The Court held that the arbitrary use of preventive detention powers under Sections 107 and 151 CrPC by SEMs in Delhi violated the fundamental rights of individuals and could not be justified on the grounds of administrative convenience or efficiency.

S. Muralidhar, J.

1. The Petitioner, an Advocate, has filed this petition under Article 226 of the Constitution of India in public interest, highlighting a serious issue concerning the working of Sections 107 and 151 of the Code of Criminal Procedure, 1973 (‘CrPC’).

2. Although the prayers in the petition are in the context of a specific case, the petition itself raises larger issues. These have been encapsulated in an order dated 12th July, 2018 passed by this Court, which reads as under:

“1. Notice. Mr Rahul Mehra, learned Standing Counsel (Crl.) for the State accepts notice. Notice, without process fee, also be sent to the Secretary, Delhi State Legal Services Authority ('DSLSA') to assist the Court on the next date.

2. The Petitioner, who is a practising Advocate has filed this petition as writ of habeas corpus for directions to the Respondents to produce Narender, son of Ghananand confined in Central Jail No.8/9, Tihar Jail, New Delhi. It is averred in the petition that on 6th July, 2018 Narender was picked up from Swaroop Nagar, Delhi by one Rajiv Tyagi, an officer of Delhi Police attached to PS Swaroop Nagar and a DD No.23-A was recorded. It is further stated that he was booked under Sections 107 and 151 of the Code of Criminal Procedure (Cr PC) and thereafter produced before the Special Executive Magistrate ('SBM'), Jahangir Puri. On the same date, the SEM remanded Narender to judicial custody without supplying any documents or even any copy of the order. Even the relatives of Narender were not informed of his arrest.

3. It happened that the Petitioner, who is appointed as a Jail Visiting Advocate on the panel of the Delhi High Court Legal Services Committee ('DHCLSC') visited Jail No.8/9 as part of his duty assigned to him by DHCLSC. Narender approached the Petitioner and informed him that he has been languishing in jail for the past five days.

4. The Petitioner mentions how he has also filed a Public Interest Litigation ('PIL') being Writ Petition (Crl.) No.93/2016 before the Supreme Court of India which is pending. The Petitioner who appears in person explains that the scope of the PIL is regarding the misuse of powers by the SEMs with regard to preventive detention.

5. This petition was mentioned yesterday before us and we had directed the production of Narender before this Court today.

6. Mr Rahul Mehra, learned Standing Counsel for the Respondents has produced before the Court a communication dated 12th July, 2018 addressed to the Registrar General of this Court by the Deputy Superintendent, Central Jail No.8/9, Tihar, New Delhi informing that yesterday i.e. 11th July, 2018, Narender was released from jail in compliance with the release order dated 11th July, 2018 of the SEM/ West District, Delhi.

7. The Petitioner urges that this Court should not close this petition since there is another prayer made by Narender for grant of compensation on account of his illegal confinement.

8. Yesterday, while directing the production of Narender, this Court had also instructed the SHO of PS Swaroop Nagar to collect the relevant records from the office of the SEM, Jahangir Puri. That record has been today produced by Mr Rahul Mehra in the Court.

9. The Court proposes to examine the larger issues that arise because it appears that there are large number of similar cases where the powers under Section 107/151 Cr PC are being invoked to preventively detain/arrest persons with there being no guidelines as such as to the procedure that has to be followed and the period for which such persons are to be detained. Also, there appears to be no basis to determine the amount of surety that the detenu is asked to furnish. Considering that the liberty of such persons is being curtailed by use of statutory powers by SEMs, a further question that arises is about the provisions of legal aid to such persons to make them aware of their rights and whether in fact they are being served with notices, being heard and whether their near relatives/fri