J&K Public Safety Act Cannot Be Used As Shortcut To Circumvent Due Process Established Under Code of Criminal Procedure: J&K High Court

Quashing a preventive detention order the Jammu and Kashmir and Ladakh High Court has underscored that the J&K Public Safety Act, 1978 (PSA), cannot be wielded as a shortcut by preventive detention authorities to bypass the due process established under the Code of Criminal Procedure, 1973 (CrPC).In allowing a habeas corpus plea against a detention order premised on multiple FIR's against the detenu Justice Rahul Bharti observed, “What is meant to be effectively cured and dealt with under section 110 of the Code of Criminal Procedure, 1973 cannot be diverted to be dealt with by the application of prevention detention mode of J&K Public Safety Act, 1978 by depriving a person of his personal liberty for any given period of time. A preventive detention cannot be resorted to by the debunking ordinary criminal procedure and trial of cases”. The case arose when the District Magistrate of Jammu issued a preventive detention order against Hamid Mohd. under Section 8(1)(a) of the PSA, labeling his activities as prejudicial to the maintenance of public order. Hamid, through his brother, filed a writ petition challenging this order on 29th December 2023, seeking his release and the quashing of the detention.The petitioner, represented by Advocate A. P. Singh, contended that the preventive detention was unjustified, as the alleged activities cited in the detention order did not amount to a threat to public order but were rather matters of law and order, which should be addressed under the CrPC. On the other hand, the respondents, represented by AAG Rajesh Thappa, defended the detention as necessary for maintaining public order, given Hamid's criminal history.Court's Observations:Meticulously dissecting the grounds for Hamid's detention, which included several FIRs ranging from 2017 to 2023, predominantly under Section 188 IPC and the Prevention of Cruelty to Animals Act, 1960 the Court emphasized that these FIRs pertained to law and order issues, not public order, and therefore, the use of the PSA was inappropriate.Justice Bharti drew support from the Supreme Court's rulings in K. K. Saravana Babu Vs State of Tamil Nadu (2008)9 SCC 89 and Arun Ghosh Vs State of West Bengal (1970)1 SCC 1998, which clarified the distinction between "public order" and "law and order." The court also referenced Sama Aruna Vs State of Telangana (2018)12 SCC 150, stressing that preventive detention should not be based on stale incidents or used as a substitute for regular criminal proceedings. “Maintenance of Public Order” as being one of the grounds of subjecting a person to preventive detention is not to be easily assumed to be readily available by a just reference to series of FIRs reporting crimes against a particular individual which would at the most render him to be branded as a habitual offender for which the Code of Criminal Procedure, 1973 in itself has conceived a preventive measure under section 110”, the bench remarked. The Court further noted that the dossier submitted by the SSP Jammu to the District Magistrate was incomplete, as it did not disclose the status of trials related to the FIRs. This omission, according to the Court, indicated a lack of thoroughness in the decision-making process, undermining the validity of the detention order.In light of these observations, the High Court declared Hamid Mohd.'s detention under the PSA as illegal and ordered his immediate release, barring his involvement in any other pending legal matters.Case Title: Hamid Mohd. Vs UT of J&K Citation: 2024 LiveLaw (JKL) 243Click Here To Read/Download Judgment

J&K Public Safety Act Cannot Be Used As Shortcut To Circumvent Due Process Established Under Code of Criminal Procedure: J&K High Court

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