Opening Fire At Police Is Sufficient To Disturb Public Order, Justifies Preventive Detention: J&K&L High Court
The Jammu & Kashmir and Ladakh High Court has held that the act of opening fire upon police personnel is, by itself, sufficient to disturb public order and justify preventive detention under the Jammu and Kashmir Public Safety Act, 1978.Dismissing a challenge to a preventive detention order, the Court held that where an individual's conduct transcends an ordinary breach of law and order...
The Jammu & Kashmir and Ladakh High Court has held that the act of opening fire upon police personnel is, by itself, sufficient to disturb public order and justify preventive detention under the Jammu and Kashmir Public Safety Act, 1978.
Dismissing a challenge to a preventive detention order, the Court held that where an individual's conduct transcends an ordinary breach of law and order and creates fear and insecurity in society, it squarely falls within the ambit of public order.
The Court was hearing a habeas corpus petition challenging an order passed by the District Magistrate, Jammu under Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978, whereby the petitioner had been preventively detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
A Bench of Justice Rajnesh Oswal observed,
“...The act of opening fire upon law enforcement agencies is, in itself, sufficient to instill a sense of fear and insecurity in the citizenry, and inherently possesses the propensity to disturb public order. If these individuals are permitted to remain at large, total breakdown of public order would follow.”
The petitioner had challenged the detention order primarily contending that the constitutional and statutory safeguards governing preventive detention had not been complied with. It was argued that the grounds of detention were neither supplied nor explained in a language understood by the detenue and that copies of the FIRs, seizure memos, FSL reports, site plans, bail orders and other documents relied upon by the detaining authority were also not furnished, thereby depriving the detenue of his constitutional right to make an effective representation.
It was further alleged that the grounds of detention were vague and stale, that the petitioner had not been informed of his right to make a representation before the Advisory Board and that the detention order reflected non-application of mind since both the police dossier and detention order bore the same date.
The respondents opposed the petition, submitting that the detention order had been passed after due application of mind on the basis of the dossier submitted by the Senior Superintendent of Police, Jammu. They asserted that the detenue was a habitual offender involved in multiple serious offences, including attempt to murder, assault and use of illegal firearms, with six FIRs and six Daily Diary Reports registered against him. According to the respondents, his activities had created fear and insecurity among the public and adversely affected public order.
It was also submitted that all constitutional and statutory safeguards had been complied with and that the grounds of detention together with all relied upon material had been supplied and explained to the detenue in a language understood by him.
Court's Observation:
The High Court first rejected the contention that the detenue had not been supplied with the material relied upon by the detaining authority. Upon examining the detention record, the Court found that the detenue had acknowledged receipt of 155 leaves comprising the detention warrant, notice of detention, grounds of detention, police dossier and all relevant documents.
The record further showed that the contents had been read over in English and explained in Hindi/Dogri, which the detenue fully understood. Since no material had been produced to rebut the official record, the Court rejected the challenge.
The Court also rejected the contention that the detenue had not been informed of his right to make a representation before the detaining authority. While the petitioner relied upon the receipt accompanying the grounds of detention, the Court found that the notice of detention specifically informed the detenue of his right to make a representation not only to the Government but also to the District Magistrate.
Dealing with the argument that the police dossier and detention order having been issued on the same date demonstrated a mechanical exercise of power, the Court held that the mere identity of dates could not automatically establish non-application of mind. It observed that “What is paramount is whether the detaining authority subjected the material to independent scrutiny before recording its subjective satisfaction.”
After examining the grounds of detention, the Court concluded that they reflected an independent assessment of the detenue's conduct rather than a mere reproduction of the police dossier.
On the principal issue of whether the allegations pertained merely to law and order or extended to public order, the Court attached particular significance to an FIR wherein it was alleged that two persons riding a motorcycle opened indiscriminate fire upon a police party during routine patrolling with the intention of killing police personnel.
It noted that the police had retaliated in self-defence, one accused sustained a bullet injury and both accused, including the petitioner, were apprehended and Illegal firearms and live cartridges were allegedly recovered from their possession. The Court also noted that although the petitioner had been granted bail, an application seeking cancellation of bail had already been moved.
The Court held that such conduct could not be viewed as an ordinary crime against individual victims. It observed that “such overt acts send shockwaves of terror through the community and disrupt the peaceful flow of societal life, squarely impacting public order.”
Reiterating the settled distinction between law and order and public order, the Court held that while every disturbance of public order involves a breach of law and order, every breach of law and order does not necessarily disturb public order. According to the Court, the detenue's alleged conduct fell squarely within the ambit of public order.
It further found that the detaining authority had independently scrutinised the detenue's criminal record, past conduct and recent activities before arriving at its subjective satisfaction that his release posed a real threat of recurrent prejudicial behaviour.
Finally, the Court reiterated that judicial review of preventive detention under Article 226 is limited. It observed,
“This Court does not sit in appeal over the material on record to supplant the subjective satisfaction reached by the detaining authority.”
The Court held that its jurisdiction is confined to examining compliance with constitutional and statutory safeguards and determining whether the order suffers from mala fides or total non-application of mind. Finding the detention order supported by cogent material and procedural safeguards duly complied with, the Court declined to interfere.
Accordingly, the Court dismissed the habeas corpus petition and upheld the detention order passed under the Jammu and Kashmir Public Safety Act, 1978.
Case Title: Arjun Kumar Through His Father Sham Lal v. UT of J&K & Ors.
Citation: 2026 LiveLaw (JKL) 326
Appearances
Petitioner: Advocate Nikhil Choudhary
Respondents: Deputy Advocate General P. D. Singh