21 Sep 2022 11:57 AM GMT
The Jammu and Kashmir and Ladakh High Court, while quashing a preventive detention order, observed that offence of cheating and fraud, without having wider ramifications, cannot be made the basis for issuing a detention order in the name of maintaining public order. Justice Sanjeev Kumar pronounced the judgement on September 20 in a plea against the detention order passed by...
The Jammu and Kashmir and Ladakh High Court, while quashing a preventive detention order, observed that offence of cheating and fraud, without having wider ramifications, cannot be made the basis for issuing a detention order in the name of maintaining public order.
Justice Sanjeev Kumar pronounced the judgement on September 20 in a plea against the detention order passed by District Magistrate, Pulwama under the Public Safety Act on May 19. In terms of the order, the petitioner had been put under preventive detention "with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order."
The petitioner's counsel before the court argued that the order of detention was based on the allegations contained in an FIR registered under Section 420, 120B IPC against him. The alleged criminal act can, by no means, be treated as an act to harm to public order, it was contended.
"The material relied upon by the detaining authority to derive subjective satisfaction with regard to necessity of putting the detenue under preventive detention was not supplied to the detenue in the language, which he could understand or read, thereby incapacitating him from making an effective representation," Advocate N.A Ronga argued.
Ruling that the detention of the petitioner is not sustainable in law for more than one reason, Justice Kumar observed that it clearly transpires that the petitioner has been put under preventive detention primarily for his involvement in the FIR No.123/2022.
The allegations, even if taken to be true on their face value, do not constitute an act which has the potentiality of disturbing the public order, said the court.
Deliberating on the differences between the terms 'Law & Order' and 'Public Orders' the bench explained that the terms look deceptively similar but both have different connotations.
"While former is a continual ongoing term, the latter is more temporal in nature as in the case of public order, the community or the public at large is affected by a particular action whereas the act or acts that affect only few individuals may be a case of law and order," said the court.
The court said mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects "law and order‟ but before it can be said to affect public order, it must affect the community or public at large.
"Unless the criminal act attributed to the detenue has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basis of preventive detention", the bench added.
The court further said the allegations in the FIR registered against the detenue may be a problem of law and order but would not certainly come within the purview of the term "public order‟. There is nothing in the grounds of detention to demonstrate that the petitioner's activities - related to which an FIR stood registered - had an impact on disturbing even the tempo of life of the community or had the effect of affecting the public at large, it added.
"The offences with which the detenue has been charged in the FIR are substantive offences and the ordinary law of the land is sufficient to deal with the detenue, if he is ultimately found guilty of the allegations leveled against him in the FIR. The apprehension of the detaining authority that the detenue was likely to get bail and in that event, his remaining at large would be detrimental to the maintenance of peace and public order, cannot be basis of putting the detenue under preventive detention," said the court.
The court observed that the detaining authority as well as the State machinery is well within its rights to oppose the bail and, if granted, take remedial measures by way of approaching the higher forum.
"The simplicitor case of cheating and fraud, without having wider ramifications, cannot be made the basis of issuing the detention order in the name of maintaining the public order," the bench said.
The court allowed the petition and directed that the petitioner be released from the preventive detention forthwith, unless, involved in any other case.
Case Title: Khursheed Ahmad Bhat Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 165
Click Here To Read/Download Judgment