Respondent Memo TC27

Team Code: TC 27_R
MEMORIAL FORRESPONDENT
XXth All India Moot Court Competition, 2021
BEFORE THE HON’BLESUPREME COURT OF AVADH
SPECIAL LEAVE PETITION

S.P.L. NO. ___/2021
IN THE MATTERS OF
Jameer Ali………………………………………………………………………………….Petitioner
Sameer Chowdhary………………………………………………………………………..Petitioner
v.
Union of Awadh…………………………………………………………………………Respondent
ALONGWITH
Union of Awadh………………………………………………………………………….. Petitioner

v.
Jameer Ali……………………………………………………………………………….Respondent
Sameer Chowdhary……………………………………………………………………...Respondent
U/Art. 136 of The Constitution of Awadh, 1950
BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF AVADH

AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF
AVADH
MEMORIAL ON BEHALF OF THE RESPONDENT
1
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................... 4

INDEX OF AUTHORITIES ..................................................................................................... 5
STATEMENT OF JURISDICTION
............................................................................................................................................. 7
ISSUES INVOLVED............................................................................................................. 10
SUMMARY OF ARGUMENTS ............................................................................................. 11
ARGUMENTS ADVANCED ................................................................................................. 13
1.WHETHER THE APPELLATE TRIBUNAL ERRED IN NOT INTERFERING WITH THE
DECISION OF THE DATA PROTECTION AUTHORITY JUSTIFYING THE INTERCEPTION OF
DATA AND HENCE WHETHER IS THE SAME SUSTAINABLE IN LAW? ............................ 13
1.1THERE WAS NO PERSONAL DATA BREACH AS UNDER SEC. 3(29) OF THE
PROTECTION OF PERSONAL DATA ACT, 2019 ............................................................. 13
1.2. THE INTERCEPTION OF DATA BY J.K. TECHNOLOGIES DID NOT VIOLATE ANY
RIGHTS PROTECTED UNDER THE PROTECTION OF PERSONAL DATA ACT, 2019
.............................................................................................................................................. 14
1.3. INTERCEPTION OF SAID DATA IS EXEMPTED UNDER SEC. 35 AND 36 OF THE
PROTECTION OF PERSONAL DATA ACT, 2019 ............................................................. 15
2. WHETHER THE HIGH COURT ERRED IN ITS DECISION APPROVING THE
CONSTITUTIONALITY OF THE PROCEEDINGS INITIATED BY THE CONTROLLER OF THE
CERTIFYING AUTHORITIES UNDER SEC. 69 OF THE IT ACT, 2000? ................................. 16
2.1PRESUMPTION OF CONSTITUTIONALITY ................................................................ 16
2.2FUNDAMENTAL RIGHTS ENSHRINED IN CONSTITUTION ARE NOT ABSOLUTE,
HENCE, NO VIOLATION CAUSED ................................................................................... 17
3. WHETHER THE CHARGE LEVIED UNDER SECTION 124A OF AVADH PENAL CODE
AND DETENTION THEREOF ARE SUSTAINABLE IN LAW? .............................................. 18
3.1. ACTIONS POSED A THREAT TO PUBLIC ORDER .................................................. 18
3.2. THERE WAS AN COMPELLING NECESSITY TO DETAIN ....................................... 20
4. WHETHER THE ORDER OF THE HIGH COURT ENDORSED THE CONSTITUTIONALITY
OF THE DECISION OF THE MAGISTRATE DIRECTING COLLECTION OF VOICE SAMPLES
OF DR. CHOWDHARY IS LEGALLY SUSTAINABLE IN THE BACKDROP OF THE RIGHT
AGAINST SELF-INCRIMINATION GUARANTEED UNDER ARTICLE 20(3) OF THE
CONSTITUTION? ................................................................................................................ 22
4.1 NO VIOLATION OF RIGHT TO PRIVACY ................................................................... 22
2
4.2 DOES NOT AMOUNT TO SELF-INCRIMINATION UNDER ARTICLE 20(3) ............ 22

4.3 EJUSDEM GENERIS ..................................................................................................... 24
5.WHETHER THE DECISION OF THE HIGH COURT TO SUOMOTU INVOKE THE
INHERENT JURISDICTION UNDER SEC. 482 OF THE AVADH CODE OF CRIMINAL
PROCEDURE, 1973 TO FORM A SPECIAL INVESTIGATION TEAM TO PROBE INTO A
MATTER UNDER INVESTIGATION IS SUSTAINABLE IN LAW AND FACTS? ................... 25
5.1. DEMARCATION BETWEEN CRIME DETECTION AND CRIME PUNISHMENT .... 25
5.2. UNLIMITED ARBITRARY JURISDICTION UNDER SECTION 482 OF CRPC ........ 26
3
LIST OF ABBREVIATION
¶ Paragraph
§ Section
& And
AIR All India Reporter
Anr. Another
Art. Article
Bom.C.R Bombay Criminal Cases
CRL.A. Criminal Appeal
Cr LJ Civil Rules for Courts of Limited Jurisdiction
CrPC Criminal Procedural Code
CW Court Witness
HC High Court
Hon’ble Honourable
i.e That is
IPC Indian Penal Code
J. Justice
NCT National Capital Territory
Ors. Others
para Paragraph
PC Privy Council
P&H Punjab and Harayana
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
Sd\- Signature with name and date
UOI Union of India
v. Versus
4
INDEX OF AUTHORITIES
STATUTES AND REGULATIONS
● The Citizenship (Amendment) Act, 2021

● The Code of Criminal Procedure, 1973
● The Constitution of India, 1950
● The Evidence Act, 1872
● The Indian Penal Code, 1860
● The Information Technology Act, 2000
● The Personal Data Protection Bill, 2019
● The Telegraph Act, 1885
BOOKS
● A Commentary on Indian Penal Code, G.D Gaur, Third Edition

● Cybercrime and Information Technology Act, 2000, Vikram Singh Jaswal, Shweta
Thakur Jaswal, First Edition
● Indian Evidence Act by Nageshwar Rao, Second Edition
● R.V Kelkar’s Criminal Procedure, Sixth Edition
● The Indian Penal Code, Ratanlal & Dhirajlal, Thirty Sixth Edition
REPORTS AND INDICES
● Law Commission of India- 87th Report

● Protecting Privacy, Empowering Indians (Justice B.N. Srikrishna Committee Report),
2018
● Report of the Group of Experts on Privacy (Justice A.P. Shah Committee Report),
2012
ONLINE DATABASE
● HeinOnline
● JSTOR
● LexisNexis India (Advance)
● Manupatra
● SCC Online
● Westlaw India & International
5
CASES REFFERED
1. Abdul Nasir Khan v. L. Hmingliana, Secretary (Preventive Detention), (1991) 1 Bom CR 183..¶25
2. Anuradha Basin v Union of India, Writ Petition (Civil) No. 1031 of 2019………………….…..¶16
3. Baby Devassy Chully v. Union of India, (2013) 4 SCC 531………………………………………...¶29
4. Balwant Singh and Anr v. State of Punjab, 1995 (1) SCR 411………………………………….…..¶25
5. Banka Sneha Sheela v. The State of Telangana, Criminal Appeal No. 733 of 2021….…………..¶28
6. Divine Retreat Centre v. State of Kerala, Appeal (crl.) 472 of 2008………………………………¶47
7. Emperor v. Bal Gangadhar Tilak, (1917) 19 BOMLR 211……………………………….…………¶24
8. Emperor v. KhwajaNazir Ahmad, (1945) 47 BOMLR 245…………………………………………¶47
9. Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCR 1095…………………………………….¶32
10. Githa Hariharan v. RBI, 2 SCC 228……………………………………………………………………¶14
11. Hazari Lal Gupta v. Rameshwar Prasad &Anr. Etc., 1972 SCR (2) 666…………………………..¶51
12. In Collector of Customs v. Nathella Sampathu Chetty, [1962] 3 SCR 786…….………………….¶13
13. Jagdish Valecha v. The State of Madhya Pradesh, MCRC-53989-2019……….………………….¶52
14. Justice K.S. Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1………………………………¶34
15. K Anjaiah v. K. Chandraiah, 1998 (2) SCR 35……………………………………………………….¶12
16. Kamal Pal and Another v. State of Punjab, CRR-677-2021……………………………………..¶39
17. Kedarnath v. State of Bihar, 1962 SCR Supl. (2) 769………….…………………………………….¶21
18. Kurukshetra University v. State of Haryana, (1977) 4 SCC 451….…………………………….…..¶54
19. M. Pentiah v. Muddala Veeramllappa, AIR 1961 SC 1107……………………………………..…..¶34
20. ML Kamra v. New India Assurance, 1992 SCR (1) 220…………………………………………….¶13
21. Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353…..¶17
22. PravasiBhalaiSangathan v. U.O.I &Ors. AIR 2014 SC 1591.……………………………………….¶16
23. Ritesh Sinha v. State of Uttar Pradesh and Another, (2019) 8 SCC 1……………………………...¶35
24. S.N. Sharma v. Bipen Kumar Tiwari & Ors, 1970 SCR (3) 946……………………………………¶51
25. Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481………………………………………………¶40
26. Selvi and Others v. State of Karnataka, (2010) 3 SCC (Cri) 1……………………………………...¶42
27. State of Bihar &anr. v. J.A.C. Saldanha & Ors, 1980 SCR (2) 16………...………………………..¶21
28. State of Bombay v. Kathi Kalu Oghad, 1962 SCR (3) 10…………………………………………...¶42
29. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534…………………….¶18
30. State of Rajasthan v. Union of India, [1977] 3 SCC 592…………………………………………….¶14
31. State of U.P. v. Ram Babu Misra, (1980) 2 SCC 343……………………………………………...…¶41
32. State of West Bengal v. S.N. Basak, 1963 SCR (2) 52………………………………………………¶51
6
STATEMENT OF JURISDICTION
THE HON’BLESUPREME COURT OF INDIANA HAS JURISDICTION TO HEAR THE

MATTERS UNDER ART. 136 OF THE CONSTITUTION OF AWADH, 1950.
“ART.136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT:
1. NOTWITHSTANDING ANYTHING IN THIS CHAPTER, THE SUPREME COURT
MAY, IN ITS DISCRETION, GRANT SPECIAL LEAVE TO APPEAL FROM ANY
JUDGMENT, DECREE, DETERMINATION, SENTENCE OR ORDER IN ANY CAUSE
OR MATTER PASSED OR MADE BY ANY COURT OR TRIBUNAL IN THE
TERRITORY OF AWADH.
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.”
7
STATEMENT OF FACTS
THE PARTIES
The Appeal is filed by Mr. Jameer Ali and Dr. Sameer Chowdhary before the Hon’ble
Supreme Court of Avadh aggrieved by the order of the High Court and the Appellate
Tribunal.
BACKGROUND OF THE CASE
Avadh is a Democratic, Republic, and Secular Nation in the Asian Continent with a
population of over 100 Action. The country follows a federal structure of governance. On
15th July 2021, the Union Parliament passed the Citizenship (Amendment) Act, 2021
governing citizenship. The opposition, on the other hand, was not very pleased with the Act.
Massive protests, movements, and dharnas were organized against the law following its
notification. Opposition leaders, various political organizations, and social activists took part
in the protest.
The Government anticipating nationwide protest and agitation resorted to peremptory

measures to handle the adverse situations which could arise in the context. On 25th July
2021, the Controller of Certifying Authorities issued an order directing J. K. Technologies to
intercept information with aid of spyware named ‘spygaus’ of some high-level politicians,
activists, and journalists in consonance with Sec. 69 of the IT Act, 2000. Similar orders were
issued by the telegraph authority to intercept information through telegraph devices also.
THE INCIDENT
On 27th July 2021, Mr. Jameer Ali, the editor in chief of People Today, sent the questions for
an interview to Dr. Chowdhary, a notable Constitutional Law expert and social activist via
WhatsApp, to which he responded in the form of voice messages. Dr. Chowdhary has
allegedly criticized the Prime Minister and the Home Minister, citing instances of
maladministration. Mr. Ali had said “if the people remain silent today, they will achieve what
our forefathers never wanted for this country”
8
On 28th July 2021, at 2:00 AM, the local police arrested Dr. Chowdhary from his house and
Mr. Ali from his office at South Selhi. Both were charged under Sec. 124 A of Avadh Penal
Code, 1860 before Magistrate. Judicial First Class Magistrate of South Selhi issues an order
to collect voice samples of both accused for the digital analysis under Sec. 311 A of Avadh
Criminal Procedure Code. Later on, they were released on conditional bail.
Mr. Ali and Dr. Chowdhary approached the High Court of New Selhi under Art. 226 of the
Constitution of Avadh challenging the constitutionality of the order of interception issued by
the Controller under Sec. 124A of the Avadh Penal Code and also the order of the Magistrate
under Sec. 311A of Criminal Procedure Code. Simultaneously, they also filed a complaint
before the Data Protection Authority of Avadh alleging that the interception of their data by
the State violated rights protected under the Protection of Personal Data Act, 2019.
The Authority dismissed the complaint stating that the WhatsApp chat does not come within
the meaning of Personal Data as defined under Sec. 2(29) of the Act. The Appellate Tribunal
confirmed the order of the Authority.
The High Court of New Selhi upheld the constitutionality of the proceedings initiated by the
Controller against the Appellants and also the Order of the Magistrate under Section 311A.In
the same proceedings, the High Court formed a Special Investigation Team to probe into the
data interception using ‘Spygaus’ by J.K. Technologies by invoking Sec. 482 of the Avadh
Criminal Procedure Code.
CURRENT STATUS
Mr. Ali and Dr. Chowdhary filed an appeal before the Hon’ble Supreme Court of Avadh. The
State also filed an appeal against the Order of the High Court establishing SIT. All three
appeals came to be admitted by the Supreme Court and scheduled a hearing on all three
appeals on 06-11-2021.
9
ISSUES INVOLVED
ISSUE ONE
WHETHER THE APPELLATE TRIBUNAL ERRED IN NOT INTERFERING WITH THE

DECISION OF THE DATA PROTECTION AUTHORITY JUSTIFYING THE
INTERCEPTION OF DATA AND HENCE WHETHER IS THE SAME SUSTAINABLE IN
LAW?
ISSUE TWO
WHETHER THE HIGH COURT ERRED IN ITS DECISION APPROVING THE

CONSTITUTIONALITY OF THE PROCEEDINGS INITIATED BY THE CONTROLLER
OF THE CERTIFYING AUTHORITIES UNDER SEC. 69 OF THE IT ACT, 2000?
ISSUE THREE
WHETHER THE CHARGE LEVIED UNDER SECTION 124A OF AVADH PENAL

CODE AND DETENTION THEREOF ARE SUSTAINABLE IN LAW?
ISSUE FOUR
WHETHER THE ORDER OF THE HIGH COURT ENDORSING THE

CONSTITUTIONALITY OF THE DECISION OF THE MAGISTRATE DIRECTING
COLLECTION OF VOICE SAMPLES OF DR. CHOWDHARY IS LEGALLY
SUSTAINABLE IN THE BACKDROP OF THE RIGHT AGAINST SELF-
INCRIMINATION GUARANTEED UNDER ARTICLE 20(3) OF THE CONSTITUTION?
ISSUE FIVE
WHETHER THE DECISION OF THE HIGH COURT TO SUO MOTU INVOKE THE
PROCEDURE, 1973 TO FORM A SPECIAL INVESTIGATION TEAM TO PROBE INTO
A MATTER UNDER INVESTIGATION IS SUSTAINABLE IN LAW AND FACTS?
10
SUMMARY OF ARGUMENTS
ISSUE 1
WHETHER THE APPELLATE TRIBUNAL ERRED IN NOT INTERFERING WITH THE
DECISION OF THE DATA PROTECTION AUTHORITY JUSTIFYING THE
INTERCEPTION OF DATA AND HENCE WHETHER IS THE SAME SUSTAINABLE IN
LAW?
It is humbly submitted before this Honourable Supreme Court that there was no personal
data breach as under sec. 3(29) of the protection of personal data act, 2019 and Under Sec.
12 of the IT Act, it is explicitly prescribed that the personal data may be processed if such
processing is necessary Furthermore, Interception of said data is exempted under Sec. 35 and
36 of the Protection of Personal Data Act, 2019. Therefore, Appellate Tribunal did not err in
not interfering with the decision of the Data Protection Authority justifying the interception
of data and hence the same is sustainable in law
ISSUE 2
WHETHER THE HIGH COURT ERRED IN ITS DECISION APPROVING THE
CONSTITUTIONALITY OF THE PROCEEDINGS INITIATED BY THE CONTROLLER
OF THE CERTIFYING AUTHORITIES UNDER SEC. 69 OF THE IT ACT, 2000?
It is humbly submitted before this Honourable Supreme Court that the fundamental rights
enshrined in Constitution are not absolute, hence, no violation caused. And also there is a
presumption in favour of the constitutionality of legislation or statutory rule unless ex facie
it violates the fundamental rights guaranteed under Part III of the Constitution. Therefore,the
High Court did not err in its decision approving the constitutionality of the proceedings
initiated by the Controller of the Certifying Authorities under Sec. 69 of the IT Act, 2000.
ISSUE 3
WHETHER THE CHARGE LEVIED UNDER SECTION 124A OF AVADH PENAL CODE
AND DETENTION THEREOF ARE SUSTAINABLE IN LAW?
It is humbly submitted before this Honourable Supreme Court that that the actions posed a
threat to public order of the country at large and furthermore there existed a compelling
necessity to detain as the statement made by the Petitioner were inciting the people in the
11
society as they urged not to remain silent. Thus, the detention and charge levied under
section 124A of Avadh Penal Code is sustainable in law.
ISSUE 4
WHETHER THE ORDER OF THE HIGH COURT ENDORSED THE
SUSTAINABLE IN THE BACKDROP OF THE RIGHT AGAINST SELF-INCRIMINATION
GUARANTEED UNDER ARTICLE 20(3) OF THE CONSTITUTION?
It is humbly submitted before this Honourable Supreme Court that directing a person to part
with his voice sample to the police is not a violation of his fundamental right to privacy and
does not amount to Self-Incrimination under Article 20(3). Fundamental right to privacy
under Article 21 cannot be construed as absolute but must bow down to compelling public
interest. Hence, giving voice samples to an investigating agency was not a violation of the
fundamental right against self-incrimination.
ISSUE 5
WHETHER THE DECISION OF THE HIGH COURT TO SUO-MOTU INVOKE THE
PROCEDURE, 1973 TO FORM A SPECIAL INVESTIGATION TEAM TO PROBE INTO A
MATTER UNDER INVESTIGATION IS SUSTAINABLE IN LAW AND FACTS?
It is humbly submitted before this Honourable Supreme Court that here is demarcation
between crime detection and crime punishment and the formation of a Special Investigation
Team by the High Court to probe into the data interception using Spygaus by J.K.
Technologies is merely an encroachment over the power of other statutory authorities.
Furthermore, the facts of the given case fail to establish any possible attack on the
preservation of justice. Therefore, the High Court did err to invoke the inherent jurisdiction
under Sec. 482 of the Avadh Code of Criminal Procedure, 1973 to form a special
investigation team to probe into a matter
12
ARGUMENTS ADVANCED
ISSUE ONE
1.WHETHER THE APPELLATE TRIBUNAL ERRED IN NOT INTERFERING
WITH THE DECISION OF THE DATA PROTECTION AUTHORITY JUSTIFYING
THE INTERCEPTION OF DATA AND HENCE WHETHER IS THE SAME
SUSTAINABLE IN LAW?
¶1. The Counsel for Respondent humbly submits before the Hon’ble Supreme Court that the
Appellate Tribunal did not err in not interfering with the decision of the Data Protection
Authority justifying the interception of data and hence the same is sustainable in law. There
are two fold arguments to substantiate the same. The Counsel primarily contends that there
was neither any personal data breach nor any violation of rights conferred under the Act.
1.1 THERE WAS NO PERSONAL DATA BREACH AS UNDER SEC. 3(29) OF THE
PROTECTION OF PERSONAL DATA ACT, 2019
¶2. It is humbly submitted before this Hon’ble Supreme Court that the Sec. 3(29) of the
Personal Data Protection Act, 2019 defines a personal data breach as follows —
“Sec.3 (29) "personal data breach" means any unauthorised or accidental disclosure,
acquisition, sharing, use, alteration, destruction of or loss of access to, personal data that
compromises the confidentiality, integrity or availability of personal data to a data
principal.”1
¶3. It is to bring to the Court’s knowledge that the bare reading of the section revolves around
the words ‘unauthorized’, ‘or’ and ‘accidental’. The separation of words with an ‘or’ implies
the said act should either be unauthorized or accidental. It is evident from the facts that the
interception of data was not accidental as an order was made with a purpose to handle the
adverse situations arising out of the nation-wide agitation.2 Unauthorized in normal
understanding means an act which is done without having an official permission or approval.
However, in the given case, the disputed order of interception of data was ordered by the
Controller of Certifying Authorities. “On 25th July, 2021 the Controller of Certifying
1
The Personal Data Protection Bill, 2019, § 3(29), Bill No. 373 of 2019 (India).
2
Fact sheet, para 3.
13
Authorities issued an order to intercept information through any computer resource of some
high level politicians, activists and journalists in consonance with Sec. 69 of the IT Act,
2000.”3
¶4.Sec. 29 (1) of the Information Technology Act empowers the Controller of Certifying
Authority to have access to any computer system, any apparatus, data or any other material
connected with such system, for the purpose of searching or causing a search to be made for
obtaining any information or data contained in or available to such computer system.4
¶5. Therefore, the Controller in the present case directed the J. K. Technologies and telegraph
authority to intercept information as per the power conferred to it in the Sec. 29 (2) of the IT
Act, 2000.5 Hence, it is an established fact that the Controller of Certifying Authorities had
the power to authorize the interception of data and therefore the said interception does not fall
under the definition of ‘personal data breach’.
1.2. THE INTERCEPTION OF DATA BY J.K. TECHNOLOGIES DID NOT VIOLATE ANY
RIGHTS PROTECTED UNDER THE PROTECTION OF PERSONAL DATA ACT, 2019
¶6. The Counsel for the Respondents strongly contends that the information intercepted does
not fall under the definition of personal data. Personal data is defined under the Sec. 3(28) of
the Personal Data Protection Act, 2019.6 It is to bring to the Court’s notice that the said
WhatsApp conversation between Mr. Jameer Ali and Dr. Chowdhary does not involve any
characteristic, trait, attribute or any other feature of the identity of a natural person.7
¶7. It is humbly presented before the Hon’ble Supreme Court that the processing of data is
defined under Sec. 3(31)8 in the Act, which includes operations such as collection, use,
dissemination, etc. Under Sec. 12 of the IT Act, it is explicitly prescribed that the personal
data may be processed if such processing is necessary in case of , “Sec.12 (f) — to undertake
any measure to ensure safety of, or provide assistance or services to, any individual during
any disaster or any breakdown of public order.”9
¶8. Furthermore, Sec. 1410 of the Act also prescribes that personal data may be processed
without obtaining consent under Sec. 1111 if such processing is necessary for such a
3
Fact sheet, para 3.
4
The Information Technology Act, 2000, § 29(1), Act. No. 21 of 2000 (India).
5
6
7
8
9
The Information Technology Act, 2000, § 12 (f), Act. No. 21 of 2000 (India).
10
The Personal Data Protection Bill, 2019, § 14, Bill No. 373 of 2019 (India).
11
14
reasonable purpose which may include prevention and detection of any unlawful activity. The
conversation neither includes any constituents such as data related to financial, health, sexual,
caste, tribe as included in the definition of sensitive data in the Act.12 It may be contended by
the Petitioner that the conversation depicts their political affiliation. However, it may be
inferred from the facts that the interview was to be published the very next day, therefore
there was already an intention to make the interview circulate across the nation.13 This makes
it clear that the said conversation does not come under the definition personal data.
1.3. INTERCEPTION OF SAID DATA IS EXEMPTED UNDER SEC. 35 AND 36 OF THE

PROTECTION OF PERSONAL DATA ACT, 2019
¶9. It is submitted before the Hon’ble Court that even if just for the sake of argument, the
Court considers the said data to be personal data, its interception is exempted under the
Sections 35 and 36 of the Personal Data Protection Act, 2019. The Sec. 35 clearly states that
the Central Government may direct the non-application of the sections of the Act in the
interest of sovereignty.14 It also states that similar directions can be issued for preventing
incitement to the commission of any cognizable offence relating to sovereignty and integrity
of India and its security. The explanation to the section further elaborates the expression
"processing of such personal data" includes sharing by or sharing with such agencies of the
Government by any data fiduciary, data processor or data principal.15In addition to this, Sec.
3616 also adds exemptions to the application of the Act in cases of prevention, detection,
investigation and prosecution of any offence or any other contravention of any law. Phrases
such as “if people remain silent today” and “the master brains are trying to achieve their
agenda” are clearly indicative of incitement caused on the part of the Petitioners where they
suggest a course of action to people coupled with the allegations of corruption to add fuel to
the already burning agitation.17
¶10. It becomes important to draw the Court’s attention to the Section 17. The section talks
about the appointment of controllers and other officers which mentions- “Sec 17 (2) — The
Controller shall discharge his functions under this Act subject to the general control and
12
13
Fact sheet, para 5.
14
15
16
17
Fact sheet, para 6.
15
directions of the Central Government.”18Therefore, it is evident that the Central Government

acted through the Controller in ordering the interception of data. Therefore, Appellate
Tribunal was right in confirming the order of the Data Protection Authority.
ISSUE TWO
2. WHETHER THE HIGH COURT ERRED IN ITS DECISION APPROVING THE
CONSTITUTIONALITY OF THE PROCEEDINGS INITIATED BY THE
CONTROLLER OF THE CERTIFYING AUTHORITIES UNDER SEC. 69 OF THE
IT ACT, 2000?
¶11. It is submitted before the Hon’ble Supreme Court that the High Court did not err in its
decision approving the constitutionality of the proceedings initiated by the Controller of the
Certifying Authorities under Sec. 69 of the IT Act, 2000. The Counsel submits two-fold
argument to substantiate the same. Primarily, the fundamental rights enshrined in
Constitution are not absolute and there exists a presumption of constitutionality.
2.1. PRESUMPTION OF CONSTITUTIONALITY

¶12. It is humbly presented before the Hon’ble Supreme Court that it was stated in the case K
Anjaiah v. K. Chandraiah19 that the Presumption of Constitutionality is a cardinal principle of
construction that the Statute and the Rule or the Regulation must be held to be
constitutionally valid unless and until it is established they violate any specific provision of
the Constitution. Further, it is the duty of the Court to harmoniously construe different
provisions of any Act or Rule or Regulation, if possible, and to sustain the same rather than
striking down the provisions out rightly.
¶13. The Court ought not to interpret the statutory provisions, unless compelled by their
language, in such a manner as would involve its unconstitutionality, since the legislature of
the rule-making authority is presumed to enact a law that does not contravene or violate the
constitutional provisions. Therefore, there is a presumption in favour of the constitutionality
of legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed
under Part III of the Constitution. If the provisions of a law or the rule are construed in such a
way as would make it consistent with the Constitution and another interpretation would
render the provision or the rule unconstitutional, the Court would lean in favour of the former
18
19
K Anjaiah v. K. Chandraiah, 1998 (2) SCR 35.
16
construction.20 The possibility of abuse of a statute otherwise valid does not impart to it any
element of invalidity.21
¶14. The validity of legislation is to be presumed and efforts should always be there on the
part of the law Courts in the matter of retention of the legislation in the statute book rather
than scrapping it and it is only in the event of gross violation of constitutional sanctions that
law Courts would be within its jurisdiction to declare the legislative enactment to be an
invalid piece of legislation and not otherwise22.In the case of State of Rajasthan v. Union of
Awadh23, it was said that,
¶15. “It must be remembered that merely because power may sometimes be abused, there is
no ground for denying the existence of power. The wisdom of man has not yet been able to
conceive of a Government with power sufficient to answer all its legitimate needs and at the
same time incapable of mischief.” Similarly, before dwelling into the debate of
unconstitutionality of Sec. 69 of IT Act, the Hon’ble Court should acknowledge the above-
mentioned precedents where the Court applied the said presumption.
2.2. FUNDAMENTAL RIGHTS ENSHRINED IN CONSTITUTION ARE NOT ABSOLUTE,

HENCE, NO VIOLATION CAUSED
¶16. In the case of Anuradha Basin v Union of Awadh, the Court laid down that Articles 19
and 21 of the Constitution require that any action of the State must demonstrate five essential
features: (a) backing of a ‘law’, (b) legitimacy of purpose, (c) rational connection of the act
and object, (d) necessity of the action, and (e) when the above four are established, then the
test of proportionality.24 In the case of Pravasi Bhalai Sangathan v. U.O.I &Ors.25, the Court
stated that enforcement of the provision regulating hate speech is required being in
consonance with the proposition “salusrei publicae suprema lex” that means safety of the
state is the supreme law. The object sought to be achieved from the application of the section
is sovereignty and integrity of the country. Apparently, the advent of technology has made
more and more people socially connected. The social media can be a dangerous tool to
manipulate public opinion, disturb the national security, sovereignty and integrity. Therefore,
the object sought is clearly proportional to the act under the section. Hence the power to issue
20
ML Kamra v. New India Assurance, 1992 SCR (1) 220.
21
In Collector of Customs v. Nathella Sampathu Chetty, [1962] 3 SCR 786.
22
Githa Hariharan v. RBI, 2 SCC 228.
23
State of Rajasthan v. Union of India, [1977] 3 SCC 592.
24
Anuradha Basin v Union of India, Writ Petition (Civil) No. 1031 of 2019.
25
PravasiBhalaiSangathan v. U.O.I &Ors. AIR 2014 SC 1591.
17
directions for interception or monitoring or decryption of any information through any

computer resource laid down under the Section 6926 of the IT Act complies with all the above
mentioned conditions of constitutionality.
¶17. It is humbly presented before the Hon’ble Court that no constitutional right can be
claimed to be absolute in a realm where rights are interconnected to each other, and limiting
some rights in public interest might therefore be justified.27
¶18. The Counsel for the Respondent would thus want to point out the nature of action under
Sec. 69 of the Act. The section merely mentions gaining access, interception, monitoring or
decrypting data. There is no mention of any complete prohibition or restriction on the
exchange of information among individuals. The same was held by the Court that, the
restriction on free speech and expression may include cases of prohibition.28
ISSUE THREE
3. WHETHER THE CHARGE LEVIED UNDER SECTION 124A OF AVADH PENAL
CODE AND DETENTION THEREOF ARE SUSTAINABLE IN LAW?
¶19. It is humbly submitted before this Hon’ble Court that the detention and charge levied
under section 124A of Avadh Penal Code is sustainable in law as that the actions posed a
threat to public order, there was a compelling necessity to detain, that the ordinary law of the
land was not sufficient to deal with the situation.
3.1. ACTIONS POSED A THREAT TO PUBLIC ORDER
¶20. That Section 124A of the Avadh penal code state states that: “Whoever, by words, either
spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts
to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the
Government estab-lished by law in Awadh shall be punished with im-prisonment for life to
which fine may be added, or with impris-onment which may extend to three years, to which
fine may be added, or with fine.”
¶21. The 1st Constitutional (Amendment) Act, 195129 added in Art 19(2) two words of widest
import, wiz., “in the interest of” “public order”. Thereby including the legislative restrictions
26
The Information Technology Act, 2000, § 69, Act. No. 21 of 2000 (India).
27
Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
28
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
29
The Constitution (First Amendment) Act, 1951 (India).
18
on freedom of speech and expression. It has been stated that the expression in the interest of
public order is of wider connotation, and includes not only the Acts which are likely to
disturb public order but something more than that. In accordance with this interpretation,
section 124-A, I.P.C. has been held intra vires of the constitution. In Kedarnath v. State of
Bihar it was held that any law which is enacted in the interest of public order may be saved
from the vice of constitutional invalidity.30
¶22. That the Court had further observed in the said case that the right guaranteed under Art
19(1) (a) is subject to such reasonable restriction as would come within the purview of clause
(2), to Art 19 which comprises (a) security of the State, (b) friendly relations with foreign
states, (c) public order, (d) decency or morality, etc. with reference to the constitutionality of
section 124-A, of the I.P.C, as to how far they are consistent with the requirements of clause
(2) of Art 1931 with particular reference to security of state and public order, the section, it
must be noted penalizes any spoken or written words or science or visible representations,
etc., which have the effect of bringing, or which attempt to bring into hatred or contempt or
excite or attempt to excite disaffection towards “the government established by law” has to be
distinguished from the persons for the time being engaged in carrying on the administration.
“Government established by law” is the visible symbol that the state would be in jeopardy,
where the government established by law is subverted.
¶23. It is contented that in the charged situation where the country was facing massive protest
and heavy criticism regarding the Citizenship (Amendment) Act, 2021 governing citizenship.
The statements given by Mr. Ali that “the master brains are trying to achieve their agenda of
transforming the nation in accordance with their political agenda, and if the people remain
silent today, they will achieve what our forefathers never wanted for this country” and that
“they will erase the history” are clearly inciting the individuals of the entire nation to not to
remain silent and thereby provoking to disrupt the public order and tranquillity by
jeopardizing the security of the nation. The allegations of maladministration cannot be
construed within the meaning of constructive criticism.
¶24. That the effect of subverting the Government by bringing that Government into contempt
or hatred, or creating disaffection against it, would be within the penal statute because the
feeling of disloyalty to the Government established by law or enmity to it imports the idea of
tendency to public disorder by the use of actual violence or incitement to violence.
30
Kedarnath v. State of Bihar, 1962 SCR Supl. (2) 769.
31INDIA CONST. art. 19 § 2
19
Contending that the voice recording was not published is clearly irrelevant as it was held by
the Hon’ble Court that “if the person tried to excite feelings of hatred or contempt towards
the Government, that is sufficient to make him guilty under this section.”32
¶25. It is pertinent to mention that the sedition law can not only be used when there was
incitement to violence but also when there is intention to create disorder.33In other words, any
written or spoken words, etc., which have implicit in them the idea of subverting Government
by violent means, which are compendiously included in the term 'revolution', have been made
penal by the section in question.
3.2. THERE WAS AN COMPELLING NECESSITY TO DETAIN
¶26. As the country was witnessing massive protests against Citizenship (Amendment) Act,
202134 on 25th July, 2021 the Controller of Certifying Authorities issued an order to
intercept information under the Sec. 6935. That in the time of the heated situation in the
country, on 27th July, 2021 Mr. Jameer Ali, the editor in chief of People Today scheduled an
interview with a notable constitutional law expert and social activist Dr. Sameer
Chowdhary36. It is pertinent to mention before this Hon’ble Court that Petitioner through this
speech allegedly criticized the Prime Minister and the Home Minister, citing instances of
maladministration and the way in which the chaos in the country is been handled.
¶27. In the instant case, a perusal of the material placed on record reveals that the Petitioner
through their statements, which would have been published and circulated in the entire nation
the very next day, attempted to incite the 1.38 billion population of this country. He also
stated “the master brains are trying to achieve their agenda of transforming the nation in
accordance with their political agenda, and if the people remain silent today, they will
achieve what our forefathers never wanted for this country” and that “They will erase the
history”
¶28. Constitutional law expert and social activist Dr. Sameer Chowdhary is a learned man, has
potential to create impact in the society and his views do matter. The possibilities of people
listening to him and acting on his views are very high. They made preparations for engaging
32
Emperor v. Bal Gangadhar Tilak, (1917) 19 BOMLR 211.
33
Balwant Singh and Anr v. State of Punjab, 1995 (1) SCR 411.
34
Fact sheet, para 3.
35
The Information Technology Act, 2000, § 69, Act. No. 21 of 2000 (India).
36
Fact sheet, para 5.
20
in activities which affect adversely, or are likely to affect adversely, the maintenance of
public order37
¶29. It is humbly submitted before this Hon’ble Court that The authorities invoked the power
Under Section 151(1)38 -“151. Arrest to prevent the commission of cognizable offences. (1) A
police officer knowing of a design to commit any cognizable offence may arrest, without
orders from a Magistrate and without a warrant, the person so designing, if it appears to
such officer that the commission of the offence cannot be otherwise prevented.”
That in the situation where the recording could have created a public disorder and alarming
feeling or feeling of insecurity among the general public at large with the statement that if we
remain silent today and erasing of the history clearly shows the attempt to incite. To avoid
such circumstances there was an compelling necessity to detain39
¶30. Under these circumstances, it is contented that the illegal activities of the Petitioner
would disturb the even tempo of life of the community which makes it prejudicial to the
maintenance of the public order and there is imminent possibility of the Petitioner again
indulging in similar prejudicial activities, can’t be brushed aside and therefore it was valid on
the part of the detaining authority for preventively detaining the Petitioner.
¶31.It is pertinent to mention that no right has been violated at the time of detention and the
Petitioners were informed about the reason for arrest. Considering the fact that the Petitioner
were informed after a long time cannot vitiate the detention as it was held “the grievance of
the Petitioner is without any merits and cannot vitiate the detention order on the ground of
non-communication of the grounds of detention” 40
¶32. That it is held by this Hon’ble Court that “we have no doubt in our minds about the role
of the Court in cases of preventive detention it has to be one of eternal vigilance. No freedom
is higher than personal freedom and no duty higher than to maintain it unimpaired. Thus, in
order to main the public order the detention of the Petitioner was valid.41 That there was a
direct and inevitable harm or danger to the general public at large. As the modus operandi of
the Petitioner in the alleged offence which was committed in quick succession would
certainly disturb the public peace and tranquillity. So it was imperative of the officers
concerned to pass the order of detention, since the acts of the Petitioner are prejudicial to the
37
Banka Sneha Sheela v. The State of Telangana, Criminal Appeal No. 733 of 2021.
38
The Criminal Procedure Code, 1973, § 151 (1), Act No. 2 of 1974 (India).
39
Baby Devassy Chully v. Union of India, (2013) 4 SCC 531.
40
Abdul Nasir Khan v. L. Hmingliana, Secretary (Preventive Detention), (1991) 1 Bom CR 183.
41
Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCR 1095.
21
maintenance of public order. Hence, applying the ratio in this case stated above the action of
detaining authority is perfectly valid.
ISSUE FOUR
4. WHETHER THE ORDER OF THE HIGH COURT ENDORSED THE
SUSTAINABLE IN THE BACKDROP OF THE RIGHT AGAINST SELF-
INCRIMINATION GUARANTEED UNDER ARTICLE 20(3) OF THE
CONSTITUTION?
¶33. The Counsel for Respondent submits that directing a person to part with his voice sample
to the police is not a violation of his fundamental right to privacy. The fundamental right to
privacy cannot be construed as absolute and must bow down to compelling public interest.
Hence giving voice samples to an investigating agency was not a violation of the fundamental
right against self-incrimination.
4.1 NO VIOLATION OF RIGHT TO PRIVACY
¶34. Fundamental right to privacy under Article 2142 cannot be construed as absolute but must
bow down to compelling public interest.43 In Justice K.S. Puttaswamy (Retd) v. Union of
Awadh44, the Court said that in the context of Article 21, an invasion of privacy must be
justified on the basis of law which stipulates a procedure which is fair, just and reasonable.
Similar has been the case of the order of Judicial First Class Magistrate to record the voice
samples of the Petitioner for digital analysis is justified in light of the heinous charge of
Sedition under Sec. 124A of Avadh Penal Code.
4.2 DOES NOT AMOUNT TO SELF-INCRIMINATION UNDER ARTICLE 20(3)
¶35. A specimen handwriting or signature or finger impressions by themselves are no

testimony at all, being wholly innocuous, because they are unchangeable. Chief Justice B.P.
Sinha, in the case of State of Bombay v. KathiKaluOghad45 observed that voice samples are
neither oral nor documentary evidence but belong to the third category of material evidence
42INDIA CONST. art. 21.
43
M. Pentiah v. Muddala Veeramllappa, AIR 1961 SC 1107.
44
Justice K.S. Puttaswamy (Retd) v. Union of India, 2017 10 SCC 1.
45
State of Bombay v. Kathi Kalu Oghad, 1962 SCR (3) 10.
22
which is outside the limit of “testimony”. The Court further laid that it has to be noticed
however that Article 20 (3)46 of our Constitution does not say that an accused person shall not
be compelled to be a witness. It says that such a person shall not be compelled to be a witness
“against himself”. The question that arises therefore is: Is an accused person furnishing
evidence against himself, when he gives his specimen handwriting, or impressions of his
fingers, palm, or foot? The answer to the same in the Court’s opinion has been negative. The
evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or
foot, will incriminate him, only if in comparison of these with certain other handwritings or
certain other impressions, identity between the two sets is established.47
¶36. The Counsel points out that the order of Judicial Magistrate calling upon the accused to
lend their voice sample does not amount “to be a witness against himself”. Giving a voice
sample is like giving a fingerprint impression or specimen handwriting by the accused for the
purpose of the investigation. The same cannot be included in the impression of being
witnessed. By giving a voice sample the accused do not convey information based upon his
personal knowledge which can incriminate him. A voice sample by itself is fully innocuous.
¶37. The Court explicitly stated in the case of Justice K.S. Puttaswamy (Retd.) v. Union of
Awadh48 that, the meaning of the Constitution cannot be frozen on the perspectives present
when it was adopted. The purpose of taking voice samples, which are nontestimonial physical
evidence in the present case is to compare it with a tape-recorded conversation. It is a
physical characteristic of the Mr. Jameer Ali and Dr. Sameer Chowdhary. The voiceprint
identification of voice involves measurement of frequency and intensity of the sound wave.
When compared with the recorded conversation with the help of a mechanical process, it may
throw light on the points of controversy.
¶38. It cannot be said that by stretching of imagination and by giving voice samples the
accused converts any information based upon his personal knowledge, thus, becomes a
witness against himself. Therefore, the Petitioners by giving voice samples merely give
identification data to the investigation agency. They were not subjected to any testimonial
compulsion. Thus, taking a voice sample of the Petitioners is not hit by article 20(3)49 of the
constitution.
46INDIA CONST. art. 20 § 3.

47
Ritesh Sinha v. State of Uttar Pradesh and Another, (2019) 8 SCC 1.
48
Justice K.S. Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1.
23
4.3 EJUSDEM GENERIS
¶39. With the advancement of technology, the modes of communication are changing. To
keep pace with the change, new technology is required to be used for collecting and
comparing evidence. One method being tapping of communication devices but after
compliance with the procedure laid down. It is in that context that taking of voice samples is
necessitated. The samples collected are not evidence in themselves, rather are tools to
identify the voice recording collected as evidence.50
¶40. In the words of Lord Denning, L.J., when a defect appears a judge cannot simply fold his
hands and blame the draftsman. He must set to work on the constructive task of finding the
intention of Parliament, and then he must supplement the written words so as to give “force
and life” to the intention of the legislature. A judge must not alter the material of which the
Act is woven, but he can and should iron out the creases.51
¶41. In admitted absence of any clear statutory provision that the question arising has to be
answered which is primarily one of the extent to which by a process of judicial interpretation
a clear gap in the statute should be filled up pending a formal legislative exercise.52
¶42. When Oghad53 and Selvi54, read together, effectively confine the protection against self-
incrimination to ‘testimonial compulsion’ or ‘psychiatric knowledge’, that is to say, to
information that is mental and testimonial in nature and not physical evidence such as blood,
semen, etc. The idea is to protect the mental privacy/integrity of the individual and give him a
right to silence with respect to facts in his mental knowledge. The protection does not extend
to physical phenomena such as DNA/Handwriting/Fingerprints etc. as there is no testimonial
compulsion involved and since this evidence is ‘objective’ and ‘physical’ in nature, there is
no threat of induced/tortured testimony creeping in.
¶43. “What may appear to be legislative inaction to fill the gaps in the statute could be on
account of justified concern and exercise of care and caution. However, when a yawning gap
in the statute, in the considered view of the Court, calls for a temporary patchwork of filling
up to make the statute effective and workable and to sub serve societal interests, a process of
judicial interpretation would become inevitable”55
50
Kamal Pal and Another v. State of Punjab, CRR-677-2021.
51
Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481.
52
State of U.P. v. Ram Babu Misra, (1980) 2 SCC 343.
53
54
Selvi and Others v. State of Karnataka, (2010) 3 SCC (Cri) 1.
55
24
¶44. Based on the above reasoning, the order of the High Court endorsing the constitutionality
of the decision of the Magistrate directing collection of voice samples of Dr. Chowdhary is
legally sustainable in the backdrop of the right against self-incrimination guaranteed under
Article 20(3)56 of the Constitution.
ISSUE FIVE
5.WHETHER THE DECISION OF THE HIGH COURT TO SUOMOTU INVOKE
THE INHERENT JURISDICTION UNDER SEC. 482 OF THE AVADH CODE OF
CRIMINAL PROCEDURE, 1973 TO FORM A SPECIAL INVESTIGATION TEAM
TO PROBE INTO A MATTER UNDER INVESTIGATION IS SUSTAINABLE IN
LAW AND FACTS?
¶45. It is humbly submitted before the Hon’ble Supreme Court that the High Court did err to
invoke the inherent jurisdiction under Sec. 48257 of the Avadh Code of Criminal Procedure,
1973 to form a special investigation team to probe into a matter. The whole procedure
adopted to entertain and initiate proceedings culminating in passing the impugned order
suffers from incurable procedural and substantive infirmities rendering the order void.
5.1. DEMARCATION BETWEEN CRIME DETECTION AND CRIME PUNISHMENT
¶46. Awadh is a democratic, republic nation. The VIIth Schedule of the Constitution of Avadh
contains three lists which catalogues the legislative competency between Union and State
legislatures.58 Therefore, there already exists a demarcation between the legislative, judicial
and executive functions.
¶47. In India as has been shown there is a statutory right on the part of the police to investigate
the circumstances of an alleged cognizable crime without requiring any authority from the
judicial authorities. The well-defined and demarcated functions in the field of crime detection
by the police and its subsequent adjudication by the Courts is so well known and had been
recognized way back in Emperor v. Khwaja Nazir Ahmad 59.
¶48. Similarly, in the case at hand, the formation of a Special Investigation Team by the High
Court to probe into the data interception using Spygaus by J.K. Technologies is merely an

57The Criminal Procedure Code, 1973, § 482 (1), Act No. 2 of 1974 (India).
58
Fact sheet, para 1.
59
Emperor v. Khwaja Nazir Ahmad,(1945) 47 BOMLR 245.
25
encroachment over the power of other statutory authorities. It is a well settled fact that the
Government, anticipating nationwide protest and agitation, resorted to take measures to
handle the adverse situations which could arise in the context.60 It was on these lines that the
union government through the Controller of Certifying Authorities directed J.K.
Technologies to intercept the data through any computer resource.
¶49. The functions of the judiciary and the police are complementary not overlapping and the
combination of individual liberty with a due observance of law and order is only to be
obtained by leaving each to exercise its own function, always, of course, subject to the right
of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to
give directions in the nature of habeas corpus.
¶50. The Court in S.N. Sharma v. Bipen Kumar Tiwari & Ors.61, the power of the police to
investigate has been made independent of any control by the Magistrate. In the case of the
State of Bihar & Anr. v. J.A.C. Saldanha & Ors62, here is a clear-cut and well demarcated
sphere of activity in the field of crime detection and crime punishment. Investigation of an
offence is the field exclusively reserved for the executive through the police department, the
superintendence over which vests in the State Government.
¶51. In the State of West Bengal v. S.N. Basak63, this Court reiterated the principle that the
police have statutory right to investigate into the circumstances of any alleged cognizable
offence without authority from a Magistrate and that power of the police to investigate cannot
be interfered with by the exercise of power under the inherent power of the High Court. The
Courtin the Hazari Lal Gupta v. Rameshwar Prasad & Anr. Etc.64 reiterated the principle that
the interference with the police investigation would be impending investigation.
5.2. UNLIMITED ARBITRARY JURISDICTION UNDER SECTION 482 OF CRPC

¶52. That the Court in Jagdish Valecha v. The State Of Madhya Pradesh65 said that the
jurisdiction under section 482 is discretionary, therefore, the High Court may refuse to
exercise the discretion if a party has not approached it with clean hands. In the present case
the, Mr Ali and Dr. Chowdhary clearly made inciting remarks amounting to sedition
therefore the High Court shouldn’t have invoked its inherent jurisdiction in the first place, let
alone forming the SIT.
60
Fact sheet, para 12.
61
S.N. Sharma v. Bipen Kumar Tiwari & Ors, 1970 SCR (3) 946.
62
State of Bihar &anr. v. J.A.C. Saldanha & Ors, 1980 SCR (2) 16.
63
State of West Bengal v. S.N. Basak, 1963 SCR (2) 52.
64
Hazari Lal Gupta v. Rameshwar Prasad &Anr. Etc., 1972 SCR (2) 666.
65
Jagdish Valecha v. The State of Madhya Pradesh, MCRC-53989-2019.
26
¶53. The jurisdiction of the High Court under Section 482 of the Code is not available to order
investigation into any case by the police. The Court in Divine Retreat Centre v. State of
Kerala66 recognized that it is well settled principle that Section 482 does not confer any new
power on the High Court but only saves the inherent power which the Court possessed before
the enactment of the Code. There are three circumstances under which the inherent
jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to
prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. In light
of facts of the given case and evidence on record, the interception of data by the Controller
was so proportional to the intention as prescribed in the K.S. Puttaswamy case 67, that the very
threat to national security was detected in the WhatsApp chat between Mr. Ali and Dr.
Chowdhary, itself. This establishes that there existed no threat to justice.
¶54. Chandrachud, J. (as His Lordship then was), in Kurukshetra University v. State of
Haryana68 while considering the nature of jurisdiction conferred upon the High Court under
Section 482 of the Code observed: It ought to be realised that inherent powers do not confer
an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory
power has to be exercised sparingly, with circumspection and in the rarest of rare cases,
which clearly is not the case in the present factual scenario.
¶55. However, the facts of the given case fail to establish any possible attack on the
preservation of justice. The situation in the country at the time of data interception becomes a
fact necessary to explain and introduce relevant facts under Section 9 of the Evidence Act.69
The country witnessed massive protests, agitation, dharnas and movements.70 The
fundamental rights made available to the citizen are not absolute but subject to certain
restrictions. The restrictions including the maintenance of public order and national security
made it the Union Government’s imperative to act for the larger public good.
¶56. Therefore, the interception of data was the only recourse left to prevent any compromise
on national security and integrity of the Nation and it is absolutely the wastage of the
resources of the country to form the SIT and bring it to action on the issue which has already
been dealt with the constitutional principles.
66
Divine Retreat Centre v. State of Kerala, Appeal (crl.) 472 of 2008.
67
Justice K.S. Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1.
68
Kurukshetra University v. State of Haryana, (1977) 4 SCC 451.
69
The Evidence Act, 1872, § 9, Act No. 1 of 1872 (India).
70
Fact sheet, para 3.
27
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly and respectfully requested that this Hon’ble Supreme Court may be pleased to
adjudge and declare that:
1. Appellate Tribunal’s non-interference with the decision of the Data Protection Authority
justifying the interception of data is not erred and is sustainable in law.
2. The High Court’s decision of approving the constitutionality of the proceedings initiated
by the Controller of the Certifying Authorities under Sec. 69 of the IT act, 2000 is not
erred.
3. The charges levied under Section 124A of Awadh Penal Code and detention in Judicial
Custody is legally valid.
4. The collection of voice samples is legally sustainable
5. The High Court could invoke inherent jurisdiction under Sec. 482 of the Avadh Code of
Criminal Procedure, 1973 to form a Special Investigation Team to probe into the matter.
6. The petition filed by the Petitioner be dismissed.
And\or
Pass any other order, direction, or relief that it deems fit in the light of interest of justice,
equity, and good conscience. For this act of kindness, the appellants shall duty-bound forever
pray.
Sd/-
Counsels for the Respondent
28

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Team Code: TC 27_R

XXth All India Moot Court Competition, 2021

BEFORE THE HON’BLESUPREME COURT OF AVADH

SPECIAL LEAVE PETITION

Union of Awadh………………………………………………………………………….. Petitioner

U/Art. 136 of The Constitution of Awadh, 1950

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF AVADH

MEMORIAL ON BEHALF OF THE RESPONDENT

LIST OF ABBREVIATIONS ................................................................................................... 4

4.2 DOES NOT AMOUNT TO SELF-INCRIMINATION UNDER ARTICLE 20(3) ............ 22

AIR All India Reporter

Bom.C.R Bombay Criminal Cases

CRL.A. Criminal Appeal

Cr LJ Civil Rules for Courts of Limited Jurisdiction

CrPC Criminal Procedural Code

IPC Indian Penal Code

NCT National Capital Territory

P&H Punjab and Harayana

SCC Supreme Court Cases

SCR Supreme Court Report

Sd\- Signature with name and date

UOI Union of India

STATUTES AND REGULATIONS

● The Citizenship (Amendment) Act, 2021

● A Commentary on Indian Penal Code, G.D Gaur, Third Edition

REPORTS AND INDICES

● Law Commission of India- 87th Report

THE HON’BLESUPREME COURT OF INDIANA HAS JURISDICTION TO HEAR THE

BACKGROUND OF THE CASE

The Government anticipating nationwide protest and agitation resorted to peremptory

WHETHER THE APPELLATE TRIBUNAL ERRED IN NOT INTERFERING WITH THE

WHETHER THE HIGH COURT ERRED IN ITS DECISION APPROVING THE

WHETHER THE CHARGE LEVIED UNDER SECTION 124A OF AVADH PENAL

WHETHER THE ORDER OF THE HIGH COURT ENDORSING THE

1.3. INTERCEPTION OF SAID DATA IS EXEMPTED UNDER SEC. 35 AND 36 OF THE

directions of the Central Government.”18Therefore, it is evident that the Central Government

2.1. PRESUMPTION OF CONSTITUTIONALITY

2.2. FUNDAMENTAL RIGHTS ENSHRINED IN CONSTITUTION ARE NOT ABSOLUTE,

directions for interception or monitoring or decryption of any information through any

3.1. ACTIONS POSED A THREAT TO PUBLIC ORDER

3.2. THERE WAS AN COMPELLING NECESSITY TO DETAIN

4.1 NO VIOLATION OF RIGHT TO PRIVACY

4.2 DOES NOT AMOUNT TO SELF-INCRIMINATION UNDER ARTICLE 20(3)

¶35. A specimen handwriting or signature or finger impressions by themselves are no

46INDIA CONST. art. 20 § 3.

4.3 EJUSDEM GENERIS

5.1. DEMARCATION BETWEEN CRIME DETECTION AND CRIME PUNISHMENT

56INDIA CONST. art. 20 § 3.

5.2. UNLIMITED ARBITRARY JURISDICTION UNDER SECTION 482 OF CRPC

Counsels for the Respondent

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