Memorial For Appeallant

2ND NATIONAL MOOT COURT COMPETITION-2020 KALINGA UNIVERSITY
2ND NATIONAL MOOT COURT COMPETITION- 2020 KALINGA UNIVERSITY
TEAM CODE: KU2NM03
BEFORE
THE HON’BLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION NO: /2019
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
IN THE MATTER ARISING OUT OF THE JUDGMENT GIVEN BY
HON’BLE CHHATTISGARH HIGH COURT
IN THE MATTER OF
1. Ms. SHRUTI KUMARI
2. Mr. JASWANT DUTTA
3. Mr. RUDRA SHARMA -------------------------------------------------------- APPELLANT
VERSUS
1. AAWAZ
2. PRAYAS
3. STATE OF CHHATTISGARH --------------------------------------------- RESPONDENT
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE & HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIA
1
MEMORIAL FOR APPEALLANT
TABLE OF CONTENTS
PAGE NO:
TITTLE
4
LIST OF ABBREVATIONS
INDEX OF AUTHORITIES
5
 STATUTES REFFERED
5
 WEB SOURCES
6-7
 CASES REFFERED
8
STATEENT OF JURISDICTION
9-12
STATEMENT OF FACTS
13-14
SUMMARY OF ARGUMENTS
ARGUMENTS IN DETAIL
ISSUE 1: 15-18
Whether prior sanction of central government is needed to investigate
Ms. Shruti Kumari, who is currently a Minister(Women and Child
Development Minister) and sitting Member of Parliament:
1.1 Whether court can direct CBI investigation on the basis of prima facie
allegation
1.2 Whether prior sanction of central government necessary to initiate CBI
investigation against Ms.Shruti Kumari.
2
ISSUE 2: 18-20
Whether cost-cum-compensation of Rs.1Lac awarded in favour of Nishra
Mishra to be paid by Shruti Kumari and Jaswant Dutta equally on the basis
of prima facia allegations is justifiable or not.
ISSUE 3: 20-23
Whether the Rudra Sharma should be dealt with juvenile justice court or a
criminal proceeding under the provisions of Indian Penal Code
3.1 Whether the juvenile is to be classified on the basis of grievousness
of the crime committed or what age he has attained
3.2 Whether the accused was aware about the nature of the act done by
him
ISSUE 4: 23-26
Whether there is a case of defamation, caused by the act of AAWAZ &
PRAYAS against Ms.Shruti Kumari, who is currently Women and Child
Development Minister.
ISSUE V: 27-28
Whether this sting operation conducted by AAWAZ is violative of article
21 of Indian Constitution.
Prayer 29
3
LIST OF ABBREVIATIONS
AC Appeal Cases
AIR All India Reporter
Anr. Another
A.P. Andhra Pradesh
BOMLR Bombay Law Reporter
CalLT Calcutta Law Times
CBI Central Bureau of Investigation
Cri.LJ Criminal Law Journal
Crl Criminal
DLT Delhi Law Times
Hon’ble Honourable
ILR Indian Law Reports
JT Judgement Today
MANU Manupatra
M.P. Madhya Pradesh
NCT National Capital Territory
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec Section
T.N. Tamil Nadu
UKHL House of Lords, United Kingdom
U.P Uttar Pradesh
US United States Reports
V./Vs. Versus
WP.No. Writ Petition Number
4
STATUTES REFERRED
 CONSTITUTION OF INDIA, 1950

 THE JUVENILE JUSTICE( Pare and Protection of Children) ACT, 2000
 INDIAN PENAL CODE, 1860
 CRIMINAL PROCEDURE CODE ,1973
 THE PREVENTION OF CORRUPTION ACT, 1988
LEGAL DATABASE
 MANUPATRA
 SCC ONLINE
 INDIAN KANOON
5
TABLE OF CASES
Sl. CASE LAW CITATION
No
1. Commom cause A registered society v. Union Of 2006 (7) SCC 304
India
2. Secretary Minor irrigation and Rural Engg services 2002 (5) SCC 521
UP and others v Sahngoo Ram Arya and Anr
3. Maksud Sayed v. State of Gujarat and Others 2008 (5) 668
4. Mohammad Khalid vs State of West Bengal 2002 (7) SCC 334
5. Subramanium Swamy v. Manmohan Singh and 2012 (3) SCC 64
another
6. R R chari v State of U.P. AIR 1951 SC 207
7. S.N. Bose v. State of Bihar AIR 1968 SC 1292
8. Mohd. Iqbal Ahmed v. State of A.P. 1979 (2) SCR 1007
9. Rookes v Barnard 1964] AC 1129
10. Rajender Singh Pathania & Ors vs State of NCT of CRIMINAL APPEAL NO.
Delhi & Ors 1582 OF 2011
11. Thompson v. Oklahoma 487 U.S. 815 (1988)

12. Ashwini Kumar Saxena vs State of M. P. CRIMINAL APPEAL NO.
1403 OF 2012
13. R. Rajagopal vs. State of Tamil Nadu 1994 SCC (6) 632
14. People’s Union for Civil Liberties v. Union AIR 1997 SC 568
of India
15. Court On Its Own Motion V State CRL.REF. 1/2017
16. R.K. Anand v. Registrar, Delhi High Court CRIMINAL APPEAL NO.
1393 OF 2008
17. Sidhartha Vashisht @ Manu Sharma vs. CRIMINAL APPEAL NO.
State (NCT of Delhi 179 OF 2007
18. Ankush Shivaji Gaikwad vs.State of (2013) 6 SCC 770
Maharashtra
19. Maneka Gandhi v Union of India 1978 AIR 597
6
20. Smt. Kiran Bedi v Committee of Inquiry AIR 1989 SC 714

21. State of Maharastra v Public concern of 1964 AIR 703
Governance Trust
22. State of Bihar v Lal Krishna Advani AIR 2003 SC 3357
23. R.P. Ltd v Proprietors of Indian Express 1989 AIR 190
News paper Bombay private Ltd
24. PUCL v Union of India AIR 1997 SC 568
7
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 136 of
the Constitution of India which reads as follows:
136. Special leave to appeal by the Supreme Court:
(1) Notwithstanding anything in this Chapter, the 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
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces
8
SYNOPSIS OF FACTS
1. Nisha Mishra (hereinafter NM), aged 15 years was on 13/07/2019 crowned the new
student "Ms. Fresher" in the Eleventh Grade of St. Peter’s High School, Raipur in the State of
Chhattisgarh. Rudra Sharma (hereinafter RS) aged 15 years and 11 months, is NM’s senior
of twelfth Standard. On 15/08/2019 he offered the cigarette to NM and told him, it is not a
normal Cigarette and if you take only two puffs (shots), you will reach in a different world.
NM was eager to "Try" that joint and as soon as he took that in, after a few moments he said
that he was feeling too good and tried to enquire from RS that what is it actually and from
where he got it. RS in reply gave him an address and asked NM to reach that place at 5 pm
sharp and warned him not to disclose that address to anyone.
2. NM reached the place, it was a deserted new construction site. RS also promised that he
will bring 'A New Thing' for NM to 'Try'. NM went ahead and after sometime RS arrived
there with 4 boys of age group between 14-19 years around. They became friends with
NM and gave her some special 'Chocolate' with a Joint of Marijuana. Two boys from that
group thereafter started 'touching' NM on different parts of her body. NM by that time was so
much inebriated that she failed to understand the nature of that act and after some time NM
lost her senses and slept.
3. On 16/08/2019 around 2:30 pm NM came back to her senses. After making some efforts
she finally stood up on her legs and found herself naked and in a corner of the same building
but on different floor. She then covered herself and found her mobile phone near the shawl
with a printed message to "check the inbox of your e-mail". There was a new e-mail with
an attached video and near about a dozen photographs. She downloaded that Video file from
her inbox and clicked on "Play Video". She saw herself being molested by all those boys
and thereafter being raped by the entire group one by one. Thereafter, she received a call
from RS who warned her of dire consequences for disclosing last day's act to anyone. She
also told him that he will upload the video on U-2 and Face-Life. She then reached home and
told her parents about the entire unfortunate incident. NM's parents assured her not to
9
disclose this to the Police or anyone concerned as it was a matter of the reputation of the
entire family concerned.
4. On 18/08/2019 RS called NM and demanded Rupees 10,000 within 24 hours together with
a rider that non fulfilment of which will lead to Video & Photo Upload. NM being a teenager
got very scared from that call but didn't told that to anyone. Thinking that, she made a plan to
steal her mother's jewellery and pay the ransom. This continued for some time till NM's
father realised that things are being stolen from the house. He followed NM and saw her
delivering money to RS. NM's father thereafter went to "PRAYAS ", a Non-
Governmental Organization (hereinafter NGO) and sought their help. The NGO took
him to the nearby police-station, got a First Information Report (F.I.R.) registered (on
25/08/2019) (copying that to the Cyber Cell of the Police).
5. The police started investigation and found that not only NM but at least two dozen more
male/female teenagers were victims in the same kind of act. The police also found post
interrogation that the accused not only abused and blackmailed their victims but also supplied
their Video files / Photographs to a person Jaswant Dutta (hereinafter JD), a citizen of
Delhi where these Video's etc. were actually uploaded on free porn sites available for
downloading in public domain.
6. Ms. Shruti Kumari, the current Women & Child Development Minister of India and a
sitting Member of Parliament (hereinafter SK) was a near relative of JD. The police, for
nabbing JD (through proper channels) sought the help of Police Commissioner and got the
information through Home Ministry.
7. The NGO somehow became aware of this investigation report and passed on the
information to a national newspaper AAWAZ who in turn conducted a “Sting Operation”
(hereinafter OP) on SK on 30/08/2019 in very knotty 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 and
getting a promise that businessman for depositing the rest of the remaining amount in "Swiss
Bank" as directed by SK & JD.
10
Disc 2
Contained SK observing the transportation of few children from orphan homes being
transported to a third world country for prostitution etc. and
Disc 3
Included contents of SK's 'private life' involved in natural/unnatural sexual intercourse.
8. The channel thereafter broadcasted all the three discs on 02/09/2019. 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.
9. On the basis of the telecasted NEWS by AAWAZ, the NGO went ahead and filed a
“Public Interest Litigation” (hereinafter P.I.L.) in the High Court of Chattisgarh at
Bilaspur for the same on 05/09/2019 and demanded SK's immediate resignation and an
inquiry by the Central Bureau of Investigation with a request that the Hon'ble Court itself
shall monitor the entire investigation as it was a very high profile case.
10. The Hon'ble High Court admitted PIL on 10/09/2019 and issued show cause notices for
the same to all the concerned parties.
11. On the other hand, SK also filed a case of Defamation against AAWAZ& NGO on
15/09/2019 alleging her Right to Privacy enshrined by the Constitution and pleading
that she is not guilty and that AAWAZ is not authorized to put on Television the news
contents like the current one. NM, AAWAZ and some others adduced evidence, provided
material. Investigation report was called and provided to the parties.
12. SK, JD, And RS,denied the allegations and claimed the action by the opposite parties as
private and malafide. They claimed damages for defamation.
JUDGEMENT OF HIGH COURT

The Hon’ble Court held on 20.09.2019 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.
11
(ii) Cost-cum-compensation of Rs.1.00 lac was awarded in favour of NM to be paid by SK

and JD equally;
(iii) RS being juvenile be dealt with 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.
The present appeal lies against the judgement of Hon’ble High Court of Chhattisgarh.
12
SUMMARY OF ARGUMENTS
ISSUE I
Whether prier sanction of central government is needed to investigate Ms. Shruti

Kumari, who is currently the Women and Child Development Minster of India and a
siting Member of Parliament?
The issue is whether the investigation on central minister be done without the prier sanction
of the authority having power to dismiss the public servant. The rule under English Law that
state is the party that is affected by the abuse of power by public servant and hence he has to
be consulted before taking action against any public servant.
ISSUE II
Whether cost-com-compensation of Rs. 1 Lac awarded in favour of Nisha Mishra to be
paid by Shruti Kumari and Jaswant Dutt on the basis of trima facia allegations is
justifiable or not.
Is the cost cum compensation awarded in favour of NM justifiable? Whether cost-cum
compensation can be awarded just on the grounds of allegation. Allegation of the said crime
has been levied against the appellant by private party and no such facts by the preliminary
investigation done by police or any other official.
ISSUE III
Whether Rudra Sharma should be dealt with juvenile justice court or a criminal
proceeding under the provisions of Indian penal code?
He must be dealt with in the criminal proceedings under the provisions of IPC and not within
the Juvenile Justice Board as the crime which he committed was a heinous crime and was
Committed by him was under pre-planned manner and he was aware about the consequences
of his acts. His advice to NM not to inform police about his extortion completely proves his
mens rea and his knowledge about after effects of his act.
ISSUE IV
Whether there is a case of defamation, caused by the act of AAWAZ & PRAYAS
(NGO) against Ms. Shruti Kumari, who is currently Women and Child Development
Minister.
13
2ND NATIONAL MOOT COURT COMPETITION-2020 KALINGAUNIVERSITY
The sting operation conducted by AAWAZ and PRAYAS was conducted violating the Right
to Privacy of SK. This act was done with a malafide intention and was completely illegal.
Contents which were shown in news channel were vague as well as related to his private life.
Therefore, this clearly amounts to defamation. There was no evidence to prove the
truthfulness of the video contents of the disks.
ISSUE V
Whether this sting operation conducted by AAWAZ is violative of article 21 of Indian

Constitution.
The sting operation conducted by AAWAZ is violative of Article 21 of the Indian
Constitution because the sting operation violated the Right to Privacy which is enriched
under Article 21 of the Indian Constitution.
14
ARGUMENTS ADVANCED
ISSUE I
WHETHER PRIOR SANCTION OF CENTRAL GOVERNMENT IS NEEDED TO

INVESTIGATE MS. SHRUTI KUMARI, WHO IS CURRENTLY THE WOMEN AND
CHILD DEVELOPMENT MINSTER OF INDIA AND A SITING MEMBER OF
PARLIAMENT:
1.1 Whether Court can direct CBI investigation on the basis of Prima Facie allegation?
Article 226 and Article 32 of Indian Constitution provides the Hon’ble High Court and
Hon’ble Supreme Court to direct an inquiry to the CBI. But these articles can be invoked
when the PRIMA FACIE conclusion says that there is a need for such inquiry.
This Hon’able court held in the case A Registered Society and Others vs Union of India1 in
paragraph 174 held that:
"The direction to CBI to investigate "any other offence" is wholly erroneous and cannot be
sustained. Obviously, direction for investigation can be given only if an offence is, prima
facie, found to have been committed or a person's involvement is prima facie
established, but a direction to CBI to investigate whether any person has committed an
offence or not cannot be legally given. Such a direction would be contrary to the concept
and philosophy of "LIFE" and "LIBERTY" guaranteed to a person under Article 21 of the
Constitution
Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only
be done if the High Court after considering the material on record comes to a conclusion that
such material does disclosed a PRIMA FACIE case calling foreign investigation by the CBI,
and the same cannot be done as a matter of routine or nearly because a party makes some
such allegations.
Also in Secretary, Minor Irrigation & Rural Engineering Services U.P. and Ors. v.
1
1987 SCR (1) 497
15
Sahngoo Ram Arya and Anr.2, this Court observed that

“Although the High Court has power to order a CBI inquiry, that power should only be
exercised if the High Court after considering the material on record comes to a conclusion
that such material discloses prima facie a case calling for investigation by the CBI or by any
other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely
because the party makes some allegation.”
The Court in Maksud Sayed v. State of Gujarat and Others3 examined the requirement of
the application of mind by the judge before exercising jurisdiction in such cases and held that
where a jurisdiction is exercised on a complaint filed, the Special Judge/Magistrate cannot
refer the matter under Section 156(3) of CrPC against a public servant without a valid
sanction order. The application of mind by the Magistrate should be reflected in the order.
The mere statement that he has gone through the complaint, documents and heard the
complainant, as such, as reflected in the order, will not be sufficient. After going through the
complaint, documents and hearing the complainant, what weighed with the Magistrate to
order investigation under should be reflected in the order,
In the present case, order given by the High Court for investigation by the learned Judge has
stated no reasons for ordering investigation nor any reasoning has been given by learned
judge for coming to such a conclusion and ordering investigation against a public servant.
Hence the order should be set aside.
1.2 Whether prior sanction of Central Government necessary to initiate CBI
investigation against Ms.Shruti Kumari.
Section 19.4 Previous sanction necessary for prosecution
(1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and
15 alleged to have been committed by a public servant, except with the previous sanction, -
(a) In the case of a person who is employed in connection with the affairs of the
Union and is not removable from his office save by or with the sanction of the
Central Government, of that Government;
2
2002 CriLJ 2942
3
(2008) 5 SCC 668
4
The Prevention of Corruption Act, 1988
16
(b) in the case of a person who is employed in connection with the affairs of a State
and is not removable from his office save by or with the sanction of the State
Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as
required under sub-section (1) should be given by the Central Government or the State
Government or any other authority, such sanction shall be given by that Government or
authority which would have been competent to remove the public servant from his office at
the time when the offence was alleged to have been committed.
Referring to the judgment in Mohammad Khalid vs State of West Bengal5:

“It is necessary to mention here that taking cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his
judicial mind to the facts mentioned in a complaint or to a police report or upon information
received from any other person that an offence has been committed. The issuance of process
is at a subsequent stage when after considering the material placed before it the court decides
to proceed against the offenders against whom a prima facie case is made out.”
Reference can also be made to the judgment of this Court in the case of Subramanium
Swamy v. Manmohan Singh and another6. The submission of the judge was that:“The
question of sanction is of paramount importance for protecting a public servant who hasacted
in good faith while performing his duties. The purpose of obtaining sanction is to see that the
public servant be not unnecessarily harassed on a complaint, failing which it would not be
possible for a public servant to discharge his duties without fear and favour.”A trial without a
valid sanction where one is necessary under Sec. 19 has been held to be a trial without
jurisdiction by the court. Judgments rendered by Supreme Court under the case of R.R.
Chari v. State of U.P.7 and S.N. Bose v. State of Bihar8 and affirmed by the judgment in
Mohd. Iqbal Ahmed v. State of A.P.9 it was held that a trial without a sanction renders the
proceedings ab initio void.The submission is that if the harassment of the public servant by a
frivolous prosecution and criminal waste of his time in law courts keeping him away from
5
(1995) 1 SCC 684
6
(2012) 3 SCC 64
7
AIR 1951 SC 207
8
AIR 1968 SC 1292
9
1979 (2) SCR 1007
17
discharging public duty, are the objects underlying section 6, the same would be defeated if
it is held that the sanction of the latter authority is not necessary.
ISSUE II
WHETHER COST-CUM-COMPENSATION OF RS 1 LAKH AWARDED IN

FAVOUR OF NISHA MISHRA TO BE PAID BY SHRUTI KUMARI AND
JASWANT DUTTA ON THE BASIS OF PRIMA FACIA ALLEGATIONS IS
JUSTIFIABLE OR NOT.
Whenever there is a breach of right of a person by another person, then the other person
becomes entitle to be punished for his acts either punitively or by pecuniary means. Punitive
remedies are explicitly written and mentioned in the statutes but there exists an ambiguity on
the subject of monetary compensation as a remedy.
Being influenced by Rookes v Barnard10 the Indian Court ruled that punitive damages can
be awarded in only three categories:
• Cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by
a servant of the government.
• Cases in which the defendant’s conduct has been calculated by him to make a profit for
himself which may well exceed the compensation payable to the plaintiff.
• Where provided by statute.
But it has to be kept in mind that these damages are only paid by the accused in the case
where the guilt of the accused is proved beyond the reasonable doubt by the opposite party.
Ankush Shivaji Gaikwad vs.State of Maharashtra11 the Hon’ble court held that award or
refusal of compensation in a particular case may be within the court’s discretion. There
exists a mandatory duty on the court to apply its mind to the question in every criminal cases.
Application of mind to the question is best disclosed by recording reasons for awarding /
refusing compensation. In the case of Rajender Singh Pathania & Ors vs State of NCT of
Delhi & Ors12 the appeals have been preferred against the judgment of the High Court of
Delhi in which the Court has quashed the criminal case registered against respondents and
10
[1964] AC 1129
11
(2013) 6 SCC 770
12
CRIMINAL APPEAL NO. 1582 OF 2011
18
directed CBI to investigate the case in respect of the allegations made by the said respondents
against the appellants and awarded a compensation of Rs. 25,000/- each to the said
respondents for wrongful confinement. It was held in this case that the issue of award of
compensation in case of violation of fundamental rights of a person has been considered by
this Court time and again and it has consistently been held that though the High Courts and
this Court in exercise of their jurisdictions under Articles 226 and 32 can award
compensation for such violations but such a power should not be lightly exercised. Before
awarding any compensation there must be a proper enquiry on the question of facts alleged in
the complaint. The court may examine the report and determine the issue after giving
opportunity of filing objections to rebut the same and hearing to the other side. Awarding of
compensation is permissible in case the court reaches the same conclusion on a re-
appreciation of the evidence adduced at the enquiry. Award of monetary compensation in
such an eventuality is permissible "when that is the only practicable mode of redress
available for the contravention made by the State or its servants in the purported exercise of
their powers." It was decided in the case that the High Court erred in awarding even token
compensation of Rs. 25,000/- each as the High Court did not hold any enquiry and passed the
order merely after considering the status report submitted by the appellant. Such an order
which is based purely on the allegations is liable to be set aside. It can be inferred from the
above precedent that the apex court reversed the decision of the High Court which was given
on the basis of mere allegations.
This section does not empower a court to award compensation for alleged offences other
than those which form the subject matter of inquiry in the case which the order is made, still
less for offences of which the accused has been acquitted nor where the accused is discharged
and no fine is imposed
In the present case too, the Hon’ble High Court in its decision mentioned the words “prima
facie allegations” and gave the order of compensation on the same basis. The High Court was
not sure about the guilt of the accused and gave the direction of investigation to the CBI. A
remedy is only available to the victim in a criminal case when it is proved beyond the
reasonable doubt that his right has been violated by the accused. But in this case, the
compensation has been awarded to Rudra Sharma just on the basis of prima-facie allegations
and nothing else. This is clearly a mistake by the Hon’ble Court as the court was still not sure
19
about the guilt of the accused. Hence it is requested in front of the Hon’ble Court to set aside
the decision of the High Court.
ISSUE III
WHETHER RUDRA SHARMA SHOULD BE DEALT WITH JUVENILE JUSTICE

COURT OR A CRIMINAL PROCEEDING UNDER THE PROVISIONS OF INDIAN
PENAL CODE?
3.1 Whether the Juvenile is to be classified on the basis of grievousness of the crime
committed or what age he has attained?
Section 83 of the Indian Penal Code, in cases of offences committed by children between the
age group of 7 years and 12 years, gives discretion to the court to ascertain whether the child
between 7 and 12 years was capable to understand the consequences of his/her act; how he
planned it; how he prepared it and how he was provoked or instigated into the act, implying
that the court would take in consideration the mens rea of the child/juvenile i.e. the
court would identify the intention of the child behind the act. Only if the court has reason
to believe that the consequences of the act were familiar to the child, can the court award
punishment for the same. But after the age of 12, IPC treats everyone alike, and even for
juvenile offenders’ regular trial, regular sentence and regular jail come into play.
Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 states:
15. (1) In case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Board shall conduct a preliminary
assessment with regard to his mental and physical capacity to commit such offence, ability to
understand the consequences of the offence and the circumstances in which he allegedly
committed the offence, and may pass an order in accordance with the provisions of
subsection (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced
psychologists or psycho-social workers or other experts.
Explanation. - For the purposes of this section, it is clarified that preliminary assessment is
not a trial, but is to assess the capacity of such child to commit and understand the
consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed
of by the Board, then the Board shall follow the procedure, as far as may be, for trial in
summons case under the Code of Criminal Procedure, 1973:
20
Provided that the order of the Board to dispose of the matter shall be appealable under sub-
section (2) of section 101:
Provided further that the assessment under this section shall be completed within the period
specified in section 14.
Decision for ascertaining criminal liability of the juvenile is done on the basis of his
intellectual, mental, rational and perceptual maturity. The question in mind is –
“whether the juvenile committing the said offence is able to understand the
consequences of his act or not”.
The Indian Penal Code and Juvenile Justice (Care and Protection of Children) Act very
meritoriously clears this confusion. To check the gravity of crime; their age bar, nature of
crime committed and the brutality committed by them should be checked. There should be a
link in the crimes and consequent penalty to their age or to the intensity, degree and
heinousness of the crime committed by them.
When heinous crimes are committed, the judge have the discretion to order a regular
trial if the circumstances warrant so. The judge would look into the planning,
preparation, intent and other related aspects. For repeat juvenile offenders, the judge can
very well use his discretion in the interest of justice. In the present case on the preliminary
police investigation it found that not only NM but many other such students were victim to
this crime of easy money and were abused by the group. It could be derived from the case
that the crime was committed by juvenile under a pre-planned manner and under a well laid
manner.
All the above facts prove that he was mature enough to judge the gravity of crime as well as
whether the crime which he committed was grave enough or not.
Under US judgment of Thompson v. Oklahoma13: Petitioner, when he was 15 years old,
actively participated in a brutal murder. Because petitioner was a "child" as a matter of
Oklahoma law, the District Attorney filed a statutory petition seeking to have him tried as an
adult, which the trial court granted. He was then convicted and sentenced to death, and the
Court of Criminal Appeals of Oklahoma affirmed.
13
487 U.S. 815 (1988)
21
Former judge of the Supreme Court Justice Santhosh Hegde, said that the Criminal
Amendment Act 2014 makes no sense in today's context.:
"The mental maturity of an 18-year-old is very different today. Take the Delhi gang rape case
for instance. The juvenile will get away with a three-year year reformative punishment
because of his age. Can his act be considered as an act of innocence as per the law? It was a
brutal act, and he did not act as an innocent while committing the crime. I personally feel that
the age of a juvenile under the law should be made 15," he said”
According to the act today, a juvenile would be exempted from prosecution and punishment.
The IPC states that any crime committed by a person below the age of 12 is not a crime.
However, for acts committed by persons between the age of 12 and 18, there is no such
immunity. The acts committed by the accused in this case are way above the level of his age.
He is very well aware of the nature and circumstances of the act. He not only supplied the
drugs to children but also sodomised NM, made his pornographic video and clicked his
obscene pictures but also asked him for ransom money. Theses all acts show that the acts
done by him were well in his mental capacity. Hence, on the basis of the grievousness of the
crimes committed by him, he can’t be treated as juvenile and should be treated as an adult.
3.2 Whether the accused was aware about the natures of the act done by him and should
be considered a Juvenile?
Sense of maturity should always be tested while punishing a juvenile. Here in this case,
juvenile has committed a heinous crime and attained a level of maturity at the moment. As
first he made the other person consumed drugs and while doing this action he was aware that
his actions were wrong. He was aware about the nature of his act, as he had warned NM not
to tell about the incident to anyone and even not to inform the police about the same, this fact
indicates that he was aware about the criminal nature of his crime and even the consequences
it could have on him and others. He not only provided the other person with drugs in isolated
place but also sodomized him, made his obscene video and clicked obscene pictures of him
while he was not in his complete senses as was under the influence of marijuana. He also
demanded money from NM and blackmailed him that if he didn’t give him the money,
he would upload his video and pictures on Face-Life and on U-2.
In the case of Ashwini Kumar Saxena vs State of M. P.14, the accused was charged and
convicted for murder by the sessions court and the order was upheld by the High Court. He
14 CRIMINAL APPEAL NO. 03 OF 2012
22
appealed in Supreme Court regarding the same and argued that he was a juvenile when he
committed the offence and produced school records including mark sheet as the proof for the
same. The Sessions Court and the high court declined to consider the documents as a good
proof and relied on the medical reports of the doctors which proved accused to be an adult.
Supreme Court reversed the decision of High Court and took school records including mark
sheet as an adamant proof of age and considered the accused as a juvenile.
These all facts clearly indicate that the accused was clearly aware about the nature of the acts
done by him and hence, treating him as a minor on the basis of his age and sending him to
juvenile court instead of initiating a normal trial on him will be an utter miscarriage of justice
ad nothing more than that. Therefore, it is humbly prayed in front of the Hon’ble Court that
the accused should be faced with a normal trial as an adult.
ISSUE IV
WHETHER THERE IS A CASE OF DEFAMATION, CAUSED BY THE ACT OF
AAWAZ & PRAYAS (NGO) AGAINST MS. SHRUTI KUMARI, WHO IS
CURRENTLY WOMEN AND CHILD DEVELOPMENT MINISTER.
Courts have interpreted the right to privacy as implicit in the right to life.
The Hon’ble Supreme Court in R. Rajagopal and anr. Vs. State of Tamil Nadu and ors15.
Are true reminiscence of the limits of freedom of press with respect to the right to privacy. A
citizen has a right to safe guard to privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among other matters. No one can publish anything
concerning the above matters without his consent --- whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages. Position may, however, be
different, if a person voluntarily thrusts himself into controversy or voluntarily invites or
raises a controversy.
In and People’s Union for Civil Liberties v. Union of India16, the court held that the right
to privacy is an essential ingredient of the right to life.
15
1994 SCC (6) 632
16
AIR 1997 SC 568
23
Section 499 Indian Penal Code reads as:

“Whoever, by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any person intending to harm,
or knowing or having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to defame that person.
In the present case, defamation is caused by AAWAZ by broadcasting the news on
television that had been obtained by them through sting operation. Thus, publication of
defamatory matter in newspaper journals and by broadcasting on radio or television is
deemed to be “Publication” leading to defamation.21 In the present case there is defamation
caused under the provisions of the said act as the respondents have harmed the reputation of
the appellant.
As the fourth estate outside the Government, the media plays an important role in a
democratic society. In fact, democratic credentials are judged by the extent of freedom the
media enjoys in a particular state.
But the Constitution of India does not expressly mention the liberty of the press. Instead,
Article 19(1) (A) guarantees the citizens freedom of speech and expression.
In India, the liberty of the media may be illustrated by the phrase:
“Article 19-1-A incorporates within itself right to receive information about any event,
happening or incident etc. And freedom of speech includes freedom to communicate,
advertise, publish or propagate ideas and the dissemination of information,”
Dissemination of information is inevitably preceded by uncovering information, which brings
us to Sting Operations. Sting Operations were initially about exposing acts of an institution or
individual which are against the public order. They were meant to empower society with
enhanced awareness, but several instances over the years have been more about the pursuit of
profit and short-term sensationalism. The carrying out of a sting operation may be an
expression of the right to free press but it carries with it an indomitable duty to respect the
privacy of others.
Hon’ble Delhi High Court in the judgment of Court On Its Own Motion Vs State17 held
that:
“Such incidents should not happen and false and fabricated sting operations directly
infringing upon a person’s right to privacy should not recur because of desire to earn more
17 CRL.REF. 1/2017
24
and to have higher TRP rating. Right to freedom of press is a valuable right but the right
carries with it responsibility and duty to be truthful and to protect rights of others.”
In the case of R.K. Anand v. Registrar, Delhi High Court18 the Supreme Court observed
that:
“The media is not free to publish any kind of report concerning a subjudice matter or to
do a sting as it pleases in a pending trial matter. More or less on similar lines, it was also
observed that a sting based on deception would attract the legal restrictions with far
greater stringency.”
The Supreme Court commented in Sidhartha Vashisht @ Manu Sharma vs. State (NCT of
Delhi)19 that the distinction between trial by media and informative media should always be
maintained. Trial by media should be avoided particularly at a stage when the suspect is
entitled to the constitutional protections. Invasion of his rights is impermissible in every
circumstance.
In the judgment of Bhupinder Singh Patel v. CBI20, the Hon’ble court made an observation
that:
“No doubt, the media plays an important role in a democratic society and acts as the fourth
estate outside the Government but where freedom of Press can be envisaged as a special right
under Art. 19(1)(a) of the Constitution of India, the restrictions under Article 19(2) of the
same constitution cannot be neglected. It is true that accountability is the sine qua non of
democracy and that the basic postulate of accountability is that people should have the
information about the working of the Government, it is here that the role of media becomes
significant. It is said that with great power comes great responsibility, therefore the freedom
under Article 19(1)(a) is correlative with the duty not to violate any law. All sting
operations involve making people commit crimes that they otherwise may not have
committed. There can be no second thought about the fact that the media is well within its
domain when it seeks to use tools of investigative journalism to bring us face-to-face with the
ugly underbelly of the society but entrapment of any person should not be resorted to and
cannot be permitted unless a right approach is taken which is in accordance with law of the
land.”
18 CRIMINAL APPEAL NO. 1393 OF 2008
19
CRIMINAL APPEAL NO. 179 OF 2007
20
Crl. Revision Petition Appeal Nos. 472 of 2007 , 546 of 2007, 506 of 2007, 584 of 2007
25
It was further held that “The petitioners could not have assumed the role of a knight in
the shining armour seeking to reform the society completely ignoring the legal
methodology
laid out for necessary corrective measures including of detection more so when the
action of the petitioners/accused is not on account of any altruistic motives but is a self-
serving one.”
The Hon’ble Supreme Court in the above cited case dismissed the appeal on the ground that
investigative media shall not be resorted to and cannot be permitted unless a right approach is
taken. Aawaz having no connection to the case, cannot be allowed to infringe SK‘s right to
freedom.
In the present appeal too, it may be noted that the broadcasting of the videos on the channel
shows that the sting operation was a journalistic exercise rather than an initiative taken by
Patrika to reform the society. There is the classic ethical problem that haunts all sting
operations: can you hold somebody responsible for a crime that he might have
committed?
The Supreme Court ruled in R. Rajagopal and Another vs. State of Tamil Nadu and
others21 that:
“A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among other matters. No one can publish anything
concerning the above matters without his consent – whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages.”
The appellant in reference to Compact Discs have the right to privacy guaranteed under the
Constitution of India to every citizen of the country as the fundament right. As, in Disc 3
which included contents of Ms Shruti Kumari’s “private life” is no way a matter of public
interest or importance?
In reference of the arguments made and authorities cited, it is clear that tit has been a clear
defamation and violation of right to privacy of the appellant by the respondent AAWAZ
Hence, according to the remedies envisaged in Article 32 of the constitution of India on the
infringement of Fundamental rights, the writ filed by the said appellant shall not be dismissed
and the decision of the High Court should be reversed.
21 1994 SCC (6) 632
26
ISSUE- V
WHETHER STING OPERATION CONDUCTED BY IS VIOLATIVE OF ARTICLE

21 OF THE INDIAN CONSTITUTION?
Article 21 of the Indian Constitution states that “No person shall be deprived of his personal
liberty except according to the procedure established by law”. Indian courts in various
judgements have interpreted that Right to privacy is an integral part of Right to life.
In the case of Maneka Gandhi v Union of India22 The Supreme court gave a new
dimension to Article 21 and held that the Right to life is not merely a physical right but
includes within it’s the right to life with human dignity.
In the case of Smt. Kiran Bedi v Committee of Inquiry23 The court held that good
reputation was an essential element of personal security and was protected by the
constitution, equally with the right of employment of life, liberty and property. The court
affirmed that “the right to enjoyment of private reputation was of ancient origin and was
necessary to human society”
In State of Maharastra v Public concern of Governance Trust24 The court held that the
Right equally covers the reputation of a person during and after his death. Thus any wrong
action of the state or agencies that bullies the reputation of a virtuos person would certainly
comes under the scope of Article 21.
In State of Bihar v Lal Krishna Advani25 A two member commission of inquiry was
appointed to inquire in to the communal disturbances in Bagalpur district on 24th October
1989, made some report, which impinged up on the reputation of the respondent as a public
man, without affording him an opportunity of being heard. The Apex court ruled that it was
amply clear that one was entitled to have and presence of one’s reputation and one also had
the right to protect it.
The court further stated that in case of any authority, in the discharge of its duties fastened up
on it under the law transcense in to the realm of personal reputation adversely affecting him,
it must provide a chance to him to have his say in the matter. The court observed that
principle of natural justice made it incumbent up on the authority to give an opportunity to
22
1978 AIR 597
23
AIR 1989 SC 714
24
1964 AIR 703
25
AIR 2003 SC 3357
27
the person before any comment was made or opinion was empressed which was likely to
prejudicially affect that person.
In the case of R.P. Ltd v Proprietors of Indian Express News paper Bombay private
Ltd26The court observed that if democracy had to function effectively, people must have the
right to know and obtain the conduct of the affairs of the state.
In R.Raja Gopal v State of Tamil Nadu27 The court held that right to privacy is implicit in
the right to life and liberty guaranteed to the citizens of this country under Article 21. It is a
right to be let alone.
In the case of PUCL v Union of India28 The supreme court of India observed that:
“We have therefore no hesitation in holding that Right to privacy is a part of the Right to life
and Personal liberty under Article 21 of the Indian Constitution. Once the facts in a given
case constitute right to privacy then Article 21 is attracted. The said right cannot be curtailed
except according to the procedure established by law”
Hence from the above stated arguments that the sting operation conducted by AAWAZ
clearly violated Right to Privacy which is guaranteed under Article 21 of the Indian
Constitution.
26
1989 AIR 190
27
1994 SCC (6) 632
28
AIR 1997 SC 568
28
PRAYER
In the light of facts and circumstances stated, issues raised, arguments advanced and
authorities cited, it is most humbly submitted that this Hon’ble Court may be pleased to:
a) Dismiss the order of CBI enquiry against SK.
b) Order non - payment of cost-cum-compensation to NM, as there is no substantive evidence

to prove the guilt of SK and JD.
c) Dismiss the order given by the Hon’ble High Court by holding RS to be an adult not giving
the case to Juvenile Justice Court.
d) Awarding compensation to appellant against the defamatory act of sting operation

conducted by respondents.
Any other relief which this Hon’ble Court may deem fit and proper also be passed in favour
of appellant against the respondents as facts and circumstances of the case to meet the ends
of justice, equity and good conscience.
All of which is respectfully affirmed and submitted.
Counsels for Appellant
29

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2ND NATIONAL MOOT COURT COMPETITION-2020 KALINGA UNIVERSITY

2ND NATIONAL MOOT COURT COMPETITION- 2020 KALINGA UNIVERSITY

TEAM CODE: KU2NM03

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE & HIS

 CONSTITUTION OF INDIA, 1950

 THE PREVENTION OF CORRUPTION ACT, 1988

11. Thompson v. Oklahoma 487 U.S. 815 (1988)

20. Smt. Kiran Bedi v Committee of Inquiry AIR 1989 SC 714

JUDGEMENT OF HIGH COURT

(ii) Cost-cum-compensation of Rs.1.00 lac was awarded in favour of NM to be paid by SK

(v) Writ for defamation dismissed. May file suit.

Whether prier sanction of central government is needed to investigate Ms. Shruti

Whether this sting operation conducted by AAWAZ is violative of article 21 of Indian

The sting operation conducted by AAWAZ is violative of Article 21 of the Indian

under Article 21 of the Indian Constitution.

WHETHER PRIOR SANCTION OF CENTRAL GOVERNMENT IS NEEDED TO

Sahngoo Ram Arya and Anr.2, this Court observed that

Referring to the judgment in Mohammad Khalid vs State of West Bengal5:

WHETHER COST-CUM-COMPENSATION OF RS 1 LAKH AWARDED IN

WHETHER RUDRA SHARMA SHOULD BE DEALT WITH JUVENILE JUSTICE

14 CRIMINAL APPEAL NO. 03 OF 2012

Section 499 Indian Penal Code reads as:

18 CRIMINAL APPEAL NO. 1393 OF 2008

21 1994 SCC (6) 632

WHETHER STING OPERATION CONDUCTED BY IS VIOLATIVE OF ARTICLE

b) Order non - payment of cost-cum-compensation to NM, as there is no substantive evidence

d) Awarding compensation to appellant against the defamatory act of sting operation

Counsels for Appellant

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