Supreme Court slams misuse of preventive detention to keep accused in jail after they secure bail

The Supreme Court on Friday took exception to States resorting to preventive detention to keep accused in jail after they secure bail [Dhanya M v. State of Kerala]..The Court said that preventive detention is a constitutional exception and not a substitute for regular criminal process and State authorities must not resort to preventive detention and bypass ordinary legal mechanisms like seeking bail cancellation unless there exist compelling reasons backed by concrete material.The observations were made while quashing the preventive detention of a Kerala-based private money lender under the Kerala Anti-Social Activities (Prevention) Act, 2007.A Bench of Justices Sanjay Karol and Manmohan ruled that the invocation of the law in this case was not legally sustainable..The Court held that State of Kerala failed to demonstrate how the acts of the detenu, Rajesh, could justify the State's decision to curtail his liberty under a statute designed for extraordinary threats to public order.“The circumstances pointed out by the detaining authority may be ground enough for the State to approach the competent Courts for cancellation of bail, but it cannot be said that the same warranted his preventive detention,” the Court made it clear..The case arose from a detention order passed by the District Magistrate at Palakkad on June 20, 2024, branding Rajesh—a registered lender running ‘Rithika Finance’—as a “notorious goonda” based on multiple FIRs related to alleged loan sharking and assault. Though he was already on bail in all pending cases, the authorities invoked Section 3 of the Kerala Anti-Social Activities (Prevention) Act to detain him for six months. The Kerala High Court dismissed his wife Dhanya M’s Habeas Corpus plea against the detention.This led to the appeal before the apex court..After examining the arguments advanced by both sides, the Supreme Court set aside the High Court verdict. It underscored the constitutional principle that preventive detention is a hard law which is to be used only in the rarest of rare cases..“Preventive detention is a draconian measure whereby a person who has not been tried and convicted can be detained and confined… This extreme mechanism is, however, sanctioned by Article 22(3)(b) of the Constitution. Significantly, Article 22 also provides stringent norms to be adhered to while effecting preventive detention,” the Court said, quoting its recent judgment in Mortuza Hussain Choudhary v. State of Nagaland..The bench emphasised that the detaining authority failed to explain how Rajesh’s actions amounted to disturbance of “public order,” rather than isolated law-and-order infractions affecting only a few individuals. Citing decisions like SK Nazneen v. State of Telangana and Nenavath Bujji v. State of Telangana, the Court drew a clear line between threats to public order and individual criminal misconduct..“The act by itself is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality—that is, its impact on society—it may be very different,” the Court said..Crucially, the Court flagged the absence of any steps taken by the State to seek cancellation of Rajesh’s bail in any of the four FIRs against him. It noted that not only had no bail cancellation pleas been filed but even the terms of bail allegedly violated by the accused had not been spelt out. This omission rendered the use of preventive detention premature and disproportionate, the Court concluded.“The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention based on the same charge,” the judgment quoted from Vijay Narain Singh v. State of Bihar..Hence, it set aside both the detention order and the Kerala High Court’s judgment..[Read Judgment]