Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J., while rejecting the present petition on lack of merits, said, “…this Court is of the considered view that the order of detention impugned has been issued by the detaining authority well within the parameters of law and no fault can be found with it and, as such, the same is upheld.”

Background

Through the medium of this petition, the petitioner has questioned the order of detention dated 04-07-2019 issued by the respondent 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978.

 Issue

  1. Whether detaining authority followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution as well as Section 13 of the Public Safety Act?
  2. Whether detaining authority furnished the material relied upon them, that has deprived the petitioner of his right to make an effective and purposeful representation to the Government against the order of detention?
  3. Whether the order of detention has been passed on irrelevant, vague and non-existent grounds, as contended by the petitioner?
  4. Whether the detention order was approved within the statutory period?
  5. Whether it was mandatory for the respondent authorities to invoke the Public Safety Act and the same could not be dealt by procedure under criminal law?

 Observations

Upon the first issue, reliance was placed on the case of Abdul Latif v. B.K. Jha, (1987) 2 SCC 22, wherein it was held by the Supreme Court that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go beyond the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. With respect to the present facts and circumstances, the Court noted, “Despite having been informed about the grounds of detention and also furnishing of the relevant documents, the petitioner has not chosen to make any representation either to the Detaining Authority or to the Government. Thus, there is compliance of both the Article 22(5) of Constitution of India as well as section 13 of the Act.”

Addressing the second issue, the Court remarked, “The perusal of detention record reveals that the detention order, notice of detention and grounds of detention and other related documents, 21 in number, have been handed over to the detenue-petitioner on the date of execution of warrant of detention i.e. 10-07-2019 and the execution report has been duly signed by the petitioner… More so, from both the execution report as well as receipt of grounds of detention, it is evident that the grounds of detention were read over to the petitioner in English and explained to him also in Kashmiri language.” It was concluded by the Court that the petitioner was well aware of all the grounds of detention and was also supplied with the documents relied by the detaining authority and therefore any contention claiming otherwise shall be groundless and without merit.”

Answering issue no. 3, Court said, “…the detention order has been issued by the respondent No. 2 on various grounds duly supported by documentary evidence. The grounds cannot be considered as vague, non-existent or irrelevant. Even otherwise, when the detention order has been issued on various grounds and even if one of the grounds is un-sustainable, still the detention order can be sustained as the other grounds.”

To determine the fourth issue, Court placed reliance over the statutory provisions, in the words, “As per the mandate of section 15 of the Public Safety Act, the Detaining Authority within four weeks from the date of detention, has to place before the Advisory Board the grounds on which the order has been made and the representation, if any, by the person affected by the order. As per section 8(2) of the Act, when the order of detention has been issued under this section, the Detaining Authority has to send the order to the Government along with grounds of detention and other particulars as may be required and no detention order has to remain in force for more than 12 days after making thereof, unless it has been approved by the Government. The perusal of the detention record reveals that the detention order has been approved by the Government on 12-07-2019, that is, within the statutory period. More so, the case of the petitioner was also referred to the Advisory Board and the Advisory Board vide its opinion dated 23-07-2019 has opined that there are sufficient grounds for detention of the petitioner and it has also been observed that the detenue was informed of his right to make representation.”

Delving into issue no. 5, Court disagreed with the precedent relied by counsel for the petitioner, stating that, “…the petitioner has indulged in subversive activities prejudicial to the security of the State and such type of activities are not conducted openly but in clandestine manner” and therefore unlike the case relied on, the ordinary law of the land does not seem adequate to take care of such illegal activities. Reliance was further placed on Sasti v. State of West Bengal, (1972) 3 SCC 826, wherein the Supreme Court said, “The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention. There would be no legal bar to the making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be relevant and germane to the object for which a detention order can be made under the Act. Even in cases where a person has been actually prosecuted in a Court of law in respect of an incident and has been discharged by the trying Magistrate, a valid order of his detention can be passed against him in connection with that very incident.”

 Decision

While rejecting the present petition, Court discussed at length, the requisites of a valid detention order and compliance of the same in the present case.[Asif Rashid Mir v. State of Jammu and Kashmir, 2020 SCC OnLine J&K 714, decided on 30-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has refused to interfere with Allahabad High Court’s decision quashing Dr. Kafeel Khan’s detention.

The Court has, however, made clear that the observations in the judgment will not determine the outcome of the prosecution and that the criminal cases will be decided on their own merits.

After the Citizenship Amendment Act received President of India’s assent on December 12, 2019, which triggered protests across several parts of the country, Dr. Kafeel Khan and Dr. Yogendra Yadav addressed a gathering of protesting students at Aligarh Muslim University, Aligarh. On December 13, 2019, a criminal case was lodged against Dr. Khan under Section 153-A of the Indian Penal Code at Police Station Civil Lines, Aligarh. The offences under Section 153B, 109, 505(2) Indian Penal Code were added subsequently, and Dr. Khan was arrested on January 29, 2020.

Despite the release order by the Chief Judicial Magistrate, Aligarh dated February 10, 2020, Dr. Khan was neither released nor was produced before the Magistrate. Hence, another release order was issued on February 13, 2020.

However, on February 13, 2020 itself the District Magistrate passed an order to detain Dr. Khan in – accordance with National Security Act, 1980 after a request was made for the same by the Deputy Inspector General of Police/Senior Superintendent of Police, Aligarh.

The Allahabad High Court, in its judgment dated 01.09.2020, calling the detention illegal, said,

“In absence of any material indicating that the detenue continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained. In fact, the grounds of detention are silent as to public order at Aligarh being at risk of any prejudice in February, 2020 on account of the offending act attributed to the detenue of the date 12.12.2019. What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded.”

The High Court also noticed that the grounds for detention along with material were to be supplied to Dr. Khan in light of clause (5) of Article 22 of the Constitution of India enabling him to submit representation to the competent authorities at earliest. However, the material so given was a compact disk of the speech delivered by Dr. Kafeel Khan on December 12, 2019 at Bab-e-Syed gate of Aligarh Muslim University. No transcript of the speech was supplied to the detenue. The High Court hence observed,

“The non-supply of transcript would have been of no consequence, if a device would have been supplied to the detenue to play the compact disk. It is the position admitted that no such device was made available to the detenue.”

Further, noticing that the orders of extension were never served upon the detenue, the High Court concluded that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.

It is pertinent to note that Dr. Kafeel Khan was also arrested in September, 2017 after an unfortunate incident resulted into the deaths of 50 children 2017 due to unexpected shortage in supply of liquid oxygen at the B.R.D. Medical College, Gorakhpur in the intervening night of 10/11 August. Dr. Khan was released on bail in April, 2018 by the Allahabad High Court.

[State of Uttar Pradesh v. Nuzhat Perween,  2020 SCC OnLine SC 1033, order dated 17.12.2020]

For Petitioner: Solicitor General Tushar Mehta

For Respondent: Senior Advocate Indira Jaising

Case BriefsHigh Courts

Punjab and Haryana High Court: In a peculiar case of illegal detention of a woman who happens to be the petitioner’s wife, Harinder Singh Sidhu, J., ordered for her release and for her to be reunited with the petitioner.

The instant habeas corpus petition has been filed under Articles 226/227 of Constitution of India by the petitioner (husband of detenue) seeking relief. The factual matrix in the present case is that petitioner had solemnized marriage with the detenue on 27-08-2020 at Sirsa. Respondents 4 to 7, detenue’s parents are relatives were against the marriage and had made their disapproval evident. During a post-marriage visit, detenue’s kin took her away with the assurance that they would drop her back at the house of the petitioner in a short while. Since then, the detenue has not returned and she has been illegally detained against her will by her family.

The Court after taking cognizance of the said matter directed the Superintendent of Police, District Sirsa to ensure the presence of the alleged detenue in the Court after which the detenue appeared in the Court accompanied by SHO/SI Sunita, Police Station Bada Gudha, District Sirsa. On being asked, the detenue stated in the Court that she has married the petitioner out of her own free will and that she is a major and wants to join the petitioner at her matrimonial home.

After careful consideration, the Court directed the SHO/SI to take the detenue and lodge her in the protection home at Sirsa and on a subsequent day, the petitioner would present himself at Police Station Bada Gudha, District Sirsa where he would be reunited with the detenue.

In view of the above, the petition has been disposed of.[Pass Ram v. State of Haryana, 2020 SCC OnLine P&H 1744, decided on 20-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J. allowed the application and enlarged the applicants on bail.

The applicants in the instant case were arrested for offences falling under Sections 8/21 and 29 Narcotic Drugs and Psychotropic Substances Act, 1985. It was alleged that the recovered contraband was heroin.

Counsels for the applicants, Mohd. Yaseer Choudhary, Syed Aaqib Mujtaba, and Ashfaq Mir argued that the said contraband, even if taken as a whole, didn’t fall within the category of commercial quantity and rather would fall within the category of the intermediate quantity. Further, the applicants had been in custody for more than eight months without trial because the proceedings not being conducted because of restrictions imposed due to COVID-19 pandemic and no witness has been examined by the trial court to date. It is further submitted that apart from the FIR, the prosecution didn’t bring forth any incriminating facts before the Court showing involvement of the applicants in any similar type of offences earlier.

The respondent-Union Territory objected by contended that filed the application was not maintainable for the reasons that to maintain a subsequent/successive bail application, change of circumstance is required. However, in the instant application, there is no change of circumstance rather the applicants are trying their luck before this Court. It was further contended that that the applicants did not deserve to be enlarged on bail as they are drug peddlers. This objection was raised by relying on the Supreme Court verdict in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42.

The Court went the other direction and relied on another verdict of the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501 wherein it was held that the findings of the Court or higher court while rejecting the earlier bail application are to be considered when the bail application is filed subsequently either before the same court/ court of coordinate jurisdiction or before the subordinate court. Further, as a rule, the successive bail application is required to be heard by the same judge. Once the higher Court rejects the bail application, then the fresh bail application cannot be entertained by the subordinate court unless there is a change of circumstance/situation. Even before the same Court, the successive bail applications cannot be entertained on the same facts when the earlier bail application has been rejected. The principle of bar in entertaining successive bail application without change of circumstance shall apply in those cases where the subsequent bail application is filed before the same court or the court of co-ordinate jurisdiction. Thus if the bail application is rejected by the Court, the accused is well within his right to approach the higher court on similar facts for grant of bail but not vice-a-versa.

Furthermore, in Diwan Singh v. State of J&K, 2010(3) JKJ 367 it was held that once an anticipatory bail application is rejected by the Sessions Court on the same cause of action, fresh application before High Court can be filed.

Thus, the Court while pronouncing its decision stated that:

“The conclusion of the trial may take some time as there is no possibility of the conclusion of trial in near future so the applicants cannot be kept in custody for long time as a matter of punishment.”

Nevertheless, the Court also held that since the quantity of recovered contraband was an intermediate quantity, the rigors of Section 37 of the NDPS Act could not apply.[Liaqat Hussain v. Union Territory of J&K, 2020 SCC OnLine J&K 424, decided on 25-08-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order and allowed the petition as the Detaining Authority had failed to mention in the detention order about the petitioner’s right to make representation.

In the present appeal, Wajid Haseeb, counsel for petitioner vehemently opposed the detention order passed against him. The detenu is who is already facing trial before a competent court of law detenu was enlarged on bail by the competent court of law but despite such order, he was not released. It was further contended that owing to this, the possibility of the detenu to be implicated in anti-national protests, such as stone-pelting seems farfetched and grounds taken in the detention order and the material referred to and relied upon has no relevance as he wasn’t actually released. Furthermore, it was submitted that the absence of material the detention order is passed on mere ipsi dixit of detaining authority, therefore, the detention order is bad in law.

The Court relied on certain decisions of the Supreme Court to reach its verdict:

Khudiram Das v. State of W. B., (1975) 2 SCR 81 — the Supreme Court explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 — the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.

The Court opined that the only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material was not supplied to the detenu, the right of the detenu to file such representation was clearly impinged upon and the detention order stood resultantly vitiated. [Junaid Ahmad Dar v. State, 2020 SCC OnLine J&K 408, decided on 18-08-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J. dismissed the writ petition and set aside the detention order on the grounds that it did not stand the test of law.

According to the factual background of the present case, the petitioner has challenged the order passed by the respondent whereby the petitioner was detained under Section 8 of the J&K Public Safety Act, 1978, on the score that the petitioner has not explained the grounds of detention while passing the order thereby he was not in a position to make proper representations to the Government.

Further, Ankur Sharma, counsel on behalf of the petitioner contended that the impugned order lacks application of judicial mind and is a duplication of the dossier of the police.

The Court on taking note of the representations made by the petitioner and delving deeper into the facts and circumstances of the case reiterated certain Supreme Court verdicts which were noteworthy and applicable to not just the case at hand but also future cases.

Rajesh Vashdev Advani v. State of Maharashtra, (2005) 8 SCC 390 — Non-application of mind by the Court and duplication of police dossier attracts setting aside the said order passed by it.

Jai Singh v. State of J&K, (1985) 1 SCC 561 — A detention order encapsulating the same wordings as the dossier is liable to be quashed.

Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875 — Subjective satisfaction of the detaining authority is not immune from judicial reviewability.

Nevertheless, the Court did not hesitate to point out the very underpinning purpose of a preventive detention order which is to prevent the person from committing the acts prejudicial to the maintenance of public order. The detention order cannot be passed in a casual manner by the concerned authority thereby depriving the person of his liberty. [Surinder Singh v. Union Territory of J&K, 2020 SCC OnLine J&K 394, decided on 11-08-2020]

Case BriefsSupreme Court

Supreme Court: After Solicitor General Tushar Mehta submitted before the bench of AM Khanwilkar and Dinesh Maheshwari that as of today only ten petitioners in the Tablighi Jamaat case have decided to contest the criminal cases pending against them and are not willing to exercise the option of plea bargaining, the Bench directed that the criminal cases concerning these ten petitioners pending in different Trial Courts in the NCT of Delhi be brought before the same Court i.e. to the Chief Metropolitan Magistrate, South-East Delhi, Saket Court Complex, Saket, so that all the cases can be disposed of expeditiously. It further directed the said Court to dispose of all the cases expeditiously preferably within eight weeks from today.

SG also submitted before the Court that  if the concerned petitioners tender apology, as envisaged by the Madras High Court in the concerned criminal case, the said petitioners can be permitted to leave India despite the pendency of the criminal case but subject to such orders that may be passed by the concerned Trial Court.

He also told that Court that the look out notices issued against the petitioner(s) before this Court stand withdrawn and that the concerned petitioner(s) will be free to leave India subject to any other pending proceedings including order passed by the Court requiring his/her presence in the stated proceedings.

The Court has listed the matter after 8 weeks.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions. They defied COVID-19 lockdown norms as were imposed by the Government. In the norms, religious places were ordered for closure, yet the petitioners allegedly stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

Madras High Court had, in it’s June 12 order said that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

“Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.”

[Maulana Ala Hadrami v. Union of India, 2020 SCC OnLine SC 629, order dated 06.08.2020]


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Madras HC | Tablighi Jamaat | Foreigners who attended congregation not criminals: HC grants bail and allows return of foreigners to native country


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Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while addressing a petition with regard to release of Tablighis, stated that,

Covid-19 should teach us to care for each other rather than use the arsenal of law.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions.

They defied COVID-19 lockdown norms as were imposed by the Government.

In the norms, religious places were ordered for closure, yet the petitioners stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

There are accusations that its puritanical and revivalist project prepares the ground for islamic radicalization.

Court’s opinion on “Tablighis”

[Categorization can have serious pitfalls]

Bench recorded,

Prof. Upendra Baxi’s remark in his recent essay on “Exodus Constitutionalism” published by The India Forum that “there is, also, no such thing as ‘migrants’ but only persons and groups with distinctively (and often disturbingly) different needs and abilities…”

The above stated helped the Court to see the petitioners as “30 individuals” instead of collectively thingifying them as “Tablighis”.

Justicing has to be an individualized exercise.

Further the Court added that, there are scores of foreign Tablighis who are presently in detention. They hail from different countries. Some of them are women. Quite a few are senior citizens. They are normal human beings. They are now stuck in alien surroundings.

The petitioners came to India propelled by a sense of religious idealism. But their mission went awry.

The stated petitioners are eager to return back to their families and are also willing to admit through affidavits that they had violated the visa conditions and were willing to undertake that they will not enter India for the next ten years.

Entitled to bail?

Offences which the petitioners are alleged to have committed are not akin to those offences for which there are limitations for grant of bail.

The Bench states that there cannot be any objection for granting bail to the petitioners.

Continued incarceration of the petitioners will not serve any purpose. Since the petitioners are foreigners, it would obviously be difficult for them to arrange local sureties.

Thus, petitioners shall be released on their own bond.

Right to return to native country

Bench stated that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.

Court feeling sensitive to the petitioners’ misery in the present COVID-19 times, posed a question, whether it is acting beyond jurisdiction?

To the above, bench stated,

The Hon’ble Chief Justice has allotted the subject of Criminal Original Petition-Bail, Anticipatory Bail Petitions, Criminal Appeal and Criminal Revision Petitions to be dealt with by me. But, in view of my being a Judge of the High Court, I certainly have the inherent power to make such orders as may be necessary to secure the ends of justice.

Failure to respond to the petitioners’ existential horror would amount to judicial abdication.

Of course, the petitioners having violated the visa conditions cannot demand that they must be allowed to return as a matter of right. But then, the authorities cannot arbitrarily deny the said request.

Unjust, Unreasonable and Unfair

Petitioners are willing to bear the cost of transportation. They will coordinate with their embassies and consulates and arrange their return. All that the respondents need to do is to play a facilitatory role. Instead of doing so, if the respondents insist on detaining the petitioners and prosecuting them, it can only be characterized as unreasonable, unjust and unfair.

Thus, in view of the above, Court issues following directions:

  • Petitioners are granted bail.
  • After the petitioners are released on bail, it is open to the authorities to require the petitioners to stay at the special camp earmarked under Section 3(2)(e) r/w 4(2) of the Foreigners Act, 1946.
  • If the petitioners execute appropriate affidavits expressing their regret for having violated the visa conditions, proceedings against them shall be concluded by filing final reports recording the same.
  • It is for the petitioners to coordinate with their respective embassies/consulates and arrange their return to their respective nations. Government of Tamil Nadu or the Government of India will only play a facilitatory role.

[Md Kameual Islam v. State, 2020 SCC OnLine Mad 1171 , decided on 12-06-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta, and Saurabh Shyam Shamshery, JJ., asked the State Government to ensure that persons who have tested negative and completed their quarantine period should be released from the Quarantine Centres.

Present matter was registered on a letter received by an Advocate, Shaad Anwar seeking release of members of Tablighi Jamaat quarantined in Uttar Pradesh.

Pursuant to Court’s Order dated 21st May, 2020, Advocate Shaad Anwar furnished the details of 45 members of Tablighi Jamaat who were sent to the quarantine centre within the  State of Uttar Pradesh.

The said matter was again taken up on 29th May, 2020 by which State was directed to furnish all the details pertaining to the members of Tablighi Jamat, who were quarantined, released after completing the quarantine period or have yet not been released despite completing tenure of quarantine. Further the State was also asked to give reasons for not release of such persons.

Update in the matter

State in today’s hearing provided the details that, total of 3001 Indians as well as 325 foreigners who were the members of Tablighi Jamaat were quarantined.

Further, all the 3001 members of Tablighi Jamat, who were Indians, have been released after competing the quarantine period, however, 21 members out of them have been detained in Jail, as such, none of the members of the Tablighi Jamat are in Quarantine Centers.

Additional Advocate General, Manish Goyal submitted that members of Tablighi Jamaat who were quarantined in the centres within the State of U.P. have returned to their respective States barring a few who have made their own private arrangements for stay.

Thus, in view of the statement made by the Additional Advocate General Court accepted the stand of State, however it would be open for the petitioner to approach the appropriate forum in case it discovers later on that some members of Tablighi Jamat are still detained in the Quarantine Center despite completing the requisite period of quarantine.

In a parting remark, Court added that,

Persons, who have completed their quarantine period and have tested negative can not be further detained in the Quarantine Centers against their wishes. It would be in violation of personal liberty under Article 21 of the Constitution of India.

Thus, State Government is directed to ensure that persons who have completed their quarantine period be released from the Quarantine Centres provided they have tested negative.

Bench also directed the Chief Secretary, State of Uttar Pradesh to set up a three members committee in every district to ensure smoother, greater and more effective functioning of the Quarantine Centers.

With the above observations, petition was disposed of.[Shaad Anwar v. State of U.P., 2020 SCC OnLine All 682 , decided on 30-05-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed in connection for the offences punishable under Sections 3, 5, 11 of the Uttarakhand Protection of Cow Progeny Act, 2007 and Section 11 of the Prevention of Cruelty to Animals Act, 1960.

The FIR stated that police party had raided the house of the present applicant on 15-12-2019 and recovered 245 Kg. beef with equipments meant for slaughtering and the applicant was arrested. The counsel for the applicant Mohd Safdar submitted that the applicant was an innocent person; he had been falsely implicated; nothing had been recovered from the possession of the applicant; there was no independent witness of the alleged recovery; the applicant had no criminal history; the applicant was in custody since 15-12-2019; the co-accused had been granted bail by this High Court. 

The Court while allowing the bail application stated that the object of keeping an accused person in detention during the trial was not punishment and as the applicant was a resident of Haridwar his presence can be secured anytime. [Mursalin v. State of Uttarakhand, First Bail Application No. 179 of 2020, decided on 03-03-2020]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah, JJ has issued a notice to the Jammu and Kashmir administration seeking its response on a plea filed by Iltija, daughter of former chief minister Mehbooba Mufti, challenging her mother’s detention under the Jammu and Kashmir Public Safety Act, 1978. The bench also asked Iltija to file an affidavit that no similar case is pending before any other court and posted the matter for hearing to March 18.

During the hearing, senior advocate Nitya Ramakrishna appearing for Iltija assured the court that no petition is pending before any court. The court also asked the counsel about the situation in the Kashmir.

“What’s the position now? Schools have started? It came in the newspaper,”

At the outset, the bench even suggested the counsel to approach Jammu and Kashmir High Court. Senior counsel responded that High Court had taken a view that it can’t go into
the administrative issues, to which the bench replied that it’s not an administrative issue. “Cheap politics among masses,” counsel argued while reading out reasons for Mufti’s detention. The counsel also said that they (administration) have not referred to a single instance against former Chief Minister of inciting people.

The Jammu and Kashmir administration had, on February 5, invoked PSA against the former Chief Ministers Mehbooba Mufti and Omar Abdullah. Both the former Chief Ministers were detained after the government abrogated Article 370 last year. Earlier, the bench had also sought response from Jammu and Kashmir administration on a plea of former Jammu and Kashmir Chief Minister Omar Abdullah’s sister challenging his detention under the Jammu and Kashmir Public Safety Act.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A bench headed by Justice Arun Mishra has issued a notice to the Jammu and Kashmir administration on the plea of National Conference leader Omar Abdullah’s sister challenging his detention under the Jammu and Kashmir Public Safety Act, 1978. The Jammu and Kashmir administration has to file a reply by March 2. Justice Mohan Shantanagoudar on Wednesday had recused from hearing the plea.

The Court inquired whether any similar plea filed by any person is pending before the High Court. On this, senior lawyer Kapil Sibal, who is appearing for Omar’s sister Sara Abdullah Pilot, said “no”.

In her plea, Sara Abdullah Pilot, Omar’s sister and wife of Rajasthan Deputy Chief Minister Sachin Pilot, said the order of detention is manifestly illegal and there is no question of him being a “threat to the maintenance of public order”. She also said that exercise of powers by authorities under the CrPC to detain individuals, including political leaders, was “clearly mala fide” to ensure that the opposition to the abrogation of Article 370 of the Constitution is “silenced”.

The plea has sought quashing of the February 5 order detaining Omar Abdullah under the PSA and also sought his production before the court.

“The intent of exercise of power was to incarcerate not just him but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the State and the Union over several years… stood by India whenever the situation so demanded,”

The plea added that the grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention. The Jammu and Kashmir administration on February 5 had invoked the stringent PSA against former Chief Minister Abdullah and People’s Democratic Party leader Mehbooba Mufti. Both the former Chief Ministers were detained after the government abrogated Article 370 last year.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Hot Off The PressNews

Supreme Court: Justice Mohan Shantanagoudar on Wednesday has recused from hearing the plea of former Jammu and Kashmir Chief Minister Omar Abdullah’s sister, challenging his detention under the Jammu and Kashmir Public Safety Act, 1978. A three-judge Bench of Justice NV Ramana, Justice Mohan Shantanagoudar and Justice Sanjiv Khanna was scheduled to hear the case today after the matter was mentioned before the Court on Monday.

Another Bench has agreed to hear the case tomorrow. Senior advocate Kapil Sibal, appearing for Sara, mentioned that he will not be available for the hearing on Thursday. Thus, the top court scheduled the matter for hearing on Friday i.e. February 14, 2020.

In her plea, Sara Abdullah Pilot, Omar’s sister and wife of Rajasthan Deputy Chief Minister Sachin Pilot, said the order of detention is manifestly illegal and there is no question of him being a “threat to the maintenance of public order”. She also said that exercise of powers by authorities under the CrPC to detain individuals, including political leaders, was “clearly mala fide” to ensure that the opposition to the abrogation of Article 370 of the Constitution is “silenced”.

The plea has sought quashing of the February 5 order detaining Omar Abdullah under the PSA and also sought his production before the court.

“The intent of exercise of power was to incarcerate not just him but the entire leadership of the National Conference, as well as the leadership of other political parties, who were similarly dealt with including Farooq Abdullah, who has served the State and the Union over several years… stood by India whenever the situation so demanded,”

The plea added that the grounds for the detention order are wholly lacking any material facts or particulars which are imperative for an order of detention. The Jammu and Kashmir administration on February 5 had invoked the stringent PSA against former Chief Minister Abdullah and People’s Democratic Party leader Mehbooba Mufti. Both the former Chief Ministers were detained after the government abrogated Article 370 last year.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

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Supreme Court: A petition has been filed in the Supreme Court challenging the detention of former Jammu and Kashmir Chief Minister Omar Abdullah, under the Public Safety Act (PSA). The plea was filed by Abdullah’s sister Sara Abdullah Pilot.

Abdullah and People’s Democratic Party (PDP) leader Mehbooba Mufti were recently booked under PSA. Both the former Jammu and Kashmir chief ministers were detained after the government abrogated Article 370 last year.

On the intervening night of 4 and 5 August 2019, Omar Abdullah was placed under preventive detention by the Indian Government. This came as a backdrop to the government’s decision of scrapping Article 370 of the Constitution of India, which gave the state of Jammu & Kashmir semi-autonomous powers. On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

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As reported by ANI,

Delhi High Court’s Single-Judge Bench transfers petition challenging detention, seeking relief & release of Jamia students, locals detained during protest, to a High Court division bench headed by Delhi High Court’s Chief Justice DN Patel.

Petition to be heard on 19-12-2019, along with other pleas related to protest.

Background

15-12-2019 turned out to be full of fear and violence on the campus of Jamia Milia Islamia University when police forces entered the campus and used tear gas along with lathi-charge on students.

It has been reported that, the students were detained and taken to two of the police stations where for a few hours no lawers, activists, media persons or anyone was allowed to enter. Students were beaten in the libraries, hostels, everywhere.

Several came out in support of the Jamia Students.

As reported by NDTV, Protests swept campuses across the country against the police crackdown at Jamia Millia Islamia after Sunday evening’s violence over the new citizenship law.

The police, which used batons and teargas to contain the violence, later barged into the university and detained around 100 students. All the detained students were released around 3:30 am.

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of A. Hariprasad and A.Anil Kumar, JJ., released the appellant as no intention to commit murder was established and he had already undergone more detention than imposed by the law.

The prosecution alleges that the deceased and the accused-appellant used to sleep in the veranda or close shop rooms and in bus waiting sheds. It is pertinent to note that both were in the habit of drinking. The appellant had enmity towards the deceased and physically assaulted him by kicking and hitting on vital body parts with an intention to commit murder. The deceased was taken to the hospital where he was declared dead on arrival.

Renjith B. Marar, counsel representing the appellant, argued that the name of the deceased was noted at the hospital. Due to a botched up investigation, the chance of someone else assaulting the deceased with a mistaken identity cannot be ruled out. There is no case that the accused had any weapon which could have been used for causing injuries mentioned in the post-mortem report. He further argued that even if the prosecution case is accepted, the offence under Section 300 of the Penal Code, 1860 is not made out. The counsel submitted that the opposite counsel failed to prove mens rea on the part of the appellant that caused the death of the deceased. 

Alex H. Thombra, counsel for the respondent, argued that on the evening previous to the incident due to a scuffle between the accused and the deceased; the accused was made to apologise to the victim and thus he developed hostility towards him. PW1 confirmed witnessing the accused assaulting the deceased.

The High Court upon perusal of the facts and circumstances of the case held that the appellant and the deceased were known to each other prior to the incident, the appellant was aware of the deceased’s weak physical conditions. Thus the Court held that the appellant had knowledge that by incessantly assaulting the deceased it will likely cause his death and there is the absence of intention to commit murder, thus the appellant has committed an offence under Section 299, Penal Code, 1860 and is liable under Section 304 of the Penal Code, 1860. The Court sentenced him to 7 years of rigorous imprisonment and on finding that he has been undergoing detention for about 10 years directed that authorities release him. [Jomon Kava v. State of Kerala, CRL.A.No. 1276 of 2016 decided on 31-10-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J., allowed a bail application subject to stringent conditions in child sexual harassment case on the ground that no prima facie offence was made out and the accused already suffered detention for 40 days. 

The prosecution had alleged that the victim aged 13 years was given a lift on a scooter by the petitioner, and the petitioner took the victim to an isolated house and pressed his chest and then kissed his lips, etc. 

Counsel for petitioner, T.K. Vipindas, contended that the allegations are false and fabricated. He also argued that the facts in the FIS do not fulfill the ingredients of Section 377 of the Penal Code, 1860. No allegations were made that the petitioner indulged in anal penetration or any assault using the genital organ. Thus the offence under Section 377 is not made out in the present case. The petitioner further contended that even admitting the allegations, petitioner committed a non-penetrative assault under Section 7 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 punishable under Section 8 of the POCSO Act. The fact that the petitioner had already suffered detention for 40 days, further detention was not justified and proper, thus considering the nature of allegation the court may release him on bail subject to any strict conditions. 

Public Prosecutor, T.R. Renjith contended that if the petitioner was released on bail there is every possibility that of the petitioner intimidating and influencing the witnesses, victim and his family members. 

The Court after considering the allegations and the fact that the petitioner had already suffered detention for 40 days, was let out on bail, on his executing bond for Rs 40,000 and furnishing two solvent sureties, subject to stringent conditions. The court imposed the following conditions – petitioner has to report to the investigation officer on 2nd and 4th Saturday for three months, he shall not visit victim’s residence or the educational institution of the minor victim, he shall not enter the territorial limits of the police station, where the victim resides. In case of a genuine emergency, the petitioner is allowed to visit the said area after taking permission from the IO. In case of violation of any of the conditions, the court may consider the bail as cancelled. [Rajeevan v. State of Kerala, 2019 SCC OnLine Ker 3993, decided on 06-11-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed the application filed by the petitioner to free him from detention.

The petitioner filed a Habeas Corpus petition against the order of detention, passed by the Respondent 2 who is the District Magistrate Baramulla, in exercise of powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (“The Act of 1978”). It was submitted that the detaining authority had failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his release on bail in substantive offences. It was also submitted that such order was passed on the dictates of the sponsoring agency, i.e. the Officer who had prepared the police dossier and no attempt had been made by the Respondent 2 to scan and evaluate it before issuance of the order of detention. 

The Respondents submitted that the detaining authority had complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue did not file any representation against the order of detention. The detenue was involved in two different cases for the commission of offences punishable under the ULA(P) Act and the Ranbir Penal Code (RPC). 

The Court emphasized the issues that since the detenue was released on bail in the FIRs that formed the baseline of the order of the detention, therefore, an order of detention could have been passed under such circumstances or not. The Court relied on the law laid down by the Supreme Court in paragraph No. 24 of the judgment delivered in the case of Sama Aruna v. State of Telangana, AIR 2017 SC 2662”:

“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: 

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 

The Court held that the detenue could not have been detained after taking recourse to the provisions of “The Act of 1974” when he was already on bail. While discussing the duty of the State to follow the law of the land so as to safeguard the rights of the citizens the Court exclaimed that:

The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the orders of bail so granted by the competent Court(s). This single infraction knocked the bottom out of the contention raised by the State that the detenue can be detained preventatively when he was released on bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 08. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law.”

In view of the above-noted facts, the instant petition was allowed and the impugned order of detention of the petitioner stood to be quashed. [Shabir Ahmad Mir v. State of J&K, 2019 SCC OnLine J&K 882, decided on 05-11-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. made absolute the interim application for bail in a matrimonial case.

An application for anticipatory bail was made by the petitioner for the offence registered under Sections 323, 325, 326, 406, 506, 498-A, 34 of the Penal Code.

The facts of the case were that FIR was registered at the instance of the petitioner’s wife wherein it was alleged that she was married to the petitioner and had a child from the wedlock. The petitioner and his family used to harass and beat her for no reason. It was also submitted that in-laws of the petitioner had retained all her jewellery articles.

Gautam Dutt, counsel for the petitioner submitted that though there was some matrimonial discord between the parties the complainant herself caused injuries to the petitioner. It was further submitted that complainant is all out to wreak vengeance and went to the extent of leveling allegations of rape against the petitioner’s father which upon inquiry by police were found to be false.

Aditi Girdhar, counsel for the state submitted that one of the injuries found on the person of the complainant has been opined to be grievous injury attracting an offence punishable under Section 325 IPC and that in these circumstances since the allegations stand substantiated, no case for grant of anticipatory bail was made out. It was informed that the alleged jewellery articles, as well as car, were recovered.

The court opined that as the petitioner had already joined the investigation and had got the articles of the dowry and thus petition was accepted and the interim directions by the court were made absolute subject to the condition that petitioner would appear before investigating officer and when called upon to do so and cooperate with the investigating officer.[Nitin Yadav v. State of Haryana, 2019 SCC OnLine P&H 1480, decided on 19-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Manoj Bajaj, J., allowed a regular bail application on the ground that the co-accused was also on bail. 

A bail application was made for the grant of regular bail where the offence under Sections 420, 406 and 120-B of the Penal Code, 1860 were registered. 

The brief facts of the case were that the complaint was made herein it was alleged that the complainant was taking a round of the sugar mill when he saw the driver of the tractor-trolley was reversing from the weighing bridge. When inquired regarding the weight, the driver told that the empty trolley was not being weighed on the said machine but the receipt when checked; it was found that he was lying and the receipt was false. The matter was inquired and it was disclosed that he along with Ajay Kumar who was working in the Sugar Mill and some other persons were involved in causing wrongful loss to the Sugar Mill for their gain.

Mukesh Singh, brother of the petitioner submitted that the co-accused, namely Ajay Kumar Sharma, already stands released on regular bail by this Court. It was further revealed that had suffered a confessional statement before the police wherein it was mentioned that he was allegedly involved in five such weighments of the vehicles and a sum of Rs 10,000 came to his share. Thus a prayer that the petitioner be released on regular bail was made.

The court opined that the “investigation qua the petitioner is complete and the trial is likely to consume some time, further detention of the petitioner may not be justified” Thus the petitioner was released on bail subject to furnishing requisite bail bonds and surety bonds to the satisfaction of the trial court. [Ankit Sharma v. State of Haryana, 2019 SCC OnLine P&H 1369, decided on 06-08-2019]