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Appellant Memorial for 2nd
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SL. No.
DELINEATIONS
1.
INDEX OF AUTHORITIES
2.
STATEMENT OF JURISDICTION
3.
STATEMENT OF FACTS
4.
STATEMENT OF ISSUES
5.
SUMMARY OF ARGUMENTS
6.
ARGUMENTS ADVANCED
7.
PRAYER
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INDEX OF AUTHORITIES
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CASES
1. 2. 3. 4. 5. 6. 7. 8.
Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors, 200 0 Anwar vs. State of J & K, AIR 1971 SC 337 = 1971 (1) SCR 637 = (1971) 3 SCC 10 Bandhua Mukti Morcha vs. U.O.I., AIR 1984 SC 802 = 1984 (2) SCR 67 = (1984) 3 Bodhisatwa vs. Ms. Subdhra Chakroborty (1996) 1 SCC 490 State of Rajasthan vs. Mst. Vidhyawati AIR 1962 S C 933, Gujarat vs. Memon Mahomed Haji Hasan AIR 1967 SC 1885 Smt. Basava Kom Dyamogouda Patil vs. State of Mysore AIR 1977 SC 1749 State through Reference vs Ram Singh & Ors. on 13 March, 2014, Delhi High Court
Statutes You're Reading a Preview 1. THE CONSTITUTION OF INDIA Unlock full access with a free trial. 2. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2
Download With Free Trial ABBREVIATIONS ABBREVIATION ACTUAL TERM & A.P. CrPC HC
ACTUAL TERM And Sign up to vote on this title Andhra Pradesh Useful Not useful Criminal Procedure Code High Court
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STATEMENT OF JURISDICTION
The appellants have approached the Hon’ble Supreme Court of India under Article 136 o Constitution of India. Leave has been granted by this Hon’ble Court and the matter has now listed for arguments. The provision under which the appellant has a pproached this Hon’ble C and to which the respondent humbly submits, is read herein under as:
Article 136 of the Constitution of India, 1950:
“(1) notwithstanding anything in this chapter, the supreme court may, in its discretion, grant sp leave to appeal from any judgment, decree, determination, sentence or order in an y cause or m You're Reading a Preview passed or made by any court or tribunal in the territory of India. Unlock full access with a free trial.
(2) nothing in clause (1) shall apply to any judgment, determination, sentence or order pass made by any court or tribunal constituted by or under any law relating to the armed forces.” Download With Free Trial
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STATEMENT OF FACT
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Heena Ibraham, a citizen of Bangladesh came to India on official duty in the month of Dece 2016 before returning to Bangladesh, she wanted to visit Ajmer sharif. With that intent in m she arrived at Calcutta on 24th December, 2016 and stayed at a hotel at 10, Sudder Street, P Station Taltola. She arrived at Howrah Railway Station on 01st January, 2017 at about 14.00 to avail Jodhpur Express at 23.00 Hours for paying a visit to Ajmer Sharif She had, howev wait listed ticket and so she approached a Train Ticket Examiner at the Station for confirmat berth against her ticket. The Train Ticket Examiner asked her to wait in the Ladies Waiting She accordingly came to the ladies waiting room and rested there at about 17.00 hours on January, 2017 two unknown persons (later identified as one Ashoke Singh, a tout who p himself as a very influential person of the Railway and Siya Ram Singh a railway ticket b having good acquaintance with some of the Railway Staff of Howrah Station) approached took her ticket and returned the same after confirming reservation in Coach No.S-3 (Berth N of Jodhpur Express. At about 20.00 hours Siya Ram Singh came again to her with a boy n Kashi and told her to accompany the boy to a restaurant if she wanted to have food for the n Accordingly at about 21.00 hours she went to a nearby eating house with Kashi and had her there. Soon after she had taken her meal, she vomited and came back to the Ladies waiting r At about 21.00 hours Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at Ho wrah S came to the Ladies Niwas before boarding the train. She appeared to h ave some doubt initial You're Reading a Preview on being certified by the lady attendants engaged on duty at the Ladies Waiting Room about credentials she accompanied them toUnlock YatrifullNiwas. Sitaram Singh, a khalasi of electric Depar access with a free trial. of Howrah Station joined them on way to Yatri Niwas. She was taken to room No.102 on the floor of Yatri Niwas. The room was booked in the name of Ashoke Singh against Railway Download With Free Trial pass No. 3638 since 30th December 2016. In room No.102 two other persons viz. one Lalan S Parcel Clerk of Howrah Railway Station and Awdesh Singh, Parcel Clearing Agent we re wa Heena Ibraham suspected something amiss when Ashoke Singh forced her into the room. Aw Singh bolted the room from outside and stood on guard outside the room. The Sunil Sharma 16 yrs. boy helper in railway on contract basis) took liquor room Sign upinside to votethe on this titleand also for compelled her to consume liquor. All the five persons who Usefulpresent usefulthe room bru were Notinside violated, Heena Ibraham , it is said, was in a state of shock and daze. When she could recov managed to escape from the room of Yatri Niwas and came back to the platform where agai
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DECISION TAKEN BY HON’BLE HIGH COURT
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It was on the basis of the above facts that the High Court had awarded a sum of Rs.10 la compensation for Smt. Heena Ibraham as the High Court was of the opinion that the rap committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrate the Railway employees.
APPEAL TO THE HON’BLE SUPREME COURT
Being aggrieved by the said judgment of the High Court that had awarded a sum of Rs.10 la compensation for Smt. Heena Ibraham , The Chairman, Railway Board filed an appeal befo Hon’ble Supreme Court on the ground that Railways would not be liable to pay compensatio Smt. Heena Ibraham who was a foreigner and was not an Indian national. It is also contend that commission of the offence by the person concerned would not make the Railway or the Union of India liable to pay compensation to the victim of the offence. It is contended that s it was the individual act of those persons, they alone would be prosecuted and on being foun guilty would be punished and may also be liable to pay fine or compensation, but having reg to the facts of this case, the Railways, or, for that matter, the Union of India would no t even You're Reading a Preview vicariously liable. It is also contended that for claiming dama ges for the offence perpetrated Unlock full access withof a free trial. Law and not under Public La Smt. Heena Ibraham , the remedy lay in the domain Private and, therefore, no compensation could have been legally awarded by the High Court in a proceeding under Article 226 of theDownload Constitution and, that too, at the instance of a practicing With Free Trial advocate who, in no way, was concerned or connected with the victim.
Sign up to vote on this title STATEMENT OF ISSUES
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1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitled to
relief/ compensation under constitution of India?
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SUMMARY OF ARGUMENT
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1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitle any relief/ compensation under constitution of India?
It is humbly submitted before this Hon’ble Court that the Heena Ibraham , who was not the citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to the constitutional rights available to a citizen so far as "Right to Life" was concerned. She entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. As a national of another country, she could be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of Govt. employees who outraged her modesty. The Right available to under Article 21 was thus violated. Consequently, the State was under the Constitutional lia to pay compensation to her.
2. Whether the commission of an offence like rape by the person concerned, would m the railway or the Union of India liable to pay compensation to the victim of offence on the ground of vicarious liability?
It is humbly submitted before this Hon’ble Court that Running of Railwa ys is a commercial activity. Establishing Yatri Niwas atYou're various Railway Stations to provide lodging and boardi Reading a Preview facilities to passengers on payment of charges is a part o f the commercial activity of the Uni Unlock with full access a free trial. India and this activity cannot be equated the with exercise of Sovereign power. The employ the Union of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, areFree essential Download With Trial components of the Govt. machinery which carries on the commercial activity. If an y of such employees commits an a tort, the Union Govt., of which they are the employees, can, be held vicariously liable in damages to the person wronged by those employees. Sign up to vote on this title
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3. Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adul the offence of Gang Rape?
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ARGUMENTS ADVANCED
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1. Whether Heena Ibraham who is a foreigner and not an Indian citizen is entitle any relief/ compensation under constitution of India?
It is most humbly submitted before this Hon’ble Court that the Mrs. Heena Ibrahim though i a citizen of india but of Bangladesh she is entitled to the relief/ Compensation under constitu of India Under article 14 and 21 which are extended to “persons” and not just “citizens of India”. The contention laid by appellant in his appeal lacks mainly on the context that it doe realise that the words person and citizen both are used in Fundamental Rights as part of Constitution of India and hence, with this few Fundamental rights are also available to the citizens which assures them a safe environment when visiting India.
I.
Article 14 of constitution : - Article 14, guarantees equality before law or the protection of laws within the territory of India, is applicable to "person" which also include the "citizen" of the country and "non- citizen" both. In the case of Sawhney etc vs union of India and others air 1993 SC 477, 1992 supp 2 SCR Hon’able court has remarked that “the right to equality is also recognized as o basic features of Indian constitution. Article 14 applies to all person and is not li to citizens. A corporation, which is a juristic person, is also entailed to the bene You're Reading a Preview this article. This concept implied equality for equals and aims at striking down discrimination or oppression Unlockof fullinequality.” access with a free trial.
Thus, This judgement clarifies all the doubts that person mentioned in the Article 14 is not li Download Trial to the term citizens but includes others as wellWith evenFree a commercial entity such as corporatio its main aim is in striking down hostile discrimination or oppression of inequality as sugge the appeal of my learned friend on the other side of the argument. Hence, we can draw a concl that Mrs. Heena Ibraham is as much qualified to the equal treatment from Law as the Rai board and her status ad citizen of Bangladesh is not a bar Sign to it.up to vote on this title II.
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Article 21 of constitution:- Article 21 (Protection Of Life And Personal Liberty) “ No person shall be deprived of his life or personal liberty except according to procedure established by law.” In The Chairman, Railway Board & Ors vs
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fundamental right of every one in this country, to live with human dignity, free f exploitation. Further Hon’able Supreme Court in Bodhisatwa vs. Ms. Su bdhra Chakroborty (1996) 1 SCC 490 has held "rape" as an offence which is violative o Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed as under: " Rape is a crime not only against the person of a woman, it is a crime against the entire soc It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rap therefore the most hated crime. It is a crime aga inst basic human rights and is violative of th victims most cherished right, namely, right to life which includes right to live with human di contained in Article 21.” Hence, through above discussed judgements Hon’able Supreme Court has already set a precedence where non citizens will also have fundamental right to life and rape will amount violation, entitling Mrs. Heena Ibraham compensation under Constitution of India.
2. Whether the commission of an offence like rape by the person concerned, would m the railway or the Union of India liable to pay compensation to the victim of offence on the ground of vicarious liability?
It is most humbly submitted before this Hon’ble Court that v icarious liability refers to a situ You're Readingora omissions Preview of another person. The liabil where someone is held responsible for the actions the government in tort is governed by the principles of public law inherited from British Com Unlock full access with a free trial. law and the provisions of the Constitution. The whole idea of Vicariously Liability of the S the torts committed by its servants is based on three p rinciples: Download With Free Trial
Respondeat superior (let the principal be liable). Quifacit per alium facit per se (he who acts through another does it himself). Socialisation of Compensation. Sign up to vote on this title
Unlike Crown Proceedings Act, 1947(England), we do not have any statutory provisions Useful Not useful mentioning the liability of the State in India. Hence, the precedent for the vicarious liability the state has been set through various decisions of the hon’able courts.
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Running of Railways is a commercial activity. Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign power. The employees of the Union of India who are deputed to run t Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, essential components of the Govt. machinery whic h carries on the commercial activity. If an such employees commits an act of tort, the Union Govt., of which they are the employees, c subject tom other legal requirements being satisfied, be held vicariously liable in damages to person wronged by those employees. Thus, in the light of the above mentioned argument an decisions of the Hon’able Supreme Court we may conclude that the commission of an offen like rape by the person concerned does make the railway or the Union of India liable to pay compensation to the victim of the offence on the ground of vicarious liability.
Whether the accused Sunil Sharma (Age-16 yr. Boy) can be treated as an adult for the offence of Gang Rape?
It is most humbly submitted before this Hon’ble Court that THE JUVENILE JUSTICE (CA AND PROTECTION OF CHILDREN) BILL, 2015 u nder section 15 says, 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 assess You're Reading a Preview with regard to his mental and physical capacity to commit such offence, ability to understan consequences of the offence and the circumstances in which he allegedly committed the offe Unlock full access with a free trial. and may pass an order in accordance with the provisions of subsection (3) of section 18: Download With Free Trial Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation. — For the purposes of this section, it is clarified assessment is n Signthat up topreliminary vote on this title trial, but is to assess the capacity of such child to commit and understand the consequences o Useful Not useful alleged offence.
Further same Act in its section 18 (3) also says
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may check the suitability of the Juvenile in conflict with law hereby mentioned as Sunil Sh to be tried as adult or not.
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PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments adva it is most humbly prayed before this Hon’ble Court that it may be pleased to:1. The appeal having no merit may be dismissed with the observation that the amount o compensation shall be made over to the High Commissioner for Bangladesh in India payment to the victim, Smt. Heena Ibraham . 2. The payment to the High Commissioner shall be made within three months to lessen ordeal she is facing for past few months. 3. A board of inquiry may be constituted at earliest to try the case of Sunil Sh arma (Ag yr.)under JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BIL 2015 for his treatment as an adult for the offence of gang rape for as per the provisio the Code of Criminal Procedure, and further it is requested an order transfer of the tr the case to the Children’s Court having jurisdiction to try such offences from juvenil justice board may be made as per the recommendation of the board of inquiry.
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AND Sign up to vote on this title Pass any other order that it may deem fit in the interest of Justice, Equity and Good Useful Not useful Conscience.
And for this, the appellant as in duty bound shall humbly pray.
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