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LAW
1ST NATIONAL SCHOOL

MOOT INTRA
COURT FACULTY MOOTHALDIA
COMPETITION, COURT, 2018
LAW COLLEGE
TEAM CODE: 343P
BEFORE THE HON’BLE SUPREME COURT OF INDIA

[APPELLATE JURISDICTION]
IN THE MATTER OF:-

THE CHAIRMAN RAILWAY BOARD & ORS.
(...Appellant)
vs.
MRS. ELA BOSE & ORS.

(...Respondent)
SLP No. of 2017 (SLP).

(UNDER ART. 136 OF THE INDIAN CONSTITUTION, 1950)
MEMORIAL FOR THE APPELLANT
MEMORIAL ON BEHALF OF APPELLEANT

2
LAW SCHOOL INTRA FACULTY MOOT COURT, 2018
LAW SCHOOL INTRA-MOOT COURT COMPETITION 2018
TABLE OF CONTENTS
TABLE OF CONTENTS ...........................................................................................................2
INDEX OF AUTHORITIES
 BOOKS AND GUIDELINES REFERRED. ............................................................... 3

 STATUTES INVOLVED. ............................................................................................ 3
 LEGAL DATABASES ................................................................................................. 3
 TABLE OF CASES ....................................................................................................... 4
 LIST OF ABBREVIATIONS ....................................................................................... 5
 IMPORTANT DEFINITIONS ...................................................................................... 5
STATEMENT OF JURISDICTION..........................................................................................6
SUMMARY OF FACTS ........................................................................................................... 7
ISSUES RAISED… .................................................................................................................. 8
SUMMARY OF ARGUMENTS .............................................................................................. 9
ARGUMENTS ADVANCED
I. WHETHER THE PRESENT APPEAL FILED BEFORE THE HON’BLE SUPREME
COURT IS MAINTAINABLE ........................................................................................ 11
II. WHETHER SOPHIA KHATOON WHO IS A FOREIGNER AND NOT AN INDIAN
CITIZEN IS ENTITLED TO RELIEF /COMPENSATION UNDER THE
CONSTITUTION OF INDIA ........................................................................................... 16
III. WHETHER THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE PERSONS
CONCERNED WOULD MAKE THE RAILWAYS OR THE UNION OF INSSSSDIA
LIABLE TO PAY COMPENSATION TO THE VICTIM OF THE OFFENCE ON THE
GROUND OF VICARIOUS LIABILITY. ....................................................................... 19
IV. WHETHER THE ACCUSED SUNIL SHARMA (AGED 15 YRS. 11 MONTHS 10

DAYS ) CAN BE TREATED AS AN ADULT FOR THE TRIAL OF THE OFFENCE
OF GANG RAPE ............................................................................................................. 22
MEMORIAL ON BEHALF OF RESPONDENT

3
PRAYER ................................................................................................................................. 24
INDEX OF AUTHORITIES
 BOOKS AND GUIDELINES REFERRED
S. No. DESCRIPTION
1. KI Vibhute ,PSA PILlai’s Criminal Law (12th Edition 2014)
2. Mahendra Pal Singh ,VN Shukla’s Constitution Of India (12th Edition 2013)
3. Dr. R.K . Bangia, Law Of Torts (23rd Edition 2010)
4. Dr. Ashok K. Jain, Law Of Torts (6th Edition)
 STATUTE INVOLVED
S. No. STATUTE/LEGISLATION
1. The Constitution of India, 1950
2. Indian Penal code, 1860
3. Code of Criminal Procedure, 1973
4. Juvenile Justice ( Care and Protection of children) Act 2015
 LEGAL DATABASES
S. No. LEGAL DATABASES
1. Westlaw

4
2. Manupatra
3. SCC Online
 TABLE OF CASES
S. No. NAME OF THE CASE CITIED PAGE No.
1. S.P. Gupta vs Union of India 12
2. Dattaraj Nathuji Thaware vs State of Maharashtra 12
3. Janta Dal vs H.S. Chowdhary 12
4. Kazi Lhendup Doiji vs C.B.I. 12
5. T.N. Godaverman Thirumulpad 13
6. Ghulam Qadir v Special Tribunal & Ors. 14
7. Vinoy Kumar vs State of U.P. & Ors. 15
8. Rashid Ahmed khan vs Municipal Board Kairana 16
9. Raghunandan Prasad vs CIT 17
10. Gordhan singh v 17
11. Union of India vs T.R. Verma 17
12. Hari Krishna v State 17
13. State of Haryana v Sukhbir Singh 18
14. Ankush Shivaji Rao Gayakward vs State of Maharashtra 18
15. Storey vs Ashton 20
16. Rajinder Chandra vs State of Chhattishgarh and Ors. 22
17. Dr. Subramaniam Swamy & ors. Vs Raju THR 22
18. Pratap Singh v State of Jharkhand 23

5
19. Mukesh & Ors. Vs State for NCT of Delhi 23
 LIST OF ABBREVIATION
ABBREVIATION DEFINITION
& And
AIR All India Reporter
Anr. Another
Art. Article
Crim. Criminal
HC High Court
Hon’ble Honourable
IPC Indiana Penal Code, 1860
Ors. Others
PIL Public Interest Litigation
S. Section
SC Supreme Court
SCC Supreme Court Cases
UOI Union Of India
v. Versus
 IMPORTANT DEFINITIONS
(1) ‘Appellant(s)’ for the purposes of this memorandum stands for SAHYOG (NGO)
(2) ‘Respondent(s)’ for the purposes of this memorandum stands for ‘STATE OF.

6
STATEMENT OF JURISDICTION
THE HON’BLE HIGH COURT OF VARAMASI HAS JURISDICTION TO TRY,

ENTERTAIN AND DISPOSE THE PRESENT PETITIONS BY VIRTUE OF ARTICLE
226 OF THE CONSTITUTION OF INDIA, WHICH READS AS,
“226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32”

7

8
STATEMENT OF FACTS
Madan, a migrant from Eastern Uttam Pradesh shifted to Varamasi, the capital city of the Republic
of Aryavarta in 2014, left his family back in Sunderpur. On January 14, 2018 police personnel
from PS Sunderpur, on the basis of some secret information of some kind of narcotic drugs rushed
to Madan’s house. The police recovered eight kilograms of powdered (cannabis). Madan was
arrested and sent to police remand for three days by ACMM.
Bail was moved but denied and ACMM ordered Madan to be sent to Central Prison, Varamasi,
uder judicial custody Prosecution requested before the Magistrate for continuation of his police
custody. Many cuts and injury marks found on the body of Madan, his lawyer requested to provide
him protection. Meanwhile, Madan’s two associates, Hakim and Nakim, were arrested and
confirmed that Madan was leader of the operation in Sunderpur. Another two kgs of cannabis was
again recovered on their information.
A National newspaper, News Express, published a report on the torture meted out to the prisoners
in Prison and highlighted the proceedings of the Magistrate’s court in Madan’s case.
The Varamasi High Court took suo moto cognizance of the matter and appointed a Committee to
inquire into the truth of the allegations of prison torture and current situation in Prison.
The Committee in its report stated two instances where Madan was beaten up by fellow inmates
whereupon the authorities gave proper medical attention to Madan. The Committee gave evasive
findings on the safety and security of inmates. High Court could not conclude on the responsibility
of Prison Authorities and as such dismissed the matter with caution to the Officials.
Sahyog, an NGO, to get justice for Madan for the torture committed on him which was serious
human rights violation and also regarding the criminal case so instituted against him, intervened
through a PIL petition in the matter.
During the pendency of the PIL, Madan was found in dilapidated condition a kilometer away from
the Central Prison and was admitted to City Hospital. The injuries pointed towards severe and
repeated beatings with blunt objects, including lathis and rifle stock and absence of medical
attention. Consequently, Sahyog has sought a direction for registration of FIR against the SHO and
Jail Superintendent and investigation into Madan’s grievous injuries, by way of a separate writ
petition.
The court intends to hear the PIL and the aforesaid petition together and the same are listed for
final arguments on August 18, 2018.

9
ISSUES RAISED
ISSUE 1
WHETHER THE PRESENT PETITIONS FILED BEFORE THE HON’BLE HIGH

COURT ARE MAINTAINABLE?
ISSUE 2
WHETHER THERE WAS ANY VIOLATION OF ANY FUNDAMENTAL RIGHT

OR HUMAN RIGHT OF MR. MADAN?
ISSUE 3
WHETHER THE EXTRA ORDINARY JURISDICTION OF THE HON’BLE HIGH

COURT SHOULD BE SOUGHT AS SUBSTITUTE, IF SUFFICIENT
ALTERNATIVE REMEDY IS AVAILABLE?

10
SUMMARY OF ARGUMENTS
1. WHETHER THE PRESENT APPEAL FILED BEFORE THE HON’BLE

HIGH COURT IS MAINTAINABLE?
It is humbly submitted before this Hon’ble Court that the present appeal filed before the
Hon’ble High Court by original writ jurisdiction is not maintainable for the following
reasons
 The petitions filed does not stand the touchstone of Public Interest Litigation.
 There is no Locus Standi of the petitioner to file the writ petition.
2. WHETHER THERE WAS ANY VIOLATION OF ANY FUNDAMENTAL

RIGHT OR HUMAN RIGHT OF MR. MADAN?
It is humbly submitted before the Hon’ble court that Mr. Madan, in aforesaid petition, is not
entitled to any relief /compensation under the constitution of India for following reasons
 As no fundamental or human right was violated
 Mr. Madan was arrested and detained by the procedure established by law
3. WHETHER THE EXTRA ORDINARY JURISDICTION OF THE HON’BLE

HIGH COURT SHOULD BE SOUGHT AS SUBSTITUTE, IF SUFFICIENT
ALTERNATIVE REMEDY IS AVAILABLE?
It is humbly submitted before this hon’ble court that extraordinary constitutional remedy under
Art. 226 cannot be sought for following reasons.
 If sufficient alternative remedies are available the remedy under the constitution should not
be used as substitute
 There was sufficient and efficacious alternative statutory remedy available to the petitioner

11

12
ARGUMENTS ADVANCED
1. THAT THE PETITIONS FILED BEFORE THE HON’BLE HIGH COURT

ARE NOT MAINTAINABLE
The counsel humbly submits before this Hon’ble court that the present petitions filed before
this court under ART. 226 of the Indian Constitution is not maintainable and Most
Respectfully Showeth that
[1.1] The petition filed does not stands the touchstone of Public Interest Litigation
1. While making exception to the general law of locus standi in a Public Interest Litigation, the
Hon'ble Supreme Court has laid down certain norms when such a petition can be entertained
without the petitioner being personally affected and to what limit can requirement of locus be
expanded and has also mandated that when it should not be maintainable.
2.Public Interest Litigation can only be filed for espousing the cause of others when and only
when the persons aggrieved are unable to approach the Court directly by reasons of object poverty
or lack of means or being socially disadvantaged and backward. Thus those who are unable to
knock the door of the Court themselves for lack of sources and means can file Public Interest
Litigation, but in this case the aggrieved person i.e. Madan do not fall within the above ambit.
3. In Ashok Kumar Pandey Vs. State of W.B.,1 the Hon’ble SC observed in para 34 that
“Unless an aggrieved party is under some disability recognized by law, It would be unsafe and
hazardous to allow any third party be a member of the Bar to question the decision against third
parties."
4. The Hon'ble Apex Court in Gauruvayoor Devaswom Managing Committee and another Vs.
C.K. Rajan and others2, recognized and mentioned three disabilities in which a PIL can be filed.
“The courts exercising their power of judicial review found to their dismay that poorest of the
poor, the depraved (sic), the illiterate, the urban and rural unorganized labour sector, women,
children, those handicapped by "ignorance, indigence and illiteracy" and other downtrodden
persons have either no access to justice or had been denied justice. A new branch of proceedings
known as "social action litigation" or "public interest litigation" was evolved with a view to
render complete justice to the aforementioned classes of persons.”
5. The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India
can entertain a petition filed by any interested person in the welfare of the people who is in a
disadvantaged position and, thus, not in a position to knock the doors of the Court. In the instant
case Madan is a rich man and thus has the means to approach the court for justice.
11
(2004) 3 SCC 349
2
(2003) 7 SCC, 546
13
6. It is further contended that Hon'ble Supreme Court in its judgment in State of Uttaranchal
Vs. Balwant Singh Chaufal & ors3 considered and expressed its concern regarding the abuse
of the process of Courts through PIL. the Hon'ble Supreme Court issued directions to preserve
the purity and sanctity of PIL as under:-
"198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue
the following directions:
(1) The courts must encourage genuine and bona fide PIL and effectively discourage
and curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the
public interest litigation, it would be appropriate for each High Court to properly
formulate rules for encouraging the genuine PIL and discouraging the PIL filed with
oblique motives. Consequently, we request that the High Courts who have not yet
framed the rules, should frame the rules within three months. The Registrar General of
each High Court is directed to ensure that a copy of the Rules prepared by the High
Court is sent to the Secretary General of this Court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before
entertaining a P.I.L.
(4) The court should be prima facie satisfied regarding the correctness of the contents of
the petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before
entertaining the petition.
(6) The court should ensure that the petition which involves larger public interest,
gravity and urgency must be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at
redressal of genuine public harm or public injury. The court should also ensure that
there is no personal gain, private motive or oblique motive behind filing the public
interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous
and ulterior motives must be discouraged by imposing exemplary costs or by adopting
similar novel methods to curb frivolous petitions and the petitions filed for extraneous
considerations.”
3
2010 AIR SCW 1029
14
7.The clear mandate of the judiciary in this regard is that a PIL cannot be used to serve personal
or individual interest in the present case the suit was filed for publicity and nothing else,
because litigation for compensating an individual who was not a socially economically
educationally disable cannot be said to be for larger public interest. Madan is financially,
socially and educationally competent and able to file a petition on his own behalf to protect his
rights.
8. In Dattaraj Nathuji Thaware Vs. State of Maharashtra4, at para 12, Hon'ble Supreme
Court was pleased to observe as under:-
"12. ........The attractive brand name of public interest litigation should not be used for
suspicious products of mischief. It should be aimed at redressal of genuine public wrong or
public injury and not publicity oriented or founded on personal vendetta. As indicated above,
Court must be careful to see that a body of persons or member of public, who approaches the
court is acting bona fide and not for personal gain or private motive or political motivation or
other oblique considerations. The Court must not allow its process to be abused for oblique
considerations by masked phantoms who monitor at times from behind. Some persons with
vested interest indulge in the pastime of meddling with judicial process either by force of habit
or from improper motives, and try to bargain for a good deal as well to enrich themselves.
Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such
busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases
with exemplary costs."
9. A vexatious petition under the colour of public interest litigation brought before the court for
vindicating any personal grievance, deserves rejection at the threshold.". These aspects were
highlighted by the Hon’ble SC court in Janata Dal v. H.S. Chowdhary5 and Kazi Lhendup
Doiji v. CBI6. The present petition filed before this court is not for public interest rather it is to
vindicate a personal interest and to provide unlawful and illegal benefit to an offender.
10. This petition styled as Public Interest Litigation is nothing but a camouflage to foster private
interest. It is necessary to take note of the meaning of the expression "public interest litigation". In
Stroud's Judicial Dictionary, Vol. 4, 4th Edn., "Public interest" is defined thus:
"Public interest.-(1) A matter of public or general interest does not mean that which is interesting
as gratifying curiosity or a love of information or amusement; but that in which a class of the
4
2005(1) SCC 590
5
(1992) 4 SCC 305
6
(1994) 2 SCC 116
15
community have a pecuniary interest, or some interest by which their legal rights or liabilities are
affected."
In Black's Law Dictionary, 6th Edn., "public interest" is defined as follows:
"Public interest.- Something in which the public, the community at large, has some pecuniary
interest, or some interest by which their legal rights or liabilities are affected. It does not mean
anything so narrow as mere curiosity, or as the interests of the particular localities, which may be
affected by the matters in question. Interest shared by citizens generally in affairs of local, State or
national Government.
11. This petition has been filed to unlawfully compromise the trial of the criminal proceedings
registered against MADAN under The Narcotic Drugs and Psychotropic Substances Act, who was
involved in transaction of prohibited narcotics drugs and cannabis and was an associate of Mr.
Harish a narcotics giant and was involved in this from 2014.
12. In S.P.Gupta Vs. Union of India7, this Court has found that this liberal standard makes it
critical to limit standing to individuals "acting bona fide. To avoid entertaining frivolous and
vexatious petitions under the guise of PIL, the Court has excluded two groups of persons from
obtaining standing in PIL petitions. First, the Supreme Court has rejected awarding standing to
"meddlesome interlopers". Second, the Court has denied standing to interveners bringing public
interest litigation for personal gain.
13. In TN. Godavarman Thirumulpad (98) v. Union of India & Ors8, submitted that howsoever
genuine a case brought before the court by a public interest litigant may be, the court has to
decline its examination at the behest of a person who, in fact, is not a public interest litigant and
whose bona fides and credentials are in doubt and that no trust can be placed by the court on a
mala fide applicant in public interest litigation.
14. In the instant case the credentials or field of work of the NGO members is vague and not
stated clearly so they cannot be treated as public interest litigants Thus, the Hon’ble Court
should consider this aspect of judicial pronouncement and reject the petition filed for cheap
publicity and serving the individual interest, camouflaged in the form of PIL and should be
rejected at the threshold
7
1981 Suppl SCC 87
8
(2006) 5 SCC 28
16
[1.2] There is no Locus Standi of the petitioner to file the Writ petition
1.NGO Sahyog or its members have no locus standi to file the present Writ petition in this
Hon’ble High Court under Art. 226 of the Indian Constitution because the petitioner is not the
aggrieved party or the victim of the incident neither they are directly or indirectly related with
the claimed victim. The credentials or field of work of the NGO members is vague and not
stated clearly so they cannot be treated as public interest litigants.
2. No legal or constitutional right of the petitioners were violated or encroached upon and there
was no threat or apprehension of its violation or suppression and the existence of the legal right
of the petitioner which is alleged to have been violated is the foundation for invoking the
jurisdiction of the High Court under Art. 226
3. In Janata Dal V. H.S.Chowdhary9, this Court opined:
"62 … it is needless to emphasise that the requirement of locus standi of a party to a

litigation is mandatory, because the legal capacity of the party to any litigation whether in
private or public action in relation to any specific remedy sought for has to be primarily
ascertained at the threshold."
4. This contention was upheld by the apex court in Ghulam Qadir v. Special Tribunal and
Ors10. The court through Justice Sethi held that
“There is no dispute regarding the legal proposition that the rights under Article
226 of the Constitution of India can be enforced only by an aggrieved person except
in the case where the writ prayed is for habeas corpus or quo warranto. Another
exception in the general rule is the filing of a writ petition in public interest. The
existence of the legal right of the petitioner which is alleged to have been violated is
the foundation for invoking the jurisdiction of the High Court under the aforesaid
Article “
5. In the present case all the exceptions forming the locus standi of a stranger or unaggrieved
party are absent as
 The writ prayed is not for habeas corpus or quo warranto.
 The writ petition is not filed in public interest rather filed for publicity and
indivisual interest and thus the petition can not be treated as a PIL
9
(1992) 4 SCC 305
10
Appeal (civil) 6963-64 of 2001
17
6. In the instant case the petitioner had not filed the petition in public interest and did not
disclose the circumstances which prevented the affected persons from approaching the court.
No circumstance was mentioned in the petition which allegedly incapacitated the affected
persons from filing the writ petition.
7. Furthermore, counsel humbly submits that high court can exercise its powers to issue writs
against any investigating authority only when the power of investigation has been exercised by
a police officer mala fide, as held by the Hon’ble SC. in the case of S. N. Sharma v. Bipen
Kumar Tewari11. Apex court held that “It appears to us that, though the Code of Criminal
Procedure gives to the police unfettered power to investigate all cases where they suspect that a
cognizable offence has been committed, in appropriate cases an aggrieved person can always
seek a remedy by invoking the power of the High Court under Article 226 of the Constitution
under which, if the High Court could be convinced that the power of investigation has been
exercised by a police officer mala fide, the High Court can always issue a writ of mandamus
restraining the police officer from misusing his legal powers.”
In the instant case investigation is being carried by a fair and just procedure established by law
8. Further it is submitted that Sec. 41 Cr.PC gives a wide statuary Power to the Police to arrest a
person during the investigation of a cognizable offence. This power of the Police cannot be
interfered with by high Court in exercise of its powers under Art. 226 or Sec. 482. This judicial
position has been settled by courts in a series of cases Ram Lal Yadav Vs. State of Uttar
Pradesh12, Emperor v. Nazir Ahmad13, State of Bihar v. J.A.C. Saldana 14.
11
1970 Cri LJ 764 (SC)
12
1989 Cr.L.J. FB
13
(1945) 46 Cri LJ 413 (PC)
14
1980 Cri LJ 98
18
2. THAT THERE WAS NO VIOLATION OF ANY FUNDAMENTAL RIGHT

OR HUMAN RIGHT OF MR. MADAN.
The counsel humbly submits before this Hon’ble court that Mr. MADAN in aforesaid case is
not entitled to any relief/compensation under the constitution of India, as no fundamental or
human right was violated, and Most Respectfully Showeth that
[2.1]Mr. MADAN WAS ARRESTED AND DETAINED BY THE PROCEDURE

ESTABLISHED BY LAW.
1. No Fundamental Right is absolute, same applies for Article 21 which provides for fundamental
right to life and personal liberty. But reasonable restrictions can be put to this right as well and this
right can only be taken away by the procedure established by law. Art 21 which reads as
“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”
2. The code of criminal procedure empowers and mandates the police to prevent the commission
of any offence to best of their ability, under Sec. 149 which reads as
‘149. Police to prevent cognizable offences. Every police officer may interpose for the purpose of
preventing, and shall, to the best of his ability, prevent, the commission of any cognizable
offence.’
3. Mr. MADAN was arrested under section 20(b) of The Narcotic Drugs and Psychotropic
Substances Act, 1985, for possession and transaction of 8kgs of powdered cannabis. Sec. 20(b)
which reads as
‘20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in

contravention of any provision of this Act or any rule or order made or condition of licence
granted there under —
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports
inter-State or uses cannabis’
4. The arrest was in compliance with procedure established under the NDPS Act. There was no
procedural irregularity or illegality. The accused was provided with all the safeguards and rights as
provided under the Indian constitution, Cr.P.C and NDPS Act.
5. That the arrest, seizure and search was done in accordance with Sec. 42 of the NDPS Act, Sec.
41 & 46 of Cr.P.C and in the presence of a gazetted officer as provided by the NDPS Act. Further
the accused was brought before Additional Chief Metropolitan Magistrate who sent to police
remand and thus a fair and just trial is being conducted.
6. That the initial injuries found on the person of the accused are result of brawl and fist fight
19
amongst the inmates of the prison and beatings of the fellow inmates and no brutality or torture
was committed by the police or the prison authorities This was observed by the committee
appointed by this Hon’ble court in its report dated February 15, 2018. The prison authorities gave
proper medical attention to Madan.
7. The accused himself has not complaint of any torture or cruelty but the same is being alleged
by a third party who has no interest or relation with the accused neither the petitioner is an eye
witness to the incident but simply trying to unduly influence the trial for publicity and political
vendetta. Court ought not to believe the whims and fancies of the petitioner.
8. That the accused after a brawl and fist fight between prison inmates somehow escaped the
prison and tried to run away on 20th June 2018. Police chased and caught him however he resisted
the arrest by physical force, police in order to control him used the reasonable force resulting in
multiple fractures. However, the accused was taken to the city hospital by Police for his medical
treatment.
9. That the use of reasonable force by Police is permitted by the law, Sec. 49 Which reads as
‘No unnecessary restraint- The person arrested shall not be subjected to more restraint than is
necessary to prevent his escape.’
And sec. 46(2) which reads as
‘Arrest how made- If such person forcibly resists the endeavour to arrest him, or attempts to evade
the arrest, such police officer or other person may use all me ans necessary to effect the arrest.’
10. The National Human Rights Commission’s Guidelines on Arrest is also to the same effect, the
commission in Part B of the guidelines on point 1 observes as follow-
‘• As a rule, use of force should be avoided while affecting arrest. However, in case
of forcible resistance to arrest, minimum force to overcome such resistance may
be used. However, care must be taken to ensure that injuries to the person being
arrested, visible or otherwise are avoided.’
11. The courts need to form a balance between the indivisual interest and societal interest. The
question is whether protection for the individual would not be gained at a disproportionate loss of
protection for society. On the one side is the social need that crime shall be repressed. On the
other, the social need that law shall not be flouted by the insolence of office. There are dangers in
any choice. This was observed by Apex court in Joginder Kumar vs State Of U.P15, court cited
Justice Cardozo from People v. Defore1
"The protection of the individual from oppression and abuse by the police and other enforcing
officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an
interest which at times seems to be forgotten. Perfection is impossible; like other human
institutions criminal proceedings must be a compromise."
12. Further the replying respondents submit before this court to constitute a committee to report on
the internal security of prisons and to protect the inmates from violence inside the prison
15
1994 AIR 1349, 1994 SCC (4) 260
20
3. THAT THE EXTRA ORDINARY JURISDICTION OF THE HON’BLE HIGH

COURT SHOULD NOT BE SOUGHT AS SUBSTITUTE IF SUFFICIENT
ALTERNATIVE REMEDY WAS AVAILABLE.
The counsel humbly submits before the hon’ble court that there was sufficient and efficacious
alternative remedy available to the petitioner and thus extraordinary constitutional remedy under
Art. 226 cannot be sought, and most respectfully showeth that
[3.1] If sufficient alternative remedies are available the remedy under the constitution
should not be used as substitute
1.What kind of remedy is available to a victim depends on the nature and peculiarity of cases.
Out of these remedies the remedy under the constitution is considered to be an extra ordinary
remedy. Such a remedy is given when ordinary or alternative remedies are not sufficient to
redress or rehabilitate the victim. However, if sufficient alternative remedies are available
then a remedy under the constitution can’t be used as a substitute.
2.This proposition was also observed by this court in Rashid Ahmed v. Municipal Board,
Kairana16. The court laid down that existence of an adequate legal remedy was a factor to be
taken into consideration in the matter of granting writs.
3. This was followed by the apex court in case Rashid and sons v. income tax investigation
commission. The court reiterated the above proposition and held that where alternative
remedies existed, it would be a sound exercise of discretion to refuse to interfere in a petition
under art. 226.
4. The remedies under art, 226 should not be permitted to be utilized as substitute for ordinary
remedies all the high courts accordingly agree that writs or direction under art. 226 should
ordinarily be not issued where an equally efficient and adequate alternative remedy exist
unless there is an exception reason for dealing with the matter under the writ jurisdiction. The
reference may be taken from Raghunandan Prasad v. Cit, Walchand Nagar Industries
Ltd v. State17, Gordhan Singh v. Custodian Evacuee Property18.
16
AIR 1965 SC 923
17
AIR 1953 ALL 399
18
AIR 1954 Raj.77
21
5. This view has also been endorsed in UOI v. TR VERMA19 where the supreme court lend
some credence to the doctrine stating “it is well settled that when an alternative and equally
efficacious remedy is open to a litigant, he should be require to pursue that remedy and not to
invoke the special jurisdiction of the high court to issue a prerogative writ”.
6. As observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal]20.
In this case, the Apex Court held that:
“Thus, while it can be said that this Court has recognized some exceptions to the rule of
alternative remedy i.e. where the statutory authority has not acted in accordance with the
provisions of the enactment in question, or in defiance of the fundamental principles of
judicial procedure, or has resorted to invoke the provisions which are repealed, or when an
order has been passed in total violation of the principles of natural justice…. the High Court
will not entertain a petition under Article 226 of the Constitution if an effective alternative
remedy is available to the aggrieved person. Therefore, when a statutory forum is created by
law for redressal of grievances, a writ petition should not be entertained ignoring the
statutory dispensation.”
With reference to the instant case, the grievances did not fall within any of the exceptions as
enumerated by the Apex Court in Chhabil Das case.
19
1958 SCR 499
20
[2014 (1) SCC 603
22
[3.2] THERE WAS SUFFICIENT AND EFFACACIOUS ALTERNATIVE STATUTORY

REMEDY AVAILABLE TO THE PETITIONER
1. The remedy initially and primarily available to the petitioner was under the code of criminal
procedure , they were aggrieved by any action or inaction of the police or prison authorities, they
should have approached the police station to lodge an F.I.R under Sec. 154 Cr.P.C.
2. If the approached police station refused to lodge the F.I.R, then send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a cognizable offence, shall either investigate the
case himself or direct an investigation to be made by any police officer subordinate to him, as
provided under Sec. 154(3) of Cr.P.C.
3. If that does not yield satisfactory result in that either the FIR is still not registered or that even
after registering it no proper investigation is held, it is open to the aggrieved person to file an
application under Sec.156 (3) of the Code before the Magistrate concerned. If such application is
filed the Magistrate can direct the police to register a case and also direct proper investigation to
be made in a case where according to the aggrieved person no proper investigation is made. The
Magistrate can also under the same provision monitor the investigation to ensure a proper
investigation.
4. This was also observed by the hon’ble SC in Sakiri Vasu v. State of U.P. and Ors.21, where
the court opined that
“25. We have elaborated on the above matter because we often find that when someone has a
grievance that his FIR has not been registered at the police station and/or a proper investigation
is not being done by the police, he rushes to the High Court to file a writ petition or a petition
under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this
practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his
alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned
police officers, and if that is of no avail, by approaching the concerned Magistrate under Section
156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first
remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police
officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the
officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate
under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a
petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal
complaint under Section 200 Cr.P.C.”
5. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a
proper investigation has not been made by the officer-in-charge of the concerned police station,
such aggrieved person can approach the Superintendent of Police or other police officer superior
in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes,
do the investigation as was held in CBI vs. State of Rajasthan and another22, R.P. Kapur vs.
S.P. Singh23 etc. Also, the State Government is competent to direct the Inspector General,
Vigilance to take over the investigation of a cognizable offence registered at a police station this
was held in State of Bihar vs. A.C. Saldanha24.
21
2008 (1) RCR (Cr.) 392
22
2001 (3) SCC 333),
23
AIR 1961 SC 1117
24
1980 AIR 326, 1980 SCR (2) 16
23
6. That in the instant petitions petitioners are trying to circumvent the detailed procedure
prescribed under CrPC which ought not to be permitted. There is easy, efficacious and effective
remedy available to the petitioner but they are showing reluctance to approach the same for the
reasons best known to them, this also proves the malafides of the petitioner.
5. Article 226 should not be construed so as to replace the ordinary remedies by way of a suit and
application available to the litigant under the general law of the land.

24
PRAYER
In light of the issues raised, arguments advanced, reasons given and authorities cited it is
most humbly and respectfully requested that this Hon'ble Supreme Court may be pleased to
adjudge and declare on behalf of the appellant that:
1. The Present Appeal Filed Before The Hon’ble High Court Is Not Maintainable
2. That There Was No Violation Of Any Fundamental Right Or Human Right Of Mr.
Madan.
3. That The Extra Ordinary Jurisdiction Of The Hon’ble High Court Could Not Be Sought
As Substitute If Sufficient Alternative Remedy Was Available.
AND/OR
Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Fairness, Equity and Good Conscience.
For this Act of Kindness, the Appellant as in duty bound, shall forever pray.
The Respondent
Sd/-
(COUNSELS FOR THE RESPONDENTS)

25

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LAW

1ST NATIONAL SCHOOL

TEAM CODE: 343P

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:-

MRS. ELA BOSE & ORS.

SLP No. of 2017 (SLP).

MEMORIAL FOR THE APPELLANT

MEMORIAL ON BEHALF OF APPELLEANT

LAW SCHOOL INTRA-MOOT COURT COMPETITION 2018

TABLE OF CONTENTS ...........................................................................................................2

 BOOKS AND GUIDELINES REFERRED. ............................................................... 3

SUMMARY OF FACTS ........................................................................................................... 7

ISSUES RAISED… .................................................................................................................. 8

SUMMARY OF ARGUMENTS .............................................................................................. 9

IV. WHETHER THE ACCUSED SUNIL SHARMA (AGED 15 YRS. 11 MONTHS 10

MEMORIAL ON BEHALF OF RESPONDENT

LAW SCHOOL INTRA-MOOT COURT COMPETITION 2018

 BOOKS AND GUIDELINES REFERRED

1. KI Vibhute ,PSA PILlai’s Criminal Law (12th Edition 2014)

3. Dr. R.K . Bangia, Law Of Torts (23rd Edition 2010)

4. Dr. Ashok K. Jain, Law Of Torts (6th Edition)

1. The Constitution of India, 1950

2. Indian Penal code, 1860

3. Code of Criminal Procedure, 1973

4. Juvenile Justice ( Care and Protection of children) Act 2015

S. No. LEGAL DATABASES

MEMORIAL ON BEHALF OF RESPONDENT

LAW SCHOOL INTRA-MOOT COURT COMPETITION 2018

S. No. NAME OF THE CASE CITIED PAGE No.

1. S.P. Gupta vs Union of India 12

2. Dattaraj Nathuji Thaware vs State of Maharashtra 12

3. Janta Dal vs H.S. Chowdhary 12

4. Kazi Lhendup Doiji vs C.B.I. 12

5. T.N. Godaverman Thirumulpad 13

6. Ghulam Qadir v Special Tribunal & Ors. 14

7. Vinoy Kumar vs State of U.P. & Ors. 15

8. Rashid Ahmed khan vs Municipal Board Kairana 16

9. Raghunandan Prasad vs CIT 17

10. Gordhan singh v 17

11. Union of India vs T.R. Verma 17

12. Hari Krishna v State 17

13. State of Haryana v Sukhbir Singh 18

14. Ankush Shivaji Rao Gayakward vs State of Maharashtra 18

15. Storey vs Ashton 20

16. Rajinder Chandra vs State of Chhattishgarh and Ors. 22

17. Dr. Subramaniam Swamy & ors. Vs Raju THR 22

18. Pratap Singh v State of Jharkhand 23

MEMORIAL ON BEHALF OF RESPONDENT

LAW SCHOOL INTRA-MOOT COURT COMPETITION 2018

19. Mukesh & Ors. Vs State for NCT of Delhi 23

PIL Public Interest Litigation

SCC Supreme Court Cases

UOI Union Of India

MEMORIAL ON BEHALF OF RESPONDENT

THE HON’BLE HIGH COURT OF VARAMASI HAS JURISDICTION TO TRY,

“226. Power of High Courts to issue certain writs

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

WHETHER THE PRESENT PETITIONS FILED BEFORE THE HON’BLE HIGH

WHETHER THERE WAS ANY VIOLATION OF ANY FUNDAMENTAL RIGHT

WHETHER THE EXTRA ORDINARY JURISDICTION OF THE HON’BLE HIGH