Team Code: A09

CHANAKYA NATIONAL LAW UNIVERSITY CHALLENGERS MOOT COURT COMPETITION

IN THE HON’BLE SUPREME COURT OF INDIA

AT NEW DELHI

SPECIAL LEAVE PETITION NO.****/2014

CASE CONCERNING THE APPEAL AGAINST THE JUDGEMENT OF THE HON’BLE HIGH COURT OF
RAJASTHAN REGARDING THE SANCTION AND COMPENSATION

IN THE MATTERS OF

MISS SALONI KAMRA, MR. JAI DEV ……………………………..…………..… APPELLANTS

V.

PATRIKA, BACHPAN AND ORS ……………………………………...…….…….RESPONDENTS

-MEMORIAL ON BEHALF OF THE APPELLANT-

 II

TABLE OF CONTENTS

INDEX OF AUTHORITIES ............................................................................................................ III

ABBREVIATIONS ........................................................................................................................ V

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

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

ISSUES RAISED ....................................................................................................................... XIII

SUMMARY OF ARGUMENTS .................................................................................................... XIV

ARGUMENTS ADVANCED ............................................................................................................ 1

I. WHETHER THE SPECIAL LEAVE PETITION FILED IS MAINTAINABLE .................................. 1

1.1 THE HON’BLE HIGH COURT ERRED IN DECIDNG THE CASE AS PER PRIMA-FACIE

ALLEGATIONS ...................................................................................................................... 2

1.2 THE COURT SHOULDN’T HAVE AWARDED COMPENSATION AT A VERY PREMATURE

STAGE ................................................................................................................................. 3

1.3 SANCTION FROM THE CENTRAL GOVERNMENT WHILE PROSECUTING A PUBLIC

SERVANT IS MANDATORY ................................................................................................... 4

1.4 WRIT OF DEFAMATION CAN BE FILED AGAINST PRIVATE PERSON ............................ 6

1.5 HON’BLE HIGH COURT ERRED IN DECIDING THE CASE ONLY ON THE BASIS OF STING
OPERATION .......................................................................................................................... 7

PRAYER..................................................................................................................................... 10

MEMORIAL ON BEHALF OF THE APPELLANT

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INDEX OF AUTHORITIES

 LIST OF LEGAL TEXTS:

 INDIAN PENAL CODE, 1860
 CODE OF CRIMINAL PROCEDURE, 1973
 INDIAN EVIDENCE ACT, 1872
 THE CONSTITUTION OF INDIA
 THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2000

 BOOKS REFERRED:

 Basu, Durga Das. Criminal Procedure Code. 4th ed. Vol 1 New Delhi: Lexis
Nexis ButterWorths Wadhwa Nagpur, 2010.
 Basu, Durga Das. Criminal Procedure Code. 4th ed. Vol 2 New Delhi: Lexis
Nexis ButterWorths Wadhwa Nagpur, 2010
 Dhirajlal, Ratanlal. Commentary on the Code of Criminal Procedure Code. 18th
ed.Vol. 1 New Delhi: Wadhwa Nagpur, 2006.
 Dhirajlal, Ratanlal. Commentary on the Code of Criminal Procedure Code. 18th
ed.Vol. 2 New Delhi: Wadhwa Nagpur, 2006.
 Dhirajlal, Ratanlal. The Law of Evidence. 23rd ed. New Delhi: Lexis Nexis
Butterworths Wadhwa Nagpur, 2011.
 Lal, Batuk Commentary on the Code of Criminal Procedure.4th ed.Vol.1
Allahabad: Orient Publishing Company, 2007.
 Lal, Batuk. Commentary on the Code of Criminal Procedure.4th ed.Vol.2
Allahabad: Orient Publishing Company, 2007.
 Misra, S.N. The Code of Criminal Procedure. 14th ed. Allahabad: Central Law
Publication, 2007.
 Monir, M. Law of Evidence. 14th ed.Vol.1, New Delhi: Universal Law Publishing
Co., 2006.
 Monir, M. Law of Evidence. 14th ed.Vol.2, New Delhi: Universal Law Publishing
Co., 2006.
 Phipson. Phipson on Evidence. 17th ed. London: Sweet & Maxwell, 2010.
 Rao, Kesav. Law of Evidence. 18th ed. New Delhi: Lexis Nexis Butterworths

MEMORIAL ON BEHALF OF THE APPELLANT

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Wadhwa Nagpur, 2009.

 Sarkar, Sudipto, and V.R. Manohar. Code of Criminal Procedure. 4th ed. New
Delhi: Wadhwa Nagpur, 2007.
 Sarkar, Sudipto, and V.R. Manohar. Law of Evidence. 16th ed.Vol.1, New Delhi:
Wadhwa Nagpur, 2007.
 Sarkar, Sudipto, and V.R. Manohar. Law of Evidence. 16th ed.Vol.2, New Delhi:
Wadhwa Nagpur, 2007.
 Sen, D.N. The Code of Criminal Procedure.9th ed. Vol 1 Allahabad: Premier
Publisher Co., 2006.
 Sen, D.N. The Code of Criminal Procedure.9th ed. Vol 1 Allahabad: Premier
Publisher Co., 2006.
 Thakker, C. K. Takwani Criminal Procedure. 3rd ed. New Delhi: LexisNexis
Butterworths Wadhwa Nagpur, 2011.

 CASES CITED:

 State of Madras V.Vaidyamatha Iyer,(1958) CriLJ 232

 Zandu Pharmaceutical Works ltd. V. Mohd. Sharaful Haque, (2005) CriLJ 92
 A.K. Singh & Ors V. Uttarakhand Jan Morcha, (1999) CriLJ 3500
 B. Saha & Ors V. M S. Kocher, (1979) 4 SCC 177
 Matajog Dobey V. H. C. Bhari, (1955) 2 SCR 925
 Amrik Singh V. State of PEPSU, (1955) 1 SCR 1302
 K. Krishnamacharyulu & Ors V. Venkateswara Hindu College of Engineering &
Anrs, (1997) 3 SCC 571
 Court on its Own Motion V. State, 146 (2008) DLT 429

MEMORIAL ON BEHALF OF THE APPELLANT

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ABBREVIATIONS

& And

All Allahabad High Court

A.C. Appeal Cases

AIR All India Reporter

Anr. Another

Art. Article

Co. Company

Cri.L.J. Criminal Law General

Cr.P.C. The Code Of Criminal Procedure, 1973

Del. Delhi High Court

Ed. Edition

Eg. Example

H.L. House of Lords

Hon’ble Honorable

i.e. That is

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I.P.C Indian Penal Code

J. Justice

Ld. Learned

Ltd. Limited

SLP Special LeavePetition

Ori. Orissa High Court

Ors. Others

Pg. Pages

r/w Read with

SC Supreme Court of India

SCC Supreme Court Cases

SCR Supreme Court Report

Sec. Section

U.O.I. Union Of India

U/s Under Section

v. Versus

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Vol. Volume

W.L.R. Weekly Law Report

W.P. Writ Petition

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STATEMENT OF JURISDICTION

The counsel on behalf of the Appellant have endorsed there pleadings before the Hon’ble
Supreme Court of India under Sec 136 of the Constitution of India.

MEMORIAL ON BEHALF OF THE APPELLANT

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STATEMENT OF FACTS

1. Noor Mohammad (hereinafter NM) aged 13 years, student of Little Flowers School,
Jaipur in the State of Rajasthan. On 25/04/2014, NM went to a pan stall near his
school and saw his senior of eleventh standard Rajveer Singh (hereinafter RS) aged
15 years and 11 months, making gestures to come behind the shop. RS then took out a
cigarette and started smoking and offered the same to NM. He tried the joint and liked
it. Out of curiosity, NM asked RS that from where he got it and RS gave him an
address and asked him to reach that place at 5 pm sharp and warned him not to
disclose the address to anyone.

2. NM reached that spot and found that it was a deserted new construction site, a bit far
from the city and there was hardly anyone around. NM then went to the roof top of
the site as directed by RS and after sometime RS arrived there with four boys of age-
group between 14-19 years around.

3. They soon became friends with NM and gave him some special 'Chocolate' with a
Joint of Marijuana. Two boys from that group thereafter started 'touching' NM on
different parts of his body. NM by that time was so much intoxicated that he failed to
understand the nature of that act and after some time NM lost his senses and slept.

4. At around 2:30 pm next day, NM came back to his senses and found himself in a
heavy headache and nearly unable to open his eyes. When he finally stood up, he
found himself naked in a corner of the same building but on different floor. He could
not remember anything after he started eating the chocolate given by RS. He then
covered himself with a torn shawl which he found nearby with a printed message to
check the inbox of his e-mail. When he did so, he found an e-mail with an attached
video and about a dozen photographs. In the video, he saw himself being molested at
the very first by all those boys and thereafter being sodomized by the entire group one
by one. Thereafter, he received a call from RS who warned him of dire consequences
for disclosing last day's act to anyone. He also told him that he will upload the video
on U-2, a globally recognized free site for uploading Movie and Songs and also on
Face-Life another trans-national social website. Thereafter, NM reached the nearby

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highway, got an auto-rickshaw for himself and reached home by 4 pm. Everyone in
his family was waiting for him. At once he didn't tell to his parents about the incident
but after their continuous questioning and mental assurance, told them the entire
unfortunate incident. NM's parents told him not to disclose this to the Police or
anyone concerned as it was a matter of the reputation of the entire family concerned.

5. On 28/04/2014, RS called NM and demanded Rupees 10,000 within 24 hours. He also

told NM that non fulfilment of the demand would lead to photo and video upload. NM
got very scared and didn’t tell anyobody about the call. Thinking of his family’s
reputation, he made a plan to steal his mother’s gold earrings and pay the ransom to
RS. This continued for some time till NM's father realised that things were being
stolen from the house.NM’s father went to ‘BACHPAN’, a Non Governmental
Organisation (hereinafter NGO) to sought their help when he discovered NM
delivering money to RS. The NGO after taking NM into confidence,got a First
Information Report (hereinafter F.I.R.) registered on 05/05/2014 in the nearby police
station (copyin that to the Cyber Cell of the Police). On preliminary investigtion
during raids, the Police found that not only NM but atleast two dozen more
male/female teenagers were victims in the same kind of act.Moreover, the alleged
accused were also found to be teenagers involved in the gruesome act for easy money.
It was also found post interrogation that the accused not only abused and blackmailed
their victims but also supplied their vedio files or photographs to a person, Jaidev,
(hereinafter JD) a citizen of Mumbai, where these videos etc. were actually uploaded
on free porn sites avaiable for downloading in public domain. The investigation
reports also laid down that the main Kingpin in the aforementioned affair was Ms.
Saloni Kamra, (hereinafter SK) the current Women and Child Development Minister
of India and a sitting Member of Parliament. It was also found out that JD was a near
relative of SK and the latter happens to be directly in touch with JD. To nab JD
(through proper channels), the Police sought the help of Police Commissioner and got
the information through Home Ministry.

6. The NGO after somehow becoming aware of this investigation report and other
concerned information(s) passed on the information to a national newspaper
PATRIKA which in turn conducted a “Sting Operation” (hereinafter OP) on SK on

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10/05/2014 in very complex circumstances and compiled its data in three various
Compact Discs (C.D.s).

Disc 1: Contained SK taking token money for a bribe from a reputed multi-billionaire
private tycoon active in many sectors in national and trans-national level and getting a
promise from that businessman for depositing the rest of the remaining amount in
"Swiss Bank" as directed by SK & JD.

Disc 2: Contained SK observing the transportation of few children from orphan

homes being transported to a third world country for prostitution etc.

Disc 3: Included contents of SK's 'private life' involved in natural/unnatural sexual

intercourse.

The channel thereafter broadcasted all the three discs on 12/05/2014. Following the
broadcast, almost all the News Channels in the Country aired the same news
numerous times and a huge hue and cry was raised by different sections of the society.

PUBLIC INTEREST LITIGATION FILED

7. On the basis of the telecasted NEWS by PATRIKA, the NGO went ahead and filed a
“Public Interest Litigation” (hereinafter P.I.L.) in the High Court of Rajasthan at
Jaipur for the same on 15/05/2014 and demanded SK's immediate resignation and an
inquiry by the Central Bureau of Investigation (hereinafter CBI) with a request that
the Hon'ble Court itself shall monitor the entire investigation as it was a very high
profile case. The Hon'ble High Court admitted PIL on 20/05/2014 and issued show
cause notices for the same to all the concerned parties.
8. SK, on the other hand, filed a case of Defamation against PATRIKA and the NGO on
25/05/2014 alleging her Right to Privacy enshrined by the Constitution of India and
pleaded that she is not guilty and that PATRIKA is in no way authorized to put on
Television, the news contents like the current one. NM, PATRIKA and some others
adduced evidence and provided material. The parties were provided with the
investigation report. SK, JD and RS denied the allegations and claimed the action by

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the opposite party as private and malafide. They claimed damages for defamation. All
the concerned parties argued through their counsel and during hearings a large
number of persons attended the hearings in the Chief Justice’s Court.

JUDGMENT OF HIGH COURT

9. The matter being of public interest and national importance, the Hon’ble High Court
after hearing the concerned parties, perused and examined the record. Number of
hearings day to day were given to both sides and to some interveners. The Hon’ble
Court held on 30/05/2014 as under:-
(i) There are prima-facie allegations against SK, JD and RS. Further investigation
to be done by CBI and if sufficient material to launch prosecution in the
appropriate court and in accordance with law. No sanction need be taken for
SK from Central Government.
(ii) Cost-cum-compensation of Rs.1 lac was awarded in favour of NM to be paid
by SK and JD equally;
(iii) RS being juvenile be dealt with by Juvenile Court in accordance with law;
(iv) Appreciated the petitioners for taking up the sensational social issue at the
national level;
(v) Writ for defamation dismissed. May file suit.

SPECIAL LEAVE PETITION FILED

10. Being agrieved by the aforesaid orders, the appellants have filed a Special Leave
Petition before the Hon’ble Supreme Court of India.

MEMORIAL ON BEHALF OF THE APPELLANT

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ISSUES RAISED

The following questions have been raised before this Hon’ble Tribunal to consider:

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

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SUMMARY OF ARGUMENTS

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

Firstly, the decision given by the Hon’ble High court was not proper and appropriate as the
hon’ble high court failed to give any proper and special reasons for the order and moreover
the conclusions of the high court are manifestly perverse and unsupportable from the
evidence on record. Therefore, the Hon’ble High court erred in misleading the evidence and
the records.

Secondly, the Hon’ble court erred while deciding on the basis of complaint which was Prima-
Facie does not constitute any offence or make out the case alleged against the accused.
Therefore, Complaint may be quashed when a case is decided only on the basis of Prima-
Facie.

Thirdly, the Judgment of the Court becomes unsustainable when the Court awards
compensation at a very premature stage. It is required in the eyes of law that the Court shall
not arrive at a decision without proper scrutiny of matter.

Fourthly, when any offence has been committed in discharge of the official duty the
Legislature requires that before a Court takes cognigence of such offence, Sanction should be
accorded. However, in the present case the Hon’ble courts’ direction to government for no
sanction cast perverse shadow on the rule of law.

Fifthly, writ is not only issued against State but also against a Private Person. In rare cases a
writ can also be filed under article 226 of the Constitution of India if one’s fundamental rights
are violated. Broadcasting or Publication must not thwart the fundamental right of privacy
enshrined under article 21 on the Constitution of India.

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ARGUMENTS ADVANCED

I. WHETHER THE SPECIAL LEAVE PETITION FILED IS MAINTAINABLE.

It is humbly submitted before this Hon’ble Court that the Special Leave Petition filed before
this court is maintainable. It is a well settled law that when wrong application of a principle
has been made or important points affecting valuation have been overlooked or misapplied by
the High Court or Reference Court, the Supreme Court would, under Article 1361 correct the
same.

In State of Madras v. Vaidyanatha Iyer2 Court held that in Article 1363 the use of the
words "Supreme Court may in its discretion grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India" shows that in criminal matters distinction
can be made between a judgment of conviction or acquittal. This Court further observed
that this Court will not readily interfere with the findings of fact given by the High Court
and the court of first instance but if the High Court acts perversely or otherwise
improperly, interference may be made.

In that decision, this Court had set aside a judgment of acquittal on facts as salient features
of the case were not properly appreciated or given due weight to by the High Court and its
approach to the question whether a sum of Rs. 800/- was an illegal gratification or a loan
was such that the High Court had acted perversely or otherwise improperly. From this
decision it is, therefore, clear that this Court in the exercise of its power under Article 136
of the Constitution of India is entitled to interfere with findings of fact that if the High
Court acts perversely or otherwise improperly that is to say the judgment of the High Court
was liable to be set aside when certain salient features of the case were not properly
appreciated or given due weight by.

1
Article 136 of the Constitution of India
2
(1958)CriLJ 232
3
Article 136 of the Constitution of India

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Here, in this case the conclusions of the Hon’ble High Court are manifestly perverse and
unsupportable from the evidence on record.4

1.1 The Hon’ble High Court erred in deciding the case as per prima-facie
allegations.

It is humbly submitted that the Hon’ble High Court of Rajasthan came to the conclusion that
there are prima-facie allegations against SK and JD and if any sufficient material found then
to launch prosecution in the appropriate court and in accordance with the Law5. The view
taken by the Hon’ble High court was not proper because in Zandu Phamaceutical Works
Ltd. V. Mohd. Sharaful Haque6 the Hon’ble Supreme Court gave certain Principles:

(i) A complaint can be quashed where the allegations made in the complaint,
even if they are taken at their face value and accepted in their entirety,
prima facie do not constitute any offence or make out the case alleged
against the accused. For this purpose, the complaint has to be examined as
a whole, but without examining the merits of the allegations. Neither a
detailed inquiry nor a meticulous analysis of the material nor an assessment
of the reliability or genuineness of the allegations in the complaint is
warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process
of the court, as when the criminal proceeding is found to have been initiated
with maladies/malice for wreaking vengeance or to cause harm, or where
the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a
legitimate prosecution. The power should be used sparingly and with
abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of
the offence alleged. If the necessary factual foundation is laid in the
complaint, merely on the ground that a few ingredients have not been stated
in detail, the proceedings should not be quashed. Quashing of the complaint
is warranted only where the complaint is so bereft of even the basic facts
which are absolutely necessary for making out the offence.

4
Moot Problem pg. 7 ¶9
5
Moot Problem pg. 7 ¶9
6
2005 CriLJ 92

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(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a
criminal offence; or (c) a civil wrong as also a criminal offence. A
commercial transaction or a contractual dispute, apart from furnishing a
cause of action for seeking remedy in civil law, may also involve a criminal
offence. As the nature and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint relates to a
commercial transaction or breach of contract, for which a civil remedy is
available or has been availed, is not by itself a ground to quash the criminal
proceedings. The test is whether the allegations in the complaint disclose a
criminal offence or not.

Similarly the principles relating to exercise of jurisdiction under Section 4827 to quash
complaints and criminal proceedings have been stated and reiterated by this Court in several
decisions:

“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.”8

Before issuing process, a criminal court has to exercise a great deal of caution. For the
accused it is a serious matter. This Court has laid certain principles on the basis of which
High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under
this Section has to be exercised to prevent abuse of the process of any court or otherwise to
secure the ends of justice.

1.2 The Court shouldn’t have awarded compensation at a very Premature Stage.

It is humbly submitted before this Hon’ble Court that since the accused have not committed
the offence as there are allegations against them9 but they are not proved guilty, therefore the
judgement of the High Court is unsustainable and it must set aside the Compensation of Rs. 1
lac to be paid by all the accused. In A.K. Singh & Ors V. Uttarakhand Jan Morcha &
Ors10 The High Court did more than that. Without trial, and even without considering the
evidence which may be adduced in the cases, learned Judges ordered the Government to pay

7
The Code of Criminal Procedure, 1973
8
Sec. 482 of Criminal Procedural Code, 1973
9
Moot Problem pg. 7 ¶9
10
1999 CriLJ 3500

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Rs. 10 lakhs each to the dependants of all the persons who died in police firing. Rs. 10 lakhs
each were given to the victims of molestation, Rs. Fifty thousand each for 398 persons who
were detained by the police.
After revising the judgment of the High Court, Hon’ble Supreme Court with three judge
bench held that Court shall not arrive at decision without proper scrutiny of matter11 and it
has no hesitation to hold that the judgment of the High Court is unsustainable and has to be
set aside. The appeal is accordingly allowed and the impugned judgment dated 9.2.1996 is set
aside.

When the directions of the High Court are unsustainable, nothing further survives because the
remaining directions in the judgment are only ancillary or incidental to those main directions.
When the main pillars are to be removed, the edifice cannot be allowed to remain and the
matter goes to the Supreme Court.12

1.3 Sanction from the Central Government while prosecuting a public servant is
mandatory.

It is humbly submitted before this Hon’ble Court that the object of Sec. 197 of the Code of
Criminal Procedure, 1973 is to save public servants from frivolous prosecution. When the
offence has been committed in discharge of the official duty the Legislature requires that
before a Court takes cognizance of such offence, Sanction should be accorded.

“When any person who is or was a Judge or Magistrate or a Public Servant not removable
from his office save by or with the Sanction of the Government is accused of any offence
alleged to have been committed by him while acting or purporting to act in the discharge of
his official duty, no Court shall take cognizance of such offence”13 In this case, the decision
of the High Court, regarding “Sanction” violated Sec. 197(1) of the Code of Criminal
Procedure, when the Hon’ble High Court decided that no sanction needs to be taken for SK
from Central Government.14 In a similar case B. Saha & Ors. Vs. M.S. Kochar15 the Court
held "In sum, the sine qua non16 for the applicability of this section is that the offence

11
Ratio Decidendi in A.K. Singh and Ors V. Uttarakhand Jan Morcha
12
Sec. 379 of Cr.P.C. Appeal against conviction by High Court
13
Sec. 197(1) of Criminal Procedural Code
14
Moot Problem pg. 7 ¶9
15
(1979) 4 SCC 177
16
An essential condition

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charged, be it one of commission or omission, must be one which has been committed by the
Public Servant either in his official capacity or under colour of the office held by him."

In Matajog Dobey V. H.C. Bhari17 a Constitution Bench of this Court had occasion to
consider the scope of Section 197 of the Code of Criminal Procedure after holding that
Section 197 of the Code of Criminal Procedure was not violative of the fundamental rights
conferred on a citizen under Article 14 of the Constitution of India, this Court observed:

"Public servants have to be protected from harassment in the discharge of official duties
while ordinary citizens not so engaged, do not require this safeguard. It was argued that
Section 197, Criminal Procedure Code vested an absolutely arbitrary power in the
government to grant or withhold Sanction at their sweet will and pleasure, and the legislature
did not lay down or even indicate any guiding principles to control the exercise of the
discretion. There is no question of any discrimination between one person and another in the
matter of taking proceedings against a public servant for an act done or purporting to be done
by the public servant in the discharge of his duties. No one can take such proceedings without
such Sanction."

In Amrik Singh V. State of PEPSU18 the Supreme Court after referring to the decisions of
the Federal Court and the Privy Council referred to earlier and some other decisions summed
up the position thus:

"The result of the authorities may thus be summed up: It is not every offence committed by a
public servant that requires sanction for prosecution under section 197(1) of the Code of
Criminal Procedure, nor even every act done by him while he is actually engaged in the
performance of his official duties; but if the act complained of is directly concerned with his
official duties so that, if questioned, it could be claimed to have been done by virtue of the
office, then Sanction would be necessary; and that would be so, irrespective of whether it
was, in fact, a proper discharge of his duties, because that would really be a matter of defence
on the merits, which would have to be investigated at the trial, and could not arise at the stage
of the grant of Sanction, which must precede the institution of the prosecution."

17
(1955) 2 SCR 925
18
(1955) 1 SCR 1302

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In this case the act complained of is directly concerned with SK’s official duties so that, if
questioned, it could be claimed to have been done by virtue of the office19, then sanction
would be necessary.

It is quality of the act that is important and if it falls within the scope and range of his official
duties the protection contemplated by Section 197 of the Criminal Procedure Code will be
attracted. It is only when it is either within the scope of the official duty or in excess of it that
the protection is claimable.

1.4 Writ of Defamation can be filed against Private Person.

It is humbly submitted before this Hon’ble Court that Writ is not only filed against the State
but also against a Private Person.

Primarily the powers under article 226 have to be exercised against Public Bodies and rarely
against Private Persons except in the area of human rights which is acquiring horizontal
application.20

In a similar case of K. Krishnamacharyulu and Ors V. Sri Venkateswara Hindu

College of Engineering and Anr21 the Hon’ble Supreme Court propounded in the present
case that the private institutions cater to the needs of the educational opportunities. The
teacher duly appointed to a post in the private institution also is entitled to seek
enforcement of the orders issued by the Government. The question is as to which forum
one should approach. The High Court has held that the remedy is available under the
Industrial Disputes Act. When an element of public interest is created and the institution is
catering to that element, the teacher, the arm of the institution is also entitled to avail of the
remedy provided under Article 226.22 In this case a Fundamental Right is available against
Patrika (private person). Article 32 of the Constitution of India can be availed of to enforce
such right and even the remedy of compensation may be granted against Private Person.

19
Moot Problem pg. 5 ¶5
20
Human Rights and the private sphere, 180 (2007)
21
(1997) 3 SCC 571
22
Arrticle 226 of the Constitution of India

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1.5 Hon’ble High Court erred in deciding the case only on the basis of Sting
Operation.

It is humbly submitted before this Hon’ble Court that in Court on its Own Motion V.
State23, certain proposed guidelines were placed before Delhi High Court by the learned
amices. The said proposed guidelines are as follows:

1. A channel proposing to telecast a sting operation shall obtain a certificate from the
person who recorded or produced the same certifying that the operation is genuine
to his knowledge.
2. There must be concurrent record in writing of the various stages of the sting
operation.
3. Permission for telecasting a sting operation can be obtained from a committee
appointed by the Ministry of Information and Broadcasting. The said committee
will be headed by a retired High Court Judge to be appointed by the Government in
consultation with the High Court & two members, one of which should be a person
not below the rank of Additional Secretary and the second one being the Additional
Commissioner of Police. Permission to telecast sting operation will be granted by
the committee after satisfying itself that it is in public interest to telecast the same.
This safeguard is necessary since those who mount a sting operation themselves
commit the offences of impersonation, criminal trespass under false pretence and
making a person commits an offence.
4. While the transcript of the recordings may be edited, the films and tapes themselves
should not be edited. Both edited and unedited tapes are produced before the
committee.
5. Sting operation shown on TV or published in print media should be scheduled with
an awareness of the likely audience/reader in mind. Great care and sensitivity
should be exercised to avoid shocking or offending the audience.
6. All television channels must ensure compliance with the Certification Rules
prescribed under the Cable Television Network (Regulation) Act 1995 and the
Rules made there under.
7. The Chief Editor of the channel shall be made responsible for self regulation and
ensure that the programmes are consistent with the Rules and comply with all other

23
146 (2008) DLT 429

MEMORIAL ON BEHALF OF THE APPELLANT

 8

legal and administrative requirements under various statutes in respect of content

broadcast on the channel.
8. The subject matter of reports or current events shall not:
(a) Deliberately present as true any unverified or inaccurate facts so as to
avoid trial by media since a "man is innocent till proven guilty by law";
(b) Present facts and views in such a manner as is likely to mislead the
public about their factual inaccuracy or veracity;
(c) Mislead the public by mixing facts and fiction in such a manner that the
public are unlikely to be able to distinguish between the two;
(d) Present a distorted picture of reality by over-emphasizing or under-
playing certain aspects that may trivialize or sensationalize the content;
(e) Make public any activities or material relating to an individual's personal
or private affairs or which invades an individual's privacy unless there is
an identifiable large public interest;
(f) Create public panic or unnecessary alarm which is likely to encourage or
incite the public to crime or lead to disorder or be offensive to public or
religious feeling.
9. Broadcasters/Media shall observe general community standards of decency and
civility in news content, taking particular care to protect the interest and sensitivities
of children and general family viewing.
10. News should be reported with due accuracy. Accuracy requires the verification (to
the fullest extent possible) and presentation of all facts that are necessary to
understand a particular event or issue.
11. Infringement of privacy in a news based/related programme is a sensitive issue.
Therefore, greater degree of responsibility should be exercised by the channels
while telecasting any such programmes, as may be breaching privacy of individuals.
12. Channels must not use material relating to persons' personal or private affairs or
which invades an individual's privacy unless there is identifiable larger public
interest reason for the material to be broadcast or published.

Whereas, in the instant case almost all the news channels aired the same news numerous
times this was broadcasted by Patrika. Although, in the above cited judgement and
guidelines issued by the Hon’ble Delhi High Court, it was taken a view that certificate must
be taken from the person who recorded the story. Moreover permission by Ministry of

MEMORIAL ON BEHALF OF THE APPELLANT

 9

Information and Broadcasting is required for telecasting a Sting Operation, which was not
granted to the news channels in the present case.

However, News Channels used materials relating to SK’s personal and private affairs
which also invaded SK’s privacy.24 Broadcasting or publication of materials contained in
Disc 3, not only thwarted the fundamental right of privacy enshrined under Article 21 of
the Constitution of India, but also the principle of “Larger Public Interest” which should
have been taken into consideration by the Hon’ble High Court.

Henceforth, in the light of above judgements and the guidelines issued by the Hon’ble High
Court, it was a primary duty of the media and news channels to perform a herculean task of
responsibility which was subsequently bestowed upon the channel “Patrika”, and was not
performed in the present case.

It is clearly evident from the fact that when such responsibility is not shed by the “Patrika”
news channel, it attracts the non application of mind and derogates the principles like;
privacy of individuals which is a foremost fundamental right of any individual. It is
pertinent to note that the Hon’ble High Court did not go into the veracity of this
broadcasting and publication which is a result of non application of mind. Therefore, it is of
great value to submit that Hon’ble high court is setting a bad precedent by overlooking
such perverse act of broadcasting and publishing which holds no value in the eyes of Law.

24
Moot Problem pg. 6 ¶6

MEMORIAL ON BEHALF OF THE APPELLANT

 10

PRAYER

WHEREOF, in the lights of issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may graciously be pleased to:

 Reliance of High Court on this Sting Operation was bad in Law and should be
set aside.
 The order of Cost cum Compensation at a “Premature Stage” should be
quashed.
 Sanction from the Central Government should be taken for Prosecution of SK
And pass any such order as it may deem fit in the interest of justice, equity and good
conscience. And counsel for Appellant shall ever pray.

PLACE: New Delhi ---------------------------------------------

DATE: Respected fully Submitted
s Counsel on behalf of Appellant

MEMORIAL ON BEHALF OF THE APPELLANT