Personal-Enmity Assaults Are “Law And Order” Issue, Not Grounds For Preventive Detention: J&K&L High Court

Justice Sanjay Dhar observed that the mere fact that a person is involved in multiple criminal cases does not bring his conduct within the ambit of “public order” unless the incidents have the potential to disturb the flow of life of the community.

The Court accordingly held that the ordinary criminal law was sufficient to deal with the alleged offences and that the extraordinary power of preventive detention could not have been invoked in the circumstances of the case.

The judgment came on a habeas corpus petition filed by Farida Bi, wife of Mohd. Yousuf, challenging detention order passed by the District Magistrate, Poonch under the Jammu and Kashmir Public Safety Act. The detention order referred to four FIRs registered against Yousuf at Police Station Mendhar.

The first FIR concerned an incident involving a Panchayat employee under Section 353 RPC. The second arose from an attack on Mohd. Adrees Khan, with prior enmity between Yousuf and the injured established during investigation. While allegations of snatching and theft were not substantiated, Sections 341 and 323 RPC were found established.

The third FIR related to a wedding-function altercation that escalated into a fight, with various BNS offences established against Yousuf, though not the allegation of attempt to murder. The fourth concerned an alleged assault by Yousuf and his associates on a complainant party travelling towards Jaba, leaving one person grievously injured; the State had also sought cancellation of Yousuf's bail in that case.

Challenging the detention, the petitioner contended that the incidents relied upon by the detaining authority, even if accepted in their entirety, did not have the potential to disturb public order. It was argued that the incidents were essentially the result of personal disputes and could, at best, constitute breaches of law and order.

The respondents, however, defended the detention on the basis of Yousuf's criminal antecedents and alleged continuing prejudicial activities. They maintained that the District Magistrate had arrived at the requisite subjective satisfaction after considering the material placed before him and that all constitutional and statutory safeguards had been complied with.

Court can examine whether detaining authority understood its power

Justice Dhar first dealt with the scope of judicial review in cases of preventive detention. Relying upon the Supreme Court's judgment in Ameena Begum v. State of Telangana, 2023 INSC 788, Justice Dhar observed that although a Court ordinarily does not examine the sufficiency of the material forming the basis of subjective satisfaction, it can examine whether the detaining authority has correctly understood the scope of its statutory power.

The Court can also examine whether relevant circumstances were considered, whether the power was exercised for the purpose for which it was conferred and whether there existed a live and proximate link between the past conduct and the imperative need to detain, the court underscored.

Thus, the High Court held that it was open to it to determine whether the incidents relied upon in the detention order had the potential to disturb public order or merely constituted law and order problems.

For explaining this distinction, the Court relied upon the Supreme Court's judgment in Ram Manohar Lohia v. State of Bihar. The Supreme Court had explained the relationship between law and order, public order and security of the State through the analogy of three concentric circles, law and order being the largest, public order the next, and security of the State the smallest.

Consequently, an act may affect law and order without affecting public order. The determining consideration is the degree of disturbance and its effect upon the life of the community.

The High Court also relied upon Kuso Sah v. State of Bihar, where the Supreme Court cautioned that the power to detain a person without the safeguard of a criminal trial is too drastic to permit a lenient construction.

Justice Dhar accordingly held that where the offending acts are directed merely against an individual and do not disturb the flow of life of the community, the matter remains one of law and order, rather than public order warranting preventive detention.

Applying these principles, the High Court examined the four FIRs individually. The Court found that the incidents were “confined to personal enmity between the petitioner and the complainant party” and were “individualistic in nature.”

Justice Dhar noted that the first incident dated back to 2018 while the latest was from 2026, but the fact that similar incidents had occurred over this period did not, by itself, establish a disturbance of public order. The Court observed,

“Merely because the detenue has been charged with multiple offences cannot, in isolation, be taken as a basis for passing an order of detention.” It further held that the incidents affected private individuals and did not have the potential to disturb the flow of life of the community.

“A perusal of the particulars of the incidents, which form basis of the four FIRs registered against the petitioner, would reveal that these incidents are confined to personal enmity between the petitioner and the complainant party. These incidents are individualistic in nature”, the court remarked.

Court quotes Justice Rahul Bharti's 'pain in the neck' observation

Highlighting the above distinction, Justice Dhar invoked an earlier observation of his Brother Judge, Justice Rahul Bharti, describing such individualised criminal conduct in particularly vivid terms. The Court observed that the repeated incidents, in the words of Justice Rahul Bharti, were at best a “pain in the neck” for the authorities responsible for maintaining law and order, but did not amount to a disturbance of the flow of public life.

Thus, the reference to Justice Bharti's formulation was used by the Court not to minimise the alleged offences, but to distinguish persistent individual criminality from conduct having the wider societal impact necessary to invoke preventive detention.

Preventive detention 'cannot be invoked' for law and order problem

The Court also took note of the DSP's report, which stated that Yousuf was repeatedly involved in crimes and that multiple cases had been registered against him. However, the High Court found that the report did not set out particulars of the alleged repeated activities. Justice Dhar ultimately concluded that the existing legal framework for maintaining law and order was sufficient to deal with the offences attributed to Yousuf.

The High Court also noted that the State had already sought cancellation of Yousuf's bail in the 2026 FIR but, without awaiting the outcome of those proceedings, proceeded to invoke preventive detention. In the circumstances, the Court found the detention “indefensible.”

The detention order was consequently quashed, and Mohd. Yousuf was directed to be released forthwith, if he was not required in any other case.

Case Title: Mohd. Yousuf through his wife Farida Bi v. Union Territory of J&K & Ors.

Citation: 2026 LiveLaw (JKL) 326

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