[National Security Act] Different Nature Of Cases Can't Be Taken Lightly Even If Detenu Was Acquitted, Detention Is Retributive & Utilitarian: MP High Court

In a plea filed against the detention of an alleged 'habitual offender', the Madhya Pradesh High Court has held that the different nature of cases registered and tried against the detenu can't be taken lightly even if the trial resulted in acquittal.

The Division Bench of Justice Sushrut Arvind Dharmadhikari and Justice Gajendra Singh pointed out that the detenu is an offender arraigned in 16 criminal cases. Those were not merely minor offences. They included one under Section 13 of the Gambling Act and another under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, the court highlighted.

“…Long trail of criminal cases of different nature certainly suggest that they cannot be motivated at the instance of police authorities or at the instance of some vested interest. These are the instances/discredit points which are being acquired by the detenu because of his misdeeds, misdemeanors and criminal bent of mind…”, the court observed.

Since no grounds of procedural lapse or violation of due process were alleged by the detenu's brother, the court upheld the order of detention, citing the subjective satisfaction of the concerned authority.

“In India where we witness high rate of crime against victims, especially against weaker sections and females, originates from the confidence of perpetrators that they would go unpunished because of lacuna in Investigation, Prosecution and Adjudication…” the bench sitting at Indore emphasised that this would encourage them to commit more serious offences as reflected from the conduct of detenu in this case.

Placing reliance on the 'Broken Windows' Criminological Theory, the court explained that preventive measures against the miscreant, who has a 'chequered history of all types of crimes', is warranted to send a deterring message to probable perpetrators.

The court also noted that preventive measures like detention under the NSA serve both retributive and utilitarian functions. Preventive detention has the power to make the detenu 'purge his misdeeds' and, in turn, change the social norms that could help in the reduction of crime rates.

“..When a criminal mind while committing crime or expresses his intention to commit crime, sends a message to the world about the value of victim, then conversely punishment or preventive measure (like the present one) sends a reciprocal message to the accused in a kind of dialogue with the crime…”, the court noted in the order.

Background

The writ against detention was filed by the brother of detenu against Khargone District Magistrate's order in November 2023. The Magistrate had invoked Section 3(2) of the National Security Act, 1980, upon the recommendation of the Superintendent of Police against the detenu who has been charge-sheeted for several offences since 2012. The court sent the detenu to Central Jail, Ujjain, for a period of three months as a preventive measure. The duration of detention was then extended periodically.

The state characterised the detenu as a 'history sheeter' involved in several heinous crimes. He has damaged public property, threatened citizens with deadly weapons and attempted murders, the government advocate submitted.

Though the counsel for the petitioner-brother vehemently argued that the issuance of the order was mechanical and infringed the detenu's rights under Articles 14 and 21, the division bench felt that the detenu was a threat to 'public peace' and 'law & order'.

Further Observations

In the order, the court tried to strike a balance between the tenets of 'Public Order'/'Public Peace' and 'Personal Liberty'.

“…Said reconciliation is need of the hour; otherwise, Public Order, Social Peace and Development of the area would be sacrificed at the altar of Lawlessness, Misgovernance and Private Retribution”, the court opined.

The scope of High Courts' jurisdiction in national security matters is limited and depends on the subjective satisfaction of the detaining authority, the division bench inferred from the apex court decision in Ram Das v. State of West Bengal, (1975) 2 SCC 81.

The question of breach of public order and threat to peace could also be subjective, the court added. By relying on Ashok Kumar v. Delhi Administration & Ors (1982) 2 SCC 403, the court iterated that preventive measures are not in the nature of punishment but a precaution to prevent mischief to the state. Preventive detention could be allowed in instances where the detenu is a dangerous person against whom the prosecution can possibly never succeed, owing to his hold over the witnesses and other matters.

The court has also relied on a few apex court judgements to distinguish between 'law and order', 'public order' and 'security of state'.

“…An act, affecting public order, may have ramifications over law and order and security of the State at the same time”, the court added.

Counsel for Petitioner: Adv. Abhinav Dhanodkar

Counsel for Respondents: Govt. Adv. Bhuwan Gautam

Case Title: Mohammad Huzefa Pathan v. State of Madhya Pradesh & Ors.

Case No: Writ Petition No. 26575 of 2023

Citation: 2024 LiveLaw (MP) 90

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