Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J. heard the instant petition against the impugned order passed by District Magistrate (the detaining authority), by which the petitioner had been detained in preventive detention to preventing him from indulging in the activities which were prejudicial to the security of Union Territory. The Bench expressed,

“Either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority.”

The impugned order had been passed by the detaining authority on the basis of material supplied by the SSP. As per the dossier supplied by the police, the petitioner had connections with one foreign militant namely Maz Bahi and was providing assistance to the militants of banned outfit Hizbul Mujahideen. It had been alleged that the petitioner was instrumental in strengthening militancy network in the area of Rafiabad. For which he had been apprehended in connection with case FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act which is still under investigation.

The detaining authority, on the basis of dossier of activities arrived at satisfaction that the petitioner though under judicial remand, was every likely to indulge in subversive activities if he is admitted to bail, therefore, it was imperative to put him under preventive detention.

The petitioner has assailed the impugned order of detention, inter alia, on the following grounds:

  1. The grounds of detention were vague and indefinite and no prudent man can make an effective representation against these allegations;
  2. At the time of passing of the detention order, the detenue was already in custody in and he had neither applied for bail nor was bail otherwise due to him. The detaining authority despite having knowledge of the custody of the detenue has not spelled out any justified and compelling reasons to detain the petitioner under preventive detention;
  3. That the relevant material, like copy of dossier, FIR, statements under Section 161 and 164-A Cr. P. C, seizure memos etc. which had been relied upon in the grounds of detention, were never supplied to him to enable him to make an effective representation nor he was made aware of his right to make representation against his detention to the detaining authority or the government.

The Bench observed that the petitioner had been detained under preventive detention for his alleged involvement in subversive activities which led to the registration of FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act. In the aforesaid FIR, the petitioner was released on bail by on 06-02-2020, whereas Superintendent of Police, who forwarded the relevant record including dossier and other connected documents to the detaining authority, did not bring the factum of petitioner having been released on bail to the notice of detaining authority. It was because of this omission on the part of Senior Superintendent of Police, the detaining authority had categorically stated in the grounds of the detention that the detenue was under judicial remand and that there was every likelihood of his being admitted to bail. The detaining authority had also noted that there was well-founded apprehension based on report received from field information that the petitioner, if released on bail, would again indulge in subversive activities.

The Bench opined that either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority. The Bench expressed,

“At the time of passing of the detention order, the detaining authority was not aware whether the detenue was in police/judicial custody or he stood released on bail. It cannot be denied that it was a relevant information that was required to be produced before the detaining authority to enable it to derive subjective satisfaction with regard to necessity of placing the petitioner under preventive detention.”

Hence, the non-application of mind by the detaining authority was fatal and affected the root of the detention and, therefore, the Bench held that the impugned order of detention was worthy of being quashed. Accordingly, direction were issued to the respondents to release the detenue from the preventive custody.

[Riyaz Khaliq Parray v. UT of J&K, 2021 SCC OnLine J&K 311, decided on 27-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Adv. Wajid Haseeb

For UT of J&K: AAG Asifa Padroo

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., heard the instant petition presented by the wife of the Petitioner to assail his detention ordered by District Magistrate, Pulwama under Preventive Detention law. The Bench opined,

“Two FIRs, pertain to the offences under NDPS Act and, therefore, if the petitioner was to be detained with a view to preventing him from indulging in illicit trafficking of drugs, there is a separate legislation in place i.e. the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which provides for preventive detention in such matters.”

On the basis of communication of SSP, the detaining authority arrived at satisfaction that to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under Section 8 of the J&K Public Safety Act. As per the grounds of detention, it was alleged that the petitioner was affiliated with Jamat-i-Islami, an organization declared unlawful by Government of India, under sub-section (1) and (3) of Section 3 of the Unlawful Activities (Prevention) Act.

It is also claimed that the petitioner was involved in illicit trafficking of drugs and psychotropic substances and, in this regard, two FIRs stand registered against him NDPS Act. It is on the basis of aforesaid activities, the detaining authority had arrived at subjective satisfaction that keeping at large of the petitioner was detrimental to the maintenance of public order and, therefore, his detention under the Act necessitated.

Grounds of Challenge

The grounds of challenge which were pressed during the course of arguments by the petitioner were as under:

1) The subjective satisfaction derived by the detaining authority was vitiated for the reason that the detaining authority had clubbed two different types of activities;
2) The requisite material relied upon by the detaining authority to derive his satisfaction had not been served upon the petitioner. Even the copies of FIRs relied, referred to in the grounds of detention, had not been supplied to the petitioner;
3) The grounds of detention are totally vague, indefinite, uncertain and ambiguous and, therefore, vitiate the impugned order of detention.

Further, the petitioner argued that there was no reference to any of the activities of the petitioner which could demonstrate that even after 28-02-2019, when Jamat-i-Islami was declared as unlawful organization the petitioner had continued with his affiliation with the aforesaid organization nor the petitioner had been provided with any material which would indicate that the petitioner was ever associated with the aforesaid organization or was its member at any point of time.
Stand Taken by the Detaining Authority

The detaining authority submitted that the order of detention was based upon subjective satisfaction and the reasons that prevailed with it could not be gone into by the Court. Placing strong reliance on the judgment of the Supreme Court in Haradhan Saha v. State of W.B., (1975) 3 SCC 198, it was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal and that the pendency of the prosecution is no bar to pass an order of preventive detention. It was also contended that where individual liberty comes into conflict with an interest of security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

Verdict of the Court

The Bench observed that, from the grounds of detention it transpired that the opinion of the detaining authority clearly oscillates between the activities of the detenue relating to illicit trafficking of drugs and those having potential of disturbing public order. Admittedly, instead of proceeding under Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the detaining authority had placed the petitioner in preventive detention. The Bench opined,

“The incident for which FIR had been registered pertains to the year 2016 whereas the impugned order of detention had been passed on 30-09-2020. There was, thus, no proximate link between both prejudicial activities of the petitioner and the object of detention.”

Hence, it could not be said that the detaining authority had derived its subjective satisfaction on the basis of any relevant material placed before it. Though, the detaining authority had contended that preventive measures taken against the petitioner in terms of Section 107 read with Section 151 of CrPC could not succeed to deter the petitioner from acting in any manner prejudicial to the maintenance of public order, no details of any proceedings under Section 107 had been given in the grounds of detention nor copy thereof had been provided to the petitioner. As a matter of fact, no date of occurrence for which proceedings under Section 107 read with Section 151 of CrPC were initiated, had been indicated which had made the grounds of detention vague, uncertain and indefinite. The Court expressed,

“In the absence of requisite and definite material having been supplied to the petitioner, it cannot be said that the petitioner has been given an opportunity to make an effective representation against his detention, which is a constitutional right of the person detained under preventive detention.”

The Bench held that the detention order is vitiated if the requisite material relied upon was not supplied to the detenue, in that, it affects the vital constitutional right of the detenue to make an effective representation. Simply because a communicated had been issued to the detenue informing him about his right to make a representation was not sufficient.

Lastly, opining that the detention was based on stale incidents which had no proximate and live link with the activities of the detenue, the Bench quashed the impugned order and directed the respondents to release the detenue from the preventive custody forthwith.[Ishfaq Amin Bhat v. UT of J&K, WP(Crl) No.161 of 2020, decided on 27-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Mohammad Ayoub Bhat

For the UT: AAG Mir Suhail

Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J., while setting aside the detention order, reiterated that subjective satisfaction of the detaining authority is not immune from judicial reviewability.

 Background

The petitioner has challenged detention order dated 10-03-2020, passed by respondent 2, whereby the petitioner Mohd. Amin Dar has been detained in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 The detention order has been challenged on the ground that

  1. The grounds of detention are vague and non-existent.
  2. That the order has been passed on an alleged single activity of the petitioner.
  3. That the petitioner was already in custody in FIR No. 27 of 2020 registered with Police Station, Magam and had neither applied for bail nor was bail due to him in view of the provisions of NDPS Act.
  4. That no reason has been given which compelled the respondents to issue the order of detention.
  5. That the respondent only relied upon police dossier and the copy of dossier and the material have not been provided to the petitioner while detaining the petitioner.
  6. That the petitioner only understands Urdu and Kashmiri language whereas the detention order was in English and the translated version of the detention order has not been provided to the petitioner thereby depriving him of making effective representation in the matter.

 Issue

Whether detention order made stands in compliance with the statutory provisions restricting personal liberty?

 Observations

In pursuance of its decision, Court observed,

“Merely informing the petitioner that the petitioner has right to be heard in person by the competent authority does not fulfill the responsibility of the respondents unless the petitioner has been provided with the relevant material as stated above. The providing of material by the detaining authority is not mere formality and if the same is not done by the detaining authority the detention order cannot be upheld in law.” With respect to the alleged grounds of detention being bad in law, the Court noted, “The order of detention cannot be passed on mere assumptions and the detaining authority has to address itself to the question if the ordinary law to which the petitioner is subjected to, is sufficient to deal with the situation.” Reliance was further placed on, Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, wherein the Supreme Court held, “whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenue was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.”

 Decision

Quashing the said detention order, the Court held, “…the detention order is bad for the reason that the necessary material was not provided to the petitioner, the single alleged act of the petitioner was not sufficient to invoke the detention order and that the petitioner has been deprived of his right to representation before the competent authority in an effective manner as he was deprived of the relevant material which formed basis of detention order.”[Mohammad Amin Dar v. UT of J&K, 2020 SCC OnLine J&K 692, decided on 23-12-2020]


Sakshi Shukla, Editorial Assistant hs put this story together

Case BriefsHigh Courts

Gujarat High Court: A.C. Rao, J., dismissed a petition which was filed seeking to challenge the legality and validity of the threatening action of respondent 2 of passing the order of detention under the Gujarat Prevention of Antisocial Activities Act, 1985 (PASA Act) at pre-execution stage.

The counsel for the petitioner, Mr N.R. Desai contended that if there is an order of detention, the same may be quashed and set aside as being illegal, invalid and arbitrary. It was submitted that there was only one FIR registered against the present petitioner and therefore, merely filing of FIR against him would not be construed and culminated into the definition of a “Bootlegger” under the PASA Act. The counsel for the State, Ms Megha Chittaliya contended that the pre detention petition was not maintainable.

The Court relied on the judgment of the Supreme Court in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 where exceptions were mentioned,

i) that the impugned order is not passed under the Act under which it is purported to have been passed,

(ii) that it is sought to be executed against a wrong person,

(iii) that is passed for a wrong purpose,

(iv) that it is passed on vague, extraneous and irrelevant grounds or

(v) that the authority which passed it had no authority to do so.

The Court in lieu of the above judgment held that contention raised by the petitioner cannot sustain as only in the exceptional cases, pre detention matters were maintainable. The Court dismissed the petition considering the fact that only one FIR had been registered against the petitioner and the case of the petitioner is not such that it can be entertained under Article 226 of the Constitution of India and no other exceptional circumstance is carved out to intervene with the principles of the detention.[Thakarsibhai v. State of Gujarat,  2020 SCC OnLine Guj 1900, decided on 22-10-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J. detention order quashed and non-application of mind by the detaining authority in the present case declared writ large.

In the present case, the petitioner challenged the detention order passed by the respondent, on the ground that the order is a complete verbatim of the dossier submitted by the respondent police and the respondent has merely acted as a Post Office. Further, it was contended that the grounds of detention were not explained to the petitioner nor the right of representation was provided against the detention order. Further, the detention order was passed that the PSA warrant was executed on and that the government approved the detention order after the approval from the Advisory Board and thereafter detention order extended from time to time.

I.H. Bhat, counsel for the petitioner submitted that the status of the FIR was not mentioned in the detention order and was sans the grounds. Finally, it was argued that the detention order was approved by the government after an unreasonable delay of two years.

The Court pointed out that it was not made aware of the reason for the belated approval of the detention order by the government. In case the detention order was not to be executed for more than two years for one reason or another and the approval from the government was to take place after more than two years after the detention order was passed, the efficacy of such detention order cannot sustain after the lapse of two years. Thereby, statutory requirements under PSA Act are not adhered to by the authorities in the case and held it to be bad.

Finally, while quashing the detention order, the Court held that the order of detention was silent on the status of the petitioner in the FIR. Nevertheless, the dossier mentioning the details of the cases against the detenue could not rescue the detention order from being held bad if the detention order was silent on the above aspect. [Farman Ali v. Union Territory of J&K, 2020 SCC OnLine J&K 420, decided on 21-08-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and V. Velumani, JJ., while addressing the present petition observed that,

“Indian Democracy should not be tainted by criminals.”

“…it is seen that some of the criminal elements are floating political parties on their own with the support of their religion or communities and the same is required to be prohibited.”

The instant petition has been filed by the wife of the detenu against the detention order passed against her husband as he got about 19 cases pending registered against him for various offences.

Amongst the 19 pending cases, one has been registered under Section 102 of Penal Code, 1860, another for the offence under Section 307 of IPC, three cases for the offence of dacoity and 1 under NDPS Act and so on.

In view of the above-stated facts, Court questioned the respondent as to why the investigation has not been properly done and charge sheets are not filed even for the case pending from the year 2009 and directed to file a report regarding the stages of investigation in the cases registered against the detenu as well as the details of pending trial cases.

Respondents stated that out of the 19 cases, detenu has been acquitted only in one case.

Criminal Elements in Puducherry |Political Parties

The media reports make it evident that criminal elements in Puducherry have a close connection and support of political parties.

Political parties are having criminals as their members and also office-bearers.

It is brought to the notice of this Court that many cases are relating to inter-gang rivalries and country-made bombs are used to murder the opposite gang members. In total 5 cases, country-made bombs were hurled by the detenu and his associated.

Further, the court noted that charge sheets have been filed only in two cases in which offences under the Explosives Substances Act, 1908 have been invoked.

The case wherein double-barrel country made gun was used, no charge sheet has been filed.

Detenu and his associates are said to have used country-made bombs for murdering “Velazhagan” on 19-04-2017 and a case was registered under Section 302 IPC and 3 of Explosive Substances Act, 1908 and thereafter the case was transferred to CBCID, Puducherry.

The case for the above-said offence was registered in the year 2017, the sanction for prosecution under the Explosives Substances Act was not granted by the Government.  Only after this Court questioned the attitude of the respondents, the government had granted the sanction last week.

In view of the above-stated position, Court is justified to observe that three years delay in granting sanction for the case registered in the year 2017 is only due to political support enjoyed by the accused.

Even in the 2015 case, the investigation has not gotten over for the past 5 years.

Clout with Political Parties

The above stated would speak about the accused’s clout with political parties, especially ruling parties and police.

Lethargic attitude of the Police

Not filing charge sheet would only show how the police has been lethargic even in the cases involving heinous criminals that too murders by using country-made bombs.

It is reported in media that even some of the Ministers and Legislators are being given security by rowdy gangs.

Safety of people jeopardised

There seems to be a syndicate between the police force, political leaders and rowdy gangs and hence, the safety and security of the people are jeopardised.

Decriminalization of Politics

It has also been reported by media that persons with criminal background are becoming policymakers and the same has to be prevented alongwith cleansing of the system.

The leaders should have a vision for decriminalization of politics.

In view of the above-stated vision, Central Government should come out with comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State legislature and Local Bodies as was observed by the Supreme Court’s Constitution Bench in Public Interest Foundation v. Union of India,(2019) 3 SCC 224.

In view of the above, the High Court directed the respondent to answer the following queries:

  • How many rowdy gangs are active in Puducherry as well as in other States?
  • How many persons with criminal background are accommodated by various political parties as top office bearers and District Secretaries and the details of the criminal cases registered against those persons and their position in the respective political party?
  • How many History sheets have been opened for the past ten years in Puducherry?
  • How many murders have been committed by Rowdy Gangs in Puducherry as well as in other states?
  • How many cases have been registered so far against the rowdies and what are all the stages of the said cases in Puducherry?
  • Whether witnesses in the said cases are threatened to turn hostile so as to get an acquittal in Puducherry?
  • How many years does it take for a criminal case, especially a murder case to get disposed of in Puducherry?
  • How many persons have been so far detained under the Goondas Act for the past ten years in Puducherry?
  • Whether Rowdy gangs are using illegal arms like Pistols etc., apart from using Explosive Substances?
  • Why not the Central Government enacted a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Supreme Court?
  • Why not the Puducherry Government enact a law like Maharashtra Control of Organized Crime Act, 1999 to control the criminal activities in Puducherry?

The matter is to be listed in 2 weeks. [Jamuna v. Government of India, 2020 SCC OnLine Mad 1828, decided on 13-08-2020]


Also Read:

Candidates with criminal antecedents| Parliament has exclusive jurisdiction to lay down disqualification for membership; Court cannot legislate: SC

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. set aside the detention order passed by respondent 2-District Magistrate, Baramulla and ordered the detenu to be released from preventive custody.

In the present case, the petitioner had challenged a detention order passed by respondent 2 whereby the petitioner was taken under preventive custody. The respondent had also filed a counter affidavit wherein they resisted the petition by pleading that the detention order was passed by following the procedure under the law.

Learned counsel for the respondent, Asif Maqbool, produced the detention record to lend support to the stand taken in the counter affidavit.

Learned counsel for the petitioner, Mir Shafaqat Hussain, pointed out that the detenu had been shown involved in various FIRs but the fact that he had already been admitted to bail in these FIRs had not been mentioned though the mention of the FIRs was made. This showed that all the circumstances and materials were not examined. A person involved in a criminal case could be detained under the provisions of preventive laws provided there were compelling circumstances to do so. Preventive detention is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, should not be on the ipse dixit of the detaining authority.

While relying on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, it was pointed out that the procedural requirement are the only  safeguard available to the detenu, therefore, the procedural requirement should be strictly complied with, it was the duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If the record suggested that there was non-application of mind, which ipso facto meant that subjective satisfaction was missing.

Due to the cumulative effect of the above discussion, it was held that, the impugned order of detention passed by respondent 2 was not valid. The order was set aside directing that the detenu be released from the preventive custody.[Shahid Ahmad Tantray v. State of J&K, 2019 SCC OnLine J&K 422, decided on 08-05-2019]

Case BriefsHigh Courts

“Viewing Hindi or English as the only language does not seem to be the Constitutional mandate and it is with this end in view that our Constitution framers chiselled and shaped Article 348 of the Constitution of India.”

Patna High Court: The Three-Judge Bench of Amreshwar Pratap Sahi, CJ., Ashutosh Kumar and Rajeev Ranjan Prasad, JJ., was hearing a reference that came to this Bench from a writ petition (seeking issuance of writ of habeas corpus challenging a detention order) drafted in Hindi.

The instant reference came to this Court when a Division Bench of this Court in the present case, was in disagreement with another Division Bench judgment in Binay Kumar Singh v. Bihar State Electricity Board, 2010 SCC OnLine Pat 2286 wherein it was held that there is no prohibition under Article 226 and 227 of the Constitution of India, for institution of an application in Hindi.

The issue under reference was whether a writ petition under Article 226 and 227 of the Constitution of India could be filed in Hindi language and Devanagari script.

The issue raised before the Bench related to interpretation of the language employed in Notification No. 3/Hi 3-5043/68-185-Ra dated 09-05-1972 which “authorises the alternative use of Hindi language in the High Court in following proceedings:- (1) For arguments in civil and criminal cases before Patna High Court. (2) For submitting application with affidavits: However English shall continue to be used for applications submitted under Article 226 & 227 of the Constitution of India as an exception. Annexure attached to the applications shall not be required in English. Similarly, application connected with the tax reference shall continue to be submitted in English as well. In Special cases the Patna High Court may make an order to translate Hindi papers into English….”

The Court delivered three separate judgments. But Kumar and Prasad, JJ. in a ‘post-script’ endorsed the opinion of Sahi, CJ.

Amreshwar Pratap Sahi, CJ.

While spoken language in the Court includes native vernacular expressions but written language in the High Court was governed by the Rule 1 of Part-II under Chapter III of the Rules of the High Court at Patna which states that “Every application to the High Court shall be by a petition written in the English language.”

Article 343 of the Constitution states that Hindi shall be the official language of the Union; but Article 348 states that all the proceedings in the Supreme Court and every High Court shall be in English language, subject to Article 348(2) which categorically authorizes use of Hindi language or any other language for any official purposes in proceedings in the High Court.

He remarked that “even though the propagation of Hindi as a National language has seen a growth and adoption in the official work of the Union as well as a large number of the States, but so far as the judiciary is concerned, the use of the English language in all the High Courts of the Country as well as the Supreme Court continues to be English. The wide availability of legal expressions in the English language has not yet been perfectly substituted in any other regional language including Hindi.” He further expressed that “use of language is to be a matter of practice and to be inculcated from childhood to adolescence and beyond. This includes the use of language at home, in school and in the official curriculum.”

He opined that the general acceptability of the English language obligates its usage in order to maintain a uniformity of expression of ideas. He also pointed out that the use of Court language, particularly in higher judiciary, is of significance as it involves interpretation of laws that have come into existence with a global participation between different countries throughout the world.

It was opined that the introduction of a language to be used in Courts is to be directly in tune with the opportunities given to the students of law to educate; and the curriculum prescribed by the Bar Council of India clearly defines the medium of instruction in all law courses as English. The practicality of the issue at hand needs to be judged from the point of view of adaptability of Hindi by following it even in courses imparted by law colleges.

He observed that pleadings before a Writ Court in written language have to be understood in the authoritative language for an additional reason because the High Court under Article 215 of the Constitution is a Court of record. The wide nature of powers exercised by the High Court engulfs within itself the entire canvas of the population which may not include those which are yet to acquire any proficiency in the Hindi language. It was for this reason that the maintenance of records in the English language, was incorporated in the High Court Rules.

The Notification was issued in the exercise of powers under Article 348(2) of the Constitution, and thus it did not suffer from any infirmity. It was opined that the Apex Court in Dr Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247 had categorically held that even though the High Court Rules are framed in exercise of power under Article 225 of the Constitution of India yet they do not occupy a higher pedestal that the Constitutional mandate under Article 348 (2) and the Notification issued thereunder.

Sahi, CJ. held that Hindi has not been provided as an alternative language in respect of writ petitions under Article 226 and 227 of the Constitution of India and tax references. According to the plain meaning of the words used in the Notification, such pleadings presented for official use have to be necessarily in English and the same is fortified by the Rules of the High Court. However, he opined that there was no express prohibition regarding use of Hindi to the exclusion of English. It is open to a litigant to present his pleadings in Hindi but the authoritative text of it has to be in English to the extent as provided for in the Notification.

He observed that the question was not that of conflict of supremacy of any language but its viability and purpose as a use of Court language in certain classes of petitions. From that point of view, the Constitutional mandate has been always treated Hindi as an official language. For Court proceedings Hindi is practically a parallel language and is also spoken in the Patna High Court. There is no statutory or Constitutional bar for advancing oral submissions in Hindi. Thus, Hindi is not an alternative language but a language available as an elective option at the privilege of the user in Court proceedings subject to the limitation as contained in the Notification. Reliance in this regards was placed on Swaran Singh Bagga v. N.N. Singh, 1995 SCC OnLine Pat 274 where it was observed that there is no bar for any person to file an application in Hindi nor there is any bar for any person to advance argument in Hindi.

Sahi, CJ. remarked that that English language was being primarily used for training legal brains not only because of its historical past but also because of the global impact of the language of English in today’s context when laws from all over the world are being referred to in courses of study including International Law, Commercial Law and the like the translation of this massive global information into Hindi Devnagari script may not be possible in the near future nor such effective translation was available so as to train legal minds in Hindi. The voluminous material of legislations, documents, curriculum, sources of law, etc. in English could be translated overnight with exactitude for the use in educational institutions or even in Courts of law, as all of it formed a substantial basis of both legal education and continuing legal education. Thus, the use of material in English for advancing the cause of justice cannot be substituted overnight.

Sahi, CJ. approved the reasoning of Swaran Singh Bagga as correct and held that “so long as the notification dated 09-05-1972 was not modified, rescinded or substituted in any form, a petition under Article 226 and 227 of the Constitution of India or a tax reference can be filed in Hindi but it would have to be accompanied by an English version as well, which shall be the authentic version of the petition.

Ashutosh Kumar, J. held that a writ petition under Articles 226/227 of the Constitution of India can be filed in Hindi language also.

He opined that on reading the notification as a whole, the necessity of permitting use of Hindi as an alternative language, in terms of Article 348(2) and in obedience to the directives in Articles 350 and 351 of the Constitution was reflected.  He parted with the observation that “in the present day scenario, with the growth of education and the impact of globalization, it can hardly be said that English is not intelligible to the masses.”

Rajeev Ranjan Prasad, J. held that an application under Article 226 and 227 of the Constitution of India may be filed in Patna High Court only in English language, directing the State Government to look into the Special Directives as contained in Article 351 of the Constitution of India and come out with appropriate notification.

His opinion was based on perusal of the Constituent Assembly Debates which reflected division of opinion with respect to national language. He observed that English common law was the basis of Indian legal system and, to that end, the English language had been a useful medium of thought and expression. If the High Court adopts a local language, then it would be difficult for High Courts to cite judgments of other High Courts. Difficulty would also arise in the functioning of Supreme Court if the High Courts were to adopt different languages.

Concluding their opinions, Prasad and Kumar, JJ. in a ‘post-script’ endorsed the opinion of the Sahi, CJ. and held that “We, after having revisited our respective opinions, have come to the conclusion that the interpretation of the notification of 1972 given by Hon’ble the Chief Justice serves the twin purposes of pandering to the aspirations of preserving and promoting Hindi language and at the same time maintaining the exclusivity of the court language to English, for the benefit of the accessibility to an ever burgeoning case materials, case laws and research works in the area of law, which is mostly in English language and which is necessary in the background of the diverse, multicultural and multi linguistic country that we are in.”[Krishna Yadav v. State of Bihar, 2019 SCC OnLine Pat 594, Order dated 30-04-2019]

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., released Kishorchandra Wangkhem, the 39-year old journalist who was detained under the National Security Act, 1980 for criticising the Government through Facebook posts.

At about 2 pm on 27-11-2018, Kishorchandra was picked up by some unidentified persons on Police uniform and brought to Imphal Police Station where he was detained for about 5 hours. On the same day, a detention order under NSA was passed against him by the District Magistrate, and he was taken to Manipur Central Jai, Sajiwa, where he had been lodged since.

S. Chitranjan, Advocate led arguments on behalf of Kishorchandra and challenged his detention under NSA as illegal and unlawful contending that he did not get a chance for making an effective representation against his detention. Per contra, N. Kumarajit, Advocate General of Manipur and S. Suresh, Additional Solicitor General appearing for the Union of India supported the detention order.

The primacy issue in focus was: whether the detention order date 27.22.2018 stood vitiated due to non-supply of the picture with captions alleged to have been posted by the petitioner on his Facebook wall on 7.8.2018 and non-supply of the duplicate copy of the CD containing four video clips relied on by the DM, thereby preventing the petitioner from making an effective representation before the concerned authority?

The High Court found that the pictures in controversy and the CD concerned, which found mention in the ‘grounds of detention’ were not supplied to Kishorchandra. This, as per the Court, prevented the petitioner from making an effective representation against his detention. The Court said: “We have, therefore, no hesitation to come to the conclusion that non-furnishing of the pictures with copies alleged to have been posted by the petitioner on his Facebook wall on 7-8-2018 and compact disc containing four video clips, vitiates the very detention order dated 27-11-2018.”

In such view of the matter, the writ petition filed by Kishorchandra Wangkhem was allowed and the detention order passed against him under the National Security Act was set aside. He was directed to be set at liberty forthwith unless wanted in other cases. [Kishorchandra Wangkhem v. State of Manipur, WP (Crl.) No. 18 of 2018, dated 04-03-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of K.N. Phaneendra and K. Somashekhar, JJ. hearing a petition in the nature of habeas corpus, refused to interfere with the detention order passed against petitioner herein finding no reasons, therefore. 

The instant petition sought quashing of detention order passed against the detenue-petitioner on the sole ground that the said order was vitiated as the documents furnished to him were illegible. It was averred that the order was violative of Article 22(5) of the Constitution of India as the procedure followed had affected his right to make meaningful representation.

The Bench took note of Apex Court’s judgment in Union of India v. Mohammed Ahmed Ibrahim, 1993 Supp (1) SCC 405 where it was held that if the detenue alleges supply of illegible documents by detaining authority, then the extent and nature of illegibility and its effect on his right of representation must be considered by Court. 

In the present case, the Court opined that the test was to determine that whether the illegible portion supplied to petitioner was so relevant that because of that portion alone he could not make proper representation before the Advisory Board or government. 

It was found that the illegible portions supplied to the petitioner were merely bail orders passed in his favour by the competent authority. Hence, finding no explanation from the petitioner, his petition was dismissed. [Vijaya v. Commissioner of Police, 2018 SCC OnLine Kar 3200, Order dated 04-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed the petition which challenged the order of the district judge of preventive custody.

The detenue was arrested from his home for the commission of offences punishable under Section 121-A RPC, 7/25 Arms Act and 13 ULA (P) Act and while in custody impugned order of detention was issued.

The contention of the petitioners forwarded by Mr Mir Shafaqat Hussain was that the Grounds of detention stated were vague, non-existent and unfounded. Thus the respondents were stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and to have ignored to provide material relied upon by the detaining authority.

The contention of the respondents was that activities of detenue were highly prejudicial to the security of the State and also that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him.

The Court considering the fact that the respondents did not bring anything on record to indicate that the copy of the FIR, statements recorded under Section 161 CrPC and other material collected in connection with investigation of the case were ever supplied to the detenue, held that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue.

The petition was thus allowed. [Abdul Rashid Magloo v. State of J&K, 2018 SCC OnLine J&K 983, decided on 18-12-2018]

Case BriefsHigh Courts

Manipur High Court: A writ petition filed against the order of detention passed by the District Magistrate was allowed by the Division Bench comprising of N. Kotiswar Singh, ACJ and Kh. Nobin Singh. J.

The petition was filed against the detention order passed against appellant who was a member of Kuki National Front- President (KNF-P). The petitioner along with others, was charged for kidnapping and killing of members of another organisation. Detention Orders were passed against the appellants in furtherance of the said charges. The petitioner challenged the Detention Order contending that the provisions of Section 10 of the National Security Act, 1980 were not complied with.

The High Court perused the record as well as Section 10 of the National Security Act and found that the provisions and requirements of the said section need to be strictly complied with. Section 10 provides that the Government shall place the grounds of detention along with the representation presented by the detenu, if any, before the Advisory Board, within three weeks from the date of detention. However, in the present case, the Court found that the said provision was not complied with within three weeks of the date of detention of the petitioner. The Court held that violation of the provisions of Section 10 has prejudiced the right of the petitioner. Hence, the order of detention was liable to be quashed which was ordered accordingly. [Lalkhosem Kipgen v. District Magistrate, 2018 SCC OnLine Mani 38, dated 07-05-2018]

Case BriefsHigh Courts

Madras High Court: The High Court recently addressed a Habeas Corpus petition filed under Art. 226 of the Constitution of India which, called for the records ordering the detention of the detenu and subsequently for quashing them.

The facts of the case involve a certain, Prabhu @ Kili Prabhu, who had been charged with several criminal offences under the I.P.C with several police stations. In the affidavit submitted by the Police to the Detaining Officer, there was a mention of a complaint being registered by one Sundarmani wherein he alleged that the detenu had snatched a sum of 1500 and the former’s wrist watch from him by intimidating him with a knife, following which the complainant registered a case against the detenu. After consideration of the affidavit, the Detaining Officer concluded that the accused is a habitual offender and passed the detention order in question. The wife of the accused had filed this petition to quash the detention order against him.

The respondent’s side argued that the documents presented to the Detaining Officer were complete and sufficient to reach to the decision of passing a detention order against the accused.

The petitioner’s side argued that even though the petitioner had given a voluntary confession, the booklet which contained his narrative was not legible and hence, that could greatly impact the rights of the detenu. Thus, this called for quashing the order. But this was refuted by the Public Prosecutor who argued that all relevant information on the booklet was legible and hence, there stood no reason to quash the order.

The Division Bench in this case held in favour of the petitioner and thus quashed the Detention Order by accepting the argument that the submission made to the Detention Officer by the Sponsoring Officer, i.e. the Police, by not being readable could greatly affect the decision of the Detention Officer. It would then be fair to quash the Order so as to not affect the rights of the detenu. [Vasanthi v. State of Tamil Nadu, 2017 SCC OnLine Mad 2925, decided on 25.07.2017]

Case BriefsSupreme Court

Supreme Court: In the matter relating to supply of the ‘grounds’ of detention to the detenue when the Court has passed the order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Court said that neither Section 3 of the Act use the term ‘grounds’ nor any other provision in the Act defines ‘grounds’. However, Section 3(3) deals with communication of the detention order and states that ‘grounds’ on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression ‘grounds’ is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue.

Explaining further, the Court said that these grounds are the ‘basic facts’ on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. There is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. Hence, different instances would be treated as different ‘grounds’ as they constitute basic facts making them essentially factual constituents of the ‘grounds’ and the further particulars which are given in respect of those instances are the subsidiary details.

In the present case, the High Court of Delhi had said that there various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation of grounds enumerated in Section 5A of the Act and on remaining grounds the detention order was still sustainable. Agreeing with the view taken by the High Court, the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5A gets attracted. [Gautam Jain v. Union of India, 2017 SCC OnLine SC 16, decided on 04.01.2017]