LEGAL SKILLS VI

SUBMITTED
BY
HARSHIT SINGH
18010323057
DIV A BALL.B

IN THE MONTH
OCTOBER 2020

SUBMITTED TO
PANKAJ P UMBRAKAR
(FACULTY INCHARGE)
ANSWERS TO THE QUESTION
 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

(UNDER ORDER 38 RULE 12 OF SUPREME COURT RULE 2013READ
WITH ARTICLE 142 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. OF 2017

(IN THE MATTER OF PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

Manish Kant Mishra
S/o Sh. Devaria Mishra
R/o- K 29/40 Model Town II,
Behind Karnal’s mart, New Delhi 100012
….Petitioner
-VERSUS-

1. Union of India, Through its

Secretary, Ministry of Home
Affairs, North Block, New
Delhi-110001 Respondent No.1

2. Union of India, Through its

Secretary, Ministry of Law and
Justice, 4th Floor, A-Wing,
Shastri Bhawan, New Delhi-
110001 Respondent No.2
3. Union of India, Through its
Secretary, Ministry of Ministry
of Women and Child
Development, Government of
India
Shastri Bhawan, New Delhi
Respondent No.3

4. State of Madhya Pradesh,

Through Its Secretary of Home
Affairs Government of Madhya
Pradesh
3rd Floor, Vallabh Bhavan-II,
Bhopal, Madhya Pradesh
462004
Respondent No.4
5. State of Maharashtra, Through
Its Secretary of Home Affairs
Government of Maharashtra
Madam Cama Road, Hutatma
Rajguru Chowk, Nariman
Point, Mumbai, Maharashtra
400032 Respondent No.5

6. State of Uttar Pradesh,

Through Its Secretary of Home
Affairs Government of Uttar
 Pradesh, Home department
First, Second and Third Floor,
Lal Bahadur Shastri
Bhawan(A.M
Building)Sarojini Naidu
Marg,Lucknow,
Uttar Pradesh, India. Pin:
226001 Respondent No.6

7. State of Chhattisgarh, Through

Its Secretary of Home Affairs
Government of Chhattisgarh,
Department of Home, Jail,
D.K.S. Bhawan, Mantralaya,
Raipur, Chhattisgarh – 492001 Respondent No.7

8.
State of Rajasthan, Through Its
Secretary of Home Affairs
Government of Rajasthan,C
Scheme, Ashok Nagar, Jaipur,
Respondent No.8
Rajasthan 302007

9.
State of Kerala, Through Its
Secretary of Home Affairs,
Ground Floor, Main Block,
Secretariat,
Respondent No.9
Thiruvananthapuram, Kerala
695001
 State of Tamil Nadu, Through
10. Its Secretary of Home Affairs,
Government of Tamil
Nadu,Namakkal
Kavignar,Maaligai,
Fort St. George,
Chennai 600 009 Respondent No.10

A PUBLIC INTEREST LITIGATION BY WAY OF A WRIT

PETITION UNDER ORDER 38 RULE 12 SCR 2013 READ
WITH ARTICLE 32 OF THE CONSTITUTION OF INDIA
SEEKING ISSUANCE OF DIRECTIONS OF APPROPRIATE
NATURE SO AS TO REGULATE THE FLOW OF BITCOIN
(CRYPTO MONEY) AND TO ENSURE THAT THE SAME BE
MADE ACCOUNTABLE TO EXCHEQUER.

TO,
HON'BLE THE CHIEF JUSTICE OF INDIA
AND HIS LORDSHIP'S COMPANION JUSTICES OF THE SUPREME
COURT OF INDIA

THE HUMBLE PETITION OF THE

PETITIONER ABOVENAMED

IN THE SUPREME COURT OF INDIA

WRIT PETITION (CRIMINAL) NO. OF 2020
(IN THE MATTER OF PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

Manish Kant Mishra ....Petitioner
-Versus-
Union of India & Others ....Respondents

AFFIDAVIT

I, Manish Kant Mishra, S/o Sh. Devaria Mishra, R/o- K 29/40 Model Town II,
Behind Karnal’s mart, at New Delhi, do hereby solemnly affirm and declare as
under:-
1. That I am the Petitioner in the accompanying Writ Petition and being so I
am well conversant with the facts and circumstances of the instant case
and thus duly competent to swear the instant Affidavit.

2. That I have read and understood the contents of the accompanying Writ
Petition at paragraph nos. 1 to 10 at page no. ___ to ____ of the
accompanying Affidavit, which has been drafted by me and I state that
the content thereof are true and correct to my best knowledge and belief.

3. That the annexures annexed with the accompanying Writ Petition are the
true copies of their respective originals.

4. That the Petitioner has no personal gain, private motive or oblique reason
in filing the instant Public Interest Litigation.

DEPONENT
VERIFICATION
Verified at New Delhi on this day of Nov 2020that the contents of the
aforesaid Affidavit are true and correct to the best of my knowledge and belief
and nothing material has been concealed therefrom.

DEPONENT

INDEX

SI Particulars Page no. of part to Remark

 which it belongs

Part I Part II
(Contents (Content
of Paper s of fille
Book alone
(i) (ii) (iii) (iv) (v)
1. Court Fees

2. Listing Proforma A1-A2

3. Cover Page of Paper A3

Book
4. Index of record of A4
Proceedings
5. Writ Performa A5

6. Defect List A6

8. Note Sheet NS1-NS

9. Synopsis and List of B-M

Dates
10. Writ Petition © along 1-19
with supporting
Affidavit
11. 20-22

14. Memo of Filing 26

15. Vakalatnama 27
 PROFORMA FOR FIRST LISTING

SECTION -PIL

The case pertains to (Please tick/check the correct box)

o Central Act: (Title): NA

o Section: NA
o Central Rule: (Title): NA
o Rule No (s): NA
o State Act: (Title): NA
o Section: NA
o State Rule: (Title): NA
o Rule No (s): NA
o Impugned Interim Order: (Date): NA
o Impugned Final Order/Decree: (Date): NA
o High Court: (Name): NA
o Name of Judges: NA
o Tribunal/Authority: (Name): NA

1. Nature of matter: Criminal

2. (a) Petitioner/Appellant: ABC
(b) Email ID: rdb.sc.legal@gmail.com
(c) Mobile Phone No.: 9258258963

3. (a) Respondent: Union of India and Ors.

(b) Email ID: NA
(c) Mobile Phone No.: NA

3. (a) Main Category Classification:

(b) Sub Classification:
4. Not to be Listed Before: NA

5. Similar Pending Matter: NO SIMILAR MATTER

PENDING

6. Criminal Matters: NA
(a) Whether accused/convict has surrendered: NA

(b) FIR No. and Date: NA

(c) Police Station: NA

(d) Sentence Awarded: NA

8. Land Acquisition Matters: NA

(a) Date of Section 4 Notification: NA
(b) Date of Section 6 Notification: NA
(c) Date of Section 1 Notification: NA

9. Tax Matters: State the tax effect: NA

1. Special Category (First Petitioner/Appellant Only):

Senior Citizen/ 65 Years/ SC/ ST/ Woman/ Child/
Disabled/ Legal Aid Case/ In Custody: NA

2. Vehicle Number (In case of Motor Accident Claim

matters): NA

3. Decided cases with citation: NA

SADAKANT PARIHAR
 ADVOCATE FOR THE PETITIONER
REGISTRATION NO. 1245
EMAIL. sadakant_parihar@gmail.com
DATE 03.11.2020
NEW DELHI

MOST RESPECTFULL SHOWETH:-

1. That the instant Public Interest Litigation by way

of Writ Petition has been preferred before this
Hon’ble Court under Order 38 Rule 12 of SCR
2013 read with Article 142 of the Constitution of
India seeking issuance of directions of appropriate
 nature so as to regulate Sexual offences like rape
constitute an altogether different kind of crime
which is the result of perverse mind.

2. The Petitioner is an Advocate and Voter ID No.

TBI0595355

3. That the Petitioner is an Advocate. The lack of any

concrete mechanism pending the regulatory
framework in said regard has left a lot of vacuum
and which has resulted in total unaccountability for
the offences of rape.

4. That the petitioner is filing the present petition on

her own and not at the instance of someone else.
The litigation cost, including the advocate's fee and
the travelling expenses of the lawyer, if any, are
being borne by the petitioner herself.
5. That the facts constituting the cause of action
leading to the fling of the petition are as follows:

5.1Children who have been sexually abused are not

only traumatized as a result of their experience,
but are also more vulnerable to further and
repeated abuse and at risk of secondary
victimization at the hands of the justice delivery
process. A common example is the handling of
cases of child victims by unspecialized police,
prosecutors and judges who are not trained in
justice for children, children‘s rights or how to
deal and communicate with victim children and
 their families. The lack of clear guidelines and
procedures on how to deal with child victims
and their families in a child – sensitive manner
during the court process affects the quality of
trial and evidence and trial process; the child is
subjected in such cases to repeated probing and
questioning, made to relive the traumatic
incident again and again, and thereby suffer in
the retelling. Another instance is that of child
victims not receiving proper medical support
and counselling, causing physical and mental
distress to the child and his/her family and
hampering the healing process for the child. In
addition to this, families and child victims are
unable to benefit from legal aid as the
appropriate agencies are not involved at the
right stage in the procedure. Child victims do
not receive timely advice and assistance so as to
be free from a fear of family breakdowns and
social isolation if the offender is a relative
and/or the breadwinner of the family. There is
also no system of supervision for checking the
welfare and well-being of child victims during
and after the court process, particularly when
the abuser is the parent or guardian of the child.

5.2The scope of the word “rape” cannot be

constricted into narrow terms. This petition
aims to study the major lacunas in the present
 definition and the phenomenon that is given
there for rape. This word can be traced back to
its roots in Latin as it originates from the word
Rapio the meaning of which is “to seize”.
Hence rape means forcible seizure and it is the
most essential characteristics of rape. If we go
by the layman’s language then it means sexual
intercourse that takes place without the consent
of women by fear, force or fraud, it can also be
said that rape is the sheer violation of the
privacy person of the female counterpart and
this term rape has been defined barbaric and
inhuman in nature. If we go by the wordings of
Section 375 of Indian Penal Code the term rape
hae been defined as:

A. Rape.—A man is said to commit “rape” who,

except in the case hereinafter excepted, has
sexual intercourse with a woman under
circumstances falling under any of the six
following descriptions:—

B. (First) — Against her will.

C. (Secondly) —Without her consent.

D. (Thirdly) — With her consent, when her

consent has been obtained by putting her or
any person in whom she is interested in fear of
death or of hurt.

E. (Fourthly) —With her consent, when the man

knows that he is not her husband, and that her
consent is given because she believes that he is
 another man to whom she is or believes herself
to be lawfully married.

F. (Fifthly) — With her consent, when, at the time

of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or through
another of any stupefying or unwholesome
substance, she is unable to understand the
nature and consequences of that to which she
gives consent.

G. (Sixthly) — With or without her consent, when

she is under sixteen years of age. Explanation.
—Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of
rape.

H. (Exception) —Sexual intercourse by a man

with his own wife, the wife not being under
fifteen years of age, is not rape.] 

5.3 There has been an amendment in the year 2013

After the Nirbhaya’s case and Provisions
related to Section 375 Indian Penal Code, 1860
got amended and the major changes that was
brough was changing the definition of the term
rape and now the new definition includes
penetration of penis into vagina, urethra anus
or mouth or any object or any part of the body
to an extent into the vagina, urethra or anus of
another woman or making another person do
so; to apply mouth or touching private
parts constitutes the offence of sexual assault.
 Another major change that was brough was
clarification in regards to the term penetration
which was changes to “penetration to any
extent” and also to underline here that lack of
any physical resistance is equivalent to an
immaterial thing for the purpose of constituting
the offence. It was also held via amendment that
with respect to such offence there shall lie few
cases where imprisonment shall lie for 7 years
extendable up to life imprisonment and in case
of aggravated situations it shall be not less than
10 years extendable up to life imprisonment and
even death in the case of barbaric and inhuman
act.

5.4 India is a country where children hold a high

status and still, we are not able to provide
enough measures to protect them. Rape is said
to be the most atrocious crime against children
especially a girl child and data shows that even
after the proper rules and regulations in the
name of Prevention of Child from Sexual
Offences (POCSO) Act 2012 the cases didn’t
went down. Although the law is there but the
implementation part or the ground reality is
something far from what the makers of this
regulation had thought off. There is lacking
from our side or there should be attempt to
make better the implementation part and this
 abruptly leads to sometimes miscarriage of
justice and also that of the wrong interpretation
of the crime in a diversified way.

5.5As per the statistics in India Citing National

Crime Records Bureau statistics, the latest
report on child sexual assaults in India says
48,338 rape cases were reported during the
decade. There was a 336 per cent increase in
child rape cases in the country between 2001
and 2011, a large number of the crimes
committed in juvenile justice homes run and
aided by the government. And Among the
States, Madhya Pradesh recorded the highest
number of child rape cases at 9,465 from 2001
to 2011, followed by Maharashtra with 6,868
cases, Uttar Pradesh 5,949, Andhra Pradesh
3,977 and Chhattisgarh 3,688. Delhi reported
2,909 cases. Rajasthan had 2,776, Kerala 2,101,
Tamil Nadu 1,486, Haryana 1,081, Punjab
1,068, Gujarat 999, West Bengal 744 and
Odisha 736. Many of the child rape cases were
reported from homes established under the
Juvenile Justice (Care and Protection of
Children) Act, 2000. By the end of financial
year 2011-2012, 733 homes were fully
supported by the government under the
Integrated Child Protection Scheme of the
Ministry of Women and Child Development. It
 is acquiesced that over the last few decades,
India has witnessed prodigious growth. In spite
of all development and progress, children are
still victims of dreadful crimes.

5.6 As observed by Hon`ble Justice Krishna

Iyer, in Rafique’s case [1980 Cr.LJ 1344 SC]:
“When a child is ravished, what is wreaked is
not mere corporeal injury but the deep sense of
some everlasting sham jurisdictive response to
Human Rights cannot be dulled by legal
bigotry.”

5.7 As observed by Hon`ble Justice Anuj Rathor,

in FatimaKhaitoon
WRIT PETITION (CRIMINAL) NO. 296 OF 
2000:
“There can be no keener revelation of a
society's soul than the way in which it treats
its children.”

5.8 The prevalent POCSO Act 2012 provides for

the following procedure for the protection of
Children against sexual offences (details of
which is Annexure 1 to this PIL)

a. Penetrative Sexual Assault (Section 3) – Not

less than seven years which may extend to
imprisonment for life, and fine (Section 4) 

b. Aggravated Penetrative Sexual Assault

(Section 5) –- Not less than ten years which
 may extend to imprisonment for life, and
fine (Section 6) 

c. Sexual Assault (Section 7) – Not less than

three years which may extend to five years,
and fine (Section 8) 

d. Aggravated Sexual Assault (Section 9) – Not

less than five years which may extend to
seven years, and fine (Section 10) 

e. Sexual Harassment of the Child (Section

11) – Three years and fine (Section 12) 

f. Use of Child for Pornographic Purposes

(Section 13) – Five years and fine and in the
event of subsequent conviction, seven years
and fine (Section 14 (1))

5.9Even despite of these laws there is a lacking of

proper implementation at the ground level
which leads to the sexual harassment of
children especially girl child by different ways
and that too the most recent being the rape cases
in the shelter home provided by the
Governments.

5.10 The prevention of child sexual abuse,

protection of victims, justice delivery, and
rehabilitation of victims are not isolated issues.
The achievement of these objectives requires a
coordinated response of all the key players,
 which include the police, prosecution, Courts,
medical institutions, psychologists and
counsellors, as well as institutions that provide
social services to the children. The protection of
children from violence and abuse thus requires
an integrated and coordinated approach.
Needless to say, the identification and
understanding of the roles of each of these
professionals is crucial to avoid duplication and
promote effective convergence.

6. That the Petitioner has no personal interest

involved in the instant Petition.
7. That there is no civil, criminal or revenue litigation
involving the Petitioner, which has or could have
so legal nexus with the issues involved in the
instant Public Interest Litigation.

8. That the petitioner has not filed any other or

similar matter before this Hon’ble Court or any
other Court for similar relief.

9. That the Petitioner has not approached any

Government Authority for reliefs sought in the
present petition as the same would be otiose.

10.That the instant petition is prepared on the basis of

information gathered from various newspaper
articles
11.That in view of the above, the present petition has
been filed inter-alia, on the following amongst
other grounds:

GROUNDS

A. In our country children are considered as

equivalent to god and the increasing number of
rape cases has led to negative impact to the
society.

B. Citing the data that National Crime Records

Bureau (NCRB) gives every 3 days 100 rape
cases in regards to children are being registered
and India stands at the low level when it comes
to implementing child protection laws and
giving justice to the child.

C. In the year 2011 Concept of Fast Track Courts

was underlined for getting a change
preliminaries of assault casualties which
consistently postponed for quite a long time
anyway these most optimized plan of attack
courts has their own issues to continue with the
way that there is no particular enactment that
oversees their working and sets out the
standards to be followed. Another central
question is that there are no specialized assets
for sound and video chronicles and most
likewise don't have ordinary staff or assigned
insightful officials who can hear these cases.
 D. Even after the above-mentioned process there
has been a lot of pending cases in India and
there has been two time increase in the same in
last one year and as per proposal of Ministry of
Law and Justice of 1023 Fast Track Courts only
366 have been set up and out of those 366
around 250 have been ceased to work anymore.

E. Protection of young minds and the future of the

country has been an utmost priority in the
political manifesto but the ground check give an
unexpected reality that is grave.

F. Other Grounds will be raised during course of

hearing

PRAYER
In view of the above, it is most respectfully prayed that this Hon’ble Court may
graciously be pleased to–

a. Issue imperative directions of suitable nature

so as to direct the states to form a reasonable
guideline within an appropriate time frame
for the prevention of heinous crime against
children and report directly to the Ministry
of Home Affairs and Ministry of Law and
Justice

b. Constitution of committee having an Ex

Grade A officer, an Ex High Court Judge
and a member from Ministry of Women and
 Child development (not less than a grade B
level) for improving the vulnerable
conditions of fast tract courts.

c. Establishment of expert committee

comprising the a JJB member, a women
member from Ministry of Women and Child
development (not less than a grade B level)
to look into the matter of crime against
children and consider it in a reformative
way.

d. Passing order to take State owned shelter

home under the periphery of Central
Government and appointment of nodal
officer by the central government for
looking into the functions and report directly
to Ministry of Women and Child
Development.
e. Pass any other order or direction as this
Hon’ble Court may deem fit and proper in
the facts and circumstances of the case and
in the interest of justice.

AND FOR THIS ACT OF KINDNESS, THE HUMBLE PETITIONER AS IS

DUTY BOUND SHALL EVER PRAY.

Drawn By: Filed by:

VINAY ARORA
 SADAKANT PARIHAR
ADVOCATE FOR THE PETITIONER

NEW DELHI
DRAWN ON: 28.10.2020
FILED ON: 03.11.2020

That the petitioner has not filed any other or similar matter before this
Hon’ble Court or any other Court for similar relief.
 ANNERURE P/1

MINISTRY OF LAW AND JUSTICE

4th FLOOR A WING SHASTRI BHAWAN, NEW DELHI-110001

GOVERNMENT OF INDIA

Website: https://lawmin.gov.in

Date: 6th August 2019

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT)

ACT, 2019

the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the

principal Act), in section 2,—

(a) in sub-section (1), after clause (d), the following clause shall be inserted, namely:—

(b) '(da) "child pornography" means any visual depiction of sexually explicit conduct

involving a child which include photograph, video, digital or computer generated

image indistinguishable from an actual child, and image created, adapted, or

modified, but appear to depict a child;';

(b) in sub-section (2), for the words, brackets and figures "the Juvenile Justice (Care and

Protection of Children) Act, 2000", the words, brackets and figures "the Juvenile Justice

(Care and Protection of Children) Act, 2015" shall be substituted.

3. In the principal Act, section 4 shall be renumbered as section 4(1) thereof and—

(a) in sub-section (1) as so renumbered, for the words "seven years", the words "ten years"

shall be substituted;

(b) after sub-section (1), the following sub-sections shall be inserted, namely:—

"(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall

be punished with imprisonment for a term which shall not be less than twenty years, but

which may extend to imprisonment for life, which shall mean imprisonment for the

remainder of natural life of that person, and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the

victim to meet the medical expenses and rehabilitation of such victim.".

RAVI SHANKAR PRASAD

HON’BLE MINISTER LAW AND JUSTICE

TRUE COPY
 ANNERURE P/2

DEPARTMENT OF COMMUNICATION, CENTRAL OFFICE, S.B.

MARG, NEW DELHI 110001

PHONE: +912222660502

THE HINDU

Website: /www.thehindu.com

Date: 21st April 2013

JUVENILE HOMES ARE HELLHOLES, SAYS REPORT ON CHILD RAPE

Citing National Crime Records Bureau statistics, the latest report on child sexual assaults in
India says 48,338 rape cases were reported during the decade. There was a 336 per cent
increase in child rape cases in the country between 2001 and 2011, a large number of the
crimes committed in juvenile justice homes run and aided by the government.

ARJUN RADHAWA
 Editor, The Hindu

TRUE COPY

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL/APPELLATE /ORIGINAL JURISDICTION
W.P (CIVIL) NO. OF 2017
IN THE MATTER OF:

Manish Kant Mishra ....Petitioner

-Versus-
Union of India & Others ....Respondents

VAKALAT NAMA
Manish Kant Mishra, S/o Sh. Devaria Mishra, R/o- K 29/40 Model Town II,
Behind Karnal’s mart, at New Delhi the Petitioner in the above Petition/Appeal
do hereby appoint and retain Mr. Sadakant Mishra , Advocate-on-Record,
Supreme Court, New Delhi to act and appear for me/us in the above
Petition/Appeal and on my/our behalf to conduct and prosecute (or defend) or
withdraw the same and all proceedings that may be taken in respect of any
application connected with the same or any decree or order passed therein
including proceedings in taxation and application for Review, to file and obtain
return documents and receive money in my/our behalf in the said
Petition/Appeal and to represent me/us and to take all necessary steps on my/our
behalf in the above matter. I/we agree to ratify all acts done by the aforesaid
Advocate on record in pursuance of this authority.
Dated ___ day of ____ 2020
ACCEPTED & IDENTIFIED & CERTIFIED

(Manish Kant Mishra)

Petitioner/ Respondent /Caveator

MEMO OF APPEARANCE

To,
The Registrar
Supreme Court of India,
New Delhi.

Sir,
Please enter my appearance for the above named Appellant(s) /
Petitioner(s) / Respondent(s) in the above mentioned matter.
Dated __ day of ____ 2020

Filed by
 (SADAKANT MISHRA)
Advocate for the Petitioner/ Respondent/Caveator