Class Moot

UILS ACADEMIC MOOT COURT, 2017

IN THE COURT OF HON’BLE ADDITIONAL SESSIONS JUDGE AT

DHOLAKPUR

Criminal Case No. Case No. ………. of 2017

STATE OF HARYANA … COMPLAINANT

V.

DHARAM SINGH … ACCUSED

MEMORIAL ON BEHALF OF THE ACCUSED

A NSHUL SINGHAL, 127/13, SECTION-C, B.COM. LL.B., 9TH SEMESTER , UILS PANJAB U NIVERSITY, CHANDIGARH.

UILS ACADEMIC MOOT COURT, 2017 TABLE OF CONTENTS S. NO.

PARTICULARS

PAGE NO.

1.

INDEX OF AUTHORITIES

(ii)

2.

STATEMENT OF FACTS

(vi)

3.

STATEMENT OF JURISDICTION

(vii)

4.

STATEMENT OF CHARGES

(viii)

5.

SUMMARY OF ARGUMENTS

(ix)

6.

ARGUMENTS ADVANCED

1-12

I.

WHETHER THE ACCUSED SHOULD BE CONVICTED U NDER SECTION 121

FOR

WAGING WAR

AGAINST THE

GOVERNMENT? II.

WHETHER THE ACCUSED SHOULD BE CONVICTED U NDER SECTION 124A FOR THE OFFENCE OF SEDITION?

III.

WHETHER THE ACCUSED IS GUILTY U NDER SECTION 120B OF THE I NDIAN PENAL CODE OR NOT?

7.

PRAYER

MEMORIAL FOR DEFENCE

(x)

i

UILS ACADEMIC MOOT COURT, 2017 INDEX OF AUTHORITIES ABBREVIATIONS USED: S. No.

ABBREVIATION

FULL FORM

1.

&

And

2.

§

Section

3.

¶

Paragraph

4.

AIR

All India Reporter

5.

All.

Allahabad

6.

Anr.

Another

7.

Bom

Bombay

8.

Cal

Calcutta

9.

Co.

Company

10.

Cr

Criminal

11.

CrPC

Criminal Procedure Code

12.

Ed.

Edition

13.

HC

High Court

14.

Hon’ble

Honourable

15.

Inc.

Incorporated

16.

IPC

Indian Penal Code

17.

LR

Law Reporter

18.

Ltd.

Limited

19.

Mad

Madras

20.

Mad

Madras

21.

Nag

Nagpur

22.

NCT

National Capital Territory

23.

Ors.

Others

24.

Pat.

Patna

25.

Pvt.

Private

26.

Pvt.

Private

27.

r/w

Read with

28.

Raj

Rajasthan


ii

UILS ACADEMIC MOOT COURT, 2017 29.

SC

Supreme Court

30.

SCC

Supreme Court Cases

31.

SCR

Supreme Court Reporter

32.

u/s

Under section

BOOKS REFERRED:

1. RP K ATARIA & SKA NAQVI, BATUK LAL’S COMMENTARY ON THE I NDIAN PENAL CODE, 1860 (1st ed. Orient Publishing Co. Allahabad 2007). 2. KI VIBHUTE, PSA PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis, Gurgaon, Reprint 2015). 3. KD GAUR , I NDIAN PENAL CODE (5th ed. Universal Law Publishing Co. New Delhi, 2014). 4. SN MISHRA, I NDIAN PENAL CODE (19th ed. Central Law Publications, Allahabad Reprint 2014). 5. MP TANDON, I NDIAN PENAL CODE (26th ed. Allahabad Law Agency, Faridabad 2015). 6. HARI SINGH GAUR , COMMENTARIES ON I NDIAN PENAL CODE (12th ed. Law Publishers (India) Pvt. Ltd. Allahabad 2005). 7. R ATANLAL R ANCHHODDAS & DHIRAJLAL K ESHAVLAL THAKORE, THE I NDIAN PENAL CODE (28th ed. Wadhwa & Co. Nagpur, 1997).

CASES REFERRED: S. NO.

NAME OF THE CASE

CITATION

1.

Arjun Arora v. Emperor

AIR 1937 All 295

8

2.

Balwant Singh v. State of Punjab

AIR 1995 SC 1785

9

3.

Bimbadhar Pradhan v. State of Orrisa

AIR 1956 SC 469

12

4.

Emperor v. Sadashiv

AIR 1947 PC 82

5


PAGE NO.

iii


Hasrat Mohani v. Emperor

(1922) 24 Bom LR

3

885 6.

Kedar Nath v. State of Bihar

AIR 1962 SC 955

6, 7

7.

Kunhi Kadir v. Emperor

AIR 1922 Mad 126

3

8.

Magan Lal v. Emperor

AIR 1946 Nag 173

1

9.

Mir Hasan Khan v. State of Bihar

AIR 1951 Pat 60

4

10.

Nazir Khan v. State of Delhi

AIR 2003 SC 4427

3

11.

Pan American World Air Inc. v. Actna Cas

505, F.R. 2d 989

2

(1897) ILR 22 Bom

9

& Sur Co 12.

Queen Empress v. Bal Gangadgar Tilak

112 13.

Queen Empress v. Jogendra Chander Bose

(1891) ILR 19 Cal 35

9

14.

Raghuvir Singh v. State of Bihar

AIR 1987 SC 149

6

15.

Ramchandra v. Emperor

29 Cr LJ 381 (Lah)

6

16.

Satyaranjan Bakshi v. Emperor

AIR 1927 Cal 698

7

17.

State (NCT of Delhi) v. Navjot Sandhu

(2005) 11 SCC 600

2

18.

Topandas v. State of Bombay

(1955) 2 SCR 881

12

DICTIONARIES REFERRED:

1. BLACK ’S LAW DICTIONARY. 2. MERRIAM WEBSTER DICTIONARY. 3. OXFORD E NGLISH DICTIONARY.

STATUTES REFERRED:

1. CODE OF CRIMINAL PROCEDURE, 1973. 2. I NDIAN PENAL CODE, 1860. MEMORIAL FOR DEFENCE

iv

UILS ACADEMIC MOOT COURT, 2017 3. I NDIAN EVIDENCE ACT, 1872.

WEB LINKS REFERRED:

1. http://thelawdictionary.org/quo-animo/. 2. https://www.lawteacher.net/free-law-essays/constitutional-law/waging-a-war-againstthe-state-constitutional-law-essay.php. 3. https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf. 4. https://www.legallyindia.com/views/entry/a-closer-reading-of-the-supreme-court-ofindia-decision-in-kedar-nath-singh-vs-state-of-bihar-1962-on-the-offence-of-seditiondefined-in-section-124a-ipc. 5. http://lawtimesjournal.in/criminal-conspiracy/.


v

UILS ACADEMIC MOOT COURT, 2017 STATEMENT OF FACTS AS PER THE PROSECUTION

I RESERVATION TO GUJAR COMMUNITY AND MUSLIM COMMUNITY

The State of Haryana gave reservation to the gujar community as well as the Muslim community. The reservation given to the Muslim Community has been challenged before the Hon’ ble High Court and the matter is pending. Dharam Singh (accused) belonging to a jaat political family, initiated a movement claiming reservation for jaat community to fulfil his political dreams. Dharam Singh formed a new political party named Jaat Aarakshan Andolan Samiti.

II ORGANISATION OF RALLY

The party organised a rally in Dholakpur on 11 September without permission. The police was directed to keep a close watch and may leaders were also arrested. Luckily, Mr. Dharam Singh reached the rally ground and reached the rally ground and gave a short speech thus, condemning the state. There were heated arguments among the public and effigy of a fam ous political leader was burnt.

III THE ARREST

Dharam Singh was then arrested by the police and after that there was unrest in the state due to which many people died, and many people got injured. A video was made which has been sent to the FSL, the report of which is awaited. An FIR was thereafter lodged against Dharam Singh u/s 120B, 121 and 124A of the Indian Penal Code. The trial was, hence, commenced.


vi

UILS ACADEMIC MOOT COURT, 2017 STATEMENT OF JURISDICTION

The prosecution has brought this case under § 177 1 r/w 209 2 r/w schedule 1 of the Code of Criminal Procedure, 1973 after submitting the investigation report u/s 173 (2) of the Code of Criminal Procedure.

1

Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 2 When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court o f Session, he shall (a) 1 commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;] (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.


vii

UILS ACADEMIC MOOT COURT, 2017 STATEMENT OF CHARGES

The charges have been framed by the court of judicial magistrate first class u/s 120B, 121 and 124A of the Indian Penal Code, 1860 after which finding that the case is exclusivel y triable by the court of sessions and hence, the case was committed to the court of sessions following the procedure laid down under §§ 207-209 dealing with the committal proceedings of the Code of Criminal Procedure Code.


viii

UILS ACADEMIC MOOT COURT, 2017 SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 121 FOR WAGING WAR AGAINST THE GOVERNMENT ?

It is submitted that the essentials of the offence are not fulfilled in this particular case and that the accused has not committed any such act which can come within the purview of § 121 of the Indian Penal Code and the accused has in no way tried to wage war or create a situation of insurgency or rebellion or revolution or civil unrest. The accused is not guilty under section 121 of IPC because the act of the accused does not come within the definition of the term war as it appears in the section.

ISSUE II: WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 124A FOR THE OFFENCE OF SEDITION?

It is submitted that the ingredients of the section are not fulfilled. Moreover, speaking something about the measures taken by the government cannot be termed as constituting sedition. The speech given was against a particular political party and not against the government as a whole and it did not strike at the ver y existence of the government and hence, the accused is not guilty under section 124A of the IPC. In addition to this, the ingredients of the section are not fulfilled.

ISSUE III: WHETHER THE ACCUSED IS GUILTY UNDER SECTION 120B OF THE INDIAN PENAL CODE OR NOT?

The basic ingredient of § 120A is that there should be at least two persons but in this case, the re is only one person, i.e., the accused and no other person is there and hence, the accused is also not liable u/s 120B.


ix

UILS ACADEMIC MOOT COURT, 2017 ARGUMENTS ADVANCED MOST RESPECTFULLY SHOWETH: I.

WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 121 FOR WAGING WAR AGAINST THE GOVERNMENT ?

1.

It is submitted that the accused is not guilty u/s 121 3 because the ingredients of this section are not satisfied in this matter and as such without any evidence on record, no conviction can be obtained.

2.

The accused has given a statement which has no effect like of initiating or waging war against the government. The offence of waging war punishable u/s 121 of the Indian Penal Code, 1860 is a continuing offence.

3.

In determining whether a person is guilty u/s 121 the following principles may be considered 4: a)

No specific number of persons is necessary to constitute an offence u/s 121.

b)

The number concerned and the manner in which they are equipped or armed is not material.

c)

The true criterion is quo animo did the gathering assemble. Quo animo basically means with what intention or motive 5.

d)

The object of the gathering must be to attain by force and violence and object of general public nature, thereby striking directly against the authority of the government.

e)

There is no distinction between the principal and the accessory and all who take part in the unlawful act incur the same guilt.6

4.

It is submitted that the above conditions are not being satisfied in the present case and the object of the gathering was never to commit violence of any kind and that is the reason, why Mr. Dharam Singh (hereinafter referred to as the accused) cannot be convicted u/s 121.

3

§121 of IPC: Whoever, wages war against the Government of India, or attempts to wage such war, or abets the

waging of such war, shall be punished with death, or impri sonment for life and shall also be liable to fine. 4 RP K ATARIA & SKA NAQVI, BATUK LAL’S COMMENTARY ON THE I NDIAN PENAL CODE, 1860 (1st ed. Orient Publishing Co. Allahabad 2007, p. 497). 5 http://thelawdictionary.org/quo-animo/ assessed on 06-11-2017 at 16:25. 6 Magan Lal v. Emperor, AIR 1946 Nag 173.


1


Section 121 deals with 3 aspects viz. Abetment, attempt and actual war. The section is unique in itself as it places all the three aspects at par as regards the punishment. Under the general law a distinction has been made between abetment which has succeeded and abetment which has failed. But as far as the legislature is concerned it treats both in the same manner because the crime is treated of highest offence against the state. 7

6.

In State (NCT of Delhi) v. Navjot Sandhu8, the meaning of the term war was explained as it appears in § 121 of the Indian Penal Code, 1860. It states that the concept of war imbedded in Section 121 is not to be understood in international law sense of intercountry war involving military operations by and between two or more hostile countries. Section 121 is not meant to punish prisoners of war of a belligerent nation. Apart from the legislative history of the provision and the understanding of the expression by various High Courts during the pre-independence days, the Illustration to Section 121 itself makes it clear that 'war' contemplated by Section 121 is not conventional warfare between two nations. Organizing or joining an insurrection against the Government of India is also a form of war. 'Insurrection' as defined in dictionaries and as commonly understood connotes a violent uprising by a group directed against the Government in power or the civil authorities. "Rebellion, revolution and civil war are progressive stages in the development of civil unrest the most rudimentary form of which is insurrection 9. An act of insurgency is different from belligerency. It needs to be clarified that insurrection is only illustrative of the expression 'war' and it is seen from the old English authorities referred to supra that it would cover situations analogous to insurrection if they tend to undermine the authority of the Ruler or Government.

7.

So, according to the explanation afforded by the Supreme Court of India in the abovementioned case, there must be some violent uprising, civil unrest, revolution, or rebellion or something like that and otherwise it does not qualify within the definition of the term ‘war’ and the person would not be liable under section 121 of the Indian Penal Code then.

8.

Moreover, in the same case, it was also stated that The court must be cautious in adopting an approach which has the effect of bringing within the fold of section 121 all acts of lawless and violent act resulting in destruction of public properties etc , and all the acts of violent resistance to the armed personnel to achieve certain political objectives, the

7

https://www.lawteacher.net/free-law-essays/constitutional-law/waging-a-war-against-the-state-constitutionallaw-essay.php assessed on 07-11-17 at 22:44. 8 (2005) 11 SCC 600 ¶ 275. 9 Pan American World Air Inc. v. Actna Cas & Sur Co., 505, F.R. 2d, 989 at P. 1017.


2

UILS ACADEMIC MOOT COURT, 2017 moment it is found that the object sought to attained is of general public nature, the offensive violent acts targeted against the armed forces and the public officials should not be branded as acts of waging war. The expression ‘waging war’ irrespective of how it was viewed in the long past. 9.

An organised movement attended with violence and attacks against the public officials and armed forces while agitating for the repeal of unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war.

10.

When Mr. Dharam Singh gave the short speech, immediately after that the result was that the statue of a famous political leader was burnt, and that people were having heated arguments among themselves. It is submitted that having heated arguments and burning down of statues certainly does not qualify and fit into the definition of war as provided by the Supreme Court in the above-mentioned case. As, it is neither some insurgency nor civil violent uprising against the state nor is it a rebellion or revolution.

11.

The expression ‘waging war’ means waging war in the manner usual in the war. 10 It imports a person arraying himself in defiance of the government in like manner and by like means as a foreign enemy would do, having gained footing in the realm. The waging of war is the attempt to accomplish by violence any purpose of a public nature. 11 A deliberate and organised attack upon the government forces or government offices amounts to a waging of war. 12

12.

Along with this, it is also submitted that, intention to wage war is the most essential ingredient under this section. So, it is not sufficient to show that the accused have attempted to obtain arms, ammunition, etc. The prosecution must show that the seizure of arms was part and parcel of a larger operation to overthrow the state. Mere making of speeches threatening to wage war, will not amount to abetment. 13

13.

To convict a person under this section, it must not only be proved that the persons charged have planned to obtain possession of an armoury and have used the rifles and ammunitions so obtained against the state troops 14, but also that the seizure of armoury

10

Nazir Khan v. State of Delhi, AIR 2003 SC 4427. Hasrat Mohani v. Emperor, (1922) 24 Bom LR 885. 12 Kunhi Kadir v. Emperor, AIR 1922 Mad 126. 13 KI VIBHUTE, PSA PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis, Gurgaon, Reprint 2015, p. 333). 14 KD GAUR , I NDIAN PENAL CODE (5th ed. Universal Law Publishing Co. New Delhi, 2014, p. 210). 11


3

UILS ACADEMIC MOOT COURT, 2017 was part and parcel of a planned action in resisting the troops of the state until successfully capturing the machinery of the government. 15 14.

It is submitted on the basis of the above submissions, case-laws and the provisions of the Indian Penal Code that the essentials of the offence are not fulfilled in this particular case and hence, the accused is not guilty under section 121 of IPC.

15

Mir Hasan Khan v. State of Bihar, AIR 1951 P at 60.


4

UILS ACADEMIC MOOT COURT, 2017 II.

WHETHER THE ACCUSED SHOULD BE CONVICTED UNDER SECTION 124A FOR THE OFFENCE OF SEDITION?

15.

It is submitted that the accused has not committed the offence of sedition as whatever he has said is well within his fundamental right of freedom of speech and expression and as such he cannot be put behind the bars for an offence which he has not even committed.

16.

The offence of sedition has been explained under section 124A 16 of the Indian Penal Code. The word sedition does not occur in § 124A. It is only found as a marginal note to § 124A and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. 17

17.

§ 124A was added to the Code in 1870 and at that time it was not in the present form. This section was amended in 1891 and explanations were added to it. 18

18.

The essential ingredients of the section are19: a)

Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards the government of India and

b)

19.

Such act may be done: a.

By words, either spoken or written

b.

By signs

c.

By visible representation

Gist of an offence u/s 124A is the bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards Government.

16

§ 124A of IPC: Whoever, by words, either spoken or written, or by signs, or by visible representation, or

otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1: The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2: Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. 17 Emperor v. Sadashiv, AIR 1947 PC 82. 18 SN MISHRA, I NDIAN PENAL CODE (19th ed. Central Law Publications, Allahabad Reprint 2014, p. 317). 19 MP TANDON, I NDIAN PENAL CODE (26th ed. Allahabad Law Agency, Faridabad 2015, p. 216).


5


In cases under Section 124-A, I.P.C., the Courts have to see the effect on the mind of the people and they are concerned with the construction of the speech, and the speech has to be taken as a whole and not just in pieces.20

21.

The essence of the offence of sedition under section 124-A, I.P.C., is the intention with which the language of a speech is used, and that intention has to be judged primarily from the language itself. The gist of the offence under section 124-A lies in the intention of the writer to bring into hatred and contempt the Government and is not to be gathered from isolated or stray passages here and there but from a fair and generous reading of the article as a whole.21

22.

Sedition is nothing but libel though it is not subject to the same rule. Where a person defames he is punishable under § 500, if libel affects a class or community, it would be an offence u/s 153A, if it is of the state, it is an offence under this section. 22

23.

The term government established by law has to be distinguished from the persons f or the time being engaged in carrying on the administration. Government established by law is visible symbol of the state. The very existence of the state will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of government established by law is essential condition of the stabili ty of the state.23

24.

The explanations appended to the main body of the section make it clear that the criticisms of public measures or comment on Government action, however, strongly worded would be, within the reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words written or spoken etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. 24

25.

In a charge under section 124-A of the penal code, the prosecution must prove to the hilt that the intention of the writer or the speaker, whoever he may be, is to bring into hatred or contempt or excite or attempt to excite disaffection towards the Government

20

Raghuvir Singh v. State of Bihar, AIR 1987 SC 149 . Ramchandra v. Emperor, 29 Cr LJ 381 (Lah). 22 HARI SINGH GAUR , COMMENTARIES ON I NDIAN PENAL CODE (12th ed. Law Publishers (India) Pvt. Ltd. Allahabad 2005, p. 401). 23 Kedar Nath v. State of Bihar, AIR 1962 SC 955. 24 Kedar Nath v. State of Bihar, AIR 1962 SC 955. 21


6

UILS ACADEMIC MOOT COURT, 2017 established by law in British India. The essence of the crime of sedition, therefore, consists in the intention with which the language is used and what is rendered punishable by section 124-A of the penal code is the intentional attempt, successful or otherwise, the rouse as against Government the feelings enumerated in the section, a mere tendency in an Art. to promote such feelings is not sufficient to justify a conviction; in other words, the prosecution must bring home to the accused that his intention was as is described in the section itself.25 26.

The truth remains that while the SC has stayed firm in its opinion on sedition from Kedar Nath onwards, the lower courts seem to continuously disregard this interpretation of the law, most recently seen in the verdict against Dr Binayak Sen. The law on sedition is being used to stem any sort of political dissent in the country, and also any alternate political philosophy which goes against the ruling party’s mindset. 26

27.

This 1962 case was the first time that the Supreme Court had to consider the legality of the colonial law on sedition (Section 124A IPC which was enacted in 1870) in post independent India and in the context of the newly created fundamental right to free speech under Article 19. Both Section 124A and Section 505 IPC were under challenge as unconstitutional in the light of Article 19.

28.

Bound to deal with precedent (even if the earlier cases were from the colonial era) the Supreme Court was faced with two directly conflicting interpretations of Section 124A. The Federal Court in Niharendu Dutt's case had interpreted Section 124A in alignment with British law on sedition and held that a tendency to disturb public order was an essential element of the offence under s. 124A. On the other hand, a line of cases including the sedition case of Bal Gangadhar Tilak and culminating in the Privy Council decision in the case of King-Emperor v. Sadashiv Narayan Bhalerao had held that incitement to violence or a tendency to disturb public order was not a necessary ingredient of the offence under s. 124A. 27

25

Satyaranjan Bakshi v. Emperor, AIR 1927 Cal 698. https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf assessed on 06-11-17 at 21:44. 27 https://www.legallyindia.com/views/entry/a-closer-reading-of-the-supreme-court-of-india-decision-in-kedarnath-singh-vs-state-of-bihar-1962-on-the-offence-of-sedition-defined-in-section-124a-ipc assessed on 07-11-17 at 21:44. 26


7


The offence of sedition is an offence against the State. As understood in England the crime of sedition fell short of actual treason, and did not involve the actual use of force or violence.

30.

In its analysis of Section 124A, the Supreme Court in Kedar Nath Singh first noted that the words “Government established by law" were not a reference to “the person's for the time being engaged in carrying on the administration" but referred to the G overnment as the visible symbol of the State. The Supreme Court clarified that the crime of sedition was a crime against the State and was intended to protect the very existence of the State. The purpose of the crime of sedition was to prevent the Government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”.28

31.

In Kedar Nath Singh, the Supreme Court also clarified what is not sedition. The following statements are not involved in the definition of sedition: a)

it clarified that mere “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means” is not sedition.

b)

It clarified that “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” is not sedition.

c)

It clarified that “commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence” is not sedition.

32.

It has been held in a case that to suggest a change in the form of government cannot be said to be causing disaffection towards the government established by law or to bring present government into hatred or contempt.29

28

https://www.legallyindia.com/views/entry/a-closer-reading-of-the-supreme-court-of-india-decision-in-kedarnath-singh-vs-state-of-bihar-1962-on-the-offence-of-sedition-defined-in-section-124a-ipc. 29 Arjun Arora v. Emperor, AIR 1937 All 295.


8


In Queen Empress v. Jogendra Chander Bose30 , it was held that disaffection means a feeling contrary to affection, in other words, dislike or hatred.

34.

In Queen Empress v. Bal Gangadgar Tilak 31 , it was held that disaffection means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the government.

35.

In Balwant Singh v. State of Punjab32, the accused were alleged to have raised some slogans on the day Smt. Indira Gandhi, the then Prime Minister of India was assassinated, in a crowded place. The accused were government servants. The prosecution case was that they raised slogans a couple of times, which however did not, evoke any response from the public. No disturbance whatsoever was caused and the people in general were unaffected and carried on with their activities. The Supreme Court held that mere raising of slogans, once or twice by two individuals, some cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the government as established by law in India. The court felt that the police officials read too much into the slogans and exhibited lack of maturity and sensitivity in arresting the two government servants.

36.

It is submitted on the basis of above-mentioned authorities that no offence of sedition is made out. The ingredients of the section are not fulfilled. Moreover, speaking something about the measures taken by the government cannot be termed as constituting sedition. The speech given was against a particular political party and not against the government as a whole and it did not strike at the very existence of the government and hence, the accused is not guilty under section 124A of the IPC.

30

(1891) ILR 19 Cal 35. (1897) ILR 22 Bom 112. 32 AIR 1995 SC 1785. 31


9

UILS ACADEMIC MOOT COURT, 2017 III.

WHETHER THE ACCUSED IS GUILTY UNDER SECTION 120B OF THE INDIAN PENAL CODE OR NOT ?

37.

Section 120A33 of the Indian Penal Code, is that on Criminal Conspiracy. The section looks to hold two or more persons liable for conspiring to do an ‘illegal act’, i.e. to hold them liable for an offence which they haven’t done yet; but agreed and planned to do. § 120B 34 is the penalising section.

38.

Criminal Conspiracy, finds its origins in the British Colonial times. A lot of these laws like Conspiracy, Sedition etc. were tools for the British to reduce unrest amongst the Indian Masses and maintain the Company’s/Crown’s sovereignty over the Indian Subcontinent. The Indian masses at the time, acted against the British State, in groups: often meeting up prior to the act. With a lot of acts being of the nature which would require planning, Conspiracy Laws were enacted in India, to not only make the said act against the British illegal but also, planning the same illegal: deterring not only action but also the thought of causing such action.

39.

Today, as the current section of Criminal Conspiracy (120 A) is worded, it is a section often used against the agreement towards actions which are ‘illegal’ in nature, or not ‘illegal by illegal means’.

40.

The term “Illegal” as has been defined under the IPC Section 43 “The word “illegal” is applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action.

33

§ 120A of IPC: When two or more persons agree to do, or cause to be done,

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is desi gnated as criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done b y one or more parties to such agreement in pursuance thereof. Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 34 § 120B of IPC: (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the sa me manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a cri minal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.


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A conspiracy is a continuing offence which continues to subsist till it i s executed or rescinded or frustrated by choice of necessity. During this subsistence, any act done by one of the parties to it related to the agreement, will come under the purview of this section.35

42.

The punishment for a criminal conspiracy is more severe if the agreement is one to commit a serious offence, it is less severe if the agreement is one to commit an act which although is illegal is not an offence punishable with death, imprisonment for life or rigorous imprisonment for more than two years. 36

43.

It is submitted that it is clearly written that where express provision is made for conspiracy then § 120B is not applicable and here, in this instant case, conspiracy for waging war is punishable u/s 121A and hence, the charge of § 120B is not sustainable in this present case.

44.

Another case in this present moot problem is the conspiracy for the offence of sedition and for which no express provision has been made has to be dealt with within the ambit of § 120A and § 120B.

45.

46.

The main ingredients of § 120A are: a)

There should be two or more persons.

b)

There should be an agreement between themselves.

c)

The agreement must be to do or cause to be done: a.

An illegal act.

b.

A legal act by illegal means.

It is submitted that there is no proof that there was any person other than Mr. Dharam who was involved with him in the speech that he gave. Hence, the first ingredient is not fulfilled.

47.

It is further submitted that as there was no two persons there can be no agreement because an agreement presupposes the existence of two persons.

35

http://lawtimesjournal.in/criminal-conspiracy/. R ATANLAL R ANCHHODDAS & DHIRAJLAL K ESHAVLAL THAKORE, THE I NDIAN PENAL CODE (28th ed. Wadhwa & Co. Nagpur, 1997, p. 158). 36


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In Topandas v. State of Bombay37, it was held that there must be two or more persons and one person alone can never be held guilty of criminal trespass for the simple reason that one cannot conspire with oneself.

49.

In Bimbadhar Pradhan v. State of Orrisa38, it was held that it is not essential that more than one person should be convicted of the offence of criminal conspiracy. All that is required is that the position is such that the court is aware that two or more persons were actually concerned in the criminal conspiracy.

50.

Thus, there need to be at least two people for the agreement to commit an offence and a single person can’t be held liable for the offence under this section.

51.

Meeting of minds is an essential. However, mere knowledge or discussion is not sufficient. It is intention to commit crime and joining hands with persons having the same intention. It would not be enough for the offence of conspiracy when some of t he accused merely entertained a wish that offence be committed. In the absence of an agreement, a mere thought to commit a crime doesn’t constitute the offence. The offence of conspiracy is a substantive offence. It renders the mere agreement to commit an offence punishable even if no offence takes place pursuant to that agreement.

52.

There is a clear difference between an agreement to commit an offence and an agreement of which either the object or methods employed are illegal but do not constitute an offence. In the case of the former, the criminal conspiracy is completed by the act of agreement; in the case of latter, there must be some act done by one or more of the parties to the agreement to effect the object thereof, that is, there must be an overt act. 39

53.

Hence, it is submitted that the accused is not liable to be convicted u/s 120B of the Indian Penal Code.

37

(1955) 2 SCR 881. AIR 1956 SC 469. 39 http://lawtimesjournal.in/criminal-conspiracy/. 38


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UILS ACADEMIC MOOT COURT, 2017 PRAYER

Whereof in the light of facts of the instant case, written pleadings and authorities cited, it is humbly prayed before this Hon'ble Court that it may be pleased to hold, adjudge and declare:

1.

That the accused is not guilty for offence u/s 120B.

2.

That the accused is not guilty for offence u/s 121.

3.

That the accused is not guilty for offence u/s 124A.

Pass any other order, which the court may deem fit in light of the facts of the case and justice, equity and good conscience. Sd/Counsel for the Defence


x

Class Moot

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