Multiple FIRs Alone Cannot Justify Preventive Detention Without Finding Of Impact On Public Order: J&K And Ladakh High Court

The Court was hearing a habeas corpus petition filed through the detenue’s wife challenging a preventive detention order passed by the District Magistrate, Jammu, under Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978, to prevent him from acting in a manner prejudicial to the maintenance of public order.

A Bench of Justice M.A. Chowdhary observed: “Though all the FIRs registered from the year 2002 to 2022, over a period of twenty years can’t be made basis to order preventive detention, as all the cases even do not disclose any instance of laws and order, much short of public order. Detention on the apprehension of ‘public order’ can be ordered, in view of the past track record of the detenue, but in last twenty years, there was not a single instance of throwing the tempo of public life out of gear to attract such a stringent order.”

The Bench further observed: “… merely because the petitioner is alleged to be involved in as many as eight FIRs is not a sufficient ground to invoke the remedy of preventive detention, particularly, in a case where the detaining authority has not recorded any subjective satisfaction that such activities of the detenue have either resulted or have the potential to lead to public outrage.”

Senior Advocate Pranav Kohli appeared for the petitioner; Deputy Advocate General Pawan Dev Singh appeared for the respondents.

Background

The detenue had earlier challenged the same detention order at the pre-execution stage. That petition was dismissed by the High Court, and the subsequent intra-court appeal was also dismissed for non-prosecution.

In the present habeas corpus petition, the detenue sought quashing of the detention order after its execution. The detention order was founded on eight FIRs registered over two decades at Police Stations Trikuta Nagar and Channi Himmat.

The petitioner contended that the grounds of detention were vague, mechanical and based merely on registration of FIRs which did not disclose any activity prejudicial to public order. It was also argued that there was no proximate link between the alleged activities and the detention order, and that several FIRs were stale. The petitioner further submitted that the later FIRs related to property disputes within the family and had been quashed on compromise.

The respondents opposed the petition, contending that the detaining authority had examined the dossier and relevant material before reaching subjective satisfaction that the detenue’s activities were prejudicial to public order. They also contended that all constitutional and statutory safeguards had been complied with and that delay in execution was attributable to the detenue’s abscondence and evasion of arrest.

Court's Observations

The Court examined the eight FIRs relied upon in the grounds of detention. It noted that the first case, relating to murder, had resulted in acquittal of all accused including the detenue. In two other FIRs, his name was cleared during investigation. In another FIR, investigation had been stayed by the High Court.

The Court further noted that three FIRs registered in later years were lodged by the detenue’s cousin, arose from family property disputes, and were settled amicably and quashed by the High Court.

The Court relied on K.K. Saravana Babu v. State of Tamil Nadu & Anr. (2008), where the Supreme Court explained the distinction between law and order and public order.

The Court quoted the Supreme Court’s formulation: “According to the crystallized legal position, cases affecting the public order are those which have great potentiality to disturb peace and tranquillity of a particular locality or in the words of Hidayatullah, J. disturb the even tempo of the life of the community of that specified locality.”

Applying this test, the Court held that the material relied upon did not show any instance of the tempo of public life being thrown out of gear.

The Court held that FIRs registered up to 2014 were too remote to supply a live link for a preventive detention order passed years later.

The Court observed: “the detenue’s involvement has been shown in the aforesaid FIRs, which ex facie shows that out of these FIRs registered upto the year 2014, by all stretch of reference, are too remote to be a live link to consider a case of preventive detention of a person to be passed in the year 2023, and stale reference to have any nexus with the grounds of detention, forming basis for subjecting the detenue to preventive detention custody.”

The Court also relied on Sama Aruna v. State of Telangana & Ors. (2018), where the Supreme Court held that stale incidents cannot form the basis for present preventive detention.

Quoting the Supreme Court, the High Court recorded: “A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention.”

The Court further relied on Khaja Bilal Ahmed v. State of Telangana & Ors. (2020), where the Supreme Court held that prior criminal antecedents may be referred to only if they have a direct nexus with the immediate need to detain.

The Court quoted: “However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention.”

The Court found that the detaining authority had not recorded any subjective satisfaction that the activities relied upon had resulted in public outrage or had the potential to do so.

The Court rejected the petitioner’s contention that he had not been informed of his right to make an effective representation.

On perusal of the record, the Court found that the detaining authority had informed the detenue that he could make a representation to the detaining authority and to the Government. It held that this did not amount to a violation of Article 22(5) of the Constitution.

The Court observed that procedural safeguards in preventive detention matters are mandatory and must be strictly complied with, but found no breach on this ground.

Conclusion

The High Court allowed the habeas corpus petition and quashed the preventive detention order passed by the District Magistrate, Jammu under the Jammu and Kashmir Public Safety Act, 1978.

The Court directed that the detenue be released forthwith, if not required in any other case. It also directed that the detention record be returned to counsel for the respondents.

Cause Title: Mohd. Asgar @ Tola v. UT of Jammu & Kashmir & Ors. (Neutral Citation: 2026:JKLHC-JMU:2676)

Appearances

Petitioner: Senior Advocate Pranav Kohli with Advocate Aftab Malik

Respondents: Deputy Advocate General Pawan Dev Singh

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