Detention orders cannot be passed when offences alleged against detenu duly fall within scope of words “law and order”

Supreme Court has from time to time opined that there is a vast difference between “law and order” and “public order”. Offences that are committed against a particular individual fall within the ambit of “law and order”. It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person said to disturb public order. In the present case, detenu facing allegations of committing penetrative aggravated sexual assault on a minor girl aged 13 years, three times throughout the night. Detaining authority relying on a single criminal case registered against detenu, passed detention order against him by holding him as ‘Sexual Offender’.

Detenu was granted bail by the Court of Session with conditions. In case State is aggrieved by grant of bail to detenu, nothing prevented State to move higher Court to seek cancellation of bail. The State did not choose to resort to such cancellation of bail, instead passed a detention order. There is nothing on record to show that there is an 'imminent possibility’ of detenu indulging in similar offences which are detrimental to public order.

Detaining authority failed to demonstrate the necessity to pass detention order invoking draconian preventive detention laws when recourse to the normal criminal justice system is available for curbing alleged illegal activities of detenu.

As per material on record, detenu developed acquaintance with victim girl aged 13 years old as she was studying in school, where the sister of detenu was also studying. Due to acquaintance, detenu took the victim girl to a secluded place where he has committed sexual intercourse. Therefore, it cannot be held that detenu would indulge in similar prejudicial activities in future. Grave as the offence may be, it relates to penetrative aggravated sexual assault on a minor girl. So, no inference of disturbance of public order can be drawn. The case can be tried under normal criminal law and/or special legislation. And, if convicted, can certainly be punished by the Court of law.

Thus, the case of detenu does not fall within the ambit of the words "public order". Instead, it falls within the scope of the words "law and order". There was no need for detaining authority to pass the detention order. Detention order passed against detenu being unsustainable, liable to be set aside.