Case BriefsHigh Courts

Kerala High Court: In an interesting case regarding custody of a major the Division Bench of K. Vinod Chandran and M.R. Anitha, JJ., refused to invoke parens patriae doctrine on observing signs of obsession coupled with hysteria in the detenue.

In the instant case, the petitioner, who was the counsellor and therapist of the detenue filed a petition claiming that the detenue, a major and a brilliant student, was competent to decide on her own way of life, therefore, she should be let free from the custody of her parents as the detenue insisted that she wanted to go with the petitioner. The alleged detenue was residing in her parental home and was aged 21 years, a major. The 52 years old petitioner alleged illegal detention of the detenue by her own parents on the ground that he had a live-in relationship with her for the last two and half years.

Counsel for the respondents, K.Suresh Babu argued that there was no illegal detention and the respondents were trying to provide psychiatric help to their daughter. Since, she was a brilliant student who suffered a bout of depression for which the parents had consulted the petitioner. It was alleged that, the petitioner, in the guise of counselling and therapy insisted on solitary sessions with the detenue after which the detenue developed an obsessive attachment to the petitioner.

The Bench noticed that the petitioner was already married and had two children out of wedlock. Also, the mother of the petitioner expressed suspicion over the activities of the petitioner and disapproved his actions. The petitioner was Post Graduate in Psychiatry from U.K, initially, he pursued the medical profession, but later proclaimed himself to be a Vedic Yogacharya/Instructor. It was alleged that the petitioner while working as a Psychiatric Consultant misbehaved with a 14-year-old girl and sexually abused her at his residence; hence, the Bench observed, the petitioner was not leading a socially acceptable life and had difficulty in explaining the means and goals of his spirituality.

Hence, the Bench while distinguished on facts with the judgment of Supreme Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368,   and assessed that the detenue was incapable of making a decision for herself as the parents of the detenue too had raised serious concerns of her obsessive behaviour. Also, considering the facts that parents of the detenue had initially approached the petitioner with their daughter for psychiatric consultation and their trust in him as a Doctor and therapist was breached to the extent of the petitioner declaring his patient to be a live-in partner; when he himself was married with two children; the Court held that there was no illegal detention at all. Consequently, the Court directed the detenue to be retained with her parents at her parental home. [Kailas Natarajan v. District Police Chief, 2021 SCC OnLine Ker 337, decided on 20-01-2021]

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]


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Case BriefsHigh Courts

Patna High Court: A Division Bench of Sanjay Karol, CJ. and S. Kumar, J., while allowing the present petition, discussed the issue of unlawful detention and compensation for the same under Article 226, placing reliance on settled legal precedents.

 Background

It is the case of the petitioner that on 29-04-2020, during transportation of milk from one place to another, a milk tanker vehicle was seized in the jurisdiction of Parsa Police Station (Bihar). The tanker was taken to a nearby dairy for milk to be extracted and thereinafter detained at the police station where the detenue was detained in extra-judicial custody. All this was done without lodging of any FIR and/or following the appropriate procedures of recording the detention of the individual or impounding the vehicle, rendering the seizure unlawful and detention illegal. Even till 15-05-2020, the date of filing of this writ petition, the detenue was never presented before the District Magistrate having competent jurisdiction. The present petition is moved against the respondent authorities, so to question the said unlawful detention and further draw the attention of the Court to such practices of gross human rights violation, with special focus on, truck drivers.

 Observations

Illegal Detention and Breach of Fundamental Rights

Considering the submissions made, Court noted, “The facts of the instant case indicate a grim state of affairs where the police officials have acted in contravention and violation of the procedure established by law. The vehicle and detenue were detained and kept in police custody for more than 35 days without either filing of FIR or following any other procedure of arrest prescribed in law, ensuring constitutional protections to all persons… Therefore any detention made by the Police in this case, is completely illegal, unlawful, in contravention of the constitutional and statutory provision and direct violation of detenue’s fundamental rights. This follows from the constitutional protections guaranteed to every person under Articles 21 and 22 of the Constitution.”

 Procedure of Arrest required to be followed

Enumerating the provisions of Chapter V, Code of Criminal Procedure, 1973, the Court raised a few questions which essentially remains unanswered by the police authorities; “(i) why did the Police not register the FIR immediately when the vehicle driven by the detenue was intercepted by the Dariapur police, especially when the interception was made on account of communication of the alleged accident and fleeing away of the driver? (ii) Why was the vehicle not impounded? (iii) why was the drive not produced before the Court? and (iv) why was no action promptly taken against the officials?” The Court further said that when there is no statement of any person witnessing the occurrence of the accident, then how did the police get to know of such facts?

Reliance was also placed on, D.K. Basu v. State of W.B., (1997) 1 SCC 416; wherein the Supreme Court laid down the guidelines which must be followed by every police officer conducting arrest. To highlight the same;

  • The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations.
  • The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
  • A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  • The time, place of arrest and venue of custody of an arrestee must be notified by the Police where the next friend or relative of the arrestee lives outside the District or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
  • The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  • An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
  • The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  • The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory.
  • Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
  • The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  • A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Furthermore, the Court referred Joginder Kumar v. State of U.P., (1994) 4 SCC 260, Lalita Kumari v. State of U.P., (2014) 2 SCC 1, Gangaram v. State of Madhya Pradesh, 2020 SCC OnLine SC 623, Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Detention of vehicle without FIR or Seizure Memo, Power and procedure for detaining vehicles

With respect to detention of vehicle, the Court referred Section 102, Section 451, Section 457 of Code of Criminal Procedure, 1973 and Section 207 of the Motor Vehicles Act, 1988. Also, it placed on record the findings of Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283, wherein the Court held that the power of disposing of the property seized by police officers should be exercised expeditiously and judiciously, for serving the purpose, namely; (i)Owner of the article would not suffer because of its remaining unused or by its misappropriation (ii)The Court or the Police would not be required to keep the article in safe custody (iii)If the proper panchanama before handing over possession of an article is prepared, it can be used in evidence instead of its production before the Court, in a trial. If necessary, evidence could also be recorded describing the nature of the property in detail and (iv) This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

The Court conclusively remarked, “The vehicle seized, although without the registration of search memo or an F.I.R under Section 154 of the Code of Criminal Procedure, 1973, is liable to be disposed of as per the provision under section 451 and 457 of the Code. Owing to the same, by our order dated 20th July, 2020, the petitioner was granted liberty to file a petition for provisional release of the vehicle, that is, Milk Tanker.”

Right to Compensation under Articles 32 & 226 of the Constitution of India for Violation of Fundamental Rights

Delving upon the aforementioned issue, the Court identified a catena of judgments including, Rudal Shah v. State of Bihar, (1983) 4 SCC 141, wherein the petitioner was illegally detained for over fourteen years despite his acquittal in a full- dressed trial, the Supreme Court upheld the grant of compensation for illegal detention under a petition of Habeas Corpus, “taking into consideration the grave harm done”. Bhim Singh v. State of J&K, 1984 Supp SCC 504, further reinstated the right of compensation for illegal detention. Similarly, In Nilabati Behara v. State of Orissa, (1993) 2 SCC 746, petitioner’s son was kept in unlawful police custody and his dead body found near the railway tracks. Apparently, he died as a result of the multiple injuries inflicted to him while being in police custody. The Court upheld the grant of compensation to the mother of the deceased for contravention of his fundamental right under Article 21. It further upheld that the enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

T.C. Pathak v. State of U.P., (1995) 6 SCC 357, bears close connection with the facts of the present case as the detainee herein was kept in police custody for days without any registered FIR or informing any ground of arrest against him. The father filed a writ of Habeas Corpus for production of his son, forcibly taken away from the shop. Supreme Court held that even though the detainee was released and the prayer in Habeas Corpus petition did not survive, nevertheless, on account of denial of the right of personal liberty guaranteed under Article 21, the detainee deserved to be compensated. Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757, was further cited by the Court, to put forth the effect of illegal detention upon the alleged police officials. Supreme Court, in this case, directed initiation of contempt proceedings and perjury cases against the police officials who were, by way of affidavits to the Court, acting to cover up their acts of illegal detention of the petitioners.

Upon balancing the facts and circumstances of the given case, the Court observed, “The instant case is one that is fit for hefty compensation to be levied on the State for violation of the fundamental right to life and liberty by way of illegal detention of Jitendra Kumar @ Sanjay Kumar, the detenue.”

Court conclusively summarized the law expounded by judicial pronouncements under the following principles

LIBERTY

“Right under Article 21 cannot be kept in abeyance for convicts, undertrials and prisoners. Allowing Police to violate fundamental rights of such persons would amount to anarchy and lawlessness, which cannot be permitted in a civilized society.”

BALANCE BETWEEN NATIONAL SECURITY AND INDIVIDUAL LIBERTY

“Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them.”

ARREST

“Violation of fundamental rights under Article 21 and 22(2) – Police officers who are custodians of law and order should have greatest respect for the personal liberty of citizens and should not become depredators of civil liberties. Their duty is to protect and not to abduct.” 

DUTY AND POWER TO REGISTER F.I.R.

“While prompt registration of FIR is mandatory, checks and balances on power of Police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance has to be maintained between the interest of society and liberty of an individual.”

TORTURE/CUSTODIAL DETENTION AND/OR DEATH

“Torture involves not only physical suffering but also mental agony. It is violation of human dignity and destructive of human personality under Articles 21, 22 and 32 – Custodial Violence – Torture/rape, death in police custody/lock-up infringes Article 21 as well as basic human rights. State terrorism is no answer to terrorism.” 

HABEAS CORPUS JURISDICTION/ RIGHT TO GRANT COMPENSATION

“The refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention.”

 BALANCE TO BE MAINTAINED WHILE GRANTING RELIEF OF BAIL TO THE ACCUSED

“The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first — the criminal or society, the law violator or the law abider.”

 RIGHT OF ACCUSED

“(i) An arrested person has a right to know of his entitlement of supply of information of detention to friend, relative or other person told that he has been arrested and where he is being detained (ii) Period of detention under section 151 Cr. P.C. cannot exceed 24 hours and in absence of anything else, after expiry of that period the detainee must be released (iii) An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. (iv) Fair and Independent investigation is crucial to preservation of rule of law and is the ultimate analysis of liberty itself.”

 REPUTATION

“Since arrest and detention can cause irreparable damage to a person’s reputation a police officer must be guided and act according to principles laid down by the Courts when deciding whether to make an arrest or not.”

 SENSITIZING POLICE

“Police need to be trained and sensitized all of rights of citizens and maintaining law and order in a civilized manner.”

 PROCEEDINGS AGAINST POLICE OFFICIAL

“Mandatory Requirements as sated in D.K. Basu case, to be followed by police personnel while arresting or detaining a person are in addition to constitutional and statutory safeguards. Non-compliance with the same would make official liable for departmental action.”

 ROLE AND PROBLEMS OF TRUCK DRIVERS

“The drivers of commercial vehicles, especially the Truck Drivers, in India occupy a very unique and vital place in the immense Transportation sector which serves as the backbone of the Indian Economy. The road transport sector contributes almost 85-90% of passenger traffic 60-65% of freight traffic. Drivers of commercial vehicles are uniquely tasked with the supply of nearly all goods required for daily sustenance across the whole nation. Their life is defined by great hardship and sacrifice. Some of the issues faced by truck drivers can be highlighted as follows: a) Lack of guidelines and regulations regarding the working hours and payment who suffer from unstable and poor personal relationships due to the high-pressure job requirements b) Lack of proper facilities of hygiene, rest and proper food c) pressures of the job, leads to various physical and mental health issues including obesity, diabetes and heart diseases. There is an immediate need to improve the conditions of truck drivers in the State of Bihar as well as across the country. It is apparent that they are invaluable to the movement of the Economy and face widespread discrimination and constant hardships. The State ought to consider constituting a body to address these issues. There is an immediate need to address the human rights violations faced by them.”

 Decision

While allowing the present petition, the Court issued necessary directions to the respondent authorities, including, payment of compensation to the tune of Rs 5,00,000 for the violation of the petitioner’s Fundamental Right under Article 21.[Sumit Kumar v. State of Bihar, 2020 SCC OnLine Pat 2700, decided on 22-12-2020]


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Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present petition held, “The service of the grounds of detention on the detenue is a very precious constitutional right and the object behind the same is to enable the detenue to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenue unless he is in a position to understand the same.”

Brief Facts

The present petition is moved against the order dated 17-07-2020, issued by District Magistrate, Samba (“Detaining Authority”) whereby Chain Singh son of Late Shri Rawail Singh, resident of Village Birpur, District Samba (“detenu”) has been placed under preventive detention and lodged in Sub Jail, Hiranagar.

 Contentions

Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with and that the allegations made against the detenue in the grounds of detention are vague. Furthermore, it has been pleaded that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person and neither has the petitioner been informed of the rightful authority against which he can move his representation.

The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure that the grounds of detention were read over to the detenue. Moreover, there has been proper application of mind for detaining and that the detenue has been provided with all the requisite material related to the order.

 Issue

Whether the detention order made by the authority complying with all due procedure and Constitutional safeguards?

 Observation

Rejecting the argument of the respondent counsel, the Court held, “In the instant case it is clear from the detention record that the petitioner has not been furnished the translated version of the grounds of detention nor has he been provided the material on the basis of which grounds of detention have been formulated. Further, the executing officer has not filed an affidavit to show that he has fully explained the grounds of detention to the detenue in the language he understands.” The Court went on to say, “Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.”  With respect to the contention, that the order is a mere reproduction of the dossier lacking any application of mind, the Court placed reliance on the case of Jai Singh v. State of J&K, (1985) 1 SCC 561; wherein the Court examined the order and the dossier, concluding that the format, usage of words and the manner of expression in both the said documents remain essentially the same.

Decision

While allowing the present petition, the Court quashed the impugned order dated 17-07-2020 and further directed the authorities concerned to release the detenue from the preventive custody.[Chain Singh v. Union Territory of J&K,  2020 SCC OnLine J&K 539, decided on 12-10-2020]

Counsel for the Petitioner: S. M. Chowdhary, Advocate

Counsel for the Respondent: Aijaz Lone, Dy. AG.


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Case BriefsHigh Courts

Gujarat High Court: S.H. Vohra, J., allowed a petition which was filed aggrieved against the order of detention passed by the respondent – detaining authority in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 detaining the petitioner – detenue as defined under Section 2(b) of the Act.

The counsel for the detenue, Jayshree C Bhatt, submitted that the order of detention impugned in this petition deserves to be quashed and set aside on the ground of registration of offences under Sections 65(e), 81, etc. of the Prohibition Act by itself cannot bring the case of the detenue within the purview of the definition under Section 2(b) of the Act. It was further submitted that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order and that it is not possible to hold on the basis of the facts of the present case that activity of the detenue with respect to the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large.

The Court while allowing the appeal held that considering the facts and circumstances of the case, it appeared that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, and the allegations as have been leveled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of Section 2(b) of the Act. The Court referred to the Supreme Court judgment of Pushker Mukherjee v. State of West Bengal, (1969) 1 SCC 10 where the distinction between ‘law and order’ and ‘public order’ had been clearly laid down. The Court had observed as follows:

            “Does the expression “public order” take in every kind of infraction of order or only some categories thereof? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.”

The Court explained that unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril of disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of Section 2(b) of the Act and in the present case except general statements, there was no material on record which showed that the detenue was acting in such a manner, which was dangerous to the public order.[Lalman v. State of Gujarat, R/Special Civil Application No. 10137 of 2019, decided on 09-10-2019]


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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

Uttaranchal High Court: Sharad Kumar Sharma, J., while addressing a habeas corpus petition observed that,

The intimacy of marriage, including the choice of partner, which individual make, on whether or not to marry and whom to marry are the aspects which exclusively lies outside the control of the State or the Society.

Habeas Corpus to be issued

Issuance of Habeas Corpus has been sought on the ground that detenue has been wrongly confined by respondents 4 and 5 who are the mother and brother of detenue.

Settled legal preposition laid down by High Courts of Country:

“..a consensual relationship between a common sex is not barred and it is held not to be an offence under the law.”

Detenue is a major and had been enjoying a consensual relationship with the petitioner since the year 2016.

It has also been specified that the continuance of a consensual relationship between the persons belonging to the same sex is not in debate in the present petition.

Questions raised

whether two adult persons of same gender can be permitted to be in a relationship?

whether they can be permitted to live together?

whether the liberty of a person, who had attained majority can be curtailed?

Soni Gerry v. Gerry Douglas, AIR 2018 SC 346

Supreme Court in the above matter had observed that “it needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance.

A person is entitled to make his or her choice

“…daughter is entitled to enjoy her freedom as the law permits and the courts shall not assume the role of a super guardian being moved by any kind of sentiments of the mother or egotism of the father.”

In the present case, while observing the Supreme Court’s decision as stated above, it is to be noted that 

even if parties who are living together belonging to the same gender are not competent to enter the wedlock, still they have the right to live together even outside the wedlock.

Adding to the above-stated position — live-in relationship has now being recognized by the legislature itself, which has found its place under the provisions of protection of women from Domestic Violence Act.

Another aspect to be noted is that it is essential to remember that the song of liberty is to be sung with sincerity and at the exclusive choice of an individual is appropriately respected and conferred its esteemed status as the constitution guarantees.

Bench in view of the above stated that,

consensual cohabitation between two adults of the same sex cannot be illegal, far or less a crime because its a fundamental right which is being guaranteed to the person under Article 21 of the Constitution of India.

Matters like the present one, it is exclusively the statement recorded of the detenue, who is said to be wrongfully confined and who is said to be having a consensual or a lesbian relationship with the petitioner, which becomes of prime importance, to be considered while parting with the judgment.

Petitioner had in the first instance conceded about her relationship with the petitioner and expressed her decision to live together. Adding to the sid, she also expressed that she has been illegally detained by her mother and brother.

On 8th June, 2020 when detenue’s statement was against recorded she stated that she was not willing to continue living in a consensual relationship with the petitioner. Further, she added that she had no pressure from her mother or brother.

Since the contradiction in statements appeared, Court directed the respondent’s 4 and 5 along with detenue to file their affidavits with their statements.

Again on 11th June, 2020 when the detenue appeared before the Court, she by way of reiteration submitted that she is making the statement consciously and at her free will, that she wants to lead her independent life and does not want to continue with the consensual relationship with the petitioner.

Thus, in view of the above statements, in Court’s opinion, the writ of habeas corpus would not be tenable and thus it was dismissed. [Madhu Bala v. State of Uttarakhand, 2020 SCC OnLine Utt 276 , decided on 12-06-2020]

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

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]