accordance with the law.
Case Title: Narayan Sharma @ Shuna through Mrs. Lata Sharma (Mother) Vs UT of J&K
Citation : 2024 LiveLaw (JKL) 251