No Approval Of Advisory Board Is Required For Extending Period Of Detention If There Is Sufficient Cause: Jharkhand High Court

The Jharkhand High Court held that no approval of the Advisory Board is required for extending the period of detention if there is sufficient cause for detention of the concerned person.

The Court held thus in a Writ Petition seeking quashing of the order passed by the Under Secretary, Home, Jail and Disaster Management Department, Government of Jharkhand, by which the detention order was further extended for next three months allegedly without any sufficient cause.

A Division Bench comprising Justice Sujit Narayan Prasad and Justice Arun Kumar Rai observed, “… it is considered view of this Court that no approval of the Advisory Board is required for extending the period of detention in the light of the judgment rendered by the Hon’ble Apex Court in the case of Pesala Nookaraju (supra) wherein it has been observed that if once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and, on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention, then review of the detention order is not required by the State Government.”

The Bench explained that a person who is frequently engaged in committing or attempting or abating commission of an offence in terms of Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (IPC) would be an anti-social element.

Advocate Sonal Sodhani appeared for the Petitioner, while AAG-II Sachin Kumar appeared for the Respondents.

Case Background

The Superintendent of Police (SP), Latehar sent a letter to the Deputy Commissioner-cum-District Magistrate, recommending initiation of proceeding under Section 12(2) of Jharkhand Control of Crimes Act, 2002, as against the Petitioner. Subsequently, a proceeding was initiated by registering a case and then an order of detention was passed against the Petitioner. However, the duration of detention was not specified. Thereafter, an order was passed by the Respondent-Under Secretary specifying that the Petitioner has been detained for 3 months.

A show-cause notice was served upon the Petitioner and the report made by the Sub Divisional Police Officer (SDPO) specifically mentioned that as against the Petitioner, 5 FIRs and six sanhas were mentioned. The FIRs registered against the Petitioner were under the provisions of the Arms Act, 1959, IPC, and CLA Act. It was alleged that after completion of 3 months of detention, on the same facts with no new grounds and on the same list of cases, the detention of the Petitioner was further extended for next 3 months. It was further alleged that no information with respect to general nature of material allegation as against the Petitioner was ever mentioned in the notice. Being aggrieved, the Petitioner approached the High Court.

Issues for Consideration

The following two issues arose for consideration before the Court –

i. Whether the criminal activities of Petitioner come under the purview of definition of “Anti-social Elements’’ as defined under Section 2(d) of the Jharkhand Control of Crimes Act, 2002?

ii. Whether the approval of the Advisory Board is required for extending the period of detention?

Court’s Observations

With respect to the first issue, the Court said that if a person is not an antisocial element, he cannot be detained under the Act and the detaining authority should, therefore, be satisfied that the person against whom an order is made under Section 12 of the Act is an anti-social element as defined in Section 2(d) of the Act.

“Under sub-clause (i) of Section 2(d) of the Act, a person who either by himself or as a member of or leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI dealing with offences affecting the human body or Chapter XVII dealing with offences against property, of the Penal Code, 1860 is considered to be an anti-social element. Further the expression "habitually" means "repeatedly" or "persistently". It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit”, it noted.

The Court elucidated that the State Government is empowered to detain anti-social element if there is reason to fear that the activities of anti-social elements cannot be prevented otherwise than by the immediate arrest of such person.

“… from the FIRs mentioned in the detention order dated 18.11.2024 (Annexure-1), it appears that petitioner has nexus with the extremist organization and crime committed by the petitioner ranges to attempt to murder, extortion etc. and further the several cases under Arms Act has also been registered against the petitioner. Thus, it appears that petitioner habitually commits offences punishable under section Chapter XVI or Chapter XVII of the Indian Penal Code as defined in section 2(d)(i) of the Act”, it remarked.

The Court was of the view that the authority concerned has rightly considered that the act of the Petitioner comes under the purview of the “Anti-social Elements’’ as stipulated under Section 2(d) of the Jharkhand Control of Crimes Act, 2002 and hence, orders of detention on this score need no interference.

Coming to the second issue, the Court observed that the Government may confirm the detention of the person for such period as it deems fit subject to the receipt of the report of the Advisory Board, however, where the Advisory Board has reported that there is no sufficient cause for his detention, the Government shall revoke the detention order and release the detenu forthwith.

Conclusion

“The State Government, in our view, need not review the orders of detention every three months after it has passed the confirmatory order and further, at paragraph-46 Hon’ble Apex Court has held that if the order of detention is confirmed, then the period of detention can be extended up to the maximum period of twelve months from the date of detention. Lastly, at paragraph-47, the Hon’ble Apex Court held that the Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and, on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention”, it further said.

The Court, therefore, concluded that once the proposal for detention was approved by the Advisory Board and thereafter, confirmatory order was passed by the Under Secretary then no approval of the Advisory Board is required for extending the period of detention.

Accordingly, the High Court dismissed the Writ Petition and upheld the impugned order.

Cause Title- Upendra Yadav @ Bhupendra Yadav @ Bhupesh Ji v. The State of Jharkhand & Ors. (Neutral Citation: 2025:JHHC:34282-DB)

Appearance:

Petitioner: Advocate Sonal Sodhani

Respondents: AAG-II Sachin Kumar and AC Srikant Swaroop.

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