UILS 9TH SEMESTER COMPULSORY CRIMINAL MOOT

IN THE COURT OF SESSIONS,

CHANDIGARH, UNION TERRITORY, INDIA

IN THE MATTER OF

CHANDIGARH ADMINISTRATION (Prosecution)

Versus

X
Y
Z (Accused)

FOR THE OFFENCES CHARGED UNDER

Section 148, 333 r.w. 149, and 332 r.w. 149 of INDIAN PENAL CODE, 1860

SUBMISSION TO THE HON’BLE SESSIONS JUDGE

MEMORIAL ON BEHALF OF THE DEFENCE

SUBMITTED BY:
HARGUN SANDHU
ROLL NO. 195/15
SECTION D
B.COM LL.B. (HONS.)
2019-2020
 Contents

List of Abbreviations……………………………………………………………………………...2
Index of Authorities…………………………………………………………………………….....3
Statement of Jurisdiction…………………………………………………………………………4
Statement of Facts………………………………………………………………………………...5
Statement of Issues………………………………………………………………………………..6
Summary of Arguments…………………………………………………………………………..7
Arguments Advanced
Whether or not the accused can be charged under section 333 and 332?.................8
Whether or not the accused can be charged under section 148?.....................................9
Whether conducting the raid was justified or not?..........................................................10
Prayer……………………………………………………………………………………………..12

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MEMORIAL ON BEHALF OF RESPONDENT
 List of Abbreviations

&
And
AIR All India Reporters
Anr. Another
Ed. Edition
i.e. That is
IPC Indian Penal Code
Ltd. Limited

Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports

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MEMORIAL ON BEHALF OF RESPONDENT
 Index of Authorities

Table of Cases

Cases Referred Page No.

9
Emperor v. Gajadhar. (1910) 11 CriLJ 721
State of Gujarat v. D.P. Pandey, AIR 1971 SC 866 9
Dhanai Mahto And Anr. vs State Of Bihar, 2003 (4) ALT 64 SC 10

Parma Singh And Ors. vs Emperor, 9 Ind Cas 586 10

11
Kanwar Singh vs Delhi Administration, 1965 AIR 871, 1965 SCR (1) 7

Books
1. DR. HARI SINGH GOUR, PENAL LAW OF INDIA, (11th Ed., Law Publishers
India Pvt. Ltd., 2003).
2. BATUK LAL, COMMENTARY ON CRIMINAL PROCEDURE, (3rd Ed.,
Orient Publications, India, 2005).

3. KD GAUR, TEXTBOOK ON THE INDIA PENAL CODE, (4th Ed., Universal

Law Publishing Co., India, 2006)
4. R.V. KELKAR, CRIMINAL PROCEDURE, (5th Ed., Eastern Book Co., 2011)

Statutes
1. The Indian Penal Code, 1860
2. The Code of Criminal Procedure, 1973
3. Punjab Municipal Corporation Act, 1976 (extends to the U.T. of Chandigarh)

Miscellaneous

1. The Oxford English Dictionary, Vol. 1.

2. Wharton's Law Lexicon
3. www.indiakanoon.com
4. www.casemine.com

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MEMORIAL ON BEHALF OF RESPONDENT
 Statement of Jurisdiction

The Hon’ble Court has jurisdiction to try the instant matter pursuant to Section 177 read with

Section 209 of the Code of Criminal Procedure, 1973.

1771. Ordinary place of inquiry and trial.

Every offence shall ordinarily be inquired into and tried by a Court within whose local

jurisdiction it was committed.

2092. Commitment of case to Court of Session when offence is triable exclusively by it

When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively

by the Court of Session, he shall-

(a) Commit, after Complying with the provisions of section 207 or section 208, as the case

may be, the case to the Court of Session, and subject to the provisions of this code relating to

bail, remand the accused the custody until Such commitment has been made;

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody

during, and until the conclusion of, the trial;

(c) Send to that Court the record of the case and the documents and articles, if any, which are

to be produced in evidence;

(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.

1
Section 177, Code of Criminal Procedure 1973
2
Section 209, Code of Criminal Procedure 1973.

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MEMORIAL ON BEHALF OF RESPONDENT
 Statement of Facts

On October 15, 2018, Ram Singh, Licensing Inspector of the Chandigarh Municipal Corporation
organised a raiding party for catching stray cattle within the limits of the Corporation. The party
consisted of Manohar Singh, Enforcement Inspector, Kuldeep Singh, Sanitary Inspector, Sauman
Singh, Head Constable, three foot constables and five cattle-catchers.

The party reached the neigbourhood of Burail (Sector 45, Chandigarh) at about 5 a.m. and
rounded up about 25 or 30 stray cattle consisting of buffaloes and cows. While they were taking
them to the cattle compound via Sector 33-32 Road, the three appellants who were carrying lathis
with them approached the party and threatened them that unless they released the cattle they would
have to face serious consequences.

However, the accused raised shouts asking their friends to come along with lathis in order
to help them to get the cattle released by force. Upon hearing the shouts the other accused persons
arrived at the spot with lathis, joined the main accused and all of them assaulted the members of the
party, caused injuries to them and got the cattle released by force.

As a result of the assault all the prosecutors sustained grievous as well as some simple
injuries. The incident was seen by a number of persons who happened to come to the spot at that
time.

Eventually a report was lodged with the police, investigation was taken up and the
appellants and the other accused were placed before a First Class Magistrate, who, after making a
preliminary enquiry, committed them for trial by the Court of Sessions.

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MEMORIAL ON BEHALF OF RESPONDENT
 Statement of Issues

1. Whether or not the accused can be charged under section 333 and 332 of IPC?

2. Whether or not the accused can be charged under section 148 of IPC?

3. Whether conducting the raid was justified or not?

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MEMORIAL ON BEHALF OF RESPONDENT
 Summary of Arguments

1. Whether or not the accused can be charged under section 333 and 332 of IPC?
It is respectfully submitted that the accused cannot be charged under section 333 and 332
because the accused had no idea that the prosecution were officials of the government and
were discharging their official duty assigned to them. The officials were not in uniform and
no identification could be marked out. Therefore no question of them being charged under
these sections arise as it was genuine mistake and no understanding of the facts and the act
wasn’t planned or voluntary, it happened in the spur of the moment.

2. Whether or not the accused can be charged under section 148 of IPC?
It is respectfully submitted that the accused cannot be charged under section148 as the
major ingredient of the section is rioting when armed with deadly weapon was missing in
this case, since the accused were carrying lathis and they have been held to not to be deadly
weapons and also rioting in its actual meaning didn’t happen.

3. Whether conducting the raid was justified or not?

The raid was not justified, as the whole object of the raid was to impound abandoned stray
cattle and in the present case the cattle were not abandoned and were not stray. The accused
are the owners and were the ones taking care of them and were around them while the
officials were making an attempt to impound them.

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MEMORIAL ON BEHALF OF RESPONDENT
 Arguments Advanced

1. Whether or not the accused can be charged under section 333 and 332 of IPC?
Section 3323: Voluntarily causing hurt to deter public servant from his duty.—Whoever voluntarily
causes hurt to any person being a public servant in the discharge of his duty as such public servant,
or with intent to prevent or deter that person or any other public servant from discharging his duty
as such public servant, or in consequence of anything done or attempted to be done by that person
in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.

Section 3334: Voluntarily causing hurt on provocation.—Whoever voluntarily causes hurt on grave
and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any
person other than the person who gave the provocation, shall be punished with imprisonment of
either description for a term which may extend to one month, or with fine which may extend to five
hundred rupees, or with both.

It is humbly submitted that the accused are not guilty of being charged under sections 332 and 333
as the accused were totally unaware of the fact that the petitioners were government officials acting
under their official capacity. There was no mark of identification no identity card or neither were
the officials in uniform that they could be recognized.

The accused acted in absolute fear of their cattle being stolen by some random men in the morning
when they had got their cattle out for grazing. The accused’s acts were a reaction that any normal
human being will give when something valuable of theirs is being stolen.

The major ingredient to find a person guilty of the above mentioned section is voluntariness and in
the present case the accused didn’t plan the whole event and attacked the officers, it was only a
reaction to a very sudden and unknown situation and had no time to think and act on it. The mens
rea which is an important element to constitute a crime is clearly missing in the present case as the
accused were only trying to save their cattle and had no intention of purposely attacking the
officials or stop them form performing their duties. The intention of the accused persons is very
clear and was only of one to save their cattle and not the one for which they are being charged for.

3
Section 332 of The Indian Penal Code, 1870
4
Section 333 of The Indian Penal Code, 1870
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MEMORIAL ON BEHALF OF RESPONDENT
 In Emperor v. Gajadhar5, It has accordingly been held that the use of word ‘voluntarily’ seems
to indicate that the legislature contemplated the commission of some overt act of obstruction,
and did not intend to render penal but a mere passive conduct. Ancient maxim actus non facit
reum, nisi mens sit rea envisages that no man should be convicted of a crime unless the two
requirements of (i). actus reus physical, and (ii). Mens rea mental element, are satisfied in every
crime. Whatever act a man do, it cannot make him criminally punishable, unless his doing of it
was actuated by a legally blameworthy attitude of mind. Motive is something which prompts a
man to form an intention. Where the essential ingredients of the offence are not established,
absence of proof of motive would be a ground for acquittal of the accused. However, the
evidence of motive is relevant since it throws light on the question of intention and gives clue to
a crime, and though the prosecution is not bound to prove motive for a crime, absence of motive
may be a factor in consideration of the guilt of the accused.6

2. Whether or not the accused can be charged under section 148 and 149 of IPC?
Section 1487: Rioting, armed with deadly weapon.—Whoever is guilty of rioting, being armed
with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause
death, shall be punished with imprisonment of either description for a term which may extend
to three years, or with fine, or with both.

Section 1498: Every member of unlawful assembly guilty of offence committed in prosecution
of common object.—If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every person who, at the time
of the committing of that offence, is a member of the same assembly, is guilty of that offence.

It is humbly submitted that accused should not be charged of offences mentioned under the
above mentioned sections as the accused did not create a riot or had any intention of creating
one. They are just ordinary men who were grazing their cattle in the morning and when they
saw some people trying to steal their cattle, they just gave a reaction and ended up using their
lathis in a reflex to the situation.

5
(1910) 11 CriLJ 721
6
State of Gujarat v. D.P. Pandey, AIR 1971 SC 866
7
Section 148 of The Indian Penal Code, 1870
8
Section 149 of The Indian Penal Code, 1870
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MEMORIAL ON BEHALF OF RESPONDENT
Lathis are not considered deadly weapon or a weapon which could cause death until and unless
used with the intention of doing so. In Dhanai Mahto And Anr. vs State Of Bihar9 the court
held “Learned Counsel contends that the weapons attributed to them cannot answer the
description of deadly weapons. We are persuaded to accept the said contention, particularly, in
view of the absence of other descriptions given to the weapons. Merely, the description of
bamboo sticks or lathis is not enough to make the weapons lethal or deadly. There is no case
that the accused inflicted grievous hurt or attempted to inflict grievous hurt to the inmates.”

In Parma Singh And Ors. vs Emperor10 the court clearly quoted “The second point that we
wish to draw attention to, is that a lathi is not in itself a deadly weapon. It performs precisely
the same function in ordinary life in this country as a walking stick does in other countries; it
is, universally used by every body in the moffussil and it certainly cannot be regarded as in any
way a deadly weapon unless and until it is used on the head or on some vital part of a person.”
It is clear from various judgments of various courts that lathis is not considered to be a deadly
weapon and rest it depends up the circumstances and facts of the case. Clearly in the present case
lathi was not used with intention of causing death or grievous hurt and neither was it planned to be
used like that on a specific body part where it could cause death or grievous hurt.

The accused had no intention of causing hurt or using their lathis in such a manner that they
cause dead or grievous hurt to the petitioners. The accused were only protecting their cattle
from being taken away by a group of unknown people at 5 A.M.

There is also clearly no intension on behalf of the accused to create a riot. They just called for
help and the other people just joined thinking that the cattle of accused persons is being stolen
by a group of unknown people.

3. Whether conducting the raid was justified or not?

The object of conducting such a raid was to impound stray cattle and give them shelter in cattle
compounds. However in the present case the cattle were not stray and nor were the abandoned. The
accused were right around the cattle when they were left out for grazing in the morning. the cattle
could not be said to have been "abandoned" because the accused who are their owners were

9
2003 (4) ALT 64 SC
10
9 Ind Cas 586
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MEMORIAL ON BEHALF OF RESPONDENT
actually present near the animals when they were rounded up. A more serious contention is that
cattle, which the Corporation can impound, must be ownerless or tethered on any street or
public place or land belonging to the Corporation. Admittedly the cattle in question were not
tethered on any such place and, therefore, their seizure was not permissible. "Abandoned"
implies the complete leaving of a thing as a final rejection of one's responsibilities so that the
thing becomes "ownerless",

Law Lexicon and Oxford Dictionary. The meanings relied on by him are as follows:

"A thing banned or denounced as forfeited or lost, whence to abandon, desert, or forsake as lost
and gone."11
"To let go, give up, renounce, leave off ; to cease to hold, use or practise."12

It is clearly held in Kanwar Singh vs Delhi Administration13 that

“It will thus be seen that the meaning to be attached to the word 'abandoned' would depend
upon the context in which it is used. It is the duty of the court in construing a statute to give
effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by
the draftsman, particularly in a penal statute, would defeat the object of the legislature, which is
to suppress a mischief, the court can give it a meaning which will 'advance the remedy and
suppress the mischief'. (see Maxwell on Interpretation of Statutes, 11th edn. pp. 221-224.)”

The cattle not being stray or abandoned by the owners and could not become the subject matter
of the raid and therefore conducting this raid in itself is not justified. The whole intention of the
officials behind the raid was not clear as the cattle were not stray or abandoned.

11
Wharton's Law Lexicon.
12
The Oxford English Dictionary, Vol. 1.
13
1965 AIR 871, 1965 SCR (1) 7
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MEMORIAL ON BEHALF OF RESPONDENT
 Prayer

In the light of the facts of the case, issues raised, arguments advanced and authorities cited, the
Counsel for the Petitioners humbly pray before this Hon’ble Court as per the principles of
natural justice, equity and good conscience, to kindly adjudge and declare:

Acquit Mr. X, Mr. Y, Mr. Z of the charges under section 148, 333/149, and 332/149 of
The Indian Penal Code, 1870.

And pass any other appropriate order as the court may deem fit.
And for this act of kindness, the respondents as in duty bound, shall forever pray.

Respectfully Submitted
Sd/
Counsel for Defence

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