Proper Conduct Of Elections No Reason For Preventive Detention, Will Amount To Playing With Citizens' Liberty: Jharkhand HC

The Jharkhand High Court has set aside Orders for preventive detention of a person on the pretext of holding assembly elections properly, holding that if this was accepted as a ground, then it would amount to giving "unbridled" power to the administration to detain anyone during elections and "playing with the liberty of citizens."

The Court was hearing a Writ Petition challenging an Order by the District Magistrate-cum-Deputy Commissioner through which the Petitioner was put under preventive detention. The counsel for the state government argued before the Court that he was preventively detained to ensure the peaceful conduct of assembly elections, which were held between November 13 and 20 this year. The Petitioner was in detention for a total period of 87 days.

A Division Bench comprising Justice Ananda Sen and Justice Pradeep Kumar Srivastava held, "The ground that for proper conduction of Assembly Elections, petitioner needs to be kept in detention, is absolutely not a ground for detention. If this becomes a ground, then the same will amount to giving unbridled, uncanalised sweeping power to the administration to detain any person under the Act during the time of election, it will be nothing, but playing with the liberty of citizens."

Advocate Pran Pranay appeared for the Petitioner and Government Advocate Manoj Kumar appeared for the Respondent-State.

On the significance of liberty, the Court said it must be kept "at the highest pedestral. Same cannot be curtailed on the whims and wishes of any of the officials of the State. Not only there has to be a good reason to curtail the said liberty, but that reason has to be strong enough and the evidence should be impeccable. With the fall of a hat, a citizen cannot be deprived of his personal liberty... Even on the pretext of holding fair and proper election, liberty of the citizen."

Allowing the Writ Petition, the Court set aside the Orders passed by the District Magistrate-cum-Deputy Commissioner and a similar Order by the Additional Secretary, Department of Home, Prisons and Disaster Management, Government of Jharkhand.

The Petitioner was put under preventive detention under the Jharkhand Control of Crimes Act, 2002 and was in detention from September 4 to November 29, 2024. 

Before the Court, he claimed that he was neither a habitual offender nor an anti-social element as defined under Section 2(d) of the Jharkhand Control of Crimes Act. It was further claimed that there is nothing to suggest that he is a threat to society or to public order, and claimed harassment.

The state government submitted before the Court that there are seven criminal cases pending against the Petitioner and it was necessary to detain him for the peaceful conduct of assembly elections, which were held in phases between November 13 and 20 this year. The government counsel said station diary entries suggest that he is a threat to the general public. It was claimed that there was no procedural irregularity in detaining the Petitioner.

The Court perused the pending criminal cases against the Petitioner and concluded that he is not an 'anti-social element' as per the definition provided in the Jharkhand Control of Crimes Act and that he was on bail.

The Court also noted that in the present case, the State had not filed any application for cancellation of bail of the Petitioner.

The Supreme Court's Judgment in Arjun v. State Of Maharashtra And Ors. (2024) was cited, where it was observed that a person has to create ruckus by his behaviour and continue with such activities in a manner to create terror in the minds of the public at large to be considered a threat to public order. "In this case, it is missing." the High Court said.

Cause Title: Ganesh Singh alias Nishant Singh v. The State of Jharkhand [W.P.(Cr.) No. 926 of 2024]

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