PSA | Jammu & Kashmir High Court Pulls Up District Magistrate For Wrongly Mentioning Detenu's Name, Issuing Corrigendum As "Cover Up"

The Jammu and Kashmir High Court recently slammed a District Magistrate for wrongly mentioning the name of detenu in the operative part of the preventive detention order issued under the J&K Public Safety Act and issuing a "so-called" corrigendum after detention.

Ashfaq Ahmed, the petitioner was detained on March 21. Operative portion of the preventive detention order however mentioned the name of one Sadam Hussain. Claiming this to be a typographical error, the DM of Ramban issued a corrigendum on April 3.

"This Court is not convinced that the error and omission of application of mind on the part of the District Magistrate, Ramban (UT of Jammu & Kashmir) can be diluted by referring it to be a typographical error. Even a bare summon from a court of law meant for a particular person to appear before it in a legal proceedings if addressed to the name of a wrong person is not a matter of typographical error but a matter of slip of mind of the judicial officer who lend his seal and signature to send summon to a person to appear in the Court, who otherwise was not supposed to be called. Any judicial officer having acted in such a manner is not entitled to earn good performance commendation from higher judicial authority," a Bench of Justice Rahul Bharti remarked.

The judge cautioned that when it comes to a matter of privation of a citizen’s fundamental right to life and personal liberty by the decision of a government, purportedly acting under the umbrella of procedure established by law, then the onus of vigilance and diligence is always resting on the shoulders of the government.

"In a case if there happens to be any lapse of vigilance and diligence at the end of the government/ public authority, then a decision/order so issued from its end qua a person suffering loss of his fundamental right under article 21 of the Constitution of India is liable to suffer a judicial checkmate for the reason that the fundamental right to life and personal liberty of a citizen is not a matter of play thing for the erring government/ public authority. The present case is a live exhibit of that lapse of vigilance and diligence on the part of the government/public authority which has come to subject the petitioner to suffer preventive detention for a period lasting up to three months," it added.

Court also pointed that such an error suggests that grounds of detention were not read over to the detenu, as otherwise mandatory in law, else he would have been perplexed as why he has been detained instead of said Sadam Hussain.

“Two officers of high rank i.e. SSP Ramban and Superintend District Jail Jammu reading and explaining the grounds of detention, obviously carried out the reading of grounds of detention as a ritual otherwise it is worth not acceptance that the SSP, Ramban would not have noticed a glaring contradiction in the grounds of detention which he or she himself read over to the petitioner and similar is the case of Superintendent District Jail, Jammu in reading over the grounds of detention as a matter of ritual.”

The court also expressed deep concern over the District Magistrate's subsequent attempt to rectify the error through a so-called corrigendum and observed that by the time this corrigendum was issued, the original detention order had already been approved by the government and therefore, the corrigendum appears to be a mere facade, providing cover for the flawed grounds of detention.

Furthermore, the court also noted that the government itself approved the flawed detention order, along with its accompanying grounds of detention, without detecting the glaring errors and observed, “With such a serious infirmity eroding the detention order and consequent Govt. order, the entire prevention detention exercise with respect to the petitioner collapses under its own weight’.

In view of these glaring procedural infirmities the bench held the preventive detention of the petitioner as inherently illegal and accordingly set it aside.

Case Title: Ashfaq Ahmed Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 176

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