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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
VINOD CHATTERJI KOUL, J.
Mohd. Shafi Bhat – Petitioner
Versus
UT of J&K & Anr. – Respondents
WP (Crl) No. 395 Of 2022
Decided On : 29-05-2023
PREVENTIVE DETENTION - PUBLIC ORDER - Article 21, Article 22, Indian Penal Code Sections 420, 406, 506 - The court discussed the distinction between 'law and order' and 'public order', emphasizing that preventive detention requires a clear demonstration of a threat to public order, which was not established in this case. The court highlighted that the allegations against the detenu pertained to individual acts that did not affect the community at large, thus failing to justify preventive detention under the relevant legal framework.
Fact of the Case:
The writ petition challenges the preventive detention order against Mohammad Shafi Bhat, issued by the District Magistrate, Budgam, citing his activities as prejudicial to public order. The detenu contended that the grounds for detention were vague and lacked a reasonable nexus to his actions, especially since he was already in custody for related FIRs.
Finding of the Court:
The court found that the allegations against the detenu, even if true, did not constitute a threat to public order but rather fell within the realm of law and order. The court emphasized that preventive detention is a serious measure that must be justified by clear evidence of a threat to the community, which was not present in this case.
Issues: Whether the grounds for preventive detention were sufficient to justify the detenu's detention under the law, particularly in light of the distinction between public order and law and order.
Ratio Decidendi: The court reiterated that preventive detention must be based on a clear and present danger to public order, not merely on allegations that affect individual rights. The distinction between law and order and public order is crucial, and the mere existence of FIRs does not automatically warrant preventive detention.
Final Decision: The court quashed the detention order and directed the immediate release of the detenu, concluding that the ordinary law was sufficient to address the allegations against him.
JUDGMENT :
(Vinod Chatterji Koul, J.) :
1. Through the medium of this writ petition, Order No. DMB/PSA/18 of 2022, dated 02.06.2022, passed by District Magistrate, Budgam (for short "detaining authority") whereby detenu, namely, Mohammad Shafi Bhat S/o Abdul Rahim Bhat R/o Nadirgund Peerbagh, Budgam, (for short "detenu") has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, is sought to be quashed and the detenu set at liberty on the grounds made mention of therein.
2. Respondents have filed the reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial and detrimental to the maintenance of public order and, therefore, his remaining at large is a threat to the maintenance of public order. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by the respondents.
3. I have heard learned counsel for parties. I have gone through the detention record attached with the file and considered the matter.
4. The main grounds on which the detention is sought to be quashed are that the grounds of detention are vague, indefinite and no prudent man can make an effective representation against these allegations inasmuch as case mentioned in grounds of detention has no nexus with detenu and detaining authority has not given any reasonable justification to pass impugned order of detention; that detenu was already in custody in connection with FIR Nos. 176/2022 and 177/2022 and detaining authority despite having knowledge about custody of detenu, has not spelled out the compelling reasons to pass detention order; that detenu was already admitted to bail in FIR Nos. 39/2021 and 330/2021, but this important fact has not been reflected in grounds of detention; that detenu has not been furnished the material on the basis whereof subjective satisfaction has been arrived at while passing order of detention; that whatever material furnished to detenu is not legible and does not connect detenu in any way with allegations levelled against him; that detenu is not an English literate person to go through the grounds of detention and make an effective representation against his detention; that post execution, detenu was not given an opportunity to make representation; that post execution detention, a representation was made by wife of detenu, which has not been considered by respondents.
5. From perusal of grounds of detention, it clearly transpires that detenu has been placed under preventive detention mainly for his involvement in a number of FIRs. The allegations contained in those FIRs which have been made basis for passing the detention order, even if taken to be true on their face value, do not constitute an act which has the probability of disturbing the public order. The term "law and order" and "Public order" look similar but both have different implications. While "law and order" is a continual ongoing term, the "public order" is more temporal in nature. In the case of public order, the community or the public at large is affected by a particular action whereas the act or acts that affect only few individuals may be a case of law and order. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects "law and order", but before it can be said to affect public order, it must affect the community or public at large. The nature of criminal act, the manner in which it is committed and its impact are some of the factors that determine whether particular act would all within the realm of "public order" or "law and order". What is alleged in the FIR, which is sole basis of putting the detenu under preventive detention, clearly falls within the ambit of term "Law and Order". Unless the criminal act attributed to the detenu has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "L
Preventive detention requires a clear demonstration of a threat to public order, and allegations that do not affect the community at large do not justify such detention.
The main legal point established in the judgment is the distinction between law and order and public order, and the requirement for activities to have the potential to disturb public order in order t....
The central legal point established in the judgment is the need for a direct and inevitable link between preventive detention and harm, danger, or alarm to the general public in the context of 'publi....
The court emphasized the narrow limits of preventive detention and the necessity to ensure that the facts directly and inevitably lead to harm, danger, or alarm to the public or any section thereof a....
The main legal point established in the judgment is that for an act to warrant preventive detention on the grounds of public order, it must directly and inevitably lead to a harm, danger, or alarm am....
The main legal point established is the distinction between law and order and public order, emphasizing that preventive detention should be reserved for emergent situations affecting public order.
The main legal point established in the judgment is that activities must have the potential to disturb public order by affecting the community or public at large to be considered prejudicial to publi....
: Preventive detention – Mere disturbance of law and order leading to disorder is not necessarily sufficient for action under Preventive Detention Laws.
Preventive detention requires evidence of a threat to public order, not merely past criminal activity.
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