Umer Maqbool 
Srinagar: Chief judicial magistrate (CJM) of Kishtwar came down heavily on J&K police for “circumventing” a bail order and detaining an individual under the Public Safety Act (PSA). Calling it an “interference” in the administration of justice, and “lowering down” the image of judiciary in the estimation of common men, Judge Mahmud Anwar Alnasir asked whether “should we bow down to the police state and their choices or do we want to be ruled as per the law and the procedure laid down?”
The J&K police has been administered by the Union home ministry since the reading down of Article 370 and the bifurcation of the state into two Union territories in 2019.
In July this year, the J&K police arrested four persons – Sher Muhammad, Saleem Parvaiz, Musavir Ahmed and Arfan Hussain – all residents of Lower Pochal of Kishtwar district, on charges of slaughtering a bovine animal.
In his report submitted on July 7, the district’s chief animal husbandry officer submitted that the bovine animal’s gender could not be determined due to non-availability of the whole carcass.
On July 18, the CJM granted interim bail to the accused who were represented by their counsels Shaik Saroori and Sheikh Tabish.
However, as per their counsels, Sher Muhammad, one among the four accused, was not released by police despite the bail order and was booked under the Public Safety Act (PSA) – the law which allows detention of a person without a trial for a period of two years in J&K. In the past three decades, around 20,000 persons have been detained under the law, which has been dubbed as lawless law by Amnesty International (AI).
As per court documents, the PSA dossier of Sher Muhammad claims that he has been detained on the basis of the said FIR and 16 Daily Dairy Reports (DDR) registered in different police stations/police posts in Kishtwar district.
On August 1, Sher’s counsel filed a contempt petition against the police in the CJM’s court over Sher’s continued incarceration despite the bail order.
Also read: J&K High Court Comes Down Heavily on Govt, Passes Searing Remarks on Its Conduct
What did the judge say ?
On August 5, CJM Alnasir castigated the J&K police for, what he claimed were, fabricated DD reports to circumvent and defeat the interim bail granted to Sher.
“Creating DD reports with regard to the one single incident, which is punishable under the ordinary law of the land, and there is nothing on record to reveal any kind of previous commission of offence of this nature or any other nature, and once the law does not permit any further detention unless found guilty, the district administration cannot use its powers as conferred upon them for prevention of public nuisance on the regular crime which is still under investigation and charge sheet is yet to be prepared,” he said.
The judge said that every DD report claims that there is anger in a particular community after the accused was granted bail. “The DD reports all over district Kishtwar, majority of which are post bail application have been managed to circumvent the regular process of the Court, and every report reflects the wording that, “after the Court of CJM has released accused no.1 on bail there is serious anger in the community and there is apprehension that they might create law and order situation or sit-in in front of DM’s office therefore the accused needs to be detained by PSA,” the judge said.
The judge raised serious concerns over the matter, saying that any person can be detained by simply filing DD reports at different police stations
“Tomorrow if that be the law, just by putting three DD reports in three police posts any individual can be detained under PSA without trial and could be incarcerated without trial or even FIR. Just because the SSP and DM desire and have apprehension that members of any sect/ community /colour or caste want such person to be detained and in case he’s not detained, they would create a law and order situation,” the judge said.
The judge said this is perhaps being done by the administration to “cover up their own inefficiency in maintaining the law and order situation, the accused no.1 ( Sher Muhammad) becomes the sacrificial lamb who despite being bailed out is detained on the same FIR for the same offence and no repeat/earlier offence under PSA,” he added.
Citing different judgments of J&K high court and various other authoritative pronouncements on the PSA, the judge said that a single FIR, especially one related to a relatively minor offence like Section 295 IPC, may not be enough to justify detention under PSA.
“The detaining authority must show that the person’s actions pose a significant threat to public safety, which may not be the case with a single FIR under Section 295 IPC. Additional circumstances, such as a history of violent behaviour, inciting communal tensions, or posing a significant threat to public order, may be required to justify PSA detention,” he said.
Section 295 IPC is a replica of the sections of Bharatiya Nyay Sanshita (BNS) under which the accused, including the one detained under PSA, were booked.
The judge further said “creating a (PSA detention) dossier out of nothing but DD reports – wherein the mention of interim bail is the reason of his detention – is nothing but contemptuous and is meant to circumvent the orders of the court which are not in tandem with the whims of the investigating department and state”.
“The question here is whether we are still a democracy. If so, do we believe in the Constitution and its articles, particularly the fundamental rights, especially Articles 20 and 21, the right to life and liberty? Or should we, as courts, remain silent spectators while the executive tramples on the rights of an individual who must be presumed innocent unless proven guilty, and the executive justifies its actions [by claiming] that the ordinary law of the land is insufficient to prevent the accused, thereby resorting to stringent measures like the PSA? This not only blatantly violates the mandate of law and the orders of the court, but also [undermines] the wisdom of the legislature by enhancing punitive provisions beyond what is mandated by the law of the land. Should we, as courts, be mute spectators to this?” the judge asked.
The court of CJM asked whether we should acquiesce to the authority of the police state or if we wanted to be ruled as per law of the land.
“Should we bow down to the police state and their choices or do we want to be ruled as per the law and the procedure laid down?” the court questioned.
The CJM issued a show-cause notice to the district magistrate (DM) Kishtwar and senior superintendent of police (SSP), asking them why the criminal contempt petition against them shouldn’t be referred to the high court of J&K and Ladakh for “interference in the administration of justice and lowering down the image of judiciary in the estimation of common men, who feel, that the executive is more powerful and could put anyone’s freedom in jeopardy, even if the ordinary law of the land does not warrant so”.
Revision petition
On August 9, the state through district magistrate Kishtwar filed a revision petition against the CJM’s order. The state also filed an application for grant of interim relief i.e. staying the operation of the order whereby CJM has taken cognisance of the contempt and issued show cause notice to the DM and SSP.
In its order, the court of principal sessions judge, Kishtwar, Manjit Singh Manhas, put the show-cause notices in abeyance till the next date of hearing. The matter will be listed on August 28.
Judge Manhas, however, said that magisterial courts don’t have jurisdiction to comment upon preventive orders under PSA.
“It is the only Constitution court that can ponder into the validity of such PSA and the magisterial courts don’t have jurisdiction to comment upon such preventive orders,” he said.