Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J. dismissed the petition on the observations made hereunder.

The facts of the case are such that the victim was waiting for the bus at the bus stand when the accused who is petitioner in the instant case, who was her friend, reached in his pickup Jeep and offered to drop her home. The victim boarded the vehicle, but the accused took a detour on the way manipulating the victim that he would take a U-turn ahead and drop her at her home. However, instead of allowing her to alight, he brought the vehicle to an isolated place and then after intimidation established coitus, despite her protests. The FIR was registered and the petition was arrested. The petitioner by way of this petition before this Court is seeking regular bail.

The Court observed that statement made under Section 164 CrPC that she had said NO for sex to the accused, and the accused told her not to cry; otherwise, he would force himself upon her. In such circumstances of threat and coercion in a secluded area, the victim was forced to cooperate with the accused, which explains the absence of physical injuries on her body, and the presence of semen, indicating unprotected.

The Court further observed that when the curriculum does not include the proper sex education, the children raised by such societies fail the women time and again. NO MEANS NO- The simplest of sentences have become the most difficult for some men to understand. No does not mean yes, it does not mean that the girl is shy, it does not mean that the girl is asking a man to convince her, it does not mean that he has to keep pursuing her. The word NO doesn’t need any further explanation or justification. It ends there, and the man has to stop. In the present case it is clear that, the victim said no to the accused when he started touching her, but he continued. It nowhere implies consent, or zeal and desire to explore and feel each other in romantic love.

The Court held

“the petitioner fails to make out a case for bail. The petition is dismissed with liberty to file a new bail application in case of changed circumstance”.

[Suresh Kumar v. State of HP, 2021 SCC OnLine HP 4434, decided on 05-05-2021]


Arunima Bose, Editorial Assistant has put this report together 

Counsel for the petitioner: Ms. Ritika Jassal and Mr. Aditya Thakur

Counsel for the respondent: Mr. Nand Lal Thakur

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

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States of America (SCOTUS): The Supreme Court of the United States, in what is being touted as a landmark judgment in favour of Native Americans’ rights, held with a 5-4 majority that a major part of the state of Oklahoma is reserved land falling under Native American territory (referred to as “Indian territory” in the judgment) and debars state and local courts from trying criminal cases involving members of the Muscogee (Creek) Nation. It reaffirmed the reservation enjoyed by the Creek, granted to the Indians in a treaty dating back almost two centuries. The Court held that since the reservation had been promised in perpetuity, and although breached several times, it has never been extinguished or revoked by the Congress, and should, therefore, still be in place.

Background 

The appellant, Jimcy McGirt, is a convicted sexual offender convicted by the Oklahoma state court. However, he argued in post conviction proceedings that the state court worked beyond its jurisdiction in prosecuting him since “he is an enrolled member of the Seminole nation of Oklahoma and his crimes took place on the Creek Reservation.” He contends that he should be re-tried, only this time in a federal court, as per the Major Crimes Act (MCA) which states that Indians committing crimes on tribal lands should only be subjected to federal trials.

The Creek refers to the five present-day Native American tribes (the Muscogee, Cherokees, Chickasaws, Choctaws, and Seminoles)- that were displaced from what is now Georgia and Alabama on the promise that, in exchange, they will get to keep forever the lands which now encompasses the entire eastern half of the state of Oklahoma, referred to in the judgement as “Indian territory.” The Creek nation was allowed to govern themselves, free from interference by any state or territory enjoyed self-government. The issue at hand is whether the Indian reservation is still in place today, which shall determine whether tribals fall under the purview of federal criminal law exclusively.

Majority Opinion:

Gorsuch, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined.

  • The Congress established the reservation in a series of treaties with the tribals which guaranteed the territory as “a permanent home to the whole Creek Nation of Indians.”
  • The court accepts that “Only the Congress can divest a reservation of its land and diminish its boundaries.” However, an intention to dissolve a reservation must be clearly expressed, for instance, through explicit references to cession or similar language, and compensation to tribals. Even though steps such as the Creek Allotment Agreement, which reduced the area under Creek reservation, and abolishment of the Creeks’ tribal court were undoubtedly major intrusions into Creek sovereignty, such acts cannot be interpreted to mean an elimination of all tribal interests in the land in the absence of even a single Congress legislation indicating such an intention.
  • The majority dismissed contemporary events in considering the question of disestablishment citing a lack of ambiguity in the original meaning of the law. Similarly, the Court rejected demographics as a ground for disestablishing or diminishing reservations, regardless of the fact that only 10-15% of the inhabitants of the concerned territories are Indian. The Court renounces the use of extra textual sources such as these, when the meaning of the statute is already clear.
  • The Court reaffirms the creation of tribal reservations in Oklahoma, which the state was trying to reclassify as “dependent Indian communities.” The court rejects Oklahoma’s argument by mentioning the numerous treaties signed by the federal government and statutes passed by the Congress, the repeated mentions of “Creek reservation” by the Congress in its statutes,
  • The Court holds that Oklahoma’s Enabling Act transferred all non-federal, state-law cases to state court and all federal-law cases to federal district courts, and Oklahoma doesn’t have the jurisdiction to try tribals for major cases in its own courts.

Dissent:
Roberts, CJ,  with whom Alito, J. and Kavanaugh, J., join, and with whom Thomas, J. substantially joined.

  • Roberts, C.J., said that the “touchstone” for determining the validity of tribal reservation is congressional “purpose” or “intent.” South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 343 (1998), which can be gauged through three kinds of evidence:
    A. the relevant Acts passed by Congress;
    B. the contemporaneous understanding of those Acts and the historical context surrounding their passage; and
    C. the subsequent understanding of the status of the reservation and the pat- tern of settlement there. As the Tribes, the State, and Congress have recognized from the outset, those “reservations were destroyed” when “Oklahoma entered the Union.” S. Rep. No. 101–216, pt. 2, p. 47 (1989). 
  • The “reservations were destroyed” when “Oklahoma entered the Union,” and has been recognized by the State, the Tribe and the Congress, proven through multiple examples in the judgement.
  • Criticised the majority for looking at the acts in isolation and through a restricted lens of contemporary evidence, instead of looking at them as a whole to determine legislative intent.
  • The three conditions of the Solem test are satisfied, signifying that the Congress did intend to disestablish the reservation.
  • “Applied properly, our precedents demonstrate that Congress disestablished any reservation possessed by the Creek Nation through a relentless series of statutes leading up to Oklahoma statehood. “
  • By looking at the subsequent treatment of the area by the Congress, Oklahoma, tribals and non-tribals and its demographic composition,  disestablishment can be proved. “Congress enacted several statutes progressively eliminating restrictions on the alienation and taxation of Creek allotments, and Congress subjected even restricted lands to state jurisdiction.” Even the Creek itself has conceded that no reservation exists. Oklahoma’s unquestioned, century-long exercise of jurisdiction, especially since the passing of the Enabling Act, supports the conclusion that no reservation persisted after it was granted statehood.
  • Demographically,  the population of the lands is approximately 85%–90% non-Indian.
  • “Beyond the criminal law, the decision may destabilize the governance of vast swathes of Oklahoma,” since the repercussions of the decision will not be limited to criminal law, resulting in several federal laws that can lead to complications.

  [McGirt v. Oklahoma, 591 U. S. ____ (2020), No. 18–9526, decided on 09-07-2020]