If Threat On Public Order Is Established, Authority May Rightly Invoke Provisions Of Preventive Detention: Allahabad HC Upholds Detention In 2022 Communal Violence Case
|The Allahabad High Court at Lucknow Bench has held that the detention order issued against the petitioner, who was alleged to be involved in criminal cases related to communal tensions, was valid and in accordance with established legal principles. The Court emphasized the importance of maintaining public order and preventing potential disturbances, especially in cases involving communal conflicts. The case centered around a detention order issued by the authorities against the petitioner. The grounds for the detention order were the petitioner's alleged involvement in several criminal cases, including rioting and incitement to violence. The petitioner was challenging the legality of the detention order, asserting that it violated their fundamental rights. They claimed that the order was issued without proper legal procedures and safeguards.
A Division Bench of Justice Sangeeta Chandra and Justice Narendra Kumar Johari held that, “The detenue has been provided the earliest opportunity to submit his representation and his representation was duly considered and expeditiously decided by the District Magistrate, Hardoi, State Government, U.P. Advisory Board, and by Central Government without any undue delay. The grounds on which the petitioner has challenged the detention order and are not according to the established principle of law. Therefore, we are of the considered view that the writ petition being devoid of merit is liable to be dismissed.”
Advocates Sheikh Waliuz Zaman and Tushar Bhushan appeared for the Petitioner and Advocate Anurag Verma and Advocate Pooja Singh appeared for the Respondents.
The government argued that the detention was necessary to maintain public order and prevent potential communal violence. They contended that the petitioner's actions had contributed to communal tension and that detention was a preventive measure to avert further unrest.
The Superintendent of Police in his proposal submitted to District Magistrate had mentioned that the incident occurred on the eve of the festival Moharram. It involved a dispute between the petitioner, the son of the informant, and other members of the Muslim community, leading to two separate criminal cases. Due to the seriousness of the situation, which included stone pelting, stampede, and a risk of communal conflict, the police and administrative authorities had to take swift action to maintain public order. Therefore the District Magistrate, Hardoi has passed the detention order. It was implied that these circumstances justified the detention order.
The Court observed that both incidents appeared to be fueled by communal tensions and that the second incident involved a mob attack.
The Court had to examine whether the detention order was valid based on the circumstances surrounding the incidents and whether it was necessary to prevent further disturbances to public order.
The Court cites a significant Supreme Court case, Arun Ghosh vs. State of West Bengal, which distinguished between "law and order" and "public order" and emphasized that public order encompasses the broader well-being of the community, while law and order pertain to individual incidents. The severity of an act's impact on society determines whether it constitutes a disturbance of public order.
The Court also cited Indradeo Mahato v. State of W.B., emphasizing that similar acts in different contexts may give rise to different problems and that each case must be assessed based on its unique circumstances.
The Court added, “Accordingly, if the threat on public order is established by the material available on record, the detaining authority may rightly invoke the provisions of preventive detention.”
The Court explained that the detention order was issued due to concerns about the petitioner's potential release on bail and the perceived threat to public order in the area. It mentioned that the petitioner's arrest had already led to the deployment of police personnel to maintain peace in the region.
The petitioner's lack of a prior criminal record was addressed, emphasizing that the absence of previous criminal activity does not preclude preventive detention if the individual's actions and their consequences fall within the scope of the law. The Court said, “It has been seen in society that an accused without any previous criminal history may commit a heinous offence. In absence of any previous criminal act of offender provisions of Act of 1980 can be invoked against the offender if his criminal act and its consequence comes under the purview of the Act, 1980. The previous criminal history cannot be sine qua non for invoking the provisions of the Act of 1980.”
The Court discussed the necessity of material evidence for the detaining authority to form a valid subjective satisfaction about the petitioner's potential actions upon release. It highlighted the importance of strict compliance with procedural safeguards in preventive detention cases and cited relevant Supreme Court cases on this matter.
The Court found that there was no undue delay in processing the detenue's representation and that the petitioner did not allege any inordinate delay in the decision on their representation. The legality of subsequent detention orders was also not challenged. The Court further found that sponsoring authority thoroughly examined the proposal, applied due diligence, and provided the detenue with a prompt opportunity to submit their representation, which was duly considered by multiple authorities without undue delay. Thus, the grounds for challenging the detention order did not adhere to established legal principles.
In conclusion, the Court found that the petitioner's writ petition lacked merit and was dismissed.
Cause Title: Shahanwaz v. State of U.P. & Ors., [2023:AHC-LKO:61499-DB]
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