PREVENTIVE DETENTION AND PUNITIVE DETENTION

Francis Coralie Mullin v. the Administrator, Union Territory of Delhi & [1981] INSC 12 (13 January 1981) unanimous decision of P.N. BHAGWATI, SYED MURTAZA FAZALALI,delivered by BHAGWATI.CITATION: 1981 AIR 746 1981 SCR (2) 516 1981 SCC (1) 608 1981 SCALE (1)79

Punitive detention is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while preventive detention is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society.


the preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person has fullest opportunity to defend himself, while in case of preventive detention, the opportunity that he has for contesting the action of the Executive is very limited. Therefore, the "restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal". 

A prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court will immediately spring into action and run to his rescue

Now obviously when an under-trial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it is difficult to understand how sub-clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and non-arbitrary, particularly when a detenu stands on a higher pedestal than an under-trial prisoner or a convict and, as held by this Court in Sampath Prakash's case (supra) restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal." We would therefore unhesitatingly hold sub-clause (ii) of clause 3(b) to be violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have at least two interviews in a week with relatives and friends ...

The same reasoning must also result in invalidation of sub-clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the case for detention.  

EVIDENCES IN DEPARTMENTAL PROCEEDINGS AND ROLE OF CIRCUMSTANTIAL EVIDENCES IN CRIMINAL MATTERS

Apparel Export Promotion Council v. A.K. Chopra

(AIR 1999 SC 625) Dr. A.S. Anand, C.J.I. And V. N. Khare, J. 

Quoted following with approval

21. In B. C. Chaturvedi v. Union of India (1995) 6 SCC 749 : (1995 AIR SCW 4374), this Court opined ( at P. 4379 of AIR SCW) :

       'The disciplinary authority is the sole Judge of facts. Where appeal is presented the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary Enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence cannot be permitted to be canvassed before the Court/ Tribunal.'

SIMILARLY IN CRIMINAL PROCEEDINGS INSISTENCE ON DIRECT EVIDENCES ARE ARGUED. IN THE CASE OF Surinder Singh v. State of Haryana [Criminal Appeal No. 1791 of 2008] Decided on November 13, 2013.  Justice Ranjana Prakash Desai and Madan B. Lokur, JJ. Unanimous decision of division bench following para (para 25)is worth quoting:

'The presumption under Section 113B of the Indian Evidence Act, 1872 and the presumption under Section 304B of the IPC have a purpose. These are beneficent provisions aimed at giving relief to a woman subjected to cruelty routinely in an Indian household. The meaning to be applied to each word of these provisions has to be in accord with the legislative intent. Even while construing these provisions strictly care will have to be taken to see that their object is not frustrated.'

JUDICIAL PROCESS: CHECKS AND BALANCES-

Bidi Supply Co. v. Union of India [1956 SCR 267]

 Bose, J. made the following observations:

 "The heart and core of a democracy lies in the judicial process, and that means independent and fearless Judges free from executive control brought up in judicial traditions and trained to judicial ways of working and thinking. The main bulwarks of liberty and freedom lie there and it is clear to me that uncontrolled powers of discrimination in matters that seriously affect the lives and properties of people cannot be left to executive or quasi-executive bodies even if they exercise quasi- judicial functions because they are then invested with an authority that even Parliament does not possess. Under the Constitution, Acts of Parliament are subject to judicial review particularly when they are said to infringe fundamental rights, therefore, if under the Constitution Parliament itself has not uncontrolled freedom of action, it is evident that it cannot invest lesser authorities with that power."

I NEVER KNEW IT मैं यह नहीं जानता था.

I ALWAYS THOUGHT THERE IS ONLY ONE Malimath Committee's Report (2003) ON CRIMINAL JUSTICE SYSTEM. TODAY I CAME TO KNOW THERE IS ONE MORE Malimath Committee's Report (1989-90), THIS WAS ON ARREARS OF CASES IN HIGH COURTS.

Mithu v. State of Punjab, [1983] 2 SCC 277 Chandrachud. C.J., said (at 284):

" .... that the   last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is the for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable."

BHULLAR JUDGEMENT –II Navneet Kaur v. State of NCT of Delhi compilation of timeline

BHULLAR JUDGEMENT –II  Navneet Kaur v. State of NCT of Delhi-compilation of timeline

Decided 31.03.2014  by a bench of four Judges

1991 and 1993	two different bomb blasts killed more than nine persons
25.08.2001	Devender Pal Singh Bhullar was sentenced to death by the Designated Judge
22.03.2002	Bhullar preferred an appeal -Criminal Appeal No. 993 of 2001 before this Court this Court dismissal appeal and confirmed death sentence
17.12.2002.	Against the dismissal of the appeal by this Court, the accused preferred Review Petition (Criminal) No. 497 of 2002, which was also dismissed by this Court
14.01.2003	the accused submitted a mercy petition to the President of India Under Article 72 of the Constitution and prayed for commutation of his sentence
12.03.2003	During the pendency of the petition filed Under Article 72, he also filed Curative Petition (Criminal) No. 5 of 2003 which was also dismissed by this Court
30.05.2011	A communication was sent from the Joint Secretary (Judicial) to the Principal Secretary, Home Department, Government of NCT of Delhi, stating that the President of India has rejected the mercy petition submitted on behalf of Devender Pal Singh Bhullar.
13.06.2011	The same was also communicated to the Superintendent, Central Jail No. 3, Tihar Jail, New Delhi
24.06.2011	the wife of the accused (Petitioner herein) preferred a Writ Petition (Criminal) No. 146 of 2011 before this Court praying for quashing the communication dated 13.06.2011.
12.04.2013	this Court, after examining and analyzing the materials brought on record by the Respondents, arrived at the conclusion that there was an unreasonable delay of 8 years in disposal of mercy petition, which is one of the grounds for commutation of death sentence to life imprisonment as per the established judicial precedents. However, this Court dismissed the writ petition on the ground that when the accused is convicted under TADA, there is no question of showing any sympathy or considering supervening circumstances for commutation of death sentence.
13.08.2013	Curative Petition against Review petition (criminal ) no 435 of 2013, Writ Petition (Criminal) No. 146 of 2011 she prayed for setting aside the death sentence imposed upon Devender Pal Singh Bhullar
21.01.2014	Shatrughan Chauhan v. Union of India MANU/SC/0043/2014  : 2014 (1) SCALE 437,
05.02.2014	Examination by Standing Medical Board, Institute of Human Behaviour and Allied Sciences
08.02.2014	Letter by Institute of Human Behaviour and Allied Sciences,
12.02.2014	Letter/ report of Institute of Human Behaviour and Allied Sciences received by the Registry
	Bhullar suffering from acute mental illness
31.03.2014	Supreme Court of India commutes the death sentence imposed on Devender Pal Singh Bhullar into life imprisonment
Ratio decidendi	i.       unexplained/inordinate delay of 8 years in disposal of mercy petition and ii.      insanity

JOINT, GROUP OR CONSTRUCTIVE LIABILITY: A FEW RIPPLES

JOINT, GROUP OR CONSTRUCTIVE LIABILITY: A FEW RIPPLES

Generally an accused is liable for the crime committed by himself. Joint liability is different. It simply means when an accused can be criminally liable for the act of other accused. In Indian Penal Code 1860, section 34-38,114,120B,149, old 376(2)expl1 or new 376D, 396,460 etc are illustrations of joint liability principles.

Question-Is principle of joint liability an exception to mens rea doctrine? 

Among the principles of criminal liability three important principles are-

1.      Mens rea doctrine-Prosecution has to prove beyond reasonable doubts that the accused committed the particular offence with intention or knowledge etc. for example If A1 is accused of killing V1, the prosecution is bound to prove beyond reasonable doubts that A1 killed V1 knowingly or intentionally. In other words while committing the killing A1 has the mens rea of killing V1. If the prosecution cannot prove this A1 cannot be held guilty for murder, etc.

In case of joint liability the case seems to be different. Suppose A1, A2, A3 and A4 agree to commit robbery on a train. They agree to board in the train with arms so that in case of any protest by passengers they may scare them and if somebody chases them they may use gun fire for safe exit.  A2, A3 and A4 go to coach number B1 while A1 is guarding against any possible entry of security force from other coach. While A2, and A4 were robbing, V1, a passenger attacks A2 to defend his belongings. A3 fires and V1 is killed. A1 knows nothing, what happened inside the coach because the arms were having silencers. A1 has neither intention to kill anybody nor even knowledge that a passenger V1 has been killed but A1 is as culpable as A3 is. So is A2.  Even if A1 has no mens rea of killing V1 and V1 is killed by A3,  A1 is guilty of murder.

2.      Doubtless identification of accused with crime -Other important principle of criminal law is more evidentiary in nature. Prosecution must prove that a particular accused has committed the offence. His identification must be ascertained beyond reasonable doubts.

But in joint liability cases no proof is required that any particular accused was responsible for the commission of actual offence. Prosecution is only required to prove beyond reasonable doubts that A1 was in other coach as per planning to commit an armed robbery.

3.      Another principle of criminal law actus reus must be voluntary. In other words accused must have committed the particular actus reus .

Joint liability also avoids this principle and accused A1 who has not committed actus reus  

 of killing in this armed robbery nor A2, has to be held guilty for the killing by A3.

In all these three cases the mens rea and actus reus  of accused A3, A2 and A4 is presumed to be the mens rea and actus reus  of A1 and vice versa if ‘they’ are not mutually exclusive or distinct. Exclusive or distinct mens rea and actus reus  here means there is no direct link between the offence committed. For example- in case of an armed robbery hurt, grievous hurt, killing etc is a close and proximate   possibilities, while committing sexual offence has no direct link with armed robbery. If the prosecution can prove beyond reasonable doubts a planning, conspiracy or agreement of armed robbery between A1, A2, A3 and A4 before committing the offence of armed robbery, any other offence(say killing of a person) which is committed for the purpose of armed robbery shall make all accused criminally liable.

It may therefore be concluded that

1. In case of joint liability the mens rea, actus reus  of one accused is transferred to other by operation of law.
2. Joint liability is a type of conclusive irrebuttable presumption. Once the prosecution proves beyond reasonable doubts a plan of all accused, participation of all accused for the execution of the planning and commission of ANY offence by any one of them, others are  conclusively liable for the crime of other. No chance of any rebuttable round of argument.
3. Joint liability seems to be closer to strict liability because an accused may be liable without specific mens rea.  In strict liability no mens rea needs to be proved and in joint liability no particular mens rea of killing on the part of A1 needs to be proved. In strict liability law presumes mens rea of an accused while in joint liability law presumes mens rea of other accused A2, A3 and A4 as mens rea of A1 and vice versa (if offence committed was in furtherance of common intention).