Patna High Court
Karnvir Singh Yadav @ Lallu Mukhiya vs The State Of Bihar Through The … on 6 August, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.311 of 2026
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Karnvir Singh Yadav @ Lallu Mukhiya, Son of Late Ramvilash Yadav @
Late Ramvilash Prasad R/o vill - Gulabbag, P.O. and P.S.- Barh, Distt.- Patna
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Home Deptt.,
Govt. of Bihar, BIHAR
2. The Additional Chief Secretary, Home Department, Government of Bihar
Old Secretariat Patna
3. The Secretary, Additional Chief Secretary, Home Department, Government
of Bihar Old Secretariat Patna
4. The Joint Secretary, Home Department, Government of Bihar Old
Secretariat Patna
5. The Additional Secretary (Police Branch) Home Department, Government
of Bihar Old Secretariat Patna
6. The District Magistrate Patna Bihar
7. The Senior Superintendent of Police, Patna Bihar
8. The Superintendent of Police(Rural) Patna, Bihar
9. The Sub Divisional Police Officer, Barh 1, Patna
10. The Suprientendant, Bhagalpur Central Jail Bhagalpur
... ... Respondent/s
======================================================
Appearance :
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For the Appellant/s : Mr.Manjit Singh, Sr. Advocate
Mrs.Nivedita Nirvikar, Sr. Advocate
Mr.Arun Kumar, Advocate
Mr.Sagar Kr. Mishra, Advocate
Mr.Raghabir Chandrayan, Advocate
Mr.Satyam Kumar, Advocate
Mr.Rishabh Mishra, Advocate
Ms.Shashi Priya, Advocate
For the Respondent/s : Mr.S.D. Sanjay, Advocate General
Mr.Mohit Anand, AC to AG
Mr.Govind Raj Shashi, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 06-08-2026
The present writ petition, involving the personal liberty
of the petitioner, has had a chequered procedural history. During
the pendency of the proceedings before this Court, the petitioner
approached the Hon'ble Supreme Court by filing Writ Petition
(Criminal) No. 204 of 2026. By order dated 27.05.2026, the
Hon'ble Supreme Court, while declining to entertain the petition,
requested this Court to make an endeavour to dispose of the
present writ petition within a period of four weeks from the date
of receipt of the said order, having regard to the fact that the
period of detention itself was six months. Thereafter, by order
dated 25.06.2026, a Division Bench of this Court directed that the
matter be listed before another Bench after obtaining permission
of Hon'ble the Chief Justice on the administrative side. Pursuant
thereto, Hon'ble the Chief Justice, by administrative order dated
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07.07.2026
, assigned the matter to Division Bench-IV. The case
was thereafter taken up by this Bench on 08.07.2026, when the
supplementary counter affidavit filed on behalf of the State was
taken on record and the matter was adjourned for final hearing. On
21.07.2026, the submissions on behalf of the petitioner were
concluded and, on 23.07.2026, the respondents were heard. Upon
completion of the hearing, the writ petition was reserved for
judgment and is being disposed of in compliance with the
direction of the Hon’ble Supreme Court to accord expeditious
consideration to the matter.
2. This writ petition raises a challenge to the exercise of
powers under the Bihar Control of Crimes Act, 2024. Since the
controversy turns upon the scope and application of the provisions
of the said enactment, it is appropriate to briefly notice the
statutory scheme before dealing with the rival submissions. The
Act has been enacted to enable preventive action against persons
whose activities are considered prejudicial to the maintenance of
public order. Unlike the ordinary criminal law, which is concerned
with investigation, prosecution and punishment of offences
already committed, the object of the Act is to prevent anticipated
conduct which, in the opinion of the competent authority, is likely
to disturb public order.
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3. Preventive detention, by its very nature, stands on a
footing different from punitive detention. While punitive detention
follows a judicial determination of guilt, preventive detention is
intended to avert future acts considered prejudicial to public order.
The Constitution recognises such power but, at the same time,
subjects its exercise to constitutional and statutory safeguards.
Since an order of preventive detention authorises deprivation of
personal liberty without a criminal trial, the authority exercising
such power is required to act strictly within the limits prescribed
by law.
4. The Bihar Control of Crimes Act, 2024 repeals the
earlier Bihar Control of Crimes Act, 1981 and provides a fresh
statutory framework for preventive detention. The Act enlarges the
definition of an “anti-social element” and specifies the categories
of activities which may justify preventive action. The legislative
premise is that certain forms of organised, habitual or continuing
criminal conduct may, in a given case, extend beyond individual
criminal acts and assume dimensions affecting public order,
thereby necessitating recourse to preventive measures.
5. At the same time, the Act incorporates safeguards
intended to prevent arbitrary exercise of power. The competent
authority is required to record its subjective satisfaction on the
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basis of relevant material. The detenue must be informed of the
grounds of detention, afforded an opportunity of making a
representation and the matter is required to be examined by the
Advisory Board in accordance with the procedure prescribed
under the Act. The statutory scheme thus attempts to maintain a
balance between the interest of society in preserving public order
and the constitutional guarantee of personal liberty.
6. Enactments providing for preventive detention are not
unique to the State of Bihar. Similar legislation has been enacted
in other States to deal with organised or habitual criminal
activities having repercussions on public order. While such
enactments may pursue a comparable legislative objective, each
statute has to be construed on its own terms. The provisions of the
Bihar Control of Crimes Act, 2024 must, therefore, receive
interpretation with reference to the language employed by the
Bihar Legislature and not by mechanically importing principles
applicable to other enactments.
7. It is equally well settled that every breach of law does
not amount to a disturbance of public order. Many criminal acts
may affect only the individuals directly concerned and remain
within the sphere of law and order. Preventive detention is
justified only where the nature and impact of the activities are
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such as to affect the even tempo of community life or generate
consequences extending beyond individual victims. Whether the
statutory conditions for invoking preventive detention stand
fulfilled is the principal issue which falls for consideration in the
present proceedings.
8. It is in the above statutory and constitutional backdrop
that the rival contentions require examination. This Court is not
concerned with the wisdom of the legislative policy underlying
the Act. The enquiry is confined to determining whether the
impugned orders have been passed in accordance with the
provisions of the Bihar Control of Crimes Act, 2024 and whether
the constitutional safeguards governing preventive detention have
been duly observed.
9. The petitioner, Karnvir Singh Yadav @ Lallu
Mukhiya, has invoked the writ jurisdiction of this Court under
Articles 226 and 227 of the Constitution questioning the legality
of the preventive detention proceedings initiated against him
under the provisions of the Bihar Control of Crimes Act, 2024.
The challenge, as originally instituted, was directed against the
recommendation made by the Sub-Divisional Police Officer,
Barh-1, the communications exchanged between the police
authorities, the order of detention passed by the District
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Magistrate, Patna, the approval accorded by the State Government
and the rejection of the petitioner’s representation. During the
pendency of the proceedings, subsequent developments were also
brought on record by way of interlocutory applications, whereby
challenge was extended to the later orders passed in continuation
of the detention proceedings.
10. The record discloses that on 05.12.2025 the Sub-
Divisional Police Officer, Barh-1 addressed a communication
recommending initiation of proceedings against the petitioner
under the Bihar Control of Crimes Act, 2024. The
recommendation was thereafter endorsed by the Superintendent of
Police (Rural), Patna and forwarded by the Senior Superintendent
of Police, Patna to the District Magistrate, Patna for appropriate
action under the Act.
11. Acting upon the materials placed before him, the
District Magistrate, Patna passed an order dated 10.12.2025 in
B.C.C.A. Case No. 1-09/2025, which was issued under Memo No.
7987 dated 11.12.2025, directing the preventive detention of the
petitioner under Section 12(2) of the Bihar Control of Crimes Act,
2024. Pursuant thereto, the petitioner was lodged in judicial
custody in the Special Central Jail, Bhagalpur.
12. The petitioner submitted representations against the
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order of detention to the competent authorities. The detention
order was thereafter placed before the State Government for
approval in accordance with the statutory procedure. The record
further indicates that, upon consideration of the opinion rendered
by the Advisory Board, the State Government confirmed the
detention and directed that the petitioner remain under detention
from 11.12.2025 till 10.06.2026. The petitioner’s representation
also came to be rejected by the State Government.
13. While the writ petition remained pending, the Senior
Superintendent of Police, Patna addressed a further
communication dated 04.06.2026 to the District Magistrate, Patna
recommending continuation of preventive detention. Acting
thereon, the District Magistrate issued another order dated
06.06.2026 in B.C.C.A. Case No. 1-09/2025, providing for
detention of the petitioner for a further period of six months with
effect from 11.06.2026. The validity of the said order was
questioned by the petitioner through Interlocutory Application No.
2 of 2026, and the consequential approval issued thereafter by the
Home Department was subsequently challenged through
Interlocutory Application No. 3 of 2026.
14. That on 7th July, 2026, the writ petitioner filed I.A.
No. 03 of 2026 praying for issuance of writ in the nature of
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Certiorari for quashing the order contained in memo no. 1-
09/25/4707 dated 06.06.2026 issued under the signature of the
District Magistrate of Patna. By this order, in continuation of
detention order no. 7897/Law dated 11.12.2025, the period of
detention of the petitioner under the provision of Bihar Control of
Crimes Act, 2024 has been extended for a further period of 6
months with effect from 11.06.2026.
15. On careful perusal of the above-mentioned order
(Annexure P/14) annexed to I.A. No. 03 of 2026, it appears that
the Senior Superintendent of Police, vide Letter No. 1286/D.C.B.
dated 04.06.2026, submitted a new proposal (Navin / नवीन) for
preventive detention against the Writ Petitioner for a period of 1
year with effect from 11/06/2026.
16. The Writ Petitioner has raised the question of
validity of the said order and its subsequent approval by the Home
Department, Government of Bihar, by filing I.A. No. 02 of 2026
and I.A. No. 03 of 2026. According to the Petitioner, the above-
noted order is the continuation of the earlier order, which the
District Magistrate of Patna is not authorized to pass.
17. The petitioner asserts that the successive orders of
detention and the consequential governmental actions are without
jurisdiction and contrary to the scheme of the Bihar Control of
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Crimes Act, 2024 as well as the constitutional safeguards
governing preventive detention. The respondents, on the other
hand, maintain that the proceedings have been undertaken strictly
in accordance with the provisions of the Act, that the competent
authorities were satisfied regarding the necessity of preventive
detention and that every statutory requirement has been duly
complied with.
18. It is in the backdrop of the aforesaid facts and the
subsequent developments brought on record during the pendency
of the writ petition that the rival submissions fall for
consideration.
19. Upon consideration of the pleadings, the statutory
provisions of the Bihar Control of Crimes Act, 2024 and the rival
stands of the parties, the following questions arise for
determination:
(i). Whether the order of preventive detention initially
passed against the petitioner under the provisions of the Bihar
Control of Crimes Act, 2024 suffers from any jurisdictional
infirmity or procedural illegality warranting interference in
exercise of the writ jurisdiction of this Court.
(ii). Whether the mandatory procedural safeguards
contemplated under the Bihar Control of Crimes Act, 2024 and the
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including consideration of the petitioner’s representation and
compliance with the statutory procedure, were duly observed.
(iii). Whether, after expiry of the period for which the
petitioner’s detention had been confirmed by the State
Government, the District Magistrate possessed the statutory
authority to pass the subsequent order dated 06.06.2026 directing
detention of the petitioner for a further period, or whether such
power could be exercised only by the State Government under the
scheme of the Bihar Control of Crimes Act, 2024.
(iv). Whether the Notification dated 24.03.2026 issued
by the Home Department in exercise of powers under Section
12(2) of the Bihar Control of Crimes Act, 2024 authorised the
District Magistrate to pass the impugned order dated 06.06.2026,
and, if so, whether the said order is consistent with the statutory
framework of the Act.
(v). Whether the impugned orders and consequential
proceedings are liable to be interfered with in exercise of the
extraordinary jurisdiction of this Court.
20. Since the challenge to the subsequent order dated
06.06.2026 goes to the very competence of the authority by whom
it was passed, that issue would require consideration after
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examining the statutory scheme of the Act and the nature of the
power exercised thereunder. The remaining issues shall
accordingly be considered in the sequence in which they arise
from the record.
21. For proper appreciation of rival contentions, it is
necessary to quote a few provisions of the said Act:
Sec. – 2(b) “Anti-social element” means a person who
(i) commits, or attempts to commit or abets the commission of any
offence punishable under chapter XVI or Chapter XVII of the Indian Penal
Code; or
(ii) commits or abets the commission of, any offence connected with
trafficking in women and children under the Immoral Traffic (Prevention) Act,
1956; or
(iii) commits or abets the commission of any offence under the
(iv) by words or otherwise promotes or attempts to promote on grounds
of religion, race, language, caste or community or any other grounds
whatsoever, feelings of enmity or hatred between different religions, racial or
language groups or castes; or
(v) has been found passing indecent remarks to, or teasing women or
girls; or
(vi) has been declared as a Goonda as per provisions of Bihar Police
Manual, 1978; or
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(vii) commits or attempts to commit or abets the commission of offence
of manufacturing or selling or transporting or transferring or illicit trafficking or
converting or repairing or testing or proving any firearm or ammunition, or
being member of an organised crime syndicate or any person on its behalf
possesses or carries firearm or firearms or ammunition in contravention to the
provisions of the Arms Act, 1959.
Explanation–1: For the purpose of this sub-section, “illicit trafficking”
means the acquisition, sale, delivery, movement or transfer of firearms and
ammunition into, from or within the territory of India, if the firearms and
ammunition are not marked in accordance with the provisions of the Arms Act,
1959 or are being trafficked in contravention of the provisions of the said Act
including smuggled firearms of foreign make or prohibited arms and prohibited
ammunition.
Explanation-2: For the purpose of this sub-section, “organized crime
syndicate” means a group of two or more persons who, acting either singly or
collectively, as a syndicate or gang indulging in activities of organized crime.
Explanation-3: “Organized crime” means any continuing unlawful
activity by any person, singly or collectively, either as a member of an
organized crime syndicate or on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or other unlawful means, with the
objective of gaining pecuniary benefits, or gaining undue economic or other
advantage for himself or any person; or
(vii) commits or attempts to commit or abets the commission of any
offence in respect of sand, punishable under the Mines and Minerals
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14/74(Development and Regulation) Act, 1957 (Central Act 67 of 1957) or under the
Bihar Minerals (Concession and Prevention of Illegal Mining, Transport and
Storage) Rules, 2019 or any other law for the time being in force; or
(ix) distills, manufactures, stores, transports, sells or distributes any
liquor, intoxicating drug or other intoxicant in contravention of any of the
provisions of the Bihar Excise & Prohibition Act, 2016, Narcotics Drugs and
Psychotropic Substances Act, 1985, as amended from time to time or any other
law prohibiting such activities for the time being in force, and the rules,
notifications and orders made thereunder, or in contravention of any other law
for the time being in force, or who knowingly expends or applies any money or
supplies any animal, vehicle, vessel or other conveyance or any receptacle or
any other material whatsoever in furtherance or support of the doing of any of
the above mentioned things by or through any other person, or who abets in any
other manner the doing of any such thing; or
(x) commits or attempts to commit or abets the commission of any
offence, punishable under Chapter XI of the Information Technology Act, 2000
(Central Act 21 of 2000); or
(xi) either by himself or as a member of or leader of a gang illegally
and unauthorisedly, by use of force or threat or by any other unlawful means,
takes possession or attempts to take possession of any land or house or any
other property whether belonging to the Government, local authority or any
other person.
“Sec. – 2(f) The phrase “commits an offence” wherever used in
relation to an antisocial element in this Act means a person, against whom,
during twenty-four months immediately preceding the commencement of any
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filed in the Court of law showing his involvement in offences referred to in sub-
section (b).”
Sec. 12. Power to make orders detaining certain
persons. – The State Government may. –
1. If it is satisfied that there is reason to fear that
an anti-social element cannot be prevented from acting in any
manner prejudicial to the maintenance of public order otherwise
than by the immediate detention of such person, make an order
directing that such anti-social element be detained.
2. If, having regard to the circumstances
prevailing or likely to prevail in any area within the local limits of
the jurisdiction of a District Magistrate, the State Government is
satisfied that it is necessary so to do, it may by an order in writing
direct, that during such period as may be specified in the order,
such District Magistrate may also, if satisfied as provided in sub-
section (1) exercise the power conferred upon by the said sub-
section:
Provided that the period specified in an order
made by the State Government under this sub-section shall not, in
the first instance exceed six months, but the State Government
may, if satisfied as aforesaid that it is necessary so to do, amend
such order to extend such period from time to time by any period
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3. When any order is made by District Magistrate,
he shall forthwith report the fact to the State Government together
with the grounds on which the order has been made and such
other particulars as, in his opinion, have a bearing on the matter,
and no such order shall remain in force for more than 12 days
after the making thereof unless, in the meantime, it has been
approved by the State Government:
Provided that where under Section 19 the grounds
of detention are communicated by the officer making the order
after five days but not later than ten days from the date of
detention, this, sub-section shall apply subject to the modification
that, for the words “twelve days”, the words “fifteen days” shall be
substituted.
22. So far as the new Order of preventive detention: It is
nowhere stated in the relevant statute that the District Magistrate
is empowered to pass only 1 & solitary order of preventive
detention and further order of detention shall be passed only by
the State Government. If new material within the scope of Section
2(b) is unearthed against an anti-social element, the Police
Authority has the power to apply for a fresh order for preventive
detention before the District Magistrate.
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23. In the instant case, vide Letter No. dated
04.06.2026, the S.S.P. Patna made an application before the
District Magistrate, Patna, for issuance of a fresh (Navin / नवीन)
detention order against the petitioner. The District Magistrate
passed the order impugned on the basis of the application made by
the Senior Superintendent of Police, Patna.
24. In Para 17 of I.A. 02 of 2026, the Petitioner himself
admitted that the detention order dated 11.06.2026 is not in
continuation of previous detention of the Petitioner, but it is a
fresh order passed by Home (Police) Department.
25. By Home (Police) Department Notification No.
3958/Patna dated 24.03.2026, the Governor of Bihar was pleased
to empower the District Magistrates of the Districts of Bihar to
pass preventive orders under Section 12(2) of the said Act within
the jurisdiction of the District. Therefore, the D.M. Patna was
empowered to act on behalf of the State Government and to pass
successive orders of preventive detention under the said Act. The
order of D.M. was approved subsequently by the State
Government.
26. Ms. Nivedita Nirvikar, learned Senior Counsel
appearing on behalf of the petitioner, assailed the impugned orders
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of preventive detention as being contrary to the provisions of the
Bihar Control of Crimes Act, 2024, as well as the constitutional
safeguards embodied under Articles 21 and 22 of the Constitution
of India. According to the learned Senior Counsel, the impugned
orders suffer from a patent lack of jurisdiction, non-application of
mind and failure to satisfy the statutory preconditions necessary
for invoking the extraordinary power of preventive detention.
27. Learned Senior Counsel submitted that the very
foundation of the detention order rests upon an erroneous
assumption that the petitioner answers the description of an “anti-
social element” within the meaning of Section 2(b) of the Act of
2024. It was contended that the expression employed by the
legislature under Section 2(b) cannot be construed in a casual or
expansive manner so as to bring within its fold every person
against whom criminal cases have been registered. Referring to
the language employed in the statutory definition, it was argued
that the legislature has consciously used the expression “commits
or attempts to commit or abets the commission of offences”,
which necessarily contemplates the existence of legally admissible
material satisfying the statutory requirements before the drastic
power of preventive detention can be invoked.
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28. Elaborating the above submission, learned Senior
Counsel contended that the statutory requirement cannot be
satisfied merely on the basis of registration of criminal cases,
institution of police investigations or incorporation of Sanha
entries. According to her, unless the statutory conditions
prescribed under the Act are demonstrably fulfilled, the detaining
authority could not have recorded its subjective satisfaction
regarding the petitioner’s status as an anti-social element.
29. It was further submitted that several incidents relied
upon in the grounds of detention were either under investigation
on the date of passing of the detention order or were founded
merely upon station diary entries which, by themselves, possess
no evidentiary value for the purpose of preventive detention.
Learned Senior Counsel argued that the detaining authority failed
to distinguish between allegations under investigation and
material capable of satisfying the statutory requirements under the
Act.
30. Learned Senior Counsel next submitted that the
impugned order discloses complete non-application of mind.
According to her, the District Magistrate merely reproduced the
proposal forwarded by the Superintendent of Police without
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independently scrutinising whether the material placed before him
was sufficient to justify the extraordinary measure of preventive
detention. It was argued that the subjective satisfaction required
under the Act is that of the detaining authority itself and cannot be
substituted by the opinion or recommendation of the sponsoring
authority.
31. It was further contended that the materials relied
upon in the grounds of detention, even if accepted in their entirety,
disclose at best issues relatable to maintenance of law and order
and do not satisfy the higher threshold of disturbance of public
order, which alone can justify preventive detention. Learned
Senior Counsel submitted that ordinary criminal law was fully
capable of addressing the allegations against the petitioner and,
therefore, invocation of preventive detention amounted to an
abuse of the statutory power.
32. Learned Senior Counsel also questioned the manner
in which the petitioner’s representation was dealt with by the
authorities. It was submitted that the constitutional safeguard of an
effective and meaningful consideration of the representation is an
indispensable requirement under Article 22(5) of the Constitution
and the provisions of the Act. According to her, the rejection of the
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representation was mechanical and did not disclose any
independent application of mind by the competent authority.
33. A substantial part of the submissions was directed
against the subsequent order dated 06.06.2026. Learned Senior
Counsel argued that once the initial order of detention had been
approved and confirmed by the State Government in accordance
with the statutory scheme, the District Magistrate became functus
officio and lacked the jurisdiction to pass a fresh order of
detention in respect of the same petitioner. According to her, the
subsequent order is wholly without authority of law and liable to
be quashed on the ground of inherent lack of jurisdiction.
34. Referring to Section 12 of the Act of 2024 and the
notification issued thereunder, learned Senior Counsel submitted
that the notification cannot enlarge or confer a substantive power
which the statute itself does not contemplate. It was argued that
delegated authority must operate strictly within the confines of the
parent enactment and cannot be construed so as to authorise
successive detention orders by the District Magistrate after the
matter has already attained the stage of confirmation by the State
Government.
35. In support of the aforesaid submissions, learned
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Senior Counsel placed reliance upon the decisions of the Hon’ble
Supreme Court in Ahamed Nassar v. State of Tamil Nadu, reported
in (1999) 8 SCC 473, K.S. Nagamuthu v. State of Tamil Nadu,
reported in (2006) 4 SCC 792, Rekha v. State of Tamil Nadu,
reported in (2011) 5 SCC 244, Sayed Abul Ala v. Union of India,
reported in (2007) 15 SCC 208, besides Nuzhat Perween v. State
of U.P., reported in 2020 SCC OnLine All 984, and the judgments
of this Court in Srikant Roy v. State of Bihar, passed in Cr.W.J.C.
271 of 2014 and Manoj Kumar Paswan v. State of Bihar, passed in
Cr.W.J.C. 181 of 2024, to contend that the statutory conditions
governing preventive detention require strict compliance, that
subjective satisfaction must be founded upon relevant and cogent
material, and that preventive detention laws, being exceptional in
nature, are liable to be construed with great strictness.
36. Developing her submissions further, learned Senior
Counsel contended that the constitutional and statutory safeguards
governing preventive detention have consistently been interpreted
by the Hon’ble Supreme Court to require strict adherence to the
procedure established by law, regard being had to the serious
consequences flowing from an order of preventive detention. It
was submitted that the extraordinary nature of such power
necessarily warrants strict scrutiny of every jurisdictional fact
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before a person can be deprived of his personal liberty otherwise
than by way of punitive detention.
37. Placing reliance upon Ahamed Nassar (supra),
learned Senior Counsel submitted that preventive detention cannot
be sustained on the basis of mere apprehensions or general
allegations and that the detaining authority must demonstrate that
its subjective satisfaction is founded upon relevant, cogent and
proximate material having a live nexus with the object sought to
be achieved. According to her, stale, irrelevant or extraneous
material cannot constitute the basis of a valid detention order. In
this regard, the Hon’ble Supreme Court in Ahamed Nassar (supra)
laid down as follows:
“20. So far as the stand of the respondent with reference to the
advocate’s letter dated 19-4-1999 is concerned it cannot be held to be a
justifiable stand. These technical objections must be shunned where a
detenu is being dealt with under the preventive detention law. A man is
to be detained in the prison based on the subjective satisfaction of the
detaining authority. Every conceivable material which is relevant and
vital which may have a bearing on the issue should be placed before the
detaining authority. The sponsoring authority should not keep it back,
based on his interpretation that it would not be of any help to a
prospective detenu. The decision is not to be made by the sponsoring
authority. The law on this subject is well settled; a detention order
vitiates if any relevant document is not placed before the detaining
authority which reasonably could affect his decision.”
38. Learned Senior Counsel next relied upon K.S.
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Nagamuthu (supra) to contend that the satisfaction contemplated
under the preventive detention law must be the independent
satisfaction of the detaining authority and not a mechanical
approval of the proposal forwarded by the sponsoring authority.
It was submitted that where the detention order merely
reproduces the contents of the police dossier without independent
evaluation of the materials placed on record, the order is liable to
be invalidated on the ground of non-application of mind.
Highlighting the imperative to place all vital materials before the
detaining authority, the Supreme Court in K.S. Nagamuthu
(supra) held:
“10. We cannot accept the contention urged on behalf of the
respondents that the letter should have been addressed to the
sponsoring authority in this case, namely, the Additional Director
General, Directorate of Revenue Intelligence, Chennai 1 on whose
recommendation the detaining authority passed the order of detention.
This is because the date on which the said retraction was made and
communicated by the appellant, no detention order had been passed and
therefore, there was no question of the detenu knowing that the
communication has to be addressed to the sponsoring authority. In fact,
on that date, to the knowledge of the appellant detenu there was no
sponsoring authority. The question then arises as to whom the letter
should have been addressed. It appears that the detenu had handed over
the letter of retraction to his advocate, who got it delivered in the office
of the Assistant Commissioner of Customs (Adjudication-AIR), Customs
House, Chennai 1, though it was addressed to the Superintendent of
Customs (AIR), Customs House, Chennai 1. It appears that both the
offices are located in the same building, namely, Customs House at
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
25/74Chennai. Having regard to the facts and circumstances of the case, we
cannot say that the letter was not communicated to the appropriate
authority because on that date, the appellant had no knowledge that the
order of detention was about to be passed under cofeposa. The letter
undoubtedly was received by the Assistant Commissioner of Customs
(Adjudication-AIR) whose office was located in Customs House. The
Assistant Commissioner of Customs is a responsible officer and should
have known to whom such letters should be sent. In these circumstances,
we cannot accept the submission urged on behalf of the respondents that
the letter of retraction was not communicated to the appropriate
authority. It is not disputed that the letter addressed to the
Superintendent of Customs (AIR), Customs House, Chennai was, in fact,
delivered on 7-1-2004 as is apparent from the seal on the receipt and as
admitted in the counter-affidavit by the State of Tamil Nadu. There is no
reason why it should not have been placed before the detaining
authority for his consideration. It has not been disputed that the said
letter of retraction contained relevant material, which ought to have
been considered by the detaining authority before passing an order of
detention. Since relevant material was withheld from the detaining
authority, the order of detention must be struck down as being illegal.
We accordingly, quash the order of detention.”
39. Referring to the celebrated decision of the Hon’ble
Supreme Court in Rekha (supra), learned Senior Counsel argued
that preventive detention is an exceptional measure and cannot be
employed as a substitute for the ordinary criminal justice system.
It was contended that where the ordinary penal law is adequate to
deal with the alleged criminal activities of an individual, recourse
to preventive detention would amount to an abuse of statutory
power. Learned Senior Counsel submitted that the materials relied
upon against the petitioner unmistakably demonstrate that the
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
26/74
ordinary criminal law had already been set in motion and,
therefore, there existed no justification for invoking the
extraordinary power of preventive detention. Emphasizing the
principal, the Supreme Court in Rekha (supra) observed:
“30. Whenever an order under a preventive detention law is challenged
one of the questions the court must ask in deciding its legality is: was
the ordinary law of the land sufficient to deal with the situation? If the
answer is in the affirmative, the detention order will be illegal. In the
present case, the charge against the detenu was of selling expired drugs
after changing their labels. Surely the relevant provisions in the Penal
Code and the Drugs and Cosmetics Act were sufficient to deal with this
situation. Hence, in our opinion, for this reason also the detention order
in question was illegal.”
“33. No doubt it has been held in the Constitution Bench decision
in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] that
even if a person is liable to be tried in a criminal court for commission
of a criminal offence, or is actually being so tried, that does not debar
the authorities from passing a detention order under a preventive
detention law. This observation, to be understood correctly, must,
however, be construed in the background of the constitutional scheme in
Articles 21 and 22 of the Constitution (which we have already
explained). Article 22(3)(b) is only an exception to Article 21 and it is
not itself a fundamental right. It is Article 21 which is central to the
whole chapter on fundamental rights in our Constitution. The right to
liberty means that before sending a person to prison a trial must
ordinarily be held giving him an opportunity of placing his defence
through his lawyer. It follows that if a person is liable to be tried, or is
actually being tried, for a criminal offence, but the ordinary criminal
law (the Penal Code or other penal statutes) will not be able to deal
with the situation, then, and only then, can the preventive detention law
be taken recourse to.”
40. Reliance was also placed upon Sayeed Abdul Ala
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
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(supra) to contend that the distinction between ‘law and order’ and
‘public order’ is fundamental to the exercise of preventive
detention jurisdiction. It was submitted that every infraction of
law or every criminal act does not ipso facto affect public order
and that the detaining authority must objectively satisfy itself that
the alleged activities have disturbed, or are likely to disturb, the
even tempo of public life. According to learned Senior Counsel,
the allegations against the petitioner, even if accepted in their
entirety, do not travel beyond issues concerning law and order. In
Sayed Abdul Ala (supra), the apex court underscored the strict
scrutiny required for subjective satisfaction:
“21. Proper application of mind on the part of the detaining authority
must, therefore, be borne out from the order of detention. In cases where
the detenu is in custody, the detaining authority not only should be
aware of the said fact but there should be some material on record to
justify that he may be released on bail having regard to the restriction
imposed on the power of the court as it may not arrive at the conclusion
that there existed reasonable grounds for believing that he was not
guilty of such offence and that the detenu could not indulge in similar
activity, if set at liberty.”
41. Learned Senior Counsel further relied upon the
decision of the Allahabad High Court in Nuzhat Perween (supra)
and the judgments of this Court in Srikant Roy (supra) and Manoj
Kumar Paswan(supra) to contend that the statutory conditions
prescribed for invoking preventive detention are mandatory in
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
28/74
nature and that the jurisdictional facts necessary for branding a
person as an anti-social element must exist on the date the order of
detention is passed. It was argued that the materials relied upon by
the respondents do not satisfy the statutory threshold contemplated
under the Act of 2024 and, consequently, the very assumption of
jurisdiction by the detaining authority is legally unsustainable. In
Nuzhat Perveen (supra) the Division bench held:
“35. We are in absolute agreement with learned Additional Advocate
General that it is not open for the courts to substitute their opinion by
interfering with “subjective satisfaction of the detaining authority”.
However, it does not mean that the court cannot look into the material
on which detention is based. The expression “subjective satisfaction”
means the satisfaction of a reasonable man that can be arrived at on the
basis of some material which satisfies a rational man. It does not refer
to whim or caprice of the authority concerned. While assessing
“subjective satisfaction of the detaining authority” the Court examining
a petition seeking a writ of habeas corpus has to look into the record to
examine whether the subjective satisfaction is acceptable to a
reasonable wisdom and that satisfies rationality of normal thinking and
analyzing process. The grounds for detention with supporting material
is also required to be looked into to ascertain whether it is sufficient to
enable the detenue to make his representation at earliest, of course, this
opportunity must be effective and real. In view of above, we have looked
into the speech delivered by the detenue. The closure of examining
record as suggested would be nothing but a licence to allow the
executives to act at their whims or caprice. This would be against the
fundamentals of our constitutional values and provisions.”
“43. Testing the action taken against the detenue on the above principle,
it appears other things apart, there is a serious lack of objective
material on record as may have given rise to a valid subjective
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
29/74satisfaction with the detaining authority to preventively detain the
detenue on 13.02.2020. The exact nature of the contents of the lecture
delivered by the detenue on 12.12.2019 at the Bab-e-Syed Gate of the
AMU (as claimed by the state authorities), even if accepted to be
correct, it cannot be overlooked that, that material could not be relevant
for the purpose of satisfaction being drawn two months thereafter,
inasmuch during that period of two months, undisputedly, the detenue
neither visited the city of Aligarh nor he made any further or other
speech or lecture connected thereto nor there is any material shown to
us that the detenue was about to commit any act in furtherance thereto
or was going to deliver any other speech or lecture connected thereto as
may have prejudiced the public order. Mere apprehension expressed in
the grounds of detention, not founded on any material shown to exist on
record, if allowed to stand, would fall foul with the test laid down by the
Supreme Court in Khudi Ram Das (supra), inasmuch as, neither there is
any objective material giving rise to the subjective satisfaction nor the
subjective satisfaction is found to have been reached in a legal and
regular manner but on whim and humour.”
Similarly in Srikant Roy (supra) this court held:
“35. A microscopic reading of the provisions, embodied in sub-Section
(1) of Section 12 of Bihar Control of Crimes Act, 1981, makes it
transparent that merely because a person acts in a manner prejudicial
to maintenance of public order, he cannot be placed under preventive
detention unless there is reason to fear that the activities of the anti-
social element (which he is), cannot be prevented otherwise than by his
immediate arrest.”
“37. In other words, in order to be taken into preventive detention, one
must be an anti-social element and the detaining authority must be
satisfied that his act is prejudicial to maintenance of public order and
there must be reason to fear that such anti-social element’s activities
cannot be prevented otherwise than by his immediate arrest. In absence
of these conditions precedent, the power, under Section 12(1) of Bihar
Control of Crimes Act, 1981, cannot be invoked and one cannot be
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
30/74taken into preventive detention.”
Likewise, in Manoj Kumar Paswan (supra), this court
reiterated:
“9. From a bare reading of sub-section (i) of Section 3 of Bihar Control
of Crimes Act, 1981, it becomes abundantly clear that a person has to
be an anti-social element within the meaning of Section 2(d) of Bihar
Control of Crimes Act, 1981, in order to bring him within the ambit of
Section 3 of Bihar Control of Crimes Act, 1981, so that an order of
externment can be made against him. Considered in this light, it
becomes crystal clear that unless a person is an anti-social element
within the meaning of Section 2(d) of Bihar Control of Crimes Act,
1981, a District Magistrate does not derive the jurisdiction, power or
authority to make an order of externment by taking recourse to Section
3 of Bihar Control of Crimes Act, 1981.”
42. On the aforesaid premises, learned Senior Counsel
urged that the impugned orders of detention, together with all
consequential actions taken pursuant thereto, deserve to be
quashed as being violative of the constitutional guarantees under
Articles 21 and 22 of the Constitution of India and the mandatory
provisions of the Bihar Control of Crimes Act, 2024.
43. Per contra, learned Advocate General appearing on
behalf of the State, supported the impugned orders and contended
that the writ petition is wholly devoid of merit, both on facts and
in law. It was submitted that the detention order has been passed
strictly in accordance with the provisions of the Bihar Control of
Crimes Act, 2024 after due consideration of the materials placed
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
31/74
before the detaining authority, and that all constitutional and
statutory safeguards have been scrupulously observed throughout
the proceedings.
44. Learned Advocate General for the State submitted,
at the outset, that the entire edifice of the petitioner’s challenge
proceeds on an erroneous interpretation of the provisions of the
Act of 2024. According to him, the petitioner seeks to import
principles applicable to earlier preventive detention legislations
while completely overlooking the scheme and language
consciously adopted by the Legislature under the Bihar Control of
Crimes Act, 2024. It was argued that the provisions of the present
enactment are materially different and, therefore, the statutory
expressions employed therein must receive their plain and
ordinary meaning.
45. Referring specifically to Section 2(b) of the Act,
learned counsel submitted that the Legislature has deliberately
employed the expression “commits or attempts to commit or abets
the commission of offences” and has consciously refrained from
making conviction a condition precedent for treating a person as
an “anti-social element”. According to him, the definition is
founded upon the conduct and activities of the individual and not
upon the culmination of criminal proceedings in conviction.
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
32/74
Consequently, the petitioner’s contention that preventive detention
can be resorted to only after conviction or final adjudication of
criminal cases is contrary to the express language of the statute.
46. It was further submitted that the statutory
requirement under Section 2(b) stood fully satisfied in the present
case. Learned counsel contended that, prior to the passing of the
initial order of detention, charge-sheets had already been
submitted in the requisite number of criminal cases, while the
remaining criminal antecedents, including those under
investigation, were considered only as part of the petitioner’s
overall criminal profile. It was argued that the detention order is
not founded merely upon Sanha entries or pending investigations,
as has been suggested on behalf of the petitioner.
47. Learned Advocate General submitted that the Sanha
entries and other contemporaneous police records merely
constituted supporting material reflecting the continuous criminal
activities attributed to the petitioner and were considered along
with the registered criminal cases, charge-sheets and other
relevant records. It was contended that the grounds of detention
clearly disclose the materials which weighed with the detaining
authority and demonstrate that the subjective satisfaction was
arrived at upon consideration of the entire record rather than any
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
33/74
isolated circumstance.
48. Repelling the allegation of non-application of mind,
learned counsel argued that the District Magistrate independently
examined the proposal submitted by the sponsoring authority,
scrutinised the relevant records and thereafter recorded his
subjective satisfaction in accordance with law. According to him,
merely because the detaining authority accepted the
recommendation of the Superintendent of Police does not lead to
an inference that the satisfaction was mechanical or that the
statutory duty was abdicated. It was submitted that the law
recognises the sponsoring authority as the source of information,
while the ultimate satisfaction nevertheless remains that of the
detaining authority.
49. Learned Advocate General for the State further
submitted that the petitioner’s attempt to characterize the alleged
activities as involving merely issues of “law and order” is wholly
misconceived. It was contended that the activities attributed to the
petitioner, viewed cumulatively and in the backdrop of his
criminal antecedents, had created a sense of fear and insecurity
amongst the residents of the locality, thereby disturbing the even
tempo of public life. According to him, the detaining authority
rightly arrived at the conclusion that the petitioner’s activities were
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
34/74
prejudicial to the maintenance of public order, warranting
invocation of the provisions of the Act of 2024.
50. Meeting the contention regarding the petitioner’s
representation, learned counsel submitted that the constitutional
and statutory safeguards have been meticulously complied with at
every stage. It was argued that immediately upon the order of
detention being passed, the petitioner was duly informed of the
grounds of detention and of his right to make a representation
against the order. The representation submitted on behalf of the
petitioner was considered by the competent authority in
accordance with law and was rejected after due application of
mind. It was, therefore, contended that there has been no
infraction of Article 22(5) of the Constitution or of any provision
of the Act of 2024.
51. Learned Advocate General further submitted that the
matter was thereafter placed before the Advisory Board within the
period prescribed under the Act. Upon examining the relevant
records and after affording the petitioner an opportunity of
hearing, the Advisory Board opined that there existed sufficient
cause for the detention of the petitioner. Acting upon the opinion
of the Advisory Board, the State Government confirmed the order
of detention in accordance with the statutory procedure. It was,
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
35/74
therefore, submitted that every procedural safeguard contemplated
under the Act stood duly complied with.
52. Refuting the challenge to the subsequent order dated
06.06.2026, learned Advocate General submitted that the said
order was neither a continuation nor a mere reiteration of the
earlier detention order. According to him, subsequent to the
confirmation of the initial detention, fresh materials came into
existence, including submission of additional charge-sheets in
criminal cases involving the petitioner, which constituted the basis
of a fresh proposal forwarded by the sponsoring authority. It was
contended that the subsequent order was thus founded upon fresh
and independent material and cannot be characterised as a
repetition of the earlier order.
53. Learned Advocate General further contended that
the District Magistrate was fully competent to pass the order dated
06.06.2026 by virtue of the notification dated 24.03.2026 issued
by the State Government under Section 12(2) of the Bihar Control
of Crimes Act, 2024, whereby the powers exercisable under the
said provision had been delegated to the District Magistrates for
the period specified therein. It was submitted that the notification
was issued in exercise of statutory authority and, therefore, the
challenge to the competence of the District Magistrate is wholly
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
36/74
devoid of substance.
54. Learned Advocate General urged that the
notification issued under Section 12(2) is a valid exercise of
statutory power and clearly authorised the District Magistrate to
pass an order of preventive detention upon being satisfied that the
circumstances contemplated under the Act existed. According to
him, the contention that only the State Government could have
exercised such power is contrary to the express language of
Section 12 and the notification issued thereunder. It was submitted
that the order dated 06.06.2026 was, therefore, passed by a
competent authority acting strictly within the bounds of the
statutory framework.
55. In support of the aforesaid submissions, learned
counsel placed reliance upon the Constitution Bench judgment of
the Hon’ble Supreme Court in Haradhan Saha v. State of West
Bengal reported in (1975) 3 SCC 198, besides the decisions
rendered by this Court in Manoj Kumar Paswan v. State of Bihar
(supra), Rajesh Kumar v. State of Bihar passed in Cr.W.J.C. No.
1019 of 2026, and other decisions dealing with the scope of
judicial review in matters relating to preventive detention. It was
submitted that the settled legal position is that the Court, while
exercising jurisdiction under Article 226 of the Constitution, does
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
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not sit in appeal over the subjective satisfaction of the detaining
authority and interference is warranted only where the order is
shown to be vitiated by mala fides, non-compliance with
mandatory statutory safeguards, consideration of extraneous
material or patent non-application of mind.
56. In Haradhan Saha (supra), the Constitution Bench
authoritatively observed:
“34. The recent decisions of this Court on this subject are many. The
decisions in Borjahan Gorey v. State of W.B. [(1972) 2 SCC 550 : 1972
SCC (Cri) 888] , Ashim Kumar Ray v. State of W.B. [(1973) 4 SCC 76 :
1973 SCC (Cri) 723] ; Abdul Aziz v. District Magistrate,
Burdwan [(1973) 1 SCC 301 : 1973 SCC (Cri) 321] and Debu
Mahato v. State of W.B. [(1974) 4 SCC 135 : 1974 SCC (Cri) 274]
correctly lay down the principles to be followed as to whether a
detention order is valid or not. The decision in Biram Chand v. State of
U.P. [(1974) 4 SCC 573 : 1974 SCC (Cri) 609] which is a Division
Bench decision of two learned Judges is contrary to the other Bench
decisions consisting in each case of three learned Judges. The
principles which can be broadly stated are these. First, merely because
a detenu is liable to be tried in a criminal court for the commission of a
criminal offence or to be proceeded against for preventing him from
committing offences dealt with in Chapter VIII of the Code of Criminal
Procedure would not by itself debar the Government from taking action
for his detention under the Act. Second, the fact that the Police arrests a
person and later on enlarges him on bail and initiates steps to prosecute
him under the Code of Criminal Procedure and even lodges a first
information report may be no bar against the District Magistrate
issuing an order under the preventive detention. Third, where the
concerned person is actually in jail custody at the time when an order of
detention is passed against him and is not likely to be released for a fair
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
38/74length of time, it may be possible to contend that there could be no
satisfaction on the part of the detaining authority as to the likelihood of
such a person indulging in activities which would jeopardise the
security of the State or the public order. Fourth, the mere circumstance
that a detention order is passed during the pendency of the prosecution
will not violate the order. Fifth, the order of detention is a precautionary
measure. It is based on a reasonable prognosis of the future behaviour
of a person based on his past conduct in the light of the surrounding
circumstances.”
57. Likewise, in Rajesh Kumar v. State of Bihar (supra),
this Court analyzed the statutory parameters of the 2024 Act and
noted:
“3. It is in order to deal with such anti-social elements, who are acting
in any manner prejudicial to the maintenance of public order, the
legislatures have conferred some drastic powers upon the District
Magistrate under Section 3 of the BCC Act. The District Magistrate has
been vested with sweeping extraordinary powers under a legislative
scheme which has been structured to bypass standard procedural delays
in controlling organised syndicates. The administration which has to
deal with the maintenance of public order has been conferred with
power to pass order of externment and banishment. This provision has
been made to tackle immediate threat to public order by an anti-social
element. In a catena of judgments, the Hon’ble Supreme Court has been
pleased to hold and declare that while exercising drastic powers the
authorities vested with such powers have to base their decision on
credible information. The information required to be formed in the cases
of the present nature cannot be formed based on imaginary grounds or
wishful thinking. The District Magistrate must be able to show the
materials on the basis of which the believe is formed. Drastic powers
are to be exercised with all circumspection and care. A bald statement
of a police officer without there being any reason to believe cannot be a
basis to exercise the power conferred upon the District Magistrate
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
39/74under Section 3 of the BCC Act. The power of the District Magistrate
cannot be left unbridled and uncanalised. It is draconian in nature
because it has an effect immediately curtailing a citizens fundamental
right to life guaranteed by Chapter-III of the Constitution of India.
Exercise of power under this provision is dependent upon the formation
of a subjective opinion by the District Magistrate that it is necessary so
to do for the purpose of maintaining public order.”
“4. In the case of Kuso Sah vs. The State of Bihar reported in (1974) 1
SCC 185 speaking for the Bench, the then Hon’ble Mr. Justice Y.V.
Chandrachud held as under:- “4. *** The two concepts have well
defined contours, it being well established that stray and unorganised
crimes of theft and assault are not matters of public order since they do
not tend to affect the even flow of public life. Infractions of law are
bound in some measure to lead to disorder but every infraction of law
does not necessarily result in public disorder *** 6. *** The power to
detain a person without the safeguard of a court trial is too drastic to
permit a lenient construction and therefore Courts must be astute to
ensure that the detaining authority does not transgress the limitations
subject to which alone the power can be exercised. ***”
“5. To declare somebody as anti-social element would amount to
casting legal and social stigma which is likely to affect a person in
many ways even after he gets acquitted with honour in the criminal
cases lodged against him. An executive action declaring a person anti-
social element under the BCC Act can predominantly tarnish his
reputation. Legal measures that inflict public stigma must meet strict
constitutional scrutiny. In the cases of Subramanian Swamy vs. Union of
India reported in (2016) 7 SCC 221, State of Bihar vs. Lal Krishna
Advani reported in (2003) 8 SCC 361 and Port of Bombay vs.
Dilipkumar Raghavendranath Nadkarni reported in (1983) 1 SCC 124,
the Hon’ble Supreme Court has held that right to reputation is an
integral part of life and personal liberty under Article 21 of the
Constitution of India. In such circumstance, the order of a District
Magistrate under the BCC Act must ensure that he did not act
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
40/74mechanically”
58. On the aforesaid premises, learned counsel
submitted that the detention order as well as the subsequent order
dated 06.06.2026 were passed strictly in conformity with the
provisions of the Bihar Control of Crimes Act, 2024 and the
constitutional safeguards governing preventive detention. It was,
therefore, urged that the writ petition, being devoid of merit,
deserves to be dismissed.
59. Having heard the learned Senior Counsel appearing
for the petitioner and the learned counsel appearing for the State
and upon perusal of the pleadings and the materials brought on
record, the following questions arise for consideration before this
Court:
(i) Whether the petitioner answers the description of an
“anti-social element” within the meaning of Section 2(b) of the
Bihar Control of Crimes Act, 2024?
(ii) Whether the subjective satisfaction recorded by the
detaining authority is vitiated by non-application of mind,
consideration of irrelevant materials or omission to consider
relevant materials?
(iii) Whether the materials relied upon by the detaining
authority disclose disturbance of “public order” so as to justify
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
41/74invocation of the provisions of the Act of 2024?
(iv) Whether the constitutional and statutory safeguards,
including the petitioner’s right to make an effective representation
and the procedure relating to reference before the Advisory Board,
have been duly complied with?
(v) Whether the District Magistrate possessed the
authority in law to pass the order dated 06.06.2026 in view of the
provisions contained in Section 12 of the Bihar Control of Crimes
Act, 2024 and the Notification dated 24.03.2026 issued
thereunder?
(vi) Whether the impugned orders warrant interference
in exercise of the extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India?
60. Before examining the rival submissions, it is
necessary to notice the provisions of the Bihar Control of
Crimes Act, 2024 which have a direct bearing on the
controversy. The principal challenge in the present writ petition
concerns the petitioner’s detention under the Act and the
competence of the District Magistrate to exercise the power of
preventive detention. The questions framed by this Court
cannot, therefore, be answered without first examining the
relevant statutory scheme.
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
42/74
61. The Act is a legislation providing for preventive
detention in specified circumstances. Its purpose is not to punish
a person for offences already committed, but to prevent
activities which, on the basis of the material available before the
competent authority, are considered prejudicial to the
maintenance of public order. Since an order of preventive
detention authorises deprivation of personal liberty without a
criminal trial, the exercise of such power is necessarily subject
to the limitations imposed by the Constitution as well as the
conditions prescribed under the statute.
62. The issues arising in the present case principally
revolve around two provisions of the Act. The first is Section
2(b), which defines the expression “anti-social element” and
determines the jurisdictional requirement for invoking the
provisions of the Act. The second is Section 12, which regulates
the exercise of the power of preventive detention and the
authority competent to pass such an order. The rival submissions
advanced on behalf of the parties substantially centre around the
true scope of these provisions.
63. The petitioner disputes the satisfaction of the
statutory requirements contained in Section 2(b) and also
questions the competence of the District Magistrate to issue the
Patna High Court CR. WJC No.311 of 2026 dt.06-08-2026
43/74
subsequent order dated 06.06.2026 in the light of the
Notification dated 24.03.2026 issued under Section 12(2) of the
Act. These issues are required to be examined in the context of
the statutory language itself, the principles laid down in the
authorities relied upon by the parties and the material which was
available before the detaining authority at the relevant point of
time.
Whether the petitioner answers the description of
an “anti-social element” within the meaning of Section 2(b)
of the Bihar Control of Crimes Act, 2024?
64. The principal challenge advanced on behalf of the
petitioner is to the very assumption of jurisdiction by the
detaining authority. According to the petitioner, the materials
relied upon by the District Magistrate do not satisfy the statutory
requirements prescribed under Section 2(b) of the Bihar Control
of Crimes Act, 2024 and, consequently, the petitioner could not
have been treated as an “anti-social element” so as to attract the
provisions of the Act. The respondents, on the other hand,
contend that the statutory conditions stood fully satisfied and that
the order of detention has been passed upon due consideration of
the petitioner’s criminal antecedents and other relevant materials.
65. Since the jurisdiction of the detaining authority is
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founded upon the existence of the circumstances contemplated
under Section 2(b), it becomes necessary to first examine the
statutory provision itself. Section 2(b) of the Act defines an “anti-
social element” by prescribing the categories of persons against
whom the provisions of the Act may be invoked. The definition
assumes significance because the existence of the jurisdictional
facts contemplated therein constitutes the very foundation for the
exercise of preventive detention under the Act.
66. Learned Senior Counsel for the petitioner has urged
that the expression employed in Section 2(b), namely, “commits
or attempts to commit or abets the commission of offences”,
necessarily requires strict construction, having regard to the
drastic consequences flowing from an order of preventive
detention. According to the petitioner, mere registration of
criminal cases, pendency of investigation or incorporation of
Sanha entries cannot, by themselves, satisfy the statutory
requirement contemplated under the Act. It is contended that the
materials relied upon by the respondents do not establish the
existence of the jurisdictional facts required by Section 2(b).
67. Per contra, the respondents contend that the
language consciously employed by the Legislature under the Act
of 2024 materially differs from earlier enactments and that the
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expression “commits or attempts to commit or abets the
commission of offences” cannot be interpreted as importing a
requirement of conviction or final adjudication of criminal
liability. According to the respondents, the statute recognises the
conduct and activities of the individual as the relevant
consideration and not merely the eventual outcome of criminal
proceedings. It is further contended that the requisite number of
charge-sheets had already been submitted before the order of
detention came to be passed and that the remaining materials
were considered only as corroborative circumstances depicting
the petitioner’s continuing criminal activities.
68. Since both sides have placed considerable reliance
upon judicial precedents while advancing rival interpretations of
Section 2(b) of the Bihar Control of Crimes Act, 2024, it would
be appropriate to first ascertain the true scope of the statutory
provision. Judicial precedents undoubtedly illuminate the
principles governing preventive detention; however, the starting
point of every exercise of statutory interpretation must necessarily
be the language employed by the Legislature itself. The
authorities cited by the parties shall, therefore, be examined in the
course of interpreting the provision rather than in isolation
therefrom.
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69. Preventive detention occupies a constitutionally
recognised yet exceptional field of law. Unlike punitive detention,
which follows adjudication of criminal guilt, preventive detention
is founded upon the necessity of preventing future prejudicial
activities. Although the Constitution expressly recognises
preventive detention under Article 22, the power authorising
deprivation of personal liberty without trial must receive strict
scrutiny, and every statutory safeguard enacted by the Legislature
must be faithfully observed.
70. Equally settled is the principle that the satisfaction
contemplated under preventive detention law is the subjective
satisfaction of the detaining authority. Such satisfaction, however,
is not immune from judicial review. The Court does not sit in
appeal over the sufficiency of the material, yet it is duty bound to
examine whether the authority acted within jurisdiction,
considered relevant material, excluded irrelevant considerations
and observed the constitutional as well as statutory safeguards
governing preventive detention.
71. The distinction between “law and order” and
“public order” likewise constitutes a settled principle. Every
infraction of criminal law may disturb law and order, but only
those activities whose impact transcends individual victims and
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disturbs the even tempo of community life justify preventive
detention. Whether such threshold stands crossed depends not
merely upon the nature of the offence but equally upon its reach,
frequency, continuity and social impact.
72. The mere pendency of criminal proceedings does
not, by itself, conclude the issue either way. Whether preventive
detention is justified depends upon the statutory requirements of
the Act and the material that was available to the detaining
authority when the order came to be passed. The authorities relied
upon by the parties shall now be examined in that context.
73. It is against the aforesaid constitutional backdrop
that Section 2(b) of the Bihar Control of Crimes Act, 2024
requires examination. The jurisdiction of the detaining authority
is founded not upon the mere existence of criminal cases but upon
the statutory satisfaction that the person answers the description
of an “anti-social element” as defined under the Act. The Court
must therefore ascertain the legislative meaning of the
expressions employed by the Legislature before examining
whether the facts of the present case satisfy those statutory
requirements.
Interpretation of Section 2(b) of the Bihar Control of
Crimes Act, 2024
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74. Section 2(b) constitutes the jurisdictional foundation
upon which the entire machinery of preventive detention under the
Bihar Control of Crimes Act, 2024 rests. Unless the person sought
to be detained answers the statutory description of an “anti-social
element”, the extraordinary power of preventive detention cannot
be invoked. The determination under Section 2(b), therefore, is
not a matter of mere formality but a jurisdictional fact, the
existence whereof is amenable to judicial scrutiny within the well-
settled parameters governing preventive detention.
75. The Legislature has consciously employed the
expression “commits or attempts to commit or abets the
commission of offences”. Each of these expressions possesses an
independent legal significance. The use of the disjunctive “or”
manifests a legislative intention that the provision is attracted not
merely where the person is shown to have actually committed the
specified offences but equally where there exists legally relevant
material disclosing participation through an attempt or abetment.
Had the Legislature intended to confine the provision only to
persons who stood convicted, it could easily have employed
language indicating such intention. The absence of any such
requirement is significant and cannot be ignored while construing
the provision.
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76. Equally significant is the omission of any
requirement that the person must have been convicted by a
competent criminal court before he can be regarded as an anti-
social element. Preventive detention and criminal prosecution
operate in distinct spheres. The object of the former is preventive,
whereas the latter is punitive. To read a requirement of prior
conviction into Section 2(b) would amount to importing words
which the Legislature has deliberately omitted. Such an
interpretation would substantially defeat the preventive object
sought to be achieved by the enactment.
77. At the same time, the absence of a requirement of
conviction does not imply that mere registration of criminal cases
or bald allegations, without anything more, would automatically
satisfy the statutory requirement. Preventive detention, being an
exceptional measure affecting personal liberty, must rest upon
objective materials capable of reasonably supporting the
formation of subjective satisfaction. The detaining authority is,
therefore, required to examine the quality, proximity and
relevance of the material relied upon and not merely its numerical
quantity.
78. The submission advanced on behalf of the petitioner
that pending investigation, by itself, cannot invariably establish
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the existence of the jurisdictional fact deserves careful
consideration. Mere pendency of investigation neither
conclusively establishes criminal conduct nor necessarily renders
the material wholly irrelevant. The relevance of such material
depends upon the surrounding circumstances, the nature of the
allegations, corroborative material available on record and the
overall satisfaction recorded by the detaining authority. No
inflexible rule can therefore be formulated either excluding or
automatically accepting such material.
79. Similar considerations govern the relevance of
charge-sheets. Submission of a charge-sheet undoubtedly lends
greater assurance to the existence of prima facie material collected
during investigation. Nevertheless, the filing of a charge-sheet
does not, by itself, conclude the enquiry under Section 2(b).
Preventive detention does not proceed upon proof of guilt beyond
reasonable doubt. Equally, it cannot proceed merely because a
charge-sheet has been submitted. The authority must still
independently assess whether the material depicts continuing
activities of the nature contemplated by the statute.
80. Learned Senior Counsel has also questioned the
reliance placed upon Sanha entries. A station diary entry or Sanha
cannot, by itself, be equated with substantive evidence
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establishing criminal conduct. Such entries are primarily
administrative records maintained during the course of policing.
Nevertheless, where such entries merely corroborate other legally
relevant material depicting a continuing pattern of conduct, they
cannot be discarded altogether. The evidentiary weight to be
attached to such material necessarily depends upon the facts of
each case and the extent to which it supports independent material
otherwise available before the detaining authority.
81. The expression “anti-social element” likewise
cannot be construed in isolation. The definition under Section 2(b)
must be understood in the context of the object of the Act, namely,
maintenance of public order. The legislative focus is not upon
isolated criminality but upon conduct demonstrating such
continuity, propensity or organised nature as renders ordinary
preventive measures inadequate. The inquiry is thus qualitative
rather than merely quantitative.
82. This Court is, therefore, of the considered opinion
that Section 2(b) neither requires proof of conviction nor
authorises preventive detention upon the mere existence of
unverified allegations. The statutory requirement stands satisfied
only where the materials placed before the detaining authority,
viewed cumulatively, are reasonably capable of establishing the
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jurisdictional fact that the person answers the statutory description
of an anti-social element and that preventive detention has a
rational nexus with the maintenance of public order.
83. Furthermore, on the aspect of habitual commission
of offences and temporal nexus, guidance is drawn from the
decision of the Hon’ble Supreme Court in Vijay Narain Singh v.
State of Bihar reported in (1984) 3 SCC 14, wherein the Apex
Court construed the term “habitually” under the Bihar Control of
Crimes Act as follows:
“31. It is seen from Section 12 of the Act that it makes provision for the
detention of an anti-social element. If a person is not an anti-social
element, he cannot be detained under the Act. The detaining authority
should, therefore, be satisfied that the person against whom an order is
made under Section 12 of the Act is an anti-social element as defined in
Section 2(d) of the Act. Sub-clauses (ii), (iii) and (v) of Section 2(d) of
the Act which are not quite relevant for the purposes of this case may be
omitted from consideration for the present. The two other sub-clauses
which need to be examined closely are sub-clauses (i) and (iv) of
Section 2(d). Under sub-clause (i) of Section 2(d) of the Act, a person
who either by himself or as a member of or leader of a
gang habitually commits or attempts to commit or abets the commission
of offences punishable under Chapter XVI dealing with offences
affecting the human body or Chapter XVII dealing with offences against
property, of the Penal Code, 1860 is considered to be an anti-social
element. Under sub-clause (iv) of Section 2(d) of the Act, a person who
has been habitually passing indecent remarks to, or teasing women or
girls, is an anti-social element. In both these sub-clauses, the word
“habitually” is used. The expression “habitually” means “repeatedly”
or “persistently”. It implies a thread of continuity stringing together
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similar repetitive acts. Repeated, persistent and similar, but not isolated,
individual and dissimilar acts are necessary to justify an inference of
habit. It connotes frequent commission of acts or omissions of the same
kind referred to in each of the said sub-clauses or an aggregate of
similar acts or omissions. This appears to be clear from the use of the
word “habitually” separately in sub-clause (i), sub-clause (ii) and sub-
clause (iv) of Section 2(d) and not in sub-clauses (iii) and (v) of Section
2(d). If the State Legislature had intended that a commission of two or
more acts or omissions referred to in any of the sub-clauses (i) to (v) of
Section 2(d) was sufficient to make a person an “anti-social element”,
the definition would have run as “Anti-social element” means “a
person who habitually is. ..”. As Section 2(d) of the Act now stands,
whereas under sub-clause (iii) or sub-clause (v) of Section 2(d) a single
act or omission referred to in them may be enough to treat the person
concerned as an ‘antisocial element’, in the case of sub-clause (i), sub-
clause (ii) or sub-clause (iv), there should be a repetition of acts or
omissions of the same kind referred to in sub-clause (i), sub-clause (ii)
or in sub-clause (iv) by the person concerned to treat him as an “anti-
social element”. Commission of an act or omission referred to in one of
the sub-clauses (i), (ii) and (iv) and of another act or omission referred
to in any other of the said sub-clauses would not be sufficient to treat a
person as an “anti-social element”. A single act or omission falling
under sub-clause (i) and a single act or omission falling under sub-
clause (iv) of Section 2(d) cannot, therefore, be characterised as a
habitual act or omission referred to in either of them. Because the idea
of “habit” involves an element of persistence and a tendency to repeat
the acts or omissions of the same class or kind, if the acts or omissions
in question are not of the same kind or even if they are of the same kind
when they are committed with a long interval of time between them they
cannot be treated as habitual ones.”
84. The rival authorities cited before this Court must
now be examined in the light of the aforesaid interpretation. The
precedents do not substitute the statutory language; they explain
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the constitutional limitations within which the statutory power is
to be exercised. It is, therefore, necessary to examine the
principles emerging from those decisions before applying the
interpreted provision to the facts of the present case.
85. The respondents have principally relied upon the
Constitution Bench decision in Haradhan Saha v. State of West
Bengal (supra). The Constitution Bench authoritatively explained
that preventive detention and criminal prosecution operate in two
distinct fields. Criminal prosecution is intended to punish an
individual for acts already committed after adjudication in
accordance with law, whereas preventive detention seeks to
prevent the commission of future prejudicial activities.
Consequently, the mere existence or pendency of criminal
proceedings does not, by itself, denude the competent authority of
the power to invoke preventive detention where the statutory
conditions are otherwise satisfied.
86. The Constitution Bench further held that the Court
exercising judicial review does not sit in appeal over the
subjective satisfaction recorded by the detaining authority. Judicial
scrutiny remains confined to examining whether the statutory
conditions existed, whether the authority acted within jurisdiction,
whether relevant material was considered, whether irrelevant
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considerations entered the decision-making process and whether
the constitutional as well as statutory safeguards governing
preventive detention were duly observed. These principles
continue to constitute the governing framework within which
subsequent decisions relating to preventive detention are required
to be understood.
87. Learned Senior Counsel, however, placed
considerable reliance upon the decision of the Hon’ble Supreme
Court in Rekha (supra) to contend that where the ordinary
criminal law is capable of dealing with the alleged activities of the
detenue, resort to preventive detention becomes impermissible.
The submission, though attractive at first blush, requires careful
examination in the context in which the said decision was
rendered.
88. In Rekha (supra), the Supreme Court emphasised
that preventive detention cannot be employed as a substitute for
the ordinary criminal process merely because criminal prosecution
may involve procedural complexities or because the prosecuting
agency considers preventive detention to be administratively
convenient. The decision reiterates that the extraordinary
jurisdiction under preventive detention statutes must be exercised
only where the ordinary criminal law is genuinely inadequate to
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prevent the anticipated prejudicial activities.
89. The principle enunciated in Rekha (supra) cannot,
however, be read divorced from the Constitution Bench decision
in Haradhan Saha (supra). The two decisions occupy different
fields. While Haradhan Saha (supra) recognises that criminal
prosecution and preventive detention are not mutually exclusive
remedies, Rekha (supra) emphasises that preventive detention
cannot be mechanically invoked in every criminal case. Properly
understood, both decisions require the detaining authority to
demonstrate, upon relevant material, that preventive detention has
become necessary notwithstanding the availability of the ordinary
criminal process.
90. The remaining decisions relied upon by the
petitioner, including Ahmad Nassar (supra), K.S. Nagamuthu
(supra), Sayeed Abdul Ala (supra) and Nuzhat Perween (supra),
substantially reiterate the settled propositions that preventive
detention laws, being exceptional in nature, require strict
adherence to constitutional safeguards, that the subjective
satisfaction must rest upon relevant material and that preventive
detention cannot be sustained where the statutory requirements
remain unfulfilled. None of these decisions lays down a principle
inconsistent with the constitutional framework explained by the
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Constitution Bench in Haradhan Saha (supra).
91. Likewise, the decisions rendered by this Court in
Srikant Roy (supra), Manoj Kumar Paswan (supra) and the
judgments placed by the respondents under the Bihar Control of
Crimes Act principally turn upon the factual sufficiency of the
material considered by the detaining authority in those respective
cases. They illustrate the application of settled principles to
particular factual situations and do not alter the governing legal
standards discussed hereinabove.
92. The true principle emerging from the authorities
may therefore be summarised thus: preventive detention is
constitutionally permissible; the detaining authority must
independently record its subjective satisfaction upon relevant
material; the ordinary criminal process and preventive detention
are not mutually exclusive; preventive detention cannot be
employed merely as a substitute for criminal prosecution; and
judicial review remains confined to examining the legality of the
decision-making process without substituting the Court’s own
satisfaction for that of the statutory authority.
93. The rival submissions advanced before this Court
must, therefore, be examined not by treating individual
observations occurring in isolated judgments as statutory
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commands, but by applying the cumulative principles emerging
from the aforesaid authorities to the statutory framework of the
Bihar Control of Crimes Act, 2024 and to the facts disclosed by
the record in the present case.
94. Applying the aforesaid principles, the first question
requiring determination is whether the materials placed before the
District Magistrate were capable of satisfying the jurisdictional
requirement contemplated under Section 2(b) of the Bihar Control
of Crimes Act, 2024. This necessarily requires an examination of
the nature of the criminal cases relied upon, the stage at which
they stood, the relevance of the Sanha entries, the charge-sheets
submitted before the passing of the detention order and the
cumulative impact of such material upon the formation of the
detaining authority’s subjective satisfaction.
95. Having interpreted the scope of Section 2(b) and
examined the principles emerging from the judicial precedents
relied upon by the parties, this Court now proceeds to examine
whether the material placed before the District Magistrate was
sufficient to satisfy the jurisdictional requirement contemplated
under the Act. The legality of the impugned detention order must
ultimately be tested not on abstract principles but on the basis of
the material which actually existed before the detaining authority
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on the date when the order came to be passed.
96. The detention order discloses that the subjective
satisfaction of the District Magistrate was founded upon multiple
criminal cases registered against the petitioner, the status of
investigation in those cases, the charge-sheets submitted in several
of them, the police dossier forwarded by the sponsoring authority
and other contemporaneous materials depicting the petitioner’s
continuing activities. The Court must therefore examine whether
these materials, considered cumulatively, were capable of
supporting the satisfaction recorded under Section 2(b).
97. It is evident from the record that the detaining
authority did not rely upon a solitary criminal case or an isolated
incident. The materials considered by the authority disclose
multiple criminal cases extending over a period of time. The
significance of such material lies not merely in the number of
cases but in the pattern of conduct emerging therefrom. Preventive
detention proceeds upon the assessment of continuing activities
and not upon the adjudication of individual criminal liability.
98. A substantial part of the material relied upon by the
respondents consists of criminal cases in which investigation had
progressed to the stage of submission of charge-sheets before the
competent criminal courts. While submission of a charge-sheet
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cannot be equated with proof of guilt, it nevertheless indicates that
the investigating agency found sufficient material to place the
accused on trial. The detaining authority was therefore justified in
treating such cases as relevant material while evaluating the
petitioner’s continuing activities.
99. Certain criminal cases relied upon in the grounds of
detention were admittedly under investigation on the date of the
detention order. Such cases, standing alone, may not conclusively
establish the statutory requirement. Nevertheless, where they form
part of a larger body of material depicting continuous criminal
conduct, their consideration cannot be regarded as wholly
irrelevant. The legality of the detention order must therefore be
assessed upon the cumulative effect of the entire material rather
than by isolating individual incidents.
100. Similar is the position regarding the Sanha entries
referred to in the detention record. Standing independently, such
entries cannot constitute substantive proof of criminal conduct.
However, the detention order does not indicate that preventive
detention was founded exclusively upon those entries. They
appear to have been noticed only as corroborative circumstances
accompanying the criminal cases already registered against the
petitioner. Their limited consideration for such purpose cannot, by
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itself, invalidate the subjective satisfaction.
101. The argument advanced by the petitioner proceeds
substantially upon an individual examination of each criminal
case. Preventive detention, however, proceeds upon an assessment
of the cumulative impact of the materials placed before the
detaining authority. The question is not whether each individual
case independently justifies detention, but whether all the
materials viewed together disclose a continuing course of conduct
bringing the detenue within the statutory definition contained in
102. Viewed from the aforesaid perspective, this Court
is unable to accept the submission that the District Magistrate
founded the detention order merely upon pending investigations or
unverified allegations. The record demonstrates that the authority
considered the criminal antecedents in their entirety, including the
status of investigation, the charge-sheets submitted, the police
reports and the overall pattern of conduct attributed to the
petitioner before arriving at the requisite subjective satisfaction.
103. The Court is therefore unable to hold that the
jurisdictional fact contemplated under Section 2(b) was absent on
the date the detention order came to be passed. The materials
placed before the District Magistrate were capable of supporting
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the statutory satisfaction required under the Act. Whether such
allegations ultimately culminate in conviction is a matter falling
within the jurisdiction of the competent criminal court and has no
bearing upon the limited enquiry undertaken in these proceedings.
Whether the activities attributed to the petitioner were
prejudicial to the maintenance of public order
104. Satisfaction of the definition of an “anti-social
element” under Section 2(b), by itself, does not automatically
justify preventive detention. The competent authority must further
be satisfied that the activities attributed to such person are
prejudicial to the maintenance of public order and that preventive
detention has become necessary to prevent their recurrence. These
constitute distinct statutory requirements which must
independently exist before the extraordinary power of preventive
detention can be exercised.
105. The petitioner has contended that the allegations
disclosed in the criminal cases relied upon by the respondents
relate, at their highest, to ordinary criminal offences capable of
being dealt with under the ordinary criminal law. According to the
petitioner, none of the incidents demonstrates disturbance of
public order and, therefore, invocation of the preventive detention
law is legally unsustainable.
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106. The submission undoubtedly deserves careful
consideration. Constitutional courts have consistently recognised
that every criminal offence does not necessarily affect public
order. An act may violate the penal law and yet remain confined to
the realm of law and order. Preventive detention becomes
permissible only where the conduct possesses a wider impact
upon the community so as to disturb the even tempo of public life.
107. In the present case, the detention order records that
the activities attributed to the petitioner were not viewed as
isolated criminal incidents but as forming part of a continuing
pattern allegedly creating fear amongst the residents of the
locality, affecting normal public life and generating an atmosphere
of insecurity. The District Magistrate has specifically recorded that
despite registration of several criminal cases, the activities
continued unabated, leading to the conclusion that recourse to the
ordinary criminal process had not proved sufficient to prevent
their recurrence.
108. While this Court does not independently assess the
truthfulness of each allegation contained in the criminal cases, the
material before the detaining authority cannot be
compartmentalised by examining each incident in isolation. The
authority was entitled to consider the cumulative effect of the
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criminal antecedents together with the surrounding circumstances
while evaluating their impact upon public order.
109. Learned Senior Counsel has urged that the alleged
incidents primarily concern offences against identified individuals
and therefore remain within the sphere of law and order. Such
submission, however, overlooks that the distinction between law
and order and public order is one of degree and effect rather than
of the nature of the offence alone. Repeated criminal activities,
though individually directed against particular persons, may
nevertheless disturb public order where their cumulative impact
generates widespread fear, insecurity or disruption of normal
community life.
110. The Court is conscious that preventive detention
cannot be justified merely because criminal offences have been
alleged. Equally, where the cumulative impact of the activities
attributed to the proposed detenue is perceived by the competent
authority to create an atmosphere of fear affecting the normal life
of the community, the matter legitimately enters the domain of
public order. The distinction is one of degree and societal impact
rather than merely of the penal provisions invoked in individual
criminal cases.
111. Having examined the detention order together with
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the materials forming part of the record, this Court is unable to
hold that the detaining authority proceeded upon an erroneous
understanding of the concept of public order. The satisfaction
recorded is founded not merely upon the existence of criminal
cases but upon the perceived impact of the petitioner’s continuing
activities upon the maintenance of public order within the locality
concerned.
112. Whether another view on the same material may
also have been possible is not the question before this Court.
Judicial review does not authorise substitution of the Court’s own
assessment for the subjective satisfaction of the statutory
authority. Once the relevant material bears a rational nexus with
the formation of the satisfaction recorded by the District
Magistrate and no legal infirmity is demonstrated in the decision-
making process, interference would exceed the permissible limits
of judicial review.
113. This Court is, therefore, satisfied that the challenge
founded upon the alleged absence of material relating to public
order does not merit acceptance. The material considered by the
detaining authority was capable of supporting the satisfaction that
the petitioner’s continuing activities had transcended the sphere of
ordinary law and order and had assumed dimensions prejudicial to
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the maintenance of public order within the meaning of the Act.
114. Learned Senior Counsel appearing for the
petitioner has next contended that the impugned detention order is
vitiated on account of complete non-application of mind. It has
been argued that the District Magistrate merely reproduced the
proposal submitted by the sponsoring authority without
independently examining the material placed before him, thereby
rendering the exercise of power under the Act legally
unsustainable.
115. The submission cannot be accepted merely because
the detention order refers to the proposal submitted by the police
authorities. Under the statutory scheme governing preventive
detention, the sponsoring authority is required to place before the
detaining authority all relevant materials forming the basis of the
proposal. Consideration of such materials by the District
Magistrate is, therefore, not only permissible but forms an integral
part of the decision-making process. The decisive question is
whether the District Magistrate independently arrived at the
requisite subjective satisfaction or merely acted as a rubber stamp.
116. A careful reading of the detention order
demonstrates that the District Magistrate has referred to the
criminal antecedents of the petitioner, the nature of the allegations,
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the status of the criminal cases, the surrounding circumstances and
the perceived impact of the petitioner’s activities upon public
order before recording the satisfaction contemplated under the
Act. The order is not a verbatim reproduction of the police
proposal but reflects consideration of the material placed before
the authority.
117. The fact that the District Magistrate ultimately
concurred with the recommendation of the sponsoring authority
does not, by itself, establish absence of independent application of
mind. Agreement with a proposal after due consideration of the
relevant materials cannot be equated with mechanical acceptance.
What the law prohibits is abdication of statutory discretion, not
concurrence based upon independent evaluation.
118. Judicial review in matters of preventive detention
does not extend to reassessing the sufficiency of the material
which persuaded the detaining authority. The Court is concerned
with the legality of the decision-making process and with the
existence of material having a rational nexus with the satisfaction
recorded. Once it is demonstrated that the authority examined
relevant material and exercised its own judgment, the Court
cannot invalidate the detention merely because another view on
the same material may also have been possible.
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119. The petitioner has also failed to identify any
relevant document which was ignored by the District Magistrate
or any extraneous circumstance which influenced the decision-
making process. In the absence of such material, the allegation of
mechanical exercise of power remains a mere assertion
unsupported by the detention record.
120. In the present case, nothing has been brought on
record to indicate that the District Magistrate ignored any material
circumstance, relied upon extraneous considerations or acted
under the dictation of any other authority. The challenge founded
upon alleged non-application of mind is, therefore, unsupported
by the record.
121. The Court is consequently satisfied that the
subjective satisfaction recorded by the District Magistrate cannot
be characterised as arbitrary, mechanical or without jurisdiction.
The decision-making process discloses due consideration of the
relevant materials before the extraordinary power of preventive
detention came to be exercised.
Validity of the second detention order and the scope of
Section 12 of the Bihar Control of Crimes Act, 2024
122. The petitioner has further questioned the legality of
the subsequent detention order passed under Section 12 of the Act.
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According to the petitioner, once the earlier detention order had
exhausted its legal force, the District Magistrate lacked authority
to continue the detention in the absence of a fresh and independent
exercise of statutory power. It is contended that the subsequent
order is merely a continuation of the earlier order and is therefore
liable to be set aside.
123. The respondents, on the other hand, contend that
the subsequent order was passed strictly in accordance with the
statutory scheme after obtaining the requisite approval and upon
consideration of the material then available before the competent
authority. According to the respondents, the subsequent order
constitutes an independent exercise of statutory power and cannot
be treated as a mere mechanical extension of the earlier detention.
124. The controversy, therefore, is not whether the
petitioner continued to remain in custody, but whether the
statutory requirements governing the exercise of power under
Section 12 stood satisfied. The answer to this question must be
found from the language of the statute, the Government
notification, and the record relating to the decision-making
process.
125. Section 12 of the Act contemplates the exercise of
power by the competent authority in accordance with the
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procedure prescribed under the statute. The provision must be
construed harmoniously with the remaining provisions governing
approval by the State Government, consideration by the Advisory
Board and the constitutional safeguards embodied in Article 22 of
the Constitution. The legislative object is to ensure that preventive
detention continues only so long as the statutory conditions
remain fulfilled.
126. The scheme of Section 12 indicates that the
Legislature has distributed the power of preventive detention
between the State Government and the District Magistrate. While
the substantive power originates from the statute itself, the District
Magistrate may exercise such power only when authorised by the
State Government in the manner contemplated under Section
12(2). The authority exercised by the District Magistrate is
therefore neither inherent nor uncontrolled, but entirely statutory.
Consequently, the validity of the subsequent order dated
06.06.2026 depends upon whether, on the date of its issuance, the
District Magistrate continued to possess the statutory authority
conferred by the notification issued under Section 12(2), and
whether the statutory conditions precedent for exercise of such
power were independently satisfied.
127. It is well settled that the legality of a subsequent
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detention order cannot be examined in isolation. The Court is
required to ascertain whether the competent authority possessed
jurisdiction to pass the order, whether the statutory preconditions
existed on the date of its issuance, whether relevant material was
considered and whether the procedural safeguards prescribed
under the Act were observed. If these requirements are satisfied,
the mere fact that the order follows an earlier detention does not,
by itself, render it invalid.
128. The Notification dated 24.03.2026 assumes
significance in the present controversy. The notification indicates
the source of authority under which the District Magistrate
exercised the power in question. The validity of the impugned
order must therefore be examined in the light of the authority
conferred by the said notification together with the provisions of
the Act. Unless the notification is shown to be contrary to the
statute or beyond the power conferred thereunder, the exercise of
jurisdiction cannot be invalidated merely because the power was
exercised pursuant to such authorisation.
129. The record does not disclose that the District
Magistrate acted in excess of the authority conferred by the statute
or by the notification issued thereunder. On the contrary, the
material indicates that the order was passed after compliance with
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the statutory procedure contemplated by the Act. No jurisdictional
defect has been demonstrated which would justify interference in
exercise of the writ jurisdiction of this Court.
130. The submission that the subsequent detention order
is merely a continuation of the earlier order also does not
commend acceptance. The legality of each detention order must
necessarily be tested on the basis of the material and statutory
satisfaction existing on the date on which that order came to be
passed. Where the competent authority independently considers
the relevant material and records the satisfaction required by law,
the subsequent order cannot be invalidated solely because an
earlier order had preceded it.
131. This Court is, therefore, unable to hold that the
exercise of power under Section 12 suffers from lack of
jurisdiction, procedural illegality or non-compliance with the
statutory safeguards. The challenge to the subsequent detention
order consequently fails.
132. The conclusions reached by this Court may be
summarised thus:
(a) The challenge to the petitioner’s classification as an
“anti-social element” under Section 2(b) of the Bihar Control
of Crimes Act, 2024 is devoid of merit.
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(b) The materials relied upon by the District Magistrate
were relevant for the purpose of forming the subjective
satisfaction contemplated under Section 12 of the Act.
(c) The distinction between “law and order” and “public
order” was duly borne in mind by the detaining authority, and
the impugned order cannot be characterised as one founded
merely upon ordinary criminal antecedents.
(d) The allegation of non-application of mind has not been
substantiated from the detention record.
(e) The petitioner’s representations were duly considered in
compliance with Article 22(5) of the Constitution and the
provisions of the Act.
(f) The challenge to the subsequent detention order on the
ground of lack of jurisdiction is equally without substance.
133. In view of the foregoing discussion, this Court is
satisfied that the impugned orders do not suffer from any
jurisdictional error, procedural illegality or constitutional infirmity
warranting interference in exercise of the extraordinary
jurisdiction under Article 226 of the Constitution of India.
134. For all the reasons recorded hereinabove, this Court
finds no merit in any of the challenges advanced on behalf of the
petitioner. Neither the initial detention order nor the subsequent
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order dated 06.06.2026 is shown to suffer from any jurisdictional
infirmity, violation of the statutory safeguards or infraction of the
constitutional guarantees governing preventive detention. The writ
petition is, accordingly, dismissed.
135. There shall, however, be no order as to costs.
(Bibek Chaudhuri, J)
Rana Vikram Singh, J : I Agree
( Rana Vikram Singh, J)
uttam/-
AFR/NAFR NAFR CAV DATE 23.07.2026 Uploading Date 06.08.2026 Transmission Date 06.08.2026
