BEFORE THE SUPREME COURT OF INDIA

Special Leave Petition filed under Article 136 of the Constitution of India

MEMORIAL FILED ON BEHALF OF THE APPELLANT

Special Leave Petition No.____ of 2017

JPS RAJPUT …APPELLANT

VERSUS

CBI …RESPONDENT

Most Respectfully Submitted to the Hon’ble Chief Justice & Other

Companion Judges of the Supreme Court of India

COUNSELS APPEARING ON BEHALF OF ‘APPELLANT’

7TH FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2017

-TABLE OF CONTENTS- -PAGE I OF XIII-

TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................................II
LIST OF ABBREVIATIONS....................................................................................................VI
STATEMENT OF JURISDICTION....................................................................................... VII
STATEMENT OF FACTS....................................................................................................... XII
ISSUES FOR CONSIDERATION.........................................................................................XIII
SUMMARY OF ARGUMENTS................................................................................................ 14
ARGUMENTS ADVANCED..................................................................................................... 15
1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE
HON’BLE SUPREME COURT OR NOT?.............................................................................. 15

1.1 That This Court Is Suitable Forum To Hear The Matter.............................................15

1.2 That There Exist Exceptional Circumstances In The Instant Case............................. 16
1.3 That This Case Involves Substantial Question Of Law Of General Importance.........17
2. Whether the order of court of sessions is correct in law or not?.........................................18

2.1 THAT DELAY IN FILING FIR CREATES A REASONABLE DOUBT................18

2.2 THAT THE MATERIAL WITNESS HAS NOT BEEN EXAMINED......................21
3. WHETHER THE SENTENCE ENHANCED is TENABLE IN LAW..............................25

3.1 Application of Ex Post Facto Law in the instant case was ultravires........................25
3.2 There is violation of Fundamental Rights of the Appellant........................................ 27
PRAYER.......................................................................................................................................32
COUNSELS FOR THE...............................................................................................................32
APPELANT AND PETITIONER..............................................................................................32

MEMORIAL ON BEHALF OF APPELLANT

-INDEX OF AUTHORITIES- -PAGE II OF XIII-

INDEX OF AUTHORITIES
1.CASES

A.P. Aggarwal v. Govt. of NCT of Delhi AIR 2000 SC 205 ....................................................... 28

Arunachalam v. P.S.R. Sadanantham, AIR 1999 SC 1104........................................................... 15
Ashok Nagar Welfare Association v. R.K.Sharma, (2002) 1 SCC 749........................................ 15
Ashutosh Gupta v. State of Rajasthan AIR 2002 SC 1533 ........................................................... 27
Balakrishna v. Ramaswami, AIR 1965 SC 195 ............................................................................ 17
Balakrishna v. Ramaswami, AIR 1965 SC 195; Narpat Singh v. Jaipur Development Authority,
AIR 2002 SC 2036; Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91;
Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293; Jindal Vijayanagar Steel (JSW Steel
Ltd.) v. Jindal Praxair Oxygen Co. Ltd., (2006) 11 SCC 521. .................................................. 17
Bannari Amman Sugars Ltd. v. CTO.(2005) 1 SCC 625 ............................................................. 28
Bengal Chemical & Pharmaceuticals Works Ltd. v. Employees, AIR 1959 SC 633. .................. 15
C.C.E v. Standard Moter Products, AIR 1989 SC 1298 ............................................................... 17
C.C.E v. Standard Moter Products, AIR 1989 SC 1298; MadanLal v. Mst. Gopi&Anr, (1980) 4
SCC 255(SC); NarendraGopalVidyarthi v. RajatVidyarthi, (2009) 3 SCC 287(SC);
Commissioner of Custo ms (Preventive) v. Vijay Dasharath Patel, (2007) 4 SCC 118(SC);
Metroark Ltd. v. Commissioner of Central Excise, Calcutta, (2004) 12 SCC 505 (SC); West
Bengal Electricity Regulatory Commission v. CESC Ltd. (2002) 8 SCC 715(SC .................. 17
Charan Lal Sahu v. Union of India AIR 1990 SC 1480 ............................................................... 28
Chunilal Mehta & Sons, Ltd. v. Century Spinning & Manufacturing Co., Ltd., AIR 1962 SC
1314. .......................................................................................................................................... 17
Commissioner of Customs (Preventive) v. Vijay Dasharath Patel, (2007) 4 SCC 118 (SC) ....... 17
Dalip Singh v. State of Punjab 1954 SCR 145 ............................................................................. 23
Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, AIR 2003 SC 3701..................................... 16
District Registrar and Collector v. Canara Bank AIR 2005 SC 186 ............................................. 31
Esher Singh v. State of A.P, (2004) 11 SCC 565 ......................................................................... 15
Esher Singh v. State of A.P., (2004) 11 SCC 585 ........................................................................ 15
Esher Singh v. State of A.P., (2004) 11 SCC 585. ....................................................................... 15
Faridabad CT. Scan Centre v. D.G. Health Services AIR 1997 SC 3801 ................................... 27
Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746.................................................... 30
Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91...................................... 17
Gauri Shankar v. Union of India AIR 1995 SC 55 ....................................................................... 28
GOVINDARAJU @ GOVINDA v. STATE BY SRIRAMAPURAM P.S. & ANR(2012) 5 SCR
67 ............................................................................................................................................... 24
Inderjit Barua v. Assam AIR 1983 Del 513 .................................................................................. 32
ITI ltd. v. Siemens Network Ltd., AIR 2002 SC 2308 ................................................................. 16

MEMORIAL ON BEHALF OF APPELLANT

-INDEX OF AUTHORITIES- -PAGE III OF XIII-

Jagannath Prasad v. State of Uttar Pradesh AIR 1961 SC 1245, Mohd. Saheb Mahboob v. Dy.
Custodian AIR 1961 SC 1657 ................................................................................................... 28
Jagatjit Distilling Ltd. v. State of Punjab, (1969) SC [CA 840/66, Dt. 29-04-1969] ................... 16
Jagatjit Distilling Ltd. v. State of Punjab, (1969) SC [CA 840/66, Dt. 29-04-1969]. .................. 16
Jai Prakash Singh v. State of Bihar & ANR.[2012] 5 S.C.R. 1 .................................................... 19
Jamshed Wadia v. Board of Trustees, (2004) 3 SCC 214 ............................................................ 17
Jamshed Wadia v. Board of Trustees, (2004) 3 SCC 214,243-44 ................................................ 15
JamshedWadia v. Board of Trustees, (2004) 3 SCC 214; Sumitra Devi v. BhikanChoudhary,
1985 CrLJ 528 (SC); See also Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498;
Ramesh Chand v. State of U.P., (1985) 1 SCC 464. ................................................................. 17
Jindal Vijayanagar Steel (JSW Steel Ltd.) v. Jindal Praxair Oxygen Co. Ltd., (2006) 11 SCC
521. ............................................................................................................................................ 17
John Vallamattom v. Union of India AIR 2003 SC 2902 ............................................................. 27
K. Manikchand v. Elias Saleh Mohd. Sait, AIR 1969 SC 751. .................................................... 15
K. Manikchand v. Elias SalehMohd. Sait, AIR 1969 SC 751. ..................................................... 15
Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808 ....................................................... 18
Kartar Singh v. State of Punjab (1994) 3 SCC 569 ...................................................................... 31
Kedar Nath Bajora v. State of West Bengal AIR 1953 SC 404 .................................................... 26
Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293 .................................................................. 17
Kunhayammedv.StateofOrissa, AIR 2000 SC 2587 ..................................................................... 15
Kunhayammedv.StateofOrissa,AIR2000SC2587. ....................................................................... 15
Lahu Kamlakar Patil and Anr. V State of Maharashtra (2013) 6 SCC 417 .................................. 24
Lallu Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401 ................................................ 23
M.C. Mehta v. Union of India AIR 2003 SC 3469 ....................................................................... 31
MadanLal v. Mst. Gopi & Anr, (1980) 4 SCC 255(SC) ............................................................... 17
Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, AIR 2004 SC 2489.......................... 16
MahendraSaree Emporium (II) v. G.V. Srinivasa Murthy, AIR 2004 SC 2489; Union Carbide
Corporation v. Union of India, AIR 1992 SC 248; S.P. Sampath Kumar v. Union of India, AIR
1987 SC 386; Surya DevRai v. Ram ChanderRai, (2003) 6 SCC 675. .................................... 16
Maneka Gandhi v. Union of India AIR 1978 SC 597, Kharak Singh v. State of Uttar Pradesh
AIR 1963 SC 1295 .................................................................................................................... 29
Metroark Ltd. v. Commissioner of Central Excise, Calcutta, (2004) 12 SCC 505 (SC) .............. 17
Municipal Board, Pratabgarh v. Mahendra Singh Chawla, AIR 1982 SC 1493 .......................... 15
Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287 (SC) ....................................... 17
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036 ..................................... 15, 17
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036. .......................................... 15
Nirma Ltd. v. Lurgi GMBH, AIR 2002 SC 3695 ......................................................................... 16
P.S.R. Sadhanantham v. Arunachalam AIR 1980 SC 856............................................................ 30
People’s Union for Civil Liberties v. Union of India AIR 2004 SC 1442.................................... 28
Ram Dayal v. Narbada, AIR 1973 SC 804 ................................................................................... 16

MEMORIAL ON BEHALF OF APPELLANT

-INDEX OF AUTHORITIES- -PAGE IV OF XIII-

Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498.......................................................................17

Ramakant Rai v. Madan Rai, AIR 2004 SC 77............................................................................................15
Ramesh Chand v. State of U.P., (1985) 1 SCC 464....................................................................................17
Ravinder Singh v State of Himachal Pradesh AIR 2010 SC 199............................................................26
Rupinder Singh Sodhi v. Union of India AIR 1983 SC 65.......................................................................30
S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386......................................................................16
Sales Tax Officer v. Shree Durga Oil Mills, AIR 1998 SC 591..............................................................15
Sanwant Singh v. State of Rajasthan, AIR 1961 SC 715...........................................................................16
Shail v. Manoj Kumar, AIR 2004 SC 3210...................................................................................................16
State of Bombay v. Rusy Mistry, AIR 1960 SC 391..................................................................................15
State of Bombay v. RusyMistry, AIR 1960 SC 391; Municipal Board, Pratabgarh v. Mahendra
Singh Chawla, AIR 1982 SC 1493; Ashok Nagar Welfare Association v. R.K.Sharma, (2002)
1 SCC 749; JamshedWadia v. Board of Trustees, (2004) 3 SCC 214,243-44[para 33]; Esher
Singh v. State of A.P, (2004) 11 SCC 565; RamakantRai v. MadanRai, AIR 2004 SC 77;
Arunachalam v. P.S.R. Sadanantham, AIR 1999 SC 1104...................................................................15
State of Punjab v. Ajaib Singh & Ors. AIR 2004 SC 2466.......................................................................20
State of Rajashtan v. Sohan Lal, (2004) 5 SCC 573...................................................................................16
State of Rajashtanv. SohanLal, (2004) 5 SCC 573......................................................................................16
State of Rajasthan v. Kalki (1981) 2 SCC 752.............................................................................................22
State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka,
(2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar
Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242]..................................................19
Sudhir Chanra v. Tata Iron & Steel Co. Ltd. AIR 1984 SC 1064...........................................................29
Sumitra Devi v. Bhikan Choudhary, 1985 CrLJ 528 (SC)........................................................................17
Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675...........................................................................16
Tahir v. State (Delhi) [(1996) 3 SCC 338],....................................................................................................23
Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors (2001) 6 SCC 145..................................22
Thommen, J., Indra Sawhney v. Union of India AIR 1993 SC 477.......................................................27
Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State of Punjab v. Surja Ram, AIR
1995 SC 2413; Girish Yadav & Ors. v. State of M.P., (1996) 8 SCC 186; and Takdir
Samsuddin Sheikh v. State of Gujarat & Anr...........................................................................................19
Union Carbide Corporation v. Union of India, AIR 1992 SC 248..........................................................16
Union of India (UOI) v. Sankalchand Himatlal Sheth and Anr. [1978 ]1SCR 423...........................26
Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362...........................................................16
Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362; Ram Dayal v. Narbada, AIR
1973 SC 804; Nirma Ltd. v. Lurgi GMBH, AIR 2002 SC 3695; ITI ltd. v. Siemens Network
Ltd., AIR 2002 SC 2308; Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, AIR 2003 SC
3701; Shail v.Manoj Kumar, AIR 2004 SC 3210; Virender Kumar Rai v. Union of India,
(2004) 13 SCC 463...........................................................................................................................................16
Vidhyadharan v. State of Kerala (2004) 1 SCC 215...................................................................................19

MEMORIAL ON BEHALF OF APPELLANT

-INDEX OF AUTHORITIES- -PAGE V OF XIII-

Virender Kumar Rai v. Union of India, (2004) 13 SCC 463....................................................................16

Wealth Tax Commr., Amritsar v. Suresh Seth AIR 1981 SC..................................................................26
West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002) 8 SCC 715(SC)...............17
Zahira Habubullah Sheikh v. State of Orissa, AIR 2004 SC 3467.........................................................16
ZahiraHabubullah Sheikh v. State of Orissa, AIR 2004 SC 3467..........................................................16

2. BOOKS:
th
a) M.P Jain, “Indian constitutional law”, (7 edition, Lexis Nexis) 2016
st
b) Dr. Gokulesh Sharma, “Supreme Court on Words and Phrases”, (1 edition,
Lexis Nexis) 2015
rd
c) Jagdish Swarup and L.M Sanghvi, “Constitution of India”, Vol.- I (3 edition,
Thomson Reuters) 2013
th
d) D.D. Basu, “Commentary on the Constitution of India”, Vol.-6, ( 9 edition,
Lexis Nexis) 2016
th
e) D.D. Basu, “Shorter Constitution of India” Vol.-1, (14 edition, Lexis Nexis) 2010
th
f) Bryan A. Garner, “Black’s Law Dictionary”, (9 edition, West) 2009
3. STATUTORY COMPILATIONS:
a) The Constitution of India, 1950
b) Indian Penal Code, 1860
c) Code of Criminal Procedure, 1972
d) Indian Evidence Act, 1872
4. INTERNET SITES:
a) http://www.manupatra.com/
b) http://www.judis.nic.in/
c) http://www.lawkam.com/
d) http://www.scconline.com/
e) http://www.indiankanoon.org

MEMORIAL ON BEHALF OF APPELLANT

-LIST OF ABBREVIATIONS- -PAGE VI OF XIII-

LIST OF ABBREVIATIONS

A.I.R ALL INDIA REPORTER

Art. ARTICLE

SC SUPREME COURT

SCC SUPREME COURT CASES

Sec. SECTION

UOI UNION OF INDIA

V. VERSUS

Govt. GOVERNMENT

SLP SPECIAL LEAVE PETITION

MEMORIAL ON BEHALF OF APPELLANT

-STATEMENT OF JURISDICTION- -PAGE VII OF XIII-

STATEMENT OF JURISDICTION

THE APPELLANT HAS APPROACHED THE HON’BLE SUPREME COURT OF INDIA UNDER ARTICLE
136 OF THE CONSTITUTION WHICH READS AS UNDER:

“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”

THE APPELLANT BOWS TO THE WISDOM OF THE HON’BLE SUPREME COURT.

MEMORIAL ON BEHALF OF APPELLANT

-STATEMENT OF FACTS- -PAGE XII OF XIII-

STATEMENT OF FACTS

Meeting of Appellant-accused met deceased’s father – Shri Malhotra on 11.08.1990 in

accused with order to persuade him to not to send his daughter out of the Country for
deceased’s specialized Tennis Coaching and promised that the same would be
father. arranged for her at M.T.A. itself and also asked him to send Ruchika to his
office on the very next day in connection with the same.
On 12.08.1990 deceased went to meet accused in his office of association
Day of along with Ardahana. Accused sent Ms. Ardahana out of the room to call
Incident coach and when Ms. Ardahana returned to the office, she witnessed that Ms.
Ruchika was in the grip of the appellant-accused. The appellant-accused
was pulling her towards his chest so as to embrace her and Ruchika was
trying to push him back with her free hand. The appellant-accused was also
seen to kiss Ms. Ruchika and trying to open her skirt.
On 15.8.1990, a Memorandum/petition, duly signed by Ms. Ruchika,
Petition Ms. Aradhana, Mr. Malhotra and Mr. Jai Prakash and some residents was
before Home presented to the then Secretary(Home), Rajasthan. After the approval of
Secretary, the Home Minister, Shri R. R. Singh, the then DGP was directed to hold
Rajasthan. an inquiry into the allegations leveled against the appellant-accused in
the Memorandum / petition.
Victim On 28.12.1993, she committed suicide by consuming poison and died on
committed 29.12.1993.
suicide

Order of the High Court dated 21.08.1998, which culminated into

registration of a First Information Report (FIR) being No. 516 of 1999
Date of filling under Sections 354 and 509 of the IPC as PS Jodhpur, Rajasthan against
F.I.R the appellant-accused.

Sentence by Chief Judicial Magistrate, by its judgment and order dated 21.12.2009 in
Trial Court Challan Nos. 3/17.11.2000, 12-T/10.04.2006 RBT 191/17.11.2009, held
the appellant-accused guilty of offence under Section 354 of the IPC and
sentenced him to suffer rigorous imprisonment (RI) for six months along
with a fine of Rs. 1,000, Judgment of the Session’s Judge, Jodhpur
Learned Additional Sessions Judge, Jodhpur, by his order dated
25.05.2010 dismissed the appeal filed by the appellant-accused while
allowing the appeals filed by the CBI and Jai Prakash for enhancement of
sentence of imprisonment and the appellant-accused was awarded with
rigorous imprisonment for 3 years for committing offence under Section
354 of the IPC. The fine remained unchanged.

Present Case SLP before Hon’ble court.

MEMORIAL ON BEHALF OF APPELLANT

-ISSUES FOR CONSIDERATION- -PAGE XIII OF XIII-

ISSUES FOR CONSIDERATION

A. WHETHER THE SPECIAL LEAVE PETITION (SLP) IS MAINTAINABLE

BEFORE THE HON’BLE SUPREME COURT OR NOT?

B. WHETHER THE ORDER OF COURT OF SESSIONS CORRECT IN LAW OR

NOT?

C. WHETHER THE ENHANCED SENTENCE IS TENABLE IN LAW?

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 14 OF XIII-

SUMMARY OF ARGUMENTS

1. WHETHER THE SPECIAL LEAVE PETITION (SLP) IS MAINTAINABLE BEFORE THE HON’BLE
SUPREME COURT OR NOT?

It is humbly submitted before the Hon’ble Supreme Court of India that the instant Special Leave
Petition is maintainable as there exists exceptional circumstances for which the Hon’ble court
may grant leave. It is submitted that the present case involves a substantial question of law of
general importance which needs to be addressed by the Hon’ble Court and the decision of the
High Court of Rajasthan shocks the conscience of the court.

2. WHETHER THE ORDER OF COURT OF SESSIONS IS CORRECT IN LAW OR NOT?

It is humbly contended that the judgement of learned Chief Judicial Magistrate is contrary to the
settled principles of Criminal Jurisprudence and suffers from palpable error of law and
appreciation of evidence. The prosecution story is false and frivolous in order to take revenge for
not providing admission in the tennis association. The onus is on the prosecution to prove the
case and it has failed to prove the case beyond reasonable doubt.

3. WHETHER THE SENTENCE ENHANCED IS TENABLE IN LAW?

It is humbly submitted that the sentence enhanced by Additional Sessions Judge is not tenable in
law as there has been erroneous judgement which in fact violates certain Fundamental Rights of
the appellant and therefore proceedings by the court in question should be quashed completely.
Further the Hon’ble Court may start the proceedings afresh and decide on basis of merits of the
case.

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 15 OF XIII-

ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT OR NOT?

It is humbly submitted before the Hon’ble Supreme Court of India that the instant Special Leave
Petition is maintainable as there exists exceptional circumstances in the instant case for which
1
the Hon’ble Court may grant the leave. Further the matter also involves a substantial question of
law of general importance which needs to be addressed by the Hon’ble Court.
1.1 THAT THIS COURT IS SUITABLE FORUM TO HEAR THE MATTER.

1.1.1 It is humbly submitted before this Hon’ble Court that the power under Article 136 of the
Constitution of India has been characterized as “an untrammeled reservoir of power
incapable of being confined to definitional bounds; the discretion conferred on the
Supreme Court being subjected to only one limitation i.e. the wisdom and good sense of
justice of the judges.” The exercise of the power of the court is not circumscribed by any
2
limitation as to who may invoke it. Article 136 does not confer a right of appeal upon
3
the party but merely vests discretion in the Supreme Court to interfere in exceptional
4
cases. Under Article 136, the Court may generously step in to impart justice and remedy
5 6
injustice and it is for the Apex Court to decide whether to entertain an appeal or not. It is
submitted that the leave of the court under the Article can be granted even where the
7
High Court has refused leave under Article 133 and 134.
1.1.2 It is most reverentially submitted that Under this Article, they shall have the power to
grant special leave to appeal from any judgment, decree, determination, sentence or

1
Kunhayammedv.StateofOrissa, AIR 2000 SC 2587.
2
Esher Singh v. State of A.P., (2004) 11 SCC 585.
3 Bengal Chemical & Pharmaceuticals Works Ltd. v. Employees, AIR 1959 SC 633.
4 State of Bombay v. RusyMistry, AIR 1960 SC 391; Municipal Board, Pratabgarh v. Mahendra Singh Chawla, AIR
1982 SC 1493; Ashok Nagar Welfare Association v. R.K.Sharma, (2002) 1 SCC 749; JamshedWadia v. Board of
Trustees, (2004) 3 SCC 214,243-44[para 33]; Esher Singh v. State of A.P, (2004) 11 SCC 565; RamakantRai v.
MadanRai, AIR 2004 SC 77; Arunachalam v. P.S.R. Sadanantham, AIR 1999 SC 1104.
5
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036.
6 Sales Tax Officer v. Shree Durga Oil Mills, AIR 1998 SC 591.
7 K. Manikchand v. Elias SalehMohd. Sait, AIR 1969 SC 751.

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 16 OF XIII-

order, in any cause or matter, passed or made by any court or tribunal, in the territory of
8 9
India. The expression “any cause or matter” is of a very wide import.
1.1.3 It is most reverently submitted that the Apex Court could grant Special Leave where
grave and substantial injustice have been done by disregard to the forms of legal process
10
or violation of the principles of natural justice or otherwise.
1.1.4 It is further submitted that the Court further observed that two additional categories of
cases can be added to the above list, namely: where the Court is satisfied that there has
been a grave miscarriage of justice and where a fundamental right of a person has prima
11
facie been violated .
1.2 THAT THERE EXIST EXCEPTIONAL CIRCUMSTANCES IN THE INSTANT CASE.

1.2.1 It is humbly submitted that under Article 136, very wide powers have been conferred on
the Supreme Court for due and proper administration of justice. The Supreme Court
retains an inherent power and jurisdiction for dealing with any extraordinary situation in
the larger interests of administration of justice and for preventing manifest injustice being
done. The power is required to be exercised only in exceptional circumstances for
12
furthering the ends of justice. Also, where alternative remedies are no longer efficacious
due to lapse of time, the Apex Court will interfere to prevent miscarriage of justice. The
powers under this Article are special and extraordinary and the main object is to ensure
13
that there has been no miscarriage of justice. The Constitutional Jurisdiction conferred
by Art. 136 of the Constitution cannot be limited or taken away by any legislation
14
subordinate to the Constitution. The existence of an alternative remedy is no ground for
15
taking away the jurisdiction under Article 136.

8 DURGA DAS BASU, CONSTITUTION OF INDIA, 14th Edition, Lexis NexisButterworthsWadhwa,

Nagpur. (2009), Pg. 827.
9 Jagatjit Distilling Ltd. v. State of Punjab, (1969) SC [CA 840/66, Dt. 29-04-1969].
10
Sanwant Singh v. State of Rajasthan, AIR 1961 SC 715.
11 Maneka Gandhi v. UOI, AIR 1978 SC 597
12
ZahiraHabubullah Sheikh v. State of Orissa, AIR 2004 SC 3467.
13 State of Rajashtan v. SohanLal, (2004) 5 SCC 573.
14
MahendraSaree Emporium (II) v. G.V. Srinivasa Murthy, AIR 2004 SC 2489; Union Carbide Corporation v.
Union of India, AIR 1992 SC 248; S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386; Surya DevRai v. Ram
ChanderRai, (2003) 6 SCC 675.
15 Union of India v. Kishorilal Gupta & Bros., AIR 1959 SC 1362; Ram Dayal v. Narbada, AIR 1973 SC 804;
Nirma Ltd. v. Lurgi GMBH, AIR 2002 SC 3695; ITI ltd. v. Siemens Network Ltd., AIR 2002 SC 2308; Dipak
Chandra Ruhidas v. Chandan Kumar Sarkar, AIR 2003 SC 3701; Shail v.Manoj Kumar, AIR 2004 SC 3210;
Virender Kumar Rai v. Union of India, (2004) 13 SCC 463.

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 17 OF XIII-

1.2.2 It is most reverently submitted that there are exceptional circumstances which exist in the
present case for which the instant SLP may be granted by the Hon’ble Court. It is
submitted that the trial held against the appellant is full of irregularities and the order of
Learned Additional Sessions Judge to increase the sentence as a result have violated
fundamental rights of the appellant. That the order of High Court of Rajasthan has
infringed the Fundamental Rights of appellant and have damaged his social standing in
society and deserves active consideration of the Supreme Court.
1.3 THAT THIS CASE INVOLVES SUBSTANTIAL QUESTION OF LAW OF GENERAL IMPORTANCE.

1.3.1 It is humbly submitted before the Hon’ble Court that when a question of law of general
public importance arises, or a decision shocks the conscience of the court, its jurisdiction
can always be invoked. It is further stated that Article 136 is the residuary power of
16
Supreme Court to do justice where the court is satisfied that there is injustice. The
principle is that this court would never do injustice nor allow injustice being perpetrated
17
for the sake of upholding technicalities. In any case, special leave would be granted
from the decision of the High Court only where the judgment raises issues of law of
18
general public importance.
1.3.2 It is most respectfully submitted that the Hon’ble Supreme Court in the case of Chunilal
19
Mehta & Sons, Ltd. v. Century Spinning &Manufacturing Co, Ltd ,has laid down the
test to determine whether the matter involves Substantial Question of Law. The court
held that “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the

16 C.C.E v. Standard Moter Products, AIR 1989 SC 1298; MadanLal v. Mst. Gopi&Anr, (1980) 4 SCC
255(SC); NarendraGopalVidyarthi v. RajatVidyarthi, (2009) 3 SCC 287(SC); Commissioner of Custo ms
(Preventive) v. Vijay Dasharath Patel, (2007) 4 SCC 118(SC); Metroark Ltd. v. Commissioner of Central Excise,
Calcutta, (2004)
12 SCC 505 (SC); West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002) 8 SCC 715(SC).
17
JamshedWadia v. Board of Trustees, (2004) 3 SCC 214; Sumitra Devi v. BhikanChoudhary, 1985 CrLJ 528 (SC);
See also Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498; Ramesh Chand v. State of U.P., (1985) 1 SCC
464.
18
Balakrishna v. Ramaswami, AIR 1965 SC 195; Narpat Singh v. Jaipur Development Authority, AIR 2002 SC
2036; See also Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91; Kerala SEB v. Kurien E.
Kalathil, (2000) 6 SCC 293; Jindal Vijayanagar Steel (JSW Steel Ltd.) v. Jindal Praxair Oxygen Co. Ltd., (2006) 11
SCC 521.
19
Chunilal Mehta & Sons, Ltd. v. Century Spinning & Manufacturing Co., Ltd., AIR 1962 SC 1314.

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 18 OF XIII-

Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views.”
1.3.3 It is humbly submitted that the decisions of the Additional Sessions Judge and Chief
Judicial Magistrate is against the principles of natural justice and have violated
appellant’s right to fair trial. There has been gross injustice to the appellant at the hands
of Judiciary and Hon’ble Court is competent enough to uplift the rights attributed to
every citizen of India.

2. WHETHER THE ORDER OF COURT OF SESSIONS IS CORRECT IN LAW OR NOT?

It is humbly submitted that the judgment of Learned Chief Judicial Magistrate is contrary to the
settled principles of criminal jurisprudence. The rules regarding appreciation of evidence, the
Court has to keep in mind certain significant principles of law under the Indian Criminal
Jurisprudence, i.e. right to fair trial and presumption of innocence, which are the twin essentials
of administration of criminal justice. A person is presumed to be innocent till proven guilty.

It is humbly submitted that the judgement by the lower courts suffers from palpable errors of law
and appreciation of evidence. The order passed by the Learned Chief Judicial Magistrate is
solemnly based on the Investigation Report, which is based on prosecution story. The
prosecution in order to degrade the reputation of the Appellant-Accused in the right thinking
member of the society and to settle the scores for not providing special coaching which was
demanded by the responded has falsely implicated the appellant-accused in the instant matter.
The prosecution story is false and frivolous and contains loopholes, discrepancies in the
statement of the witnesses.

2.1 THAT DELAY IN FILING FIR CREATES A REASONABLE DOUBT.

20
“ONUS LIES ON THE PROSECUTION TO PROVE BEYOND REASONABLE GROUND”

2.1.1. It is most respectfully submitted that it is a cardinal principle of criminal jurisprudence that
the guilt of the accused must be proved beyond all reasonable doubt. The burden of
proving its case beyond all reasonable doubt lies on the prosecution and it never shifts.
Another golden thread which runs through the web of the administration of justice in

20 Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 19 OF XIII-

criminal cases is that if two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his innocence, the view which is
21
favourable to the accused should be adopted.
2.1.2. It is humbly submitted that the general principle under criminal law is that when a plea of
false implication is taken Courts have a duty to make deeper scrutiny. It was held in the
22
case of VIDYADHRAN V STATE OF KERALA - Delay in filing FIR can only be a
ground of suspicion when the delay is unexplained. When the delay is not satisfactorily
explained, the same creates doubt as to the genuineness of the prosecution.
2.1.3. It is humbly submitted to the Hon’ble court that in the case of JAI PRAKASH SINGH
23
v. THE STATE OF BIHAR & ANR. ETC.

“The FIR in criminal case is a vital and valuable piece of evidence though may not be
substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect
of the commission of an offence is to obtain early information regarding the circumstances in
which the crime was committed, the names of actual culprits and the part played by them as well
as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging
the FIR, it loses the advantage of spontaneity; danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as a result of large number of
consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance
regarding truth of the informant's version. A promptly lodged FIR reflects the firsthand account
24
of what has actually happened, and who was responsible for the offence in question.”

2.1.4. It is most respectfully submitted that in accordance with the prosecution story the
25
incident happened on the date of 12.08.1990. But the FIR was filed in the year 1999
being no. 516 of 1999 by Jai Prakash, complainant (father of Aradhna, PW-13) under
section 354 and 509 0f the IPC as PS Jodhpur, Rajasthan against the Appellant-

21 State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka, (2007) 4
SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam
and Anr., (2015) 11 SCC 242].

22 Vidhyadharan v. State of Kerala (2004) 1 SCC 2150

23 Jai Prakash Singh v. State of Bihar & ANR.[2012] 5 S.C.R. 1

24 (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501; State of Punjab v. Surja Ram, AIR 1995
SC 2413; Girish Yadav & Ors. v. State of M.P., (1996) 8 SCC 186; and Takdir Samsuddin Sheikh v. State of
Gujarat & Anr
25 Fact Sheet ¶ 3

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 20 OF XIII-

26
Accused by the order of the High Court dated 21.08.1998. There is a delay of nine
years on filing an FIR which creates a doubt in the prosecution story. The reason for
delay in lodging FIR is unexplained and inordinate in the facts of the case which is
fatal to the prosecution story.
2.1.5. It is humbly submitted that it is an undisputed fact being the girls aged 20 years and
27
brilliant student of five year law college are very well aware of their rights and
duties. If such an incident has ever happened to her than the first thing they should do
is to inform the police state and lodge an FIR against the person. But both the girls
has failed to comply with the principle established under the criminal law which
creates a serious doubt on the prosecution case which fails in bringing guilt to the
Accused.
2.1.6. It is most respectfully submitted that in the case of State of Punjab v. Ajaib Singh and
28
Ors: , it has been held that if the explanation is not satisfactory in the facts of the
case, the same might have been due to long deliberation questioning on its credence
and acceptability.
2.1.7. It is humbly submitted that in the said matter the prosecution has failed to explain the
reason behind delay in lodging the FIR. Neither the victim nor the complainant has
mentioned the reason of delay in their statements which creates a doubt on their
statements questioning their credence and credibility.
2.1.8. It is humbly submitted that in the case of STATE INSPECTOR OF POLICE,
29
VISHAKHAPATNAM V. SURYA SANKARAM KARI ,it has been held that if
there has been inordinate delay in recording the statements of the witnesses more
particularly the eye witness then it throws serious doubt on the prosecution case.
2.1.9. It is humbly submitted that in the present matter there is a delay in recording the
statement of the sole eye witness, who is Aradhana, (PW-13) which creates a serious
doubt on the prosecution case. It is possible that in between the alleged incident and
recording of the statements, the possibility of evidence tempering can’t be ignored.

26 Fact Sheet¶ 11
27 Fact Sheet ¶ 2
28 State of Punjab v. Ajaib Singh & Ors. AIR 2004 SC 2466
29 (2006) 7 SCC 172

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 21 OF XIII-

2.2 THAT THE MATERIAL WITNESS HAS NOT BEEN EXAMINED.

2.2.1. It is humbly submitted that under the Criminal Jurisprudence the applicability of the
principle of 'adverse inference' pre-supposes that withholding of such material witnesses
who could have stated precisely and cogently the events as they occurred. Without their
examination, there would remain a vacuum in the case of the prosecution.
2.2.2. It is most respectfully submitted that in the case of GOVINDARAJU @ GOVINDA v.
30
STATE BY SRIRAMAPURAM P.S. & ANR. ,it has been held that non examination of
material witness creates a reasonable doubt in the prosecution case. Court should also
draw adverse inference against the prosecution for not examining the material witnesses.
Material witness are those would unfold the genesis of the incident or an essential part of
the prosecution case and by examining such witnesses the gaps or infirmities in the case
of the prosecution could be supplied. If such a witness, without justification, is not
examined, inference against the prosecution can be drawn by the Court.
2.2.3. It is humbly submitted that according to the prosecution story on 12.08.1990, when both
Ms. Aradhna (PW-13) and Ms. Ruchika (deceased) went inside the office of the
Appellant-Accused. The Appellant- Accused requested Ms. Aradhna (PW-13) to call for
Mr. Thomas- the Coach. Accordingly, Ms. Aradhana (PW-13) went outside leaving
behind the Appellant-Accused and Ms. Ruchika (deceased) in the office. Ms. Aradhna
(PW-13) asked the person who fetched the chair for her in the office to inform the Coach
31
to come to the office of the Appellant-Accused. However, the Coach refused to come.
Also, according to the prosecution story on the date of 14.08.1990, Ms. Ruchika
(deceased) along with Ms. Aradhana (PW-13) went to the Tennis Court at about 4:30
p.m. When both the girls were about to return, at about 6:30 p.m., Mr. Paltoo- the ball
picker, came out of the ground and told Ms. Ruchika (deceased) that the appellant-
32
accused had called her in his office for the collecting the recommendatory letter.
2.2.4. It is humbly submitted that from the abovementioned scenario Mr. Thomas- the coach
and Mr. Paltoo and the person who fetched the chair for Aradhana (PW-13) are essential
and material witnesses. They were present at the time of the incident but were not given

30 (2012) 5 SCR 67

31 Fact Sheet¶3
32 Fact sheet¶7

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 22 OF XIII-

an opportunity to be examined. They can fill the gaps and infirmities arose by the
prosecution story. They were in a better position to explain as what has happened at that
that. The question arises –Whether the Coach was called by the Appellant-accused and he
refused to come. And Whether Mr. Paltoo was asked by appellant-accused to called Ms.
Ruchika (deceased) in his office. These are some questions that can be answered by them
only.
2.2.5. It is humbly submitted that without their examination, there would remain a vacuum in
the case of the prosecution. It is clear from the incident that the lacuna in the case of the
prosecution remains unexplained and the chain of events unconnected.
2.2.6. It is humbly submitted that in this regard, we may refer to the judgment of this Court in
33
the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors wherein this
Court held as under:

“It is true that if a material witness, who would unfold the genesis of the incident or an essential
part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap
or infirmity in the prosecution case which could have been supplied or made good by examining
a witness who though available is not examined, the prosecution case can be termed as suffering
from a deficiency and withholding of such a material witness would oblige the court to draw an
adverse inference against the prosecution by holding that if the witness would have been
examined it would not have supported the prosecution case.”

2.2.7. It is humbly submitted that the court of facts must ask itself — whether in the facts and
circumstances of the case, it was necessary to examine such other witness, and if so, whether
such witness was available to be examined and yet was being withheld from the court. If the
answer be positive then only a question of drawing an adverse inference may arise.

2.3 THAT THE SOLE WITNESS IS AN INTERESTED WITNESS.

34
2.3.1. It is humbly submitted that in Dalip Singh v. State of Punjab this Court observed,
“without any generalization, that a related witness would ordinarily speak the truth,
but in the case of an enmity there may be a tendency to drag in an innocent person as

33 Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors (2001) 6 SCC 145
34 Dalip Singh v. State of Punjab 1954 SCR 145

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 23 OF XIII-

an accused - each case has to be considered on its own facts. This is what this Court
had to say.”
2.3.2. It is humbly submitted that a witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against the accused, to wish to implicate
him falsely. Ordinarily, a close relative would be the last to screen the real culprit and
falsely implicate an innocent person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to drag in an innocent person
against whom a witness has a grudge along with the guilty, but foundation must be
laid for such a criticism and the mere fact of relationship far from being a foundation
is often a sure guarantee of truth. Each case must be judged on its own facts.
2.3.3. It is humbly submitted that in the said case both Ms. Ruchika(deceased) and Ms.
Aradhana(PW-13) are good friends. They both aged 20 Years, residents of Jodhpur,
brilliant students of Five year Law College. Also they both enrolled together to the
tennis association of Appellant –Accused. “The RULE OF PRUDENCE”, however,
only requires a more careful scrutiny of their evidence, since they can be said to be
35
interested in the result of the case projected by them.
2.3.4. It is humbly submitted that in the case of Lallu Manjhi and Anr. vs. State of
36
Jharkhand , this Court had classified the oral testimony of the witnesses into three
categories:
a. Wholly reliable;
b. Wholly unreliable; and
c. Neither wholly reliable nor wholly unreliable
2.3.5. It is humbly submitted that it is an equally well settled is the proposition of law that
where there is a sole witness to the incident, his evidence has to be accepted with
caution and after testing it on the touchstone of evidence tendered by other witnesses
or evidence otherwise recorded. The evidence of a sole witness should be cogent,
reliable and must essentially fit into the chain of events that have been stated by the
37
prosecution.

35 Tahir v. State (Delhi) (1996) 3 SCC 338,

36 Lallu Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401
37 GOVINDARAJU @ GOVINDA v. STATE BY SRIRAMAPURAM P.S. & ANR(2012) 5 SCR 67

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 24 OF XIII-

2.4. THAT THE CONDUCT OF DECSEASED AND WITNESS WAS UNNATURAL

WHICH CREATED A REASONABLE DOUBT.
2.4.1. It is humbly submitted that while the said principle has to be kept in mind, it is also to
be borne in mind that if the conduct of the witness is so unnatural and is not in accord
with acceptable human behaviour allowing of variations, then his testimony becomes
38
questionable and is likely to be discarded.
2.4.2. It is humbly submitted that it is evident from the facts that both the deceased and the
39
sole eye witness were good friends and brilliant Law Students. On the day of
incident there were unnatural occurrences, for instance :
40
• The office of MTA (Marudhar Tennis Association) is situated in residential area, it is
impossible that no one was present around at the time of the incident. Being a Tennis
Association many students come to practice everyday. So, how can such an offence can
be committed at public place. It is also to be noted that both the girls being a brilliant
student of five year law college did not raise an alarm during the time of the incident,
they are very well aware of their rights and duties.
• After seeing Ruchika (deceased) being molested by the appellant the reaction of Aradhana
(PW-13) was so unnatural that we cannot rely on her statements. After the incident took place
on 12.08.1990, both the girls did not inform their parents, instead both of them continued
going to the Tennis Court. Further after the incident on 12.08.1990. Ruchika (deceased) again
visited the office of appellant on 13.08.1990 and she left her
41
maid servant in the car and step ahead towards the Tennis Association without the
presence of Aradhana or her maid servant with her. In view of Aradhana’s unexplained
silence, delayed statement to the police and relationship with the deceased, does not
appear to us to be a wholly reliable witness.
2.4.3. It is humbly submitted that in accordance with the above mentioned contentions the
Hon’ble Court may decide upon the merits of the case and it is evident from the
abovementioned contentions that the prosecution has failed to prove the charge

38 Lahu Kamlakar Patil and Anr. V State of Maharashtra (2013) 6 SCC 417

39 Fact sheet ¶2
40 Fact Sheet ¶1
41 Fact sheet ¶6

MEMORIAL ON BEHALF OF APPELLANT

-ARGUMENTS ADVANCED- -PAGE 25 OF XIII-

beyond the reasonable doubt and therefore the appellant should be given benefit of
doubt in the present matter.

3. WHETHER THE SENTENCE ENHANCED IS TENABLE IN LAW.

It is respectfully submitted that the Court of sessions exceeded its power by enhancing the
42
sentence of appellant and thus the appellant has been deprived of his rights guaranteed under
the Constitution of India.

3.1 APPLICATION OF EX POST FACTO LAW IN THE INSTANT CASE WAS ULTRAVIRES.

3.1.1. It is humbly submitted ex-post-facto law imposes penalties retroactively; it is upon the
43
acts already done, or which increases penalty for the past acts. Whereas, the
44
Constitution of India, 1950 being the Grundnorm of the country provides citizens with
45
certain Fundamental Rights and remedies in case of their violation and one of such
46
Fundamental Right is vested in Article 20(1) of the Constitution provides for necessary
protection against ex post facto laws.

Article 20(1) Constitution of India states that:“No person shall be convicted for any offence
except for violation of a law in force at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence.”

3.1.2. It is humbly submitted that with respect to the prosecution story, the material date for
th 47
commission of offence is 12 August 1990 according to PW-13, the sole eye witness.
By that logic the laws prevalent at the time of commission of offence must be applied.

42 Factsheet pg 6
43 Corwin, The Constitution and What it Means To-day, 78 (1958)
44 A county that enshrines the rule of law would be one where in the Grundnorm of the country, or the basic
and core law from which all other law derives its authority is the supreme authority of the state.(Kelsen’s Theory of
Grundnorm)
45 Part III of Fundamental Rights of the Constitution of India, 1950
46 Article 20 of Part III, Fundamental Rights of the Constitution of India, 1950
47 Factsheet pg 2 ¶ 3

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-ARGUMENTS ADVANCED- -PAGE 26 OF XIII-

48
Before the commencement of The Criminal Law (Amendment) Act, 2013 Section
49
354 of Indian Penal Code, 1860 prescribed the punishment as:

“shall be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both”

3.1.3. In the same respect, it is humbly submitted that the Rules of Interpretation of Penal
Statutes prescribe for Strict and Literal interpretation of such statute. It is undoubtedly
true that where the language of an enactment is clear and plain upon its face and by itself
susceptible to only one meaning, then ordinarily that meaning would have to be given by
50
the court. Following these rules it is evident that the Court was competent to grant
imprisonment to the appellant for maximum of 2 years and not beyond that. The second
part of Article 20(1) immunizes a person from penalty greater than that what he might
have incurred at the time of his committing the offence. Thus, a person cannot be made to
suffer more by an ex post facto law than what he would be subjected to at the time he
51
committed the offence.
3.1.4. It is humbly submitted that in a case with similar question of law as to the present case
52
were dealt with in case of Kedar Nath Bajora v. State of West Bengal : “The Supreme
Court held that the enhanced punishment could not be applicable to the offence
committed in 1947 because of the prohibition contained in Art. 20(1).”
3.1.5. It is humbly submitted that in addition to above judgement recently the Supreme Court in
53
case of Ravinder Singh v State of Himachal Pradesh held that “It is trite law that the
sentence imposable on the date of commission of the offence has to determine the
sentence imposable on completion of trial. This position is clear even on a bare reading
of Article 20(1) of the Constitution of India, 1950 (in short, 'the Constitution').”
3.1.6. It is humbly submitted that as regards to the punishment of 3 years by Additional
Sessions Judge stands to the extent of 1 extra year than prescribed in law received by the

48 (13 of 2013) (w.e.f. 3-2-2013)

49 S 354 Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses
criminal force to any woman, intending to outrage or knowing it to likely that he will thereby outrage her
modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or
with fine, or with both.
50 Union of India (UOI) v. Sankalchand Himatlal Sheth and Anr. [1978 ]1SCR 423
51 Wealth Tax Commr., Amritsar v. Suresh Seth AIR 1981 SC 1106
52 Kedar Nath Bajora v. State of West Bengal AIR 1953 SC 404
53 Ravinder Singh v State of Himachal Pradesh AIR 2010 SC 199

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-ARGUMENTS ADVANCED- -PAGE 27 OF XIII-

appellant is in contravention of article 20 of the Constitution which provides, inter alia,

that no person shall be subjected to a penalty greater than that which might have been
54
inflicted under the law in force at the time of the commission of the offence.
3.2 THERE IS VIOLATION OF FUNDAMENTAL RIGHTS OF THE APPELLANT.

3.2.1. It is humbly submitted that inclusive of Art. 20(1) as aforementioned in the argument,
other Fundamental Rights of the appellant have been abrogated due to the enhancement
of sentence by the court which includes:
3.2.2. It is humbly submitted before the Hon’ble Court that “Equality is one of the magnificent
55
corner-stones of Indian democracy.” The doctrine of equality before law is a necessary
56
corollary of Rule of Law which pervades the Indian Constitution. Art. 14 of the Indian
Constitution states that: Equality before law- The State shall not deny to any person
equality before law or the equal protection of the laws within the territory of India.
3.2.3. It is humbly submitted that the Supreme Court has rightly observed that: “We are a
country governed by the Rule of Law. Our Constitution confers certain rights on every
human-being and certain other rights on citizens. Every person is entitled to equality
57
before the law and the equal protection of the laws.”
3.2.4. It is most respectfully submitted that under protection of Art. 14, all persons in similar
58
circumstances shall be treated alike both in privileges and liabilities imposed. Equal
protection of laws does not postulate equal treatment of all persons without distinction.
What it postulates is the application of the same laws alike and without discrimination to
all persons similarly situated. It denotes equality of treatment in equal circumstances. It
implies that among equals the law should be equal and equally administered, that, the like
should be treated alike without distinction of race, religion, wealth, social status or
59
political influence. The principle of equality of law thus means not that the same law
should apply to everyone but that a law should deal alike with all in one class; that there
should be an equality of treatment under equal circumstances. It means “that equals

54 Kedar Nath Bajoria v The State of West Bengal[1954 ]1SCR 30

55 Thommen, J., Indra Sawhney v. Union of India AIR 1993 SC 477
56 Ashutosh Gupta v. State of Rajasthan AIR 2002 SC 1533
57 Faridabad CT. Scan Centre v. D.G. Health Services AIR 1997
SC 3801 Also Chairman, Railway Board v. Chandrima Das AIR 2000 SC
988
58 John Vallamattom v. Union of India AIR 2003 SC 2902
59 Jagannath Prasad v. State of Uttar Pradesh AIR 1961 SC 1245, Mohd. Saheb Mahboob v. Dy.
Custodian AIR 1961 SC 1657

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-ARGUMENTS ADVANCED- -PAGE 28 OF XIII-

should be treated unlike and unlikes should not be treated alike. Likes should be treated
60
alike.”
3.2.5. It is humbly submitted that in addition to this, Art. 14 guarantees equal protection not
61
only as regards substantive laws but procedural laws as well. A statute carries with it a
presumption of Constitutionality. Such a presumption extends also in relation to a law
which has been enacted for imposing reasonable restrictions on Fundamental Rights. A
further presumption may also be drawn that the statutory authority would not exercise the
62 63
power arbitrarily. A State authority within the meaning of Art. 12 must be reasonable
and non-arbitrary in its action. When there is arbitrariness in state action, Art. 14 springs
into action and the courts strike down such action. Arbitrary state action infringes Art.
64
14. Where a particular mode is prescribed for doing an act and there is no impediment
in adopting the procedure, the deviation to act in different manner which does not
disclose any discernible principle which is reasonable in itself shall be labelled as
arbitrary. Every State action must be informed by reason and it follows that an act
65
uninformed by reason is per se arbitrary.
3.2.6. It is humbly submitted that the enhancement of sentence by the Additional Sessions Judge
(which is well within the ambit of “State” of Art. 12) is instance of one such arbitrary and
unreasonable state action wherein the appellant has not been treated equally in a situation
where according to the law he could only be granted punishment only up to 2 years and
not beyond that as under the classification of group of people convicted under s. 354 of
IPC, 1860 would be granted punishment (till offence committed before the
commencement of The Criminal Law (Amendment) Act, 2013) up to 2 years
imprisonment only or fine or both and nothing more than that. But to the contrary, he has
been granted 3 years imprisonment. This is a clear violation of appellant’s Right
envisaged under Art. 14.

60 Gauri Shankar v. Union of India AIR 1995 SC 55

61 Charan Lal Sahu v. Union of India AIR 1990 SC 1480
62 People’s Union for Civil Liberties v. Union of India AIR 2004 SC 1442
63
“In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of
India and the Government and Legislature of each of the States and all local and other authorities within the
territory of India or under the control of Government of India.”, Art. 12 of Part III, Fundamental Rights of the
Constitution of India, 1950
64 A.P. Aggarwal v. Govt. of NCT of Delhi AIR 2000 SC 205
65 Bannari Amman Sugars Ltd. v. CTO.(2005) 1 SCC 625

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-ARGUMENTS ADVANCED- -PAGE 29 OF XIII-

66
3.2.7. It is humbly submitted that in Sudhir Chandra , the Supreme Court has observed:
“...Our Constitution envisages a society governed by rule of law. Absolute discretion
uncontrolled by guidelines which may permit denial of equality before law is antithesis of
rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency
to be arbitrary and is therefore violative of Art. 14 equality before law and absolute
discretion to grant or deny benefit of the law are diametrically opposed to each other and
cannot co-exist.” Thus the enhancement of punishment granted by the Court in this case
67
must be striked down on basis of Bachan Singh v. State of Punjab which mentioned
that; “Every state action must be non-arbitrary and reasonable. Otherwise the court would
strike it down as invalid.”
3.3. Violation of Art. 19(1)(d)68.
3.3.1. It is most respectfully submitted that article (a) to (g) of Art. 19 (1) of Constitution of
India guarantee to the citizens of India six freedoms, viz, of ‘speech and expression’,
‘peaceable assembly’, ‘association’, ‘free movement’, ‘residence’ and ‘practising and
profession and carrying on any business’. It is possible that a right does not find express
mention in any clause of Art. 19(1) and yet it may be covered by some clause therein.
This gives an additional dimension to Art. 19(1) in the sense that even though a right
69
may not be explicit, it may yet be implicit, in the various clauses of Art. 19. The
present case deals specifically with Art. 19(1)(d) that is, the Freedom of Movement in
contradiction to the sentence as enhanced by the court.

Art. 19(1)Constitution of India states that: Protection of certain rights regarding

freedom of speech, etc. All citizens shall have the right-

(d) To move freely throughout the territory of India.

70
3.3.2. It is humbly submitted that this right is subject to restriction under Art. 19(5) wherein
reasonable restrictions may be placed either in the interest of general public or for

66 Sudhir Chanra v. Tata Iron & Steel Co. Ltd. AIR 1984 SC 1064
67 AIR 1982 SC 1336
68 Article 19 of Part III, Fundamental Rights of the Constitution of India, 1950
69 Maneka Gandhi v. Union of India AIR 1978 SC 597, Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295
70 Art. 19(5) Nothing contained in sub-clauses (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the

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protection of interests of any Scheduled Tribe. All such restraints on personal liberty
have to be commensurate with the object which furnishes their justification. There
should be minimal and ought not to exceed the constraints of particular situation, either
71
in nature or in duration. When the Court granted 1 year extra erroneous rigorous
imprisonment to the appellant in contradiction to Art. 20(1) as discussed earlier, the
appellant’s right to move freely as under clause (1)(d) of Art. 19 is strongly violated.
The Court by doing so neither imposed any reasonable restriction in interest of general
public nor there is any presence of legal justification but went beyond its competency.
72
3.4. Violation of Art. 21 .
3.4.1. It is humbly submitted that according to Bhagwati, J., Art. 21 “embodies a constitutional
73
value of supreme importance in a democratic society.” Iyer, J., has characterised Art. 21
74
as “the procedural magna carta protective of life and liberty.” Art. 21 Constitution of
India states: Protection of life and personal liberty- No person shall be deprived of his
life or personal liberty except according to the procedure established by law.
3.4.2. It is humbly submitted that under provision of this Article any person deprived of life and
personal liberty not according to the procedure established by law may take relief. The
75
ambit of this Article has been widened after the Maneka Gandhi’s case which has been
frequently cited in plethora of cases relating to this article. The expression ‘‘personal
liberty’’ used in Art. 21 have also been given a liberal interpretation. It does not mean
merely the liberty of the body, i.e., freedom from physical restraint or freedom from
confinement within the bounds of a prison. In other words, it means not only freedom
from arrest or detention, from false imprisonment or wrongful confinement, but means
much more than that. The term ‘‘personal liberty’’ is not used in narrow sense but has
been used in Article 21 as a compendious term to include within it all those variety of
76
rights of a person which go to make up the personal liberty of a man.

exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for
the protection of the interests of any Schedule Tribe.
71 Rupinder Singh Sodhi v. Union of India AIR 1983 SC 65
72 Article 21 of Part III, Fundamental Rights of the Constitution of India, 1950
73 Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746
74 P.S.R. Sadhanantham v. Arunachalam AIR 1980 SC 856
75 Maneka Gandhi v. Union of India AIR 1978 SC 597
76 M.C. Mehta v. Union of India AIR 2003 SC 3469

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3.4.3. It is humbly submitted that in the case of District Registrar and Collector v. Canara Bank
Supreme Court said that:”The expression ‘personal liberty’ is of the widest amplitude and
it covers a variety of rights which go to constitute the personal liberty of man and some
of them have been raised to the status of distinct Fundamental Rights and given
additional protection under Art. 19. Right to personal liberty also means the life free
from encroachments unsustainable in law.”
3.4.4. It is most respectfully submitted with respect to Issue 2 argued earlier; a person also has a
right to fair trial as interpreted from the Art. 21 by different Courts but as put forth the
material witnesses in the present case have not been examined which leads to a strong
denial of right to fair trial as the lower courts did not even bother to look into the merits
of the case wherein the prosecution has misled the court by examining only those
witnesses favourable to prosecution story. It is now established after Maneka Gandhi that
‘procedure’ for purposes of Art. 21 has to be reasonable, fair and just. The Supreme Court
77
has asserted in Kartar Singh v. State of Punjab that the procedure contemplated by Art.
21 is that it must be “right, just and fair” and not arbitrary, fanciful and oppressive. In
order that the procedure be right, just and fair, it must conform to natural justice. The
Court has emphasised that it is the duty of the State to preserve law and order. “It is the
state’s duty to see that the rule of law enunciated by Art. 21 is available to the greatest
78
number.” When it is State’s duty to preserve law and order and Judiciary being the
Custodian of Indian Constitution, there has been a gross violation of the appellant’s
Fundamental Rights at the hands of Judiciary itself.
3.4.5. It is humbly submitted that considering the issues raised and arguments advanced as
contended earlier, the punishment enhanced by the Court is not tenable in law and the
extra erroneous 1 year of rigorous imprisonment (out of the total 3 years of rigorous
imprisonment) is completely outside its jurisdiction. Therefore, the appellant be given
benefits against the inconvenience caused to him, the judgement of the Court in question
be quashed and this Hon’ble Court may freshly look into the merits of the case.

77 Kartar Singh v. State of Punjab (1994) 3 SCC 569

78 Inderjit Barua v. Assam AIR 1983 Del 513
The court drew support for this thesis from the Social Contract Theory of Locke and Hobbes as well as from
the theories prevailing in Ancient India as found in Mahabharata and Dharmashastra.

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS

GIVEN AND AUTHORITIES CITED THIS COURT MAY BE PLEASED TO:

1. HOLD THE PRESENT SPECIAL LEAVE PETITION AS MAINTAINANBLE.

2. ISSUE WRIT OF CERTIORARI DIRECTING CONCERNED AUTHORITIES TO

VITIATE THE PROCEEDINGS OF TRIAL COURT AND START FRESH

PROCEEDINGS FOLLOWING DUE PROCESS OF LAW.

3. ISSUE WRIT OF CERTIORARI DIRECTING CONCERNED AUTHORITIES TO

VITIATE THE SENTENCE GIVEN BY THE LEARNED ADDITIONAL SESSIONS

JUDGE AND START FRESH PROCEEDINGS FOLLOWING DUE PROCESS OF

LAW.

AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

COUNSELS FOR THE

APPELANT AND PETITIONER

MEMORIAL ON BEHALF OF APPELLANT