Mere Pendency Of Criminal Cases Does Not Bar Preventive Detention If Material Indicates Threat To Public Order: J&K&L High Court

The Court observed that preventive detention is a preventive, and not punitive, measure, and can validly be resorted to where the material before the detaining authority reasonably establishes that the detenue's activities are prejudicial to the maintenance of public order.

The Court was hearing a habeas corpus petition challenging an order passed by the District Magistrate, Anantnag, directing the preventive detention of the petitioner under the Jammu and Kashmir Public Safety Act, 1978, to prevent him from acting in any manner prejudicial to the maintenance of public order.

The petitioner assailed the detention on multiple grounds, including delay in execution of the detention order, non-supply of translated material, non-application of mind by the detaining authority and the absence of compelling reasons to invoke preventive detention while he was already facing criminal prosecution.

A Bench of Justice Sanjay Dhar, while dismissing the petition, observed,

"...Merely because the petitioner is facing prosecution in substantive offences in a number of FIRs, the detaining authority is not prohibited from taking resort to the extraordinary measure of preventive detention provided there is material on record from which it can reasonably be inferred that the petitioner is a threat to public order."

Dealing with the petitioner's contention regarding delay in furnishing the grounds of detention, the Court examined the detention record and found that although the detention order had been passed on December 1, 2025, it was executed only on December 19, 2025. On the very date of its execution, the petitioner was supplied with the grounds of detention and the entire material relied upon by the detaining authority, it noted.

Rejecting the contention of delay, the Court observed that there could be no requirement in law to furnish the detention material before execution of the detention order and held that the respondents had complied with the procedural safeguards contemplated under the Public Safety Act.

The Court next considered the plea regarding non-supply of translated material. Referring to the detention record, the Court found that the petitioner had been furnished copies of the grounds of detention, warrant of detention, notice of detention, police dossier and seventy-seven leaves of supporting documents.

The Court further found that the Executing Officer had certified that the contents of all documents were read over and explained to the petitioner in Urdu, a language fully understood by him. The Executing Officer had also sworn an affidavit affirming compliance with this requirement. The Court therefore held,

".. The respondents have not only furnished the entire material that has been relied upon for passing the impugned order of detention but they have also explained contents of the same to the petitioner in the language which he understands."

Turning to the principal contention that preventive detention was impermissible because the petitioner was already facing criminal prosecution, the Court examined the petitioner's criminal antecedents recorded in the grounds of detention.

The Court noted that the petitioner had earlier been detained under the Public Safety Act, had been implicated in several criminal cases in Districts Samba, Nagrota, Larnoo, Ramban and Kokernag, and was alleged to be involved in offences including attempt to murder, dacoity, rioting, bovine smuggling, cheating, assault and criminal intimidation. The Court observed that despite earlier preventive measures and criminal prosecutions, the petitioner's alleged criminal activities had continued unabated.

The Bench observed that the detaining authority had taken into account the petitioner's repeated involvement in criminal cases over several years and had recorded its subjective satisfaction that his continued activities posed a threat to public order. The Court observed,

".. The fact that the petitioner has been found involved in at least ten criminal cases registered over a span of last three years is certainly a relevant factor which indicates habitual criminality on his part."

The Court further noted that the criminal activities attributed to the petitioner reflected a continuing pattern of intimidation of the public and, therefore, the inference drawn by the detaining authority that his activities had generated widespread fear could not be said to be without foundation.

In support of this conclusion, the Court relied upon the decisions of the Supreme Court in Haradhan Saha v. State of West Bengal & Ors. (1975), Naresh Kumar Goel v. Union of India (2005) and Union of India v. Dimple Happy Dhakad (2019), wherein it was consistently held that preventive detention is distinct from criminal prosecution and may be ordered before, during or even in the absence of prosecution where the circumstances so warrant.

Reiterating the legal position, the Court observed,

"... Preventive detention has nothing to do with the commission of an offence by the detenue or any prosecution against him. Preventive detention can be ordered before or during the prosecution and even with or without prosecution or criminal case against the detenue."

The Bench held that where there exists sufficient material enabling the detaining authority to reasonably conclude that a person's activities are prejudicial to public order, pendency of criminal prosecution does not inhibit recourse to preventive detention. It further observed that the subjective satisfaction arrived at by the detaining authority on the basis of such material is ordinarily not open to judicial review.

Holding that the detention order had been passed after due compliance with the procedural safeguards prescribed under the Public Safety Act and that there was sufficient material before the detaining authority to conclude that the petitioner's activities posed a threat to public order, the High Court found no ground to interfere with the impugned order. Accordingly, the habeas corpus petition was dismissed.

Case Title: Anwar Jan (Choudhhary) v. UT of J&K & Ors.

Citation: 2026 LiveLaw (JKL) 287

Appearances

For the Petitioner: Mr. M. A. Goni, Senior Advocate, with Ms. Tanzeela, Advocate.

For the Respondents: Mr. Ilyas Nazir Laway, Government Advocate.

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