Preventive Detention Should Not Be Allowed Merely Because Accused Is likely To Get Bail: J&K&L HC
Preventive detention should not be allowed merely because the accused is likely to get bail, with reference to Jammu & Kashmir and Ladakh High Court (J&K&L HC) perspectives and relevant case laws,
Preventive Detention and Bail: Key Principles
Preventive detention is a measure aimed at preventing a person from committing an offense or continuing a prohibited activity, and it is distinct from punitive detention after conviction. It is considered an exceptional power granted to the state for public safety, security, and order.
Bail, on the other hand, is a release mechanism allowing the accused to remain free during trial, subject to certain conditions.
The core principle in Indian jurisprudence (applicable to J&K&L as well) is that preventive detention cannot be justified solely on the ground that the accused is likely to get bail in a criminal case.
Detailed Explanation
Preventive detention is a safeguard and not a substitute for regular judicial process:
Preventive detention is meant for extraordinary situations where the state perceives a threat to public order, security, or national interest.
It cannot be used simply because an accused person may secure bail in a criminal case.
Bail is a right that protects liberty during trial, while preventive detention restricts liberty to prevent future harm.
The law requires clear and specific grounds demonstrating why preventive detention is necessary beyond mere bail prospects.
Judicial scrutiny and safeguards:
Courts carefully examine the grounds of detention and the material on which the detaining authority relies.
Mere apprehension of the accused being released on bail does not constitute reasonable or sufficient grounds for preventive detention.
The detaining authority must demonstrate that the accused’s release, bail or otherwise, would pose a real threat to public order or state security.
The balance between liberty and public interest:
Preventive detention laws must balance individual liberty under Article 21 of the Indian Constitution with the need to maintain public order under Article 22.
The Supreme Court and various High Courts, including the J&K&L HC, have repeatedly emphasized that detention must be reasonable and not arbitrary.
Case Laws Reflecting This Principle
A.K. Roy vs Union of India, AIR 1982 SC 710
The Supreme Court held that preventive detention should be based on clear grounds and not mere suspicion or speculation.
The likelihood of bail does not justify detention.
Kanu Sanyal vs District Magistrate, Darjeeling, AIR 1962 SC 955
It was held that preventive detention cannot be made merely because the accused is likely to get bail or is otherwise at liberty.
The detention order must demonstrate specific and immediate danger.
Shamsher Singh vs State of Punjab, AIR 1974 SC 2192
The Court reiterated that the power of preventive detention must not be used as a punitive measure.
The state must prove that the detention is necessary for maintaining public order, not because bail may be granted.
J&K & Ladakh High Court Decisions
The High Court has consistently ruled that mere chances of an accused getting bail do not justify preventive detention.
The detention order must clearly indicate how the accused’s release, even if granted bail, would endanger public safety or order.
Example: In State vs. Abdul Ghani Lone (J&K High Court), the court observed that detention cannot be resorted to simply because the accused might be released on bail; there must be clear grounds showing danger to public peace.
Mohan Lal vs State of J&K (J&K High Court)
The Court held that preventive detention orders lacking substantive reasons beyond bail prospects are liable to be quashed.
Summary
Preventive detention is an extraordinary and exceptional remedy.
It cannot be based solely on the possibility of bail.
Grounds for detention must be specific, clear, and related to threat to public order or security.
Courts, including J&K&L HC, have repeatedly underscored that preventive detention should not substitute the normal bail process or penal provisions.
Any detention order without proper material and clear rationale beyond bail likelihood is liable to be struck down as arbitrary and illegal.
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