Habeas Corpus: Difference Between Preventive And Punitive Detention
Case : Criminal Cases
Court : Supreme Court of Nepal
Benoj, student of Minbhavan Campus was arrested and detained at Hanuman Dhoka by police and neither the cause of arrest was revealed nor produced before the court. Writ is issued in the court against the fundamental rights guaranteed by the Article 11, 12(2) and 14, A Habeas Corpus petition plus demand of search warrant was filed before the court on the behalf of Benoj and his friends.
Benoj, student of Minbhavan Campus did not return home from Campus one day. The police came to his house the next day, searched his home and treated his family in an undignified manner. They asked the police about Benoj’s whereabouts. The police only told them that he was arrested and detained at Hanuman Dhoka. The family went to visit Benoj, but the police did not allow them to meet him neither the cause of arrest was revealed nor produced before the court. Considering that the police would have detained Benoj against the fundamental rights guaranteed by Article11, 12(2) and 14 habeus corpus petition including the demand of search warrant was filed with the court on the behalf of Benoj and his friends.
Containing the plea of the petitioners side the government attorneys said that Benoj and Ramesh had been arrested after based on the information that that were collections donations for the conduction of “people’s war”. Khukuri, handmade bombs, petrol bombs and other arms were seized from their home as evidence. They would have absconded if not arrested nad they were kept under preventive detention using poweres as mandated by Section 3(1) of the Public Security Act(PSA) to prevent them from absconding. The attorneys said that the petitioners were not tortured. They had confessed that they were Maoist and receipts of collecting donations were found with them. There was a threat to law and order with regard to the intergrity of sovereignty of the Kingdom due to its activities and explosives seized from them. The attorneys stated that the petitioners were kept in preventive detention in accordance with law and demanded that the petition should therefore be quashed.
Division Bench Of The Court Held
A division bench of the supreme Court held that the issues in the petition raised a question whether the provisions of the procvisions of the PSA or Acts related to Esplosive Materials as well as Arms and Ammunitions could be applied int the case. Therefore, the bench referred case to the full bench since complicated legal issues were to be settled therein.
There were two questions to be settled by the bench:
What would be the difference between detention under the PSA and detention under general criminal proceedings?
Whether the detention under the PSA would replace the detention of ordinary criminal detention or whether PSA could be alternatives to Criminal law (Act)?
Detention under the PSA is preventive and the accused in such detention has to be presented before the adjudicating officer within 24 hours. Detention, beyond this time without an order of the adjudicating officer would be tantamount to illegal detention. The PSA has less to do with the right to criminal justice enshrined in Article 14 of the constitution. It relates to sovereignty of the State, peace and the interest of the general public.
In criminal cases, however, detention is of a punitive nature. If someone’s act is against the law of the land it constitutes a crime and is thereby liable for punitive detention. In such cases the accused is entitled to the right to criminal justice enshrined in Article 14 of the constitution. The determination of the punishment and hearing takes place in an open court. Hence, there is a big difference between punitive and preventive detention.
Detention under the security law and punitive detention by criminal act are fundamentally different and may not be applied interchangeably. Materials like hand made bombs and petrol bombs are subject to crime and prohibited by the Explosive Control Act and Arms and Ammunition Act. If someone commits such acts he or she is to be prosecuted through criminal proceedings. But such a person may not be kept under a detention of security law. The detention of the petitioner under security law is not seen lawful; therefore, the petitioner is to be released through the issuance of a writ of habeas corpus.