Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. took up a petition which was filed with an allegation that the Commissioner of Police, Kolkata did not grant permission to Utshi United Primary Teachers Welfare Association to take out a peaceful procession on 11-06-2022 from Raja Subodh Mullick Square Park to Rani Rashmoni Avenue. 

The petitioner association had organized a protest rally on 11-06-2022 between 12 noon and 4 p.m. with an expectation of around 3,000 people, use of 5 vehicles and 20 loudspeakers was also mentioned. Accordingly, a permission was sought for from the Commissioner of Police and it was alleged that he had not responded to such request dated 31-05-2022. Thus, the instant petition was filed. 

According to senior standing counsel neither the Commissioner of Police nor the officer of Kolkata Police have ever objected to peaceful marches. It was further submitted that if the protest march is restricted to the route as mentioned in the application and there is no destruction of public property or unruly behaviour during such march, the police will keep a vigil, but shall not disturb the procession. It was however requested that if it is found during such rally that the protesters obstruct the traffic or cause damage to any property or commit public nuisance, the police authority must be allowed to take preventive measures. 

The Court finding that the petitioner wishes to have a peaceful rally with limited number of loudspeakers and vehicles issued certain directions allowing the rally:  

  • The protest rally through the route as mentioned hereinabove, shall be held peacefully strictly between 12.00 noon to 4.00 p.m. The loudspeakers, if used, shall be within the permissible sound limit;
  • Banners and placards will be permitted, but instigating speeches and abusive language will not be permitted.
  • The rally shall be moving in a way that the common passerby and the vehicular passage is not
  • The procession will end at Rani Rashmoni Avenue and the protesters may hold a meeting at Rani Rashmoni Avenue for not more than an hour.
  • The assembly at Rani Rashmoni Avenue shall end by 3.45 p.m. and the entire crowd shall disperse by 4 p.m.

It was made clear that police authorities shall be at liberty to ensure that no breach of peace takes place and law and order is maintained. 

[Usthi United Primary Teachers Welfare Assn. v. State of West Bengal, WPA 10043 of 2022, decided on 09-06-2022] 

Mr Bikram Banerjee, Mr Sudipta Dasgupta, Ms Dipa Acharyya : for the Petitioners 

Mr Amitesh Banerjee, Ms Ipsita Banerjee : for the State 

*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Rajendra M. Sareen, J. allowed a petition which was directed against the detention order passed by respondent–detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (“the Act”) by detaining the petitioner-detenue as defined under section 2(b) of the Act.

Advocate for the detenue submitted that the order of detention impugned in this petition deserved to be quashed and set aside on the ground of registration of the solitary offence/s under Sections 65-AE, 116-B 98(2) and 81 of the Prohibition Act by itself cannot bring the case of the detenue within the purview of definition under section 2(b) of the Act. Advocate for the detenue further submitted that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order.

Respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue was in habit of indulging into the activity as defined under section 2(b) of the Act.

The Court after noting the facts and circumstances of the case was of the opinion that subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any baring on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(b) of the Act.

Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Act.

The Court also referred to the decision of the Supreme Court in Pushkar Mukherjee v. State of W.B., (1969) 1 SCC 10 where the distinction between ‘law and order’ and ‘public order’ had been clearly laid down.

The Court allowed the petition holding that simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act. The impugned order by the respondent – detaining authority was quashed.[Dilip Bhavanishankar Yadav v. State of Gujarat, 2022 SCC OnLine Guj 409, decided on 17-03-2022]

for the Petitioner: Mr Jagdhish Satapara

for the Respondent: Mr RC Kodekar

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., while making certain significant observations stated that,

An educational institute certainly contributes in creating ideal citizens. Human virtues and morals can never remain the same. It is thus more important that an endeavour of an educational institution should be to impart such education, so that the basic human values and good virtues are inculcated in the students, to make them ideal citizens.

Whether our educational institutions are so weak that they would fear that the students would get adversely affected, if there is a restaurant having a liquor licence in the vicinity of their schools, is an issue falling for consideration in the instant case.

It was stated that respondent 3 was holding an FL-III licence which was initially granted to him for his hotel namely Hotel Moonlight. Respondent 1 had applied for transfer of the said licence.

The above-said licence was rejected on the ground that such transfer of the liquor licence cannot be permitted considering the objections which were raised by the petitioners who were running a school in the vicinity of the place where the licence was intended to be transferred and that granting such a transfer would lead to an impending law and order situation.

Respondent 3 aggrieved by the Collector’s order of rejecting his application for transfer of the licence, approached the appellate authority.

Appellate authority considering the provisions of the rules observed that the distance from the educational institution and respondent 3’s premises was 144 meters from the nearest gate, by which ordinarily a pedestrian would take the nearest path to reach. It was also observed that the Collector had in fact considered that the distance from the main gate of the educational institution of the petitioners to the premises of respondent 3 was mentioned as 450 meters and that for a functioning FL-III licence, the required distance was 375 meters. It was observed that there was no assessment or any material from the police department that there might be a law and order situation.

Appellate Authority allowed the shifting/transfer of the said licence.

Petitioners being aggrieved filed a revision before the State Excise Department under Section 138 of the Maharashtra Prohibition Act, 1949.  But revisional authority on noting the distance dismissed the petitioner’s application.

Analysis, Law and Decision

Bench noted that the Collector had rejected the transfer application only on the basis of ‘law and order’ situation and considering the representations made by the member of the parliament and other MLAs.

In Court’s opinion, the above-stated rules were completely outside the purview of the rules as also were unsupported by any materials on record.

The said reasons were given under political pressure, whereas the appellate authority did not succumb to any political pressure and gave a reasoned order.

Court found substance in the contention raised on behalf of respondent 2 that the appellate authority as also the revisional authority have taken into consideration the report which was undisputed to consider that the distance between petitioners’ educational institution and the premises of respondent 3 where the licence was sought to be transferred was as per the requirement under the said rules.

Rule 45(1)(c) provides that the distance to be maintained should be upto 75 meters and that the licence be not granted within 75 meters of any educational or religious institution inter-alia the educational institution of the petitioners.

High Court stated that the petitioner’s institution ought not to have formed such opinion that the education being imparted by their educational institution was so fragile that the students would get easily influenced by a restaurant serving liquor in the vicinity. This is for two-fold reasons:

  • Firstly, this educational institution was never bothered about a similar restaurant having a liquor licence functioning in the vicinity since the last 10 to 12 years.
  • Secondly and most importantly, if the quality of learning and inculcation of moral values in the children is to be of a standard, as what the ‘Father of the Nation’ intended to imbibe in our citizens, then the petitioner’s institution ought not to have worried at all, about any student being adversely affected, by any such place in the vicinity of the school.

Further, Court observed that it would be imperative for educational institutions to create students with strong moral values so as to prepare them to face tougher journeys and challenges in life.

In view of the above, petition was rejected. [Devram Sawleram Mundhe v. State of Maharashtra, 2021 SCC OnLine Bom 3416, decided on 12-10-2021]

Advocates before the Court:

P.N. Joshi i/b. Milind Deshmukh for Petitioners.

P.P. Kakade, GP with C.D. Mali, AGP for the State.

Moinuddin M.Khan i/b. M. Khan for Respondent 3.

Case BriefsSupreme Court

Supreme Court: In a case where the detenu was accused of committing a series of criminal offences from October, 2017 to December, 2019 such as cheating in the guise of providing good profit to people by investing their money in stock market and collecting huge amounts to the tune of more than Rs. 50 lakhs, the bench of RF Nariman and Hrishikesh Roy, JJ quashed the detention and held that in such a case,

“… at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute.”

The case that revolved around Section 3(2) of the Telangana Prevention of Dangerous Activities Act, 1986[1], led to a wider discussion on the true import of “public order” and the Court held that a possible apprehension of breach of law and order cannot be a ground to move under a preventive detention statute.

The Court explained,

“When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”

Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health.

Explaining that the expressions ‘law and order’, ‘public order’, and ‘security of state’ are different from one another, the Court said that,

“Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”

Further, while it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order.

In the case at hand, what was alleged in the five FIRs pertained to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Penal Code set out in the five FIRs. A close reading of the Detention Order showed that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. In such circumstances, the Court held that,

“If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.”

[Banka Sneha Sheela v. State of Telangana, 2021 SCC OnLine SC 530, decided on 02.08.2021]

*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

For petitioner: Advocate Gaurav Agarwal

For State: Senior Advocate Ranjit Kumar

[1] Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual 1 Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: The Division Bench of A. Rajasheker Reddy and Dr Shameem Akhter, JJ.,  while addressing the matter has shed some light on the distinction between “Public Order” and “Law & Order”.

Petitioner filed the present petition on behalf of his son challenging the detention order passed by the Police Commissioner, respondent 3.

Respondent 3 submitted that detenu is a ‘Sexual Offender’ as defined in clause (V) of Section 2 of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Act 1 of 1986).

Further, it was submitted that the detenu had committed penetrative aggravated sexual assault on a minor, three times. Subsequently, detention order was passed. Hence the present petition.

Issue for determination:

Whether the detention order passed by respondent 3 and the confirmation order passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana are liable to be set aside?

Analysis and Decision

[Law & Order v. Public Order]

Supreme Court in several decisions had clearly expressed that there is a vast difference between “law and order” and “public order”.

The offences which are committed against a particular individual fall within the ambit of “law and order”. It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person said to disturb the
“public order”.

Individual cases can be dealt with by the criminal justice system, hence there is no need for detaining authority to invoke the draconian preventive detentions laws against an individual.

Supreme Court in its decision of Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, had deprecated the invoking of the preventive law in order to tackle a law and order problem.

In Kanu Biswas v. State of West Bengal, (1972) 3 SC 831, following was the Supreme Court’s opinion:

The question whether a man has only committed a breach  of law and order or has acted in a manner likely to cause a  disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call ‘order publique’ and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an  act affects law and order or public order, as laid down in  the above case, is: Does it lead to disturbance of the  current of life of the community so as to amount to a disturbance of the public order or does it affect merely an  individual leaving the tranquility of the society undisturbed?”

Further, Court relied on the decision of Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14,  wherein it was held that a single act or omission cannot be characterised as a habitual act or omission 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 omission 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.

Bench observed that in the present atter, the detenu was being prosecuted for committing a heinous offence of penetrative aggravated sexual assault on a girl aged 13 years. He was granted bail by the Court of Session on conditions.

If the State was aggrieved with the bail of detenu, they should have approached the Higher Court to seek cancellation Bail, they instead passed the impugned detention order.

All the cases under POCSO Act are being put on the fast track. It is brought to the notice of this Court that no charge- sheet had been filed.

In Court’s opinion, the bald statement made, wherein it was stated that: considering the detenu’s involvement in heinous activities and his release from prison on bail, there is imminent possibility of his indulging in similar shameful and inhuman acts of sexual assault on minor girls and women exploiting their innocence in a deceptive manner which are detrimental to public order, would not justify the impugned detention order.

Hence, the detaining authority failed to demonstrate the necessity to pass the impugned detention order invoking the draconian preventive detention laws.

Colourable Exercise of Power

Bench noted that due to the acquaintance/friendship, the detenu took the victim girl to a secluded place where he committed sexual intercourse and thus fulfilled his sexual desire and on the next day morning,  he let off the victim girl.

Therefore, it cannot be held that the detenu would indulge in similar prejudicial activities in future. Under these circumstances, the detaining authority is not justified in passing the order of detention, which tantamount to colourable exercise of power.

Was there any disturbance to ‘Public Order’?

High Court in view of the facts and circumstances of the case expressed that grave as the offence may be, it relates to penetrative aggravated sexual assault on a minor girl. So, no inference of disturbance of public order could be drawn.

Therefore, the present case falls under the ambit of “law and order”.

In view of the above discussion, present petition was allowed. [Charakonda Chinna Chennaiah v. State of Telangana, 2021 SCC OnLine TS 261, decided on 23-02-2021]

Advocates who appeared before the Court:

Counsel for the Petitioner: Dr. B. Karthik Navayan

Hot Off The PressNews

NHRC has taken suo motu cognizance on alleged rape of a 13-year-old girl in Umaria city of Madhya Pradesh and has directed issuance of notice to the Chief Secretary and the Director-General of Police, Madhya Pradesh calling for a detailed report in the matter.

As mentioned in the news report, the 13-year-old girl was abducted on 04.01.2021 from a market in Umaria city of Madhya Pradesh by a person known to her and later on she was taken to a secluded place and was subjected to rape by nine persons for two days. The girl was again abducted by one of the accused on 11.01.2021 and was taken to a desolate place where five people, including three accused in the previous incident and two unidentified truck drivers allegedly subjected her to rape for two days. The report also revealed that the victim was threatened with dire consequences due to which, she did not report the matter to the police. The mother of the girl has lodged a police complaint on January 14, following which seven of the accused have been arrested and the search of the remaining two is under way.

The gruesome incident puts a question mark towards law and order situation in the region. The perpetrators in this case, have committed the heinous crime twice, without having any fear of law violating human rights of the victim.

The Commission has opined that this is a case of violation of human rights of the victim and it is apparent that the law enforcing agencies who are expected to provide a safe environment to the citizen, have failed in exercising their lawful duty.

The Commission has called for a detailed report in the matter within 4 weeks. The report must include details regarding arrest of the remaining accused persons, counseling given to the victim as well as relief and rehabilitation provided or proposed to be provided to the victim by the State authorities.

Nationa Human Rights Commission

[Press Release dt. 18-01-2021]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and Nirmal Kumar, JJ., addressed a petition wherein direction was sought with regard to revelation of the COVID-19 affected persons identity.

With the present petition, it was stated that, on account of the concealment of identity of persons, who developed infection, on account of COVID-19, there may be a possibility the said person may pass on the infection, to other persons and if they lack immune, it would definitely spread and there is every likelihood that they would spread the virus, to other persons.

Thus, in view of the above, direction were sought with regard to publishing of the names of the persons on the Government Website so that it may act as a warning for caution to the persons to keep away.

Bench on perusal of the submissions, stated that it would take judicial notice of the fact on account of the revealing of the identity of the person/persons, there would be definitely a social stigma.

People are slowly becoming aware of the effect of COVID-19 virus and if the prayer sought for by the petitioner is granted, it would further lead to law and order and public order problem, apart from the social stigma, some times may lead to excommunication also.

Hence, the petition in the above view is dismissed. [K. Narayanan v. Chief Secy., Govt. of T.N., 2020 SCC OnLine Mad 974 , decided on 21-04-2020]

Hot Off The PressNews

It is observed that notwithstanding the Advisory issued on 11-12-2019, some TV Channels are telecasting content which do not appear to be in the spirit of the Programme Codes specified therein. It is, accordingly, reiterated that all TV Channels may abstain from showing any content which:

  • is likely to instigate violence or contains anything against maintenance of law and order or which promotes ani-national attitudes;
  • contains anything affecting the integrity of the nation
  • criticizes, maligns or slanders any individual in person or certain groups, segments of social public and moral life of the country

Ministry of Information and Broadcasting

[Advisory dt. 20-12-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: The National Human Rights Commission, NHRC has taken suo motu cognizance of media reports about the Government of Uttar Pradesh, allegedly, endorsing killings in encounters by police seeking improvement in law and order situation in the State. It has issued a notice to the Chief Secretary, Government of Uttar Pradesh, calling for a detailed report in the matter within 6 weeks.

According to the official statistics, as reported on the 5th October, 2017, 433 such encounters had occurred over a period of six months starting from March, 2017 when the present government came into existence. A total 19 alleged criminals were killed in these encounters and 89 injured. Apart from this, 98 officials were also injured and one died. Another news story of the 16th September, 2017 says that 15 persons had been killed in encounters since the new government came to power in Uttar Pradesh. The State government has, reportedly, described the encounters as an achievement and a proof of improvement in the law and order situation. The Chief Minister was quoted, in a newspaper on the 19th November, 2017, saying that “Criminals will be jailed or killed in encounters”.

The Commission has noted that it has also received intimation about 22 encounter deaths from the State police authorities in the year 2017 till date, as per its standing guidelines. It has observed that even if the law and order situation is grave, the State cannot resort to such mechanism, which may result in the extra judicial killings of the alleged criminals. The reported statement of the Chief Minister tantamount to giving police and other State governed forces, a free hand to deal with the criminals at their will and, possibly, it may result into abuse of power by the public servants. It is not good for a civilized society to develop an atmosphere of fear, emerging out of certain policies adopted by the State, which may result into violation of their right to life and equality before law.

National Human Rights Commission

Telangana High Court
Case BriefsHigh Courts

High Court of Andhra Pradesh and Telangana: The detention of one Chirraboina Krishna Yadav under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 was questioned by his wife in a writ petition before a Division Bench comprising of C.V. Nagarjuna Reddy and J. Uma Devi, JJ. The writ petition was allowed and the detention order was quashed.

The contention of the respondent State was that the detenu had been involved in as many as 26 offences between 1989 and 2012; externed from Hyderabad for six months; and detained for a period of one year. However, he had been accused of five more offences since his release and in order to protect the family of one of the complainants in the two criminal cases that the respondents relied on and also to maintain public order, it was necessary to detain the detenu.

Accepting the arguments forwarded by the petitioner, the Court relying on a plethora of landmark judgments of the Supreme Court and on various decisions of High Courts, discussed the difference between ‘law and order’ and ‘public order’. Since the accusations against the detenu centred on only one family and did not involve the public at large, the concern was regarding disturbing law and order and not public order.

It was held that “preventive detention of a person is an extreme measure resorted to by the State when ordinary criminal law is found not adequate to control his activities which cause disturbance to public order.” The Court also noted that the prosecution had failed to show as to out of the 31 cases the detenu had been accused in, how many resulted in a conviction and in how many he was acquitted. The Court also observed that the law enforcement, investigation and prosecution agencies needed to “overhaul the whole criminal law enforcement system by plugging the huge gaping holes.” [C. Neela v. State of Telangana, 2017 SCC OnLine Hyd 224, decided on  27.06.2017]