Court: I will require bit more time to write judgement. We will finish hearing today. The adjournment i am seeking for today is, i will write till Tuesday. Till then hold your hands.
Sankaranarayanan: It does not sound good that the Court is seeking adjournment. I am taking it on me. I am seeking adjournment.
CGSC Ashish Dixit says that complete records were with magistrate before notice was issued.
ASG reading the impugned order.
Is there any other material except kalandra? Court asks.
ASG hands over some material to court.
ASG: Please see, there is a named person. He is an SI. He is named. It is not airy fairy.
ASG: 126 and 130 ride together. They are not disjunctive. They ride together in a scheme of prevention. The aspect of individual being prejudiced must weight to larger aspect of public tranquility and peace. If there is likelihood that someone may commit, 126 kicks in with 130. If you disjoin them then the entire intention of legislature will vanish.
Court: When liberty is under challenge, that too when it is preventive in nature, the only safeguard available to a petitioner is procedural. Procedure means requirements.
Court: When you look at Article 21 and the difference between due process of law and procedure established by law, under Article 21, we are looking at procedure established by law by which liberty is taken away.
130 only uses word “may.”: Court
ASG: 135 proviso A will not trump the latter part of 130.
130 notice when you are clubbing 130 and 136, in a 130 order, that should not mean magistrate has made premeditated mind… whether it was not prudent to have 130 order asking you to do what 130 says with 136 show cause notice followed by enquiry and then the proviso: Court
Court: Question is is there any application of mind on basis of which magistrate passes the order.
ASG: 126 has a wide band of the subjective satisfaction which need not translate itself into evidence or fact but should reflect what 126 information received, likely or may… 130 has four ingredients.
ASG: At the bottom of it is a petitioner who is mounting challenge on substance with clear mindset that there is something.
At the time when enquiry is made, when hearing is to be held on show cause notice, does these documents are supplied to other side for them to make a defence ? Court asks
Court: Lets assume that someone tells a magistrate that X was there shouting slogans, and on that basis, he issues 126. Before making an enquiry, without finding out X might not be there at all… Is is necessary or not for magistrate to do an independent search to satisfy himself that information received is credible in nature.