Is a detention order that seeks to frustrate an order granting bail not preventive but punitive?

Paragraph 52In the said paragraphs, reliance has been placed upon information allegedly received from police officials regarding secret discussions taking place within the jail amongst persons connected with the Sambhal riots. According to the said information, the appellant had moved an application for bail and, upon securing release, was allegedly planning to indulge in large-scale violence. Proceeding on this premise, the detaining authority assumed that there existed a strong likelihood of the appellant disturbing public order having secured a release from custody; and alive to the possibility of the detenu continuing his prejudicial activities, recorded its satisfaction accordingly. What is evident therefrom is that the impugned detention is an attempt to frustrate the judicial order granting bail, and to keep the detenu in custody by another route. Such a detention is not preventive but punitive and appears intended to subvert the order granting bail.

Paragraph 53We must also notice an additional significant circumstance which bears upon the validity of the detention order. Appellant has since been granted bail in all the criminal cases wherein he had been implicated. Although such orders were passed subsequent to the detention order, it cannot be overlooked that even prior thereto, the appellant had already secured bail on 9th September, 2025 in Case Crime No. 340 of 2024, nearly a month before the order of detention came to be passed on 13 th October, 2025. This assumes importance because where a person is already in custody and preventive detention is sought to be invoked, the scrutiny of the detention order must necessarily be more exacting. The existence of a prior order granting bail in one of the connected cases was a relevant circumstance which required due consideration by the detaining authority. In such circumstances, the matter cannot be viewed in isolated compartments. The detention order must be assessed holistically, having regard to the entirety of the material available at the relevant point of time.

Paragraph 54Apropos the detention order assailed before us, the same must necessarily be examined against the factual backdrop in which it came to be passed. A substantially similar fact situation, and the legal principle emerging therefrom, came up for consideration before a 3-Judge bench of this Court in Vijay Narain Singh v. State of Bihar[^35], wherein Hon’ble E.S. Venkataramiah, J. (as the Chief Justice then was) speaking for the majority held as follows: 32. In the present case the District Magistrate has relied on three incidents to hold that the petitioner is an anti-social element. They are — (i) that on April 15, 1975 the petitioner along with his associates had gone to the shop of a cloth dealer of Bhagalpur Town armed with an unlicensed pistol and had forcibly demanded subscription at the point of a gun and (ii) that on June 17/18, 1982 the petitioner was found teasing and misbehaving with females returning from a cinema hall. The third ground is the criminal case now pending against the petitioner in the Sessions Court. The first incident is of the year 1975. It is not stated how the criminal case filed on the basis of that charge ended. The next incident relates to the year 1982. The detaining authority does not state how the criminal case filed in that connection terminated. If they have both ended in favour of the petitioner finding him clearly not guilty, they cannot certainly constitute acts or omissions habitually committed by the petitioner. Moreover the said two incidents are of different kinds altogether. Whereas the first one may fall under sub-clause (i) of Section 2(d) of the Act, the second one falls under sub-clause (iv) thereof. They are, even if true, not repetitions of acts or omissions of the same kind. The District Magistrate does not appear to have applied his mind to the above aspects of the case. The third ground which is based on the pending Sessions case is no doubt of the nature of acts or omissions referred to in sub-clause (i) of Section 2(d) but the interval between the first ground which falls under this sub-clause and this one is nearly eight years and cannot, therefore, make the petitioner a habitual offender of the type falling under sub-clause (i) of Section 2(d). When I say so I do not certainly minimise the gravity of the offence alleged to have been committed by the petitioner which is still to be tried by the Sessions Court. If the petitioner is found guilty by the Court, he will have to be awarded appropriate punishment. But the point for consideration now is whether the filing of the charge-sheet is sufficient to bring the petitioner within the mischief of the Act. The Court should examine the case without being overwhelmed by the gruesomeness of the incident involved in the criminal trial. It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. 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 which is based on the very same charge which is to be tried by the criminal court. (emphasis ours)

Paragraph 55This decision has been followed in a recent decision of this Court in Annu (supra), where it is held thus: 40. Viewed in the above conspectus of facts and law, it is clear that there was non-application of mind by respondent No.3 as to the requirement of preventive detention qua the appellant. The entire intent appears to continue the detention of the appellant since he was likely to get bail in the criminal case, which, in fact, he got. Such nonapplication of mind to the material facts and taking of extraneous factors into consideration has completely vitiated the order of preventive detention as well as the order rejecting the representation.

Paragraph 65If an order of detention is sought to be justified as a preventive measure, the material relied upon must demonstrably establish the necessity of preventing future prejudicial conduct and not merely reinforce allegations which already form the subject matter of an ongoing criminal prosecution. In the present case, that distinction has not been maintained.