Memorandum For Respondent Side For 2nd Manipal-Ranka National Moot Court Competition 2016

2 nd Manipal Ranka National Moot Court Competition 2016
MEMORIAL CODE: M107
BEFORE THE HONBLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION NO.:

/2016
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
IN THE MATTER ARISING OUT OF THE JUDGMENT GIVEN BY
HONBLE RAJASTHAN HIGH COURT
Ms. Saloni Kamra

Jai Dev
Sohan
Doctor...... Appellant
Versus
Rajveer Singh
Patrika
Bachpan........... Respondent
MEMORANDUM ON BEHALF OF THE RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENT

1
TABLE OF CONTENTS
Sr. No. Title
Pg. No.
1.
Index of Abbreviations
2.
Index of authorities
3.
Statement of Jurisdiction
4.
Synopsis of Facts
9-12
6.
Summary of Arguments
13-14
7.
Arguments Advanced
15-39
i.
Issue 1.
Whether the Special Leave Petition is maintainable in
this Honble court or not:
4
5-7
8
15-18
1.1 Whether there is case of any substantial question of

law involved or not?
1.2 Or is there any gross injustice done to appellant or
not?
ii.
Issue 2.
Whether prior sanction of Central Government is a
prerequisite to investigate Ms. Saloni Kamra, who is
currently a minister (Women and Child Development
Minister):
2.1 Whether High Courts power under Article 226 to
issue CBI enquiry curtailed without prior sanction by
concerned authority?
2.2 Whether the appellant can be considered a public
servant under prevention of Corruption Act or not?

2
18-21
iii.
iv
Issue 3
Whether cost-cum-compensation of Rs.10 Lac awarded
in favour of Narendra Mohan to be paid by Saloni Kamra
and Jai Dev equally is justifiable or not?
Issue 4
22-24
24-28
Whether Rajveer Singh should be dealt with Juvenile

Justice Court or a criminal proceeding under the
provisions of Indian Penal Code.
4.1 Relevant provision under which juvenile should be
dealt.
4.2 Whether juvenile is to be consider on the basis of age
or grievousness of the crime committed.
v.
Issue 5.
Whether there is a case of defamation caused by
PATRIKA & BACHPAN (NGO) against Ms. Saloni
Kamra, who is currently the Women and Child
Development Minister of India and a sitting Member of
Parliament?
29-35
vi.
Issue 6.
35-39
Whether the decision of High Court justifiable and are

Sohan and the Doctor liable for prosecution:
6.1 Whether Sohan is liable for prosecution for rape of
Ruchi?
6.2 Whether Doctor is liable for prosecution for abortion
of Ruchi?
8.
Prayer
40

3
INDEX OF ABBREVIATIONS
AIR
All India Reporter
Anr.
Another
CBI
Central Bureau of Investigation
Co.
Company
Cri. LJ
Criminal Law Journal
DLT
Delhi Law Times
Honble
Honourable
ILR
Indian Law Reports
Insc
Supreme Court of India [Medium

Neutral Citation]
ITR
Income tax Reporter
Ltd.
Limited
NCT
National Capital Territory
Ors.
Others
R.C.R. (Criminal)
Recent Criminal Reports
SC
Supreme Court
SCALE
Supreme Court Almanac
SCC
Supreme Court Cases
SCR
Supreme Court Reporter
Sec
Section
SLP (C)
Special Leave Petition (Criminal)
V./Vs.
Versus

4
INDEX OF AUTHORITIES
STATUTES REFERRED
Sr. No.
Statutes
Constitution of India, 1950
The Juvenile Justice (Care and Protection of Children) Act, 2000.
Narcotic Drugs and Psychotropic Substance Act, 1985;
Indian Penal Code, 1860;
Criminal Procedure Code, 1973;
Indian Evidence Act, 1872;
Information Technology Act, 2000;
Protection of Children from Sexual Offences Act, 2012
The Immoral Traffic (Prevention) Act, 1956
10
Prevention of Money Laundering Act, 2002
11
Medical Termination of Pregnancy Act, 1971

5
CASES CITTED
Sr. No.
Cases
Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai AIR 2004 SC
1815
Narpat Singh Vs. Jaipur Development Authority (2002) 4 SCC 666
Hero Vinoth v. Seshammal AIR 2006 SC 2234
Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co.
Ltd. AIR 1962 SC 1314
Krishan Kumar Aggarwal v. Assessing Officer 266 ITR 380 (Delhi).
Mahavir Woollen Mills v. Commissioner of Income Tax 245 ITR 297
M/S J.P. Builders & Anr v. A. Ramadas Rao & Anr (2011) 1 SCC 429
Hem Raj v. The State of Ajmer, 1954 AIR 462/1954 SCR 380.
Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors. (2013) 2 SCC 1
10
Ashok Kumar Todi v. Kishwar Jahan and Others [2011] Insc 202
11
Dr. Subramanian Swamy vs Director, CBI & Anr (2014) 8 SCC 682
12
Ramesh Kumari v. State NCT of Delhi, 2006 (2) R.C.R. (Criminal) 197.
13
Dattatraya Narayan Patil v. State of Maharashtra 1975 Cr LJ 1490
14
I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1
15
Rudul Sah v. State of Bihar (1983) 4 SCC 141
16
M. C. Mehta v. Union of India 1987 SCR (1) 819
17
Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161
18
Dr. Subramanian Swamy & Ors. v. Raju, through Member Juvenile Justice Board
& Anr. (2014) 8 SCC 390
19
A.V. Gopakumar v. State of Kerala 2013 ILR (1) 48
20
Villa v. The King AIR 1950 Orissa 261

6
21
Central Bureau of Investigation vs Suresh Nanda 138 (2007) DLT 123
22
Sewak Ram Sobhani v. R.K. Karanjia (1981)3 SCC208/1981 SCC (Cri) 698
23
Jawaharlal Darde v. Manohar Rao Ganapat Rao Kapsikar (1998) 4 SCC 112
24
Chand vs. Mahabir Prasad AIR 1956 Punjab 173
25
S. Pratap Singh vs. State of Punjab AIR 1964 SC 72
26
Bantu v. State of Uttar Pradesh 2008 (10) SCALE 336
27
Amrit Singh v. State of Punjab 2006 (11) SCALE 309
28
Tulsi Yadav vs The State of Bihar (Now Jharkhand) 2007 CriLJ 466
29
Dr. Sandeep Sachdeva vs State of Haryana Criminal Misc. Application No.5692

and 6542 of 2011, decided on 26 April, 2011
30
Ashwini Kumar Saxena vs State of Madhya Pradesh (2012) 9 SCC 750

7
STATEMENT OF JURISDICTION
The Honble Supreme Court of India has the jurisdiction in this matter under Article 136 of
the Constitution of India which reads as follows:
136. Special leave to appeal by the Supreme Court:
(1)
Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India.
(2)
Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.

8
SYNOPSIS OF FACTS
1. Narendra Mohan (hereinafter NM), aged 15 years was on 03/04/2015 crowned the new
student "Mr. Fresher" in the Tenth Standard of Little Flower Intermediate School, Jaipur
in the State of Rajasthan. Rajveer Singh (hereinafter RS) aged 17 years and 11 months,
is NMs senior of Eleventh Standard. On 25/04/2016 he offered the cigarette to NM and
told him, it is not a normal Cigarette and if you take only two puffs (shots), you will reach
in a different world. NM was eager to "Try" that joint and as soon as he took that in, after
a few moments he said that he was feeling too good and tried to enquire from RS that
what is it actually and from where he got it. RS in reply gave him an address and asked
NM to reach that place at 5 pm sharp and warned him not to disclose that address to
anyone.
2. NM reached the place, it was a deserted new construction site. RS also promised that he
will bring 'A New Thing' for NM to 'Try'. NM went ahead and after sometime RS arrived
there with 5 boys and 2 girls of age group between 14-19 years around. They became
friends with NM and gave him some special 'Chocolate' with a Joint of Marijuana.
Two boys from that group thereafter started 'touching' NM on different parts of his body.
NM by that time was so much inebriated that he failed to understand the nature of that act
and after some time NM lost his senses and slept.
3. On 26/4/2016 around 2:30 am NM came back to his senses. After making some efforts he
finally stood up on his legs and found himself naked and in a corner of the same building
but on different floor. He then covered himself and found his mobile phone near the shawl
with a printed message to "check the inbox of your e-mail". There was a new e-mail with
an attached video and near about a dozen photographs. He downloaded that Video file from
his inbox and clicked on "Play Video". He saw himself being molested by all those boys
and thereafter being sodomized by the entire group one by one. Thereafter, he received
a call from RS who warned him of dire consequences for disclosing last day's act to anyone.
He also told him that he will upload the video on U-2 and Face-Life. He then reached home
and told his parents about the entire unfortunate incident. NM's parents assured him not to
9
disclose this to the Police or anyone concerned as it was a matter of the reputation of the
entire family concerned.
4. On 30/04/2016 RS called NM and demanded Rupees 5 Lakh within 24 hours together
with a rider that non fulfilment of which will lead to Video & Photo Upload. NM being a
teenager got very scared from that call but didn't told that to anyone. Thinking that, he
made a plan to steal his mother's jewellery and pay the ransom. This continued for some
time till NM's father realised that things are being stolen from the house. He followed NM
and saw him delivering money to RS. NM's father thereafter went to "BACHPAN", a
Non-Governmental Organization (hereinafter NGO) and sought their help. The
NGO took him to the nearby police-station, got a First Information Report (F.I.R.)
registered (on 1/5/2016) (copying that to the Cyber Cell of the Police).
5. The police started investigation and found that not only NM but at least two dozen more
male/female teenagers were victims in the same kind of act. The police also found post
interrogation that the accused not only abused and blackmailed their victims but also
supplied their Video files / Photographs to a person Jai Dev (hereinafter JD), a citizen
of Mumbai where these Video's etc. were actually uploaded on free porn sites available
for downloading in public domain.
II.
6. Ms. Saloni Kamra, the current Women & Child Development Minister of India and a
sitting Member of Parliament (hereinafter SK) was a near relative of JD. The police, for
nabbing JD (through proper channels) sought the help of Police Commissioner and got
the information through Home Ministry.
7. The NGO somehow became aware of this investigation report and passed on the
information to a national newspaper PATRIKA who in turn conducted a Sting
Operation (hereinafter OP) on SK on 10/05/2016 in very knotty circumstances and
compiled its data in three various compact discs (C.D.'s).
Disc 1

10
Contained SK taking token money for a bribe from a reputed multi-billionaire private
tycoon and getting a promise that businessman for depositing the rest of the remaining
amount in "Swiss Bank" as directed by SK & JD.
Disc 2
Contained SK observing the transportation of few children from orphan homes being
transported to a third world country for prostitution etc. and
Disc 3
Included contents of SK's 'private life' involved in natural/unnatural sexual intercourse.
8. The channel thereafter broadcasted all the three discs on 12/05/2016. Following the
broadcast, almost all the News Channels in the Country aired the same news numerous
times and a huge hue and cry was raised by different sections of the society.
9. On the basis of the telecasted NEWS by PATRIKA, the NGO went ahead and filed a
Public Interest Litigation (hereinafter P.I.L.) in the High Court of Rajasthan at
Jaipur for the same on 15/05/2016 and demanded SK's immediate resignation and an
inquiry by the Central Bureau of Investigation with a request that the Hon'ble Court itself
shall monitor the entire investigation as it was a very high profile case.
10. The Hon'ble High Court admitted PIL on 17/05/2016 and issued show cause notices for
the same to all the concerned parties.
11. On the other hand, SK also filed a case of Defamation against PATRIKA & NGO on
20/5/2016 alleging her Right to Privacy enshrined by the Constitution and pleading
that she is not guilty and that PATRIKA is not authorized to put on Television the news
contents like the current one. NM, PATRIKA and some others adduced evidence, provided
material. Investigation report was called and provided to the parties.
12. SK, JD, RS, Sohan and Doctor denied the allegations and claimed the action by the
opposite parties as private and malafide. They claimed damages for defamation.

11
III.
13. In the night of 25/04/16 another incident happened at the same deserted new construction
site at the same time when one girl named Ruchi, aged 16 years, after drugs addiction
was raped by one Sohan, aged about 18 years, forming part of the same group who
sodomized NM. On coming to senses she left for her home and did not tell to any one
including her family members. Unfortunately, she became pregnant and got aborted by a
lady doctor. This fact was known to the nurse and she complained to the Hospital
authorities, who hushed up the matter. It leaked and was reported in the newspapers. Police
investigated and filed a complaint, which is still pending. This fact was also highlighted in
the PIL filed by Bachpan.
JUDGMENT OF HIGH COURT

The Honble Court held on 10.07.2016 as under: (i)
(ii)
(iii)
(iv)
(v)
(vi)
There are prima-facie allegations against SK, JD and RS. Further investigation to be
done by CBI and if sufficient material to launch prosecution in the appropriate court
and in accordance with law. No sanction need be taken for SK from Central
Government.
Cost-cum-compensation of Rs.10.00 lac was awarded in favour of NM to be paid by
SK and JD equally;
RS being below age of 18 years, though as per medical report and school certificate of
one school was about 18 years and 6 months, but as per matriculation certificate was
17 years and 11 months, was held as juvenile, to be dealt with Juvenile Court in
accordance with law;
Appreciated the petitioners for taking up the sensational social issue at the national
level;
Writ for defamation dismissed. May file suit.
Directed the State to launch prosecution for rape and abortion of Ruchi against Sohan
and the doctor and the matter to be decided by fast-track court expeditiously.
The present appeal lies against the judgement of Honble High Court of Rajasthan.

12
SUMMARY OF ARGUMENTS
Issue 1.
Whether the special leave petition is maintainable in this Honble court or not?
Whether in the present petition there is any substantive question of law. Can this Honble
Court grant special leave, unless it is shown that exceptional and special circumstances exist,
that Substantial and grave injustice has been done and that the case in question presents
features of sufficient gravity to warrant a review of the decision appealed against.
Issue 2.
Whether prior sanction of central government is a prerequisite to investigate Ms. Saloni
Kamra, who is currently a minister (women and child development minister)?
The holder of a public office such as the Chief Minister or cabinet minister or council of
ministers are public servant under the provisions of Constitution of India. The High Courts and
the Supreme Court have the jurisdiction to order a CBI investigation into an offense alleged to
have been committed in a state without the consent of the appropriate authority.
Issue 3.
Whether cost-cum-compensation of Rs. 10 Lac awarded in favour of Narendra Mohan
to be paid by Saloni Kamra and Jai Dev equally is justifiable or not?
Is the cost cum compensation awarded in favour of NM justifiable? Under what conditions the
Supreme Court or the high court has awarded cost in its writ jurisdiction. Whether imposition
of cost in this case in correct under legal applications.

13
Issue 4
Whether Rajveer Singh should be dealt with Juvenile Justice Court or a criminal
proceeding under the provisions of Indian Penal Code.
Whether the case of Rajveer Singh who is 17years 11 months old and is involved in supply of
drugs be dealt by Juvenile Justice Court under The Juvenile Justice (Care and Protection of
Children) Act, 2000 or whether he should face a normal criminal proceeding under the
provisions of Indian Penal Code, 1860 and Narcotic Drugs and Psychotropic Substances Act,
1985.
Issue 5.
Whether there is a case of defamation caused by PATRIKA & BACHPAN (NGO) against
Ms. Saloni Kamra, who is currently the Women and Child Development Minister of India
and a sitting Member of Parliament?
The sting operation conducted by PATRIKA and BACHPAN was conducted to produce the
fact of evil that was prevailing in the society that was pointing towards being done by SK. Does
the sting operation on SK amounts to violation of right to privacy of SK. The act of conducting
sting operation was not at all illegal and was under the limits of journalistic ethics. No framed
or staged contents were shown in the Disk by the news channel and the contents of the disk
were truth and completely under the exception of defamation.
Issue 6.
Whether the decision of High Court justifiable and are Sohan and the Doctor liable for
prosecution?
Sohan Raped Ruchi that too in the condition when she was intoxicated and not in her complete
senses. This act of his resulted in her pregnancy at such a tender age which leads her to a lethal
procedure like abortion. The doctor terminated her pregnancy but without taking the consent
of her parents which was necessary as Ruchi was a minor, hence neglecting the procedure
established by law. Hence, the High Court was justified while ordering prosecution against
Sohan and the Doctor.

14
ARGUMENTS ADVANCED
ISSUE I:
WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE IN THIS
HONBLE COURT OR NOT:
1.1 WHETHER THERE IS CASE OF ANY SUBSTANTIAL QUESTION OF LAW
INVOLVED OR NOT.
Special Leave Petitions in India (SLP) holds a prime place in the Judiciary of India, and has
been provided as a "residual power" in the hands of Supreme Court of India to be exercised
only in cases when any substantial question of law1 is involved, or gross failure of justice2 has
occurred.
In Hero Vinoth v. Seshammal3, it was laid down that a question of law having a material
bearing on the decision of the case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is not covered by any specific
provisions of law or settled legal principle emerging from binding precedents, and,
involves a debatable legal issue. A substantial question of law will also arise in a contrary
situation, where the legal position is clear, either on account of express provisions of law or
binding precedents.
Test laid down in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and
Manufacturing Co. Ltd.4
The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in
Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai AIR 2004 SC 1815
Narpat Singh Vs. Jaipur Development Authority (2002) 4 SCC 666
3
AIR 2006 SC 2234
4
AIR 1962 SC 1314
2

15
the sense that it is not finally settled by this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or calls for discussion of alternative views. If the question
is settled by the highest Court or the general principles to be applied in determining the
question are well settled and there is a mere question of applying those principles or that
the plea raised is palpably absurd the question would not be a substantial question of
law.
In a similar case, court held in Mahavir Woollen Mills v. Commissioner of Income Tax5
that:
A question of fact becomes a question of law, if the finding is either without any evidence
or material, or if the finding is contrary to the evidence, or is perverse or there is no direct
nexus between the conclusion of fact and the primary fact upon which that conclusion is
based. But, it is not possible to turn a mere question of fact into a question of law by asking
whether as a matter of law the authority came to a correct conclusion upon a matter of fact
From above judgments it can be well established that for considering the appeal by the
Honble Supreme Court under article 136 of the Constitution the substantive question of law
is the one satisfying any of following conditions:
Question of law is not covered by any specific provisions of law or settled legal
principle emerging from binding precedents.
Whether it is of general public importance or whether it directly and substantially

affects the rights of the parties.
Judgment given without any evidence or material, or
If the finding is contrary to the evidence, or is perverse or there is no direct nexus

between the conclusion of fact and the primary fact upon which that conclusion is
based.
The judgment given by the Honble High Court Does not fall within any of the above criterias;
since the court applied the basic principle of law and on the precedent of the recent cases and
245 ITR 297

16
gave the decision by applying its judicial wisdom completely. Hence there is no substantial
question of law arising in the judgement of the Honble High Court.
1.2 OR IS THERE ANY GROSS INJUSTICE DONE TO APPELLANT OR NOT.

In the Judgment given by the apex court in M/S J. P. Builders & Anr v. A. Ramadas Rao
& Anr6 by justice P Sathasivam; has stated that:
Even after issuance of notice in the special leave petition and after grant of leave, irrespective
of the nature of the subject matter, the appellants must show that exceptional and special
circumstances exist and if there is no interference by this Court substantial and grave
injustice will result and that the case has features of sufficient gravity to warrant a decision
from this Court on merits.
In Hem Raj v. The State of Ajmer 7 the same principle was reiterated by Mahajan C.J.,
speaking for the Court, where it was observed thus:
"Unless it is shown that exceptional and special circumstances exist that substantial and
grave injustice has been done and the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against, this Court does not exercise
its overriding powers under article 136(1) of the Constitution and the circumstance that
because the appeal, has been admitted by special leave does not entitle the appellant to open
out the whole case and contest all the findings of fact and raise every point which could be
raised in the High Court.
The Honble Supreme Court may not interfere with the findings of fact unless it is shown that
"substantial and grave injustice has been done. In this appeal before this Honble court,
6
7
(2011) 1 SCC 429

1954 AIR 462/1954 SCR 380

17
the findings recorded by the by the High Court do not disclose any such exceptional and
special circumstances as would justify the claim made on behalf of the appellants who has
appealed against the order given by High Court on the ground that there has been a failure of
justice in these cases. In the present case the order given by the Honble High Court is on the
basis of guided principle of law and is on the well-established jurisprudence of precedents.
Therefore, this Honble court may not grant special leave, unless it is shown that substantial
and grave injustice has been done and that the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against.
ISSUE II:
WHETHER
PRIOR
SANCTION
OF
CENTRAL
GOVERNMENT
IS
PREREQUISITE TO INVESTIGATE MS. SALONI KAMRA, WHO IS CURRENTLY

WOMEN AND CHILD DEVELOPMENT MINISTER (A PUBLIC SERVANT):
2.1 WHETHER THE APPELLANT CAN BE CONSIDERED A PUBLIC SERVANT
UNDER PREVENTION OF CORRUPTION ACT OR NOT.
So far as the first part of section 21 (12) (a) Of Indian Penal Code,1860 is concerned, namely
'in the service of the Government undoubtedly signifies a relationship of master and servant
where the employer employs the employee on the basis of a salary or remuneration. However,
the second limb of the clause, 'in the pay of the Government is concerned, that appears to be
of a much wider amplitude so as to include within its ambit even a public servant who may not
be a regular employee but receiving salary from his master i.e. the government. A Minister or
a Chief Minister will be clearly covered by the said expression.
By virtue of the provisions contained in Article 167, the Chief Minister undoubtedly performs
a public duty of the nature as enjoined by clauses (a) to (c) of Art. 167. It is also clearly
provided in the Constitution that the Chief Minister or the Ministers are entitled to salaries or
allowances obviously in lieu of public duties that they perform. The salaries given to the Chief
Minister or the Ministers are given from the Government funds, and, therefore, there will be
18
no difficulty in holding that the Ministers are in the pay of the Government inasmuch as they
receive their salaries, remunerations or wages from the Government.
Three facts that have been proved beyond doubt: (i)
That a Minister is appointed or dismissed by the Governor and therefore,

subordinate to him whatever be the nature and status of his constitutional function.
(ii)
That a Chief Minister or a Minister gets salary for the public work done or the
public duty performed by him.
(iii)
That the said salary is paid to the Chief Minister or the Minister from the
Government funds.
This aspect of the matter would become crystal clear if we examine the nature and the
constitutional position and status of a Minister or a Chief Minister.
Article 164 of the Constitution runs thus: "Other provisions as to Ministers: (1) The Chief Minister shall be appointed by the
Governor and the other Ministers shall be appointed by the Governor on the advice of
the Chief Minister, and the Ministers shall hold office during the pleasure of the
Governor.
This Article clearly shows that a Chief Minister is appointed by the Governor and having been
appointed by the Governor it is manifest that he is subordinate to the Governor.
It is thus incontrovertible, that the holder of a public office such as the Chief Minister or cabinet
minister or council of ministers are public servant in respect of which the Constitution
provides that he will get his salary from the Government Treasury so long he holds his
office on account of the public service that he discharges. The salary given to the Chief
Minister is coterminous with his office and is not paid like other constitutional functionaries
such as the President and the Speaker. These fact, therefore, point to one and only one
conclusion and that is that the Chief Minister and other ministers are in the pay of the
Government and is, therefore, a public servant within the meaning of s. 21(12) of the Indian
Penal Code.
19
This Court in the case of Dattatraya Narayan Patil v. State of Maharashtra8 held that a
Minister is a public servant. The following observations were made: "The duty assigned to a public servant by his master, be it be under a statute or by an
executive order, will assume the character of public duty, provided the duty assigned is
not illegal or against public policy. Will it make any difference in the case of a Minister?
In our judgment, not. The Minister is a public servant-not disputed".
2.2 WHETHER HIGH COURT HAS POWER UNDER ARTICLE 226 TO ISSUE CBI
ENQUIRY WITHOUT PRIOR SANCTION BY CONCERNED AUTHORITY.
The High Courts and the Supreme Court have the jurisdiction to order a CBI investigation into
an offense alleged to have been committed in a state without the state's consent, according to a
five-judge constitutional bench of the Supreme Court in Akhilesh Yadav Vs. Vishwanath
Chaturvedi & Ors.9 The bench ruled that:
Being the protectors of civil liberties of the citizens, this Court and the High Courts
have not only the power and jurisdiction but also an obligation to protect the
fundamental rights, guaranteed by Part III in general and under Article 21 of the
Constitution in particular, zealously and vigilantly.
In the same matter it was also held that the High Court could direct the CBI to investigate the
offence committed in the State without the consent of the said State.
Similarly, in Ashok Kumar Todi v. Kishwar Jahan and others10, Hon'ble Supreme Court
upheld the order of the High Court whereby the CBI was directed to investigate the matter.
Also in the case of Dr. Subramanian Swamy vs Director, CBI & Anr11 held that Section
6A of the Delhi Special Police Establishment Act, 1988 which granted protection to joint
secretary and above officers from facing even a preliminary inquiry by the CBI in corruption
cases, was violative of Article 14. Corruption is an enemy of the nation and tracking down a
1975 Cr LJ 1490
(2013) 2 SCC 1
10
[2011] Insc 202; Ramesh Kumari v. State NCT of Delhi, 2006 (2) R.C.R. (Criminal) 197.
9
11
(2014) 8 SCC 682

20
corrupt public servant, howsoever high he may be, and punishing such person is a necessary
mandate under the Prevention of Corruption Act, 1988. The status or position of a public
servant does not qualify the person from exemption from equal treatment. The decisionmaking power does not segregate corrupt officers into two classes as they are common crime
doers and have to be tracked down by the same process of inquiry and investigation. It is
substantive that if the impugned provision is replicated at the State level and provision of
previous approval by respective State Governments is required, then the rule of law would
completely collapse in the whole of India and no high level corruption would be investigated
or punished. Also it was held in I.R. Coelho v. State of Tamil Nadu12 hat Article 14 is a part
of the rule of law and it is the duty of the judiciary to enforce the rule of law.
Relevantly it has to be taken into consideration the acquisition that is being levied against the
appellant in the present case. The serious allegations like human trafficking, bribery, money
laundering, pornography, drug racket and unnatural sex which attracts severe charges like
Section 372 of Indian Penal Code, 1860 read with Section 5 of The Immoral Traffic
(Prevention) Act, 1956; Section 171(E) of Indian Penal Code, 1860; Section 4 of the Prevention
of Money Laundering Act, 2002; Section 292 of Indian Penal Code, 1860 read with Section 67
and Section 67 (B) of Information Technology Act, 2005; Section 27 (A) of Narcotic Drugs
and Psychotropic Substances Act, 1985 and Section 377 of Indian Penal Code, 1860
respectively are being made against public servant in this case. Hence, it would be truly
dangerous for the existence of justice if the appellant Ms. Saloni Kumar is given he defence of
Section 6A of the Delhi Special Police Establishment Act which has already been deemed
inconsistent with Article 14 of the Constitution. Thus, the cited precedents and the laws give a
clear indication that the Honble High Court is absolutely empowered to order the investigation
in a case by CBI if it seems fit an also that CBI is fully empowered to probe into any matter
ordered by High Court or Supreme Court without the prior approval by the concerned
government.
12
(2007) 2 SCC 1

21
ISSUE III
WHETHER COST-CUM-COMPENSATION OF RS. 10 LAC AWARDED IN

FAVOUR OF NARENDRA MOHAN TO BE PAID BY SALONI KAMRA AND JAI
DEV EQUALLY I S JUSTIFIABLE OR NOT.
Social and economic justice is the signature tune of the constitution. It guarantees fundamental
rights which cannot be ordinarily derogated from. In protecting these rights, the constitution
has provided for writ remedies enforceable by the Honble High Courts and Supreme Court.
Often these rights are violated by the state, though in some cases private may also be involved.
An important dimension of these remedies is the award of compensation as part of the relief
that can be granted to the affected person. This arises from the fact that not only does the state
have a legal duty in protecting the rights guaranteed, but also a social duty to compensate the
affected, when his rights get violated. Through the various decisions of the courts in India, it
may be stated that this dream of human rights enthusiasts is now an obligation of the state. The
rights have been interpreted to imply a contract between the state and the citizens, a breach of
which may be regressive monetarily.
Article 32 of the Constitution of India reads as follows:
"32. Remedies for enforcement of rights conferred by this Part. (1)
The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.

(2)
The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) -(4) * * *"
Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings
for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is
22
free to devise any procedure for the enforcement of fundamental right and it has the
power to issue any process necessary in a given case. In view of this constitutional
provision, the Supreme Court may even give remedial assistance, which may include
compensation in "appropriate cases".
The Supreme Court of India in Rudul Sah v. State of Bihar13 brought about a revolutionary
breakthrough in human rights jurisprudence by granting monetary compensation to an
unfortunate victim of State lawlessness on the part of the Bihar Government for keeping him
in illegal detention for over 14 years after his acquittal of a murder charge.
The Court in Bandhua Mukti Morcha v. Union of India 14 emphasized that while
interpreting the article the approach must be guided not by any verbal or formalistic canons
of construction but by the paramount object and purpose underlying the article and its
interpretation must receive illumination from the trinity of provisions which permeate and
energize the entire Constitution viz. the preamble, fundamental rights and directive principles
of State policy.
The compensatory jurisprudence introduced by the Courts of India by invoking powers under
Article 32 and 226 gained tremendous importance in recent times. This innovation made by
the Supreme Court is not only reducing the multiplicity of litigation but also helping the courts
to render speedy justice to victims of the infringement of right to life and personal liberty.
In the judgment of M. C. Mehta v. Union of India 15 the next question which arose for
consideration on these applications for compensation is whether Article 21 is available
against Delhi Cloth Mills Limited, a public company limited by shares and which is
engaged in an industry vital to public interest and with potential to affect the life and health of
the people. The issue of availability of Article 21 against a private corporation engaged in an
13
(1983) 4 SCC 141

(1984) 3 SCC 161
15
1987 SCR (1) 819
14

23
activity which has potential to affect the life and health of the people was affirmed by the apex
court under the rule of absolute liability.
Hence, it is pleaded in front of the Honble Court to uphold that the compensation of Rs. 10
Lakh awarded in favour of Narendra Mohan to by the Honble High Court in this present case
which is to be paid equally by Ms. Saloni Kamra and Jai Dev.
ISSUE IV
WHETEHR RAJVEER SINGH SHOULD BE DEALT WITH JUVENILE JUSTICE
COURT OR A CRIMINAL PROCEEDING UNDER THE PROVISIONS OF INDIAN
PENAL CODE.
4.1 RELEVANT PROVISION UNDER WHICH JUVENILE SHOULD BE DEALT.
A Juvenile or Child means a person who has not completed eighteen years of age.
According to International Law, a Child means every human being below the age of 18
years. Today this is a universally accepted definition of a child which comes from the United
Nations Convention on the Rights of the Child (UNCRC)16.
Under the Indian Laws, the definition of juvenile or the prescribed age limit of juvenile can
be traced as below:
Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 defines
as: juvenile or Child as a person who has not completed eighteenth year of age.
16
Government of India ratified the Convention on 10th of December 1992.

24
Section 2 (l) of the Juvenile Justice Act, 2000 has defined juvenile in conflict with law as
a juvenile who is alleged to have committed an offence and has not completed eighteenth year
of age as on the date of commission of such offence.
4.2 WHETHER JUVENILE IS TO BE CONISDER ON THE BASIS OF AGE OR

GRIEVOUSNESS OF THE CRIME COMMITTED.
Juvenile are considered to be less capable of controlling their impulses or taking care of
themselves, the law provides special judiciary and sentencing mechanism for juveniles in
conflict with law.
The Government of India enacted the Juvenile Justice Act in 1986. In 1989 the general
assembly of the United Nations adopted The Convention on the rights of child (UNCRC).
India ratified the UNCRC in 1992. The convention outlines the right of the child to
reintegration into society without judicial proceedings where avoidable. Hence the
government, to fulfil the standards of the convention felt a need to re-write the law. Hence in
2000 the old law was replaced by the Juvenile Justice (care and protection of children) Act.
UNCRC, requires states to set a minimum age below which children shall be presumed not
to have the capacity to infringe penal law. The convention does not actually indicate what
age level should be set as a minimum.
In India the minimum age is set to be eighteen years. The child in this case cannot be held
liable as he was just 17 years 11 months and he had not gained enough maturity to decide that
the offence which he was committing is serious or not, he could only see the monetary profit
he was earning and not the consequences of his acts. He did it for mere sake of enjoyment
and not considering any other effect that it could cause. The best case to explain this is

25
Nirbhaya case17 where a minor was given 3yrs punishment in Borstal Schools as he was few
days younger to the age set.
Reformative theory of punishment should be adopted and juvenile offenders should be
given an opportunity to reform and become an equal part of the society.
The
incarceration of young prisoners in adult prisons has an extremely destructive effect.

Facing the reality of their lengthy sentence and potentially never going home makes them
seek protection and try to fit in somewhere in their new world. Because a juveniles identity
is still developing, he or she can potentially adopt negative behaviours that are the norm in a
hostile prison environment. The fear of being victimized or assaulted produces a need for
security, which leads many young prisoners to rely on gangs and weapons for survival. Young
prisoners overwhelmed by feelings of helplessness and hopelessness cannot focus on
changing their thinking and behaviour, because they are focused on how to survive. Younger
prisoners are also at a disadvantage because they are not as mature (mentally and
physically) as older prisoners. The suicide and sexual abuse rates of younger prisoners
are higher than those of the physically mature. There should be a different place for youth
offenders. Prison is too violent, and the necessary programs that can contribute to young
prisoners rehabilitation are underfunded. Rehabilitation is more possible in an environment
that is conducive to education, where young prisoners can gain insight into their behaviour to
produce a positive transformation.
When juvenile is in conflict with the law is apprehended, the police must inform the
designated Child/Juvenile Welfare Officer, the parents/guardian of the juvenile, and the
concerned Probation Officer (for the purpose of the social background report) (S.13 Juvenile
Justice (Care and Protection of Children) Act). The juvenile so apprehended is placed in the
charge of the Welfare Officer. It is the Welfare Officers duty to produce the juvenile before
the Board within 24 hours (S. 10 Juvenile Justice (Care and Protection of Children) Act).
17
State v. Ram Singh & Ors. (2007) 3 SCC 1

26
In the Judgment of Dr. Subramanian Swamy & Ors. v. Raju, through Member Juvenile
Justice Board & ANR.18
1. On 16th December, 2012 a young lady (23 years in age) and her friend were returning
home after watching a movie in a multiplex located in one of the glittering malls of
Delhi. They boarded a bus to undertake a part of the journey back home. While the
bus was moving, 5 persons brutally assaulted the young lady, sexually and physically,
and also her friend. Both of them were thrown out of the bus. The young lady
succumbed to her injuries on 29.12.2012.
2. Five persons were apprehended in connection with the crime. One of them, identified
for the purpose of the present case as Raju, was below 18 years of age on the date of
commission of the crime. Accordingly, in compliance with the provisions of the
Juvenile Justice Act, 2000 (as amended and hereinafter referred to as 'the Act') his
case was referred for inquiry to the Juvenile Justice Board. The other accused were
tried in a regular sessions court and have been found guilty.
Similarly, in the judgment of A.V. Gopakumar v. State of Kerala 19 it was held that:
when a juvenile in conflict with law is apprehended or arrested by police, the mandate of the
Act is that such juvenile shall be placed under the charge of the special juvenile police unit or
the designated police officer.
What should be done on apprehension of a juvenile in conflict in law is covered by Section 10
of the Juvenile Justice (Care and Protection of Children) Act, which commands that the
special juvenile police unit or the designated police officer, to which/whom the juvenile is
handed over, shall immediately report to the member of the Board. Juvenile Justice Board is
the authority before which the apprehended or arrested juvenile has to be produced, and on
such production, it has to pass orders whether he is to be released on bail with or without
18
19
(2014) 8 SCC 390

2013 ILR (1) 48

27
sureties. So far as the juvenile in conflict with law, the competent authority to deal with him is
the Juvenile Justice Board. Although, whatever powers enjoined by the Juvenile Justice Board
can be exercised by the High Court or the Court of Session. Section 6 of the Act deals with the
powers of the Juvenile Justice Board.
In case of Villa v. The King20 it was stated that:
To give imprisonment to a juvenile in his tender age; it is not proper that he should serve the
sentence of transportation or imprisonment for life in a jail which will only make him a
hardened criminal and destroy his future life. We have, therefore, arrived at the conclusion
that the proper action to be taken in this case would be to recommend the detention of the
Appellant in a Reformatory School under Section 8, Reformatory Schools Act (Act VIII of
1897).
The object of punishment being reformation, is that no social objective can be gained by
sending juveniles to jails where they would come into contact with hardened criminals and
lose whatever sensitivity they may have to finer and nobler sentiments.
The law is very much concerned to see that juvenile do not come into contact with hardened
criminals and their chances of reformation are not blighted by contact with criminal offenders.
The law throws a clock of protection around juveniles and seeks to isolate them from criminal
offenders, because the emphasis placed by the law is not on incarceration but on reformation
of juvenile.
Hence, it is pleaded in front of the Honble Supreme Court to uphold the decision of the
Honble High Court of accepting Rajveer Singh as a juvenile and giving his case to the
Juvenile Board.
20
AIR 1950 Orissa 261

28
ISSUE V:
WHETHER THERE IS A CASE OF DEFAMATION CAUSED BY PATRIKA &
BACHPAN (NGO) AGAINST MS. SALONI KAMRA, WHO IS CURRENTLY THE
WOMEN AND CHILD DEVELOPMENT MINISTER OF INDIA AND A SITTING
MEMBER OF PARLIAMENT.
The appellants in this case claims that there is defamation caused by the opposite parties and
the actions of the opposite parties as private and malafide.
The Supreme Court in Central Bureau of Investigation vs Suresh Nanda21refused to stay
the proceedings of a defamation case filed by JD (U) leader Jaya Jaitley against Tehalka editor
Tarun Tejpal for conducting a sting operation against her. The bench declined to interfere with
the proceedings pending in a trial court in Delhi. Counsel for Mr Tejpal contended before the
court that exposing corruption in public interest does not amount to defamation and even
Exception 3 to Section 499 of IPC22 makes it clear that seeking truth is part of freedom of
speech and expression and one cannot be prosecuted for defamation while he is seeking truth.
The authors of the code observe that every person ought to be allowed to comment in good
faith, on the proceedings of volunteer of the public (that is public men or leaders) with the same
freedom with which we allow him to comment on the proceedings of the official servants of
the public. It must be noticed that while Exception 2 to Section 499 of IPC
23
allows
commenting on the conduct of the character of a public servant in discharge of his public
functions, Exception 3 allows commenting regarding the character of any person touching any
public question.
Ninth Exception- Imputation made in good faith by person for protection of his or other's
interests- It is not defamation to make an imputation on the character of another provided that
21
138 (2007) DLT 123

Third Exception- Conduct of any person touching any public question- It is not defamation to express in
good faith any opinion whatever respecting the conduct of any person touching any public question, and
respecting his character, so far as his character appears in that conduct, and no further.
23
Second Exception- Public conduct of public servants. It is not defamation to express in a good faith any
opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or
respecting his character, so far as his character appears in that conduct, and no further.
22

29
the imputation be made in good faith for the protection of the interests of the person making
it, or of any other person, or for the public good.
In so far as Exception 9 is concerned is two requirements are good faith and public good.
In the case of Sewak Ram Sobhani v. R.K. Karanjia 24 the Blitz Weekly published a news
article captioned MISA rape in Bhopal Jail. The weekly gave summary of a report of an exparte confidential enquiry held by the Deputy Secretary (Home), Government of M.P. The
gist of story was that there was mixing of male and female prisoners in the Central Jail,
Bhopal, that the appellant, who at the material time was a detainee, held under Maintenance
of Internal Security Act, 1971 in that jail, had access to a female detainee and she became
pregnant through the appellant. After release from Jail, the appellant lodged a criminal
complaint for defamation against the respondent who is the Chief Editor of the weekly and
other respondents connected with the publication of the article.
High Court quashed the proceedings on the ground that the respondents case clearly fell
within the ambit of the Ninth Exception to Section 499 IPC. The judge observed that it would
be abuse of the process of the court if the trial was allowed to be proceed which ultimately
would turn out to be a vexatious proceeding.
The Supreme Court also held that the learned High Court committed no error in quashing the
complaint.
It appeared that the impugned publication was a correct summary of the report and no
submission had been made to the contrary by the appellant. The inquiry was made and the
report prepared by a highly responsible officer and submitted to the government. It was in
pursuance of a complaint made by one of the citizens pointing out laxity in observance of jail
rules and highly objectionable practices of some of the prisoners seeking improvement in jail
administration that the inquiry was made. The object was to see improved conditions, and
maintenance of certain standard of moral conduct by prisoners, in jail. If the complaint and
24
(1981)3 SCC208/1981 SCC (Cri) 698

30
the consequent inquiry report be for public good, and the respondents had reasons to believe
its contents to be true, they would be protected under the Ninth Exception to section 499 IPC.
The court further opined that once good faith is proved by the accused, whether the
publication was for public good would be a matter of inference. Most of the witnesses
examined by the enquiry officer were the colleagues of the appellant and fellow-prisoners
under MISA. The entire report was exhaustive, reasoned and based on evidence.
In Jawaharlal Darde v. Manohar Rao Ganapat Rao Kapsikar 25, there was a publication of
news item disclosing accurate and true report of the proceedings of Legislative Assembly. It
contained therein statement of minister disclosing misappropriation of government funds. A
person involved in such a misappropriation was named therein.
The person published about public conduct, of public servants, for public good, in good faith
believing the statement to be true. Consequently, proceedings against the accused were
quashed.
The main ground taken in this petition, on the basis of which the petitioners have filed the S.L.P
(Special Leave Petition) is that the Respondents are alleging her Right to Privacy enshrined by
the Constitution and pleading she is not guilty and claim that the actions by opposite parties as
private and malafide. It is submitted that the respondent did not challenge the correctness of
the episodes shown on video tapes showing her accepting bribe from a reputed multibillionaire private tycoon active in many sectors in national and trans-national level and
getting a promise for depositing the rest of the amount in Swiss Bank as directed by Ms.
Saloni Kamra and Mr. Jai Dev (contents of Disc1), the other containing Ms. Saloni Kamra
observing the transportation of few children from orphan homes being transported to a
third world country for prostitution (Contents of Disc 2).
It is further submitted that the case filed by the appellants is only about subjectively selected
portions of a news item which shows conduct of persons touching the public question of
corruption and crime. It is the submission of learned counsel for the respondents that her
25
(1998) 4 SCC 112/1998 SCC (Cri)

31
allegations of defamation were covered by exceptions to section 499 I.P.C. and therefore the
provisions of Section 499 were not attracted. The case was governed by 3rd, 7th and 8th
exception to section 499 of I.P.C. The entire action was accomplished in good faith to
achieve public good which constitutes a valid defence rightfully available to the
respondents and therefore on that ground also the complaint filed by the appellant is liable for
rejection.
The right to privacy is recognized as a fundamental right under the Constitution of India. It is
guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the
Constitution.
But Article 19(1) (a) guarantees all citizens the right to freedom of speech and expression. It
is the right to freedom of speech and expression that gives the media the right to publish any
information. Reasonable restrictions on the exercise of the right can be imposed by the
State in the interests of sovereignty and integrity of the State, the security of the State,
friendly relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence. Article 21 of the Constitution
provides, "No person shall be deprived of his life or personal liberty except according to
procedure established by law."
Now the counsel will throw the light on the admissibility of the Discs as evidence. First
consideration has to be given to the concept of law of evidence in view of the Information
Technology era in which electronic equipment and computers have virtually taken over our
lives. The law of evidence has long been guided by the rule of "best evidence" which is
considered to have two basic paradigms
1) Avoidance of hearsay and
2) Production of primary evidence.
The basic rule is that only authentic evidence should be believed and produced which could
not reasonably be doubted. As per the Indian Evidence Act, 1872, a person who himself
perceived the fact being proved can depose with respect to it, not the third person, who has
just received the information.
32
With the change of technology, everyday new form of evidence is coming into existence,
earlier was broadly oral and documentary evidence. Oral evidence can also be recorded
through various electronic gadgets and the gadgets prepared from those are also many a times
treated as documents. Now-a-days, records are being prepared on cassettes, compact discs,
pen-drives, CCTVs footage, should these be treated as documents as per the provisions of
Evidence Act as well as the Information Technology Act, 2000.
These types of electronic gadgets are being controlled and prepared through computers or
other electronic gadgets. Increasing use of technology in everyday life, especially the Internet,
social sites, cell phones can be useful for certain purposes and also are being used for criminal
activities. The technology has its own advantages and disadvantages. Before dealing with the
contentious issue whether conversation recorded in the electronic gadgets falls within the
definition of "evidence", it would be appropriate to reproduce the relevant provisions of the
Evidence Act and the IT Act:
The Indian Evidence Act, 1872
"Evidence" - "Evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence; (2) all
documents including electronic records produced for the inspection of the Court, such
documents are called documentary evidence.
The Information Technology Act, 2000
2. Definitions - (1) In this Act, unless the context otherwise requires, (r) "electronic form", with reference to information, means any information generated, sent,
received or stored in media, magnetic, optical, computer memory, micro film, computer
generated micro fiche or similar device;
(s) "electronic record" means data, record or data generated, image or sound stored, received
or sent in an electronic form or micro film or computer generated micro fiche;
33
4. Legal recognition of electronic records - Where any law provides that information or any
other matter shall be in writing or in the typewritten or printed form, then, notwithstanding
anything contained in such law, such requirement shall be deemed to have been satisfied if
such information or matter is (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for
a subsequent reference.
Prior to the amendment and coming of the IT Act, Evidence Act mainly dealt with the
evidence which was in oral or documentary form. There was nothing about the admissibility,
nature and evidentiary value of a conversation or statement recorded in an electro-magnetic
device. Now, with the advancement of the technology and sophistication in the information
technology, various challenges are coming before the Courts and the Investigation Agencies
to collect and preserve the evidence. It is quality of evidence which is relevant for the purpose
of conviction or acquittal in criminal cases.
The advent of information technology has brought into existence a new kind of document
called as "electronic record". This intangible document of new type has certain uniqueness
as compared to conventional form of documents. Such documents can be preserved in the
same quality and state for a long period of time encryption processes reducing the chance of
tampering of evidence. The relationship between law and technology has not always been
an easy one. The law has always yielded in favour of technology whenever it is found
necessary. The concern of the law courts regarding the utility and admissibility of
electronically recorded conversation, from time to time found its manifestation in various
pronouncements. The earliest case in which issue of admissibility of tape-recorded
conversation came for consideration is Rup Chand vs. Mahabir Prasad26. The Court in this
case:
26
AIR 1956 Punjab 173

34
declined to treat tape-recorded conversation as writing within the meaning of Section 3 (65)
of the General Clauses Act but allowed the same to be used under Section 155(3) of the
Evidence Act as previous statement to shake the credit of witness.
The Court held that there is no rule of evidence, which prevents a party, who is endeavouring
to shake the credit of a witness by use of former inconsistent statement, from deposing that
while he was engaged in conversation with the witness, a tape recorder was in operation, or
producing the said tape recorder in support of the assertion that the statement was made in his
presence.
In S. Pratap Singh vs. State of Punjab27, a five Judges Bench of the Hon'ble Supreme Court
considered the issue and clearly propounded that
tape recorded talks are admissible in evidence and simple fact that such type of evidence
can be easily tampered which certainly could not be a ground to reject such evidence as
inadmissible
Thus in the light of the statutes referred and precedents cited above, the counsel pleads in
front of the court to accept the recorded discs as evidence and uphold the dismissal of the
writ of defamation by the Honble High court.
Issue 6.
WHETHER THE DECISION OF HIGH COURT JUSTIFIED AND ARE SOHAN AND
DOCTOR LIABLE FOR PROSECUTION:
6.1 WHETHER SOHAN IS LIABLE FOR PROSECUTION FOR RAPE OF RUCHI?
Sec 376 (2)(i) and Sec 376 (2)(j) of The Indian Penal Code 1860 says:
376(2).
Whoever i.
27
commits rape on a woman when she is under sixteen years of age; or
AIR 1964 SC 72

35
j.
commits rape, on a woman incapable of giving consent; or
shall be punished with rigorous imprisonment for a term which shall not be less than
ten years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and shall also be liable to
fine.
In the present case, it has clearly been mentioned in the fact sheet that Sohan raped Ruchi, who
was a minor (aged 16 years), and that too at the time when she was drugged i.e. at the time
when she was neither able to understand the nature of the act nor give her consent to it. Looking
at the facts mentioned above, the case clearly falls under the ambit of sub-clause (i) and (j) of
clause 2 of section 376 of Indian Penal Code, 1860.
In the case of Bantu v. State of Uttar Pradesh28 the accused had, after raping a six-year-old
girl, tried to conceal his crime by inserting a stick in her vagina which ultimately resulted in
causing her death. The court noted that the depraved acts of the accused only deserved a death
sentence.
In Amrit Singh v. State of Punjab29 the accused had raped a minor girl. The victim died a
painful death because of bleeding from her private parts. The court, however, noted that the
accused might not have had the intention of murdering the victim, but her death was only the
unfortunate inevitable consequence of the crime, hence it did not fall within the rarest of the
rare cases and awarded the sentence of life imprisonment to the accused.
In the present case too, a girl got pregnant after being raped by the accused due to which she
had to resort to a practise like abortion. Abortion of a minor can be lethal and can cause further
complications in the life of the girl. Abortion also has some serious side effects30 such as:
Spotting and bleeding
28
2008 (10) SCALE 336

2006 (11) SCALE 309
30
Current Obstetric & Gynecologic Diagnosis & Treatment -Ninth Ed. DeCherney, Alan H., Ch 33.
29

36
Heavy or persistent bleeding
Infection or sepsis
Damage to the cervix
Scarring of the uterine lining
Perforation of the uterus
Damage to other organs
Death
Severe abdominal and back pain that prohibits you from standing up
Bleeding that is heavier than a normal menstrual period
Continuing symptoms of pregnancy
Thus, it can be clearly inferred from the facts of the case and the authorities cited that the
heinous act of the accused falls under the section 376(2)(i) and 376(2)(j) of the Indian Penal
Code 1860. Not only did the accused just raped Ruchi but also she had to undergo abortion
which can have a numerous side effects on the body of the girl. Hence, it is humbly pleaded
before the Honble Court that the accused should be prosecuted u/s section 376(2)(i) and
376(2)(j) of the Indian Penal Code 1860.
6.2 WHETHER DOCTOR IS LIABLE FOR PROSECUTION FOR ABORTION OF
RUCHI?
Section 3(4) of the Medical Termination of Pregnancy Act, 1971 says:
Section 3. When pregnancies may be terminated by registered medical practitioners (4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who,
having attained the age of eighteen years, is a mentally ill person, shall be terminated except
with the consent in writing of her guardian.

37
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the
consent of the pregnant woman.
Also, Section 312 & 313 of the India Penal Code, 1860 says:
Section 312. Causing miscarriage. Whoever voluntarily causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving
the life of the woman, be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both; and, if the woman be quick
with child, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
Section 313. Causing miscarriage without womans consent. Whoever commits the offence
defined in the last preceding section without the consent of the woman, whether the woman is
quick with child or not, shall be punished with 1[imprisonment for life], or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine.
Also it has seen in the case of Tulsi Yadav vs The State of Bihar (Now Jharkhand)31 that
the consent of father was taken by the doctor before aborting the child of the rape victim who
was a minor. The court held this to be a legal abortion.
In the case of Dr. Sandeep Sachdeva vs State of Haryana32 that the doctor who aborted the
child of the rape victim, who was also a minor, was charged under the section 313 of IPC as
he did so without taking the consent of the victim or her guardian.
It has been clearly mentioned in the laws and also can be seen as the precedents that in the case
of the abortion of the minor, it becomes an essential condition to take the consent of her
guardian, otherwise the act would be considered in contravention of the law of the land.
31
2007 CriLJ 466
32
Criminal Misc. Application No.5692 and 6542 of 2011, decided on 26 April, 2011

38
In the present case, the doctor aborted the child of Ruchi which she conceived after being raped
by Sohan. But as Ruchi being a minor, it was the prime responsibility, both legal and moral, of
the doctor to take the written consent of the guardian of Ruchi before getting further with the
abortion but she didnt do so. In fact, when the hospital authorities came to know about this
fact by the nurse, instead of taking any action against the doctor, they tried to hush the matter
up. The legal system of our country works on the written laws and not according to an
individuals free will. We live in a nation where the system still works on the principle of Rule
of Law which states that no one is above the law of the land and everyone has to abide by it.
But in the present case, it seems as if the doctor didnt find it necessary to go by the written
laws and acted on his free will. This act proved to be a grave miscarriage on the name of legal
sanction and legal system of the land.
Hence, it is pleaded in front of this Honble Court that the doctor should be prosecuted u/s
3(4)(a) of the Medical Termination of Pregnancy Act 1971 r/w section 313 of the Indian Penal
Code, 1860.

39
PRAYER
In the light of facts and circumstances stated, issues raised, arguments advanced
and authorities cited, it is most humbly submitted that this Honble Court may be pleased
to:
a) Dismissing the petition of SK and affirming the order given by Honble High
Court.
b) Affirm the order given by the Honble High Court to initiate CBI investigation
against SK and if prima faci case found that to initiate criminal prosecution.
c) Affirm the order given by the Honble High by ordering the Appellant to pay
compensation to NM.
d) Affirm the order given by the Honble High Court by giving the case of Rajveer
Singh to Juvenile Justice Court.
e) Affirm the order given by the Honble High by dismissing the petition of the
appellant against the plea of defamation.
f) Affirm the order given by the Honble High by ordering prosecution against Sohan
and the Doctor.
Any other relief which this Honble Court may deem fit and proper also be passed in favour
of respondent against the respondents as facts and circumstances of the case to meet the
ends of justice, equity and good conscience.
All of which is respectfully affirmed and submitted.
Counsels for Respondent
Sd/~
40

Memorandum For Respondent Side For 2nd Manipal-Ranka National Moot Court Competition 2016

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Memorandum For Respondent Side For 2nd Manipal-Ranka National Moot Court Competition 2016

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2 nd Manipal Ranka National Moot Court Competition 2016

MEMORIAL CODE: M107

BEFORE THE HONBLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION NO.:

Ms. Saloni Kamra

MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

2 nd Manipal Ranka National Moot Court Competition 2016

1.1 Whether there is case of any substantial question of

MEMORIAL ON BEHALF OF THE RESPONDENT

2 nd Manipal Ranka National Moot Court Competition 2016

Whether Rajveer Singh should be dealt with Juvenile

Whether the decision of High Court justifiable and are

MEMORIAL ON BEHALF OF THE RESPONDENT

2 nd Manipal Ranka National Moot Court Competition 2016

All India Reporter

Central Bureau of Investigation

Criminal Law Journal

Delhi Law Times

Indian Law Reports

Supreme Court of India [Medium

Income tax Reporter

National Capital Territory

Recent Criminal Reports

Supreme Court Almanac

Supreme Court Cases

Supreme Court Reporter

Special Leave Petition (Criminal)

MEMORIAL ON BEHALF OF THE RESPONDENT

2 nd Manipal Ranka National Moot Court Competition 2016

Constitution of India, 1950

The Juvenile Justice (Care and Protection of Children) Act, 2000.

Narcotic Drugs and Psychotropic Substance Act, 1985;

Indian Penal Code, 1860;

Criminal Procedure Code, 1973;

Indian Evidence Act, 1872;

Information Technology Act, 2000;

Protection of Children from Sexual Offences Act, 2012

The Immoral Traffic (Prevention) Act, 1956

Prevention of Money Laundering Act, 2002

Medical Termination of Pregnancy Act, 1971

MEMORIAL ON BEHALF OF THE RESPONDENT

2 nd Manipal Ranka National Moot Court Competition 2016

Narpat Singh Vs. Jaipur Development Authority (2002) 4 SCC 666

Hero Vinoth v. Seshammal AIR 2006 SC 2234

Krishan Kumar Aggarwal v. Assessing Officer 266 ITR 380 (Delhi).

Mahavir Woollen Mills v. Commissioner of Income Tax 245 ITR 297

Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors. (2013) 2 SCC 1

Dattatraya Narayan Patil v. State of Maharashtra 1975 Cr LJ 1490

I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1

Rudul Sah v. State of Bihar (1983) 4 SCC 141

M. C. Mehta v. Union of India 1987 SCR (1) 819

Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161

A.V. Gopakumar v. State of Kerala 2013 ILR (1) 48

Villa v. The King AIR 1950 Orissa 261

2 nd Manipal Ranka National Moot Court Competition 2016

Central Bureau of Investigation vs Suresh Nanda 138 (2007) DLT 123

Chand vs. Mahabir Prasad AIR 1956 Punjab 173

S. Pratap Singh vs. State of Punjab AIR 1964 SC 72

Bantu v. State of Uttar Pradesh 2008 (10) SCALE 336

Amrit Singh v. State of Punjab 2006 (11) SCALE 309

Dr. Sandeep Sachdeva vs State of Haryana Criminal Misc. Application No.5692

Ashwini Kumar Saxena vs State of Madhya Pradesh (2012) 9 SCC 750