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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………..
…………………………………………..…..……….II

LIST OF AUTHORITIES………………………………………....
………………………….....IV

ACTS AND
STATUTES………………………………………………………………
……….IV
IN THE HONOURABLE HIGH COURT OF VALHALLA
BOOKS
ARTICLE 226 CONSTITUTION OF ASGARD R/W SEC 482 CRPC
REFERRED………………………………………………………………
( TO QUASH THE CHARGE SHEET IN C.C. NO. / 2017)
……….…..VI

LIST OF CASES.....................................................................................................................
IN THE MATTER OF
......IV
MR. LOKI v. UNION OF VALHALLA
DICTIONARIES
REFERRED………………………………………………………………..
..VII
PETITIONER RESPONDENT

WEBSITE
REFERRED………………………………………………………………
CASE CONCERNING OFFENCES UNDER SECTION 124A OFASGARDIAN PENAL CODE AND
…….…VII VIOLATION OF ARTICLE 19 (1) (a)

STATEMENT OF
UPON SUBMISSION TO THE HON’BLE COURT AND HIS COMPANION JUSTICE OF THE
JURISDICTION……………………………………………………….…
HON’BLE COURTOF ASGARD
VIII

OF THE APPELLANTS
Page i of the Petitioner
Memorial on behalf
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STATEMENT OF
FACTS……………………………………………………………………..
IX

QUESTIONS
PRESENTED………………………………………………………………
……XI

SUMMARY OF
ARGUMENTS……………………………………………………………
….XII

ARGUMENTS
ADVANCED………………………………………………………………
……1

1. WHETHER THE APPEAL FILED IS MAINTAINABLE OR


NOT.

A. DIFFERENT FORUMS FOR FILING APPEALS BYY THE


ACCUSED AGAINST THE ORDER OF CONVICTION
(i) 374. Appeals from convictions.

B. OVERTURN A GUILTY VERDICT MUST USUALLY APPEAL


AND SUBSTANTIVE

(i)Requirement of the law that the hight courthas its own


decisions.

TABLE OF CONTENTS

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LIST OF
ABBREVIATIONS……………………………………………………..
…..……….II

LIST OF AUTHORITIES………………………………………....
………………………….....IV

ACTS AND
STATUTES………………………………………………………………
……….IV

BOOKS
REFERRED………………………………………………………………
……….…..VI

LIST OF CASES.....................................................................................................................
......IV

DICTIONARIES
REFERRED………………………………………………………………..
..VII

WEBSITE
REFERRED………………………………………………………………
…….…VII

STATEMENT OF
JURISDICTION……………………………………………………….…
VIII

STATEMENT OF
FACTS……………………………………………………………………..
IX

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QUESTIONS
PRESENTED………………………………………………………………
……XI

SUMMARY OF
ARGUMENTS……………………………………………………………
….XII

ARGUMENTS
ADVANCED………………………………………………………………
……1

1. WHETHER THE PETITION FILED UNDER ARTICLE 226


r/w SECTION 482 OF Cr.P.C IS MAINTAINABLE IN THE
PRESENT CASE?
A. ESSENTIALS OF SEC.124A IS NOT ATTRACTED WHEN
APPRECIATED UNDER ARTICLE 19(1)(A) OF THE
ASGARDIAN CONSTITUTION.
B. PETITION UNDER ARTICLE 226 R/W SEC.482 OF CR.P.C
2. WHETHER THE OFFENCE UNDER SECTION 124A IS
ATTRACTED WHEN APPRECIATED UNDER ARTICLE
19(1)(a) OF THE INDIAN CONSTITUTION.
A. ABSENCE OF INTENTION OF THE PETITIONER TO
SUBVERT THE GOVERNMENT
PRAYER.......................................................................................................
............................XIII

TABLE OF CONTENTS

S.NO ABBREVATION FULL FORM


1 ¶ Paragraph
2 & And
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3 AIR All India Reporter


4 Anr. Another
5 Art Article
6 CA Criminal Appeal
7 CIT Commissioner of Income Tax
8 Cr.LJ Criminal Law Journal
9 Cr. PC Code of Criminal Procedure
10 DW Defence Witness
11 FIR First Information Report
12 Gau Guwahati
13 HC High Court
14 i.e. That is
15 IPC Indian Penal Code
16 IEA Indian Evidence Act
17 Mad Madras
18 NCT National Capital Territory
19 Ors Others
20 P&H Punjab & Haryana
21 PW Prosecution Witness
22 SC Supreme Court
23 SCC Supreme Court Cases
24 SCR Supreme Court Record
25 SLP Special Leave Petition
26 UOI Union of India

INDEX OF AUTHORITIES

BOOKS

Batuk Lal, Indian Penal code, 1860, (21st Ed., Central Law Agency, 2016) 3

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Dr. CK Parikh, Criminal Procedure Code, (6th Ed., CBS Publisher’s 2014)
5
Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis,
2010). 7
Dr. K.S. Narayana Reddy, Criminal Procedure Code (33 rd Ed., J.P. Publications,
2010) 9

H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law


Publication,2015) 18
J.P. Modi’s , Commentary on Indian Penal code, (25th Ed., Lexis Nexis , 2016)
6
Justice UL Bhatt, Lectures on Crriminal Act,(Universal LawPublication,2015)
10
KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009)
23
KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd.,
2016) 24
MP Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016)
13
Prof. Arthur Best, Wigmore on Penal offence,(Aspen Publishers; 13-Volume
Ed.December 31, 1995) 7
Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II , Thomson
Reuters) 4
Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)
11
Ratanlal & Dheerajlal, Law of Evidence (25th Ed, Lexis Nexis, 2013)
0
Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis
2016) 12

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R.V. Kelkar, Criminal Procedure, (5th Ed. 2011)


15
SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency, 2014 )
3
SC Sarkar, The Code of Criminal Procedure: An Encyclopaedic Commentary
on the Code of Criminal Procedure,1973 (11th Ed., Lexis Nexis, 2015) 19

V.N. Shukla's, Constitution of India, (12th Ed. Eastern Book Company, India
2013) 7

ACTS AND STATUES

THE CODE OF CRIMINAL PROCEDURE, 1973 11

THE INDIAN EVIDENCE ACT, 1872 10

THE INDIAN PENAL CODE, 1860 3


THE CONSTITUTION OF INDIA, 1950 19

SUPREME COURT AND OTHER CASES

Balwant Singh v. State of Punjab 09

Common Cause and anr. V. Union of India 07

Kedar Nath V. State of Bihar. 04

Maneka Gandhi v. Union of India 03

Manohar vs. State of Bihar 12

M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Orrs 13

Rajiv Thapar v Madan Lal Kapoor 15

S.Rangarajan v. P. Jagjivan Ram 14

State Of Haryana And Ors vs Bhajan Lal And Ors 11


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State of Bihar v. P.P. Sharma & Anr 12

DICTONARIES

Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006) 9


Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990) 13

WEBSITE

www.manupatrafast.in (Last visited on 7th August, 2016) 13

www.scconline.com (Last visited on 8th August,2016 ) 12


www.supremecourtofindia.nic.in (Last visited on 2nd August,2016) 18
www.westlawindia.com (Last visited on 5th August,2016) 10

STATEMENT OF JURISDICTION

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THE PETITIONER FILED A PETITION U/S 482 R/W ART. 226 OF


THE CONSTITUTION OF ASGARD BEFORE THE HON’BLE HIGH
COURT OF VALHALLA SEEKING QUASHMENT OF THE
SUMMONS, OF THE CHARGE SHEET AND ALL THE
PROCEEDINGS. THE PETITION FILES UNDER ARTICLE 226 OF
THE CONSTITUTION FOR THE VIOLATION UNDER ARTICLE 19
(1) (a) and U/S 482 (INHERENT POWERS OF THE COURT).

The memorandum for Petitioner in the matters offset forth the Facts,
Contentions and Arguments present in this case.

STATEMENT OF THE FACTS

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CAUSE OF ACTION

Asgard is a rich and variegated nation covered by sea abundantly; making


it the largest Peninsula in the Eastern Hemisphere.The capital of Asgard is
the state of NCT of Valhalla. The current government at centre is ruled
by the majority community. Asgard has dependably had a long standing
disagreement about control of the Midgard, which is the northern-most
territory of Asgard, with its neighbouring nation Jötunheim. In the year
2001, the Asgardian Parliament was attacked by a group of terrorist who
were funded by militant groups in earlier acts of terrorism of this
magnitude that the world has seen in its time.
MERCY PETITION
After a thorough investigation the government of Valhalla arrested two
persons who were charged for masterminding the terrorist attack..After
the trial, the two accused Laufey and Malekith were found to be guilt and
were sentenced to death by the government of Valhalla. The appeals were
made by accused but still the Supreme court of asgard upheld their death
sentences. Mercy petition was brought infront of the President by the
accused, the president considering the public interest and to render proper
justice.
ANTI-SLOGANS
As a result, on the 6th of February, 2013, Laufey and Malekith were
hanged much to the approval of the general public. The organizers of the
event were the former members of the Frost-Giants Union and the event
was held despite the University Administration withdrawing permission
for the same due to protest from the Heimdall Union, the youth wing of
the majority party. During the protest various unidentified individuals
wearing masks wearing masks was yelling out Anti-Asgard slogans which
drew heavy criticism from all political parties.
EPILOGUE
Four days after the event, the University Students Union President Mr.
Loki was arrested by the Valhalla police and was charged for the offence
of the sedition under sec 124A of the APC for taking part in the event
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propagating slogans against the union of the Asgard there after loki upon
be summoned by the learned magistrate, Bruce Banner, pursuant to the
charge-sheet, filed a petition under section 482 crpc r/w art. 226 of the
Asgard Constitution before the High Court of Valhalla seeking quashment
of the summons, of the charge sheet all the proceedings emanating
therefrom on inter alia.In this juncture, both the Sec. 482 petitions have
been clubbed and heard jointly before the High Court.

STATEMENT OF ISSUES

1. WHETHER THE PETITION FILED UNDER ARTICLE 226


r/w SECTION 482 OF Cr.P.C IS MAINTAINABLE IN THE
PRESENT CASE?
A.ESSENTIALS OF SEC.124A IS NOT ATTRACTED WHEN
APPRECIATED UNDER ARTICLE 19(1)(A) OF THE
ASGARDIAN CONSTITUTION.
1.1. There is violation of fundamental rights and allegations in
the F.I.R when taken at its face value do not prima facie
constitute offence charged
B. PETITION UNDER ARTICLE 226 R/W SEC.482 OF CR.P.C
1.2 Quashing of Charge Sheet
2. WHETHER THE OFFENCE UNDER SECTION 124A IS
ATTRACTED WHEN APPRECIATED UNDER ARTICLE 19(1)
(a) OF THE INDIAN CONSTITUTION.
A. ABSENCE OF INTENTION OF THE PETITIONER TO
SUBVERT THE GOVERNMENT
2.1 Notwithstanding modern democratic scrutiny.

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SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION FILED UNDER ARTICLE 226


r/w SECTION 482 OF Cr.P.C IS MAINTAINABLE IN THE
PRESENT CASE?
Its humbly submitted before this Hon’ble court the petition filed
under Article 226 r/w Section 482 of Crpc is absolutely
maintainable. The extraordinary power under article 226 of the
Constitution and also the inherent powers under Section 482 of the
Code could be exercised by the High Court either to prevent abuse
of the process of any court or otherwise to secure the ends of
justice. In the instant case, there has been gross violation of
fundamental rights and under no circumstances, none of the
elements for the Sec.124A of Asgard Penal Code (Hereinafter
referred as APC for brevity) has been satisfied and hence the
Hon’ble High Court has the power to exercise its inherent power
to secure ends of justice. The contentions of the petitioner are
twofold. Firstly, essentials of Sec.124A is not attracted when

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appreciated under Article 19(1)(a) of the Asgardian Constitution.


Secondly there is violation of fundamental rights and the
allegations in the F.I.R when taken at its face value do not prima
facie constitute offence charged and hence exercise of inherent
power of High Court is needed. The Petitioner was apprehended
by the Valhalla police and charged with Sec.124A of APC.

2. WHETHER THE OFFENCE UNDER SECTION 124A IS


ATTRACTED WHEN APPRECIATED UNDER ARTICLE
19(1)(a) OF THE INDIAN CONSTITUTION. Its humbly
submitted before this Hon’ble court that th judicial
pronouncements of the Asgard, it is vehemently contented that no
essential ingredients of Sec.124A has been made out and hence the
petitioner the charge sheet must be quashed by this Hon’ble High
Court. The Petitioner substantiates his argument in two fold.
Firstly, There was no intention to subvert the government of
Asgard and Secondly, the statement uttered in protest are well
within the reasonable restriction contained under Article 19(1)(a)
of the Asgardian Constitution.

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ARGUMENTS ADVANCED

1. WHETHER THE PETITION FILED UNDER ARTICLE 226 r/w SECTION 482
OF Cr.P.C IS MAINTAINABLE IN THE PRESENT CASE?

The Petitioner humbly submits that the petition is absolutely maintainable. The
extraordinary power under article 226 of the Constitution and also the inherent powers under
Section 482 of the Code could be exercised by the High Court either to prevent abuse of the
process of any court or otherwise to secure the ends of justice. In the instant case, there has been
gross violation of fundamental rights and under no circumstances, none of the elements for the
Sec.124A of Asgard Penal Code (Hereinafter referred as APC for brevity) has been satisfied and
hence the Hon’ble High Court has the power to exercise its inherent power to secure ends of
justice. The contentions of the petitioner are twofold. Firstly, essentials of Sec.124A is not
attracted when appreciated under Article 19(1)(a) of the Asgardian Constitution. Secondly there
is violation of fundamental rights and the allegations in the F.I.R when taken at its face value do
not prima facie constitute offence charged and hence exercise of inherent power of High Court
is needed. The Petitioner was apprehended by the Valhalla police and charged with Sec.124A of
APC. The contentions of the petitioner are submitted as follows:-

A. ESSENTIALS OF SEC.124A IS NOT ATTRACTED WHEN APPRECIATED


UNDER ARTICLE 19(1)(A) OF THE ASGARDIAN CONSTITUTION.

Mr.Loki is the student head of the Frost –Giants Union of the Avengers University at
Valhalla. The Union protest at their campus against the capital punishment meted out to Laufey
and Malekith for which the permission of the university was bought initially but subsequently
withdrew the permission due to the pressure from the majority party’s student union namely
Heimdall Union. The protest commenced peacefully but due to some unidentified masked
individuals the protest took a violent turn hurling abuses against the ruling government.

1) There was no enquiry as to who were those unidentified masked individuals responsible
for the turmoil.

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2) The reason for withdrawal of permission was due to the pressure from the ruling
government which is palpable and hence it is violation of freedom of Speech and
expression under Article 19(1)(a) of the Constitution of Asgard.

3) Even when the allegation were taken at its face value does not constitute an seditious act
because it is crystal clear that mere presence of violent words does not make a speech or
publication seditious provided it must be accompanied by violent acts prejudicial to
Security of the State as held in the Constitution bench of Kedar Nath V. State of Bihar.1
4) The difference between public order and security of the State’ is of one degree. Security
of the State, on the other hand would involve a national upheaval such as revolution,
civil strife or war.2 Thus, an agreement that a law justified ‘in the interest of public order’
would also consequently be justified in the interest of security of the State would not
stand as held in the Apex Court dictum in Manohar vs. State of Bihar3
5) The content of the offence of sedition must be determined with reference to the letter and
spirit of the constitution and not to the standards applied during the colonial rule. In
S.Rangarajan v. P. Jagjivan Ram4, the court held that “the effect of the words must be
judged from the standards of reasonable, strong minded, firm and courageous men, and
not those of weak and vacillating minds, nor of those who scent danger in every hostile
point of view.”

Hence in the instant case when appreciated in the light of the above cases cited it is clear that
there was no seditious speech uttered by the petitioner and also the commotion caused in the
university does not amount to act with intention to subvert the government and hence there is no
case of act prejudicial to security of State arises. The withdrawal of permission to conduct the
protest by the university amounts to violation of Article 19(1)(a) of Asgardian Constitution.

1.1 There is violation of fundamental rights and allegations in the F.I.R when taken at its
face value do not prima facie constitute offence charged

1
1962 AIR 955, 1962 SCR Supl. (2) 769
2
V.N. Shukla, Constitution Of India 135 (M.P. Singh, 2008).
3
Ram Manohar vs. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709.
4
S.Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
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The petition under Article 226 r/w Sec.482 of the Cr.P.C will be maintainable when there is
question of protection of fundamental right is involved. The question of fundamental tights must
be coupled with apparent irregularities and duly substantiated by showing that continuation of
the trail would lead to abuse of process of courts and will not serve ends of justice.

When the above points are proved and the court comes to a affirmative conclusion then the
petition will be held maintainable.

B. PETITION UNDER ARTICLE 226 R/W SEC.482 OF CR.P.C

In State Of Haryana And Ors vs Bhajan Lal And Ors5 and in M/S. Pepsi Foods Ltd. & Anr vs
Special Judicial Magistrate & Ors6 the Apex Court examined in detail the extraordinary power
under article 226 of the Constitution and also the inherent powers under Section 482 of the Code
which it said could be exercised by the High Court either to prevent abuse of the process of any
court or otherwise to secure the ends of justice.

The illustrations given in the case are provided in nut shell as follows:-

(a) where the allegations made in the First Information Repor even if they are taken at their
face value and accepted in their entirety do not prima facie constitute any offence

(b) where the allegations in the First Information Report do not disclose a cognizable offence,
justifying an investigation by police officers;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence
collected in support of the same do not disclose the commission of any offence;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a
non-cognizable offence;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable
that no prudent man can accept it;

(f) where there is an express legal bar engrafted in any of the provisions of the Code

5
1992 AIR 604, 1990 SCR Supl. (3) 259
6
(1998) 5 SCC 749

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2.2 . Quashing of Charge Sheet

The Apex Court of Asgard in plethora of cases delineated the steps where a charge sheet could
be quashed by the High Court. The Apex Court in Rajiv Thapar v Madan Lal Kapoor 7 and in
State of Bihar v. P.P. Sharma & Anr 8 elucidates when the High Court can quash the charge
sheet as follows :-

(i) Whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e.,
the material is of sterling and impeccable quality?

(ii) Whether the material relied upon by the accused, would rule out the assertions contained in
the charges leveled against the accused, i.e., the material is sufficient to reject and overrule the
factual assertions contained in the complaint?

(iii) Whether the material relied upon by the accused, has not been refuted by the
prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the
prosecution/complainant?

(iv) Whether proceeding with the trial would result in an abuse of process of the court, and
would not serve the ends of justice?

Before the quashing the Final Report, the charges must be tested on the anvil of these steps and
it is vehemently submitted that there are no enough materials available in the Trial Court to
incriminate the petitioner in the present case and the grounds for which the petitioner was
charged when taken at its face value do not constitute an offence.

7
2013 (3) SCC 330
8
AIR 1991 SC 1260
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The allegations made in the F.I.R when taken at its face value do not prima facie constitute an
offence and there is a clear violation of fundamental rights of the petitioner and hence from the
above guidelines expounded by the Apex Court it is crystal clear that the present petition is
maintainable when read after considering the Sub-issue 1.1 (for brevity) and the Hob’ble High
Court may by exercising it inherent power quash the charge sheet.

2. WHETHER THE OFFENCE UNDER SECTION 124A IS ATTRACTED WHEN


APPRECIATED UNDER ARTICLE 19(1)(a) OF THE INDIAN CONSTITUTION.

In the light of the judicial pronouncements of the Asgard, it is vehemently contented that
no essential ingredients of Sec.124A has been made out and hence the petitioner the charge sheet
must be quashed by this Hon’ble High Court. The Petitioner substantiates his argument in two
fold. Firstly, There was no intention to subvert the government of Asgard and Secondly, the
statement uttered in protest are well within the reasonable restriction contained under Article
19(1)(a) of the Asgardian Constitution.

A. ABSENCE OF INTENTION OF THE PETITIONER TO SUBVERT THE


GOVERNMENT

The term ‘Sedition’ means words or actions that make people rebel against the authority
of the State. A plain reading of the above Section would show that its application would be
attracted only when the accused brings or attempts to bring into hatred or contempt or excites or
attempts to excite disaffection towards the Government established by law in India, by words
either written or spoken or visible signs or representations etc.9

In the instant case, there was presence of constructive criticism of the students of Frost-
Giants Union headed by the petitioner. They criticized the judicial killing of capital punishment
meted out to Laufey and Malekith. There is nothing seditious activity involved here and mere
criticism however harsh it may be does not amount to sedition as held in Balwant Singh v. State
9
Balwant Singh and another vs. State of Punjab, AIR 1995 SC 344
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of Punjab. Mere presence of violent words does not make a speech or publication seditious
provided it must be accompanied by violent acts prejudicial to Security of the State as held in
the Constitution bench of Kedar Nath V. State of Bihar.10 Recently the Apex Court in the case
Common Cause and anr. V. Union of India11 filed filed by NGO ‘Common Cause’ and Dr.S.P.
Udayakumar as PIL seeking urgent intervention of the Supreme Court to address the misuse and
misapplication of Sec.124A APC by successive government leading to routine persecution of
students, journalist and intellectuals involved in social activism held “authorities must be
strictly guided by the principles laid down by the Constitution Bench in Kedar Nath V. State of
Bihar”. It is the fundamental right of the citizens to have thier own political ideas and theories
and propagate them in peaceful manner.

12
In Kedar Nath Singh vs State of Bihar the Constitution bench made it clear that
allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’
to ‘violence’, or ‘public disorder’. It also stated that even without any tendency to disorder or
intention to create disturbance of law and order, by the use of words written or spoken which
merely create disaffection or feelings of enmity against the Government, the offence of sedition
is complete, then such an interpretation of the sections would make them unconstitutional in
view of Article 19(1)(a) read with clause (2). Under this context the accused person has not
propagated any acts which is provoking against the government of Asgard.

In the present case the aim and motive of the protestors is to show their grievances
against the capital punishments meted out to Laufey and Malekith, and not to subvert or
destabilize the Government. Hence, the charges under section 124A against the accused should
be dissolved in lime line.

2.1 Notwithstanding modern democratic scrutiny.

When sedition was introduced in the IPC, India was still a part of British Empire and
was ruled by British monarchs. The State now consists of the representatives of the people that

10
1962 AIR 955, 1962 SCR Supl. (2) 769
11
W.P(Civil) S.C No. 683 of 2016
12
1962 AIR 955
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are elected by them through democratic elections. Thus, a crime that is premised on preventing
any attempt to alter the government loses its significance. It is possible for governments to come
and go without the very foundation of the State being affected.

The court drew a distinction between a democratically elected government and a


government that was established under foreign rule. In the former, a government may come in
power and be made to abdicate that power, without adversely affecting the foundations of the
State. This change in the form of government has made a law of the nature of sedition obsolete
and nnecessary.

It has emphasized that the courts must take into consideration that growing awareness
an maturity of its citizenry while determining which speech would be sufficient to incite them to
attempt overthrow the government through the use of violence. 13 Words and acts that would
endanger society differ from time time depending on how stable that society is. Thus, Meetings
and processions that would have been considered seditious 150 years ago would not qualify as
sedition today. This is because times have changed and society is stronger than before.14

It is crucial in determining the threshold of incitement required to justify a restriction on


speech. In S.Rangarajan v. P. Jagjivan Ram15, the court held that “the effect of the words must
be judged from the standards of reasonable, strong minded, firm and courageous men, and not
those of weak and vacillating minds, nor of those who scent danger in every hostile point of
view. The content of the offence of sedition must be determined with reference to the letter and
spirit of the constitution and not to the standards applied during the colonial rule.

In Maneka Gandhi v. Union of India 16, while dealing with the scope of article 19(1)(a)
of the Constitution, Justice Bhagwathi delivered that “Democracy is based essentially on free
debate and open discussion, for that is the only corrective of government action in a democratic
set up. If democracy means government of the people by the people, it is obvious that every
citizen must be entitled to participate in the democratic process and in order to enable him to
intelligently exercise his rights of making a choice, free & general discussion of public matters

13
Seervai, Constituional Law of India 718 (2010)
14
Bowman v. Secular Society Ltd. 1917 AC 406 (per Lord Sumner)
15
S.Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
16
AIR 1978 SC 597
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is absolutely essential.” From the above cases cited and views of judges it is clear that the
speech made by the protest organized by the petitioner does not amount to sedition.

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PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed and implored before the Honourable Court, that it may be graciously
pleased to adjudge and declare that –

1. The petition is maintainable under this Hon’ble court.

2. There is a violation of Fundamental rights enshrined in Article 19 (1)(a) Constitution of


Asgard and the protest does not amount to Sedition U/S. 124A of Asgardian Penal Code.

3.To quash the Charge Sheet and Subsequent proceedings there on.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity & Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Date: ……………………

Place ………………… sd/-

(Counsel for Petitioner)

OF THE RESPONDENT
Page xiii

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TEAM CODE: ICMC08


TEAM CODE: M

SAVEEETHA INTRA –COLLEGE MOOT COMPETITION 2017

IN THE HONOURABLE HIGH COURT OF VALHALLA

SEC 482 CRIMINAL PROCEDURE CODE

( CRL.OP. NO. / 2017)

IN THE MATTER OF

Mrs. HELA v. LEARNED MAGISTRATE

PETITIONER RESPONDENT

CASE CONCERNING OFFENCES UNDER SECTION 153A, 153B AND 295A OFASGARDIAN PENAL
CODE AND VIOLATION OF ARTICLE 19.

UPON SUBMISSION TO THE HON’BLE COURT AND HIS COMPANION JUSTICE OF THE
HON’BLE COURTOF ASGARD

OF THE RESPONDENT
Page xiii
Memorial on behalf of the Petitioner
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………..…………………………………………..…..……….II

LIST OF AUTHORITIES………………………………………....………………………….....IV

ACTS AND STATUTES……………………………………………………………………….IV

BOOKS REFERRED……………………………………………………………………….…..VI

LIST OF CASES
.......................................................................................................................................................I
V

DICTIONARIES REFERRED………………………………………………………………....VII

WEBSITE REFERRED…………………………………………………………………….…VII

STATEMENT OF JURISDICTION……………………………………………………….…VIII

STATEMENT OF FACTS……………………………………………………………………..IX

QUESTIONS PRESENTED……………………………………………………………………XI

SUMMARY OF ARGUMENTS……………………………………………………………….XII

ARGUMENTS ADVANCED……………………………………………………………………1

1. WHETHER A MAGISTRATE CAN DIRECT REGISTRATION OF AN FIR


UNDER SECTIONS 153A, 153B AND 295A, WHEN REQUIREMENTS UNDER
SEC. 196 OF THE CRPC HAS NOT BEEN FULFILLED
2. WHETHER SEC 153A, 153B AND 295A ARE VIOLATIVE OF ARTICLE 19 OF
THE CONSTITUTION.

PRAYER.............................................................................................................................XIII

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TABLE OF CONTENTS

S.NO ABBREVATION FULL FORM


1 ¶ Paragraph
2 & And
3 AIR All India Reporter
4 Anr. Another
5 Art Article
6 CA Criminal Appeal
7 CIT Commissioner of Income Tax
8 Cr.LJ Criminal Law Journal
9 Cr. PC Code of Criminal Procedure
10 DW Defence Witness
11 FIR First Information Report
12 Gau Guwahati
13 HC High Court
14 i.e. That is
15 IPC Indian Penal Code
16 IEA Indian Evidence Act
17 Mad Madras
18 NCT National Capital Territory
19 Ors Others
20 P&H Punjab & Haryana
21 PW Prosecution Witness
22 SC Supreme Court
23 SCC Supreme Court Cases
24 SCR Supreme Court Record

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25 SLP Special Leave Petition


26 UOI Union of India

INDEX OF AUTHORITIES

BOOKS

Batuk Lal, Indian Penal code, 1860, (21st Ed., Central Law Agency, 2016) 3

Dr. CK Parikh, Criminal Procedure Code, (6th Ed., CBS Publisher’s 2014)
5
Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis,
2010). 7
Dr. K.S. Narayana Reddy, Criminal Procedure Code (33 rd Ed., J.P. Publications,
2010) 9

H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law


Publication,2015) 10
J.P. Modi’s , Commentary on Indian Penal code, (25th Ed., Lexis Nexis , 2016)
6
Justice UL Bhatt, Lectures on Crriminal Act,(Universal LawPublication,2015)
10
KD Gaur, Criminal Law: Cases & Materials, (6th Ed., Lexis Nexis, 2009)
16
KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd.,
2016) 15
MP Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016)
13
Prof. Arthur Best, Wigmore on Penal offence,(Aspen Publishers; 13-Volume
Ed.December 31, 1995) 7
Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II , Thomson
Reuters) 4

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Ratanlal & Dhirajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)
11
Ratanlal & Dheerajlal, Law of Evidence (25th Ed, Lexis Nexis, 2013)
10
Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis
2016) 12
R.V. Kelkar, Criminal Procedure, (5th Ed. 2011)
15
SC Sarkar, The Indian Penal Code,1860 (3rd Ed., Dwivedi Law Agency, 2014 )
3
SC Sarkar, The Code of Criminal Procedure: An Encyclopaedic Commentary
on the Code of Criminal Procedure,1973 (11th Ed., Lexis Nexis, 2015) 14

V.N. Shukla's, Constitution of India, (12th Ed. Eastern Book Company, India
2013) 7

ACTS AND STATUES

THE CODE OF CRIMINAL PROCEDURE, 1973 11

THE INDIAN EVIDENCE ACT, 1872 10

THE INDIAN PENAL CODE, 1860 3


THE CONSTITUTION OF INDIA, 1950 15

SUPREME COURT AND OTHER CASES

Hassan AIi Khan v. The State 13

Indra Das v. State of Assam 10

Kedarnath Singh vs State of Bihar 09

Parkash Singh Badal v. State of Punjab & Ors 07

Rajiv Thapar v Madan Lal Kapoor 05

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State Of Haryana And Ors vs Bhajan Lal And Ors 15

State of Bihar v. P.P. Sharma & Anr 13


DICTONARIES

Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006) 9


Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990) 13

WEBSITE

www.manupatrafast.in (Last visited on 7th August, 2016) 13

www.scconline.com (Last visited on 8th August,2016 ) 12


www.supremecourtofindia.nic.in (Last visited on 2nd August,2016) 18
www.westlawindia.com (Last visited on 5th August,2016) 10

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STATEMENT OF JURISDICTION

THE PETITIONER FILED A PETITION U/S 482 BEFORE THE HON’BLE HIGH COURT
OF VALHALLA AND WHEREAS THE RESPONDENT ALSO SUBMITS THE SAME.

Section 482 in The Code Of Criminal Procedure, 1973

482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice.

The memorandum for Petitioner in the matters offset forth the Facts, Contentions and
Arguments present in this case.

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STATEMENT OF THE FACTS

CAUSE OF ACTION
At this juncture, let us look into the activities of one Mrs. Hela, who is a journalist of repute
within Asgard. She is known for actively voicing her views against the ruling Odinson party
which is the majority and its leader Mr. Thor Odinson who also happens to be the Prime
Minister
of Asgard. She was very critical of the arrest of Mr. Loki and highlighted the ridiculousness of
the arrest and charges against him. She published an article in her blog ‘I am the Goddess of
Death’ in which she stated “Odinson Party is rounding up people belonging to the minority
community and having them arrested. The leader of the ruling party, Mr. Thor Odinson is acting
like Adolf Hitler, and is imposing his majoritarian views on everyone and is trying to suppress
the voice of the minorities. All those belonging to the minority community must rise up and
stand together against such dictatorial actions”.
INVESTIGATION
Mrs. Hela partly after the publication on her blog, received a threat mail from an email
iloveinfinitystones@gmail.com, which had the following contents “stop posting stupid and evil
statements like what you’ve posted or you will face dire consequences”. Upon the receipt of
such
an email, Mrs. Hela forwarded the email to the police along with a complaint. The police
registered an FIR on such complaint, and upon investigation over the next few days, found that
the email had emerged form an IP address which was traced to the telephone number of one
Mrs.
Jane Foster. The police questioned her who admitted to sending the emails and subsequently a
charge sheet was filed arraigning Mrs. Foster as the sole accused.
EPILOGUE
When the matter came before the Ld. Magistrate, who relying upon the written submission filed
by Mrs. Foster, proceeded to discharge her, and instead directed the police to register an FIR
against Mrs. Hela as her blog indicated a prima facie offence under Sections 153A, 153B, and
295A of the APC.Challenging the said order, Mrs. Hela filed a Sec. 482 petition before the High
Court of Valhalla.

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STATEMENT OF ISSUES

1. WHETHER A MAGISTRATE CAN DIRECT REGISTRATION OF AN FIR UNDER


SECTIONS 153A, 153B AND 295A, WHEN REQUIREMENTS UNDER SEC. 196 OF
THE CRPC HAS NOT BEEN FULFILLED
2. WHETHER SEC 153A, 153B AND 295A ARE VIOLATIVE OF ARTICLE 19 OF THE
CONSTITUTION.

SUMMARY OF ARGUMENTS

1.WHETHER A MAGISTRATE CAN DIRECT REGISTRATION OF AN FIR UNDER


SECTIONS 153A, 153B AND 295A, WHEN REQUIREMENTS UNDER SEC. 196 OF
THE CRPC HAS NOT BEEN FULFILLED

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The petitioner humbly submits before the Hon’ble court that when the matter came before the
Ld. Magistrate, who relying upon the written submission filed by Mrs. Foster, proceeded to
discharge her, and instead directed the police to register an FIR against the petitioner as an
offence under Sections 153A, 153B, and 295A of the APC. 17It’s clear and evident that there is
an underlying policy which his clearly discernible on reading of the offences enumerated in
Section 196 (1) in respect of prior sanction is must before cognizance of any such offence can be
taken, the fact clearly enumerates when the requirements of Section 196 of the Code has not
been fulfilled the magistrate has no power to direct the registration of FIR under sec 156 (3)
18
without previous sanction from the State Government or Central Government. Section 196 of
the code does not control the powers of a Magistrate under the Code, but only prevents a Court
from taking cognizance of certain offences without there being a complaint made by the
Government.

2. WHETHER SECTIONS 295A, 153A AND 153B ARE VIOLATIVE OF RIGHTS


UNDER ART. 19 OF THE CONSTITUTION?
In the light of the judicial pronouncements of the Asgard, the acts of the petitioner will not
constitute an offence under Sec.295A, Sec. 153A, Sec.153B of the APC and it is not in violation
of rights conferred under Article 19 of the Constitution. The contention of the Respondent is two
folds. Firstly, incitement caused must be direct and proximate and secondly, the speech uttered
must be saved by Article 19(2) of the Asgard Constitution.

ARGUMENTS ADVANCED

1. WHETHER A MAGISTRATE CAN DIRECT REGISTRATION OF AN FIR UNDER


SECTIONS 153A, 153B AND 295A, WHEN REQUIREMENTS UNDER SEC. 196 OF
THE CRPC HAS NOT BEEN FULFILLED?
17
Fact Sheet P.2.
18
The Criminal Procedure Code, 1973.
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The petitioner humbly submits before the Hon’ble court that when the matter came before the
Ld. Magistrate, who relying upon the written submission filed by Mrs. Foster, proceeded to
discharge her, and instead directed the police to register an FIR against the petitioner as an
offence under Sections 153A, 153B, and 295A of the APC. 19It’s clear and evident that there is
an underlying policy which his clearly discernible on reading of the offences enumerated in
Section 196 (1) in respect of prior sanction is must before cognizance of any such offence can be
taken, the fact clearly enumerates when the requirements of Section 196 of the Code has not
been fulfilled the magistrate has no power to direct the registration of FIR under sec 156 (3)
20
without previous sanction from the State Government or Central Government. Section 196 of
the code does not control the powers of a Magistrate under the Code, but only prevents a Court
from taking cognizance of certain offences without there being a complaint made by the
Government. If sanction is not obtained, the Magistrate cannot take cognizance of a private
complaint under Section 295-A, Sec 153-A and Sec 153-B of the Indian Penal Code. The
averments of the petitioner as follows as ;

A. REQUIREMENT UNDER SEC 196 OF CRPC HAS NOT FULLFILLED

The fact of the case clearly elucidates the petitioner who is a journalist of repute within Asgard.
The petitioner is known for actively voicing her views against the ruling Odinson party for the
critical of the arrest of Mr. Loki and highlighted the ridiculousness of the arrest and charges
against him. Later on, the petitioner published an article in her blog ‘I am the Goddess of Death’
in which she stated “Odinson Party is rounding up people belonging to the minority community
and having them arrested. The petitioner received a threat mail from an email
iloveinfinitystones@gmail.com, which had the following contents “stop posting stupid and evil
statements like what you’ve posted or you will face dire consequences”. The police questioned
her who admitted to sending the emails and subsequently a charge sheet was filed arraigning
Mrs. Foster as the sole accused. From the revealing Controversy, without the prior sanction the
magistrate cannot direct the registration of FIR under sec 156 (3) absence of it defect in
jurisdiction and therefore not curable.21

Section 196 (1) CrPC which reads as follows:-


19
Fact Sheet P.2.
20
The Criminal Procedure Code, 1973.
21
Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016)
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"196. Prosecution for offences against the State and for criminal conspiracy to commit such
offence.- (1) No Court shall take cognizance of -

(a) any offence punishable under Chapter VI or under section 153A, [section 295A or sub-
section (1) of section 505] of the Indian Penal Code (45 of 1860). Or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860),
except with the previous sanction of the Central Government or of the State Government. "

No court is entitled to take cognizance of an offence under Section 196 (1) (a) except with the
previous sanction of the State Government. Admittedly in the facts of the present case there is
no whisper of the taking of sanction by the Ld. Magistrate prior to taking cognizance of the
offence. Such irregularity touches at the root of the proceedings which are liable to be quashed
on such sole ground.22

(i) Authority to take Cognizance under sec 196 Crpc

The language of Section 196 CrPC is specific and couched in mandatory terms. Under the
provisions of Section 196 CrPC no court has been given the authority to take cognizance except
with the previous sanction of the State Government. To the mind of this Court having regard to
the language of Section 196 CrPC the use of the expressions 'shall' and 'previous' make the
intention of the legislature clear. Section 295A , section 153A and 153B IPC being one of the
categories of offences specified by Section 196 CrPC and having regard to the impact of a
charge under IPC on the public at large, the requirement of a previous (emphasis supplied)
sanction has been embodied under Section 196 CrPC. Therefore, in the absence of such previous
sanction and with the use of the expression 'shall', no court has been given the authority to take
cognizance. 23

Section 196 appears at Chapter XIV of the CrPC in which the opening Section is Section 190. It
is noticed that while Section 190 specifies the genus of the procedure to be adopted for taking

22
Manoj Rai & Ors. vs. State of M.P, AIR 1999 SC 300, 1999 CriLJ 470, 1998 (4) SCALE 414, (1999) 1 SCC 728
23
SC Sarkar, The Code of Criminal Procedure: An Encyclopaedic Commentary on the Code of Criminal
Procedure,1973 (11th Ed., Lexis Nexis, 2015)
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cognizance, Section 196 is a species of such genus specifying the particular procedure for a
particular offence.

(ii) Incurable defect and Proceeding to be Quashed.

Section 153(A) of IPC is a peculiar provision, wherein the law contemplates that before lodging
any complaint or any charge sheet by the police, such complaint or the charge sheet shall be
accompanied by a valid sanction order granted by the competent Jurisdictional State under
Section 196 of Cr.P.C. Since cognizance is taken by the learned Magistrate without there being a
sanction order, the entire proceeding is vitiated by serious incurable defect. Therefore, the said
proceeding deserves to be quashed.

In State of Karnatka vs. Pastor P.Raju 24Supreme Court had considered the question whether sanction
U/S 196 Cr.P.C is required before taking Cognizance of an offence. The Supreme Court held as follows as;
In such circumstances S.196(1A) CrPC can have no application at all and the High
Court clearly erred in quashing the proceedings on the ground that previous
sanction of the Central Government or of the State Government or of the District
Magistrate had not been obtained. It is important to note that on the view taken by
the High Court, no person accused of an offence, which is of the nature which
requires previous sanction of a specified authority before taking of cognizance by
the Court, can ever be arrested nor such an offence can be investigated by the
police. The specified authority empowered to grant sanction does so after applying
his mind to the material collected during the course of investigation. There is no
occasion for grant of sanction soon after the FIR is lodged nor such a power can be
exercised before completion of investigation and collection of evidence. Therefore,
the whole premise on the basis of which the proceedings have been quashed by
the High Court is wholly erroneous in law and is liable to be set aside.

25
State of Karnataka and another Vs. Rajshekar and Another. This Court after elaborately
discussing the powers of the Magistrate under Section 196 of Cr.P.C. has held that sanction is
an absolute legal requirement before filing any complaint before the Magistrate, the Court has
also came to a conclusion that even for referring a private complaint for investigation under
Section 156(3) of Cr.P.C., production of such sanction order is an imperative condition.
24
2005 (2) KarLJ 380
25
2010(1) Kar. L.J. 47
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B. NEED FOR SANCTION TO BE CONSIDERED AS SOON AS THE COMPLAINT


IS LODGED AND ON THE ALLEGATIONS.

The object and purpose for granting such sanction by the Government. In my opinion, it is
worth to quote here the relevant portion of the said judgment.26

“10. …………. In the instant case however, the offences alleged are under Sections 153-A, 295
and 295-A of the Indian Penal Code- relating to promoting enmity between different groups of
people and involving deliberate acts outraging the religious feelings of any class and as pointed
out by the learned Advocate General, Section 196(1) provides that, no Court shall take
cognizance of any offences under Section 153-A or Section 295-A of IPC without the previous
sanction of the Central Government or the State Government.

11. The object of Section 196(1) of the Code of Criminal Procedure is to prevent unauthorised
persons from intruding in matters of State by instituting prosecution and to secure that such
prosecutions, for reasons of policy, shall only be instituted under the authority of Government.
Further, the offences are of a serious and exceptional nature and deal with matters relating to
public peace and tranquility with which the State Government is concerned. Therefore,
provision has been made for obtaining prior sanction of the Government before cognizance is
taken of any such offence. It is possible that in a given case, the very filing of a prosecution,
after tempers have cooled down, may generate fresh heat which could well be avoided by the
Government by refusing to accord sanction. There is hence an underlying policy which is
evident on a reading of the offences enumerated in Section 196(1) in respect of which prior
sanction is a must before cognizance of such offence can be taken. Further, under sub- section
(3) of Section 196, it is laid down that, before sanction is accorded, the State Government may
order a preliminary investigation by a police officer. This is apparently to decide on the course
to be adopted by the State Government in respect of any particular incident and is therefore a
crucial step, which cannot be by-passed.”

26
Supra.
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(i) Prior Sanction- Substantive Right

A meaningful understanding of the observations made by this Court, clearly mandates that
Section 196(1) of Cr.P.C. is an underlying policy, in respect of which, prior sanction is a must
for taking cognizance by the Court in order to prevent a false complaint being filed before the
courts for granting an order of sanction.

It is also pertinent to note here the Central Government or the State Government, as the case
may be, have to apply their mind, whether the sanction could be granted under the
circumstances of the case or not. Therefore, the protection arm provided under Section 196(1) of
Cr.P.C. cannot be at any stretch of imagination called as an ‘Idle Formality’. It is a substantive
right of the accused to insist for a sanction order to be filed to the Court by the complainant, if
not all subsequent actions certainly result in vitiation of the proceedings. In this background,
Section-196 of Cr.P.C., if it is read in its proper perspective, it clearly indicates that it is a
mandatory requirement, because the provision itself starts with a non-abstante clause .

(iii) Prosecution for offences in respect of publishing matters prejudicial to national


integration.

“No Court shall take cognizance of,-

“(a) any offence punishable under Chapter –VI or under Section 153(A), [Section 295(A) or
sub-section (1) of Section (505) of IPC except with the previous sanction of the Central
Government or of the State Government or of the District Magistrate.”

Sub-section (3) of Section 196 Cr.PC. also indicates the responsibility on the part of the Central
Government or the State Government as to what preliminary steps have to be taken before
according such sanction. The said provision reads thus:

“Section 196(3): The Central Government or the State Government may, before according
sanction under sub-section (1) or sub-section (1A) and the District Magistrate may, before
according sanction under sub- section (1A) and the State Government or the District Magistrate
may, before giving consent under sub-section (2), order a preliminary investigation by a Police

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Officer not being below the rank of Inspector, in which case such Police Officer shall have the
powers referred to in sub-section (3) of Section 155.”27

This provision abundantly makes it clear that the protection arm given to the petitioner to the
effect that the Central Government or the State Government must make it sure that according of
sanction is absolutely necessary depending upon the facts and circumstances of the case. The
preliminary investigation contemplated under the provision denotes that the State Government
or the Central Government should satisfy themselves before according sanction that the
preliminary investigation discloses the commission of the offence by the petitioner.28

Therefore, the said provision in a stricter sense is an absolute and mandatory requirement of law,
which protects the petitioner from false implication by anybody.

2) WHETHER SECTIONS 295A, 153A AND 153B ARE VIOLATIVE OF RIGHTS


UNDER ART. 19 OF THE CONSTITUTION?

In the light of the judicial pronouncements of the Asgard, the acts of the petitioner will
not constitute an offence under Sec.295A, Sec. 153A, Sec.153B of the APC and it is not in
violation of rights conferred under Article 19 of the Constitution. The contention of the
Respondent is two folds. Firstly, incitement caused must be direct and proximate and secondly,
the speech uttered must be saved by Article 19(2) of the Asgard Constitution.

2.1) The incitement caused must be direct and proximate

The Sec.295A, Sec.153A, Sec.153B of APC can be termed as Hate Speech. The
Supreme Court in the case of Pravasi Bhalai Sangathan V. Union of India & Ors 29 had asked
the Law Commission of India for recommendations regarding to the usage of Hate Speech in
India and how to curb those practices. The Law Commision of India in its 267 th report examined
the concept of hate speech in detail.

The Supreme Court in Brij Bhushan v. State of Delhi 30 opined that public order was
allied to the public safety and considered equivalent to security of the State. This interpretation

27
Aveek Sarkar vs State Of West Bengal
28

29
AIR 2014 SC 1591
30
AIR 1950 SC 129
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was validated by the First Constitution Amendment, when public order was inserted as a ground
of restriction under 19(2). Later in the case of Ram Manohar Lohiya v. State of Bihar31 held the
standard applied for restricting article 19(1)(a) is the highest when imposed in the interest of
security of the State. Also, a reasonable restriction under article 19(2) implies that the relation
between restriction and public order has to be proximate and direct as opposed to a remote or
fanciful connection.

However In the Instant case, the petitioner had criticized the ruling government for very
critical of the arrest of Mr. Loki and highlighted the ridiculousness of the arrest and charges
against him. In her blog she had constructively criticized the arrest of Mr.Loki and how the
ruling party is imposing the majoritarian views on the minority group in Asgard and brought to
light violation of the fundamental rights issue in Asgard. The blog even when taken at its face
value does not amount to offence charged when appreciated under the judicial pronouncements
of Asgard.

A question arises when does an act or a speech will be detrimental to the security of State
and will not be protected by Freedom of Speech under Article 19(1)(a) of the Constitution of
Asgard. The ‘incitement’ test must be applied to know when the acts will be considered as
detrimental to security of the State.

The Supreme Court in Shreya Singhal v. Union of India32 had differentiated between
three forms of speech, discussion, advocacy and incitement. It was held by the Court that a
speech can only be limited on grounds of exceptions mentioned in article 19(2) when it reaches
the threshold of incitement. All other forms of speech, even if offensive or unpopular have to be
protected under article 19(1)(a). Incitement is the key to determining the constitutionality of
restriction on free speech.

Section 295A does not penalise any and every act of insult to or attempt to insult the
religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to
or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens,
which are perpetrated with the deliberate and malicious intention of outraging the religious
feelings of that class. Insults to religion offered unwittingly or carelessly or without any deli.
31
AIR 1966 SC 740.
32
AIR 2015 SC 1523
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berate or malicious intention to outrage the religious feelings of that class do not come within
the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with
the deliberate and malicious intention of outraging the religious feelings of that class. The
calculated tendency of this aggravated form of insult is clearly to disrupt the public order and
the section, which penalises such activities, is well within the protection of clause (2) of Article
19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of
speech and expression guaranteed by Article 19 (1)(a)33. In the instant of this clear says that the
petitioner does have any kind of intention to do with, her only thought was to express her by any
way so that she choose the internet source in the name of the blog.

The Court observed in case called S. Rangarajan v. P. Jagjivan Ram, “our commitment to
a Article 19(1)(a) freedom of expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community interest is
endangered. The anticipated danger should not be remote, conjectural or farfetched. It should
have proximate and direct nexus with the expression.”34 In the instant case even in the allegation
of the respondent taken at the face value do not constitute the offence in the section 295A, 153A
and 153B of the IPC.

Section 153A of the Indian Penal Code is unconstitutional because it affects the
fundamental right of the petitioner under Article 19(1)(a) of the Constitution. We have taken this
view because it seems to us impossible on any reasonable view to hold that the blog contains
matter which promotes feelings of enmity and hatred between majority and minority people in
35
Asgard comparing the fundamental rights of the citizen to the offences with not intentionally
done by the respondent, it is expression expressed by the depressed women so that right of the
citizen will prevail and section 153A will said to be a unconstitutional.

This issue can be sustained on the data disclosed in the case called Gopal Vinayak Godse
vs The Union of India And Ors. on 6 August, 1969, namely the offending passages read in the
context of the blog as a whole, it is important to remember that:

33
Ramji Lal Modi vs The State Of U.P on 5 April, 1957
34
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
35
Gopal Vinayak Godse vs The Union Of India And Ors. on 6 August, 1969
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(i) The matter charged as being within the mischief of Section 153A must be read as a
whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one
take a sentence here and a sentence there and connect them by a meticulous process of
inferential reasoning.

(ii) For judging what are the natural or probable consequences of the writing, it is
permissible to take into consideration the class of readers for whom the blog is primarily meant
as also the state of feelings between the different classes or communities at the relevant tune.

In this case, the respondent has not been able to establish any mens rea on the part of the
accused, as envisaged by the provisions of Sec. 153-A, I.P.C., by their raising casually the
posting the blog to express a feeling regarding the incidents of the previous events. The offense
under section 153-A, I.P.C. is not made out 36. The petitioner critically criticized the charge
framed against Mr.Loki and how freedom of speech is being curbed by the ruling government.
In this case there is element of incitement caused and no subsequent riot has been caused. Hence
in the instant case no essentials of the Sec.295A, Sec.153A, Sec.153B is been made out.

36
( Balwant Singh v. state of Punjab, A.I.R. 1995 S.C. 1785 at p. 1788. ).
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PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed and implored before the Honourable Court, that it may be graciously
pleased to adjudge and declare that –

1. WHEN THE REQUIREMENTS UNDER SECTION 196 CRPC HAS NOT FULLFILLED
THE MAGISTRATE CANNOT ALSO DIRECT THE REGISTRATION OF FIR

2. SEC 153A, 153B AND 295A ARE NOT VIOLATIVE OF ART. 19 OF CONSTITUTION
ASGARD

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity & Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Date: ……………………

Place ………………… sd/-

(Counsel for Petitioner)

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