Appellant Memorial For 2nd Manipal-Ranka National Moot Court Competition 2016 © With School of Law Manipal University

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 APPELLANT
MEMORIAL ON BEHALF OF APPELLANT

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 prior sanction of central government is needed
to investigate Ms. Saloni Kamra, who is currently a
Minister (Women and Child Development Minister) and
sitting Member of Parliament:
4
5-7
8
15-20
1.1.Whether court can direct CBI investigation on the

basis of prima facie allegation
1.2.Whether prior sanction of central government
necessary to initiate CBI investigation against Ms.
Saloni Kamra.
ii.
Issue 2.
20-22
Whether cost-cum-compensation of Rs. 10 Lac awarded

in favour of Narendra Mohan to be paid by Saloni Kamra
and Jai Dev equally on the basis of prima facia
allegations is justifiable or not.
iii.
Issue 3
Whether the Rajveer Singh should be dealt with juvenile
justice court or a criminal proceeding under the
provisions of Indian Penal Code

2
22-26
3.1 Whether the juvenile is to be classified on the basis

of grievousness of the crime committed or what age
he has attained
3.2 Whether the accused was aware about the nature of
the act done by him
iv
vi.
27-35
Issue 4
Whether there is a case of defamation, caused by the act
of PATRIKA & BACHPAN (NGO) against Ms. Saloni
Kamra, who is Currently Women and Child
Development Minister.
Issue 5
Whether the decision of High Court justifiable and are
Sohan and the Doctor liable for prosecution:
35-39
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.
40
Prayer

3
Index of Abbreviations
AC
Appeal Cases
AIR
All India Reporter
Anr.
Another
A.P.
Andhra Pradesh
BOMLR
Bombay Law Reporter
CalLT
Calcutta Law Times
CBI
Central Bureau of Investigation
Cri. LJ
Criminal Law Journal
Crl
Criminal
DLT
Delhi Law Times
Honble
Honourable
ILR
Indian Law Reports
JT
Judgement Today
MANU
Manupatra
M.P.
Madhya Pradesh
NCT
National Capital Territory
Ors.
Others
SC
Supreme Court
SCC
Supreme Court Cases
SCR
Supreme Court Reporter
Sec
Section
T.N.
Tamil Nadu
UKHL
House of Lords, United Kingdom
U.P.
Uttar Pradesh
US
United States Reports
V./Vs.
Versus
WP. No.
Writ Petition Number

4
INDEX OF AUTHORITIES
STATUTES REFERRED
Sr. No.
Statutes
The Constitution of India, 1950
The Juvenile Justice (Care and Protection of Children) Act, 2015
The Prevention of Corruption Act, 1988
The Cable Television Networks (Regulation) Act, 1995
The Medical Termination of Pregnancy Act, 1971
The Indian Penal Code, 1860
The Criminal Procedure Code, 1973
The Indian Evidence Act, 1872

5
CASES CITED
Sr. No.
Cases
Common Cause" A Registered Society and Others vs Union of India 1987 SCR (1) 497
Secretary, Minor Irrigation & Rural Engineering Services Uttar Pradesh and Ors. v.
Sahngoo Ram Arya and Anr. 2002 CriLJ 2942
Maksud Sayed v. State of Gujarat and Others (2008) 5 SCC 668
State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372
Mohammad Khalid vs State of West Bengal (1995) 1 SCC 684
Anil Kumar and Ors V M.K. Aiyappa and Anr (2013) 10 SCC 705
Subramanium Swamy v. Manmohan Singh and another (2012) 3 SCC 64
Deputy Chief Controller of Imports & Exports New Delhi v. K.T. Kosalram Ors [1971]
2 SCR 507
State Bank of India v. N. Sundara Money [1976] 3 SCR 160
10
R.R. Chari v. State of Uttar Pradesh 1962 AIR 1573, 1963 SCR (1) 121
11
S.N. Bose v. State of Bihar 1968 AIR 1292, 1968 SCR (3) 563
12
Mohd. Iqbal Ahmed v. State of Andhra Pradesh 1979 AIR 677/1979 SCR (2)1007
13
Rookes v Barnard [1964] UKHL 1 [1964] AC 1129
14
Rustom K. Karanjia and Anr. v Krishnaraj M.D. Thackersey and Ors (1970) 72 BOMLR
94
15
Rajender Singh Pathania & Ors vs State of NCT of Delhi & Ors 2011 (10) JT 294
16
Thompson v. Oklahoma 487 US 815 (1988)
17
Ashwini Kumar Saxena vs State of Madhya Pradesh (2012) 9 SCC 750
18
R. Rajagopal vs. State of Tamil Nadu AIR (1994) 6 SCC 632
19
Peoples Union for Civil Liberties v. Union of India AIR 1997 SC 568

6
20
Bhagat Singh v. Lachchman Singh AIR 1968 CalLT 296
21
Court On Its Own Motion Vs State (2008) DLT 429
22
R.K. Anand v. Registrar, Delhi High Court (2009) 11 SCR 1026
23
Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1
24
Bhupinder Singh Patel v. CBI (2008) 151 DLT 37 / 2008 Cri LJ 4396
25
State v. Ram Singh & Ors (2007) 3 SCC 1
26
A.V. Gopakumar v. State of Kerala 2013 ILR (1) 48
27
State Through Delhi Administration vs Sanjay Gandhi 1978 AIR 961
28
Hem Raj v. State of Haryana (2014) 2 SCC 395
29
Ravindra vs State of Madhya Pradesh ILC-2015-SC-Crl-Feb-17
30
M. Kala vs The Inspector of Police, High Court of Madras WP. No.: 8570 of 2015
Dated: 24.03.2015
31
V. Krishnan Vs. Respondent: G. Rajan alias Madipu Rajan and The Inspector of Police
MANU/TN/0279/1993
32
Common Cause" A Registered Society and Others vs Union of India 1987 SCR (1) 497
33
Secretary, Minor Irrigation & Rural Engineering Services Uttar Pradesh and Ors. v.
Sahngoo Ram Arya and Anr. 2002 CriLJ 2942

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

9
and told his parents about the entire unfortunate incident. NM's parents assured him not to
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).

10
Disc 1
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 ARGUMNENTS
ISSUE I
Whether prior sanction of central government is needed to investigate Ms. Saloni
Kamra, who is currently the Women and Child Development Minister of India and a
sitting Member of Parliament?
The issue is whether the investigation on central minister be done without the prior sanction
of the authority having power to dismiss the public servant. The rule under English law that
state is the party that is affected by the abuse of power by public servant and hence he has to
be consulted before taking action against any public servant.
ISSUE II:
Whether cost-cum-compensation of Rs. 10 Lac awarded in favour of Narendra Mohan
to be paid by Saloni Kamra and Jai Dev equally on the basis of prima facia allegations is
justifiable or not.
Is the cost cum compensation awarded in favour of NM justifiable? Whether cost-cum
compensation can be awarded just on the grounds of allegation. Allegation of the said crime
has been levied against the appellant by private party and no such facts by the preliminary
investigation done by police or any other official.
ISSUE III
Whether Rajveer Singh should be dealt with juvenile justice court or a criminal
proceeding under the provisions of Indian penal code?
He must be dealt with in the criminal proceedings under the provisions of IPC and not within
the Juvenile Justice Board as the crime which he committed was a heinous crime and was

13
committed by him was under pre-planned manner and he was aware about the consequences
of his acts. His advice to NM not to inform police about his extortion completely proves his
mens rea and his knowledge about after effects of his act.
ISSUE IV:
Whether there is a case of defamation, caused by the act of PATRIKA & BACHPAN
(NGO) against Ms. Saloni Kamra, who is currently Women and Child Development
Minister.
The sting operation conducted by PATRIKA and BACHPAN was conducted violating the
Right to Privacy of SK. This act was done with a malafide intention and was completely illegal.
Contents which were shown in news channel were vague as well as related to his private life.
Therefore, this clearly amounts to defamation. There was no evidence to prove the truthfulness
of the video contents of the disks.
Issue V:
Whether the decision of High Court justifiable and are Sohan and the Doctor liable for
prosecution?
Sohan being described as about 18 years and in such case he should not be prosecuted as a
major in a normal court as there is no explicit evidence of his majority but should be prosecuted
like a minor in a Juvenile Court. The doctor having acted in the sheer good faith and in
according with the legal moral and ethical principles is also not liable for prosecution.

14
ARGUMENTS ADVANCED
ISSUE I
WHETHER PRIOR SANCTION OF CENTRAL GOVERNMENT IS NEEDED TO
INVESTIGATE MS. SALONI KAMRA, WHO IS CURRENTLY A MINISTER
(WOMEN AND CHILD DEVELOPMENT MINISTER) AND SITTING MEMBER OF
PARLIAMENT:
1.1 WHETHER COURT CAN DIRECT CBI INVESTIGATION ON THE BASIS OF
PRIMA FACIEALLEGATION?
No one can dispute the power of the Honble High Court under Article 226 or the Honble
Supreme Court under Article 32 to direct an inquiry by the CBI, but the said power can be
exercised only in cases where there is sufficient material to come to a prima facie conclusion
that there is a need for such inquiry.
This Court in the judgment of "Common Cause" A Registered Society and Others vs Union
of India1 in paragraph 174 held that:
"The direction to CBI to investigate "any other offence" is wholly erroneous and cannot be
sustained. Obviously, direction for investigation can be given only if an offence is, prima
facie, found to have been committed or a person's involvement is prima facie established,
but a direction to CBI to investigate whether any person has committed an offence or not
cannot be legally given. Such a direction would be contrary to the concept and philosophy of
"LIFE" and "LIBERTY" guaranteed to a person under Article 21 of the Constitution. This
direction is in complete negation of various decisions of this Court in which the concept
of "LIFE" has been explained in a manner which has infused "LIFE" into the letters of
Article 21."
1987 SCR (1) 497

15
Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only
be done if the High Court after considering the material on record comes to a conclusion that
such material does disclose a prima facie case calling for an investigation by the CBI or any
other similar agency, and the same cannot be done as a matter of routine or merely because a
party makes some such allegations.
While directing an inquiry by the CBI, the High Court, as stated in the judgment of this Court
in the case of Common Cause (supra), must record a prima facie finding as to the truth of
such allegations with reference to the reply filed. In the instant case, we have noticed that
the High Court has merely proceeded on the basis of the averments made in the petitions.
Due to this, we find it necessary that the judgment impugned should be set aside.
Also in Secretary, Minor Irrigation & Rural Engineering Services U.P. and Ors. v.
Sahngoo Ram Arya and Anr.2, this Court observed that
Although the High Court has power to order a CBI inquiry, that power should only be
exercised if the High Court after considering the material on record comes to a conclusion that
such material discloses prima facie a case calling for investigation by the CBI or by any other
similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because
the party makes some allegation.
The Court in Maksud Sayed v. State of Gujarat and Others3 examined the requirement of
the application of mind by the judge before exercising jurisdiction in such cases and held that
where a jurisdiction is exercised on a complaint filed, the Magistrate or the judge is required
to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under
Section 156(3) of CrPC against a public servant without a valid sanction order. The application
of mind by the Magistrate should be reflected in the order. The mere statement that he has
gone through the complaint, documents and heard the complainant, as such, as reflected
in the order, will not be sufficient. After going through the complaint, documents and hearing
2
3
2002 CriLJ 2942

(2008) 5 SCC 668

16
the complainant, what weighed with the Magistrate to order investigation under should be
reflected in the order, though a detailed expression of his views is neither required nor
warranted.
In the present case, order given by the High Court for investigation by the learned Judge has
stated no reasons for ordering investigation nor any reasoning has been given by learned judge
for coming to such a conclusion and ordering investigation against a public servant. Hence the
order should be set aside.
1.2 WHETHER
PRIOR
SANCTION OF
CENTRAL
GOVERNMENT
NECESSARY TO INITIATE CBI INVESTIGATION AGAINST MS. SALONI

KAMRA.
Section 19.4 Previous sanction necessary for prosecution
(1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15
alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed in connection with the affairs of the Union
and is not removable from his office save by or with the sanction of the Central
Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State
and is not removable from his office save by or with the sanction of the State
Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his
office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as
required under sub-section (1) should be given by the Central Government or the State
Government or any other authority, such sanction shall be given by that Government or
The Prevention of Corruption Act, 1988

17
authority which would have been competent to remove the public servant from his office at
the time when the offence was alleged to have been committed.
The public servants of the level of Joint Secretary and above including ministers take policy
decisions and, therefore, there is an intelligible differentia. As they take policy decisions, there
is a need to protect them from frivolous inquiries and investigation so that policy making does
not suffer.
The court expressed in State of Uttar Pradesh v. Paras Nath Singh5 that:
The mandatory character of the protection afforded to a public servant is brought out by the
expression, no court shall take cognizance of such offence except with the previous
sanction. Use of the words no and shall makes it abundantly clear that the bar on the
exercise of power of the court to take cognizance of any offence is absolute and complete. The
very cognizance is barred. That is, the complaint cannot be taken notice of. According to
Blacks Law Dictionary the word cognizance means jurisdiction or the exercise of
jurisdiction or power to try and determine causes. In common parlance, it means taking
notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it
or exercising jurisdiction if it is in respect of a public servant who is accused of an offence
alleged to have been committed during discharge of his official duty.
Referring to the judgment in Mohammad Khalid vs State of West Bengal 6:

It is necessary to mention here that taking cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his
judicial mind to the facts mentioned in a complaint or to a police report or upon information
received from any other person that an offence has been committed. The issuance of process
is at a subsequent stage when after considering the material placed before it the court decides
to proceed against the offenders against whom a prima facie case is made out.
5
6
(2009) 6 SCC 372

(1995) 1 SCC 684

18
In the judgment of Anil Kumar and Ors Vs M.K. Aiyappa and Anr 7 the question whether
prior sanction was required or not was handled by Supreme Court. Court established an
important principle of law that
Sanction under S. 19(1) or under The Prevention of Corruption Act is a precondition for
ordering investigation against public servant under S. 156(3) CrPC even at pre-cognizance
stage
Reference can also be made to the judgment of this Court in the case of Subramanium Swamy
v. Manmohan Singh and another8. The submission of the judge was that:
The question of sanction is of paramount importance for protecting a public servant who has
acted in good faith while performing his duties. The purpose of obtaining sanction is to see
that the public servant be not unnecessarily harassed on a complaint, failing which it would
not be possible for a public servant to discharge his duties without fear and favour.
The principle behind the prior sanction of appropriate authority is that the State is the first
victim of corruption and the executive is in the best position to adjudge whether it has been a
victim of corruption or not.
In the judgment of Deputy Chief Controller of Imports & Exports New Delhi v. K.T.
Kosalram Ors.9; and State Bank of India v. N. Sundara Money10 it has been held that the
courts are barred from taking cognizance of the offences therein enumerated alleged to have
been committed by a public servant except with the previous sanction of the competent
authority empowered to grant the requisite sanction. Therefore, when the court is called upon
to take cognizance of such offences, it must enquire whether there is a valid sanction to
(2013) 10 SCC 705

(2012) 3 SCC 64
9
1971 (2) S.C.R. 507
10
1976 (3) S.C.R. 160
8

19
prosecute the public servant for the offence alleged to have been committed by him as
public servant rather than enquiring in the case on merits and evidence.
A trial without a valid sanction where one is necessary under Sec. 19 has been held to be a trial
without jurisdiction by the court. Judgments rendered by Supreme Court under the case of
R.R. Chari v. State of U.P.11 and S.N. Bose v. State of Bihar12 and affirmed by the judgment
in Mohd. Iqbal Ahmed v. State of A.P.13 it was held that a trial without a sanction renders
the proceedings ab initio void.
The submission is that if the harassment of the public servant by a frivolous prosecution and
criminal waste of his time in law courts keeping him away from discharging public duty, are
the objects underlying section 6, the same would be defeated if it is held that the sanction of
the latter authority is not necessary.
ISSUE II
WHETHER COST-CUM-COMPENSATION OF RS. 10 LAC AWARDED IN FAVOUR

OF NARENDRA MOHAN TO BE PAID BY SALONI KAMRA AND JAI DEV
EQUALLY ON THE BASIS OF PRIMA FACIA ALLEGATIONS IS JUSTIFIABLE OR
NOT?
Whenever there is a breach of right of a person by another person, then the other person
becomes entitle to be punished for his acts either punitively or by pecuniary means. Punitive
remedies are explicitly written and mentioned in the statutes but there exists an ambiguity on
the subject of monetary compensation as a remedy.
11
1962 AIR 1573, 1963 SCR (1) 121
12
1968 AIR 1292, 1968 SCR (3) 563
13
1979 AIR 677, 1979 SCR (2)1007

20
Being influenced by Rookes v Barnard14 the Indian Court ruled that punitive damages can be
awarded in only three categories:15
Cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional

action by a servant of the government.
Cases in which the defendants conduct has been calculated by him to make a profit
for himself which may well exceed the compensation payable to the plaintiff.
Where provided by statute.
But it has to be kept in mind that these damages are only paid by the accused in the case where
the guilt of the accused is proved beyond the reasonable doubt by the opposite party.
In the case of Rajender Singh Pathania & Ors vs State of NCT of Delhi & Ors16 the appeals
have been preferred against the judgment of the High Court of Delhi in which the Court has
quashed the criminal case registered against respondents and directed CBI to investigate the
case in respect of the allegations made by the said respondents against the appellants and
awarded a compensation of Rs. 25,000/- each to the said respondents for wrongful
confinement.
It was held in this case that the issue of award of compensation in case of violation of
fundamental rights of a person has been considered by this Court time and again and it has
consistently been held that though the High Courts and this Court in exercise of their
jurisdictions under Articles 226 and 32 can award compensation for such violations but such a
power should not be lightly exercised. Before awarding any compensation there must be a
proper enquiry on the question of facts alleged in the complaint. The court may examine the
report and determine the issue after giving opportunity of filing objections to rebut the same
14
1964 UKHL 1, [1964] AC 1129

Rustom K. Karanjia and Anr. v Krishnaraj M.D. Thackersey and Ors (1970) 72 BOMLR
16
2011 (10) JT 294
15

21
and hearing to the other side. Awarding of compensation is permissible in case the court reaches
the same conclusion on a re-appreciation of the evidence adduced at the enquiry.
Award of monetary compensation in such an eventuality is permissible "when that is the only
practicable mode of redress available for the contravention made by the State or its servants in
the purported exercise of their powers."
It was decided in the case that the High Court erred in awarding even token compensation of
Rs. 25,000/- each as the High Court did not hold any enquiry and passed the order merely after
considering the status report submitted by the appellant. Such an order which is based purely
on the allegations is liable to be set aside.
It can be inferred from the above precedent that the apex court reversed the decision of the
High Court which was given on the basis of mere allegations.
In the present case too, the Honble High Court in its decision mentioned the words prima
facie allegations and gave the order of compensation on the same basis. The High Court was
not sure about the guilt of the accused and gave the direction of investigation to the CBI. A
remedy is only available to the victim in a criminal case when it is proved beyond the
reasonable doubt that his right has been violated by the accused. But in this case, the
compensation has been awarded to Rajveer Singh just on the basis of prima-facie allegations
and nothing else. This is clearly a mistake by the Honble Court as the court was still not sure
about the guilt of the accused. Hence it is requested in front of the Honble Court to set aside
the decision of the High Court.
ISSUE III
WHETEHR RAJVEER SINGH SHOULD BE DEALT WITH JUVENILE JUSTICE
COURT OR A CRIMINAL PROCEEDING UNDER THE PROVISIONS OF INDIAN
PENAL CODE.
3.1 WHETHER THE JUVENILE IS TO BE CLASSIFIED ON THE BASIS OF
GRIEVOUSNESS OF THE CRIME COMMITTED OR WHAT AGE HE HAS
ATTAINED?

22
Section 83 of the Indian Penal Code, in cases of offences committed by children between the
age group of 7 years and 12 years, gives discretion to the court to ascertain whether the child
between 7 and 12 years was capable to understand the consequences of his/her act; how he
planned it; how he prepared it and how he was provoked or instigated into the act, implying
that the court would take in consideration the mens rea of the child/juvenile i.e. the court
would identify the intention of the child behind the act. Only if the court has reason to
believe that the consequences of the act were familiar to the child, can the court award
punishment for the same. But after the age of 12, IPC treats everyone alike, and even for
juvenile offenders regular trial, regular sentence and regular jail come into play.
Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 states:
15. (1) In case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Board shall conduct a preliminary
assessment with regard to his mental and physical capacity to commit such offence, ability to
understand the consequences of the offence and the circumstances in which he allegedly
committed the offence, and may pass an order in accordance with the provisions of subsection
(3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced
psychologists or psycho-social workers or other experts.
Explanation. - For the purposes of this section, it is clarified that preliminary assessment is not
a trial, but is to assess the capacity of such child to commit and understand the consequences
of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed
of by the Board, then the Board shall follow the procedure, as far as may be, for trial in
summons case under the Code of Criminal Procedure, 1973:
Provided that the order of the Board to dispose of the matter shall be appealable under subsection (2) of section 101:

23
Provided further that the assessment under this section shall be completed within the period
specified in section 14.
Decision for ascertaining criminal liability of the juvenile is done on the basis of his
intellectual, mental, rational and perceptual maturity. The question in mind is whether
the juvenile committing the said offence is able to understand the consequences of his act
or not.
The Indian Penal Code and Juvenile Justice (Care and Protection of Children) Act very
meritoriously clears this confusion. To check the gravity of crime; their age bar, nature of
crime committed and the brutality committed by them should be checked. There should be a
link in the crimes and consequent penalty to their age or to the intensity, degree and
heinousness of the crime committed by them.
When heinous crimes are committed, the judge have the discretion to order a regular
trial if the circumstances warrant so. The judge would look into the planning,
preparation, intent and other related aspects. For repeat juvenile offenders, the judge can
very well use his discretion in the interest of justice. In the present case on the preliminary
police investigation it found that not only NM but many other such students were victim to
this crime of easy money and were abused by the group. It could be derived from the case that
the crime was committed by juvenile under a pre-planned manner and under a well laid
manner.
All the above facts prove that he was mature enough to judge the gravity of crime as well as
whether the crime which he committed was grave enough or not. First of all, as per medical
report and school certificate of one school, he was about 18 years and 6 months i.e. way above
the age limit of a juvenile. Therefore, he should be tried by the criminal court rather than the
juvenile justice court.
Under US judgment of Thompson v. Oklahoma17: Petitioner, when he was 15 years old,
actively participated in a brutal murder. Because petitioner was a "child" as a matter of
17
487 US 815 (1988)

24
Oklahoma law, the District Attorney filed a statutory petition seeking to have him tried as an
adult, which the trial court granted. He was then convicted and sentenced to death, and the
Court of Criminal Appeals of Oklahoma affirmed.
Former judge of the Supreme Court Justice Santhosh Hegde, said that the Criminal
Amendment Act 2014 makes no sense in today's context.:
"The mental maturity of an 18-year-old is very different today. Take the Delhi gang rape case
for instance. The juvenile will get away with a three-year year reformative punishment because
of his age. Can his act be considered as an act of innocence as per the law? It was a brutal act,
and he did not act as an innocent while committing the crime. I personally feel that the age of
a juvenile under the law should be made 15," he said
According to the act today, a juvenile would be exempted from prosecution and punishment.
The IPC states that any crime committed by a person below the age of 12 is not a crime.
However, for acts committed by persons between the age of 12 and 18, there is no such
immunity. The acts committed by the accused in this case are way above the level of his age.
He is very well aware of the nature and circumstances of the act. He not only supplied the
drugs to children but also sodomised NM, made his pornographic video and clicked his
obscene pictures but also asked him for ransom money. Theses all acts show that the acts done
by him were well in his mental capacity. Hence, on the basis of the grievousness of the crimes
committed by him, he cant be treated as juvenile and should be treated as an adult.
3.2 WHETHER THE ACCUSED WAS AWARE ABOUT THE NATURE OF THE ACT
DONE BY HIM AND SHOULD BE CONSIDERED A JUVENILE?
Sense of maturity should always be tested while punishing a juvenile. Here in this case, juvenile
has committed a heinous crime and attained a level of maturity at the moment. As first he made
the other person consumed drugs and while doing this action he was aware that his actions
were wrong. He was aware about the nature of his act, as he had warned NM not to tell about
the incident to anyone and even not to inform the police about the same, this fact indicates that

25
he was aware about the criminal nature of his crime and even the consequences it could have
on him and others. He not only provided the other person with drugs in isolated place but also
sodomized him, made his obscene video and clicked obscene pictures of him while he was not
in his complete senses as was under the influence of marijuana. He also demanded money
from NM and blackmailed him that if he didnt give him the money, he would upload his
video and pictures on Face-Life and on U-2.
In the case of Ashwini Kumar Saxena vs State of M. P.18, the accused was charged and
convicted for murder by the sessions court and the order was upheld by the High Court. He
appealed in Supreme Court regarding the same and argued that he was a juvenile when he
committed the offence and produced school records including mark sheet as the proof for the
same. The Sessions Court and the high court declined to consider the documents as a good
proof and relied on the medical reports of the doctors which proved accused to be an adult.
Supreme Court reversed the decision of High Court and took school records including mark
sheet as an adamant proof of age and considered the accused as a juvenile.
In the present case too, the mark sheet of one of the school along with the medical reports holds
accused to be above 18 years of age. Going by the law laid down in the above cited case, this
a valid proof of proving someones age and hence, the accused should not be considered as a
juvenile.
These all facts clearly indicate that the accused was clearly aware about the nature of the acts
done by him and hence, treating him as a minor on the basis of his age and sending him to
juvenile court instead of initiating a normal trial on him will be an utter miscarriage of justice
ad nothing more than that. Therefore, it is humbly prayed in front of the Honble Court that the
accused should be faced with a normal trial as an adult.
18
(2012) 9 SCC 750

26
ISSUE IV:
WHETHER THERE IS A CASE OF DEFAMATION, CAUSED BY THE ACT OF
PATRIKA & BACHPAN (NGO) AGAINST MS. SALONI KAMRA, WHO IS
CURRENTLY WOMEN AND CHILD DEVELOPMENT MINIISTER.
Courts have interpreted the right to privacy as implicit in the right to life. In R. Rajagopal vs.
State of Tamil Nadu19 and Peoples Union for Civil Liberties v. Union of India20, the court
held that the right to privacy is an essential ingredient of the right to life.
Section 499 Indian Penal Code reads as:
Whoever, by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any person intending to harm,
or knowing or having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1- It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to
the feelings of his family or other near relatives.
Explanation 2- It may amount to defamation to make an imputation concerning a company or
an association or collection of persons as such.
Explanation 3- An imputation in the form of an alternative or expressed ironically, may amount
to defamation.
Explanation 4- No imputation is said to harm a persons reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his caste or of his calling, or
19
20
(1994) 6 S.C.C. 632

AIR 1997 SC 568.

27
lowers the credit of that person, or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgraceful
In the present case, defamation is caused by PATRIKA by broadcasting the news on television
that had been obtained by them through sting operation. Thus, publication of defamatory
matter in newspaper journals and by broadcasting on radio or television is deemed to be
Publication leading to defamation.21 In the present case there is defamation caused under the
provisions of the said act as the respondents have harmed the reputation of the appellant.
As the fourth estate outside the Government, the media plays an important role in a democratic
society. In fact, democratic credentials are judged by the extent of freedom the media enjoys
in a particular state.
But the Constitution of India does not expressly mention the liberty of the press. Instead,
Article 19(1) (A) guarantees the citizens freedom of speech and expression.
In India, the liberty of the media may be illustrated by the phrase:
Article 19-1-A incorporates within itself right to receive information about any event,
happening or incident etc. And freedom of speech includes freedom to communicate, advertise,
publish or propagate ideas and the dissemination of information,
Dissemination of information is inevitably preceded by uncovering information, which brings
us to Sting Operations. Sting Operations were initially about exposing acts of an institution or
individual which are against the public order. They were meant to empower society with
enhanced awareness, but several instances over the years have been more about the pursuit of
profit and short-term sensationalism. The carrying out of a sting operation may be an
expression of the right to free press22 but it carries with it an indomitable duty to respect the
privacy of others.
21 Bhagat Singh v. Lachchman Singh AIR 1968 Cal 296

22
Article 21 and Article 19{(1)(a)} The Constitution of India

28
Honble Delhi High Court in the judgment of Court On Its Own Motion Vs State23 held that:
Such incidents should not happen and false and fabricated sting operations directly infringing
upon a persons right to privacy should not recur because of desire to earn more and to have
higher TRP rating. Right to freedom of press is a valuable right but the right carries with it
responsibility and duty to be truthful and to protect rights of others.
In the above mentioned case a sting operation was conducted by Prakash Singh, India TV
Channel reporter. The sting operation showed a schoolgirl who claimed that she was persuaded
by Uma Khurana to indulge in prostitution. The telecast of the video on the TV news channels
created chaos in Old Delhis Daryaganj and nearby areas.
However, the unedited version of the tapes revealed that Uma Khurana had been framed and
there was hardly any truth in the original story. The drama was conducted by Prakash Singh
and Rashmi Singh, who writes for a Hindi newspaper. She posed as a schoolgirl in the sting
operation. Both Prakash and Rashmi have been arrested and were sent to judicial custody.
The Honble Delhi High Court ordered that the school teacher who was sacked after a fake
television sting operation, Uma Khurana, must be reinstated. A police investigation later
revealed the sting had been faked and the teacher falsely accused.
On the basis of this the Indian Government banned the channel for a month due to the
false sting. It was banned because it breached the Cable Networks Regulation Act, 1995,
by broadcasting an admittedly doctored sting operation.
It was a painful experience for Ms. Uma Khurana as she not only lost her reputation but also
her job. But it is not possible for her to revert to her normal life, the way it was before the sting
operation.
Delhi High Court observed in the above case that the Court trusts that all TV channels/Medias
will take steps and prohibit its reporters from producing or airing any programmes which are
23
(2008) DLT 429

29
based on entrapment or are fabricated and intrusive. The court also observed that TV reporters
and editors should take steps for drawing up a self-regulatory code of conduct. It implies that
such Code of Conduct should be one capable of being enforced effectively. In answer to this
the apex court has declared the following guidelines:
1. A channel proposing to telecast a sting operation shall obtain a certificate from the
person who recorded or produced the same certifying that the operation is genuine to
his knowledge.
2. There must be concurrent record in writing of the various stages of the sting operation.
3. Permission for telecasting a sting operation should be obtained from a committee
appointed by the Ministry of Information and Broadcasting. The said committee will
be headed by a retired High Court Judge to be appointed by the Government in
consultation with the High Court & two members, one of which should be a person not
below the rank of Additional Secretary and the second one being the Additional
Commissioner of Police. Permission to telecast sting operation will be granted by the
committee after satisfying itself that it is in public interest to telecast the same. This
safeguard is necessary since those who mount a sting operation themselves commit the
offences of impersonation, criminal trespass under false pretence and making a person
commit an offence.
4. While the transcript of the recordings may be edited, the films and tapes themselves
should not be edited. Both edited and unedited tapes be produced before the committee.
5. Sting operation shown on TV or published in print media should be scheduled with an
awareness of the likely audience/reader in mind. Great care and sensitivity should be
exercised to avoid shocking or offending the audience.
6. All television channels must ensure compliance with the Certification Rules prescribed
under the Cable Television Network (Regulation) Act 1995 and the Rules made there
under.

30
7. The Chief Editor of the channel shall be made responsible for self-regulation and
ensure that the programmes are consistent with the Rules and comply with all other
legal and administrative requirements under various statutes in respect of content
broadcast on the channel.
8. The subject matter of reports or current events shall not:
(a)
Deliberately present as true any unverified or inaccurate facts so as to avoid
trial by media since a man is innocent till proven guilty by law;

(b)
Present facts and views in such a manner as is likely to mislead the public about
their factual inaccuracy or veracity;

(c)
Mislead the public by mixing facts and fiction in such a manner that the public
are unlikely to be able to distinguish between the two;

(d)
Present a distorted picture of reality by over-emphasizing or under-playing
certain aspects that may trivialise or sensationalise the content;

(e)
Make public any activities or material relating to an individuals personal or
private affairs or which invades an individuals privacy unless there is an identifiable

large public interest;
(f)
Create public panic or unnecessary alarm which is likely to encourage or incite
the public to crime or lead to disorder or be offensive to public or religious feeling.
9. Broadcasters/Media shall observe general community standards of decency and civility

in news content, taking particular care to protect the interest and sensitivities of
children and general family viewing.

31
10. News should be reported with due accuracy. Accuracy requires the verification (to the
fullest extent possible) and presentation of all facts that are necessary to understand a
particular event or issue.
11. Infringement of privacy in a news based/related programme is a sensitive issue.
Therefore, greater degree of responsibility should be exercised by the channels while
telecasting any such programmes, as may be breaching privacy of individuals.
12. Channels must not use material relating to persons personal or private affairs or which
invades an individuals privacy unless there is identifiable larger public interest reason
for the material to be broadcast or published.
Electronic Media Monitoring Centre under the Information & Broadcasting Ministry has a set
of self-regulatory guidelines for broadcast service providers including guidelines that channels
should refrain from using material related to a persons private affairs unless there is an
identifiable larger public interest.
Sections 3 and 5 read with the Programme Code referred to in Section 6 of the Cable Television
Networks (Regulation) Act, 1995 and the Rules framed there under lays down that no
programme can be transmitted/re-transmitted on any cable service which contains anything
obscene, defamatory, deliberate, false and suggestive innuendos and half-truths.
But in this case, it has been nothing talked in the fact sheet about the procedure which has to
followed before telecasting a sting operation as in accordance with the guidelines given by the
apex court. Also, the discs telecasted contained obscene and defamatory content which was
against Sections 3 and 5 read with the Programme Code referred to in Section 6 of the Cable
Television Networks (Regulation) Act, 1995.
In the case of R.K. Anand v. Registrar, Delhi High Court24 the Supreme Court observed
that:
24
2009 11 SCR 1026

32
The media is not free to publish any kind of report concerning a subjudice matter or to
do a sting as it pleases in a pending trial matter. More or less on similar lines, it was also
observed that a sting based on deception would attract the legal restrictions with far
greater stringency.
The Supreme Court commented in Sidhartha Vashisht @ Manu Sharma vs. State (NCT of
Delhi)25 that the distinction between trial by media and informative media should always be
maintained. Trial by media should be avoided particularly at a stage when the suspect is entitled
to the constitutional protections. Invasion of his rights is impermissible in every circumstance.
In the judgment of Bhupinder Singh Patel v. CBI26, the Honble court made an observation
that:
No doubt, the media plays an important role in a democratic society and acts as the fourth
estate outside the Government but where freedom of Press can be envisaged as a special right
under Art. 19(1)(a) of the Constitution of India, the restrictions under Article 19(2) of the same
constitution cannot be neglected. It is true that accountability is the sine qua non of democracy
and that the basic postulate of accountability is that people should have the information about
the working of the Government, it is here that the role of media becomes significant. It is said
that with great power comes great responsibility, therefore the freedom under Article
19(1)(a) is correlative with the duty not to violate any law. All sting operations involve
making people commit crimes that they otherwise may not have committed. There can be no
second thought about the fact that the media is well within its domain when it seeks to use
tools of investigative journalism to bring us face-to-face with the ugly underbelly of the society
but entrapment of any person should not be resorted to and cannot be permitted unless a right
approach is taken which is in accordance with law of the land.
It was further held that The petitioners could not have assumed the role of a knight in the
shining armour seeking to reform the society completely ignoring the legal methodology
25
26
(2010) 6 SCC 1
(2008) 151 DLT 37/2008 Cri LJ 4396

33
laid out for necessary corrective measures including of detection more so when the action
of the petitioners/accused is not on account of any altruistic motives but is a self-serving
one.
The Honble Supreme Court in the above cited case dismissed the appeal on the ground that
investigative media shall not be resorted to and cannot be permitted unless a right approach is
taken. Patrika having no connection to the case, cannot be allowed to infringe SKs right to
freedom.
In the present appeal too, it may be noted that the broadcasting of the videos on the channel
shows that the sting operation was a journalistic exercise rather than an initiative taken by
Patrika to reform the society. There is the classic ethical problem that haunts all sting
operations: can you hold somebody responsible for a crime that he might have committed?
The Supreme Court ruled in R. Rajagopal and Another vs. State of Tamil Nadu and
others27 that:
A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among other matters. No one can publish anything
concerning the above matters without his consent whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages.
The appellant in reference to Compact Discs have the right to privacy guaranteed under the
Constitution of India to every citizen of the country as the fundament right. As, in Disc 3 which
included contents of Ms Saloni Kamras private life is no way a matter of public interest or
importance?
In reference of the arguments made and authorities cited, it is clear that tit has been a clear
defamation and violation of right to privacy of the appellant by the respondent PATRIKA.
27
AIR (1994) 6 SCC 632

34
Hence, according to the remedies envisaged in Article 32 of the constitution of India on the
infringement of Fundamental rights, the writ filed by the said appellant shall not be dismissed
and the decision of the High Court should be reversed.
ISSUE 5
WHETHER THE DECISION OF HIGH COURT JUSTIFIABLE AND ARE SOHAN
AND THE DOCTOR LIABLE FOR PROSECUTION:
5.1 WHETHER SOHAN IS LIABLE FOR PROSECUTION FOR RAPE OF RUCHI?
In the case of State v. Ram Singh & Ors28 five persons were apprehended in connection with
the crime. One of them, identified for the purpose of the present case as Raju, was few days
short than 18 years of age on the date of commission of the crime. Accordingly, in compliance
with the provisions of the Juvenile Justice Act, 2000 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 29 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.
In the present case the age of Sohan has been described in the fact sheet as about 18 years. It
has been not clearly or explicitly mentioned anywhere in the fact sheet that he was above 18
years i.e. a major or an adult according to the law of the land. We can see from the above cited
precedent that a child who was just a few days short of being an adult was considered as a
28
29
(2007) 3 SCC 1
2013 ILR (1) 48

35
juvenile by the court and was sent to the juvenile justice board instead of being tried as an
adult.
Just because there is an ambiguity and lack of clarity in the age of the said appellant, there is a
probability that he has still not attained the age of 8 years and still a minor. It is a wellestablished principle that the criminal cases are not decided by balancing the probabilities but
by proving the fact beyond the reasonable doubt30. In this case, there is no way that the other
party can prove this fact beyond the reasonable doubt as the fact sheet remains silent about the
same. There is no way that it can be proved in front of this Honble Court that Sohan was
above 18 years i.e. an adult.
In the case of Hem Raj v. State of Haryana31 the second ground taken by the defence was
that according to the FSL report it was shown that human semen was detected on the salwar
of the prosecutrix and on the underwear of the accused. However, it was difficult to infer from
this that the prosecutrix was raped by the accused. The accused in this case was
given benefit of doubt.
In the case of Ravindra vs State of M.P.32 the second ground taken by the defence is that
there is absence of spermatozoa in the vaginal swab of the victim and the Chemical
Examination report found that the sample of semen found on the garments of the victim was
insufficient to link the same with the accused. Therefore, on the basis of benefit of doubt the
court reduced the sentence of the accused.
In the present case too there exist a doubt on the material fact and going by the precedents
stated above, the benefit of doubt is always given to the accused. Hence it is pleaded in front
of this Honble court to revert the order of the Honble High Court of prosecution of accused
by the normal court and also request that the said accuses should be prosecuted in a Juvenile
Court and not in normal court.
30
State Through Delhi Administration vs Sanjay Gandhi 1978 AIR 961/1978 SCR (3) 950
(2014) 2 SCC 395
32
ILC-2015-SC-CRL-Feb-17
31

36
5.2 WHETHER DOCTOR IS LIABLE FOR PROSECUTION FOR ABORTION OF

RUCHI?
Section 3 of The Medical Termination of Pregnancy Act, 1971 states that:
Section 3. When Pregnancies may be terminated by registered medical practitioners. (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered
medical practitioner shall not be guilty of any offence under that Code or under any other law
for the time being in force, if any pregnancy is terminated by him in accordance with the
provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered
medical practitioner, (a) Where the length of the pregnancy does not exceed twelve weeks if such medical
practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty
weeks, if not less than two registered medical practitioners are. Of opinion, formed in
good faith, that, (i) The continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury physical or mental health; or
(ii) There is a substantial risk that if the child were born, it would suffer from
such physical or mental abnormalities as to be seriously handicapped.
Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused
by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury
to the mental health of the pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used
by any married woman or her husband for the purpose of limiting the number of children, the

37
anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to
the mental health of the pregnant woman.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to
the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's
actual or reasonable foreseeable environment.
(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 lunatic, shall be terminated except with the
consent in writing of her guardian.
(b) Save as otherwise provided in sub-section 4(a), no pregnancy shall be terminated except
with the consent of the pregnant woman.
According to the Explanation 1 of sub-section 2 of Section 3 of The Medical Termination of
Pregnancy Act, 1971 if there is a pregnancy caused by rape, the mental agony and anguish
caused to the women would prove to be of grave injury for her mental health. In such
circumstances the act of the doctor of aborting the child was well justified according to moral
as well as ethical and legal point of view.
As going by the law, in the present case,
1. The abortion was done by a registered medical practitioner.
2. The abortion was done well before the limitation period of 12 weeks.
3. The pregnancy was caused by the rape of the girl (Ruchi).
Therefore, all the law points and legal requirements of the valid and legal abortion are fulfilled
except the last one i.e. consent of the guardian as Ruchi was a minor.
It has to be taken into consideration that the victim in this case (a minor) who didnt tell her
parents about her rape as well as pregnancy. She might have been too scared regarding the
reputation of her family as well as the consequences she would have to face if everyone comes
to know about her pregnancy.

38
In such a case, the abortion was done by the doctor in the good faith of Ruchi with her consent
although done without the consent of her guardian. It has to be inferred that the doctor acted in
good faith without any faulty or mischievous intent as if she would have refused to abort, the
mental anguish to Ruchi would have been much greater.
Held in the case of M. Kala vs The Inspector of Police 33 the object of the provision
especially Section 3(2)(a) is with a view to prevent the minor girl from grave injury to her
physique and mental health and if the foetus is not aborted, her dignity and the physique is
likely to be shattered and if the pregnancy continues, she would grow with traumatic experience
and unforgettable shame and therefore, the Doctors of the respondent hospital were fully
justified in resorting to medical termination of pregnancy by exercising their power
under Section 3(2)(a) of the Medical Termination of Pregnancy Act, 1971.
In the case of V. Krishnan Vs. Respondent: G. Rajan alias Madipu Rajan and The
Inspector of Police 34 it was held that "Immature" minors have a constitutional right
to abortion services as this would be in their best interests, and a right to abortion without
parental involvement if such would be detrimental to their best interests:
In order to protect "immature" minors from improvident decision making, states may require
parental notification or consent prior to a minor's abortion, but such laws covering all minors
must contain an administrative or judicial bypass mechanism whereby mature or immature
minors, in their best interests", can be exempted from the mandated parental involvement.
By considering the above cited precedents, it is made clear that the Honble judiciary doesnt
want to go by the rigidity of the written legislation but be flexible enough to serve justice in
the ends of the victim which in this case, is a minor who has not told her parents about her rape
and pregnancy. So in such circumstances, it was in the best interests of the girl that she got the
abortion done by the doctor without getting in the twist and turns of the formalities. Hence,
clearly the doctor acted in the good faith and therefore, should not be prosecuted for it.
33
34
High Court of Madras WP. No.: 8570 of 2015 Dated: 24.03.2015

MANU/TN/0279/1993

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) Dismiss the order of CBI enquiry against SK.

b) Order non - payment of cost-cum-compensation to NM, as there is no substantive
evidence to prove the guilt of SK and JD.
c) Dismiss the order given by the Honble High Court by holding RS to be an adult
not giving the case to Juvenile Justice Court.
d) Awarding compensation to appellant against the defamatory act of sting operation
conducted by respondents.
e) Dismiss the order of initiating prosecution against Sohan as he is a juvenile
f) Dismiss the order of initiating prosecution against the Doctor as he acted in the
good faith.
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 Appellant
Sd/~

40

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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 APPELLANT

MEMORIAL ON BEHALF OF APPELLANT

2 nd Manipal Ranka National Moot Court Competition 2016

1.1.Whether court can direct CBI investigation on the

Whether cost-cum-compensation of Rs. 10 Lac awarded

MEMORIAL ON BEHALF OF APPELLANT

2 nd Manipal Ranka National Moot Court Competition 2016

3.1 Whether the juvenile is to be classified on the basis

6.1 Whether Sohan is liable for prosecution for rape of

MEMORIAL ON BEHALF OF APPELLANT

2 nd Manipal Ranka National Moot Court Competition 2016

All India Reporter

Bombay Law Reporter

Calcutta Law Times

Central Bureau of Investigation

Criminal Law Journal

Delhi Law Times

Indian Law Reports

National Capital Territory

Supreme Court Cases

Supreme Court Reporter

House of Lords, United Kingdom

United States Reports

Writ Petition Number

MEMORIAL ON BEHALF OF APPELLANT

2 nd Manipal Ranka National Moot Court Competition 2016

The Constitution of India, 1950

The Juvenile Justice (Care and Protection of Children) Act, 2015

The Prevention of Corruption Act, 1988

The Cable Television Networks (Regulation) Act, 1995

The Medical Termination of Pregnancy Act, 1971

The Indian Penal Code, 1860

The Criminal Procedure Code, 1973

The Indian Evidence Act, 1872

MEMORIAL ON BEHALF OF APPELLANT

2 nd Manipal Ranka National Moot Court Competition 2016

Maksud Sayed v. State of Gujarat and Others (2008) 5 SCC 668

State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372

Mohammad Khalid vs State of West Bengal (1995) 1 SCC 684

Subramanium Swamy v. Manmohan Singh and another (2012) 3 SCC 64

State Bank of India v. N. Sundara Money [1976] 3 SCR 160

Rookes v Barnard [1964] UKHL 1 [1964] AC 1129

Thompson v. Oklahoma 487 US 815 (1988)

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

R. Rajagopal vs. State of Tamil Nadu AIR (1994) 6 SCC 632

MEMORIAL ON BEHALF OF APPELLANT

2 nd Manipal Ranka National Moot Court Competition 2016

Bhagat Singh v. Lachchman Singh AIR 1968 CalLT 296

Court On Its Own Motion Vs State (2008) DLT 429

R.K. Anand v. Registrar, Delhi High Court (2009) 11 SCR 1026

State v. Ram Singh & Ors (2007) 3 SCC 1

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

State Through Delhi Administration vs Sanjay Gandhi 1978 AIR 961

Hem Raj v. State of Haryana (2014) 2 SCC 395

Ravindra vs State of Madhya Pradesh ILC-2015-SC-Crl-Feb-17

MEMORIAL ON BEHALF OF APPELLANT

2 nd Manipal Ranka National Moot Court Competition 2016

MEMORIAL ON BEHALF OF APPELLANT