public order

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 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

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ has held that the true test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.

“The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence.”

  1. FIR or the First Information Report, is neither defined in the Criminal Code nor is used therein, albeit it refers to the information relating to the commission of a cognisable offence. This information, if given orally to an officer in-charge of the police station, is mandated to be reduced in writing.
  2. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. Information to be recorded in writing need not be necessarily by an eye-witness, and hence, cannot be rejected merely because it is hearsay. Section 154 does not mandate nor is this requirement manifest from other provisions of the Criminal Code. Thus, at this stage, it is enough if the police officer on the information given suspects – though he may not be convinced or satisfied – that a cognisable offence has been committed.
  3. Section 154 of the Criminal Code, in unequivocal terms, mandates registration of FIR on receipt of all cognisable offences, subject to exceptions in which case a preliminary inquiry is required[1].
  4. There is a distinction between arrest of an accused person under Section 41 of the Criminal Code and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Criminal Code, which directs registration of FIR in case of cognisable offences, and protection of individual liberty of those persons who have been named in the complaint.
  5. FIR is not an encyclopaedia disclosing all facts and details relating to the offence[2]. It is not meant to be a detailed document containing chronicle of all intricate and minute details. FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant’s evidence in the court[3].
  6. Even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence[4]. Thus, the information disclosing commission of a cognisable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law.
  7. As per clauses (1) (b) and (2) of Section 157 of the Criminal Code, a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration, the law mandates that the officer can start investigation when he has reason to suspect commission of offence.
  8. Requirements of Section 157 are higher than the requirements of Section 154 of the Criminal Code. Further, a police officer in a given case after investigation can file a final report under Section 173 of the Criminal Code seeking closure of the matter.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]

[1] Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

[2] Ibid

[3] Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537

[4] Superintendent of Police, CBI and Others v. Tapan Kumar Singh, (2003) 6 SCC 175

Case BriefsSupreme Court

Supreme Court: Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law.”

In order to bring about an effective solution to the present stalemate between the protesters and the Government of India, the Court suggested the constitution of a Committee comprising of independent and impartial persons including experts in the field of Agriculture but said that it would do so only after hearing all the necessary parties. The Court has, however, made clear that the pendency of the matters will not prevent the parties from resolving the issue amicably.

The Court is hearing the case wherein the residents of NCT of Delhi/Haryana, having a population of more than two million people, have claimed that the manner in which the protest is being carried on is seriously inhibiting the supply of essential goods to the city because of restrictions on the free movement of goods vehicles. According to the petitioners, this will result in a sharp increase in the prices of goods which would be difficult for people to bear in these times of Pandemic. They say,

“… no fundamental right is absolute and it would be necessary for the Court to determine the contours of the right of free speech and expression involved in the farmers’ protest and the extent to which this right can be exercised consistently with the rights of other citizens.”

The respondents, on the other hand, claim that the roads are blocked by the police in order to prevent the entries of the protesters/farmers to the city of Delhi.

Yesterday, the petitioners were allowed to serve copies of these petitions upon the impleaded farmers’ Associations and today the Court was to hear the farmers who are agitating at the Borders of National Capital Region of Delhi. However, none of the impleaded respondents-farmers’ associations have appeared today though the petitioners claim to have informed them over their respective mobile/whatsapp numbers.

The Court will now take up the matter after winter vacation. The parties, however, liberty to move the Vacation Bench if necessary. On the next date of hearing, the parties have been asked to submit suggestions about the constitution of the Committee.

The farmers’ protest is mainly directed against the three laws:

(1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020,

(2) Essential Commodities (Amendment) Act, 2020 and

(3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020.

Aforesaid laws are also under challenge before the Supreme Court.

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032, order dated 17.12.2020]

For Petitioners: K.Parameshwar, AOR

For Union of India: Attorney General K.K. Venugopal

For Punjab: Senior Advocate P. Chidambaram

For U.P.: Advocate Garima Prashad

For Bharatiya Kisan Union: Advocate A.P. Singh.

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation.

While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Here are 15 notable excerpts from the judgment that runs to 128 pages:

  1. Criminality would not include insults to religion offered unwittingly, carelessly or without deliberate or malicious intent to outrage the religious feelings. Only aggravated form of insult to religion when it is perpetuated with deliberate and malicious intent to outrage the religious feelings of that group is punishable. [1]
  2. Criticism and comments on government’s action in howsoever strong words would not attract penal action as they would fall within the fundamental right of freedom of speech and expression.[2]

  3. Dissent and criticism of the elected government’s policy, when puissant, deceptive or even false would be ethically wrong, but would not invite penal action. Elected representatives in power have the right to respond and dispel suspicion. The ‘market place of ideas’ and ‘pursuit of truth’ principle are fully applicable. Government should be left out from adjudicating what is true or false, good or bad, valid or invalid as these aspects should be left for open discussion in the public domain. (…) Political speech relating to government policies requires greater protection for preservation and promotion of democracy. Falsity of the accusation would not be sufficient to constitute criminal offence of ‘hate speech’.

  4. Security of the State, public order and law and order represent three concentric circles: law and order being the widest, within which is the next circle representing public order and the smallest circle represents the security of the State. The phrase ‘security of the State’ is nothing less than endangering the foundations of the State or threatening its overthrow. It includes events that have national significance or upheavals, such as revolution, civil strife, war, affecting security of the State but excludes breaches of purely local significance. The phrase ‘minor breaches’ refers to public inconvenience, annoyance or unrest. The phrase ‘in the interest of…public order’, in the context of clause (2) to Article 19, would mean breaches of purely local significance, embracing a variety of conduct destroying or menacing public order.[3]

  5. A speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street. (…)The reasonable-man’s test would always take into consideration the maker. (…) This is not to say that persons of influence like journalists do not enjoy the same freedom of speech and expression as other citizens, as this would be grossly incorrect understanding of what has been stated above. This is not to dilute satisfaction of the three elements, albeit to accept importance of ‘who’ when we examine ‘harm or impact element’ and in a given case even ‘intent’ and/or ‘content element’.

  6. The terms ‘public order’ and ‘public tranquillity’ do overlap to some extent but are not always synonymous as ‘public tranquillity’ is a much wider expression and it’s breach may even include things that cannot be described as public disorder. (…) For breach of public order, it is not necessary that the act should endanger the security of the State, which is a far stricter test, but would not include every kind of disturbance of society. Accepting that ‘law and order’ represents the largest circle within which is the next circle representing ‘public order’ and inside that the smallest circle representing the ‘security of the State’ is situated, it was observed that State is at the centre and the society surrounds it. Disturbances of society can fall under broad spectrum ranging from disturbance of serenity of life to jeopardy of the State. Therefore, the journey travels first through public tranquillity then through public order and lastly to the security of the State.[4]

  7. Public order would embrace more of the community than law and order. Public order refers to the even tempo of the life of the community taking the country as a whole or even a specified locality.[5] (…) The test which is to be examined in each case is whether the act would lead to disturbance of the current life of the community so as to amount to disturbance of public order, or does it affect merely an individual leaving the tranquillity of the society undisturbed. The latter is not covered under and restriction must meet the test of ordre publique affecting the community in the locality.

  8. Dignity is a part of the individual rights that form the fundamental fulcrum of collective harmony and interest of a society. While right to speech and expression is absolutely sacrosanct in the sense that it is essential for individual growth and progress of democracy which recognises voice of dissent, tolerance for discordant notes and acceptance of different voices, albeit the right to equality under Article 14 and right to dignity as a part of Article 21 have their own significance.[6]

  9. Individual dignity can be achieved in a regime which recognises equality with other citizens regardless of one’s religious beliefs or the group to which one belongs. Religious beliefs and faiths ensure wider acceptance of human dignity and liberty, but when conflict arises between the two, the quest for human dignity, liberty and equality must prevail.[7]

  10. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual’s obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law. The purpose is not to curtail right to expression and speech, albeit not gloss over specific egregious threats to public disorder and in particular the unity and integrity of the nation.

  11. To ensure maximisation of free speech and not create ‘free speaker’s burden’, the assessment should be from the perspective of the top of the reasonable member of the public, excluding and disregarding sensitive, emotional and atypical. (…) This does not mean exclusion of particular circumstances as frequently different persons acting reasonably will respond in different ways in the context and circumstances. This means taking into account peculiarities of the situation and occasion and whether the group is likely to get offended. At the same time, a tolerant society is entitled to expect tolerance as they are bound to extend to others.

  12. Freedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence. Without acceptable public order, freedom to speak and express is challenged and would get restricted for the common masses and law-abiding citizens. This invariably leads to State response and, therefore, those who indulge in promotion and incitement of violence to challenge unity and integrity of the nation or public disorder tend to trample upon liberty and freedom of others.

  13. Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. (…) Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past, and the effort should be reconciliatory.

  14. Loss of dignity and selfworth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It is however necessary that at least two groups or communities must be involved; merely referring to feelings of one community or group without any reference to any other community or group does not attract the ‘hate speech’ definition.

  15. There are multiple justifications for ‘tolerance’, which include respect for autonomy; a general commitment to pacifism; concern for other virtues such as kindness and generosity; pedagogical concerns; a desire for reciprocity; and a sense of modesty about one’s ability to judge the beliefs and actions of others. However, tolerance cannot be equated with appeasement, permissiveness, or indifference. It is also not identical to neutrality. Toleration requires self-consciousness and self-control in a sense that it is a restraint of negative judgment that is free and deliberate. It implies no lack of commitment to one’s own belief but rather it condemns oppression or persecution of others.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]

*Justice Sanjiv Khanna has penned this judgment 

[1] Ramji Lal Modi v. State of UP, AIR 1957 SC 620

[2] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955

[3] Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633

[4] Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746

[5] Shreya Singhal v. Union of India, (2015) 5 SCC 1

[6] Subramanian Swamy v. Union of India, (2016) 7 SCC 221

[7] India Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1

Also read: SC refuses to quash FIRs for remarks on Sufi saint Khwaja Moinuddin Chisti but Amish Devgan not to be arrested pending investigation

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J. dismissed the writ petition and set aside the detention order on the grounds that it did not stand the test of law.

According to the factual background of the present case, the petitioner has challenged the order passed by the respondent whereby the petitioner was detained under Section 8 of the J&K Public Safety Act, 1978, on the score that the petitioner has not explained the grounds of detention while passing the order thereby he was not in a position to make proper representations to the Government.

Further, Ankur Sharma, counsel on behalf of the petitioner contended that the impugned order lacks application of judicial mind and is a duplication of the dossier of the police.

The Court on taking note of the representations made by the petitioner and delving deeper into the facts and circumstances of the case reiterated certain Supreme Court verdicts which were noteworthy and applicable to not just the case at hand but also future cases.

Rajesh Vashdev Advani v. State of Maharashtra, (2005) 8 SCC 390 — Non-application of mind by the Court and duplication of police dossier attracts setting aside the said order passed by it.

Jai Singh v. State of J&K, (1985) 1 SCC 561 — A detention order encapsulating the same wordings as the dossier is liable to be quashed.

Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875 — Subjective satisfaction of the detaining authority is not immune from judicial reviewability.

Nevertheless, the Court did not hesitate to point out the very underpinning purpose of a preventive detention order which is to prevent the person from committing the acts prejudicial to the maintenance of public order. The detention order cannot be passed in a casual manner by the concerned authority thereby depriving the person of his liberty. [Surinder Singh v. Union Territory of J&K, 2020 SCC OnLine J&K 394, decided on 11-08-2020]

Hot Off The PressNews

Union Minister of State for Home Affairs, Shri Nityanand Rai, in a written reply to a question regarding details on mob lynching cases, in Lok Sabha today, said that the National Crime Records Bureau (NCRB) does not maintain data with respect to mob lynching. However, the Ministry of Home Affairs (MHA) has issued advisories to States and UTs, from time to time, to maintain law and order and ensure that any person who takes the law into his/her own hand is punished promptly as per law.

The Minister informed that advisories dated 23.07.2018 and 25.09.2018 were issued to the State Governments/UT Administrations for taking measures to curb incidents of mob lynching in the country. In addition to this, the Government, through audio-visual media, has also generated public awareness to curb the menace of mob lynching. The Government has also sensitized the service providers to take steps to check the propagation of false news and rumours having the potential to incite mob violence and lynching.

Shri Rai stated that an advisory dated 04.07.2018 was issued to the States and UTs by MHA, to keep watch on circulation of fake news and rumours having the potential of inciting violence, take all required measures to counter them effectively and to deal firmly with persons taking law into their own hands. Further, the Ministry has also issued an advisory on 09.08.2016 to all States/UTs for taking prompt and strict action against miscreants who take law into their own hands in the name of protection of cow.

‘Police’ and ‘Public Order’ are State subjects under the Seventh Schedule to the Constitution of India and State Governments are responsible for prevention, detection, registration and investigation of crime and for prosecuting the criminals through their law enforcement agencies, Shri Rai added.

Ministry of Home Affairs

[Press Release dt. 19-11-2019]

[Source: PIB]

Case BriefsHigh Courts

Gujarat High Court: A Bench of S.H. Vora, J. allowed the special leave petition and quashed the impugned order of detention by the respondent.

In the present case the petitioner was detained by the respondent under the Gujarat Prevention of Anti Social Activities Act, 1985 as a ‘bootlegger’ as defined under Section 2(b) of the said Act. It was contended that the alleged activity could be a breach of law and order but cannot be breach of maintenance of public order.

The Court held that the offences alleged in the FIRs are dealt under relevant penal laws but do not fall within the ambit of the Act mentioned. Further, it referred to Pushker Mukherjee v. State of W.B., (1969) 1 SCC 10 to distinguish between ‘law and order’ and ‘public order’. And since except general statements there was no relevant and cogent material on record to show that all social apparatus was in peril disturbing public order at the instance of such person, it does not fall within the definition under Section 2(b) of the Act. [Vijaypal Sudarshanpal Pal v. State, 2019 SCC OnLine Guj 159, Order dated 29-01-2019]

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench comprising of S.H. Vora, J., allowed a petition against the detention orders passed under Gujarat Prevention of Anti Social Activities Act, 1985.

The petition was directed against order of detention passed by the respondent in exercise of powers conferred under Section 3(2) of the said Act by detaining the petitioner under Section 2 (c) of the same due to registration of offences under Sections 454, 457, 380 and 114 IPC that led to breach of public order.

The petitioner agreed that though it may be a breach of law and order but it failed to have any nexus with maintenance of public order as except statement of witnesses, registration of FIR/s and panchnama, there existed no other corroborating material on record which have had affected even the tempo of the society causing threat to the very existence of normal and routine life of people at large.

Referring to Pushker Mukherjee v. State of W.B., 1969 1 SCC 10, the Court concluded that every act of assault or injury to specific persons does not lead to public disorder and hence subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law plus no other relevant penal provisions existed for invoking power under Section 3(2) of the Act. Accordingly, the Court passed release orders for the petitioner. [Vijay Rasikbhai Karsanbhai Thakor v. State of Gujarat,2017 SCC OnLine Guj 2229, order dated 06-09-2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: The order denying parole to the petitioner (convict) based on the report of the District Magistrate was set aside by a Single Judge Bench comprising of Rakesh Kumar Jain, J.

The petitioner who was lodged in Central Jail at Amritsar was convicted and sentenced under Sections 21 and 25 of NDPS Act, 1985. His application for grant of parole was dismissed on the basis of the report of the District Magistrate holding that if the petitioner was released on parole, he would again indulge in smuggling of drugs and would be a threat to the State security and maintenance of public order. Instant petition was filed impugning the said order.

The submissions were duly considered by the High Court. The Court also perused Section 6 of Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 which provides ground for rejection of application for parole on the basis of report of District Magistrate, if the State Government is satisfied that his release is likely to endanger security of the State or maintenance of public order. Referring to its various earlier decisions, the Court observed that there has to be a positive report with the police to draw a conclusion that the convict’s release on parole would endanger the security of the State or the maintenance of public order. However, in the instant case, except for the apprehension shown by the respondents that the petitioner having been convicted in a case registered under the NDPS Act, on his being released, would again indulge in the same trade, was not per se a case of his causing danger to the security of the State and maintenance of public order. Therefore, the Court held that the matter required reconsideration in accordance with law, and remitted the matter back to respondents. [Sumit Kumar v. State of Punjab,  2018 SCC OnLine P&H 413, order dated 25-04-2018]

Case BriefsHigh Courts

Allahabad High Court: The High Court dismissed a habeas corpus petition brought before it in a case of cow slaughter in front of a temple. The apprehension of disturbance of public order due to hurting of religious sentiments led to the arrest of the petitioner.

The Sub-Inspector of the area received information that the petitioner, along with a group of people, is slaughtering a cow or its progeny near a temple. On apprehension of communal riots, the police arrested three persons including the petitioner. The FIR was lodged under Sections 147, 148, 149 and 307 IPC and the order of detention was passed under Section 3(2) of the National Security Act.

It was stated by the Court that the question of application of mind in the detention order is to be decided by comparison of detention of detention order with the dossier of the sponsoring body. The various changes in the order at multiple places indicate application of mind. Regarding the question of discriminatory approach of the authority it has been stated that there is no parity amongst all the accused and detention depends on the satisfaction of subjective matter by the authority. These are individual cases and parity or lack thereof is not a determining factor to claim discrimination. The final question in the case was whether the act affected public order or law and order. It was conclusively determined that when the cow was slaughtered in a public place and in full public view, it leads to hurting of religious sentiments and incites communal tension. Hence it cannot be treated as a case of law and order only but also that of public order.

The Court further observed that the purpose of preventive detention is not to punish but to prevent. The main aim of this is to protect the public and the society at large and prevent the person from committing a crime which would disrupt public life. On all these grounds the petition was dismissed. [Wasi thru. Mohd. Rafi v. State of U.P., 2017 SCC OnLine All 1880, decided on 03.07.2017]

 

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]

Case BriefsSupreme Court

Supreme Court: In the case where the detenu was detained under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 for selling the spurious seeds to poor farmers and acquiring illegal gains at their expense his illegal activities, the Court said that classifying the detenu as a “goonda” affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention.

The appellant, the detenu’s wife, had contended that the detenu was already in custody in two other cases. The order of detention does not consider the same, setting out special reasons for an order of preventive detention, with regard to a person already in custody.

The order of preventive detention mentioned that the illegal activities of the detenu were causing danger to poor and small farmers and their safety and financial well-being and that recourse to normal legal procedure would be time consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate the society from his evil deeds.

Setting aside the abovementioned order, the bench of L. Nageswara Rao and Navin Sinha, JJ said that the rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” under the Act cannot be sufficient justification to invoke the draconian powers of preventive detention. The grounds of detention are ex-facie extraneous to the Act. The Court, however, clarified that there will not be any prejudice to the prosecution of the detenu under the ordinary laws of the land. [V. Shantha v. State of Telangana, 2017 SCC OnLine SC 623, decided on 24.05.2017]