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Friday, October 23, 2020

Preventive detention pleas should be heard by division bench: Gujarat HC

The petitioner, Haidarsha Pir, was placed under preventive detention on July 29 following an order to the effect passed by the district magistrate of Kutch-Bhuj on the ground of Pir being a “dangerous person”.

By: Express News Service | Ahmedabad | October 3, 2020 10:45:19 pm
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While quashing the order of a single judge of its court which dismissed a plea by a Bhuj resident challenging his preventive detention, a division bench of Gujarat High Court suggested that such matters be treated as habeas corpus petitions and should be heard by a division bench and not by a single judge.

The judgment by the division bench of Chief Justice Vikram Nath and Justice J B Pardiwala, dated September18, arrived at the conclusion considering the aspect that a person detained under the preventive detention law is neither brought before a magistrate nor is the detenue entitled to consult a legal practitioner and when a person is deprived of his personal liberty as is guaranteed by the Constitution, “he gets the right to challenge such detention on the grounds available in law.”

The petitioner, Haidarsha Pir, was placed under preventive detention on July 29 following an order to the effect passed by the district magistrate of Kutch-Bhuj on the ground of Pir being a “dangerous person”.

This order was challenged on its legality and validity by Pir before a single-judge courtroom of Justice Bela Trivedi. However, Justice Trivedi had declined to look into the legality and validity of the detention order on the ground that Pir had already preferred a representation dated August 6, 2020 addressed to the PASA Board and, “in such circumstances, the appellant should wait for the outcome of his representation.”

Pir had two FIRs against him at the Bhuj City ‘B’ Division police station pertaining to offences of theft, insult, hurt and under provisions of the Mines & Minerals (Development of Regulation) Act, 1957, which was cited as part of the preventive detention order.

The division bench also held that citing “dangerous man” as a ground for invoking the “draconian powers of preventive detention,” cannot be sufficient ground.

Pir had then filed an appeal against this order, which was taken up by a division bench of the HC. The division bench overruled Justice Trivedi’s verdict, noting that the single judge “committed a serious error in declining to entertain the writ application…

The division bench held that such preventive detention “cannot be made a substitute for the ordinary law and absolve the Investigating Authorities of their normal functions of investigating the crimes which the detenue might have committed.” The division bench also reminded that preventive detention has to be exercised with “watchful care and circumspection.”

During the hearing of the case, it also emerged that since 1995 by way of a Gujarat HC notification, preventive detention matters have been treated as matters of civil jurisdiction and have thus been taken up by a single judge courtroom of the HC. It was suggested that this be amended given that preventive detention matters should be treated as the habeas corpus petitions, as had been indicated in earlier court judgments by various courts across the country and has also been enshrined in the Supreme Court Rules, 2013. To this effect, the Registry was directed to prepare an appropriate submission in this regard and place it before the “Chief Justice or its administrative side…”

The division bench also suggested that “should be heard by a Division Bench of this Court and not by a Single Judge.” The detention order now stands quashed.

The division bench thus concluded that the “High Court should not reject the writ application, seeking to challenge the legality and validity of an order of preventive detention on the ground that the detenue has an alternative remedy of preferring a representation addressed to the Advisory Board constituted by the state government, or if such representation is already preferred, then the detenue should wait till the outcome of such representation…”

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