The Court was dealing with a writ petition, filed through the detenue’s father, challenging a preventive detention order issued in April 2022. The bench highlighted in its judgment that the detenu had challenged the impugned prevention detention order on the basis that there if no explanation as to why the detenu had not been arrested in those two years if the disclosures had been made available to the authorities then. Additionally, the detenu alleged that since the relevant documents being relied upon the authorities were never served to him, it disabled him to make an effective and meaningful representation against his detention.

Observations of the Court:

After hearing the arguments put forth by both the parties, Justice Sanjeev Kumar observed that impugned order of detention does not sustain in the eye of law as there is non-application of mind on the part of detaining authority. The court further observed that it appeared to him that the detaining authority did not appear to know whether the detenu had been apprehended in the UAPA case or not, or the events in the case he had applied bail for.

“It is nowhere discernible from perusal of the grounds of detention as to whether the detenu had been arrested in connection with case FIR no.130/2020 or not, and/or in the event of his arrest he had applied for bail before the competent court of law or bail had been granted in his favour,” the Court said in its judgment. (Para 5)

The Court proceeded to emphasise the following:

“The order of detention must have proximate and live link with the activities of the detenu. The detention based on stale incident is vitiated in law. I do not require many judgments to hammer this settled legal position.” (Para 10)

Notably, the Court found substance in the allegations raised by the detenu, and highlighted in its judgment that the detention order would be vitiated if the detenu is not supplied with the material based on which the detention order was passed, thereby affecting his right to make an effective and meaningful representation against the detention.

“The detention order is vitiated if the requisite material relied upon is not supplied to the detenu, in that, if affects the vital constitutional rights of the detenu to make an effective and meaningful representation. Simply because a communication has been issued to the detenu informing him about his right to make a representation is not sufficient. As is evident from perusal of the xerox copy of the detention record, the material relied upon by the detaining authority has not been supplied to detenu so as to enable him to make a representation against his detention.” (Para 9)

The Court further took critical note of the fact that the detaining authority had not stated any compelling reason warranting the preventive detention of the detenu.

“Subjective satisfaction without taking relevant material into consideration and non-application of mind by the detaining authority are the grounds that go to the root of detention and vitiates it ab initio. In that view of the matter, the order of detention is clearly vitiated by total non-application of mind by the detaining authority,” the Court said.

 Judgment of the Court

Based on the observation made the Court above, the Bench proceeded to allow the writ petition and quashed the detention order issued by the District Magistrate, Shopian.

The judgment can be read here:

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Remember journalists Siddique Kappan, Aasif Sultan, Kishorechandra Wangkhem?

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An important order delivered by a Division Bench of the High Court of Jammu and Kashmir and Ladakh, has held that the request of an Investigating Officer (IO) for time extension for detaining an accused beyond the stipulated period of 90 days, cannot be a substitute for the report of the public prosecutor under section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967.

Section 43D(2)(b) provides that if the investigation agency has not been able to complete the investigation in the case within the prescribed period of 90 days, the public prosecutor appearing for the agency has to mandatorily file a report before the court. Further, if the court is satisfied by such a report, the progress of the investigation and the specific reasons provided by the prosecutor for detaining the accused, it shall extend the period of custody to 180 days.

In the present case before the High Court, the appellants, Showkat Ahmad and Nayeem Ahmad Khan, have had their detention period extended thrice by the trial court, Srinagar, beyond the period of ninety days. They contended before the High Court that there is no report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of ninety days. It was argued that the trial court did not provide any specific reason to extend their detention.

Showkat and Nayeem have been booked under sections 17 (punishment for raising funds for a terrorist act), 18 (punishment for conspiracy), 38 (offence relating to membership of a terrorist organisation), 39 (offence relating to support to a terrorist organisation) and 40 (offence of raising funds for terrorist act) of UAPA.

Court’s observations

After being denied bail by the trial court, the appellants approached the High Court, averring that since the police agency couldn’t complete its investigation within a period of 90 days, they should be released on bail.

On the outset, the Division Bench of Justices Dhiraj Singh Thakur and Vinod Chatterji Koul, noted that the trial court had misdirected itself by not granting bail to them. “It is pertinent to mention here that the status of the prosecutor is not a part of the investigating agency as it is an independent statutory authority,” read the order.

The Bench referred to two cases of State of Maharashtra v. Surendra Pundlik Gadling (2019) and Hitendra Vishnu Thakur and others v. State of Maharashtra and others (1994), where the Supreme Court has ruled that the public prosecutor has the option to agree or disagree with the reasons given by the Investigating Officer (IO) for seeking extension of time, and that the request of an IO for extension of time is not a substitute for the report of the public prosecutor.

Citing these cases, the High Court Bench reiterated, “It comes to fore that emphasis has been laid by the Supreme Court on the importance of scrutiny by a Public Prosecutor so as not to leave a detenu in the hands of I.O. alone, inasmuch as Public Prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time. Besides, request of I.O. for extension of time is not a substitute for the report of a public prosecutor under the provisions of Section 43D (2)(b) of ULA(P) Act.”

Noting that the trial court did not deal with the rights of the appellants to grant of default bail, the High Court set aside its order and granted bail to Showkat and Nayeem.

The order may be read here:

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A Jammu & Kashmir Sessions Judge has revealed in his order referring a bail hearing to the Chief Justice of the High Court, what exactly transpired between him and the Secretary of a High Court Judge.

In the order dated December 7, Principal Sessions Judge, Srinagar, Abdul Rashid Malik stated that he received a call from Tariq Ahmad Mota, Secretary to Justice Javed Iqbal Wani to deny bail to accused Sheikh Salman. He further referred the bail application to be heard by the Chief Justice of J&K High Court as “the matter involves the liberty of the person”. He even mentioned what was said to him over the call by Mota, “I have been directed by Hon’ble Mr Justice Iqbal Wani to convey you to make sure that no bail is granted to Sheikh Salman. If there is any Anticipatory bail pending, the direction is the same”.

This revelation not only raises some serious questions on control of the high court over lower courts, but also on the integrity of courts of law. While this may be seen by many as going against the propriety of courts by mentioning the names involved and the details of such phone call, the larger question is of independence of the judiciary, within its hierarchy.

This brings us to question who is the High Court Judge and what is his relation if any to the accused. News reports reveal that Salman was accused of attempt to murder after he assaulted a youth and hen posted a detailed account on social media about how he had “taught him a lesson”.

Justice Javed Iqbal Wani was formerly senior additional advocate-general to the state and is the son in law of Jammu and Kashmir High Court Bar Association president Mian Abdul Qayoom. Wani had opposed the release of Qayoom, a vocal separatist, who was detained under the Public Safety Act. Wani’s elevation from Bar to Bench was covered in the media mainly because he became the first Kashmiri Muslim being granted such elevation.

The Indian Express reported that the reference made by Session Judge Malik, was made on the day Chief Justice on the day Justice Gita Mittal was retiring from her post and it was referred back to the district where the accused was granted bail.

The order may be read here.

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The J & K high court has been over-stretched with more than 250 writs of habeas corpus seeking quashing of preventive detention being filed since August 5. This is the date that the Modi 2.0 government took the controversial decision to abrogate Article 370 and ‘de-mote’ the state of Jammu and Kashmir into three separate Union Territories. This, when the state just a month away from being split into two Union Territories:  both wings of Jammu & Kashmir High Court, overburdened with litigation, are functioning with just nine judges against a sanctioned strength of 17 judges, reports The Indian Express.

Last week, The Hindu had reported that the habeas corpus cases in the J & K High Court shot up to 120 in August and September 2019 respectively, The Hindu also reported that in an interview to the paper, the erstwhile state’s Director General of Police, Dilbar Singh admitted to 800 being detained with as many as 150 being sent to jails out of the state.

Given the unprecedented human rights crisis in the valley, the higher judiciary in the erstwhile state is finding it nearly impossible to cope. Earlier this year, on two different occasions, chief justice of Jammu & Kashmir High Court Gita Mittal had forwarded seven names to the Supreme Court Collegium to fill the vacancies, The Indian Express reports. However, not a single appointment has been made till date.

Ten days ago, the e the Supreme Court, hearing petitions related to the Valley, has sought reports from Justice Mittal on access to justice in the High Court — at one hearing this month, Chief Justice of India Ranjan Gogoi called it “a serious matter” and said “if required, I will go personally and check” . However, it is the Collegium is yet to fill the vacancies in the High Court.

The Supreme Court had also directed the Juvenile Justice Committee of the Jammu and Kashmir High Court to look into the allegations of illegal detention of children in Jammu and Kashmir in the wake of abrogation of Article 370, and submit a report before it within a week. Clearly however, the high court is itself under pressure with too few judges!

The orders of the Supreme Court came in relation to a petition that listed serious human rights violations against children in the erstwhile state of J and K, which describe violations of very different kinds, ranging in seriousness from potential loss of life and liberty of the child, to being emotionally and intellectually drawn into the conflict. The petition filed by senior social activist, Enakshy Ganguly of Haq for Child Rights and senior activist, Shanta Sinha who is an anti-child labour activist of international reputation. She is the founder of Mamidipudi Venkatarangaiya Foundation, popularly known as MV Foundation, and is a
Professor in the Department of Political science in Hyderabad Central University.

Of the nine judges in the High Court, only two judges have been assigned to hear the writs of habeas corpus in the Srinagar wing. This when, over the past weeks, a slew of petitions in the high court has led to some relief for victims of preventive detention.

For instance, Justice Ali Mohammad Magrey of Jammu and Kashmir high court’s Srinagar bench last week directed the Agra Central Jail in charge to let the brother-in-law of a detenue meet him. Ishfaq Ahmad Ganie is a resident of Ari Gohal in Jammu and Kashmir’s Akad Mattan and has been detained in the Agra jail. His brother-in-law Sajjad Ahmad Bhat will now be able to meet him.

The detailed Express report reveals that, in March 2019, the High Court Collegium, headed by Justice Mittal, forwarded four names to the Governor and the same was marked to the Supreme Court Collegium, according to the standard procedure — of two advocates from Jammu, Rajnesh Oswal and Rahul Bharti, and two advocates from Srinagar, Moksha Kazmi and Javaid Iqbal Wani. And in July, another set of three names — Registrar General of Jammu & Kashmir High Court Sanjay Dhar and two others from the lower judiciary Vinod Chatterji Koul, and Puneet Gupta — was sent.

While the Supreme Court Collegium is yet to take a final call on the names recommended by the High Court Collegium — the last fresh appointment made to the High Court was on August 7, 2018 when District Judge Rashid Ali Dar and advocate Sindhu Sharma were elevated as permanent judges. Also, in 2018, two judges were transferred to Jammu & Kashmir High Court. But this year, not a single judge has been sent to the High Court. The last transfer was effected on November 19, 2018 when Justice Rajesh Bindal, from the parent High Court of Punjab & Haryana, was transferred.

Currently, excluding Chief Justice Mittal, there are only eight judges for the two wings in Jammu and Srinagar.

Given the shortage of judges, urgent measures are being adopted, as is evident from the official roster of the High Court. In the first half of the day, the Srinagar wing of the High Court has only one division bench comprising Chief Justice Mittal and Justice Rashid Ali Dar; and two single-judge benches — one under Justice Ali Mohammed Magrey and another under Justice Sanjeev Kumar. The division bench hears matters related to criminal appeals, tax matters and PILs. And the two single-judge benches hear criminal and civil writ petitions, including the writs of habeas corpus. In the second half, all four judges sit separately on four single-judge benches.

Similarly, in Jammu, the division bench of Justices Rajesh Bindal and Dhiraj Singh Thakur sits in the first half of the day; and two single-judge benches, under Justice Tashi Rabstan and Justice Sindhu Sharma, sit in the first half of the day. In the second half, all four judges sit separately on four single-judge benches.

Related Articles:

1.  J&K HC directs Agra Central Jail to allow J&K Detenus to meet relatives

2.  SC directs Juvenile Justice Committee of J & K HC to investigate Illegal detention of Children

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Justice Ali Mohammad Magrey of Jammu and Kashmir high court’s Srinagar bench on Thursday directed the Agra Central Jail in charge to let the  brother-in-law of a detenue meet him. Ishfaq Ahmad Ganie is a resident of Ari Gohal in Jammu and Kashmir’s Akad Mattan and has been detained in the Agra jail. His brother-in-law Sajjad Ahmad Bhat will now be able to meet him.

The court is also in the midst of hearing a habeas corpus petition filed on Ganie’s behalf, challenging his detention. Justice Magrey granted two weeks to the state to file a counter affidavit in the case and posted the matter for further hearing for October 17. Bhatt’s had submitted before the court that the Agra jail authorities had refused his plea to meet Ganie. 

“Ordinarily, there shall be no difficulty for the concerned jail authorities in allowing the nearest relations of the detenues to have a meeting with them. Even the Home Secretary to the Government of Jammu and Kashmir, as stated by the learned counsel for the applicant/petitioner, has instructed the concerned jail authorities to allow meeting of the detenues with their nearest relations,”Justice Magrey observed in his order.  

“The Jail Manual also provides that the nearest relations of the detenues shall be allowed to have meeting with them.” Justice Magrey directed the jail in charge to facilitate the meeting between Ganie and Bhat after completing all the formalities  in accordance with the mandate of the jail manual.   

“For the purpose of identification, the Aadhaar card of the applicant/petitioner, bearing No…and which the applicant/petitioner has also produced before this Court, shall be considered. Copy of this order be provided to the learned counsel for the applicant/petitioner under the seal and signatures of the Bench Secretary of this Court, today itself,” his order read.  
 
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1. Preventive Detention of Masood Bhat quashed: J & K HC

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On September 25, 2019 a judgement from Justice Ali Mohammad Magrey of the Jammu and Kashmir high court kindled hopes for other detainees. The Judge quashed the preventive detention of Masood Ahmad Bhat dated January 22. The court further said the detenu, a resident of Chidder, Kulgam district should be released from preventive custody forthwith.

However the man would still remain in custody s since Bhat is also accused of a substantive offence in FIR No. 116/2018 under sections of Unlawful Activities (Prevention) Act (UAPA), is already in custody and has not applied for bail for that, he would, therefore, remain in custody unless granted bail for the UAPA offence.

What is significant, however, is that Justice Magrey found Bhat’s detention vitiated, in view of the settled position of law. Although Bhat’s detention predates the Centre’s controversial August 5 decision to revoke Jammu and Kashmir’s special status, and the subsequent clampdown in the state resulting in preventive detention of several political activists, the grounds cited to quash Bhat’s detention in Justice Magrey’s judgment could come to the rescue of other detainees, whose detention might be similar to that of Bhat.

The Hindu has today reported that the habeas corpus cases in the J & K High Court shot up to 120 in August and September 2019 respectively, The Hindu also reported that in an interview to the paper, the erstwhile state’s Director General of Police, Dilbar Singh admitted to 800 being detained with as many as 150 being sent to jails out of the state.

Bhat had sought his release through his brother.  Bhat challenged the order of his detention on the following grounds:
“a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, more so in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody;
b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;
c) that the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for him before passing any detention order.”

Justice Magrey recorded his findings as follows:
Despite direction, the detention order was not produced.
In the absence of material, the detention order is passed on mere ipsi dixit (an assertion without proof) of detaining authority;  therefore, the detention order is bad in law.

Justice Magrey added:
“The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore.”

Relying on a Supreme Court judgment
Justice Magrey relied on a Supreme Court judgment delivered in 1982. In Ibrahim Ahmad Batti v. State of Gujarat (1982), the apex court, relying on its earlier judgments in Khudiram Das v State of W. B. (1975) and Icchu Devi Choraria v. Union of India (1980) in paragraph 10 of the judgment, held:
“Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases:

(a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and

(b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution.”

In the Khudiram case (supra), decided by Justice P.N. Bhagwati in 1974, the Supreme Court had explained what is meant by “grounds on which the order is made” in the context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).
In Smt. Icchu Devi Case (supra), also authored by Justice Bhagwati in 1980, the Supreme Court took the view that documents, statements and other materials referred to or relied upon by the detaining authority as grounds for detention must be made available to the detenu. The court held that the state’s obligation to provide copies of this material flowed directly from a detained person’s right to make a representation against his detention at the earliest opportunity – a right that cannot be meaningfully exercised without the grounds for his imprisonment being known to him.

Justice Magrey concluded:
“Examining the present case on the touchstone of the above settled position of law and perusal of record, the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material/documents, as referred to in the order of detention. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention.”

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