STRICT COMPLIANCE OF PROCEDURAL LAWS MANDATORY FOR PREVENTIVE DETENTION

Strict compliance of procedural laws mandatory for preventive detention

The Supreme Court of India, on 10th July, 2023, adjudicated upon preventive detention under the Jharkhand Control of Crimes Act, 2002, The Act deals with the “Externment” and “detention” of “anti-social elements” in the State of Jharkhand, subject to the procedure given in the Act. Under the provisions of the Act, the State Government can detain an “Anti-social element”, in order to prevent him from indulging in his “activities”. An “Anti-social element” has been defined under Section 2 (d) of the Jharkhand Control of Crimes Act, 2002 as: –

(d) “Anti-social element” who- means a person

(i) 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 or Chapter XVII of the Indian Penal Code; or

(ii) habitually commits or abets the of offences under the commission of Suppression of Immoral Traffic in Wome and Girls Act, 1956;

(iii) who by words or otherwise promotes or attempts to promote, on grounds of religion, race, language, caste community or other grounds whatsoever or feelings of enmity or hatred between different religions, racial or language groups or castes or communities; or

(iv) has been found habitually passing indecent remarks to, or teasing women cr girls; or

(v) who has been convicted of an offence under sections 25, 26, 27, 28 or 29 of the Arms Act of 1959.

In the said case, The Hon’ble Supreme Court of India considered Section 19 of the Jharkhand Control of Crimes Act, 2002 wherein an advisory board is to be considered before the period of preventive detention of a person is extended. Section 19 of the Jharkhand Control of Crimes Act, 2002 reads as follows: –

Section 19. Reference to Advisory Board. Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 18, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by the District Magistrate mentioned in sub- section (2) of Section 12 also the report by such officer under sub-section (3) of that section” 

The Hon’ble Supreme Court Further considered the action which is to be taken by the government upon receipt of the report from the advisory committee. The above-mentioned aspect is provided by Section 21 of the Jharkhand Control of Crimes Act, 2002: –

Section 21. Action upon the report of the Advisory Board. –

(1) In any case where the Advisory Board has reported that there is, in its opinion sufficient person, the cause for the detention of a Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the Government shall revoke the detention order and cause the concerned to be released forthwith.” 

Considering the bare provision, the Hon’ble Apex Court noted that where the advisory board reports that there is sufficient reason for extension of the detention of a person, it is within the discretion of the government, which may decide whether or not to extend the detention. However, when the advisory board reports that there is no reason for extension of the detention, then the government is bound to revoke the detention order. The relevant part of teh said judgement has been reproduced below: –

It is significant to note that the word used in sub-section (1) of Section 21 is ‘may’, whereas the word used in sub-section (2) of Section 21 is ‘shall’. In other words, in case the report of the Advisory Board gives an opinion that there are sufficient cause for detaining the person, the Government may or may not confirm the detention. But, in case a report of the Advisory Board says that there are insufficient grounds for detaining a person, the Government has no choice but to revoke the detention order and release the Therefore, the report given by the detenue forthwith:

The Hon’ble Apex Court noted the importance of following the procedures, as complex as they may be, must be followed completely, when it comes to cases of preventive detention. This is because the nature of preventive detention is such that it infringes upon the right to personal liberty of a person. In this regard, the Hon’ble Supreme Court of India noted that: –

All laws on preventive detention are necessarily harsh. They curtail personal liberty of an individual, who is kept behind bars without any trial. In such Laws cases, procedure is all a detenue has. Of preventive detention must therefore be strictly applied.

Based on the above-mentioned discussion, the Hon’ble Supreme Court held that the extended perod of detention past the period of three years was  unauthorised and illegal, and upon this finding, quashed the detention of the appellant.

[Read Judgement: Prakash Chandra Yadav @ Mungeri Yadav Vs. The State of Jharkhand & Ors.]

CORE TEAM OF THE FIRM

Rakesh Sharma

Mr. Rakesh Sharma, advocate is the most experienced member of our team and when it comes t...

The Law Codes

Siddharth Sharma

Siddharth Sharma is one of our leading and versatile lawyers who believe in dynamic lawyer...

The Law Codes

Rohit Samhotra

Dr. Samhotra is a dental graduate, and he continued the dental practice for a few years af...

The Law Codes

Sunny Menghi

Sunny Menghi embarked on his academic journey in Law at Panjab University, earning his bac...

The Law Codes

Ameesha Goel

Ameesha is among our young talents and a graduate of IP University, Delhi. She has a zeal ...

The Law Codes

V. Chaitanya Rao

V. Chaitanya Rao is one of the newer members of The Law Codes team. He brings an air of yo...

The Law Codes
error: Content is protected !!