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 2016

MEMORIAL CODE: M107

BEFORE THE HON’BLE 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 HON’BLE 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.

Pg. No.

Title

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


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

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. vi.

35-39

Issue 5

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.

40

Prayer



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

Hon’ble

:

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



INDEX OF AUTHORITIES

STATUTES REFERRED Sr. No.

Statutes

1

The Constitution of India, 1950

2

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

3

The Prevention of Corruption Act, 1988

4

The Cable Television Networks (Regulation) Act, 1995

5

The Medical Termination of Pregnancy Act, 1971

6

The Indian Penal Code, 1860

7

The Criminal Procedure Code, 1973

8

The Indian Evidence Act, 1872



CASES CITED Sr. No.

Cases

1

Common Cause" A Registered Society and Others vs Union of India 1987 SCR (1) 497

2

Secretary, Minor Irrigation & Rural Engineering Services Uttar Pradesh and Ors. v. Sahngoo Ram Arya and Anr. 2002 CriLJ 2942

3

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

4

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

5

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

6

Anil Kumar and Ors V M.K. Aiyappa and Anr (2013) 10 SCC 705

7

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

8

Deputy Chief Controller of Imports & Exports New Delhi v. K.T. Kosalram Ors [1971] 2 SCR 507

9

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

People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568



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



Statement of Jurisdiction

The Hon’ble 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 b y 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



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 NM’s senior of Eleventh Standard. On 25/04/2016 he offered the cigarette to NM a nd 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 t o "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 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 o ne. 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 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 le ad 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 reali sed 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 r elative 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

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 b y different sections of the society. societ y. 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 parti es. 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.



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 home and did not tell to any one including her family members. members. Unfortunately, she became pregnant pregnant and got aborted 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 filed by ‘Bachpan’.

JUDGMENT OF HIGH COURT The Hon’ble 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 c ertificate 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. s uit. 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 Hon’ble High Court of Rajasthan.



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 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



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 effe cts 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 completel y 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.



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? FACIEALLEGATION?

No one can c an dispute the power of the Hon’ble High Court under Article 226 or the Hon’ble 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 involve ment is prima facie established, establis hed, but a direction to CBI to investigate whether any person pers on 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."

1

1987 SCR (1) 497



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 necessar y 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 “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 callin g 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 Others 3 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

2002 CriLJ 2942 (2008) 5 SCC 668

3



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 investi gation 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

4

The Prevention of Corruption Act, 1988



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 i ntelligible differentia. As they take policy decisions, there is a need to protect them t hem from frivolous inquiries and investigation so that poli cy 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 Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance, 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 discha rge 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 f acie case is made out.”

5

(2009) 6 SCC 372 (1995) 1 SCC 684

6



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 – 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 t o the judgment of this Court in the case of Subramanium Swamy v. Manmohan Singh and another 8. The submission of the judge was that:

“The question of sanction is of paramount importance for prot ecting 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 t o 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 Money 10 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

7

(2013) 10 SCC 705 (2012) 3 SCC 64 9 1971 (2) S.C.R. 507 10 1976 (3) S.C.R. 160 8



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 j udgment

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 ei ther 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



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 defendant’s 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 & Ors 16 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



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 evi dence 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 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 merel y 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 Hon’ble High Court in its decision mentioned the words “prima facie allegations” and gave the order of compensation comp ensation 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 Hon’ble Court as the court was still not sure about the guilt of the accused. Hence it is requested in front of the Hon’ble 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?



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 c apable 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 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 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 i n 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 clarifie d 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:



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 – is – ““whether the juvenile committing the said offence of fence 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 b ut many other such students were victim vi ctim 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)



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 i nnocent while committing the crime. I personally f eel that the age of a juvenile under the law should shou ld 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 were well in his mental mental capacity. Hence, on the basis of the grievousness of the crimes committed by him, he can’t 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 maturit y 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



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 and blackmailed him that if he didn’t 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 acc used 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 t he 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 someone’s 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 initiati ng 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 Hon’ble Court that the accused should be faced with a normal trial as an adult.

18

(2012) 9 SCC 750



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 People’s 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, “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, t he 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 person’s reputation, 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

(1994) 6 S.C.C. 632 AIR 1997 SC 568.

20



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” disgraceful” In the present case, defamation defamati on 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 t here is defamation caused under the provisions of the said act as the respondents have harmed the reputation of the appellant. 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 ma y be illustrated by the phrase: “Article 19-1-A 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,” information,” Dissemination of information is inevitably preceded b y uncovering information, which brings us to Sting Operations. Sting Operations were initiall y 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 t he 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 press 22 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



Hon’ble Delhi High Court in the judgment of Court On Its Own Motion Vs State 23 held that: “Such incidents should not happen and false and fabricated sting operations directl y infringing

upon a person’s 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 sc hoolgirl who claimed that she was persuaded by Uma Khurana Khurana to indulge in prostitution. prostitution. The telecast of the video on the TV news channels channels created chaos in Old Delhi’s 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 Hon’ble Delhi High Court C ourt 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, l ife, the way it was before the t he 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 programme’s which are

23

(2008) DLT 429



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 Conduct should be one capable of being enforced 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 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 committ ee. 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 t he Certification Rules prescribed under the Cable Television Network (Regulation) Act 1995 and the Rules made there under.



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 ficti on in such a manner that the t he 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 individual’s personal or

private affairs or which invades an individual’s 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.



10. News 10. News should be reported 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 relating to persons’ personal or private affairs or which invades an individual’s privacy unless there is identifi able 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 servic e providers including guidelines that channels should refrain from using material related to a person’s 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-tr uths. 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 i n 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 Court 24 the Supreme Court observed that:

24

2009 11 SCR 1026



“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 s tage when the suspect is entitled entitl ed to the constitutional protections. Invasion of his rights is impermissible in every circumstance. In the judgment of Bhupinder Singh Patel v. CBI 26, the Hon’ble Hon’ble 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 s ignificant. 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 f ace-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 l aw 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

(2010) 6 SCC 1 (2008) 151 DLT 37/2008 Cri LJ 4396

26



laid out for necessary corrective correct ive measures including of detection more so when the a ction of the petitioners/accused is not on account of any altruistic motives but is a self-serving one.”

The Hon’ble Hon’ble 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 SK ‘s ‘s 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 cri me 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.” dama ges.” 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 Kamra’s “private life” is 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



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 t ried 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 arres ted 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. la nd. 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

(2007) 3 SCC 1 2013 ILR (1) 48

29



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 clar ity in the age of the said appellant, there is 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 reas onable doubt 30. In this case, there is no way that the other party can prove prove this fact beyond beyond the reasonable reasonable doubt as the fact sheet remains silent about the same. There is no way that it can be proved in front of this Hon’ble Court Court that Sohan was above 18 years i.e. an adult. In the case of Hem Raj v. State of Haryana 31 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 ac cused. 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 Hon’ble court to revert the order of the Hon’ble High Court of prosecution of accused by the normal court and also request that the said accuses should be prosecuted in i n a Juvenile Court and not in normal court.

30

State Through Delhi Administration vs Sanjay Gandhi 1978 AIR 961/19 78 SCR (3) 950 (2014) 2 SCC 395 32 ILC-2015-SC-CRL-Feb-17 31



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 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 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 husband for the purpose of limiting the number of children, children, the



anguish caused by such unwanted pregnancy may be presumed to constit ute 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 practiti oner. 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 didn’t 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.



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 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 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 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 best interests", can be exempted from the t he mandated parental involvement. By considering the above cited precedents, it is made clear that the Hon’ble judiciary doesn’t 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 i s a minor who has not told her parents about her rape and pregnancy. So in such circumstances, it was i n 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.

High Court of Madras WP. No.: 8570 of 2015 Dated: 24.03.2015 MANU/TN/0279/1993

33

34



PRAYER In the light of facts and circumstances stated, st ated, issues raised, arguments advanced and authorities cited, it is most most humbly submitted that this Hon’ble 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 given by the Hon’ble High Court by b y holding RS to be an adult not giving the case to Juvenile Justice Court. d) Awarding compensation to appellant against the defamatory act of st ing 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 Hon’ble 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/~


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

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