The Madhya Pradesh High Court recently comprising of a bench of Justices Sheel Nagu & Anand Pathak observed that Preventive detention is designed to keep society secure, even if they involve some restraint and hardship upon some individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. (Kalla alias Surendra Jat Versus State of Madhya Pradesh and others)
Facts of the Case
The facts of the case are that from the almost 20 years petitioner faced different criminal cases/charge-sheeted for alleged commission of different offences, particulars of which are placed with the petition and on the basis of those cases as well as apprehension of the authorities that petitioner may commit breach of public order, with the following authorities invoked National Security Act, 1980 and has been directed to be detained for 3 months at Central Jail.
Present petition was filed under Article 226 of Constitution of India in the nature of certiorari taking exception to the order passed by the District Magistrate, Guna whereby provision of Section 3(3) of the National Security Act, 1980 (hereinafter referred to as 'the Act') has been invoked and petitioner has been directed to be detained for 3 months at Central Jail, Gwalior. Petitioner is absconding and therefore, petition is at pre execution stage.
Contention of the Parties
The Learned Counsel for the Petitioner submitted order of detention is being passed on the basis of old and stale cases in which petitioner has already been acquitted way back (except one or two cases) and these stale cases are not at all sufficient to invoke the provisions of the Act. He referred different orders passed in this regard by the trial Courts in which after full fledged trials, he has been acquitted, albeit in some cases on the basis of settlement and in some cases on the basis of witnesses being turned hostile. Even in some cases, after investigation, police did not find the case for prosecution and therefore, closure reports were filed in those cases. Therefore, sheet anchor of the arguments of the petitioner is that detention order is based upon old and stale cases.
He referred different orders passed in this regard by the trial Courts in which after full-fledged trials, he has been acquitted, albeit in some cases on the basis of settlement and in some cases on the basis of witnesses being turned hostile. Even in some cases, after investigation, police did not find the case for prosecution.
The Learned Counsel for the Respondents submitted that petitioner not only has long chequered history of 20 cases spread over twenty long years, out of which most of the cases carried allegations of grievous offences and he was prosecuted for the offences ranging from Section 302, 307 to 353 and 147/149 of IPC as well as to Section 25/27 of Arms Act and Section 3(1)(r)(s), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 14 of M.P. Rajya Suraksha Adhiniyam etc. He further contended that from the overall circumstances disclosed in the impugned order, it would manifest that a reasonable opinion was formed that the petitioner was a desperate character and a hardened criminal of the area and was indulging in activities, prejudicial to the maintenance of the public order.
Courts Observation & Judgment
While relying on the Apex Court judgment in the case of Ashok Kumar vs. Delhi Administration and others, wherein it was held that “preventive detention is devised to afford protection to society. It was observed that preventive measures, even if they involve some restraint and hardship upon some individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.”
Further in the case of Debu Mahto Vs. State of West Bengal, “it was held that the order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances.”
The Court further observed,
- Liberty of an individual is to be reconciled with collective interest of the community so that Public Order, Social Peace and overall Development of the Area may not be sacrificed at the altar of Lawlessness, Misgovernance and Private Retribution.
- Crime and Disorder are strongly interrelated, therefore, Broken Windows Theory, a Criminological Theory although moves in respect of Police and law enforcement but has material bearing in the realm of prosecution, adjudication and specially for preventive measures like National Security Act. Theory explained.
- Offence under Section 353 of IPC is not against public servant only but is a challenge to the Public Order and Administration of Justice at the instance of offender because public servant is duty bound to serve public and maintain Public Order. If his position is compromised, then public order is immediately and automatically compromised.
While dismissing the petition “the court opined witness and police report indicates that petitioner is a habitual offender and he is in habit of forcible encroachment of lands of private owners also and they are afraid to come forward to ventilate their grievances and all these attributes, render the petitioner a threat to public peace and order and appears to be against the interest of society/community at large.”
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